Madras High Court
M.Ganeshan vs N.Chinnadurai on 1 July, 2021
C.M.A.No.2405 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.07.2021
CORAM:
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.No.2405 of 2016
M.Ganeshan ...Appellant
Vs
1.N.Chinnadurai
(1st respondent remained ex-parte)
2.The New India Assurance Co.Ltd.,
No.92, G.N.Chetty Road,
'Mezzanine Floor' East Cost Chambers,
T.Nagar, Chennai – 600 017. ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the Judgment and decree dated 28.06.2016
made in MACT.OP.No.2341 of 2008, on the file of the Special Sub Judge
II, (Motor Accident Claims Tribunal), Small Causes Court, Chennai.
For Appellant : Mr.R.Kalaiarasan
For Respondents : R1 – Exparte
Mr.M.Krishnamoorthy for R2
1/10
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C.M.A.No.2405 of 2016
JUDGMENT
(This case was heard through Video Conferencing)
This appeal has been filed by the claimant seeking for enhancement
of compensation under the impugned Award dated 28.06.2016 passed by the
Motor Accident Claims Tribunal, Special Sub Judge - II, Small Causes
Court, Chennai in M.C.O.P.No.2341 of 2008.
2.The Appellant/claimant unsatisfied with the quantum of
compensation awarded by the Tribunal has preferred this appeal seeking for
enhancement.
3.The details of the compensation awarded to the Appellant/claimant
by the Tribunal under the impugned Award are as follows:
Head Amount awarded by
the Tribunal
Loss of earning Rs.44,000
(Rs.11,000 x 4 months
Transport to hospital Rs.5,000
Extra nourishment Rs.25,000
Damage to clothing and articles Rs.2,000
Private medical expenses Rs.6,24,570
Compensation for attendants Rs.25,000
Mental agony due to immobilization Rs.25,000
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C.M.A.No.2405 of 2016
Head Amount awarded by
the Tribunal
Loss of amenities Rs.25,000
Pain and suffering Rs.40,000
Permanent disability Rs.2,25,000
Total Rs.10,40,570/-
4.Heard Mr.R.Kalaiarasan, learned counsel for the Appellant and
Mr.M.Krishnamoorthy, learned counsel for the second respondent. The first
respondent has remained exparte both before the Tribunal as well as this
Court.
5.The Appellant/claimant has sustained the following injuries on
07.03.2008 as a result of an accident caused by a vehicle owned by the first
respondent and insured with the second respondent:
(a) Head injury – Left temporal fracture
(b) Fracture parietal bone
(c) Bi-lateal tempro – parietal sub-dural hematoma and sub-dural leak
(d) Subrachnoid hemorrhage
(e) Right side temporal injury
(f) Internal bleeding in head (tentorial bleed)
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C.M.A.No.2405 of 2016
(g) Fracture both bones right fore-arm
(h) Internal injury in abdomen
(i) Multiple injuries all over his body.
6.The Doctor who examined the Appellant/claimant has assessed
60% disability in respect of head injury and 30% disability in respect of
ortho injury and in all the total disability was assessed by the Doctor at
90%. However, the Tribunal assessed the disability of the
Appellant/claimant at 75% and has awarded a disability compensation of
Rs.2,25,000/- to the Appellant/claimant calculated at Rs.3,000/- per
percentage of disability. The nature of injuries sustained by the
Appellant/claimant has not been disputed by the respondents before the
Tribunal.
7.This Court has perused and examined the impugned Award as well
as materials and evidence available on record before the Tribunal.
8.Considering the nature of injuries sustained by the
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C.M.A.No.2405 of 2016
Appellant/claimant as indicated supra, this Court is of the considered view
that the assessment of disability of the Appellant/claimant at 75% by the
Tribunal is a correct assessment and the disability compensation fixed at
Rs.2,25,000/- by the Tribunal is also a correct assessment.
9.The Appellant/claimant was hospitalized at Vijaya Health Centre
between 07.03.2008 and 20.05.2008 for a period of 74 days. The
Appellant/claimant has filed discharge summary issued by the Hospital
which has been marked as Ex.P4 and the period of hospitalization of the
Appellant/claimant has also not been disputed by the respondents before the
Tribunal as seen from the evidence available on record.
10.The Appellant/claimant was a partner in a Newspaper selling
concern.
11.The Tribunal has fixed loss of earning to the Appellant/claimant at
Rs.44,000/- calculated at Rs.11,000/- per month for a period of 4 months.
This Court is of the considered view that the Tribunal has not taken into
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C.M.A.No.2405 of 2016
consideration nature of injuries sustained by the Appellant/claimant which
are grievous in nature and has also not taken into consideration long period
of hospitalization before assessing the loss of earning of the
Appellant/claimant for a period of 4 months. This Court is of the
considered view that for atleast a period of 10 months, the
Appellant/claimant would have been unable to do his regular work as a
Newspaper distributor.
12.Even though the Appellant/claimant has filed documentary
evidence to show that he was earning between Rs.10,000/- and Rs.15,000/-
at the time of the accident, the Tribunal has fixed the notional monthly
income of the Appellant/claimant at Rs.11,000/-. This Court is of the
considered view that being a Newspaper distributor, the Tribunal ought to
have fixed monthly income of the Appellant/claimant at a higher sum.
13.Considering the fact that the year of the accident is 2008, this
Court therefore fixes notional monthly income of the Appellant/claimant at
Rs.12,000/-. Therefore, compensation towards loss of earning to the
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C.M.A.No.2405 of 2016
Appellant/claimant is enhanced to Rs.1,20,000/- calculated at Rs.12,000/-
per month for a period of 10 months instead of Rs.44,000/- fixed by the
Tribunal calculated at Rs.11,000/- per month for a period of 4 months.
14.The compensation awarded by the Tribunal under the heads
(a) Transport to hospital and (b) Pain and suffering will have to be enhanced
in view of the grievous injuries and the fractures sustained by the
Appellant/claimant. Accordingly, this Court enhances the compensation
towards Transport to hospital from Rs.5,000/- to Rs.15,000/- and towards
Pain and suffering from Rs.40,000/- to Rs.50,000/-.
15.Insofar as the compensation awarded by the Tribunal under
various other heads are concerned, the same is a just compensation and
there is no scope for interference.
16.For the foregoing reasons, the compensation awarded by the
Tribunal under the impugned Award is enhanced to Rs.11,61,570/- from
Rs.10,40,570/- by this Court as detailed hereunder:
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C.M.A.No.2405 of 2016
Head Amount awarded by Modified/
the Tribunal
enhanced by this Court
Loss of earning Rs.44,000 Rs.1,20,000
(Rs.11,000 x 4 months (Rs.12,000 x 10 months
Transport to hospital Rs.5,000 Rs.15,000
Extra nourishment Rs.25,000 Rs.25,000
Damage to clothing and Rs.2,000 Rs.2,000
articles
Private medical expenses Rs.6,24,570 Rs.6,24,570
Compensation for Rs.25,000 Rs.25,000
attendants
Mental agony due to Rs.25,000 Rs.25,000
immobilization
Loss of amenities Rs.25,000 Rs.50,000
Pain and suffering Rs.40,000 Rs.50,000
Permanent disability Rs.2,25,000 Rs.2,25,000
Total Rs.10,40,570/- Rs.11,61,570/-
17.In the result, the appeal is partly allowed. The Second respondent
is directed to deposit the modified award amount of Rs.11,61,570/- as
assessed by this Court together with interest at 7.5% p.a. from the date of
claim petition till the date of realization excluding the period between
12.09.2011 and 29.10.2011, less the amount, if any, already deposited to the
credit of M.C.O.P.No.2341 of 2008 on the file of the Motor Accident
Claims Tribunal, Special Sub Judge - II, Small Causes Court, Chennai
within a period of eight weeks from the date of receipt of a copy of this
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C.M.A.No.2405 of 2016
Judgment. On such deposit being made, the Tribunal is directed to transfer
the award amount directly to the bank account of the appellant/claimant
through RTGS, within a period of two weeks thereafter. The requisite Court
fee, if any has to be paid by the appellant/claimant before receiving the copy
of this Judgment. No costs.
01.07.2021
Index:Yes/No
Internet:Yes/No
Speaking/Non-speaking order
pam
To
1.The Motor Accident Claims Tribunal,
Special Sub Judge - II, Small Causes Court, Chennai.
2.The Section Officer,
V.R.Section, High Court of Madras.
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C.M.A.No.2405 of 2016
ABDUL QUDDHOSE, J.
pam
C.M.A.No.2405 of 2016
01.07.2021
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