Madras High Court

C.Mohan vs M.Karuppiah on 20 July, 2021

                                                                                      Crl.O.P.No.2638 of
                                                           2021

                                IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 20.07.2021

                                                        CORAM:

                                THE HONOURABLE MRS.JUSTICE S.KANNAMMAL

                                                C.M.A.No.2631 of 2014

                      C.Mohan                                                      .. Appellant

                                                                  Vs.
                      1.M.Karuppiah
                       (R1 was set ex-parte in the Trial Court)

                      2.ICICI Lomboard General Insurance Co.Ltd.,
                        No.140, Chotabai Centre, II Floor,
                        Nungambakkam High Road,
                        Chennai-600 034.                                            .. Respondents



                      Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
                      Vehicles Act, 1988, against the judgment and decree dated 12.02.2014 made
                      in M.C.O.P.No.659 of 2013 on the file of the Motor Accidents Claims
                      Tribunal, Small Causes Court No.III, Chennai.
                                          For Appellant     : Mr.F.Terry Chellaraja

                                          For R2            : Mrs.R.Shree Vidhya




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                                                                                   Crl.O.P.No.2638 of
                                                            2021




                                                    JUDGMENT

(The Case has been heard through Video Conference)

This Civil Miscellaneous Appeal has been filed for enhancement of

compensation granted by the award dated 12.02.2014 made in

M.C.O.P.No.659 of 2013 on the file of the Motor Accidents Claims Tribunal,

Small Causes Court No.III, Chennai.

2.The appellant is the claimant in M.C.O.P.No.659 of 2013 on the

file of the Motor Accidents Claims Tribunal, Small Causes Court No.III,

Chennai. He filed the above claim petition, claiming a sum of Rs.9,00,000/-

as compensation for the injuries sustained by him in the accident that took

place on 06.12.2012.

3.The Tribunal, considering the pleadings, oral and documentary

evidence, held that the accident occurred only due to rash and negligent

riding by the rider of the two wheeler belonging to the first respondent and

directed the second respondent-Insurance Company, being the insurer of the

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two wheeler, to pay a sum of Rs.1,83,000/- as compensation to the

appellant/claimant.

4.Not being satisfied with the amounts awarded by the Tribunal,

the appellant has come out with the present appeal seeking enhancement of

compensation.

5.The learned counsel appearing for the appellant contended that

in the accident, the appellant sustained malunited fracture of right femur,

shortening of 3 inches, muscle quadriceps and ham strings, adductors and

abductors are weak by grade IV post traumatic stiffness of right hip joint.

Painful movements reduced by 20 degree in flexion and extension,

abduction and adduction, difficult to walk on slope, climb stair case, sit

cross legged and squat, walking with the help of stick. P.W.2/Doctor has

assessed the disability suffered by the appellant at 60%. The Tribunal,

without giving any valid reason, reduced the percentage of disability from

60% to 40% and awarded a meagre sum of Rs.80,000/- towards disability.

The Tribunal ought to have adopted multiplier method for awarding

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compensation towards loss of earning power. The appellant was working as

Watch Man and was earning a sum of Rs.10,000/- per month. The Tribunal,

without considering the same, awarded a very meagre sum of Rs.20,000/-

towards loss of income. Due to the injuries and disability, the appellant has

taken treatment in Sri Ramachandra Hospital, Porur, Chennai, as out-patient

from 06.12.2012 to till date. The amounts awarded by the Tribunal towards

attendant charges, loss of amenities, transportation, extra nourishment, pain

& sufferings and medical expenses are meagre and therefore, prayed for

enhancement of compensation.

6.Per contra, Mrs.R.Shree Vidhya, learned counsel appearing for

the second respondent/Insurance Company contended that the Tribunal

reduced the percentage of disability from 60% to 40% on the ground that

assessment of disability by P.W.2/Doctor is on the higher side. Hence, the

appellant is not entitled to compensation for 60% disability. The appellant

failed to prove that he suffered functional disability and hence, he is not

entitled to compensation towards loss of earning power by adopting

multiplier method. The appellant has not produced any documents to show

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that he lost income during the treatment period. In such circumstances, the

compensation awarded by the Tribunal towards loss of income for four

months is not meagre. The amounts awarded by the Tribunal under different

heads are also not meagre. The appellant has not made out any case for

enhancement of compensation and prayed for dismissal of the appeal.

7.Heard the learned counsel appearing for the appellant as well as

the learned counsel appearing for the second respondent/Insurance

Company and perused the materials available on record.

8.From the materials available on record, it is seen that in the

accident, the appellant sustained malunited fracture of right femur,

shortening of 3 inches, muscle quadriceps and ham strings, adductors and

abductors are weak by grade IV post traumatic stiffness of right hip joint.

Painful movements reduced by 20 degree in flexion and extension,

abduction and adduction, difficult to walk on slope, climb stair case, sit

cross legged and squat, walking with the help of stick. To prove the same,

the appellant examined P.W.2/Doctor, who certified that the appellant

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sustained 60% disability and issued Ex.P9/disability certificate to that effect.

The learned counsel appearing for the second respondent-Insurance

Company has contended before the Tribunal that the disability assessed by

P.W.2/Doctor is on the higher side. The Tribunal reduced the percentage of

disability to 40% on the ground that the assessment of disability by

P.W.2/Doctor is on the higher side and awarded a sum of Rs.80,000/-

(Rs.2,000/- X 40%) towards disability by awarding a sum of Rs.2,000/- per

percentage of disability. The Tribunal has observed that P.W.2/Doctor has

not treated the claimant and has only given disability certificate after

examining the claimant. Hence, there is nothing erroneous in fixing the

percentage of disability at 40% by the Tribunal. But, the amount of

Rs.2000/- per percentage of disability fixed by the Tribunal is very meagre.

The accident occurred in the year 2012 and the appellant is entitled to a sum

of Rs.3,000/- per percentage of disability. Thus, the compensation awarded

by the Tribunal towards disability is enhanced to Rs.1,20,000/- (Rs.3,000 X

40%). The appellant failed to prove that he suffered functional disability and

hence, he is not entitled to any compensation towards loss of earning power

by adopting multiplier method.

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9.According to the appellant, he was working as a Watch Man and

was earning a sum of Rs.10,000/- per month. The appellant failed to

substantiate the said contention. In the absence of any material evidence

with regard to avocation and income, the Tribunal fixed a sum of Rs.5,000/-

per month as notional income of the appellant. The accident occurred in the

year 2012 and the notional income fixed by the Tribunal is meagre and

monthly income is fixed at Rs.8,000/- per month. The Tribunal has awarded

a meagre sum of Rs.5,000/- towards loss of income for four month. Due to

the injuries and period of treatment taken by the appellant, he would not

have attended his work atleast for a period of three months. Hence, a sum of

Rs.24,000/- (Rs.8,000/- X 3 months) is awarded towards loss of income for

three months. The amounts awarded by the Tribunal under other heads are

just and reasonable and the same are hereby confirmed. Thus, the

compensation awarded by the Tribunal is modified as follows:

S. Description Amount awarded Amount awarded Award confirmed by Tribunal by this Court or enhanced or No granted

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(Rs) (Rs)