Madras High Court
Kalyani vs The Cor on 26 July, 2021
C.M.A.No.1960 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.07.2021
CORAM:
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A.No.1960 of 2021
Kalyani .. Appellant
Vs.
1.The Correspondent,
Star Matric Higher Secondary School,
Periamanali Post,
Tiruchengode Taluk, Namakkal District.
2.The Manager,
The Oriental Insurance Company Limited,
No.90A, K.V.A.Complex,
Thuraiyur Road,
Namakkal District-637 001. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
12.07.2019 made in M.C.O.P.No.6 of 2019 on the file of the Motor Accident
Claims Tribunal, Chief Judicial Magistrate, Namakkal.
For Appellant : Mr.C.Thangaraju
For R2 : Mr.M.J.Vijaya Raghavan
1/10
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1960 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 12.07.2019 made in M.C.O.P.No.6
of 2019 on the file of the Motor Accident Claims Tribunal, Chief Judicial
Magistrate, Namakkal.
2.The appellant is the claimant in M.C.O.P.No.6 of 2019 on the file of
the Motor Accident Claims Tribunal, Chief Judicial Magistrate, Namakkal.
He filed the above said claim petition, claiming a sum of Rs.5,00,000/- as
compensation for the injuries sustained by her in the accident that took place
on 04.04.2017.
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the driver of the bus owned by 1st respondent and directed the 2nd respondent-
Insurance Company to pay a sum of Rs.1,30,660/- as compensation to the
appellant.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1960 of 2021
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 (i) head injury with brain bleeding (ii)
contusion with swelling left occipital scalp (iii) contusion with abrasion right
elbow (iv) contusion with abrasion left elbow (v) contusion with swelling
right hip and (vi) contusion with swelling left shoulder. P.W.2/Doctor
examined the appellant and certified that appellant suffered 25% disability
and issued Ex.P16/disability certificate to that effect. The Tribunal without
giving any valid reason, reduced the percentage of disability from 25% to
18% and awarded compensation only for 18% disability at the rate of
Rs.3,000/- per percentage of disability. The Tribunal ought to have awarded
compensation for 25% disability. At the time of accident, the appellant was
working in medical shop attached to Shanthi Hospital, Rasipuram and was
earning a sum of Rs.15,000/- per month. The Tribunal fixed a meagre sum of
Rs.7,500/- per month as notional income of the appellant and awarded
compensation towards loss of income only for two months. The appellant has
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1960 of 2021
taken treatment as inpatient at C.M.Hospital Namakkal for 4 days from
04.04.2017 to 07.04.2017. The Tribunal failed to award any amount towards
loss of amenities. The amounts awarded by the Tribunal under other heads are
meagre and prayed for enhancement of compensation.
6.Per contra, Mr.M.J.Vijaya Raghavan, learned counsel appearing for
the 2nd respondent-Insurance Company contended that the Tribunal reduced
the percentage of disability from 25% to 18% on the ground that no surgery
was done to the appellant and she has taken only conservative treatment.
P.W.2/Doctor also has not filed the calculation for assessment of disability.
Hence, the appellant is not entitled to compensation for 25% disability. The
appellant has not produced any material evidence to prove his avocation and
income. In the absence of any material evidence with regard to avocation and
income, a sum of Rs.7,500/- per month fixed by the Tribunal as notional
income of the appellant is excessive. The appellant has not suffered any
functional disability and hence, he is not entitled to any compensation
towards loss of earning capacity. The amounts awarded by the Tribunal under
different heads are not meagre. The appellant has not made out any case for
enhancement of compensation and prayed for dismissal of the appeal.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1960 of 2021
7.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the 2nd respondent-Insurance Company and
perused the entire materials on record.
8.From the materials available on record, it is seen that it is the case of
the appellant that in the accident he sustained (i) head injury with brain
bleeding (ii) contusion with swelling left occipital scalp (iii) contusion with
abrasion right elbow (iv) contusion with abrasion left elbow (v) contusion
with swelling right hip and (vi) contusion with swelling left shoulder.
P.W.2/Doctor examined the appellant and certified that appellant suffered
25% disability and issued Ex.P16/disability certificate to that effect. The
Tribunal reduced the percentage of disability from 25% to 18% on the ground
that no surgery was done to the appellant and she has taken only conservative
treatment. P.W.2/Doctor also has not filed the calculation for assessment of
disability. The reason given by the Tribunal for reducing the percentage of
disability from 25% to 18% is correct. This Court by the judgment reported in
2020 (1) TN MAC 617 [M. Chinnathambi Vs. S.Deepa and another], fixed a
sum of Rs.4,000/- per percentage of disability for the accident occurred in the
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1960 of 2021
year 2014 & 2015 and a sum of Rs.5,000/- per percentage of disability for the
accident occurred from the year 2016 onwards, due to raise in cost of living.
In the present case, the accident is of the year 2017. In view of the same, a
sum of Rs.4,000/- is awarded per percentage of disability. Thus, the
compensation awarded by the Tribunal towards disability is modified to
Rs.72,000/- (Rs.4,000/- X 18% disability). The appellant has not proved that
he suffered functional disability and lost his earning capacity. Hence, he is
not entitled to any amount towards loss of earning capacity by adopting
multiplier method.
9.It is the contention of the appellant that at the time of accident, he
was working in medical shop attached to Shanthi Hospital, Rasipuram and
was earning a sum of Rs.15,000/- per month. But the appellant has not
produced any material evidence to prove his avocation and income. In the
absence of any material evidence with regard to avocation and income, the
Tribunal has rightly fixed the notional income of the appellant at Rs.7,500/-
per month and awarded a sum of Rs.15,000/- as compensation towards loss of
income for two months. Considering the nature of injuries and period of
treatment taken by the appellant, the amounts awarded by the Tribunal
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1960 of 2021
towards transportation is meagre and hence, the same is enhanced to
Rs.5,000/-. The Tribunal has not awarded any amount towards loss of
amenities. Considering the nature of injuries and disability suffered by the
appellant, this Court is of the view that she would have suffered
inconvenience and would be facing discomfort in her life. Therefore, the
appellant is entitled to a sum of Rs.5,000/- towards loss of amenities. The
amounts awarded by the Tribunal under other heads are just and reasonable
and hence, the same are hereby confirmed. Thus, the compensation awarded
by the Tribunal is modified as follows:
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Pain & sufferings 35,000/- 35,000/- Confirmed
2. Disability 54,000/- 72,000/- Enhanced
3. Medical Expenses 22,660/- 22,660/- Confirmed
4. Loss of income 15,000/- 15,000/- Confirmed
5. Transportation 4,000/- 5,000/- Enhanced
6. Loss of amenities - 5,000/- Granted
Total Rs.1,30,660/- Rs.1,54,660/- Enhanced by
Rs.24,000/-
10.In the result, this Civil Miscellaneous Appeal is partly allowed and
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1960 of 2021
the compensation awarded by the Tribunal at Rs.1,30,660/- is hereby enhanced
to Rs.1,54,660/- together with interest at the rate of 7.5% per annum from the
date of petition till the date of deposit. The 2nd respondent-Insurance
Company is directed to deposit the award amount now determined by this
Court along with interest and costs, less the amount already deposited, if any,
within a period of four weeks from the date of receipt of a copy of this
judgment, to the credit of M.C.O.P.No.6 of 2019 on the file of the Motor
Accident Claims Tribunal, Chief Judicial Magistrate, Namakkal. On such
deposit, the appellant is permitted to withdraw the award amount now
determined by this Court, along with interest and costs, less the amount if
any, already withdrawn by making necessary applications before the
Tribunal. No costs.
26.07.2021
gbi
Index : Yes / No
Internet : Yes / No
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1960 of 2021
To
1.The Chief Judicial Magistrate,
Motor Accident Claims Tribunal,
Namakkal.
2.The Section Officer,
VR Section,
High Court,
Madras.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1960 of 2021
S.KANNAMMAL, J.
gbi
C.M.A.No.1960 of 2021
26.07.2021
https://www.mhc.tn.gov.in/judis/
