The Managing Director vs Kesavan … Appellant
2021 Latest Caselaw 14859 Mad

                                                   CMA Nos.136 and 150 of 2016

       IN THE HIGH COURT OF JUDICATURE AT MADRAS

                         DATED: 26.07.2021

                              CORAM:

       THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE

                    CMA Nos.136 and 150 of 2016
                               and
                      CMP No.1196 of 2016

The Managing Director,
Tamil Nadu State Transport
      Corporation (Villupuram) Ltd.,
Kancheepuram.                               …     Appellant in
                                                  CMA No.136 of 2016
                                                  and
                                                  respondent in

CMA No.150 of 2016 versus

Kesavan … Appellant in CMA No.150 of 2016 and respondent in CMA no.136 of 2016

Prayer in CMA No.136 of 2016 : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 23.04.2014 made in M.C.O.P. No.4064 of 2012 on the file of the Motor Accident Claims Tribunal, IV Small Causes Judge, Chennai.

CMA Nos.136 and 150 of 2016

Prayer in CMA No.150 of 2016 : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the fair and decreetal order dated 29.04.2014 in MCOP No.4064 of 2012 on the file of the Motor Accidents Claims Tribunal / IV Judge, Court of Small Causes/Chennai.

For Appellant in CMA No.130 of 2016 and respondent in CMA No.150 of 2016 : Ms.Ramya V.Rao

For Appellant in CMA No.150 of 2016 and respondent in CMA No.130 of 2016 : Mr.K.J.Sivakumar

COMMON JUDGMENT

(Heard Video Conference)

C.M.A. No.136 of 2016 has been filed by the Transport

Corporation challenging its liability to pay the compensation to the

respondent / claimant under the impugned award dated 23.04.2014

passed by the Motor Accidents Claims Tribunal, IV Court of Small

Causes, Chennai in MCOP No.4064 of 2012.

2.The claimant, who is the respondent in CMA No.136 of 2016

has challenged the very same impugned award seeking for enhancement

of compensation in CMA No.150 of 2016.

CMA Nos.136 and 150 of 2016

3. The Tribunal under the impugned award dated 23.04.2014,

directed the Transport Corporation to pay the claimant a compensation of

Rs.1,66,200/- together with interest and costs as detailed hereunder :-

                    Heads                Amount awarded
                                          by the Tribunal
                                               (Rs.)
        Loss of earning                             25,000
        Transport to hospital                       10,000
        Extra nourishment                           10,000
        Medical expenses                              6,195
        Loss of amenities                             5,000
        Pain and suffering                          30,000
        Disability of 40% at                        80,000
        Rs.2,000/- per percentage
        Total                                      1,66,195
        Rounded off                                1,66,200

4. Heard Mr.K.J.Sivakumar, learned counsel for the appellant /

Transport Corporation in CMA No.136 of 2016 and the respondent in

CMA No.150 of 2016 and Ms.Ramya V.Rao, learned counsel for the

appellant / claimant in CMA No.150 of 2016 and the respondent in CMA

No.136 of 2016.

5. This Court has perused the materials and evidence available on

record before the Tribunal.

6. The appellant in CMA No.150 of 2016, who is the claimant was

CMA Nos.136 and 150 of 2016

a Makeup Artiste, aged 34 years and he sustained fracture of both bones

in the left leg as a result of an accident caused by a bus owned by the

respondent in CMA No.150 of 2016 / Transport Corporation on

05.03.2010.

7. Before the Tribunal, the claimant has filed 20 documents which

were marked as Exs.P1 to P20 and two witnesses were examined on his

side viz., the claimant himself as PW1 and the Doctor, who examined

him as PW2. On the side of the respondent / Transport Corporation,

neither any document filed nor any document was examined before the

Tribunal.

8. Ex.P6, discharge summary issued by Sri Ramchandra Medical

Centre confirms that the claimant had taken inpatient treatment from

26.07.2010 to 07.08.2010. Thereafter, he had taken followup treatment

as an inpatient in the very same hospital from 28.10.2010 to 30.10.2010,

as seen from Ex.P7, discharge summary. He had undergone a surgery

and bone grafting in his left leg was also performed. As seen from the

evidence available on record, he has also been taking physiotherapy

treatment. The Doctor(PW2) has assessed the disability of the

CMA Nos.136 and 150 of 2016

appellant/claimant at 45% and he has stated that the claimant had

suffered fracture of both bones in his left leg and a surgery was also

performed on him with implantation, which are still there. According to

the Doctor, the fracture bones of the claimant are mal-united and due to

the same, there will be pain and stiffness in the claimant's left leg and his

movements will be restricted. The Tribunal has awarded a compensation

of Rs.25,000/- to the claimant towards loss of income during his period

of treatment, which in the considered view of this Court is low and it has

to be enhanced. After giving due consideration to the avocation of the

claimant and the nature of the injuries sustained by him as a result of an

accident, as indicated supra, this Court is of the considered view that

atleast for a period of nine months, he would have been unable to

perform his regular avocation as a Makeup Artiste. The Tribunal has not

determined the notional monthly income of the claimant. The accident

happened on 05.03.2010, this Court after giving due consideration to the

materials and evidence available on record fixes the notional monthly

income of the claimant at Rs.8,000/- and determines the loss of income

during the period of treatment at Rs.72,000/-, calculated at Rs.8,000/-

p.m., for a period of 9 months.

CMA Nos.136 and 150 of 2016

9. The Tribunal has assessed the disability of the appellant /

claimant at 40% instead of 45% assessed by the Doctor (PW2). No

reasons have been given by the Tribunal for reducing the disability from

45% to 40%. After giving due consideration to the nature of the injuries

sustained by the appellant / claimant and the surgeries performed on him

as well as the period of hospitalisation, this Court accepts the disability

certificate of the Doctor (PW2) and therefore, fixes the disability of the

appellant / claimant at 45% and not 40% has erroneously determined by

the Tribunal. The accident happened in the year 2010. After giving due

consideration to the year of the accident, this Court enhances the

disability compensation to Rs.1,35,000/- calculated at Rs.3,000/- per

percentage of disabilty for the 45% disability assessed by this Court

instead of Rs.80,000/- fixed by the Tribunal, calculated at Rs.2,000/- per

percentage of disability for the 40% disability assessed by the Tribunal.

10. With regard to the compensation awarded by the Tribunal

towards medical bills at Rs.6195/-, Rs.10,000/- towards transportation

and Rs.10,000/- towards extra nourishment are concerned, the same is a

just compensation and therefore, the same is confirmed by this Court.

CMA Nos.136 and 150 of 2016

Similarly, the compensation awarded by the Tribunal towards Pain and

suffering at Rs.30,000/- is also confirmed by this Court.

11. However, the Tribunal has failed to award any compensation

towards attender charges and future medical expenses. If the nature of

injuries sustained by the claimant and the long period of his

hospitalisation as well as his disability were duly considered, the

Tribunal ought to have granted compensation towards future medical

expenses as well. However, the same has not been granted by the

Tribunal. Accordingly, this Court awards a compensation of Rs.10,000/-

each towards loss of attender charges and future medical expenses to the

claimant.

12. The Tribunal has also awarded only a meagre compensation of

Rs.5,000/- to the claimant towards loss of amenities, limbing and

shortening, which has necessarily to be enhanced. Accordingly, this

Court enhances, the same to Rs.20,000/- from Rs.5,000/- fixed by the

Tribunal.

13. For the foregoing reasons, the award of the Tribunal is hereby

CMA Nos.136 and 150 of 2016

enhanced in the following manner :

               Heads               Amount awarded Amount awarded
                                    by the Tribunal by this Court
                                         (Rs.)          (Rs.)
   Loss of earning                             25,000                72,000
   # Rs.8,000/- x 9                                                       #
   Transport to hospital                       10,000                10,000
   Extra nourishment                           10,000                10,000
   Medical expenses                             6,195                 6,195
   Loss of amenities                            5,000                20,000
   Pain and suffering                          30,000                30,000
   Disability of * 40% at                      80,000              1,35,000
   Rs.2,000/- per percentage
   ## Rs.3,000/- x 45%                             *                      ##
   Attender charges                                 -                10,000
   Future medical expenditure                       -                10,000
   Total                            1,66,195         3,03,195

14. Since enhancement of compensation has been granted in

favour of the claimant / appellant in CMA No.150 of 2016, connected

C.M.A. No.136 of 2016 filed by the Transport Corporation challenging

the very same award does not deserve any merit and it has to be

dismissed.

15. In the result, the appeal filed by the Transport Corporation in

CMA No.136 of 2016 is dismissed and the appeal filed by the claimant in

CMA No.150 of 2016 is partly allowed by enhancing the compensation

from Rs.1,66,195/- to Rs.3,03,195/-. No costs. Consequently,

CMA Nos.136 and 150 of 2016

connected miscellaneous petition is closed.

16. The appellant in CMA No.136 of 2016 as well as the

respondent in CMA No.150 of 2016 is directed to deposit the entire

award amount as assessed by this Court together with interest at 7.5%

p.a. from the date of claim petition till the date of realization, less the

amount, if any, already deposited to the credit of M.C.O.P. No.4064 of

2012 on the file of the Motor Accident Claims Tribunal, IV Small Causes

Judge, Chennai, within a period of eight weeks from the date of receipt

of a copy of this Judgment. On such deposit being made, the Tribunal is

directed to transfer the award amount directly to the bank account of the

respondent in CMA No.136 of 2016 as well as appellant in CMA No.150

of 2016/claimant, through RTGS, within a period of two weeks

thereafter. Necessary Court fee, if any has to be paid by the appellant in

CMA No.150 of 2016 before receiving the copy of this Judgment.

26.07.2021 Index: Yes/No Internet: Yes/No Speaking Order/Non-Speaking Order vsi2

ABDUL QUDDHOSE, J.

vsi2

CMA Nos.136 and 150 of 2016

To

1. The Chief Judge, IV Court of Small Causes, Motor Accident Claims Tribunal, Chennai.

2. The Section Officer, V.R. Section High Court of Madras, Chennai - 104.

CMA Nos.136 and 150 of 2016

26.07.2021