Madras High Court
Sathishkumar vs N.Vidyakar on 21 June, 2021
C.M.A.No.1700 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.06.2021
CORAM:
THE HONOURABLE TMT.JUSTICE S.KANNAMMAL
C.M.A.No.1700 of 2013
Sathishkumar .. Appellant
Vs.
1.N.Vidyakar
2.The United India Insurance Company Limited,
New No.75, Old No.9, Shanmugam Road,
Tambaram West,
Chennai – 600 045. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
01.02.2012 made in M.C.O.P.No.90 of 2010 on the file of the Motor
Accident Claims Tribunal, Chief Judicial Magistrate's Court, Chengalpattu.
For Appellant : Mr.S.S.Swaminathan
For R1 : No appearance
For R2 : Mrs.R.Rathnathara
JUDGMENT
(The matter is heard through “Video Conferencing/Hybrid mode”.)
This Civil Miscellaneous Appeal has been filed for enhancement of
compensation granted by the Tribunal in the award dated 01.02.2012 made in
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C.M.A.No.1700 of 2013
M.C.O.P.No.90 of 2010 on the file of the Motor Accident Claims Tribunal,
Chief Judicial Magistrate's Court, Chengalpattu.
2.The appellant is the claimant in M.C.O.P.No.90 of 2010 on the file of
the Motor Accident Claims Tribunal, Chief Judicial Magistrate's Court,
Chengalpattu. He filed the above said claim petition, claiming a sum of
Rs.10,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 25.03.2010.
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the rider of the motorcycle belonging to the 1 st respondent and directed the 2nd
respondent-Insurance Company to pay a sum of Rs.3,75,496/- as
compensation to the appellant.
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
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C.M.A.No.1700 of 2013
accident the appellant sustained head injury, fracture of both bone right legs,
fracture of left maxillary sinus and fracture of left frontal bone and squamous
temporal bone. P.W.2 to P.W.4/Doctors examined the appellant and certified
that the appellant suffered 40%, 30% and 25% disability respectively totaling
95% disability and issued Exs.P15, P16 & P18 to that effect. The Tribunal
without giving any valid reason, reduced the percentage of disability from
95% to 50% and awarded compensation only for 50% disability. The
Tribunal ought to have awarded compensation for 95% disability. The
appellant has lost his earning capacity and the Tribunal ought to have
awarded compensation for loss of earning capacity by adopting multiplier
method. At the time of accident, the appellant was aged 22 years, working as
A.C.Mechanic and was earning a sum of Rs.15,000/- per month. But, the
Tribunal has not awarded any amount towards loss of income. The appellant
has taken treatment in the Global Hospital as inpatient for 16 days from
25.03.2010 to 09.04.2010 and the Tribunal has not awarded any amount
towards attendant charges, loss of amenities, loss of expectation of life. The
amounts awarded by the Tribunal towards pain and sufferings, transportation
and extra nourishment are meagre and prayed for enhancement of
compensation.
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C.M.A.No.1700 of 2013
6.Though the 1st respondent entered appearance through counsel, there
is no representation for him today.
7.Per contra, the learned counsel appearing for the 2nd respondent-
Insurance Company contended that the Tribunal fixed the percentage of
disability of the appellant at 50% as P.W.2 to P.W.4/Doctors have assessed
the percentage of disability for particular party of the body, whereas, the
percentage of disability has to be calculated for whole body. Hence, the
appellant is not entitled to compensation for 95% disability. The appellant has
not proved that he suffered any functional disability or his income was
reduced and hence, he is not entitled to any compensation towards loss of
earning capacity by adopting multiplier method. The appellant has not
produced any material evidence to prove that he lost his income during
treatment period. Hence, he is not entitled to any amount towards loss of
income during treatment period. 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.
8.Heard the learned counsel appearing for the appellant as well as the
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C.M.A.No.1700 of 2013
learned counsel appearing for the 2nd respondent-Insurance Company and
perused the entire materials on record.
9.From the materials available on record, it is seen that in the accident
the appellant sustained head injury, fracture of both bone right legs, fracture
of left maxillary sinus and fracture of left frontal bone and squamous
temporal bone. P.W.2 to P.W.4/Doctors examined the appellant and certified
that the appellant suffered 40%, 30% and 25% disability respectively totaling
95% disability and issued Exs.P15, P16 & P18 to that effect. The Tribunal
fixed the percentage of disability of the appellant at 50% as P.W.2 to
P.W.4/Doctors have assessed the percentage of disability for particular part of
the body, whereas, the percentage of disability has to be calculated for whole
body. The reason given by the Tribunal for fixing the percentage of disability
of the appellant at 50% is proper. The Tribunal has awarded a sum of
Rs.1,00,000/- for 50% of disability at the rate of Rs.2,000/- per percentage of
disability. The accident is of the year 2010 and the appellant is entitled to a
sum of Rs.3,500/- per percentage of disability. Thus, the compensation
awarded by the Tribunal towards disability is modified to Rs.1,75,000/-
(Rs.3,500/- X 50% disability). The appellant has not proved that he suffered
any functional disability or his income was reduced and hence, he is not
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C.M.A.No.1700 of 2013
entitled to any compensation towards loss of earning capacity by adopting
multiplier method.
10.It is the contention of the appellant that at the time of accident, he
was aged 22 years, working as A.C.Mechanic and was earning a sum of
Rs.15,000/- per month. The appellant has not filed any document to prove his
avocation and income. Considering the year of accident and nature of work
done by the appellant, a sum of Rs.10,000/- per month is fixed as his notional
income. The appellant has taken treatment in the Global Hospital as inpatient
for 16 days from 25.03.2010 to 09.04.2010 and the Tribunal has not awarded
any amount towards loss of income. Considering the period of treatment and
nature of work done by the appellant, he would not have attended his work
atleast for a period of one month. Therefore, the appellant is entitled to a sum
of Rs.10,000/- towards loss of income. Considering the nature of injuries and
period of treatment taken by the appellant, the amounts awarded by the
Tribunal towards pain and sufferings and transportation are meagre and
hence, the same are enhanced to Rs.50,000/- and Rs.5,000/- respectively. The
Tribunal has not awarded any amount towards attendant charges. The
appellant is entitled to a sum of Rs.5,000/- towards attendant charges. The
amounts awarded by the Tribunal towards medical expenses and extra
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C.M.A.No.1700 of 2013
nourishment 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. Disability 1,00,000/- 1,75,000/- Enhanced
2. Pain and sufferings 25,000/- 50,000/- Enhanced
3. Extra nourishment 5,000/- 5,000/- Confirmed
4. Medical expenses 2,44,496/- 2,44,496/- Confirmed
5. Transportation 1,000/- 5,000/- Enhanced
6. Attendant charges - 5,000/- Granted
7. Loss of Income - 10,000/- Granted
Total Rs.3,75,496/- Rs.4,94,496/- Enhanced by
Rs.1,19,000/-
11.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.3,75,496/- is hereby
enhanced to Rs.4,94,496/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. The 2 nd 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 six weeks from the date of receipt of a copy of this
judgment, to the credit of M.C.O.P.No.90 of 2010 on the file of the Motor
Accident Claims Tribunal, Chief Judicial Magistrate's Court, Chengalpattu.
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C.M.A.No.1700 of 2013
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.
21.06.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The Chief Judicial Magistrate,
Motor Accident Claims Tribunal,
Chengalpattu.
2.The Section Officer,
VR Section,
High Court,
Madras.
S.KANNAMMAL, J.
krk
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C.M.A.No.1700 of 2013
C.M.A.No.1700 of 2013
21.06.2021
https://www.mhc.tn.gov.in/judis/
