Madras High Court
Gunasekaran vs S.Velumani on 23 June, 2021
C.M.A.No.798 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.06.2021
CORAM:
THE HONOURABLE TMT.JUSTICE S.KANNAMMAL
C.M.A.No.798 of 2020
Gunasekaran .. Appellant
Vs
1.S.Velumani
2.Selvi
(Notice for R1 & 2 may be dispensed with
Since, they were set ex parte before the Tribunal)
3.The New India Assurance Company Limited,
11-19, Government Arts College Road,
Coimbatore-18. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
25.08.2010 made in M.C.O.P.No.191 of 2008 on the file of the Motor
Accident Claims Tribunal, Sub Court, Bhavani.
For Appellant : Mr.C.Kulanthaivel
For R1 & R2 : Ex parte
For R3 : Mr.P.Kandasamy
1/9
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C.M.A.No.798 of 2020
JUDGMENT
The matter is heard through “Video Conferencing/Hybrid” mode.
2.This Civil Miscellaneous Appeal has been filed for enhancement of
compensation granted by the award dated 25.08.2010 made in
M.C.O.P.No.191 of 2008 on the file of the Motor Accident Claims Tribunal,
Sub Court, Bhavani.
3.The appellant is the claimant in M.C.O.P.No.191 of 2008 on the file
of the Motor Accident Claims Tribunal, Sub Court, Bhavani. He filed the
above said claim petition, claiming a sum of Rs.3,00,000/- as compensation
for the injuries sustained by him in the accident that took place on
26.04.2007.
4.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the 1st respondent/driver of the Eicher Van belonging to the 2nd respondent
and directed the 2nd respondent/owner of the vehicle and 3rd
respondent/Insurance Company being insurer of the said vehicle, jointly and
severally, to pay a sum of Rs.1,12,000/- as compensation to the appellant.
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C.M.A.No.798 of 2020
5.Not being satisfied with the amounts awarded by the Tribunal, the
appellant has come out with the present appeal seeking enhancement of
compensation.
6.The learned counsel appearing for the appellant contended that in the
accident the appellant sustained grievous injuries in his right leg below knee
tibia and fibula bone got fractured and multiple injuries all over the body.
P.W.2/Doctor examined the appellant and certified that appellant suffered
28% disability and issued Ex.P12/disability certificate to that effect. The
Tribunal without giving any valid reason, reduced the percentage of disability
from 28% to 20% and awarded compensation only for 20% of disability at the
rate of Rs.2,000/- per percentage of disability. The Tribunal ought to have
awarded compensation for 28% disability. The appellant was working as
Merchandiser in Jindal Textiles, Tiruppur and was earning a sum of
Rs.12,000/- per month. The Tribunal fixed a meagre sum of Rs.5,000/- per
month as notional income of the appellant and awarded compensation
towards loss of income only for two months. Due to the injuries sustained by
the appellant, he could not continue his work as he was doing earlier. The
Tribunal ought to have awarded more compensation towards loss of income.
The amounts awarded by the Tribunal under different heads are meagre and
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C.M.A.No.798 of 2020
prayed for enhancement of compensation.
7.Per contra, the learned counsel appearing for the 3rd
respondent/Insurance Company contended that the Tribunal accepted the
disability certificate issued by P.W.2/Doctor and awarded a sum of
Rs.40,000/- for 20% disability at the rate of Rs.2,000/- per percentage of
disability and the same is not meagre. 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 awarded
a sum of Rs.10,000/- towards loss of income, which is not meagre. The
Tribunal after considering all the records in proper perspective, rightly
awarded just compensation. 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
learned counsel appearing for the 3rd respondent/Insurance Company and
perused the entire materials on record.
9.From the materials available on record, it is seen that it is the case of
the appellant that in the accident he grievous injuries in his right leg below
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C.M.A.No.798 of 2020
kne tibia and fibula bone got fractured and multiple injuries all over the body.
To prove the same, the appellant examined himself as P.W.1 and
P.W.2/Doctor. P.W.2/Doctor examined the appellant and certified that
appellant suffered 28% disability and issued Ex.P12/disability certificate to
that effect. The Tribunal reduced the percentage of disability from 28% to
20% on the ground that P.W.2/Doctor has not assessed the percentage of
disability for the whole body. The reason given by the Tribunal for reducing
the percentage of disability from 28% to 20% is proper but a sum of
Rs.2,000/- per percentage of disability awarded by the Tribunal is meagre.
The accident is of the year 2007. A reasonable sum of Rs.3,000/- is awarded
per percentage of disability. Thus, the compensation awarded by the Tribunal
towards disability is modified to Rs.60,000/- (Rs.3,000/- X 20% disability).
10.It is the contention of the appellant that at the time of accident, the
appellant was working as Merchandiser in Jindal Textiles, Tiruppur and was
earning a sum of Rs.12,000/- per month. Except oral evidence, 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 fixed the notional income of the appellant at Rs.5,000/- per
month and awarded a sum of Rs.10,000/- as compensation towards loss of
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C.M.A.No.798 of 2020
income for two months, which is proper. The appellant has taken treatment at
Revathi Medical Centre, Tiruppur as inpatient for 5 days from 26.04.2007 to
30.04.2007. The amounts awarded by the Tribunal towards pain & sufferings
and extra nourishment are meagre. Considering the nature of injuries
sustained by the appellant, a reasonable sum of Rs.60,000/- is enhanced
towards pain & sufferings and Rs.5,000/- is enhanced towards extra
nourishment. The Tribunal has not awarded any compensation towards
attendant charges. Considering the period of treatment taken by the appellant,
a reasonable sum of Rs.5,000/- is granted towards attendant charges. 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. Disability 40,000/- 60,000/- Enhanced
2. Pain and sufferings 35,000/- 60,000/- Enhanced
3. Loss of income 10,000/- 10,000/- Confirmed
4. Transport to hospital 4,000/- 4,000/- Confirmed
5. Extra nourishment 3,000/- 5,000/- Enhanced
6. Medical expenses 20,000/- 20,000/- Confirmed
7. Attendant charges - 5,000/- Granted
Total Rs.1,12,000/- Rs.1,64,000/- Enhanced by
Rs.52,000/-
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C.M.A.No.798 of 2020
11.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.1,12,000/- is hereby
enhanced to Rs.1,64,000/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. The 2nd respondent
and 3rd respondent/Insurance Company are directed to deposit the award
amount now determined by this Court along with interest and costs, jointly
and severaly, 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.191 of 2008 on the file of the Motor Accident Claims Tribunal,
Sub Court, Bhavani. 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. The appellant is not entitled to any interest
for the delay period on Rs.52,000/- now enhanced by this Court, as per the
order of this Court dated 20.02.2020 made in M.P.No.1 of 2011 in
C.M.A.No.SR.70194 of 2011. The appellant is directed to pay the necessary
Court fee for the enhanced amount of compensation. No costs.
23.06.2021
mpa
Index : Yes / No
Internet : Yes / No
https://www.mhc.tn.gov.in/judis/
C.M.A.No.798 of 2020
To
1.The Subordinate Judge,
Motor Accident Claims Tribunal,
Bhavani
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.798 of 2020
S.KANNAMMAL, J.
mpa
C.M.A.No.798 of 2020
23.06.2021
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