Madras High Court
Subramani vs S.Shanmugasundaram on 25 June, 2021
C.M.A.No.379 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.06.2021
CORAM:
THE HONOURABLE TMT.JUSTICE S.KANNAMMAL
C.M.A.No.379 of 2019
Subramani .. Appellant
Vs
1.S.Shanmugasundaram
2.The New India Assurance Company Limited,
P.B.No.47, Kumaran Shopping Complex,
Kumaran Road, Tiruppur - 641 801. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
30.03.2007 made in M.C.O.P.No.742 of 2005 on the file of the Motor
Accident Claims Tribunal, I Additional District Court, Dharmapuri at
Krishnagiri.
For Appellant : Mr.M.Selvaraj
For R2 : Mr.M.Krishnamoorthy
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 30.03.2007 made in
C.M.A.No.379 of 2019
M.C.O.P.No.742 of 2005 on the file of the Motor Accident Claims Tribunal, I
Additional District Court, Dharmapuri at Krishnagiri.
3.The appellant is the claimant in M.C.O.P.No.742 of 2005 on the file
of the Motor Accident Claims Tribunal, I Additional District Court,
Dharmapuri at Krishnagiri. He filed the above said claim petition, claiming a
sum of Rs.11,00,000/- as compensation for the injuries sustained by him in
the accident that took place on 17.07.2005.
4.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to negligence on the part of the
appellant as well as the driver of the LMV goods vehicle belonging to 1st
respondent and fixed 30% negligence on the part of the appellant and 70% on
the part of the driver of the LMV goods vehicle belonging to the 1st
respondent and awarded a sum of Rs.2,25,635/- as total compensation and
directed the 1st respondent/owner of the vehicle and 2nd
respondent/Insurance Company being insurer of the said vehicle, jointly and
severally to deposit 70% of the compensation, i.e.,Rs.1,57,945/- as
compensation to the appellant.
C.M.A.No.379 of 2019
5.Challenging the portion of the award fixing 30% negligence on the
part of the appellant and not being satisfied with the amount awarded by the
Tribunal, the appellant has come out with the present appeal.
6.The learned counsel appearing for the appellant contended that the
Tribunal has erred in fixing 30% negligence on the part of the appellant. The
Tribunal ought to have fixed entire negligence on the part of the driver of the
LMV goods vehicle as the accident occurred only due to the rash and
negligent driving by the driver of the said vehicle. The Doctor, who examined
as P.W.2, has certified that the appellant has suffered 65% permanent
disability. The Tribunal without any valid reason reduced percentage of
disability to 50%. The Tribunal has not awarded any amount towards
attendant charges and extra nourishment. The amounts awarded by the
Tribunal under different heads are meagre and prayed for setting aside 30%
of contributory negligence on the part of the appellant as well as
enhancement of compensation.
7.Per contra, learned counsel appearing for the 2nd respondent-
Insurance Company contended that the appellant does not have any valid
driving license to drive the vehicle and the Tribunal has rightly deducted 30%
C.M.A.No.379 of 2019
of the compensation from the total compensation. 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 2nd respondent/Insurance Company and
perused the entire materials on record.
9.Taking note of the fact that the appellant was not having valid and
effective driving license to drive the class of vehicle and that the vehicle was
not insured with any insurance company, the Tribunal fixed negligence at
30% for causing the accident which in the opinion of this Court, he is
appropriate to fix only at 20% negligence. It is the contention of the appellant
that in the accident, he sustained grievous and multiple injuries all over the
body and he could not able to continue his work as he was doing earlier and
he lost his earning capacity. P.W.2/Doctor examined the appellant and
certified that the appellant suffered 65% disability and issued
Ex.A8/disability certificate to that effect. The 2nd respondent-Insurance
Company did not let in any contra evidence to disprove the evidence of
C.M.A.No.379 of 2019
P.W.2/Doctor and Ex.A8/disability certificate. The Tribunal reduced the
percentage of disability to 50% on the ground that the percentage of disability
may vary from doctor to doctor. The reason given by the Tribunal for
reducing the percentage of disability is not valid. The appellant is entitled to
get compensation for 65% disability. Considering the nature of injuries and
evidence of P.W.2/Doctor, this is a fit case to adopt multiplier method for
awarding compensation towards permanent disability. The appellant has
contended that he was working as Maestry cum Contractor and was earning a
sum of Rs.7,000/- per month. He failed to prove the said contention. The
accident occurred in the year 2005 and the Tribunal fixed a sum of Rs.2,500/-
per month as notional income of the appellant, which is proper. The Tribunal
has rightly applied multiplier ‘17’ as per II Schedule of Motor Vehicles Act,
1978 and deducted 1/3rd towards personal expenses of the appellant. Thus
the compensation awarded by the Tribunal towards disability is modified to
Rs.2,21,000/- [2,500/- x 12 x 17 x 2/3 x 65%].
10.Further, it is the contention of the appellant that the appellant has
taken treatment at St.John's Medical College Hospital, Bangalore as inpatient
from 17.07.2005 to 08.08.2005. The amount awarded by the Tribunal towards
pain & sufferings is meagre. Considering the nature of injuries sustained by
C.M.A.No.379 of 2019
the appellant, a reasonable sum of Rs.10,000/- is enhanced towards pain &
sufferings. The Tribunal has not awarded any compensation towards
attendant charges and extra nourishment. Considering the period of treatment
taken by the appellant, a reasonable sum of Rs.5,000/- and Rs.10,000/- are
granted towards attendant charges and extra nourishment, respectively. 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 1,70,000/- 2,21,000/- Enhanced
2. Pain and sufferings 5,000/- 10,000/- Enhanced
3. Transportation 5,400/- 5,400/- Confirmed
charges
4. Medical expenses 45,235/- 45,235/- Confirmed
5. Attendant charges - 5,000/- Granted
6. Extra nourishment - 10,000/- Granted
Total Rs.2,25,635/- Rs.2,96,635/- Enhanced by
70% of the 80% of the Rs.79,363/-
award amount award amount
comes to comes to
Rs.1,57,944.5/- is Rs.2,37,308/-
rounded off to
Rs.1,57,945/-
C.M.A.No.379 of 2019
11.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.2,25,635/- is hereby
enhanced to Rs.2,96,635/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. The appellant is
entitled to 80% of the award amount i.e. Rs.2,37,308/-. The appellant is
directed to pay necessary Court fee, if any, on the enhanced compensation.
The 1st respondent and 2nd respondent/Insurance Company are directed to
deposit the award amount now determined by this Court along with interest
and costs, jointly and severally, 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.742 of 2005 on the file of the Motor
Accident Claims Tribunal, I Additional District Court, Dharmapuri at
Krishnagiri. On such deposit, the appellant-claimant is permitted to withdraw
the enhanced award amount along with interest and costs, less the amount if
any, already withdrawn. No costs.
25.06.2021
mpa
Index : Yes / No
Internet : Yes / No
C.M.A.No.379 of 2019
To
1.The I Additional District Judge,
Motor Accident Claims Tribunal,
Dharmapuri at Krishnagiri.
2.The Section Officer,
VR Section,
High Court,
Madras.
C.M.A.No.379 of 2019
S.KANNAMMAL, J.
mpa
C.M.A.No.379 of 2019
25.06.2021
