Madras High Court
S.Chandrasekaran vs M.Gnanavel on 28 June, 2021
C.M.A. No.391 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 28.06.2021
CORAM
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A. No.391 of 2019
S.Chandrasekaran .. Appellant
Versus
1. M.Gnanavel
2. The United India Insurance Company Ltd.,
Third Party Claim HUB,
No.134, Silingi Building, IV Floor,
Greams Road,
Chennai 6. .. Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the award and decree passed by the Motor
Accidents Claims Tribunal / 5th Small Causes Court, Chennai made in MCOP.
No.206 of 2012, dated 22.12.2016 awarding Rs.2,42,800/- insofar as awarding
compensation is concerned.
For appellant : Mr.Amar D. Pandian
For respondents
for R1 : Insufficient Address-Notice not served
for R2 : Mr.J.Michael Visuvasam
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C.M.A. No.391 of 2019
JUDGMENT
The appeal is heard through video conferencing.
2. Not being satisfied with the quantum of compensation awarded by the
Motor Accidents Claims Tribunal/ V Small Causes Court, Chennai in MCOP.
No.206 of 2012, dated 22.12.2016, the present appeal has been filed by the
claimant for enhancement of the compensation amount.
3. It is the case of the appellant/claimant that, on 05.12.2011 at about
09.00 pm, when he was riding a Motorcycle bearing Registration No.TN-04-L-
3692 at Kolathur Redhills Road near Moogambikai Junction, an Auto
rickshaw bearing Registration No.TN-05-W-5256, belonging to the first
respondent, driven by its driver in a rash and negligent manner in the opposite
direction and hit the claimant's vehicle. Due to the impact, the claimant
sustained injuries. Hence, he made a claim for a sum of Rs.3,50,000/-.
4. The said claim petition was resisted by the Insurance Company by
filing a counter statement denying the manner of the accident as projected by
the claimant in the claim petition. Thus, they sought for dismissal of the claim
petition.
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C.M.A. No.391 of 2019
5. In order to prove the claim before the Tribunal, claimant examined
himself as PW1, besides examining one Dr.K.J.Mathiazhagan as PW2, and
marked Exs.P1 to P9. On the side of the Insurance Company, one Murugesan,
Senior Assistant of the Insurance Company was examined as RW1 and one
Elango, Sub-Inspector, Traffic Investigation Admin, was examined as RW2
and Ex.R1 to R8 were marked on their side.
6. The Tribunal, after analysing the entire evidence, came to the
conclusion that the accident had occurred due to the rash and negligent driving
of the driver of the Auto rickshaw bearing Registration No.TN-05-W-5256. By
coming to such conclusion, the Tribunal passed an award for a sum of
Rs.2,42,800/- and directed the second respondent/Insurance Company to pay
the above amount to the claimant. Thereafter, the Tribunal permitted the
second respondent/Insurance Company to recover the compensation amount
from the first respondent/owner of the said Auto rickshaw. The break-up
details of the amount awarded by the Tribunal under various heads are as
follows:
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C.M.A. No.391 of 2019
S.No. Heads under which amounts are Amount in
awarded Rs.
1. Transportation and Extra 5,000
Nourishment
2. Attender Charges 1,000
3. Medical Expenses 39,268.30
4. Disability 75,000
5. Loss of earning 22,500
6. Damages for pain, suffering and 50,000
trauma
7. Loss of amenities 50,000
Total Compensation 2,42,768.30
(rounded of to
2,42,800)
7. Though very many contentions have been raised by the
appellant/claimant in this appeal, the main contention of the learned counsel
for the appellant/claimant is that the claimant sustained lacerated wound on his
right knee, fracture patella chip and fracture lateral femoral condyle chip and
was under treatment from 16.12.2011 to 09.12.2011 and PW2,
Dr.K.J.Mathiazhagan, assessed the claimant and fixed the disability of the
claimant at 35%, but the Tribunal without any basis fixed the disability of the
claimant at 25% and awarded Rs.3,000/- per percentage of disability and
arrived a sum of Rs.75,000/- under the head "Disability", which is not proper.
Hence, by fixing the disability at 35%, the amount under such head may be
enhanced. The amounts awarded by the Tribunal under the other heads are also
very meagre, and the same needs proper enhancement.
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C.M.A. No.391 of 2019
8. The learned counsel for the second respondent/Insurance Company
made his submissions supporting the award passed by the Tribunal.
9. Heard both sides and perused the materials available on record.
10. The main contention of the learned counsel for the appellant is that,
based on the evidence of PW2 Doctor, who assessed the claimant and issued
Medical Certificate, the disability of the claimant ought to have been fixed at
35%. However, the Tribunal rejected the evidence of PW2 on the ground that
PW2 is not the Doctor, who treated the claimant and he has also not produced
any documents and guidelines to show as to how he arrived the percentage of
disability. However, considering the evidence of PW1 claimant, that he is no
able to do his day-to-day work comfortably as before the accident, the
Tribunal fixed the disability at 25%. Hence, this Court does not find any
infirmity in the Tribunal fixing the disability at 25% and awarding a sum of
Rs.3,000/- per percentage of disability. Therefore, the sum of Rs.75,000/-[25 x
3,000] awarded under the head "Disability" is just and proper.
11. Further, this Court finds that the amounts awarded by the Tribunal
under all the other heads are also just and proper and hence, they are
confirmed.
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C.M.A. No.391 of 2019
12. In the afore stated circumstance, there is no scope to enhance the
compensation awarded by the Tribunal. This Court finds that the Tribunal has
passed a well-justified award and the same does not require any interference
by this Court.
13. Accordingly, the Civil Miscellaneous Appeal is dismissed.
i) The second respondent/Insurance Company is directed to deposit the
award amount, i.e., Rs.2,42,800/-, less the amount already deposited, with
interest at 7.5% p.a. from the date of petition till the date of deposit, within a
period of six weeks from the date of receipt of a copy of this judgment. On
such deposit, the claimant is permitted to withdraw the amount.
ii) The second respondent/Insurance Company, after making payment, is
permitted to recover the above compensation amount from the first
respondent/owner of the Auto rickshaw. No costs.
28.06.2021
Speaking Order : Yes / No
Index : Yes / No
pvs
https://www.mhc.tn.gov.in/judis/
C.M.A. No.391 of 2019
To
1. The Small Causes Court No.VI, Chennai/
The Motor Accident Claims Tribunal
2. The Section Officer,
V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis/
C.M.A. No.391 of 2019
S.KANNAMMAL, J.
pvs
C.M.A. No.391 of 2019
28.06.2021
https://www.mhc.tn.gov.in/judis/
