Madras High Court
D. Kumar vs Mohammed Faiyazudden on 29 June, 2021
CMA No.1044 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.06.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
CMA No.1044 of 2015
D. Kumar ... Appellant
Versus
1. Mohammed Faiyazudden
2. Reliance General Insurance Co. Ltd.
Rai's Tower,
Plot No.2054,
2nd Avenue, 2nd Floor,
(Next to Senthil Nursing Home)
Annanagar,
Chennai - 600 040. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act against the judgment and decree dated 21.02.2013 made in
M.A.C.T.O.P. No.1052 of 2012 on the file of IV Judge before the Motor
Accident Claims Tribunal (Court of Small Causes), Chennai.
For Appellant : Mr.K.V. Muthuvisakan
For Respondents : Mr.S. Arunkumar for R2
R1 - Exparte
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CMA No.1044 of 2015
JUDGMENT
(Heard Video Conference)
This appeal has been filed by the claimant seeking enhancement
of compensation under the impugned award dated 21.02.2013 passed by
the Motor Accidents Claims Tribunal, (Court of Small Causes), Chennai
in M.A.C.T.O.P. No.1052 of 2012.
2. The appellant / claimant unsatisfied with the quantum of
compensation awarded by the Tribunal under the impugned award has
preferred this appeal seeking for enhancement.
3. The details of the compensation awarded by the Tribunal under
the impugned award are as follows :
Heads Amount awarded
by the Tribunal
(Rs.)
Pecuniary loss
Loss of income for 2 months 9,000/-
at the rate of Rs.4,500/- p.m.
Transportation 5,000/-
Extra nourishment 3,000/-
Medical expenses 1,330.50
Damages to clothes 1,000/-
Attender charges 2,000/-
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CMA No.1044 of 2015
Heads Amount awarded
by the Tribunal
(Rs.)
Non pecuniary loss
Pain and suffering 25,000/-
Disability at 45% at the rate 90,000/-
of Rs.2,000/- per percentage
Total 1,36,330.50
Rounded off 1,36,400/-
4. Heard Mr.K.V. Muthuvisakan, learned counsel for the appellant
/ claimant and Mr.S. Arunkumar, learned counsel for the 2nd respondent /
Insurance Company. The first respondent remained ex-parte both before
the Tribunal and before this Court.
5. This Court has perused and examined the impugned award
before the Tribunal.
6. The appellant / claimant has sustained the following injuries on
05.02.2012 as a result of an accident caused by a vehicle owned by the
first respondent and insured with the second respondent :
a) Severe injury in the right leg;
b) both bone fracture in right leg as well as skin loss and
c) multiple injuries all over the body.
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CMA No.1044 of 2015
7. Before the Tribunal, the appellant / claimant has filed nine
documents, which were marked as Ex.P1 to Ex.P9 and two witnesses
were examined on his side viz, the appellant / claimant himself as PW1
and the Doctor, who examined him as PW2. However, on the side of
the respondents, neither any witness was examined nor any document
filed before the Tribunal.
8. The nature of injuries sustained by the appellant / claimant has
not been disputed by the respondents before the Tribunal. The accident
happened on 05.02.2012. The appellant / claimant was hospitalised for a
period of six days, as seen from the discharge summary, which has been
marked as Ex.P2 before the Tribunal. The Doctor (PW2), who assessed
the disability of the appellant / claimant at 50%, whereas the Tribunal has
reduced the disability to 45% after giving due consideration to the nature
of injuries sustained by the appellant / claimant. This Court is of the
considered view that the disability assessed by the Tribunal is a correct
assessment. However, the Tribunal under the impugned award has not
given due consideration to the year of the accident before assessing the
compensation to the appellant / claimant towards his disability. The
Tribunal has fixed the disability compensation calculated at Rs.2,000/-
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CMA No.1044 of 2015
per percentage of disability for 45% disability assessed by the Tribunal.
This Court is of the considered view that the accident happened on
05.02.2012 and after giving due consideration to the same, the disability
compensation ought to have been fixed by the Tribunal at Rs.3,000/- per
percentage of disability instead of Rs.2,000/- per percentage of
disability. Accordingly, the disability compensation awarded to the
appellant / claimant is enhanced to Rs.1,35,000/-, calculated at Rs.3,000/-
per percentage of disability for 45% disability suffered by the appellant /
claimant
9. However, the Tribunal has awarded a compensation of
Rs.9,000/- towards loss of earning to the appellant / claimant from
05.02.2012 to 04.08.2012, calculated at Rs.4,500/-p.m., for a period of
two months. This Court is of the considered view that the Tribunal has
not taken into consideration the nature of the injuries sustained by the
appellant / claimant, which would have certainly prevented him from
doing his regular work for atleast a period of four months. The Tribunal
has calculated the loss of earning only for a period of two months and
therefore, this Court is of the considered view that the appellant /
claimant is entitled to loss of earning for a period of four months instead
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CMA No.1044 of 2015
of two months as fixed by the Tribunal. Accordingly, the loss of earning
for the appellant / claimant is enhanced from Rs.9,000/- to Rs.18,000/-
calculated at Rs.4,500/- p.m., for a period of four months.
10. This Court is also of the considered view that the compensation
awarded by the Tribunal to the appellant / claimant towards
Transportation at Rs.5,000/- and Extra nourishment at Rs.3,000/- are also
low and it has to be enhanced. Accordingly, the same is enhanced by this
Court to Rs.10,000/- each.
11. Before the Tribunal, the appellant / claimant has filed medical
bills for the cost of medicines purchased by him for his treatment and the
total medical bills was Rs.3,000/-, whereas the Tribunal has awarded
only a compensation of Rs.1,330.50. Therefore, this Court enhances the
compensation to the appellant / claimant towards cost of treatment and
purchase of medicines from Rs.1,330.50, fixed by the Tribunal to
Rs.3,000/-.
12. The Tribunal has also awarded a compensation of Rs.2,000/-
towards attender charges which in the considered view of this Court is
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CMA No.1044 of 2015
too low and it has to be necessarily enhanced and accordingly, this Court
enhances the same to Rs.10,000/-.
13. The Tribunal has awarded a compensation of Rs.25,000/-
towards pain and suffering. After giving due consideration to the nature
of injuries sustained by the appellant / claimant, his period of
hospitalisation, this Court enhances the compensation towards pain and
suffering from Rs.25,000/- to Rs.30,000/-.
14. The Tribunal has erroneously failed to award any
compensation towards loss of amenities which the appellant / claimant is
entitled to in accordance with the settled law. Accordingly, this Court
awards a compensation of Rs.10,000/- towards loss of amenities, after
giving due consideration to the nature of injuries sustained by the
appellant / claimant.
15. Insofar as the compensation awarded by the Tribunal towards
Damage to dress materials is concerned, the same is confirmed by this
Court as the compensation awarded by the Tribunal under the said head
at Rs.1,000/- is a just compensation.
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CMA No.1044 of 2015
16. For the foregoing reasons, the award of the Tribunal is hereby
enhanced in the following manner :
Heads Amount awarded Amount awarded
by the Tribunal by this Court
(Rs.) (Rs.)
Pecuniary loss
Loss of income 9,000/- 18,000/-
*for 2 months at the rate of * #
Rs.4,500/- p.m.
#for 4 months at the rate of
Rs.4,500/-p.m.
Transportation 5,000/- 10,000/-
Extra nourishment 3,000/- 10,000/-
Medical expenses 1,330.50 3,000/-
Damages to clothes 1,000/- 1,000/-
Attender charges 2,000/- 10,000/-
Non pecuniary loss
Pain and suffering 25,000/- 30,000/-
Disability 90,000/- 1,35,000/-
** at 45% at the rate of ** ##
Rs.2,000/- per percentage
## at 45% at the rate of
Rs.3,000/- per percentage
Loss of amenities - 10,000/-
Total 1,36,330.50 2,27,000/-
Rounded off 1,36,400/-
17. In the result, the appeal filed by the appellant / claimant,
stands partly allowed by enhancing the compensation from Rs.1,36,400/-
to Rs.2,27,000/-, as indicated above. No costs.
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CMA No.1044 of 2015
18. The second respondent / Insurance Company 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.A.C.T.O.P. No.1052 of 2012 on the file of IV Judge before the Motor
Accident Claims Tribunal (Court of Small Causes), 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 appellant / claimant
through RTGS, within a period of two weeks thereafter. Necessary Court
fee, if any has to be paid by the appellant / claimant before receiving the
copy of this Judgment.
29.06.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
vsi2
https://www.mhc.tn.gov.in/judis/
CMA No.1044 of 2015
ABDUL QUDDHOSE, J.
vsi2
To
1. The Judge,
Court of Small Causes,
Motor Accident Claims Tribunal,
Chennai.
2. The Section Officer,
V.R. Section
High Court of Madras, Chennai - 104.
CMA No.1044 of 2015
29.06.2021
https://www.mhc.tn.gov.in/judis/
