Madras High Court
D.Krishnakumar vs C.Shankar on 8 March, 2021
C.M.A.No.2369 of 2011
C.M.A.No.2369 of 2011
D.KRISHNAKUMAR, J.
This Court by order, dated
8.3.2021 disposed of the appeal by
enhancing compensation awarded by
the tribunal from Rs.1,60,732/- to
Rs.2,78,732/-.
2. Today, the matter is taken
up for being mentioned at the
instance of the learned counsel
appearing for the appellant.
3. According to the learned
counsel appearing for the appellant,
compensation awarded towards
permanent disability is not sufficient
since the appellant unable to do day-
to-day work due to the accident and
seeks enhancement by adopting
multiplier method.
4. This Court by considering
the submissions made by the parties
as well as oral and documentary
evidence, fixed Rs.3000/- per
percentage and enhanced the
compensation from Rs.60,000/- to
Rs.1,50,000/- and the total
compensation from Rs.1,60,732/- to
Rs.2,78,732/- whereas the claim
made in the appeal is only
Rs.64,268/-. Therefore, no further
modification required in the appeal.
10.3.2021
vaan.
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C.M.A.No.2369 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
C.M.A. No.2369 of 2011
V.Nandakumar .. Appellant
Vs.
1.C.Shankar
2. The New India Assurance Company Ltd.,
No.46, Moore Street,
Chennai -600006. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 06.01.2005, made in
M.C.O.P. No. 115 of 2001, on the file of the Additional District and |Sessions Judge
(FTC-III), Chennai.
For Appellant : Mr. K.R.Ponnusamy
For Respondents : Mr.Michael Viswasam - R2
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C.M.A.No.2369 of 2011
JUDGMENT
The matter is heard through "Physical Hearing”.
This Civil Miscellaneous Appeal has been filed by the claimant against the
judgment and decree dated 06.01.2005, made in M.C.O.P. No. 115 of 2001, on the
file of the Additional District Judge(FTC-II), Chennai
2. Brief facts of the case is that on 10.06.2000 at 22.30 hrs when the
petitioner was riding his two wheeler bearing Reg.No. TSK-7289 on north Usman
Road, at that time a two wheeler bearing Reg.No. TMR-98 came from the opposite
direction, ridden by its rider in a rash and negligent manner, endangering to the
public safety, and hit against the claimant's vehicle. As a result of which, the
claimant was thrown out of his vehicle and sustained grievous and multiple injuries
all over the body. Hence, he filed a claim petition before the tribunal claiming
compensation for Rs.2,25,000/- for the injuries and disabilities sustained by him due
to the said accident. The tribunal after considering the oral and documentary
evidence, has fixed the negligence on the part of the rider of the two wheeler
bearing Reg. No.Reg.No. TMR-98 /1st respondent herein and directed to pay a sum
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C.M.A.No.2369 of 2011
of Rs.1,60,732/- as compensation by the 1st and 2nd respondents jointly and severally.
Being not satisfied with the said award passed by the tribunal, the claimant has
preferred the present appeal for enhancement of compensation.
3. The learned counsel appearing for the appellant/claimant submitted that the
claimant/appellant was pursuing his second year degree course, he would have
finished his studies and earned a sum of Rs.3,000/- per month. Because of the
accident, he could not complete his degree. The learned counsel for the appellant
further submitted that the tribunal grossly erred awarding a meagre amount of
Rs.60,000/- towards disability without adopting multiplier method. The evidence of
PW2/Dr.Saichandran and Ex.P13/Disability. The learned counsel for the appellant
further submitted that the tribunal without following the principles laid down by the
Hon'ble Supreme Court and this Court has granted very less compensation towards
pain and suffering, transport expenses and extra nourishment Hence prayed for
enhancement of compensation.
4. On the other hand, the learned counsel appearing for the 2nd
respondent/Insurance Company submitted that the tribunal upon considering the
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C.M.A.No.2369 of 2011
materials available on record, has granted compensation to the claimant for the
injuries sustained by him. The compensation awarded by the tribunal is reasonable
and does not require any enhancement as sought for by the appellant. Hence the
appeal is liable to be dismissed.
5. Heard the learned counsel appearing for the appellant and the learned
counsel appearing for the 2nd respondent/Insurance Company and perused the
materials available on record.
6. Before the tribunal, the appellant/claimant was examined as PW1 and the
doctor who examined the appellant was examined PW2 and marked 14 documents
Ex.P1 to P14. On the side of the respondents no witnesses were examined and no
documents were marked.
7. From a perusal of records, it is seen that Dr.Saichandran was examined as
PW2 before the tribunal and he assessed the disability at 50%. He deposed before
the tribunal that due to the fracture in the right leg, the claimant had undergone
surgery and iron rods were fixed in his leg and due to the said surgery, his movement
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C.M.A.No.2369 of 2011
in the right side hip has been reduced to 30 degree. Based on the x-ray/Ex.P8 and
other medical documents he assessed the disability at 50% to the claimant. It is
seen from the award, the tribunal has not considered the disability assessed by the
doctor and awarded Rs.60,000/- under the head 'Disability'. The tribunal has not
stated any reason for not considering the disability assessed by the doctor and the
respondents also not placed any documents to disprove the disability assessed by the
doctor. In the absence of any materials to disprove the disability, it would not be
proper to deny the compensation for the actual disability sustained by the claimant.
Though the learned counsel for the appellant/claimant strongly contended for grant
of compensation by adopting multiplier method, this Court is inclined to grant
compensation for the disability by fixing some reasonable amount per percentage.
The Hon'ble Supreme Court and this Court, in recent judgments has categorically
held that the a sum of rupees between Rs.2000/- and Rs.5000/- can be taken per
percentage depending upon the facts of the case. In the present case on hand, the
injured claimant was pursuing his second year degree course and due to injuries and
disability he was not able to do his regular work as before. Further, considering the
age of appellant, who was 22 years at the time of the accident, he could have earn
Rs.3000/- per month after successful completion of his degree. Therefore, this Court
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C.M.A.No.2369 of 2011
is of the opinion that the compensation towards Disability can be granted by fixing
Rs.3000/- per percentage, hence for the 50% disability, the compensation comes to
Rs.1,50,000/- (Rs.3000 x 50).
8. Further, in view of nature of injuries and disability sustained by the
appellant, the compensation granted by the tribunal under the heads 'Pain and
Suffering, Extra Nourishment and Transport Expenses are needs to be enhanced. As
per Exhibits P5 & P6 the tribunal has granted compensation for 'Medical Expenses'
at Rs. 53,232/-, this Court confirms the said amount. The tribunal has not granted
any amount for 'Attendant Charges' and 'Loss of Amenity', this Court grants a sum of
Rs.10,000/- and 25,000/- respectively under the said heads. In the absence of any
materials to prove the income of the deceased and in view of enhancement under the
head 'Disability' the compensation granted by the tribunal towards 'Loss of earning
capacity' is set aside. Thus, the compensation awarded by the tribunal is modified
by this Court as follows;
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C.M.A.No.2369 of 2011
Heads Compensation Compensation modified
awarded by the by this Court
Tribunal
Rs.
Disability 60,000/- 1,50,000/-
(3000 x 50)
Pain and Suffering 10,000/- 25,000
Transportation 3000/- 5,000/-
Extra Nourishment 4000/- 10,000/-
Medical Expenses 53,232/- 53,232/-
Loss of Amenity ... 25,000/-
Attendant Charges .. 10,000/-
Loss of earning 30,000 ...
capacity
Total 1,60,732/- 2,78,732/-
9. In the result, this Civil Miscellaneous Appeal is partly allowed and a sum
of Rs. 1,60,732/- awarded by the tribunal is enhanced to Rs.2,78,732/-. The rate of
interest for the enhanced compensation amount is fixed by this Court at 7.5% per
annum from the date of petition till the date of deposit. The learned counsel for the
appellant is directed to pay the court fee for the enhanced compensation. This Court
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C.M.A.No.2369 of 2011
makes it clear that the revised rate of interest at 7.5% per annum is only for the
enhanced compensation amount.
10. The 1st and 2nd respondents are directed to deposit the entire compensation
amount along with interest as modified by this Court jointly and severally, less the
amount already deposited, within a period of six weeks from the date of receipt of a
copy of this judgment. On such deposit, the appellant/claimant is permitted to
withdraw the compensation as modified by this Court along interest and costs, after
adjusting the amount, if any, already withdrawn, by filing necessary applications
before the Tribunal. No costs.
08.03.2021
Index : Yes/No
Internet : Yes
ak
To
1. The Additional District and |Sessions Judge (FTC-III),
Chennai.
2.The Section Officer,
V.R Section, High Court, Madras.
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C.M.A.No.2369 of 2011
D.KRISHNAKUMAR, J.,
ak
C.M.A. No.2369 of 2011
08.03.2021
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