Madras High Court
S.Selvaraj vs J.M.Vishal on 8 March, 2021
C.M.A.No.2204 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 08.03.2021
CORAM:
HONOURABLE MR. JUSTICE R.SUBBIAH
and
HONOURABLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A.No.2204 of 2017
S.Selvaraj
S/o.Seetharaman .. Appellant
Vs.
1.J.M.Vishal
(The 1st respondent remained
exparte in the lower court and hence
notice to 1st Respondent in the
above appeal is dispensed with)
2.The New India Assurance Co.Ltd.,
No.45, 2nd Line Beach,
Moore Street,
Chennai – 600 001. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 07.06.2012
made in M.C.O.P.No.4594 of 2002 on the file of Motor Accidents Claims
Tribunal, VI - Court of Small Causes, Chennai.
1/8
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C.M.A.No.2204 of 2017
For Appellant : Mrs.Ramya Rao
For R2 : Mr.S.Dhakshnamoorthy
JUDGMENT
(Judgment of the Court was delivered by SATHI KUMAR SUKUMARA KURUP,J.)
(heard through video-conferencing)
This Civil Miscellaneous Appeal is filed by the claimants, seeking
enhancement of compensation granted by the Tribunal in the award dated
07.06.2012 made in M.C.O.P.No.4594 of 2002 on the file of Motor Accidents
Claims Tribunal, VI - Court of Small Causes, Chennai.
2.The appellant is the claimant in M.C.O.P.No.4594 of 2002 on the file
of Motor Accidents Claims Tribunal, VI - Court of Small Causes, Chennai.
He filed the said claim petition, claiming a sum of Rs.50,00,000/- as
compensation for the injuries sustained by him in the accident that took place
on 05.05.2002.
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C.M.A.No.2204 of 2017
Brief facts:
3.On 05.05.2002, at about 10.15 hours, the appellant/claimant was
travelling as a pillion rider in a motorcycle bearing Registration No.TN-07-U-
7977 proceeding from South to North at Anna Salai, near Pallavan House,
Chennai. At that time, the rider of the motorcycle drove the same in a rash
and negligent manner and applied sudden brake and hit against the
motorcycle. In the impact, the appellant/claimant sustained grievous injuries.
4.The Tribunal, after considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to the rash and negligent
riding by the rider of the motorcycle, belonging to the first respondent and
directed the 2nd respondent/Insurance Company to pay a sum of
Rs.14,72,543/- as compensation to the appellant/claimant.
5.Not being satisfied with the amount awarded by the Tribunal under
various heads, the appellant has come out with the present appeal seeking
enhancement of compensation.
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C.M.A.No.2204 of 2017
6.Mrs.Ramya Rao, learned counsel appearing for the appellant had
submitted her arguments. As per her submissions, the award passed by the
Motor Accidents Claims Tribunal, VI - Court of Small Causes, Chennai, is
against the law, weight of evidence and probabilities of the case. The claims
Tribunal ought to have awarded the entire claim for Rs.14,72,543/-. The
claimant was examined as P.W.1 and clearly deposed that immediately after
the accident, he was taken to Government Hospital. Thereafter, he was shifted
to Apollo Hospital wherein, on diagnosis, it was found that there is contusion
of the brain, right frontal fracture of skull, fracture of ribs in right side,
contusion and haemothorax of right side, right C3 to T1 nerve roots injury,
paralysis of right upper limb and right side tongue, fracture of right clavicle.
Dr.K.J.Mathiazhagan, was examined as P.W.4 to speak about the difficulties
and deformities caused to the claimant and assessed the disability at 60% for
the nerve injuries from C3 to T1 as total permanent disability and 10% partial
permanent disability for fracture of Zygoma and 20% partial permanent
disability for fracture of Maxilla. Dr.Rajappa, who is an Ophthalmologist was
examined as P.W.3 stating that he had assessed the disability for the injury to
loss of vision to the tune of 15%. From the evidence of P.W.4, it is clear that
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C.M.A.No.2204 of 2017
the appellant had suffered total permanent disability to the tune of 60%. From
the combined evidence of P.W.3 and P.W.4, it is established that the appellant
had suffered 45% partial permanent disability. Here is the case where the
claimant was unable to attend Court. Therefore, his wife was examined as
P.W.1. The appellant had filed Income Tax Return pertaining to the year
2001-2002, 2002-2003. He was earning income from the business of
purchase and sale of handicraft items. Apart from that, he was drawing
income from agriculture also. The claims Tribunal ignored the same while
calculating the income. The learned Tribunal ought to have calculated the
future prospects at 50% of income especially the prospects to earn has
affected due to partial permanent disability. The age of the appellant was 40
years at the time of accident, hence the proper multiplier is '16'. The claimant
had suffered 100% disability and also 100% loss of earning capacity. The
Tribunal failed to grant any compensation under the head permanent
disability. The Tribunal awarded under the head pain and sufferings only
Rs.40,000/-. The Tribunal had erred in awarding only a sum of Rs.10,000/-
each under of the head viz., “Transportation” and “Extra Nourishment”. It
could have granted reasonable compensation under above heads. The claims
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C.M.A.No.2204 of 2017
Tribunal ought to have awarded under the head of “mental agony” to the
appellant. In any event, the award passed by the Tribunal is on the lower side.
Therefore, the claimant has preferred this appeal.
7.The learned counsel for the 2nd respondent/Insurance Company had
submitted his arguments. As per his arguments, the learned Tribunal had
properly assessed the evidence and calculated the compensation and arrived
at a just compensation and the same does not warrant any interference by this
Court. The appeal lacks merits and the same is liable to be dismissed.
Point for consideration is as follows:
Whether the appellant is entitled to enhanced compensation as
prayed for?
8.On perusal of the records pertaining to M.C.O.P.No.4594 of 2002 on
the file of Motor Accidents Claims Tribunal, VI - Court of Small Causes,
Chennai, it is found that the learned Tribunal had fixed the income at
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C.M.A.No.2204 of 2017
Rs.5,000/- p.m., and calculated the compensation ignoring the evidence
available before the Tribunal through the Ophthalmologist and Neurologist.
Therefore, the disability assessed by the learned Tribunal is found to be not
proper. Also loss of future prospects had not been taken note of and the award
granted under various non-pecuniary heads is on the lower side. Therefore,
the submission of the learned counsel for the appellant/claimant is accepted.
In the light of the records, the submissions of the learned counsel for the 2nd
respondent/Insurance Company is rejected.
9.On an analysis of entire evidence both oral and documentary, this
Court is of the view that the Tribunal has rightly fixed the monthly income of
the injured/claimant at Rs.5,000/-. However, considering the fact that the
injured sustained grievous injuries and got 65% disability, while applying
multiplier '16', the Tribunal though awarded a sum of Rs.6,24,000/-,
unfortunately, the Tribunal has completely ignored to add future prospects.
Therefore, this Court feels it appropriate to add 25% towards future prospects
and thereby the award under the head 'loss of earning power' due to
permanent disability is assessed as Rs.7,80,000/- {Rs.5,000/- + Rs.1,250/-
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C.M.A.No.2204 of 2017
(25% of Rs.5,000/-) X 12 X 16 X 65/100}. The claimant/injured suffered
65% disability which would certainly require him to undergo treatment
throughout his life, but the Tribunal has not awarded any amount towards
future medical expenses and therefore, this Court is inclined to award a sum
of Rs.25,000/- towards future medical expenses.
10.It is also to be noted that since the claimant/injured suffered
grievous injuries under the head of pain and sufferings, the Tribunal awarded
only a sum of Rs.40,000/- which in the opinion of this Court is required to be
enhanced, accordingly a sum of Rs.60,000/- is awarded under the head of
pain and sufferings.
11.In respect of other heads, the Tribunal has adequately awarded
compensation which do not warrant any interference. In view of the above,
the award amount granted by the Tribunal is enhanced to Rs.16,73,543/- from
Rs.14,72,543/-. The modification of award amount under the various heads,
are as follows:
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C.M.A.No.2204 of 2017
S. Description Amount Amount Award
No awarded by awarded by this confirmed or
Tribunal Court enhanced or
(Rs) (Rs) granted or
reduced
1. Loss of earning power 6,24,000/- 7,80,000/- Enhanced
2. Loss of income 5,000/- 5,000/- Confirmed
3. Transportation 10,000/- 10,000/- Confirmed
4. Extra nourishment 10,000/- 10,000/- Confirmed
5. Medical expenses 7,33,543/- 7,33,543/- Confirmed
6. Attendant charges 25,000/- 25,000/- Confirmed
7. Loss of amenities 25,000/- 25,000/- Confirmed
8. Pain & sufferings 40,000/- 60,000/- Enhanced
9. Future medical - 25,000/- Granted
expenses
Total Rs.14,72,543/- Rs.16,73,543/- Enhanced by
Rs.2,01,000/-
12.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.14,72,543/- is hereby
enhanced to Rs.16,73,543/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. The 2nd
respondent/Insurance Company is directed to deposit the enhanced award
amount now determined by this Court along with interest and costs, less the
amount already deposited, if any, within a period of six weeks from the date
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C.M.A.No.2204 of 2017
of receipt of a copy of this judgment to the credit of M.C.O.P.No.4594 of
2002 on the file of Motor Accidents Claims Tribunal, VI - Court of Small
Causes, Chennai. On such deposit, the appellant is permitted to withdraw the
enhanced award amount along with interest and costs, less the amount if any,
already withdrawn. No costs.
(R.P.S.J.) (S.S.K.J.)
08.03.2021
gbi
Index : Yes / No
Internet : Yes/ No
Speaking/non-speaking order
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C.M.A.No.2204 of 2017
To
1.The Judge,
Motor Accidents Claims Tribunal,
VI - Court of Small Causes,
Chennai.
2.The Section Officer,
V.R.Section, High Court,
Chennai.
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C.M.A.No.2204 of 2017
R.SUBBIAH, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
gbi
C.M.A.No.2204 of 2017
08.03.2021
https://www.mhc.tn.gov.in/judis/
