Madras High Court
J.Sakthivel vs The Managing Director on 9 March, 2021
C.M.A.No.297 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.03.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.297 of 2021
J.Sakthivel .. Appellant
Vs.
The Managing Director,
Metro Transport Corporation Limited,
Pallavan House, Anna Salai,
Chennai – 600 002. .. Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
12.11.2019 made in M.C.O.P.No.1601 of 2017 on the file of the Motor
Accident Claims Tribunal, IV Small Causes Court, Chennai.
For Appellant : Mr.K.Varadhakamaraj
For Respondent : Mr.K.J.Sivakumar
JUDGMENT
This Civil Miscellaneous Appeal has been filed for enhancement of
compensation granted by the award dated 12.11.2019 made in
M.C.O.P.No.1601 of 2017 on the file of the Motor Accident Claims Tribunal,
IV Small Causes Court, Chennai.
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C.M.A.No.297 of 2021
2.The appellant is the claimant in M.C.O.P.No.1601 of 2017 on the file
of the Motor Accident Claims Tribunal, IV Small Causes Court, Chennai. He
filed the above said claim petition, claiming a sum of Rs.30,00,000/- as
compensation for the injuries sustained by him in the accident that took place
on 05.06.2016.
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the driver of the bus belonging to the respondent-Transport Corporation and
directed the respondent to pay a sum of Rs.3,01,400/- as compensation to the
appellant.
4.Not being satisfied with the amounts awarded by the Tribunal, the
appellant has come out with the present appeal seeking enhancement of
compensation.
5.The learned counsel appearing for the appellant contended that in the
accident the appellant suffered bone fracture of shaft of right femur and
comunited Grade II fracture of both bones on the right leg and multiple
grievous injuries all over the body. P.W.2/Doctor examined the appellant and
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C.M.A.No.297 of 2021
certified that appellant suffered 55% disability and issued Ex.P10/disability
certificate to that effect. The Tribunal without giving any valid reason,
reduced the percentage of disability from 55% to 40% and awarded
compensation only for 40% of disability at the rate of Rs.3,000/- per
percentage of disability. The Tribunal ought to have awarded compensation
for 55% disability. The appellant was working as Mason and was earning a
sum of Rs.21,000/- per month. The Tribunal fixed a meagre sum of
Rs.10,000/- per month as notional income of the appellant and awarded
compensation towards loss of income only for 6 months. Due to the injuries
and fractures suffered by the appellant, he sustained 100% loss of earning
power and could not continue his avocation as he was doing earlier. The
Tribunal ought to have awarded compensation for 100% loss of earning
capacity. The appellant has taken treatment as inpatient at Rajiv Gandhi
Government General Hospital, Chennai for 51 days from 05.06.2016 to
25.07.2016. The Tribunal failed to award any amount towards future
prospects and future medical expenses. The amounts awarded by the Tribunal
towards disability, attendant charges, transportation, pain and sufferings,
extra nourishment and loss of amenities are meagre and prayed for
enhancement of compensation.
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C.M.A.No.297 of 2021
6.Per contra, the learned counsel appearing for the respondent-
Transport Corporation contended that the Tribunal reduced the percentage of
disability from 55% to 40% on the ground that P.W.2/Doctor has not assessed
the percentage of disability for the whole body and he is not the Doctor who
treated the appellant. P.W.2/Doctor has not produced the working sheet for
arriving at the quantum of disability. Hence, the appellant is not entitled to
compensation for 55% disability. The appellant has not produced any material
evidence to prove his avocation and income. In the absence of any material
evidence with regard to avocation and income, a sum of Rs.10,000/- per
month fixed by the Tribunal as notional income of the appellant is excessive.
The appellant has not suffered any functional disability and hence, he is not
entitled to any compensation towards loss of earning capacity. The amounts
awarded by the Tribunal under different heads are not meagre. The appellant
has not made out any case for enhancement of compensation and prayed for
dismissal of the appeal.
7.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the respondent-Transport Corporation and
perused the entire materials on record.
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C.M.A.No.297 of 2021
8.From the materials available on record, it is seen that it is the case of
the appellant that in the accident he suffered fracture of shaft of right femur
and comunited Grade II fracture of both bones on the right leg and he
underwent surgery for ORIF interlocking. P.W.2/Doctor examined the
appellant and certified that appellant suffered 55% disability and issued
Ex.P10/disability certificate to that effect. The Tribunal reduced the
percentage of disability from 55% to 40% on the ground that P.W.2/Doctor
has not assessed the percentage of disability for the whole body and he is not
the Doctor who treated the appellant. P.W.2/Doctor has not produced the
working sheet for arriving at the quantum of disability. The reason given by
the Tribunal for reducing the percentage of disability from 55% to 40% is
proper but a sum of Rs.3,000/- per percentage of disability awarded by the
Tribunal is meagre. This Court by the judgment reported in 2020 (1) TN
MAC 617 [M. Chinnathambi Vs. S.Deepa and another], fixed a sum of
Rs.4,000/- per percentage of disability for the accident occurred in the year
2014 & 2015 and a sum of Rs.5,000/- per percentage of disability for the
accident occurred from the year 2016 onwards, due to raise in cost of living.
In the present case, the accident is of the year 2016. In view of the same, a
sum of Rs.5,000/- is awarded per percentage of disability. Thus, the
compensation awarded by the Tribunal towards disability is modified to
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C.M.A.No.297 of 2021
Rs.2,00,000/- (Rs.5,000/- X 40% disability). The appellant has not proved
that he suffered functional disability and lost his earning capacity. Hence, he
is not entitled to any amount towards loss of earning capacity by adopting
multiplier method.
9.It is the contention of the appellant that at the time of accident, he
was working as Mason and was earning a sum of Rs.21,000/- per month. The
appellant has not produced any material evidence to prove his avocation and
income. In the absence of any material evidence with regard to avocation and
income, the Tribunal fixed the notional income of the appellant at Rs.10,000/-
per month and awarded a sum of Rs.60,000/- as compensation towards loss of
income for 6 months. The accident occurred in the year 2016 and the monthly
income fixed by the Tribunal is meagre. Considering the year of accident, age
and nature of work done by the appellant, a sum of Rs.14,000/- per month is
fixed as notional income of the appellant. Due to the injuries and disability
suffered by the appellant in the accident, he would not have attended his work
atleast for a period of 10 months. Thus, the compensation awarded by the
Tribunal towards loss of income is modified to Rs.1,40,000/- [Rs.14,000/- X
10 months]. The appellant has taken treatment as inpatient at Rajiv Gandhi
Government General Hospital, Chennai for 51 days from 05.06.2016 to
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C.M.A.No.297 of 2021
25.07.2016. Considering the nature of injuries and period of treatment taken
by the appellant, the amounts awarded by the Tribunal towards attendant
charges and damages to clothes are meagre and the same are enhanced to
Rs.30,000/- and Rs.3,000/- respectively. The appellant has not produced any
medical records to show that he requires further medical treatment. Hence, he
is not entitled to any amount towards future medical expenses. 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 1,20,000/- 2,00,000/- Enhanced
2. Pain and sufferings 30,000/- 30,000/- Confirmed
3. Loss of income 60,000/- 1,40,000/- Enhanced
4. Extra nourishment 25,000/- 25,000/- Confirmed
5. Attendant charges 18,300/- 30,000/- Enhanced
6. Medical expenses 2,080/- 2,080/ Confirmed
7. Transportation 20,000/- 20,000/- Confirmed
8. Loss of amenities 25,000/- 25,000/- Confirmed
9. Damages to clothes 1,000/- 3,000/- Enhanced
Total Rs.3,01,380/- Rs.4,75,080/- Enhanced by
rounded off to rounded off to Rs.1,73,700/-
Rs.3,01,400/- Rs.4,75,100/-
10.In the result, this Civil Miscellaneous Appeal is partly allowed and
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C.M.A.No.297 of 2021
the compensation awarded by the Tribunal at Rs.3,01,400/- is hereby
enhanced to Rs.4,75,100/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. The respondent-
Transport Corporation is directed to deposit the award amount now
determined by this Court along with interest and costs, less the amount
already deposited, if any, within a period of twelve weeks from the date of
receipt of a copy of this judgment, to the credit of M.C.O.P.No.1601 of 2017
on the file of the Motor Accident Claims Tribunal, IV Small Causes Court,
Chennai. On such deposit, the appellant is permitted to withdraw the award
amount now determined by this Court, along with interest and costs, less the
amount if any, already withdrawn by making necessary applications before
the Tribunal. No costs.
09.03.2021
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Index : Yes / No
Internet : Yes / No
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C.M.A.No.297 of 2021
To
1.The IV Judge,
Motor Accidents Claims Tribunal,
Small Causes Court,
Chennai.
2.The Section Officer,
VR Section,
High Court, Madras.
V.M.VELUMANI, J.
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C.M.A.No.297 of 2021
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C.M.A.No.297 of 2021
09.03.2021
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