Madras High Court
Sabarinathan vs Devadoss on 10 March, 2021
C.M.A.No.82 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.03.2021
CORAM:
THE HON'BLE MR.JUSTICE D.KRISHNAKUMAR
CMA.No.82 of 2013
Sabarinathan ... Appellant
..Vs..
1.Devadoss
S/o. Manickam
2. State Planning Commission
Rep.by its Member Secretary,
District Planning Cell,
Nagapattinam Town.
3.Union of India
rep.by Chief Secretary,
Government of Tamil Nadu,
Secretariat, Chennai. ...Respondents
(R3 remained absent and set exparte
by the tribunal, hence no notice to
R3 is necessary)
Appeal filed under Section 173 of the Motor Vehicles Act, 1988,
against the Judgment and decree dated 27.03.2012 made in
M.C.O.P.No.75 of 2011 on the file of the Motor Accidents Claims Tribunal,
District Judge, Kariakal.
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C.M.A.No.82 of 2013
For Appellant : Mr.R.Vasudevan
For Respondents : No appearance
JUDGMENT
Dissatisfied with the judgment and decree, dated 27.03.2012 in
MCOP.No. 75 of 2011 passed by the tribunal awarding compensation of
Rs.1,80,675/- along with interest at the rate of 7.5% per annum and the
contributory negligence fixed on the claimant at 25%, the claimant is
before this Court for enhancement of compensation.
2. It is the case of the appellant herein that on 07.07.2010 at
about 10.00 am the claimant was proceeding in his TVS 50 XL at
melakasakudy main road towards west to east and when he was
proceeding to Kalayankatti bridge, the respondent came in a Mahindra
Jeep bearing Reg.No.TN51-G-0228 in a rash and negligent manner and
dashed against the petitioner. As a result, the petitioner sustained
fracture and grievous injuries. The claimant has filed a claim petition
claiming compensation of Rs.5,00,000/- for the injuries sustained by the
hims in the said accident. The tribunal based on the evidence and
documents, has concluded that the accident had occurred due to
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C.M.A.No.82 of 2013
negligence on the part of the claimant and the respondents 1 to 3, hence
fixed negligence 25% on the part of the claimant and 75 % on the part of
the respondents 1 to 3. The tribunal has granted compensation to the
claimant for a sum of Rs.1,80,675/- (75% of total compensation of
Rs.2,40,900) along with interest at the rate of 7.5% per annum.
Challenging the said quantum of compensation and the contributory
negligence, the claimant has preferred the present appeal.
3. On the side of the claimants, two witnesses P.W.1 & P.W.2
were examined and eleven documents Ex.P1 to P11 were marked. On the
side of the respondent one witness RW1 was examined and no and
documents were marked.
4. The learned counsel for the appellant submitted that the tribunal
ought not have fixed 25% of contributory negligence on the part of the
appellant on the ground that the appellant was not holding valid driving
licence. The learned counsel for the appellant further submitted that the
tribunal without considering disability assessed at 55% by PW2, has
awarded only a sum of Rs.45,000/- towards partial disability. It is further
submitted by the learned counsel for the appellant that the appellant took
treatment at MIOT Hospital, Chennai for 10 days as inpatient for two
fractures sustained in his left leg, therefore a sum of Rs.10,000/- ought to
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C.M.A.No.82 of 2013
have been awarded towards attender charges. In total the compensation
awarded by the tribunal is very less and needs to be enhanced.
5. Heard the learned counsel appearing for the appellant and
perused the materials available on record. Though notice served on the
respondents 1 &2 , none appeared on their behalf.
The Points for consideration in this appeal are;
i. whether the contributory negligence fixed on the appellant and the
respondents is correct or not?
ii. Whether the compensation awarded by the tribunal requires any
modification?
6. A perusal of Ex.P1/FIR reveals that the appellant while
proceeding on the Melakasakudy main in his TVS 50 Super XL motorcycle
bearing Reg.No. TN39-AD-5079, the jeep driven by the 1st respondent
came in the opposite direction in a rash and negligent manner and dashed
against the claimant/appellant herein causing injury on his left leg. It is
seen from the records that though the 1 st respondent who was examined
RW1 has deposed that the FIR itself is false, he has not taken any steps
to question the same. Further, PW1/claimant during his cross examination
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C.M.A.No.82 of 2013
has admitted that he was not having valid driving licence to ride the
motorcycle at the time of the accident. From the above, it is clear that
the accident occurred only due to the rash and negligence on the part of
the 1st respondent driver. The tribunal by considering the fact that the
claimant/appellant herein was not holding driving licence, has fixed
contributory negligence at 25% on the part of the claimant/appellant
herein and directed the respondents to pay the remaining 75% of the
compensation amount. This Court finds no error in fixing contributory
negligence on the part of the claimant and the respondents and the same
is confirmed. The Point 1 is answered accordingly.
7. The learned counsel for the appellant has brought to the notice of
this Court the copy of the judgment delivered by this Court on the appeal
preferred by the respondents herein in CMA.No.2469 of 2012 against
judgment and decree passed by the tribunal in MCOP.No. 75 of 2011
dated 27.03.2012, which is under challenge in the present appeal. The
said appeal preferred by the respondents was dismissed by this Court
confirming the award passed by the tribunal.
8. As far as quantum of compensation is concerned, PW2/ Doctor
has assessed the disability at 55% and marked Ex.P10/disability
certificate. But the tribunal has reduced the disability at 45% and
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C.M.A.No.82 of 2013
awarded Rs.45,000/- without any basis. Therefore, this Court is of the
view that the entire percentage of disability assessed by the doctor at
55% has to be taken for awarding compensation. Accordingly, by fixing
Rs.1500/- per percentage, the compensation for permanent ad partial
disability is calculated to Rs.82,500/- (1500 x 55). In view of the injuries
and disability sustained by the claimant, this Court is inclined to modify
the compensation awarded by the tribunal under various heads.
Accordingly, the compensation awarded by the tribunal under the head
'Pain and Suffering' is reduced from Rs.25,000/- to Rs.20,000/- . The
compensation awarded for extra nourishment and medical expenses are
confirmed. The tribunal has awarded a sum of Rs.4500/- towards loss of
income for three months at the rate of Rs.1500/- per month. The same is
modified to Rs.10,000/- at the rate Rs.5000/- for three months. The
compensation awarded by the tribunal towards 'Transportation charges' at
Rs.9600/- is rounded of to Rs.10,000/-. The tribunal has not awarded any
amount towards Loss of Amenities, hence a sum of Rs.10,000/- is granted
under the said head. The Point No.2 is answered accordingly.
The compensation awarded by the tribunal is modified as follows;
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C.M.A.No.82 of 2013
Heads Compensation Compensation
awarded by the modified by this
Tribunal Court
Rs. Rs.
Permanent and 45,000 82,500/-
Partial disability (1500 x 55)
Pain and Suffering 25,000 20,000
Extra Nourishment 5,000 5,000
Loss of income 4,500 10,000
(5000 x 2)
Loss of Amenities ... 10,000
Medical Expenses 1,51,800 1,51,800
Transport charges 9,600 10,000
Total 2,40,900/- 2,89,300/-
(75% = 2,16,975
25% = 72,325)
9. In the result, this Civil Miscellaneous Appeal is partly allowed and
a sum of Rs.2,40,900/- awarded by the tribunal is enhanced to
Rs. 2,89,300/-. From the said enhanced compensation amount of
Rs.2,89,300/-, the claimant is entitled to only 75% of the compensation
i.e a sum of Rs.2,16,975/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit.
10. The respondents 1&2 are directed to deposit a sum of
Rs.2,16,975/- as modified by this Court along with interest, within a
period of twelve weeks from the date of receipt of a copy of this
judgment. On such deposit, the appellant/claimant is permitted to
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C.M.A.No.82 of 2013
withdraw the compensation as modified by this Court along interest, after
adjusting the amount, if any, already withdrawn, by filing necessary
applications before the Tribunal. No costs.
10.03.2021
Index: Yes/No
Internet: Yes/No
ak
To
1. The District Judge,
(Motor Accidents Claims Tribunal)
Kariakal.
2. The Section Officer,
V.R.Section,
High Court, Madras.
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C.M.A.No.82 of 2013
D.KRISHNAKUMAR, J.
ak
CMA.No.82 of 2013
10.03.2021
https://www.mhc.tn.gov.in/judis/
