Madras High Court

E.Kannan vs Rajendran on 19 November, 2021

                                                                              C.M.A.No.892 of 2014

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 19.11.2021

                                                        CORAM:

                                  THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                                 C.M.A.No.892 of 2014

                  E.Kannan                                                          .. Appellant

                                                         Vs.
                  1.Rajendran

                  2.The United India Insurance Company Limited
                  Karaikal, Represented by its Branch Manager
                  No.2, Church street
                  Karaikal Town and District.                                       .. Respondents

                  Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
                  Motor Vehicles Act, 1988, against the judgment and decree dated 02.01.2014
                  made in M.C.O.P.No.60 of 2013 on the file of the Motor Accident Claims
                  Tribunal, District Court, Karaikal.

                                        For Appellant     : Mr.K.Kumaraguru

                                                          for M/s.Sai and Bharath

                                        For R1            : Mr.S.Srinivasan

                                        For R2            : Mr.S.Arunkumar

                                                   JUDGMENT

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(This matter is heard through “Video-Conferencing/Hybrid Mode”.)

The Civil Miscellaneous Appeal is filed for enhancement of

compensation granted by the Tribunal in the award dated 02.01.2014 made

in M.C.O.P.No.60 of 2013 on the file of the Motor Accident Claims Tribunal,

District Court, Karaikal.

2.The appellant is claimant in M.C.O.P.No.60 of 2013 on the file of the

Motor Accident Claims Tribunal, District Court, Karaikal. He filed the said

claim petition claiming a sum of Rs.4,00,000/- as compensation for the

injuries sustained by him in the accident that took place on 10.09.2012.

3.According to the appellant, on 10.09.2012 at about 10.45 p.m., while

he was riding in his Bajaj Discover motorcycle bearing Registration No.PY-02

J-7583 along with his colleague as a pillion rider from South to North at

Bharathiyar Main Road, near Saravana Super Market, Keezhakasakudy,

Karaikal, slowly on the extreme left side of the road, the 1 st respondent rode

the Hero Honda motorcycle bearing Registration No.TN-47 Q-1035 in a rash

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and negligent manner, hit against the Bajaj Discover motorcycle driven by the

appellant and caused the accident. In the accident, the appellant sustained

grievous injuries and took treatment as in-patient in Government General

Hospital, Karaikal, for two days and thereafter, in Rohini Hospital, Tanjore,

from 13.09.2012 to 22.09.2012 and underwent surgery. In the accident, he

suffered fractures on the right fore arm and mandible. Due to the injuries and

fracture, he could not carry on his work as Mason and therefore, filed claim

petition claiming compensation against the respondents 1 and 2.

4.The 1st respondent, owner-cum-rider of the Hero Honda motorcycle

remained exparte before the Tribunal.

5.The 2nd respondent/Insurance Company filed counter statement and

stated that the appellant misunderstood the policy issued by the 2 nd

respondent and filed claim petition against the 2 nd respondent. Even according

to the appellant, accident has occurred only due to rash and negligent riding

by the 1st respondent. The Hero Honda motorcycle belonging to the 1st

respondent is not insured with the 2 nd respondent/Insurance Company. Bajaj

Discover motorcycle of the appellant was insured with the 2nd respondent, the

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motorcycle of the 1st respondent was not insured at the time of accident and

therefore, the claim petition filed against the 2nd respondent is not

maintainable. The 2nd respondent is not liable to pay any compensation to the

appellant and prayed for dismissal of the claim petition.

6.Before the Tribunal, the appellant examined himself as P.W.1 and

Dr.Rajagopal as P.W.2 and marked 13 documents as Exs.P1 to P13. The 2 nd

respondent/Insurance Company did not let in any oral and documentary

evidence.

7.The Tribunal considering the pleadings, oral and documentary

evidence let in by the appellant, held that the accident has occurred only due

to rash and negligent riding by the 1st respondent, the 1st respondent's

motorcycle was not insured at the time of accident and directed the 1 st

respondent to pay a sum of Rs.1,44,600/- as compensation to the appellant.

8.Not being satisfied with the amounts awarded by the Tribunal, the

appellant has come out with the present Civil Miscellaneous Appeal seeking

enhancement of compensation.

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9.The learned counsel appearing for the appellant contended that the

appellant produced Exs.P7 to P11 medical bills. The Tribunal erroneously

rejected certain bills and granted lesser amount towards medical expenses.

The Tribunal failed to grant any amount towards future medical expenses. The

appellant was aged 26 years at the time of accident and was a Mason by

profession. He suffered fractures on right forearm and mandible. Due to

fracture, he could not continue his work as Mason. The Tribunal ought to

have granted compensation towards disability by adopting multiplier method.

The appellant has taken treatment as in-patient for more than 20 days. The

Tribunal has not granted any amount towards attendant charges. The amounts

granted by the Tribunal under different heads are meagre and prayed for

enhancement of compensation.

10.Per contra, the learned counsel appearing for the 1 st respondent

contended that the appellant has not proved his avocation and income. The

appellant has also not proved that due to the injuries, he could not continue

his work as Mason and lost his earning capacity. In the absence of name in

the bills, the Tribunal rightly did not accept some of the bills for Rs.8,808/-.

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The total compensation granted by the Tribunal is excessive. The appellant is

not entitled for any enhancement of compensation and prayed for dismissal of

the appeal.

11.Mr.S.Arunkumar, the learned counsel appearing for the 2nd

respondent/Insurance Company contended that there is no award against the

2nd respondent. The offending vehicle was not insured with the 2 nd

respondent/Insurance Company. The Tribunal rightly directed the 1st

respondent to pay the compensation, there is no claim against the 2 nd

respondent in the appeal and prayed for dismissal of the appeal against the 2nd

respondent.

12.Heard the learned counsel appearing for the appellant as well as the

learned counsel appearing for the respondents 1 and 2 and perused the entire

materials on record.

13.From the materials on record, it is seen that it is the contention of

the appellant that he was a Mason by profession at the time of accident and

was earning a sum of Rs.500/- per day. The appellant failed to substantiate

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the same by letting in acceptable evidence. In the absence of document with

regard to income of the appellant, the Tribunal fixed a sum of Rs.200/- per

day as income of the appellant. The accident is of the year 2012. Even a coolie

will be earning more than Rs.200/- per day in the year 2012. The appellant

was aged 26 years at the time of accident. Considering the age of appellant

and date of accident, a sum of Rs.7,500/- per month is fixed as notional

income of the appellant. Due to the injuries and fracture, the appellant would

not have attended his work atleast for a period of three months. Thus, the

compensation awarded by the Tribunal towards loss of income during

treatment period is enhanced to Rs.22,500/- (Rs.7,500/- X 3).

13(i). P.W.2/Doctor examined the appellant and certified that he

suffered 34% disability. P.W.2/Doctor in his cross-examination admitted that

percentage of disability will be reduced in future. The Tribunal considering the

evidence of P.W.2/Doctor, fixed the disability of the appellant at 30%. The

appellant has not proved that he lost his earning capacity and suffered

functional disability. The Tribunal applied percentage method and granted

compensation towards disability. There is no error in granting compensation

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by applying percentage method. The Tribunal granted a sum of Rs.1,000/- per

percentage of disability. The accident is of the year 2012. The appellant is

entitled to a sum of Rs.3,000/- per percentage of disability. The amount

granted by the Tribunal towards partial disability is enhanced to Rs.90,000/-

(Rs.3,000/- X 30%).

13(ii). The appellant has taken treatment as in-patient in Government

General Hospital, Karaikal, for two days and thereafter, in Rohini Hospital,

Tanjore, from 13.09.2012 to 22.09.2012. The Tribunal has not granted any

amount towards attendant charges. Considering the period of treatment taken

by the appellant, a sum of Rs.10,000/- is granted towards attendant charges.

The Tribunal considering the medical bills produced by the appellant, held

that appellant has not deducted amount for refund of medicines and produced

duplicate bills. Considering the same, the Tribunal rightly deducted Rs.8,808/-

and awarded a sum of Rs.79,600/- towards medical expenses, which is in

order. The appellant has not produced any document to prove that he requires

future medical expenses and therefore, he is not entitled to any amount

towards future medical expenses. A sum of Rs.5,000/- granted by the Tribunal

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towards extra nourishment is meagre and hence, the same is hereby enhanced

to Rs.10,000/-. The amounts awarded by the Tribunal under all 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.No          Description   Amount awarded         Amount          Award
                                                 by Tribunal         awarded by     confirmed or
                                                     (Rs)             this Court    enhanced or
                                                                         (Rs)        granted or
                                                                                      reduced
                   1.         Pain and                     25,000          25,000 Confirmed
                              suffering
                   2.         Extra                         5,000          10,000 Enhanced
                              nourishment
                   3.         Partial                      30,000          90,000 Enhanced
                              disability
                   4.         Medical                      79,600          79,600 Confirmed
                              expenses
                   5.         Loss of income                5,000          22,500 Enhanced
                              during
                              treatment
                              period
                   6.         Attendant                          -         10,000 Granted
                              charges
                              TOTAL                      1,44,600        2,37,100 Enhanced by
                                                                                  Rs.92,500/-

14.In the result, this Civil Miscellaneous Appeal is partly allowed and

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the compensation awarded by the Tribunal at Rs.1,44,600/- is hereby

enhanced to Rs.2,37,100/- together with interest at the rate of 7.5% per

annum from the date of petition till the date of deposit. The 1st respondent 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 eight weeks from the date of receipt of a copy of this judgment. 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. This appeal is dismissed against the 2nd

respondent/Insurance Company. No costs.