Madras High Court
Sevanthi vs Ramesh on 23 November, 2021
C.M.A.No.539 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 23.11.2021
CORAM:
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A.No.539 of 2018
[video conferencing]
Sevanthi ... Appellant / Petitioner
Vs.
1.Ramesh
(R1 remained exparte before Tribunal.
Hence, notice to R1 dispensed with)
2.Reliance General Insurance Co., Ltd.,
Rai's Tower, Plot No.2054, 2nd Avenue,
2nd Floor, Next to Senthil Nursing Home,
Anna Nagar, Chennai – 600 040. ... Respondents / Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
15.03.2016 in M.A.T.C.O.P.No.3654 of 2013, on the file of the Motor
Accidents Claims Tribunal, V Court of Small Causes, Chennai.
For Appellant : Mrs.A.Subadra
For R1 : Ex-parte
For R2 : Mr.S.Arun Kumar
*****
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C.M.A.No.539 of 2018
JUDGMENT
This Civil Miscellaneous Appeal has been filed for enhancement of
compensation granted by the Tribunal in the award passed in
M.C.O.P.No.3654 of 2013 dated 15.03.2016 on the file of the Motor
Accident Claims Tribunal, V Court of Small Causes, Chennai.
2.The appellant is the claimant in M.C.O.P.No.3654 of 2013, on the
file of the Motor Accidents Claims Tribunal, V Court of Small Causes,
Chennai. She filed the above said claim petition, claiming a sum of
Rs.10,00,000/- as compensation for the injuries sustained by her in the
accident that took place on 03.04.2013.
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 Tavera Car owned by 1st respondent and directed the
respondents jointly and severally to pay a sum of Rs.3,68,500/- as
compensation to the appellant.
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C.M.A.No.539 of 2018
4.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.
5.The learned counsel appearing for the appellant/claimant contended
that in the accident the appellant sustained fracture of left leg Supra condyle
of femur. P.W.2/Doctor examined the appellant and certified that appellant
suffered 60% disability and issued Ex.P8/disability certificate to that effect.
The Tribunal without giving any valid reason, reduced the percentage of
disability from 60% to 40% and awarded compensation only for 40%
disability at the rate of Rs.3,000/- per percentage of permanent disability. The
Tribunal ought to have awarded compensation for 60% disability. At the time
of accident, the appellant was working as Tailor at Youngsan Car Seats
Manufacturing Company, Thiruvallur District and was earning a sum of
Rs.10,000/- per month. The Tribunal fixed a meagre sum of Rs.7,500/- per
month as notional income of the appellant and awarded compensation
towards loss of income only for six months. Due to the injuries and fractures
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C.M.A.No.539 of 2018
suffered by the appellant, she sustained 100% loss of earning power and the
Tribunal ought to have awarded compensation for 100% loss of earning
capacity. The appellant has taken treatment as inpatient at Government Head
Quarters Hospital, Kancheepuram and Chengalpet Government Medical
College Hospital for 51 days. The Tribunal failed to award any amount
towards future medical expenses. The amounts awarded by the Tribunal
towards disability, medical expenses, attendant charges, transportation, loss
of earning, damages for pain and sufferings, extra nourishment and loss of
amenities are meagre and prayed for enhancement of compensation.
6.Per contra, the learned counsel appearing for the 2nd respondent-
Insurance Company contended that the Tribunal reduced the percentage of
disability from 60% to 40% on the ground that P.W.2/Doctor is not the
Doctor who treated the appellant and he has not filed any documents and
guidelines to show how he arrived the percentage of disability. Hence, the
appellant is not entitled to compensation for 60% 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
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C.M.A.No.539 of 2018
sum of Rs.7,500/- per month fixed by the Tribunal as notional income of the
appellant is excessive. The appellant has not suffered any functional
disability and hence, she 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 2nd respondent / Insurance Company and
perused the entire materials placed on record.
8.From the materials available on record, it is seen that it is the case of
the appellant that in the accident she sustained fracture of left leg Supra
condyle of femur. P.W.2/Doctor examined the appellant and certified that the
appellant suffered 60% disability and issued Ex.P8/disability certificate to
that effect. The Tribunal reduced the percentage of disability from 60% to
40% on the ground that P.W.2/Doctor is not the Doctor who treated the
appellant and he has not filed any documents and guidelines to show how he
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C.M.A.No.539 of 2018
arrived the percentage of disability. The Tribunal has given valid reason for
reducing the percentage of disability from 60% to 40% and hence, the
appellant is not entitled to compensation for 60% disability. The accident is
of the year 2013 and a sum of Rs.3,000/- awarded per percentage of disability
by the Tribunal is meagre. Considering the year of accident, a sum of
Rs.3,500/- is awarded per percentage of permanent disability. Thus, the
compensation awarded by the Tribunal towards disability is modified to
Rs.1,40,000/- (Rs.3,500/- X 40% disability). The appellant has not proved
that she suffered functional disability and lost her earning capacity. Hence,
she is not entitled to any amount towards loss of earning capacity.
Considering the nature of injuries, disability and period of treatment by the
appellant, 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:
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C.M.A.No.539 of 2018
Sl. Description Amount awarded Amount Award
No. by the Tribunal awarded by this confirmed
(Rs.) Court (Rs.) or enhanced
or granted
1 Transportation,
nourishing food and Rs.30,000/- Rs.30,000/- Confirmed
miscellaneous
expenditure
2 Attender charges Rs.12,750/- Rs.12,750/- Confirmed
3 Medical expenses Rs.748.50/- Rs.748.50/- Confirmed
4 Disability Rs.1,20,000/- Rs.1,40,000/- Enhanced
5 Loss of earning during Rs.45,000/- Rs.45,000/- Confirmed
the period of treatment
6 Damages for pain, Rs.1,00,000/- Rs.1,00,000/- Confirmed
suffering and trauma
7 Loss of amenities Rs.60,000/- Rs.60,000/- Confirmed
Total Rs.3,68,498.50/- Rs.3,88,498.50/- Enhanced
Rounded off @ Rounded off @ by
Rs.3,68,500/- Rs.3,88,500/- Rs.20,000/-
9.In the result, this Civil Miscellaneous Petition is partly allowed and
the compensation awarded by the Tribunal at Rs.3,68,500/- is hereby
enhanced to Rs.3,88,500/- together with interest at the rate of 7.5% per
annum from the date of filing of petition till the date of deposit. The
respondents are jointly and severally 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 six weeks from the date of receipt
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C.M.A.No.539 of 2018
of a copy of this Judgment to the credit of M.C.O.P.No.3654 of 2013, on the
file of the Motor Accidents Claims Tribunal, V Court of Small Causes,
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. The appellant is directed to pay the necessary Court fee as per
the order of this Court dated 22.02.2017 made in C.M.P.No.1992 of 2017 in
C.M.A.SR.No.4031 of 2017. It is made clear that the appellant is not entitled
to any interest for the delay period as per the order of this Court dated
20.02.2018 made in C.M.P.No.6516 of 2017 in C.M.A.SR.No.4031 of 2017.
No costs.
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Index : Yes / No
Internet : Yes/ No
Speaking/Non-speaking Order
To:
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C.M.A.No.539 of 2018
1.The Motor Accidents Claims Tribunal,
V Court of Small Causes, Chennai.
2.The Section Officer,
VR Section, High Court,
Madras.
S.KANNAMMAL, J.
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C.M.A.No.539 of 2018
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C.M.A.No.539 of 2018
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