Madras High Court
Mathivanan vs Ramesh on 23 November, 2021
C.M.A.No.538 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.538 of 2018
[video conferencing]
Mathivanan ... 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.C.T.O.P.No.3601 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
*****
1/10
https://www.mhc.tn.gov.in/judis
C.M.A.No.538 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.3601 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.3601 of 2013, on the
file of the Motor Accidents Claims Tribunal, V Court of Small Causes,
Chennai. He filed the above said claim petition, claiming a sum of
Rs.15,00,000/- as compensation for the injuries sustained by him 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.4,25,000/- as
compensation to the appellant.
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C.M.A.No.538 of 2018
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/claimant contended
that in the accident the appellant sustained Grade II Compound fracture of
shaft right femur and Grade II Compound fracture of back base right leg.
P.W.2/Doctor examined the appellant and certified that appellant suffered
65% disability and issued Ex.P18/disability certificate to that effect. The
Tribunal without giving any valid reason, reduced the percentage of disability
from 65% to 45% and awarded compensation only for 45% disability at the
rate of Rs.3,000/- per percentage of permanent disability. The Tribunal ought
to have awarded compensation for 65% 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 suffered by the
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C.M.A.No.538 of 2018
appellant, he 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 General Hospital, Chennai for
18 days from 03.04.2013 to 20.04.2013. The Tribunal failed to award any
amount towards extra nourishment and future medical expenses. The amounts
awarded by the Tribunal towards disability, medical expenses, attendant
charges, transportation, loss of earning, pain and sufferings 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 65% to 45% on the ground that P.W.2/Doctor is not the
Doctor who treated the appellant and also 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 65% 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.7,500/- per month fixed by the Tribunal as notional income of the
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C.M.A.No.538 of 2018
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 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 he sustained Grade II Compound fracture of
shaft right femur and Grade II Compound fracture of back base right leg.
P.W.2/Doctor examined the appellant and certified that the appellant suffered
65% disability and issued Ex.P18/disability certificate to that effect. The
Tribunal reduced the percentage of disability from 65% to 45% 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
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C.M.A.No.538 of 2018
disability. The Tribunal has given valid reason for reducing the percentage of
disability from 65% to 45% and hence, the appellant is not entitled to
compensation for 65% 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.1,57,500/- (Rs.3,500/- X 45%
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 Tailor at Youngsan Car Seats Manufacturing Company,
Thiruvallur District and was earning a sum of Rs.10,000/- per month. The
appellant has not produced any documentary 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.7,500/- per month and the same is meagre. The accident occurred in the
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C.M.A.No.538 of 2018
year 2013. The cost of living has increased enormously and salary of even
unskilled workers has increased substantially. Hence, a sum of Rs.8,500/- per
month is fixed as his notional income. Thus, the compensation awarded by
the Tribunal towards loss of earning is modified to Rs.51,000/- [Rs.8,500/-
X 6 months]. The appellant has taken treatment as inpatient at Government
General Hospital, Chennai for 18 days from 03.04.2013 to 20.04.2013.
Considering the nature of injuries and period of treatment taken by the
appellant, the amount awarded by the Tribunal towards attendant charges is
meagre and hence, the same is enhanced to Rs.5,000/-. 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. Considering the nature of injuries and disability, this Court is of the
considered view that 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.538 of 2018
Sl. Description Amount Amount Award
No. awarded by awarded by confirmed
the Tribunal this Court or
(Rs.) (Rs.) enhanced
or granted
1 Transportation, Rs.30,000/- Rs.30,000/- Confirmed
nourishing food and
miscellaneous
expenditure
2 Attender charges Rs.3,500/- Rs.5,000/- Enhanced
3 Medical expenses Rs.46,483/- Rs.46,483/- Confirmed
4 Disability Rs.1,35,000/- Rs.1,57,500/- Enhanced
5 Loss of earning during Rs.45,000/- Rs.51,000/- Enhanced
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.65,000/- Rs.65,000/- Confirmed
Total Rs.4,24,983/- Rs.4,54,983/-
Enhanced
Rounded off @ Rounded off @ by
Rs.4,25,000/- Rs.4,55,000/- Rs.30,000/-
10.In the result, this Civil Miscellaneous Petition is partly allowed and
the compensation awarded by the Tribunal at Rs.4,25,000/- is hereby
enhanced to Rs.4,55,000/- 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
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C.M.A.No.538 of 2018
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
of a copy of this Judgment to the credit of M.C.O.P.No.3601 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.1993 of 2017 in
C.M.A.SR.No.4041 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.6517 of 2017 in C.M.A.SR.No.4041 of 2017.
No costs.
23.11.2021
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ssi
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking Order
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C.M.A.No.538 of 2018
S.KANNAMMAL, J.
ssi
To:
1.The Motor Accidents Claims Tribunal,
V Court of Small Causes, Chennai.
2.The Section Officer,
VR Section, High Court,
Madras.
C.M.A.No.538 of 2018
23.11.2021
(½)
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