Madras High Court
Periyasamy vs Sekar on 25 November, 2021
CMA.No.1644 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
CMA.No.1644 of 2020
Periyasamy ...Appellant
Vs,
1.Sekar
2.The National Insurance Co. Ltd.,
Div No.10, Flat No.101-106, N-1, BMC House,
Connaught Place, New Delhi – 110 001.
Branch at 73, Perundurai Road, Erode – 638 011.
3.Arulkumar ..Respondents
Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and decree dated 21.01.2020 made
in MACTOP.No.341 of 2017 on the file of the Motor Vehicle Accident
Claims Tribunal / Special Sub-ordinate Judge Court, Erode.
For Appellant : Mr.T.S.Arthanareeswaran
For Respondents : Mrs.N.B.Sureka for R2
1/8
https://www.mhc.tn.gov.in/judis
CMA.No.1644 of 2020
JUDGMENT
The claimant, who was favoured with an award for a sum of
Rs.3,70,000/- for the injuries suffered by him in a motor accident that
occurred on 23.03.2016 is on appeal, seeking enhancement.
2.It is the case of the claimant that while he was riding his motor
cycle bearing registration No.TN-34-M-1514 in Mallasamudram to
Vaiyappamalai Main Road, near Santhaipettai Cemetry, the Omni Van
bearing Registration No.TN-28-AQ-5460 driven in a rash and negligent
manner by its driver hit against the petitioner's motor cycle and as a reesult,
the petitioner sustained grevious injuries. It is stated that the petitioner
suffered fracture in the right femur bone and crash injuries in the right leg.
He was initially treated in the Government Hospital and admitted in Ganga
Medical Centre and Hospital, Coimbatore, where he was inpatient for 15
days. The claimant was aged about 34 years at the time of the accident. He
was running a Pork Stall and was earning about Rs.25,000/- per month. The
petitioner assessed the compensation payable to him at Rs.10,00,000/-. The
owner and the driver of the offending vehicle remained exparte.
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CMA.No.1644 of 2020
3.The Insurance Company, which was arrayed as a 2nd respondent
resisted the claim contending that it was the claimant, who had contributed
to the accident. It was also contended that the driver of the vehicle bearing
Registration No.TN-28-AQ-5460 did not possess valid driving license. The
Insurance Company termed the quantum of compensation claimed as
excessive. At trial, the claimant was examined as PW1 and Exs.P1 to P7
were marked through him. One Sundarrajan, Sub-Inspector of Police,
Mallasamudram Police Station was examined as PW2 and Exs.P8 to P13
were marked through him. One Kumar, working at Ganga Hospital was
examined as P.W.3 and Exs.P14 and P15 were marked through him. On the
side of the respondent, one Manimozhi, Assistant in RTO Office, Namakkal
North was examined as RW1 and Exs.R1 and R2 were marked through him.
One Mohan of the National Insurance Company was examined as RW2 and
Exs.R3 to R5 were marked. The disability certificate issued by the Medical
Board was marked as Ex.C1. From Ex.C1, it is seen that the Medical Board
has assessed the disability at 10%.
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CMA.No.1644 of 2020
4.I have heard Mr.T.S.Arthanareeswaran, learned counsel
appearing for the Appellant and Mr.N.B.Surekha, learned counsel appearing
for the Insurance Company.
5.Mr.T.S.Arthanareeswaran, learned counsel appearing for the
Appellant would vehemently contend that the Tribunal should have adopted
multiplier method in assessing the compensation for permanent disability.
He would also fault the Tribunal for not awarding any amount towards
future meidcal expenses and awarding only Rs.63,000/- for loss of earning.
6.Contending contra, Mrs.N.B.Surekha, learned counsel appearing
for the Insurance Company would submit that though the claimant was
inpatient for only about 17 days, the Tribunal has awarded a sum of
Rs.80,000/- towards pain and suffering and Rs.1,65,000/- for medical
expenses. According to her, though no amount towards future medical
expenses was granted, the fact that large amount granted towards pain and
suffering would cover the future medical expenses also. I have considered
the rival submissions.
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CMA.No.1644 of 2020
7.Since there is no evidence on any functional disability and the
Medical Board has fixed the disability at 10% only, I am of the opinion, that
there is no need to interfere with the conclusion of the Tribunal that
multiplier method cannot be adopted to fix the compensation for permanent
disability. The Tribunal has awarded Rs.30,000/- towards permanent
disability, which was fixed at 10% at the rate of Rs.3,000/- per percentage.
Considering the date of the accident and the age of the claimant, I am of the
opinion that the award of Rs.4,000/- per percentage of disability would be
just and proper as decided by this Court in M.Chinnathambi Vs. S.Deepa
and Another reported in 2020 (1) TN MAC 617. Therefore, the award
granted under the head of permanent disability and loss of earning power is
increased to Rs.40,000/- instead of Rs.30,000/-. The Tribunal has awarded
Rs.63,000/- towards loss of earning. The Tribunal has only taken the period
of hospitalization to fix the loss of earning at Rs.63,000/-. The Tribunal has
fixed only Rs.9,000/- as income and assessed loss of earning for a period of
the 7 months. Since the fracture was in the femur bone, the period adopted
by the Tribunal is proper but the income fixed by the Tribunal appears to be
on the lower side. I am of the opinion that the loss of income should be
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CMA.No.1644 of 2020
fixed at Rs.12,000/- per month. Therefore, the award under the head of loss
of earning is enhanced to Rs.84,000/- instead of Rs.63,000/-. It is seen that
there are crush injuries and in the right leg exfix rod has been used to
stablize the fracture. It would require future treatment. Hence, I deem it fit
to award a sum of Rs.10,000/- towards future medical expenses. Thus, this
appeal is partly allowed, the award of the Tribunal is modified as follows:-
S.No. Heads Amount
1 Loss of Earnings Rs.84,000/-
2 Transportation Expenses Rs.12,000/-
3 Extra Nourishment Rs.9,000/-
4 Attender Charges Rs.9,000/-
5 Future Medical Expenses Rs.10,000/-
6 Damages to Clothes and Articles Rs.2,000/-
7 Medical Expenses Rs.1,65,000/-
8 Pain and Suffering Rs.80,000/-
9 Permanent Disability and Loss of Earning Rs.40,000/-
Power
Total Rs.4,11,000/-
Rounded off to Rs.4,10,000/-
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CMA.No.1644 of 2020
8.In fine, this appeal is partly allowed. No costs. It is seen that the
Tribunal has granted liberty to the Insurer to pay the compensation and
recover the same from the owner of the Van. The same is sustained. The
Insurance Company would be at liberty to recover the enhanced
compensation also from the owner of the offending vehicle namely, the 1st
respondent.
25.11.2021
kkn
Index:No
Internet:Yes
Speaking
To:-
1.The Motor Accident Claims Tribunal,
Special Sub-ordinate Judge Court, Erode.
https://www.mhc.tn.gov.in/judis
CMA.No.1644 of 2020
R.SUBRAMANIAN, J.
KKN
CMA.No.1644 of 2020
25.11.2021
https://www.mhc.tn.gov.in/judis
