Madras High Court
Aravinth Kumar vs The Cor on 7 October, 2021
C.M.A.No.1675 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
C.M.A.No.1675 of 2021
Aravinth Kumar .. Appellant
Vs.
1. The Correspondent,
Saraswathi Matriculation School,
Vazapady, Salem District.
2. National Insurance Company Ltd.,
Branch Office: 2, F-215, Omalur Main Road,
PO-27, Maruthi Complex, 2nd Floor,
Salem. .. Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 seeking to set aside the Judgment and Decree dated
25.09.2018, made in M.C.O.P.No.658 of 2017, on the file of the Motor
Accidents Claims Tribunal, Special Subordinate Court No.2, Salem by
enhancing the award amount.
For Appellant : Mr.Amar D.Pandiya
for Mr.M.Mohamed Riyaz
For Respondent 2 : Mrs.R.Sree Vidhya
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C.M.A.No.1675 of 2021
JUDGMENT
(The case has been heard through video conference)
This appeal has been filed by the claimant seeking enhancement of
compensation under the impugned Award dated 25.09.2018, passed by the
Motor Accidents Claims Tribunal, Special Subordinate Court No.2, Salem in
M.C.O.P.No.658 of 2017.
2. The appellant not satisfied with the quantum of compensation
awarded by the Tribunal as well as fixing the contributory negligence at 20%
on his part by the Tribunal, has preferred this appeal seeking for
enhancement. Details of the compensation awarded by the Tribunal under
the impugned Award are as follows:
Sl.No. Heads Amount in Rs.
1. Loss of earning capacity 1,58,760
2. Pain and Sufferings 10,000
3. Loss of amenities 15,000
4. Medical Bills 2,15,984
5. Transportation 5,000
6. Extra Nourishment 5,000
7. Attender Charges 7,500
Total 4,17,744
Less: 20 % Contributory Negligence 3,34,195
3. As seen from the impugned award, no proper reasons have been
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C.M.A.No.1675 of 2021
given for fixing contributory negligence on the part of the appellant/claimant
at 20%. The Tribunal under the impugned Award excepting for stating that
the appellant/claimant has violated the terms and conditions of the insurance
policy, has not given any specific reason as to which clause under the
insurance policy, he has violated. Therefore, this Court is of the considered
view that the fixing of contributory negligence on the part of the
appellant/claimant by the Tribunal has to be set aside. Therefore, the
fixation of the contributory negligence by the Tribunal on the part of the
appellant/claimant at 20% is hereby set aside by this Court.
4. The appellant/claimant has sustained skull fracture, brain injury and
multiple injuries all over his body. He has been hospitalized for 13 days and
the discharge summary has also been marked as an exhibit before the
Tribunal. The nature of injuries sustained by the appellant/claimant has not
been disputed by the respondents and the period of hospitalization also has
not been disputed. Therefore, this Court is of the considered view that the
compensation awarded by the Tribunal towards pain and sufferings, loss of
amenities, transportation, extra nourishment and attender charges is low and
it has to be enhanced as the Tribunal has not given due consideration to the
nature of injuries sustained by the appellant/claimant and his period of
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C.M.A.No.1675 of 2021
hospitalization.
5. After giving due consideration to the avocation and nature of
injuries as well as the period of hospitalization, this Court enhances the
compensation awarded by the Tribunal towards pain and sufferings from
Rs.10,000 to Rs.20,000/-, towards loss of amenities from Rs.15,000/- to
Rs.20,000/-, towards transportation from Rs.5,000/- to Rs.10,000/-, towards
extra nourishment Rs.5,000/- to Rs.10,000/- and towards attender charges
from Rs.7,500/- to Rs.20,000/-. In so far as the compensation awarded by the
Tribunal towards medical expenses at Rs.2,15,984/- is concerned, the same
is supported by medical bills and therefore the same is confirmed by this
Court.
6. The Tribunal has failed to award any compensation towards loss of
income to the appellant/claimant, which, it ought to have awarded
considering the nature of injuries sustained by the claimant as well as his
avocation. At least for a period of six months, the appellant/claimant would
have been unable to do his regular avocation. The Tribunal has notionally
fixed the monthly income of the appellant/claimant at Rs.10,000/- p.m.
which is confirmed by this Court. Since loss of income was not awarded by
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C.M.A.No.1675 of 2021
the Tribunal, this Court is awarding a sum of Rs.60,000/- i.e., calculated at
Rs.10,000/- p.m. for a period of six months.
7. The Tribunal has awarded compensation towards loss of earning
capacity to the appellant/claimant at Rs.1,58,760/- based on 20% disability
assessed by the doctor (P.W.2). The nature of injuries sustained by the
appellant/claimant does not deserve adoption of multiplier method, which
the Tribunal has erroneously awarded under the impugned award. The
appellant/claimant failed to prove through oral and documentary evidence
that due to the injuries sustained by him, he has suffered loss of earning
capacity. Therefore the Tribunal ought to have ordered disability
compensation based on percentage of disability. Therefore, the
compensation awarded by the Tribunal towards loss of earning capacity at
Rs.1,58,760/- is hereby set aside by this Court and instead this Court awards
disability compensation at Rs.80,000/- i.e. calculated at Rs.4,000/- x 20% of
disability suffered by the appellant/claimant, since the year of accident is
2016. In so far as the compensation awarded by the Tribunal towards
damage to clothes and articles at Rs.500/- is concerned, the same is also
confirmed by this Court as it is a just compensation.
8. For the foregoing reasons, the compensation awarded by the
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C.M.A.No.1675 of 2021
Tribunal under the impugned Award is enhanced to Rs.4,36,484/- instead of
Rs.3,34,195/- awarded by the Tribunal. As observed earlier, the contributory
negligence of 20% erroneously fixed by the Tribunal under the impugned
Award on the appellant/claimant is set aside. The details of the
compensation now awarded by this Court is detailed hereunder:
Sl. Description Amount Amount Award confirmed
No. awarded by awarded by or enhanced or set
the Tribunal this Court aside or granted or
(Rs.) (Rs.) reduced
(Rs.)
1. Loss of earning capacity 1,58,760 --- Set aside
2. Towards Disability @ 20% --- 80,000 Awarded
3. Pain and Sufferings 10,000 20,000 Enhanced
4. Loss of amenities 15,000 20,000 Enhanced
5. Medical Bills 2,15,984 2,15,984 Confirmed
6. Transportation 5,000 10,000 Enhanced
7. Extra Nourishment 5,000 10,000 Enhanced
8. Attender Charges 7,500 20,000 Enhanced
9. Damage to clothes and articles 500 500 Confirmed
10. Towards loss of income --- 60,000 Awarded
Total 4,17,744 4,36,484
Enhanced by
Less: 20 % Contributory Rs.1,02,289
3,34,195 ---
Negligence
9. In the result, the Civil Miscellaneous Appeal is partly allowed and
the compensation of Rs.3,34,195/- awarded by the Tribunal is hereby
enhanced to Rs.4,36,484/- together with interest at the rate of 7.5% per
annum from the date of claim petition till the date of deposit. However, it is
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C.M.A.No.1675 of 2021
made clear that the appellant/claimant will not be entitled for any interest on
the enhanced compensation amount for the delay period of 399 days as held
by this Court in C.M.P.No.5901 of 2021 in C.M.A.SR.No.30909 of 2021
dated 01.04.2021. The second respondent / insurance company is directed to
deposit the enhanced 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 of a copy of this judgment to the
credit of M.C.O.P.No.658 of 2017, on the file of the Motor Accident Claims
Tribunal, Special Subordinate Court No.2, Salem. On such deposit, the
appellant/claimant 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/claimant is directed to pay necessary Court fee, if
any, on the enhanced compensation now determined by this Court. No costs.
07.10.2021
Index : Yes / No
kk
To
1. The Motor Accident Claims Tribunal,
Special Subordinate Court No.2, Salem.
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C.M.A.No.1675 of 2021
2. The Section Officer,
VR Section, High Court, Madras.
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C.M.A.No.1675 of 2021
ABDUL QUDDHOSE, J.
kk
C.M.A.No.1675 of 2021
07.10.2021
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