Madras High Court

Jean Bap Tiste vs Kavitha on 7 September, 2021

                                                                                     C.M.A.No.1345 of 2015


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 07.09.2021

                                                        CORAM

                               THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE

                                                  C.M.A.No.1345 of 2015

                     Jean Bap Tiste,
                     son of Mariassoucenadin                                   ...       Appellant

                                                           Vs
                     1.Kavitha
                     2.Royal Sundaram Alliance Insurance Company Limited, Chennai,
                       Represented by its Branch Manager,
                       No.46, Whites Road,
                       Chennai – 600 014.                                 ... Respondents

                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act against the Award dated 02.04.2012 in MACTOP.No.11 of
                     2011 on the file of the Motor Accident Claims Tribunal (District Judge) at
                     Karaikal.
                               For Appellant                : Mr.L.Poovendra Perumal
                                                             for M/s. Bharatha Chakkravathy
                               For Respondent 2             : Mr.E.Rajadurai
                                                             for Mr.N.Vijayaraghavan




                     1/10




https://www.mhc.tn.gov.in/judis/
                                                                                         C.M.A.No.1345 of 2015




                                                                 JUDGMENT

This Civil Miscellaneous Appeal has been filed by the claimant seeking

enhancement of compensation under the impugned award dated 02.04.2012

passed by the Motor accident Claims Tribunal (District Judge, Karaikal) in

MCOP.No.11 of 2011.

2. The Appellant/claimant unsatisfied with the quantum of

compensation awarded by the Tribunal has preferred this appeal seeking for

enhancement.

3. The details of the compensation awarded by the Tribunal are as

follows:

                                                   Heads             Award Amount
                                                                         (Rs.)
                                        For pain and suffering               25,000/-
                                        For extra nourishment                  5,000/-
                                        For permanent disability             35,000/-
                                        For loss of income for two          1,00,000/-
                                        months
                                        Total                               1,65,000/-

4. The Appellant/claimant is a software engineer, earning Rs.50,000/-

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per month at the time of accident which happened on 24.12.2009 caused by a

vehicle owned by the first respondent and insured with the second respondent

Insurance Company.

5. The Appellant/claimant sustained both bone fracture in his left leg

and was hospitalised for a period of two weeks between 24.12.2009 to

07.01.2010 as seen from the discharge summaries which have been marked

as Ex.P6, Ex.P7 & Ex.P8 before the Tribunal. The nature of injuries sustained

by the Appellant/claimant as well as the period of his hospitalisation have

also not been disputed by the second respondent Insurance Company before

the Tribunal. The Doctor PW2 who examined the Appellant/claimant has

assessed the disability of the Appellant/claimant at 52%, but however, the

Tribunal has reduced the same to 35% on the ground that the Doctor PW2

has himself admitted that he has not issued the disability certificate as per the

guidelines issued by the Government of India. This Court is of the considered

view that the reduction of the disability of the Appellant/claimant to 35% is

too low, when compared to the assessment of the disability by the Doctor

who has assessed the same at 52%. The nature of injuries sustained by the

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Appellant/claimant and his period of hospitalisation would enable him to be

assessed at a disability which is higher. This Court after giving due

consideration to the nature of injuries sustained by the Appellant/claimant and

period of his hospitalisation is of the considered view that the disability of the

Appellant/claimant will have to be assessed at 40% instead of 35%

erroneously assessed by the Tribunal. Accordingly, this Court assesses the

disability of the Appellant/claimant at 40%.

6. The Tribunal has awarded a disability compensation of Rs.35,000/-

calculated at Rs.1,000/- per percentage of disability for the 35% disability

which in the considered view of this Court is low and it has to be necessarily

enhanced. The accident happened in the year 2009. If the year of the accident

was taken into consideration, the Tribunal ought to have awarded a higher

compensation. Since the disability of the Appellant/claimant is reassessed by

this Court at 40%, this Court awards a compensation of Rs.1,20,000/- as

disability compensation calculated at Rs.3,000/- per percentage of disability

for the 40% disability instead of Rs.35,000/- calculated at Rs.1,000/- per

percentage of disability for the 35% disability erroneously fixed by the

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Tribunal.

7. The Tribunal has awarded a compensation of Rs.1,00,000/- towards

loss of income to the Appellant/claimant during the period of his treatment,

i.e., for the period of two months, the Tribunal has given a finding that the

Appellant/claimant would have been unable to go for his regular employment.

Admittedly, the Appellant/claimant was hospitalised for a period of two

weeks. While that be so, naturally a person having suffered both bone

fracture in his left leg, he would not have been able to go for his regular work

atleast for a period of 2 ½ months. The monthly income of the

Appellant/claimant was Rs.50,000/- at the time of the accident. The Tribunal

has accepted the same and assessed the loss of income for a period of two

months at Rs.1,00,000/-. Since this Court is of the considered view that at

least for a period of 2½ months, the Appellant/claimant would have been

unable to do his regular work, the loss of income has to be assessed for a

period of 2½ months. Accordingly, the compensation awarded by the

Tribunal to the Appellant/claimant towards loss of income during the period

of his treatment i.e., for a period of 2 ½ months at Rs.1,25,000/- instead of

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Rs.1,00,000/- erroneously fixed by the Tribunal.

8. The Tribunal has failed to award any compensation towards attender

charges, loss of amenities as well as the transportation costs which has to be

necessarily awarded to the Appellant/claimant in accordance with the settled

law. This Court is of the considered view that the Appellant/claimant will

have to be awarded a compensation of Rs.5,000/- each towards attender

charges and transportation. Accordingly, the same is awarded by this Court.

Insofar as the compensation towards loss of amenities is concerned, after

giving due consideration to the nature of injuries sustained by the

Appellant/claimant as a result of the accident, this Court awards a sum of

Rs.20,000/- as compensation towards loss of amenities under the said head.

9. Insofar as the compensation awarded by the Tribunal towards pain

and suffering at Rs.25,000/-, and towards extra nourishment at Rs.5,000/- are

concerned, the same cannot be considered to be inadequate and the same is

confirmed by this Court.

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10. For the foregoing reasons, the compensation awarded by the

Tribunal is enhanced to Rs.3,05,000/- from Rs.1,65,000/- in the following

manner:

                                           Heads          Amount awarded Amount awarded
                                                           by the Tribunal by this Court
                                                                (Rs.)          (Rs.)
                                   For     pain     and           25,000/-       25,000/-
                                   suffering
                                   For         extra               5,000/-         5,000/-
                                   nourishment
                                   For      permanent             35,000/-      1,20,000/-
                                   disability
                                   For loss of income           1,00,000/-      1,25,000/-
                                   for two months
                                   Transportation                      --          5,000/-
                                   Attender charges                    --          5,000/-
                                   Loss of amenities                   --        20,000/-
                                   Total                        1,65,000/-      3,05,000/-

11. In the result, this civil miscellaneous appeal is partly allowed by

enhancing the compensation from Rs.1,65,000/- to Rs.3,05,000/-. The

Second respondent Insurance company is directed to deposit the enhanced

award amount, after deducting the amount already deposited if any together

with interest from the date of claim till the date of deposit and cost to the

credit of MCOP.No.11 of 2011 within a period of four weeks from the date

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of receipt of a copy of this Judgment. On such deposit being made, the

Tribunal shall transfer the amount lying to the credit of MCOP.No.11 of 2011

to the bank account of the Appellant/claimant through RTGS within a period

of one week thereafter. No costs.

07.09.2021 nl