Madras High Court
Manjula vs A.G.Devamani on 30 September, 2021
C.M.A.No.715 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
C.M.A. No. 715 of 2017
Manjula. ... Appellant
Vs
1. A.G.Devamani.
2. The New India Assurance Company Ltd.,
66, C, North Car Street, Tiruchengode. ... Respondents
Prayer: Civil Miscellaneous Appeals filed under Section 173 of Motor
Vehicles Act, 1988, to set aside the Decree and Judgment made in
M.C.O.P.No.77 of 2012 on the file of the Motor Accident Claims Tribunal,
Tiruchengode, dated 26.08.2013.
For Appellant : Mr. C.Kulanthaivel
For Respondent 1 : Exparte
For Respondent 2 : M/s. R.Sreevidhya
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C.M.A.No.715 of 2017
JUDGMENT
This appeal has been filed by the appellant/claimant, seeking
enhancement of compensation under the impugned award dated 26.08.2013
passed by the Motor Accidents Claims Tribunal, Tiruchengode, in
M.C.O.P.No. 77 of 2012.
2. The appellant/claimant has challenged the impugned award
on the ground that the Tribunal has erroneously fixed 50% contributory
negligence on the part of the appellant/claimant and the quantum of
compensation awarded by the Tribunal is also not just and proper.
Therefore, the appellant/claimant seeks for enhancement.
3. The Tribunal, under the impugned award, directed the
respondents jointly and severally to pay 50% of the compensation of
Rs.74,240/- (Rupees Seventy Four Thousand Two Hundred and forty only)
equivalent to Rs.37,120/- (Rupees Thirty Seven Thousand One Hundred and
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C.M.A.No.715 of 2017
Twenty only) to the appellant as detailed hereunder:
Heads Amount awarded
by the Tribunal
(Rs.)
Partial Loss of earnings 8,000/-
Transportation to hospital 2,000/-
Extra nourishment 5,000/-
Damages to clothing & articles 1,000/-
Medical Expenses 25,240/-
Pain and sufferings 3,000/-
Permanent disability & loss of 30,000/-
earning power
Total compensation 74,240/-
4. The appellant/claimant was a pillion rider in the motor cycle
which was carrying three persons, including the appellant/claimant and the
accident happened on 02.06.2012. Admittedly, the motor cycle, in which the
appellant/claimant was travelling as a rider, can carry only two persons.
Among three persons, one of them was a minor girl viz., the daughter of the
rider of the motor cycle. Since, the motor cycle was carrying three persons,
the Tribunal has fixed 50% contributory negligence on the part of the
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C.M.A.No.715 of 2017
appellant/claimant, who was a pillion rider in the motor cycle.
5. This Court is of the considered view that 50% of the
contributory negligence fixed by the Tribunal on the part of the
appellant/claimant was on the higher side, since she was not a rider of the
motorcycle, but only a pillion rider. Further, a minor girl was also travelling
in the motor cycle who is none else than the daughter of the rider of the
motor cycle.
6. After giving due consideration to the afore mentioned factors,
the fixation of 50% as contributory negligence on the part of the
appellant/claimant by the Tribunal is not a correct assessment. After giving
due consideration to the afore mentioned factors, which has not been
disputed by the respondents, this Court, instead of fixing 50% contributory
negligence on the part of the appellant/claimant, reduces the contributory
negligence of the appellant/claimant to 10%. Accordingly, the contributory
negligence on the part of the appellant/claimant is fixed at 10% instead of
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C.M.A.No.715 of 2017
50%, erroneously fixed by the Tribunal.
7. The compensation awarded by the Tribunal under various heads
excepting disability compensation referred to supra, is a just compensation
and there is no question of enhancement under those heads.
8. For the foregoing reasons, this appeal is partly allowed by fixing
the contributory negligence on the part of the appellant/claimant at 10%
instead of 50%, erroneously fixed by the Tribunal.
9. The disability compensation awarded by the Tribunal is
Rs.30,000/-(Rupees Thirty Thousand only). The Doctor has assessed the
disability of the appellant/claimant at 33%, which has been accepted by the
Tribunal. But, however, the Tribunal without giving proper reasons, has
reduced the disability to 15% under the impugned award. Unless and until
proper reasons have been given, the Tribunal ought not to have reduced the
disability from 33% to 15%. Therefore, this Court has to necessarily accept
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C.M.A.No.715 of 2017
the findings of the Doctor who has assessed the disability of the
appellant/claimant at 33%. Hence, the disability of the appellant/claimant is
assessed by this Court at 33%, as fixed by the Doctor.
10. The accident happened in the year 2012. The Tribunal has
awarded a sum of Rs.30,000/- (Rupees Thirty Thousand only) towards
disability. After giving due consideration to the year of the accident, this
Court is of the considered view that the compensation awarded towards the
disability of the appellant/claimant is low and it has to be enhanced to
Rs.99,000/- (Rupees Ninety Nine Thousand only), calculated at Rs.3000/-
(Rupees Three Thousand only) per percentage of 33% disability suffered by
the appellant/claimant.
11. For the foregoing reasons, the compensation assessed by the
Tribunal under the impugned award is enhanced to Rs.1,73,240/- (Rupees
One Lakh Seventy Three Thousand Two Hundred and Forty only). Since,
10% contributory negligence has been fixed by this Court on the part of the
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C.M.A.No.715 of 2017
appellant/claimant, the appellant/claimant is entitled to a compensation of
Rs.1,55,916/- (Rupees One Lakh Fifty Five Thousand Nine Hundred and
Sixteen only) as detailed hereunder:
Heads Amount Amount Award
awarded by awarded confirmed or
the Tribunal by this enhanced or
granted
(Rs.) Court
(Rs.)
Partial Loss of earnings 8,000/- 8,000/- Confirmed
Transportation to 2,000/- 2,000/- Confirmed
hospital
Extra nourishment 5,000/- 5,000/- Confirmed
Damages to clothing & 1,000/- 1,000/- Confirmed
articles
Medical Expenses 25,240/- 25,240/- Confirmed
Pain and sufferings 3,000/- 3,000/- Confirmed
Permanent disability & 30,000/- 99,000/- Enhanced
loss of earning power
Total compensation 74,240/- 1,73,240/ Enhanced
-
12. Accordingly, the civil miscellaneous appeal is partly allowed
by enhancing the award amount from Rs.74,240/-to Rs.1,73,240/- (Rupees
One Seventy Three Thousand Two Hundred and Forty only). Since, 10%
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C.M.A.No.715 of 2017
contributory negligence has been fixed by this Court on the part of the
appellant/claimant, the appellant/claimant is entitled to a compensation of
Rs.1,55,916/- (Rupees One Lakh Fifty Five Thousand Nine Hundred and
Sixteen only) i.e.,Rs.1,73,240 - 17,324 = 1,55,916/-.
13. The respondents are directed to deposit the compensation
amount of Rs.1,55,916/- (Rupees One Lakh Fifty Five Thousand Nine
Hundred and Sixteen only), awarded by this Court, after deducting the
amount already deposited if any, together with interest at the rate of 7.5%
per annum from the date of claim till the date of deposit and costs, to the
credit of MCOP.No. 77 of 2012 within a period of four weeks from the date
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. 77 of
2012 to the bank account of the claimant through RTGS within a period of
one week thereafter.
30.09.2021
Index:Yes/No
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C.M.A.No.715 of 2017
Speaking Order: Yes/No
rgi
ABDUL QUDDHOSE.,J
rgi
To
1. Motor Accident Claims Tribunal,
Tiruchengode.
2. The Section Officer,
V.R.Section, High Court, Madras – 104.
C.M.A. No. 715 of 2017
30.09.2021
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