R. Paramasivam vs K.Kaliappan
2022 Latest Caselaw 8596 Mad

                                                                            C.M.A.No.1596 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 25.04.2022

                                                        CORAM

                                      THE HONOURABLE Ms.JUSTICE P.T.ASHA

                                                 C.M.A.No.1596 of 2019

                     R. Paramasivam                                        ... Appellant

                                                         -Vs.-

                     1. K.Kaliappan

                     2. M/s.National Insurance Company Ltd.,
                        No.18, Kumaran Road Corner,
                        Court Street,
                        Tiruppur - 641 601                                 ... Respondents

                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                     Vehicles Act, 1988, against the order and decree dated 26.10.2015 passed in
                     M.A.C.T.O.P.No.553 of 2013 by the learned Motor Accident Claim Tribunal-
                     cum-Chief Judicial Magistrate, Tiruppur.


                                        For Appellant     :      Ms.S.Lakshmi
                                        For R1            :      Served-No Appearance
                                        For R2            :      Ms.N.B.Surekha




                     1/6
https://www.mhc.tn.gov.in/judis
                                                                                    C.M.A.No.1596 of 2019

                                                             JUDGMENT

The claimants are the appellants before this Court seeking enhancement

of the Award passed in M.C.O.P.No.553 of 2013 by the learned Chief Judicial

Magistrate, Tiruppur. Against the above order, the Insurance Company had

filed an Appeal in C.M.A.No.1733 of 2019 questioning the quantum,

negligence and the liability. However, the said C.M.A was dismissed by this

Court on 04.03.2019.

v 2. The facts in brief are as follows:

The claimant had filed the above M.C.O.P seeking compensation for the

injuries sustained by him in a road accident on 13.03.2013 involving the

vehicle belonging to the first respondent, which is insured with the second

respondent. It is the case of the claimant that on 13.03.2013 at about 3.30 hrs

when he and his brother-in-law, namely, Ediappan were travelling in a motor

bike and as they neared the water office road, which is on the way to

Somanthuraichithur, the first respondent's Minidor auto driven by the first

respondent in a rash and negligent manner and with great speed dashed against

the claimant, causing injuries to the claimant. He had therefore claimed

compensation of a sum of sum of Rs.10,00,000/-.

https://www.mhc.tn.gov.in/judis C.M.A.No.1596 of 2019

3. The first respondent, who is the owner of the vehicle, remained

absent and was set ex-parte before the Tribunal.

4. The second respondent-Insurance Company had filed a counter

inter-alia denying the contentions raised by the claimant with reference to his

age, occupation and income as also his avocation. They had also contended

that it was only the claimant, who had driven his bike rash and negligent

manner and dashed against the Minidor auto. Therefore, being tort-feasor

himself, he cannot seek compensation from the Insurance Company. The

Insurance Company also denied the fact that the claimant has suffered the

functional disability. Therefore, sought to have the claim dismissed.

5. The Tribunal below, taking into account the evidence on record

and the nature of injuries, arrived at a total loss of income of Rs.3,84,000/- and

ultimately awarded the compensation of a sum of Rs.5,45,600/-. The claimant

is aggrieved by the amount of compensation has filed the above appeal.

6. Heard the learned counsel for the claimant and the learned counsel

for the second respondent-Insurance Company.

https://www.mhc.tn.gov.in/judis C.M.A.No.1596 of 2019

7. Pending this appeal, this Court on 08.04.2021, directed the

appellant/claimant to appear before the Medical Board on 30.04.2021. The

Medical Board has sent a letter dated 30.03.2022 along with the original

disability certificate. A reading of the same would show that the Patella

fracture to both bones in the appellant's leg have united and the remarks is that

the petitioner has suffered stiffness in movement. The Medical Board has

assessed the permanent disability at 20%.

8. Before the Tribunal, the Doctor, who was examined as P.W.2, had

assessed the disability of the appellant at 39.8%. A perusal of report of the

Medical Board would indicate that the fracture has united and only the

disability is the stiff knee movement. It does not indicate that the appellant had

suffered a functional disability. The Tribunal ought to have awarded the

compensation on percentage basis and not multiplier basis. However,

considering the fact that the appeal filed by the Insurance Company has been

dismissed by this Court, the same cannot be set aside by this Court.

9. In these circumstances, the award passed by the learned Chief

Judicial Magistrate,(MACT), Tiruppur in M.C.O.P.No.553 of 2013 appears to

https://www.mhc.tn.gov.in/judis C.M.A.No.1596 of 2019

be reasonable and I see no reason to enhance the said Award. Accordingly, the

Civil Miscellaneous Appeal is dismissed. No costs.

25.04.2022

Index:Yes/No Speaking Order : Yes/No srn

To

1. The Chief Judicial Magistrate (MACT), Tiruppur District.

2.The Section Officer, V.R.Section, High Court of Madras, Chennai.

https://www.mhc.tn.gov.in/judis C.M.A.No.1596 of 2019

P.T.ASHA.J

srn

C.M.A.No.1596 of 2019

25.04.2022

https://www.mhc.tn.gov.in/judis