Madras High Court
G.Manikandan vs P.Selvaraj on 27 April, 2022
CMA.2493 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.04.2022
CORAM
THE HON'BLE MRS.JUSTICE J.NISHA BANU
Civil Miscellaneous Appeal No.2493 of 2012
G.Manikandan ... Appellant
Vs.
1. P.Selvaraj
2. M/s.New India Assurance Company Limited,
C/o.Motor Third Party Claims Offices,
No.45, Moore Street, Chennai – 600 001. ... Respondents
Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act 1988, against the judgment and decree dated 05.04.2011 made
in MCO.P.No.175 of 2007 on the file of the Motor Accidents Claims
Tribunal, Additional District Sessions Court, Fast Track – II, Chennai.
For Appellant : Mr.T.G.Balachandran
For respondents : Ms.C.Sanmugamithirai – R2
R1 – No representation
1/9
https://www.mhc.tn.gov.in/judis
CMA.2493 of 2012
JUDGMENT
This appeal has been filed by the appellant/claimant for enhancement
of compensation. The Tribunal passed an award in favour of the appellant for
a sum of Rs.88,853/- against the respondents together with interest at the rate
of 9% from the date of the claim petition till the date of realization.
2. The case of the claimant before the Tribunal is that on 26.11.2006
at about 13.15 hours, when the appellant along with one Mahesh was
travelling in motor cycle bearing Registration No.TN-02-Y-7024 in East
Coast Road, near Sakthi Bairavi School, Panaiyur, from North to South, the
ambassador car bearing Registration No.TN-04-E-6407, owned by the first
respondent, came in the opposite direction in a rash and negligent manner
and also in wrong side and dashed against the motor cycle, as a result of
which the rider of the motor cycle, viz., Mahesh died on the spot and the
appellant, who is a pillion rider, sustained grievous injuries. The accident
had occurred due rash and negligent driving of the driver of the first
respondent's car. At the time of accident, the deceased was aged 22 years
and he was working as a carpenter and was earning a sum of Rs.5000/- per
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CMA.2493 of 2012
month. Due to the accident, the appellant sustained fracture and injuries and
claimed compensation of Rs,10,00,000/- from the respondents, being the
owner and insurer of the alleged offending vehicle.
3. The first respondent filed counter stating that the accident had
occurred due to rash and negligent driving of the motor cycle, which dashed
against the car and this respondent is not responsible for the accident. His
car has been insured with the second respondent from 10.05.2006 to
09.05.2007. Hence, if at all any compensation has to be paid, it has to be
paid only by the second respondent and this petition has to be dismissed as
against this respondent.
4. Denying the averments in the claim petition, the second respondent
filed a counter stating that only due to rash and negligent driving of the motor
cycle by the deceased Mahesh, the accident had occurred. The age,
occupation, income of the petitioner and the deceased and injuries sustained
by the petitioner and deceased are denied. Hence, prayed for dismissal of the
claim petition.
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CMA.2493 of 2012
5. The Court below after considering the pleadings, oral and
documentary evidence of both sides, awarded a sum of Rs.88,853/- under
the following heads :
S.No. Particulars Amount in
Rs.
1. Loss of Income 7,500/-
2. Pain and suffering, 15,000/-
Transportation & Extra
Nourishment
3. Medical expenses 16,353/-
4. For 40% Disability 50,000/-
Total 88,853/-
Aggrieved over the same, the appellant/claimant have filed this appeal
seeking enhancement of the compensation.
6. According to the learned counsel for the appellants, the tribunal
failed to see that the appellant has sustained neuro disability of 30% and
ortho disability of 40%. Further the appellant took treatment as in patient at
Government General Hospital from 26.11.2006 to 05.12.2006 and then
continuously taking treatment as out patient due to severity of injury. The
Tribunal has awarded only meagre compensation towards loss of income and
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CMA.2493 of 2012
compensation under the heads transportation and extra nourishment have to
be assessed independently with an eye on the severity of injuries sustained.
Hence, prays to enhance the compensation.
7. The learned counsel for the second respondent-Insurance
company would submit that the Tribunal after considering both the oral and
documentary evidence of both sides has awarded just compensation and
hence, the well considered award of the Court below needs no interference.
8. Heard the learned counsel for the appellant and the learned
counsel for the second respondent and perused the materials available on
record.
9. On a perusal of the materials available on record, it is seen that
the claimant had sustained diffuse akonal injury, lefort II fracture, Maxilla
fracture, Zygoma fracture and thereby, the ortho doctor has certified 30%
partial permanent disability. Further, the neuro doctor assessed 40%
permanent disability. In support of the treatment taken by the appellant and
disabilities suffered by the appellant, the medical history of the appellant has
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CMA.2493 of 2012
also been marked as Ex.P.7. The Tribunal ought to have considered the
nature of injuries and ought to have awarded fair compensation towards
“Loss of earning power due to disability”. By following the well settled
decisions of the Honourable Supreme Court to award just compensation to
the injured to put his life as before, it is just and proper to fix 40% disability
and award Rs.2,000/- per percentage of disability and thus under the head
“loss of earning power due to disability” would come to Rs.80,000/-.
10. The injured, claimed that he was a carpenter and was earning
Rs.5000/- per month. The tribunal, taking the avocation, fixed Rs.3750/- and
given Rs.7500/- as loss of income during the period of treatment. Taking into
consideration, the skilled job of the claimant, it is appropriate to fix Rs.5000/-
as monthly income and considering the nature of injuries sustained due to the
accident, loss of income for a period of 6 months would be fair and hence, it
is appropriate to grant Rs.5000/- x 6 months = Rs.30,000/- as loss of income
during the period of treatment.
11. Taking into account the attendant factors, this court feels that
the compensation granted under other heads are also inadequate and hence, it
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CMA.2493 of 2012
is necessary to re-quantify the same and also award Rs.20,000/- under the
head “Pain and suffering” exclusively. The modified award is as under.
Sl. Headings Amount Amount Award
No. Awarded awarded by Modified by
by the this Court this court
Tribunal Rs.
Rs.
1. Loss of income during the 7,500/- 30,000 enhanced
period of treatment
2 Extra Nourishment and 15,000 20,000 enhanced
Transportation expenses
3 For Disability of 30% non 50,000
enhanced to 40% at the rate 80,000 enhanced
of Rs.2000/- per disability
4 Medical Expenses 16,353 16,353 confirmed
5 Pain and suffering --- 20,000 granted
Total 88,853/- 1,66,353/- enhanced
12. In the result, this Civil Miscellaneous Appeal is partly allowed
and the compensation awarded by the Tribunal at Rs.88,853/- is hereby
enhanced to Rs.1,66,353/- (Rupees One lakh sixty six thousand three
hundred and fifty three only) together with interest at the rate of 9% per
annum from the date of petition till the date of deposit. The respondents are
jointly and severally directed to deposit the enhanced award amount now
determined by this Court along with interest and costs, less the amount
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CMA.2493 of 2012
already deposited, if any, within a period of eight weeks from the date of
receipt of a copy of this judgment. On such deposit, the appellants are
permitted to withdraw the enhanced award amount along with interest and
costs as apportioned by the Tribunal. No costs.
27.04.2022
vrc/nvsri
Index:Yes/No
To
1. The Motor Accidents Claims Tribunal,
Additional District Sessions Court,
Fast Track – II, Chennai.
2. The Section Officer,
VR Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
CMA.2493 of 2012
J.NISHA BANU, J.
nvsri
C.M.A.No.2493 of 2012
27.04.2022
https://www.mhc.tn.gov.in/judis
