Madras High Court
Kaveri vs M.Sanjeevan on 24 February, 2022
C.M.A.No.2954 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2022
CORAM:
THE HON'BLE MRS.JUSTICE J.NISHA BANU
Civil Miscellaneous Appeal No.2954 of 2012
Kaveri,
Rep. by Muniammal ... Appellant
Vs.
1. M.Sanjeevan
2. The National Insurance Company Ltd.,
Rep. by its Manager,
Vijaya Plaza Building, Second Floor,
C-32, Second Avenue, Anna Nagar,
Chennai – 600 040. ... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act 1988, against the Judgment and decree dated 08.06.2010
M.C.O.P.No.105 of 2009 on the file of the Subordinate Judge Cum Motor
Accidents Claims Tribunal, Krishnagiri.
For Appellant : Mr.M.Selvam
For R-2 : Mr.R.Sreevidhya
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C.M.A.No.2954 of 2012
JUDGMENT
Aggrieved over the quantum of compensation, the claimant has preferred
the present Civil Miscellaneous Appeal against the Judgment and decree, dated
08.06.2010 in M.C.O.P.No.105 of 2009 on the file of the Subordinate Judge
Cum Motor Accidents Claims Tribunal, Krishnagiri, stating that the Tribunal
has fixed a meagre compensation.
2. The case of the claimant before the Tribunal is that on 28.03.2008,
when the claimant was proceeding from Palacode to Vellichandhai by TVS 50
XL bearing registration No.TN 37 D 6935, at about 9.30 hours, a LMV goods
vehicle bearing registration No.TN 29 E 4241, which was proceeding in the
opposite direction in a rash and negligent manner, dashed against the claimant.
Due to the accident, the petitioner sustained injuries. Hence, the claimant filed
a claim petition claiming compensation for a sum of Rs.10,00,000/- from the
respondents.
3. The first respondent has been set exparte before the Tribunal.
4. Denying the averments made in the claim petition, the second
respondent filed a counter stating that the owner of the goods vehicle did not
furnish the details of the alleged accident, particulars of the Registration
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C.M.A.No.2954 of 2012
Certificate (R.C.), details of driving license and insurance. The learned counsel
further contended that the driver of the goods vehicle did not have a valid
driving license and thus, he has violated the policy condition. Further, it is
contended that the petitioner was also not in possession of a valid driving
license and therefore, the second respondent is not liable to pay any
compensation to the petitioner. Therefore, the claim petition has to be
dismissed with costs.
5. The Court below, after considering the pleadings, oral and
documentary evidence of both sides, awarded a sum of Rs.3,67,000/- under the
following heads :
S.No. Particulars Amount in Rs.
1. Partial Loss of earning 13,500/-
2. Transport to hospital and extra 5,000/-
nourishment
3. Medical Expenses 80,500/-
4. Loss of social activities 5,000/-
5. Pain and sufferings 20,000/-
6. Permanent disability loss of 2,43,000/-
future earning power
Total 3,67,000/-
Aggrieved over the same, the appellant has filed the present appeal
before this Court.
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C.M.A.No.2954 of 2012
6. The claimant herein, aggrieved over the quantum of compensation has
filed the appeal stating that the Tribunal has fixed a meagre compensation
which is against the law, weight of evidence and probabilities of the case. The
learned counsel submitted that the Tribunal failed to consider and appreciate
the evidences of P.W.1, P.W.2, P.W.3 and P.W.4 properly and erred in coming
to the conclusion that the compensation under the head of loss of earning
capacity of the appellant is only 30% and such a finding is without considering
the nature of injuries sustained by the claimant. It is also the contention of the
claimant that the injuries of the claimant were assessed by two doctors and they
found the disability of the claimant as 70% and 60%. But the Tribunal has only
assessed 30%. Therefore, the claimant prays for enhancement of compensation.
7. The learned counsel for the second respondent would state that the
learned trial Court Judge, after properly considering the oral and documentary
evidence, has awarded a just and fair compensation and therefore, the well
considered award of the Court below, needs no interference.
8. On perusal of the materials available on records, it is seen that the
appellant had sustained head injury, injury on his right thigh. It is because of
those injuries the claimant was unable to appear before the Tribunal to give
evidence and his wife has given evidence as P.W.1. The Orthopedic Surgeon
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C.M.A.No.2954 of 2012
was examined as P.W.3 and he has stated in his deposition that due to the
fracture of right thigh, intra medula screws were fitted. As a result of the same,
the disability percentage of the claimant was assessed as 60%. P.W.4,
Psychiatrist examined the claimant and observed the mental health of the
claimant and assessed the disability as 40-70%. Therefore, it is to be noted that
the claimant was unable to appear before the Tribunal for adducing evidence.
9. Before the Court below, the learned counsel for the claimant has
produced the judgment reported in 2009(2) TNMAC 103, in the case of United
India Insurance Co. Ltd., vs. S.Saravanan and others wherein it has been
held that,
“Disability- Assessment – Injuries causing neurological
disorders – injured reduced to vegetative state – disability as
assesses by Tribunal at 100%, held deserves to be
confirmed.”
10. The gravity of the disability can be seen based on the injuries
sustained by the claimant, as he was unable to present himself before this Court
and his wife has given evidence on his behalf. The learned Judge had assessed
the disability of the claimant as 30%, when P.W.3 and P.W.4 have assessed the
disability of the claimant as 70% and 60% respectively. It is not known on
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C.M.A.No.2954 of 2012
what basis the learned Judge has come to the conclusion by assessing the
disability of the claimant as 30%, without going by the injuries sustained by the
claimant, where one could assess the disability as 100%. Therefore, this Court
is inclined to interfere with the Award granted by the trial Court and enhance
the same.
11. Considering the facts and circumstances, the Award passed by the
Tribunal is modified as follows:-
S.No Description Amount Amount Award
awarded by modified by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs.) granted
1 Partial Permanent 2,43,000 4500x60/100= Enhanced
disability 2700 x 12 =
32,400
32,400 x 15 =
4,86,000
2 Partial Loss of earning 13,500 13,500 confirmed
3. Transport to hospital 5,000 5,000 confirmed
and extra nourishment
4 Medical Expenses 80,500 80,500 confirmed
5. Pain and sufferings 20,000 20,000 confirmed
6. Loss of Social activities 5,000 5,000 Confirmed
Total 3,67,000/- 6,10,000/- Enhanced
With regard to the compensation granted under other heads, the same
stands confirmed and remain unaltered.
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C.M.A.No.2954 of 2012
12. In the result, this Civil Miscellaneous Appeal is Partly Allowed and
the compensation awarded by the Tribunal at Rs.3,67,000/- is hereby enhanced
to Rs.6,10,000/-(Rupees Six lakhs and ten thousand only) together with interest
at the rate of 7.5% per annum from the date of petition till the date of deposit,
less two years delay in filing the appeal.
13. Learned counsel for the second respondent has brought to the notice
of this Court that the appeal has been filed after a period of two years and
hence, he prayed for interest waiver for the above period of two years. The said
contention of the learned counsel for the second respondent has some force and
therefore, the interest shall be calculated excluding the delay period involved in
filing this appeal.
14. The appellant is directed to pay necessary Court fee, if any, on the
enhanced compensation. 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, before
the Subordinate Judge Cum Motor Accidents Claims Tribunal, Krishnagiri
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C.M.A.No.2954 of 2012
within a period of eight weeks from the date of receipt of a copy of this
judgment. On such deposit being made, the Tribunal is directed to transfer the
Award amount directly to the Bank account of the Appellant/Claimant through
RTGS, within a period of two weeks. No costs.
24.02.2022
vrc/sts
Index : yes/no
Internet : yes/no
Speaking Order/Non-Speaking Order
To
1. The Subordinate Judge Cum
Motor Accidents Claims Tribunal,
Krishnagiri.
2. The Section Officer,
VR Section, High Court, Madras.
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C.M.A.No.2954 of 2012
J.NISHA BANU, J.,
sts
Judgment made in
C.M.A.No.2954 of 2012
Dated:
24.02.2022
https://www.mhc.tn.gov.in/judis
