Madras High Court
K.Florence Rajini vs E.P.Thiyagarajan on 25 January, 2022
C.M.A.No.705 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.705 of 2016
K.Florence Rajini .. Appellant
Vs.
1.E.P.Thiyagarajan
2.M/s.New India Ass. Co. Ltd.,
C/o. Motor III Party Claims Office,
No.45, Moore Street,
Chennai – 600 001. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated 04.07.2012
made in M.C.O.P.No.4059 of 2008 on the file of the Motor Accident Claims
Tribunal, XVI Additional District Court, Chennai.
For Appellant : Mr.T.G.Balachandran
For R1 : Mr.G.Ravi Shankar
For R2 : Mrs.R.Sreevidhya
JUDGMENT
(The matter is heard through “Video Conferencing”.)
This Civil Miscellaneous Appeal has been filed for enhancement of
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C.M.A.No.705 of 2016
compensation granted by the Tribunal in the award dated 04.07.2012 made in
M.C.O.P.No.4059 of 2008 on the file of the Motor Accident Claims Tribunal,
XVI Additional District Court, Chennai.
2.The appellant is the claimant in M.C.O.P.No.4059 of 2008 on the file
of the Motor Accident Claims Tribunal, XVI Additional District Court,
Chennai. She filed the above said claim petition, claiming a sum of
Rs.6,00,000/- as compensation for the injuries sustained by her in the accident
that took place on 14.10.2008.
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the driver of the car belonging to 1st respondent and directed the respondents 1
& 2 to jointly and severally pay a sum of Rs.1,91,235/- as compensation to the
appellant.
4.Not being satisfied with the amounts awarded by the Tribunal, the
appellant has come out with the present appeal seeking enhancement of
compensation.
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C.M.A.No.705 of 2016
5.The learned counsel appearing for the appellant contended that in the
accident the appellant sustained fracture of right iliac bone, right acetabulam
and interior public ramus and multiple injuries all over the body. She has taken
treatment as inpatient at Malar Hospital for 19 days from 14.10.2008 to
01.11.2008. P.W.3/Doctor examined the appellant and certified that she
suffered 45% disability and issued Ex.P12/disability certificate to that effect.
The Tribunal without assigning any valid reason, erroneously reduced the
percentage of disability from 45% to 35% and granted compensation only for
35% disability. The Tribunal ought to have fixed the disability of the appellant
at 45% as assessed by P.W.3/Doctor and granted compensation for 45%
disability. Due to the injuries sustained by the appellant in the accident, she
could not do any work as she was doing earlier and hence, the Tribunal ought
to have adopted multiplier method and awarded compensation for future loss of
income. The Tribunal has not awarded any amounts towards attendant charges
and loss of amenities. The amounts awarded by the Tribunal towards loss of
income, pain and sufferings, extra nourishment and transportation are meagre
and prayed for enhancement of compensation.
6.The learned counsel appearing for the 1st respondent made his
submissions in support of the award passed by the Tribunal and prayed for
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C.M.A.No.705 of 2016
dismissal of the appeal.
7.The learned counsel appearing for the 2nd respondent-Insurance
Company contended that the Tribunal reduced the percentage of disability
assessed by P.W.3/Doctor from 45% to 35% on the ground that P.W.3/Doctor
has not deposed that on what basis he arrived the percentage of disability.
Hence, the appellant is not entitled to compensation for 45% disability. The
appellant has not proved that she suffered functional disability and lost her
entire earning capacity. Hence, she is not entitled to any amount towards future
loss of income by adopting multiplier method. The Tribunal considering the
nature of injuries and disability suffered by the appellant, has awarded a sum of
Rs.1,91,235/- as compensation to the appellant, which is not meagre. The
appellant has not made out any case for enhancement of compensation and
prayed for dismissal of the appeal.
8.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the 1st respondent and the learned counsel
appearing for the 2nd respondent-Insurance Company and perused the entire
materials on record.
9.From the materials available on record, it is seen that it is the case of
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C.M.A.No.705 of 2016
the appellant that in the accident she sustained fracture of right iliac bone, right
acetabulam and interior public ramus and multiple injuries all over the body.
P.W.3/Doctor examined the appellant and certified that the appellant suffered
45% disability and issued Ex.P12/disability certificate to that effect. The
Tribunal reduced the percentage of disability from 45% to 35% on the ground
that P.W.3/Doctor has not deposed that on what basis he arrived the
percentage of disability. The respondents have not let in any contra evidence to
disprove the evidence of P.W.3/Doctor and Ex.P12/disability certificate.
Further, the reason given by the Tribunal for reducing the percentage of
disability from 45% to 35% is not correct. Therefore, the appellant is entitled to
compensation for 45% disability. The appellant has not proved that she
suffered functional disability and lost her earning capacity. Hence, she is not
entitled to any compensation towards loss of earning capacity by adopting
multiplier method. The accident is of the year 2008 and a sum of Rs.2,000/- per
percentage of disability awarded by the Tribunal is proper. Thus, the
compensation awarded by the Tribunal towards disability is enhanced to
Rs.90,000/- (Rs.2,000/- X 45% of disability).
10.It is the contention of the appellant that at the time of accident, she
was aged 43 years, working as Teacher at Noon Meals Centre, Velacherry,
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C.M.A.No.705 of 2016
Chennai – 600 042 and was earning a sum of Rs.4,000/- per month. The
accident occurred in the year 2008. Considering the year of accident, age and
nature of work done by the appellant, a sum of Rs.7,000/- per month is fixed as
her notional income. The appellant has taken treatment as inpatient at Malar
Hospital for 19 days from 14.10.2008 to 01.11.2008. Due to the injuries
sustained by the appellant in the accident, she would not have attended her
work atleast for a period of five months. Thus, the compensation awarded by
the Tribunal towards loss of income is enhanced to Rs.35,000/- (Rs.7,000/- X
5 months). Considering the nature of injuries and disability suffered by the
appellant, the amounts awarded by the Tribunal towards pain and sufferings,
transportation & extra nourishment are enhanced to Rs.20,000/- and
Rs.15,000/- respectively as the amounts awarded by the Tribunal are meagre.
The Tribunal has not awarded any amounts towards attendant charges, loss of
amenities and damages to clothes. Considering the nature of injuries, period of
treatment and disability suffered by the appellant, she is entitled to a sum of
Rs.15,000/- towards attendant charges, Rs.15,000/- towards loss of amenities
and a sum of Rs.1,000/- towards damages to clothes. The amount awarded by
the Tribunal towards medical expenses is just and reasonable and hence, the
same is hereby confirmed. Thus, the compensation awarded by the Tribunal is
modified as follows:
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C.M.A.No.705 of 2016
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Disability 70,000/- 90,000/- Enhanced
2. Pain and sufferings 10,000/- 20,000/- Enhanced
3. Medical expenses 85,280/- 85,280/- Confirmed
4. Transportation &
7,000/- 15,000/- Enhanced
Extra nourishment
5. Loss of Income 18,955/- 35,000/- Enhanced
6. Attendant charges - 15,000/- Granted
7. Loss of amenities - 15,000/- Granted
8. Damages to clothes - 1,000/- Granted
Total Enhanced by
Rs.1,91,235/- Rs.2,76,280/-
Rs.85,045/-
11.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.1,91,235/- is hereby enhanced
to Rs.2,76,280/- together with interest at the rate of 7.5% per annum from the
date of petition till the date of deposit. The respondents 1 & 2 are jointly and
severally directed to deposit the award amount now determined by this Court
along with interest and costs, less the amount already deposited, if any, within
a period of twelve weeks from the date of receipt of a copy of this judgment, to
the credit of M.C.O.P.No.4059 of 2008 on the file of the Motor Accident
Claims Tribunal, XVI Additional District Court, Chennai. On such deposit, the
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C.M.A.No.705 of 2016
appellant is permitted to withdraw the award amount now determined by this
Court, along with interest and costs, less the amount if any, already withdrawn
by making necessary applications before the Tribunal. It is made clear that the
appellant is not entitled to any interest for the delay period on Rs.85,045/-, the
amount now enhanced by this Court as per the order of this Court dated
21.03.2016 made in M.P.No.2 of 2015 in C.M.A.SR.No.105120 of 2014. No
costs.
25.01.2022
krk
Index : Yes / No
Internet : Yes / No
To
1.The learned XVI Additional District Judge,
Motor Accident Claims Tribunal,
Chennai.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.705 of 2016
V.M.VELUMANI, J.
krk
C.M.A.No.705 of 2016
25.01.2022
https://www.mhc.tn.gov.in/judis
