Madras High Court
Raman vs Samikannu on 27 January, 2022
C.M.A.No.2619 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.01.2022
CORAM:
THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN
C.M.A.No.2619 of 2021
Raman ...Appellant
Vs
1.Samikannu
(Since R1 remained exparte before the Tribunal,
his presence may be dispensed with)
2.The Divisional Manager,
The United India Insurance Company Limited,
Situated at No.46, Katpadi Road,
Vellore. ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the Judgment and Decree dated 01.11.2018 and
made in MACT.O.P.No.85 of 2018 on the file of the Motor Accident Claims
Tribunal, Special Sub Court, Tiruvannamalai.
For Appellant : Ms.A.Subadra
For Respondents : R1 – Exparte
Mr.M.J.Vijaya Raghavan for R2
1/8
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C.M.A.No.2619 of 2021
JUDGMENT
The claimant terming the compensation of Rs.4,94,502/- awarded to
him for the injuries suffered by him in a motor accident that occurred on
05.11.2010, seeks enhancement.
2.According to the claimant, while he was riding a motorcycle bearing
Registration No.TN-25-K-0972, the auto rickshaw belonging to the first
respondent bearing Registration No.TN-25-P-6230 driven by its driver in a
rash and negligent manner came in an opposite direction and hit against the
two wheeler. As a result of the accident, the claimant suffered several
grievous injuries all over his body and fractures in the leg and the facial
bones. Claiming that he has been permanently incapacitated from working
as a driver. The claimant sought for a sum of Rs.30,00,000/- as
compensation.
3.The Insurance company resisted the claim contending that the
accident did not occur in the manner suggested by the claimant. It was the
contention of the Insurance company that the claimant has contributed to the
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C.M.A.No.2619 of 2021
accident because of his own negligence. The quantum of compensation
claimed is excessive.
4.Before the Tribunal, the claimant examined himself as PW1,the
Doctor was examined as PW2 and Exs.P1 to P9 were marked. The
Insurance company did not chose to let in any evidence. Upon examination
of evidence on record, the Tribunal came to the conclusion that the accident
had occurred due to the rash and negligent driving of the auto rickshaw
which was insured with the second respondent Insurance company. As
regards quantum, the Tribunal found that though the claimant has suffered
permenant disability to the extent of 45% and there was no functional
disability. On the said conclusion, the Tribunal awarded a sum of
Rs.1,35,000/- towards permanent disability. It also awarded the following
amounts under various heads:
(a) Pain and suffering - Rs.50,000/-
(b) Medical bills -
Rs.2,59,502/-
(c) Transportation expenses - Rs.10,000/-
(d) Loss of earning during the treatment period - Rs.30,000/-
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C.M.A.No.2619 of 2021
(e) Extra nourishment - Rs.10,000/-
5.Ms.A.Subadra, learned counsel appearing for the appellant would
submit that the Tribunal erred in concluding that there was no functional
disability. Pointing out the evidence of PW1, wherein he has stated that he
was working as a driver. The learned counsel would submit that in view of
the fractures in the leg, the claimant cannot continue his avocation as a
driver and therefore, there was a functional disability. She would contend
that the Tribunal should have adopted the multiplier method to fix the
compensation for the disability. She would also point out that the Tribunal
has not awarded any amount towards loss of earning capacity, attender
charges and loss of amenities.
6.Contending contra, Mr.M.J.Vijayaraghavan, learned counsel
appearing for the respondent, Insurance company, would submit that the
very nature of the fractures would show that they would not have a lasting
impact on the functioning of the legs. According to them, the Tribunal
justified in coming to the conclusion that there was no functional disability
because of the accident. In the absence of functional disability, the Tribunal
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C.M.A.No.2619 of 2021
was justified in not adopting the multiplier method for determining the
compensation. He would also submit that the award of the Tribunal under
various heads is very reasonable and does not call for any enhancement.
7.I have considered the submissions of the counsel for the parties.
8.It is seen from Ex.P3 there were fractures in Right frontal extradural
hematoma, Le fort II fracture with pan facial fracture and Left tibial spine
fracture. After analyzing the evidence of PW2/the Doctor, the Tribunal has
come to the conclusion that though there was disability of 30% on the left
knee and 15% on the face, the same would not amount to functional
disability so as to have a lasting impact on the earning capacity of the
claimant. The Tribunal has faulted the claimant for not producing any
evidence to show that he was working as a driver or that he can work as a
driver at least in future. In the absence of any proof of functional disability,
the Tribunal, is my considered opinion, was right in discarding the multiplier
method and adopting the percentage method for awarding compensation for
the disability. The other two heads raised by the learned counsel regarding
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C.M.A.No.2619 of 2021
loss of attender charges and the loss of amenities remain to be considered.
Admittedly, the claimant was an inpatient for a period of 19 days. He could
have incurred significant amount as expenses towards attender charges. The
accident had occurred in the year 2010. Considering the cost of living and
the cost of attender in those days, I am of the opinion that a sum of
Rs.20,000/- would be a reasonable amount that could be awarded towards
attender charges.
9.It is seen that the claimant had suffered several facial fractures
which would have caused certain amount of disfigurement and the fracture
in the leg also would have an effect, I am therefore of the opinion that the
claimant should have been awarded a reason sum towards compensation for
loss of amenities. Hence, a sum of Rs.50,000/- is awarded towards loss of
amenities.
10.Other than the above, I do not think the award of the Tribunal calls
for any interference. In fine, the appeal is partly allowed. The award of the
Tribunal is modified as above. Thus, the total compensation would be
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C.M.A.No.2619 of 2021
Rs.5,64,502/-. The Insurance company is directed to deposit the award
amount as per the modified award, less the amount, if any, already
deposited, with interest at 6% to the credit of MACT.O.P.No.85 of 2018,
within a period of six (6) weeks from the date of receipt of a copy of the
judgment. On such deposit, the claimant is permitted to withdraw the same.
There shall be no order as to costs.
27.01.2022
Index:No
Internet:Yes
Speaking
pam
To
1.The Motor Accident Claims Tribunal,
Special Sub Court, Tiruvannamalai.
2.The Section Officer,
V.R.Section, High Court of Madras.
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C.M.A.No.2619 of 2021
R.SUBRAMANIAN, J.
pam
C.M.A.No.2619 of
27.01.2022
https://www.mhc.tn.gov.in/judis
