Madras High Court
D.Subramani vs Raji on 20 January, 2022
C.M.A.No.3252 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.3252 of 2014
D.Subramani .. Appellant
Vs.
1.Raji
(R1 remained exparte before Tribunal)
2.Sri Ram General Insurance Company Limited,
City Centre Complex, 2nd floor,
No.66, Thirumalai Pillai Road,
T.Nagar,
Chennai – 600 017. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated 15.02.2013
made in M.C.O.P.No.5637 of 2011 on the file of the Motor Accident Claims
Tribunal, V Small Causes Court, Chennai.
For Appellant : Mrs.A.Subadra
for Ms.M.Malar
For R2 : No appearance
1/10
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C.M.A.No.3252 of 2014
JUDGMENT
(The matter is heard through “Video Conferencing”.)
This Civil Miscellaneous Appeal has been filed for enhancement of
compensation granted by the Tribunal in the award dated 15.02.2013 made in
M.C.O.P.No.5637 of 2011 on the file of the Motor Accident Claims Tribunal,
V Small Causes Court, Chennai.
2.The appellant is the claimant in M.C.O.P.No.5637 of 2011 on the file
of the Motor Accident Claims Tribunal, V Small Causes Court, Chennai. He
filed the above said claim petition, claiming a sum of Rs.3,00,000/- as
compensation for the injuries sustained by him in the accident that took place
on 24.11.2011.
3.The Tribunal considering the pleadings, oral and documentary
evidence, fixed 80% negligence on the part of the driver of the auto belonging
to 1st respondent, 20% negligence on the part of the appellant, awarded a sum
of Rs.1,28,299/- as compensation to the appellant and directed the 2nd
respondent-Insurance Company to pay a sum of Rs.1,02,700/- being 80% of
the award amount as compensation to the appellant.
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C.M.A.No.3252 of 2014
4.Not being satisfied with the amounts awarded by the Tribunal, the
appellant has come out with the present appeal seeking enhancement of
compensation.
5.The learned counsel appearing for the appellant contended that the
appellant sustained head injury, left temporal bone fracture, right temporo
parietal acute SAH, fracture of left temporal bone, bleeding in ear, savoir head
injuries, laceration and multiple grievous injuries in the accident. He has taken
treatment at Sooriya Hospital, Saligramam, Chennai as inpatient for five days
from 24.11.2011 to 28.11.2011. P.W.2/Doctor examined the appellant and
certified that the appellant suffered 50% disability and deposed that due to
head injury, the appellant is experiencing headache, giddiness, shivering of
limbs, loss of memory and bleed from left ear and issued Ex.P9/disability
certificate to that effect. The Tribunal erroneously reduced the percentage of
disability from 50% to 30% and granted compensation only for 30% disability.
The Tribunal ought to have fixed the disability of the appellant at 50% as
assessed by P.W.2/Doctor and granted compensation for 50% disability. Due
to the injuries sustained by the appellant in the accident, he could not do any
work as he was doing earlier and hence, the Tribunal ought to have adopted
multiplier method and awarded compensation for 100% loss of earning
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C.M.A.No.3252 of 2014
capacity. The appellant was aged 46 years, working as Setting Carpenter at
A.V.M.Studio, Chennai and was earning a sum of Rs.8,000/- per month and
the compensation awarded by the Tribunal towards loss of income during
treatment period is meagre. The Tribunal has not awarded any amounts
towards attendant charges, future medical expenses and loss of amenities. The
amounts awarded by the Tribunal towards pain and sufferings, extra
nourishment and damages to clothes are meagre and prayed for enhancement of
compensation.
6.The 1st respondent remained exparte before the Tribunal and hence,
notice to 1st respondent has been dispensed with.
7.Though the 2nd respondent-Insurance Company entered appearance
through counsel, today when the matter is taken up for hearing, there is no
representation for them.
8.Heard the learned counsel appearing for the appellant and perused the
entire materials on record.
9.From the materials available on record, it is seen that it is the case of
the appellant that in the accident he sustained head injury, left temporal bone
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C.M.A.No.3252 of 2014
fracture, right temporo parietal acute SAH, fracture of left temporal bone,
bleeding in ear, savoir head injuries, laceration and multiple grievous injuries in
the accident. To prove the nature of injuries and disability suffered by him, the
appellant examined himself as P.W.1 and examined Dr.J.R.R.Thiagarajan as
P.W.2. P.W.2/Doctor examined the appellant and certified that appellant
suffered 50% disability and deposed that due to head injury, the appellant is
experiencing headache, giddiness, shivering of limbs, loss of memory for which
he assessed 30% disability and assessed 20% disability for bleeding from left
ear, totalling 50% disability. The Tribunal reduced the percentage of disability
from 50% to 30% on the ground that disability assessed by P.W.2/Doctor is
based on the contentions of appellant only. The reason given by the Tribunal
for fixing the percentage of disability of the appellant at 30% is proper and
valid. The accident is of the year 2011 and a sum of Rs.2,000/- per percentage
of disability awarded by the Tribunal is meagre. Considering the year of
accident, the appellant is entitled to a sum of Rs.3,000/- per percentage of
disability. Thus, the compensation awarded by the Tribunal towards disability
is enhanced to Rs.90,000/- (Rs.3,000/- X 30% of disability). The appellant has
not proved that he suffered functional disability and lost his earning capacity.
Hence, he is not entitled to any compensation towards loss of earning capacity
by adopting multiplier method.
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C.M.A.No.3252 of 2014
10.It is the contention of the appellant that at the time of accident, he
was aged 46 years, working as Setting Carpenter at A.V.M.Studio, Chennai
and was earning a sum of Rs.8,000/- per month The appellant has not produced
any documentary evidence to prove his avocation and income. In the absence
of any evidence with regard to avocation and income, the Tribunal considering
the year of accident, age and nature of work done by the appellant awarded a
sum of Rs.15,000/- as compensation towards loss of income. The accident
occurred in the year 2011. Considering the year of accident, age and nature of
work done by the appellant, a sum of Rs.8,000/- per month is fixed as notional
income of the appellant. Due to the injuries sustained by the appellant in the
accident, he would not have attended his work atleast for a period of five
months. Thus, the compensation awarded by the Tribunal towards loss of
income is enhanced to Rs.40,000/- (Rs.8,000/- X 5 months). The appellant has
taken treatment at Sooriya Hospital, Saligramam, Chennai as inpatient for five
days from 24.11.2011 to 28.11.2011. The Tribunal has not awarded any
amount towards attendant charges and loss of amenities. Considering the nature
of injuries and period of treatment taken by the appellant, he is entitled to a
sum of Rs.10,000/- each towards attendant charges and loss of amenities.
Considering the nature of injuries, disability and period of treatment taken by
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C.M.A.No.3252 of 2014
the appellant, the amounts awarded by the Tribunal towards damages to clothes
and transportation are meagre and hence, the same are hereby enhanced to
Rs.1,000/- and Rs.7,500/- respectively. The appellant has not produced any
medical records to show that he requires further medical treatment. Hence, he
is not entitled to any amount towards future medical expenses. The amounts
awarded by the Tribunal under other heads are just and reasonable and hence,
the same are hereby confirmed. Thus, the compensation awarded by the
Tribunal is modified as follows:
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Disability 54,000/- 90,000/- Enhanced
2. Pain and sufferings 15,000/- 15,000/- Confirmed
3. Medical expenses 33,799/- 33,799/- Confirmed
4. Transportation 5,000/- 7,500/- Enhanced
5. Extra nourishment 5,000/- 5,000/- Confirmed
6. Loss of Income 15,000/- 40,000/- Enhanced
7. Damages to clothes 500/- 1,000/- Enhanced
8. Attendant charges - 10,000/- Granted
9. Loss of amenities - 10,000/- Granted
Total Rs.1,28,299/- Rs.2,12,299/- Enhanced by
Rs.84,000/-
80% of the award Rs.1,02,639/- Rs.1,69,839/- (Rs.2,12,299/-
amount rounded off to rounded off to -
Rs.1,02,700/- Rs.1,69,700/- Rs.1,28,299/-)
11.In the result, this Civil Miscellaneous Appeal is partly allowed and
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C.M.A.No.3252 of 2014
the total compensation awarded by the Tribunal at Rs.1,28,299/- is hereby
enhanced to Rs.2,12,299/- together with interest at the rate of 7.5% per annum
from the date of petition till the date of deposit. The 2nd respondent-Insurance
Company is directed to deposit 80% of the award amount, (i.e., Rs.1,69,700/-)
now determined by this Court, along with interest and costs, less the amount
already deposited, if any, within a period of six weeks from the date of receipt
of a copy of this judgment, to the credit of M.C.O.P.No.5637 of 2011 on the
file of the Motor Accident Claims Tribunal, V Small Causes Court, Chennai.
On such deposit, the 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. No
costs.
20.01.2022
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Index : Yes / No
Internet : Yes / No
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C.M.A.No.3252 of 2014
To
1.The learned V Judge,
Motor Accident Claims Tribunal,
Small Causes Court,
Chennai.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
https://www.mhc.tn.gov.in/judis
C.M.A.No.3252 of 2014
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C.M.A.No.3252 of 2014
20.01.2022
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