Madras High Court
S. Raja vs R. Munish on 6 July, 2022
C.M.A.No.1121 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.07.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.1121 of 2022
S. Raja ... Appellant
Vs.
1. R. Munish
2. IFFCO-TOKIO General Insurance Co. Ltd.,
Iffco Bhavan, 4th Floor,
No.128, Habibullah Road,
T. Nagar, Chennai 600 017 ... Respondents
Prayer: The Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 28.01.2022 made
in M.C.O.P.No.4932 of 2018 on the file of Motor Accident Claims Tribunal,
III Small Causes Court, Chennai.
1/12
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C.M.A.No.1121 of 2022
For Appellant : Mr. R. Nalliyappan
For Respondents : Mr. B. Sivakollapan
for R2
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI,J.)
This Civil Miscellaneous Appeal is filed by the appellant for
enhancement of compensation granted by the Tribunal in the award dated
28.01.2022 made in M.C.O.P.No.4932 of 2018 on the file of Motor Accident
Claims Tribunal, III Small Causes Court, Chennai.
2.The appellant filed the claim petition in M.C.O.P.No.4932 of 2018 on
the file of Motor Accident Claims Tribunal, III Small Causes Court, Chennai.
He filed the said claim petition claiming a sum of Rs.83,00,000/- as
compensation for the injuries sustained by him in the accident that took place
on 08.08.2018.
3.According to the appellant, on the date of accident, i.e., on
08.08.2018 at about 1.55 P.M., while he was riding the Motorcycle bearing
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C.M.A.No.1121 of 2022
Registration No.TN-11-Q-8968 along GST salai near Chrompet Saravana
Store signal from West to East direction, the driver of the car bearing
Registration No.TN07-BX-3783 coming from Pallavaram to Tambaram drove
the same in a rash and negligent manner without following the traffic rules
and regulations, dashed against the motorcycle and caused the accident. Due
to the accident, the appellant sustained grievous injuries and therefore, he
filed the above claim petition claiming compensation against the respondents.
4.The first respondent filed a counter statement denying the averments
made in the claim petition and stated that he had purchased the car along with
its turn to operate at prepaid taxi at Chennai Airport from one Sakthivel on
28.03.2014. He has further stated that the prepaid taxi was sold to
Mr.Ravichandran on 01.08.2016, who had taken physical possession of the
vehicle on the same day, i.e., on 01.08.2016 through sale agreement and
hence, the first respondent is not owner of the car on the date of the accident.
The first respondent has relinquished the ownership of the car as early as on
01.08.2016 and prayed for dismissal of the petition.
5.The 2nd respondent/Insurance Company filed counter statement
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C.M.A.No.1121 of 2022
denying the averments made in the claim petition and stated that the car was
not having valid fitness certificate at the time of accident. The 1st respondent
violated the terms and conditions of Insurance Policy and rules under Motor
Vehicles Act. The petitioner has to produce correct original bills to
substantiate his claim for medical expenses. The 2nd respondent denies the
age, avocation and income of the appellant. The 2nd respondent/ Insurance
Company is not liable to pay any compensation to the appellant. In any event,
the compensation claimed by the appellant is excessive and prayed for
dismissal of the claim petition.
6.Before the Tribunal, the appellant examined himself as P.W.1 and one
Mr.M.Sambath, was examined as P.W.2 and 14 documents were marked as
Ex.P1 to P14. The 2nd respondent/Insurance Company examined one of its
employee as RW1 and 6 documents were marked as Ex.R1 to Ex.R.6.
7.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, which was insured with the 2nd respondent /Insurance
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C.M.A.No.1121 of 2022
Company and directed the 2nd respondent/Insurance Company to pay a sum
of Rs.21,87,800/-, (being 90% of the award amount) , as compensation to the
appellant ( after deducting 10% contributory negligence) at the first instance
and recover the same from the first respondent.
8.Not being satisfied with the amounts awarded by the Tribunal, the
appellant has come out with this Appeal seeking enhancement of
compensation.
9. Though the learned counsel for the appellant raised grounds with
regard to 10% contributory negligence fixed on the part of the appellant,
restricted his arguments only with regard to enhancement of compensation.
10. The learned counsel appearing for the appellant submitted that the
appellant was aged 43 years at the time of accident, and he was doing
business in the name and style of Udayam Cool Bar at Pallavaram, Chennai
and was earning a sum of Rs.45,000/- per month. The Tribunal without
considering the same, fixed only a meagre sum of Rs.10,000/- per month as
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C.M.A.No.1121 of 2022
notional income of the appellant. Due to the injuries and amputation above
knee in his left leg, he could not continue his business as he was doing earlier
and claimed compensation for 100% disability. Without considering the
same, the Tribunal awarded compensation by fixing 80% disability, which is
not sustainable. The amounts awarded by the Tribunal under different heads
are very meagre and prayed for enhancement of compensation.
11. The learned counsel appearing for the 2nd respondent/Insurance
Company submitted that the appellant has not filed any document with regard
to avocation and income of the deceased. In the absence of any material with
regard to avocation and income of the deceased, the Tribunal rightly fixed a
sum of Rs.10,000/- per month as notional income of the appellant, which is
not meagre. The Tribunal, after considering all the materials on record, has
awarded compensation, which is not meagre. The appellants have not made
out any case for enhancement of compensation and prayed for dismissal of the
appeal.
12.Heard the learned counsel appearing for the appellant as well as the
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learned counsel appearing for the 2nd respondent/Transport Corporation and
perused the entire materials on record.
13. The learned counsel appearing for the appellant contended that the
appellant was doing business in the name and style of Udayam Cool Bar at
Pallavaram, Chennai and was earning a sum of Rs.45,000/- per month before
the accident. Due to the injuries and amputation above knee in his left leg, he
could not do the work, especially, he could not continue his business as he
was doing earlier and claimed compensation for 100% disability. From the
award of the Tribunal, it is seen that the appellant was examined by
Dr.R.Tamilvanan of Government Hospital, Tambaram @ Chrompet, Chennai,
who issued Disability Certificate stating that appellant suffered 80%
permanent disability for part of body locomotor disability (L) LL. The
Tribunal, considering the Disability Certificate, which was marked as Ex.P.6,
accepted the disability and granted compensation by adopting the multiplier
method. In Ex.P.6, Disability Certificate, it has not been mentioned that
appellant is totally disabled and cannot do any work. The appellant has not
examined any Doctor to substantiate his contention that his disability is 100%
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C.M.A.No.1121 of 2022
and entitled to compensation for 100% disability. Further, there is no
evidence to show that the appellant lost his entire earning capacity and
suffered functional disability and also not proved that he is totally disabled
and cannot do any work. From the averments in the claim petition, it is seen
that appellant is doing business in the name and style of Udayam Cool Bar at
Pallavaram. The appellant can continue the said business even after
amputation. Hence, he is not entitled for 100% disability.
14. The next contention of the counsel for the appellant that the
appellant was earning a sum of Rs.45,000/- per month, but the Tribunal fixed
the meagre sum of Rs.10,000/- is concerned, the appellant has not filed any
document to prove the income of the appellant. In the absence of any
materials, the Tribunal fixed a sum of Rs.10,000/- per month as notional
income of the appellant. The accident is of the year 2018. The income so fixed
is meagre. Considering the age and the date of accident, we are of the opinion
that it would be just and proper to fix a sum of Rs.13,000/- per month as
notional income of the appellant. The appellant was aged about 43 years at
the time of accident and hence, the Tribunal granted 25% enhancement
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C.M.A.No.1121 of 2022
towards future prospects. Thus, by fixing Rs.13,000/- as monthly income, the
loss of earning capacity is modified to Rs.21,84,000/- (Rs.13,000/- + 3250
(13,000 x 25%) x 12 x 14 x 80/100 ).
15. The appellant has taken treatment as in-patient for 13 days and
marked the discharge summary as Ex.P2. Somebody would have attended the
appellant during his treatment period and also after discharge from the
hospital. Hence, the amount awarded by the Tribunal towards attender
charges is meagre and we enhance the same to Rs.30,000/-. Due to the
injuries, surgeries and the amputation, the appellant would have spent
considerable amount for nutritious food. The appellant would also have
spent considerable amount towards transport. Considering the same, the
amount awarded by the Tribunal towards Extra nourishment and
Transportation is hereby enhanced to Rs.40,000/-. The appellant is entitled to
a sum of Rs.3,000/- towards damage to clothes. The amounts awarded by the
Tribunal under all other heads are just and reasonable and hence, the same
are hereby confirmed. Thus, the compensation awarded by the Tribunal is
modified as follows:
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C.M.A.No.1121 of 2022
S.N Description Amount Amount Award
o awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of Earning 16,80,000 21,84,000 Enhanced
due to disability
2. Attender charges 4,550 30,000 Enhanced
3. Loss of amenities 50,000 50,000 Confirmed
4. Towards Pain and 50,000 50,000 Confirmed
Sufferings
5. Towards Extra 20,000 40,000 Enhanced
Nourishment &
Transportation
6. Damages to clothes 1,000 3,000 Enhanced
7. Medical Bills 6,25,333 6,25,333 Confirmed
Total 24,30,883 29,82,333 Enhanced by
Rs.5,51,450/-
90% of the 21,87,794.70 26,84,099.70 enhanced by
compensation rounded off to Rounded off Rs.4,96,300/-
21,87,800 to 26,84,100
(10%contributory
negligence fixed
on the appellant )
16.In the result, the Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.21,87,800/- is hereby
enhanced to Rs.26,84,100/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. The 2nd
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C.M.A.No.1121 of 2022
respondent/Insurance Company is 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 six weeks from the date of receipt
of a copy of this judgment at the first instance and recover the same from the
first respondent, owner of the vehicle. On such deposit, the appellant is
permitted to withdraw the entire award amount now determined by this Court
along with interest and costs, less the amount if any, already withdrawn. No
costs.
(V.M.V., J) (S.S., J)
06.07.2022
Index : Yes / No
mrp
To
1. III Judge,
Motor Accident Claims Tribunal
Small Causes Court, Chennai.
2.The Section Officer
VR Section
High Court, Madras.
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C.M.A.No.1121 of 2022
V.M.VELUMANI,J.
and
S.SOUNTHAR,J.
mrp
C.M.A.No.1121 of 2021
06.07.2022
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