Madras High Court

Mariya Amulraj vs Poornima on 8 June, 2022

                                                                                             CMA.No.2473 of 2017


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 08.06.2022

                                                               CORAM

                                       THE HONOURABLE MS. JUSTICE P.T.ASHA

                                                    CMA.No.2473 of 2017

                     Mariya Amulraj                              ... Petitioner/ Appellant
                                                                  Vs


                     1. Poornima
                     2. The Reliance General Insurance Co. Ltd.,
                        Rai's Tower,
                        Plot No.2054, 2nd Avenue,
                        2nd Floor,
                        Next to Senthil Nursing Home,
                        Anna Nagar,
                        Chennai - 600040.            ... Respondents/ Respondents

                     PRAYER: Appeal filed under Section 173 of the Motor Vehicles Act,
                     1988,        to   enhance    the    award     dated    04.02.2015       and   made      in
                     M.A.C.T.O.P.No.7804/2013 on the file of the Motor Accident Claims
                     Tribunal, III Court of Small Causes, Chennai.


                                       For Petitioners     :       M/s.Subadara
                                       For Respondents     :       M/s.C.Bhuvana Sundari [R.2]
                                                                   No appearance [R.1]



                     1/8
https://www.mhc.tn.gov.in/judis
                                                                                  CMA.No.2473 of 2017


                                                       JUDGEMENT

The petitioner has filed the above Civil Miscellaneous Appeal

seeking an enhancement of the award granted in MCOP No.7804 of 2013

on the file of the Motor Accident Claims Tribunal (III Court of Small

Causes) Chennai. The brief facts preceding the filing of the appeal are as

follows:-

2. The petitioner who is aged about 43 years and carrying on

business of running a general merchant store had sustained injuries in the

road accident on 27.10.2013. It is his case that on the said date when he was

driving his Hero Honda Motor Cycle bearing Registration No.TN-20-K-

1465, keeping to the extreme left side of the road, the Indica car belonging

to the 1st respondent bearing Registration No.TN-20-BJ-8727, driven by its

driver in a rash and negligent manner hit the motor cycle of the petitioner,

as a result of which he had sustained grievous injuries. He was admitted to

the Saveetha Medical College Hospital, where he had taken treatment as an

inpatient for over 12 days. The petitioner claimed a compensation of

Rs.12,00,000/-. The 1st respondent/owner of the vehicle had entered

appearance but had not filed his counter and was ultimately set ex parte on

https://www.mhc.tn.gov.in/judis CMA.No.2473 of 2017

25.03.2015.

3. The insurance company who was arrayed as the 2nd respondent had

filed their counter inter alia denying the allegations contained in the claim

petition and putting the petitioner to strict proof of the R.C.Book, Driving

License, Valid Insurance Policy and Badge etc., in respect of the 1st

respondent vehicle. The insurance company sought to have the petition

dismissed. Before the Tribunal the petitioner had examined PW.2 (Doctor)

who had issued Ex.P.8 (Disability Certificate). The doctor had assessed the

disability at 35%. The Tribunal below, however, reduced the percentage of

disability to 30% and ultimately had awarded a sum of Rs.1,84,699/-

together with interest at 7.5%.

4. Aggrieved by the fact that the Tribunal below had not adopted a

multiplier method and on the contrary had adopted the percentage method to

arrive at a compensation for his disability, the learned counsel for the

appellant M/s. Subadara would contend that a perusal of Ex.P.3 (discharge

summary) and Ex.P.8 (disability certificate) would clearly show that the

petitioner had sustained grievous injuries which has affected his future

https://www.mhc.tn.gov.in/judis CMA.No.2473 of 2017

prospects. The learned counsel would rely upon the evidence of P.W.2 and

would contend that the P.W.2 being an expert the Tribunal below ought to

have accepted the assessment given by him and not refused the same

without assigning reasons. She would further argue that the amounts

granted under the various heads were also on the lower side. She would

therefore seeks to have the award enhanced.

5. Per contra, M/s. C.Bhuvana Sundari, learned counsel appearing on

behalf of the insurance company would submit that the injuries sustained by

the petitioner has not acted as a fetter to his earning capacity. The petitioner

admittedly was running a general provision store which continues to date

and this would clearly establish that the injuries has not impacted the

petitioner’s future capacity to earn money. Therefore, the award does not

requires any re-consideration.

6. Heard the learned counsel on both sides.

7. Admittedly, the petitioner had sustained injuries in a road accident

on 27.10.2013. He has not been out of employment at any point of time

https://www.mhc.tn.gov.in/judis CMA.No.2473 of 2017

since he was self-employed and running a general provision store. Neither

the injury nor the disability has had an adverse impact on his business,

therefore, the disability has not reduced the petitioner’s earning capacity.

The disability has been assessed at 35% by the doctor who was examined as

P.W.2. The doctor in question is not an Orthopedician and his credential

given at the time of adducing evidence indicates that he is a Neurosurgeon.

Therefore, the correctness of the certificate becomes doubtful. However, the

2nd respondent/insurance company has not filed any appeal against the

award. Therefore, the assessment done by P.W.2 can be taken into account.

8. Considering the fact that the disability has not hindered the

avocation of the petitioner or reduced his earning capacity, the award given

under the head of compensation for functional disability is correct.

Admittedly, the petitioner had been in the hospital for 12 days during which

time he would have required an attendant to be alongside him and further it

is also submitted that the petitioner has received only a sum of Rs.10,000/-

towards extra nourishment. Therefore, the amount under the head of

attender charges is enhanced to a sum of Rs.7,500/- from Rs.2,520/- and for

extra nourishment enhanced to a sum of Rs.15,000/- from Rs.10,000/-.

https://www.mhc.tn.gov.in/judis CMA.No.2473 of 2017

Considering the fact that the petitioner had been an inpatient for over 12

days and undergone surgery, a further sum of Rs.5,000/- has to be added

under the head of pain and sufferings. Therefore, the reworked

compensation would be as follows:

S.No Description Amount Amount Award confirmed
awarded by awarded by or enhanced or
Tribunal this Court granted or reduced
(Rs) (Rs)
1. Loss of Income 15,120/- 15,120/- Confirmed
2. Attender Charges 2,520/- 7,500/- Enhanced
3. Transport to Hospital 10,000/- 10,000/- Confirmed
4. Extra Nourishment 10,000/- 15,000/- Enhanced
5. Damage to clothing 2,000/- 2,000/- Confirmed
6. Medical Expenses 20,059/- 20,059/- Confirmed
7. Damages for mental shock 10,000/- 10,000 Confirmed
and agony
8. Pain and sufferings 25,000/- 30,000/- Enhanced
9. Compensation for 90,000/- 90,000/- Confirmed
functional Disability
TOTAL 1,84,699/- 1,99,679/- Enhanced by
Rs.14,980/-

9. Therefore, the Civil Miscellaneous Appeal is allowed and the

award of the Tribunal be and hereby is enhanced to a sum of Rs.1,99,679/-

from Rs.1,84,699/- together with interest @ 7.5 % per annum from the date

of petition till the date of deposit. In all other aspects the award of the

Tribunal is confirmed. The 2nd respondent/ insurance company is directed

https://www.mhc.tn.gov.in/judis CMA.No.2473 of 2017

to deposit the said amount (Rs.1,99,679/-) to the credit of M.C.O.P.No.7804

of 2013 on the file of the Motor Accident Claims Tribunal, (III Court of

Small Causes), Chennai together with interest @ 7.5% per annum from the

date of claim petition till the date of deposit and costs as awarded by the

Tribunal, less, the amount, if any already deposited, within a period of six

weeks from the date of receipt of a copy of this Judgment. On such deposit