Madras High Court

N. Kameswari vs S. Venlatesam on 3 March, 2022

C.M.A. No.2186 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 03.03.2022

CORAM

THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

C.M.A. No.2186 of 2018

N. Kameswari .... Appellant
versus
1. S. Venlatesam
2. The HDFE ERGO General Insurance Co. Ltd.,
New No. 528, Old No. 559, Anna Salai,
Teynampet,
Chennai - 18. ... Respondents

Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 to set aside the award passed in MCOP No.1059 of 2012
dated 11.04.2016, on the file of the V - Small Causes Court Chennai/Motor
Accident Claims Tribunal, Chennai, in so far as the same is against the
claim of the appellant and award full and just compensation.

For Appellant : M/s. Anand and Suryas
For Respondents : M/s. J. Micheal Visvasam
for R2

1/10
https://www.mhc.tn.gov.in/judis
C.M.A. No.2186 of 2018

JUDGMENT

The claimant in M.C.O.P. No. 1059 of 2012 on the file of the V-Small

Causes Court Chennai/Motor Accident Claims Tribunal is the appellant

herein.

Brief facts of the claim petition:

2. When the appellant was standing on the left side of the road

opposite to BSNL Micro Building Office on 27.12.2011 at around 2:45 pm,

a car bearing Registration No.TN-04-X-3749 came from P and T Quarters

Road. According to her, the said car was driven in a rash and negligent

manner and hit her, as a result of which she sustained injuries in her right

leg and she was taken to Government Stanley hospital, Chennai for

treatment. It is stated that the treatment continued for 48 days. She was

aged 32 years at the time of accident and she claimed that she was working

as a lady security guard and was earning Rs.9000/- per month. However, no

document for salary had been produced to substantiate the aforementioned

statement. The second respondent insurance company/insurer of the

offending car, who was jointly sued, had contested the claim petition.

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3. The judgment was delivered on 11.04.2016, granting compensation

of Rs,2,33,000/-. Dissatisfied with such quantum, the appellant had filed

the present appeal.

4. Heard the learned counsel for the appellant and learned counsel for

the second respondent.

5. The claim petition had been filed under Section 166 of the Motor

Vehicles Act 1988 and therefore burden was transferred to the claimant to

establish negligence on the part of the driver of the vehicle bearing

Registration No.TN-04-X-3749, and that was the first issue which was

framed by the Tribunal for consideration and after examining the relevant

records particularly, Ex.P.4 , copy of F.I.R and Ex.P.5, Rough Sketch of the

scene of occurrence, the tribunal came to the conclusion that accident

occurred only due to the rash and negligent manner in which the car was

driven. Since the insurance company is not questioning in appeal that

particular finding, let me also confirm that finding of the Tribunal.

Thereafter, the tribunal proceeded to determine the compensation that could

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be granted. The Tribunal considered the claim under 6 heads, and the first

of which was transportation, nourishing food and miscellaneous expenses

and under this head, determined that a sum of Rs. 15,000/- could be

granted.. Not much issue had been raised over grant of such compensation

and I would also not interfere with that aspect. Then, the Tribunal granted

a sum of Rs. 12,000/- as attender charges, taking into consideration that she

was hospitalized for 48 days. This would indicate that the Tribunal had

calculated at a reasonable sum of Rs. 250 per day towards attender charges,

having been admitted in a Government hospital, I also hold that grant of Rs.

12,000/- at Rs.250 per day was a reasonable amount.

6. The Tribunal also determined the notional income at Rs. 6500 per

month. The learned counsel for the appellant however took objection for

that particular assessment and stated that a sum of Rs,10,000/- should be

determined as the monthly income. However, this was objected to by the

learned counsel for the second respondent/insurance company, who pointed

out that if she was employed as a security guard in a named security agency,

to establish that particular fact of employment, it would have been possible

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for her to produce relevant documents and in the absence of production of

such documents, the determination of the monthly income at Rs.6500/- was

actually reasonable. Even before this court, no documents have been placed

as additional documents to substantiate the earning or the employment of

the appellant. Therefore, I would also not go into that particular aspect and

hold that grant of notional income at Rs.6500 is reasonable. Thus, the

amount of Rs. 26,000/- towards the loss of earning during the period of

treatment, as granted by the Tribunal, is confirmed.

7. During the course of trial, the claimant examined the Medical

Record Technician from the Government Stanley hospital as P.W.2 to

produce documents relating to the treatment particularly the case sheet and

other documents towards the treatment for the injury suffered by the

claimant. They also examined Dr. Mathiazhagan as P.W.3 who issued the

disability certificate Ex.P.10, and it is claimed by the learned counsel for the

appellant that he is an Orthopedic Surgeon and not what is called a stock

witness who normally assesses disability of any claimant and, who is

produced as a witness practically in all the tribunals. It is claimed by the

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learned counsel for the appellant that P.W.3. is a specialist in this field.

Having examined the appellant he had assessed the disability at 50 per cent.

But, at the same instance, the tribunal had proceeded to determine, the

compensation to be granted under the head disability at Rs. 3000/- per

percentage of permanent disability with 30 percentage of disability. This

method had been objected to by the learned counsel for the appellant, who

pleaded that a multiplier method may be adopted.

8. Let me therefore interfere with that particular calculation. At the

rate of Rs.6500/- per month, for one year the income comes to Rs.78000/-.

If the reasonable multiplier is fixed at 16, since her age was 32 years at the

time of accident, then the amount with a multiplier of 16 comes to

Rs.12,48,000/- and calculating 30 % disability out of it, the net amount

towards loss of income would come to Rs.3,74,400/-. The Tribunal had also

granted a sum of Rs.40,000/- towards loss of amenities, which cannot be

granted.

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9. In view of the above calculation, the compensation now granted

would be as follows;

                                          Heads                 Amount awarded       Amount awarded
                                                                 by the Tribunal      by this Court
                                                                      (Rs.)               (Rs.)
                           30% disability - Loss of                       90,000/-            3,74,000/-
                           income

                           Pain, suffering & Trauma                       50,000/-              50,000/-
                           Loss of amenities                              40,000/-                 -------
                           Loss of earning during the
                           period                                         26,000/-              26,000/-
                           Transportation        and    extra
                           nourishment                                    15,000/-              15,000/-
                           Attender charges                               12,000/-              12,000/-
                           Total                                        2,33,000/-            4,77,000/-

10. Thus, the enhanced amount awarded by this court as enhanced

compensation is Rs.2,44,400/-

11. In the result, the appeal filed by the appellant / claimant, stands

allowed by enhancing the compensation from Rs.2,33,000/- to Rs.4,77,000/-

as indicated above. No costs.

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12. The second respondent / Insurance Company is directed to

deposit the enhanced award amount of Rs, 2,44,400/- as assessed by this

Court together with interest at 7.5% p.a. from the date of claim petition viz.

1.03.2012 till the date of deposit to the credit of MCOP No.1059 of 2012

on the file of V Judge, Court of Small Causes, Motor Accident Claims

Tribunal at Chennai, within a period of eight weeks from the date of receipt