Madras High Court

K.Prasanna Kumar vs M.Joseph on 16 September, 2022

                                                                             C.M.A.No.3070 of 2014

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     Dated: 16.09.2022

                                                         CORAM

                                       THE HON'BLE Ms.JUSTICE P.T.ASHA

                                                C.M.A.No.3070 of 2014

                     K.Prasanna Kumar                                        ... Appellant

                                                            Vs

                     1.M.Joseph

                     2.United India Insurance Co. Ltd.,
                     No.134, Greams Road,
                     Chennai – 6.                                            ... Respondents

                     PRAYER : This Civil Miscellaneous Appeal is filed under Section 173 of
                     Motor Vehicles Act, 1988, against the judgment and decree dated
                     17.07.2014 and made in M.A.C.T.O.P.No.565 of 2011 on the file of the
                     Motor Accident Claims Tribunal and Special Judge I, Chennai.


                                     For Appellant      : M/s.A.Subadra
                                     For R1             : Ex-parte
                                     For R2             : Mr.C.Paranthaman




                     1/10

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                                                                                      C.M.A.No.3070 of 2014

                                                        JUDGMENT

The claimant is before this Court seeking an enhancement of the

award granted by the Motor Accident Claims Tribunal, Special Sub

Judge, No.1, Chennai.

2. The brief facts are as follows:-

(i) The petitioner, who is working as a Manager in New Tech

Solution Company was travelling as a pillion rider in the motorcycle

bearing Registration No.TN-03-C-7998 on 29.07.2010 at about 19.30

hrs. The rider of the motorcycle in which the petitioner was travelling was

driving the same in a very rash and negligent manner and at a dangerous

speed, when the vehicle reached the Maduravoyal Tollgate, all of a

sudden, the driver applied the brake, as a result, the motorcycle has

capsized, by reason of which, the petitioner has sustained grievous

injuries.

(ii) It is his case that he is earning a monthly income of Rs.20,000/-

and therefore, he had claimed a compensation of Rs.20,00,000/- stating

that the accident had occurred only on account of the negligence on the

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part of the driver of the first respondent's vehicle, in which, the petitioner

was travelling, who also happened to be the owner of the vehicle. The

second respondent is the Company with which the vehicle is insured.

3. The first respondent remained ex-parte before the Tribunal and

the second respondent-Insurance Company that had contested the case.

4.The second respondent-Insurance Company had denied the

accident and the fact that the accident had occurred on account of the

rash and negligent driving by the first respondent. They had also pointed

out that the complaint regarding the accident had been lodged only with a

delay. The Insurance Company had further contended that the

compensation claimed was excessive and they had also put the first

respondent to strict proof that he was in possession of valid driving

license and the vehicle was properly insured.

5.The Tribunal below on considering the evidence had held that the

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rash and negligent driving of the first respondent had resulted in the

accident and consequently mulcted the responsibility on the second

respondent as the Insurer of the first respondent's vehicle.

6. The Tribunal had ultimately awarded a compensation of sum of

Rs.7,94,000/-. Aggrieved by the same, the appellant is before this Court.

7.M/s.Subadra, learned counsel appearing on behalf of the

appellant would submit that the appellant had been an inpatient for three

spells. The first spell was from 29.07.2010 (date of accident) till

06.08.2010. The second hospitalization was from 07.08.2010 till

01.09.2010 and the final hospitalization was from 22.10.2010 till

25.10.2010. In all, according to her, the appellant had been hospitalized

for a period of 37 days.

8.She would further submit that he had undergone emergency

diagnostic laparotomy with splenecktomy and also wound debridement

with UTPT left tibia. The appellant had suffered intensive pain in his

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abdomen and left arm and left leg. She would also submit that P.W.2,

doctor had assessed the disability regarding the abdomen and clavical

fracture at 80%. The doctor has opined that the appellant suffers from

indigestion and loss of appetite and further suffers stillness of the left

shoulder elbow and wrist and that he had found difficult to lift or hold an

object as also to climb steps and to squat. P.W.3, doctor has assessed the

disability caused to the liver at 10%.

9.She would therefore, submit that the Tribunal has not taken into

fact that the disability is of permanent nature and erred in calculating

compensation by adopting the percentage method. She would also submit

that the appellant had to resign his job, which is evidenced by Ex.P.14,

letter said to be issued by the Company stating that the appellant has

resigned on 01.07.2011. Therefore, she would submit that the Tribunal

has committed a grave error in calculating the compensation under the

head of disability under the percentage method.

10.Further, she would contend that the future medical expenses of

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a sum of Rs.1,00,000/- has not been granted though Ex.P12 has been

filed showing the approximate cost at Rs.1,50,000/-.

11.Per contra, Mr.C.Paranthaman, learned counsel appearing on

behalf of the second respondent/Insurance Company would submit that

the appellant has not sustained any loss of earning capacity or that his

normal functioning has been affected. He would submit that the appellant

after stepping down from his earlier office has joined the services of other

company at a higher salary. Therefore, there is no loss of income and the

Tribunal was justified in calculating the loss of income on account of the

disability by adopting percentage method. He would submit that a

reasonable award has been passed.

12.Heard the learned counsels for the parties and perused the

materials available on record.

13.Admittedly, the appellant has not suffered a serious loss of

https://www.mhc.tn.gov.in/judis C.M.A.No.3070 of 2014

earning since post the accident, he has taken up employment in a new

company at a higher salary. The appellant had been in and out of the

hospital on three occasions and had also undergone surgery. The

appellant has been assessed a disability of 80% by the Ortho Doctor and

10% by the General Physician. The Tribunal has taken 75% as a

disability and adopting a sum of Rs.2,000/- per percentage granted a

compensation of Rs.1,50,000/- under the head of compensation for

disability. The amount per percentage can be enhanced to a sum of

Rs.3,000/-. Therefore, the amount under the head of loss of income on

account of disability would be a sum of Rs.2,25,000/- (Rs.3,000/- x 75).

Under Ex.P12, the very same doctor who had earlier attended to the

appellant has given an estimate of Rs.1,50,000/- for future medical

expenses. The Tribunal has accepted the document, however, granted a

compensation of Rs.50,000/-, the same has necessarily to be enhanced.

Therefore, the modified compensation is as follows :-






https://www.mhc.tn.gov.in/judis
                                                                                       C.M.A.No.3070 of 2014


                                                  Heads                  Awarded by Awarded
                                                                             the      by this
                                                                          Tribunal    Court
                                                                         (Amount in (Amount in
                                                                            Rs.)       Rs.)
                                    Loss      of    income      during        27,000        27,000
                                    hospitalization
                                    Transport to Hospital                      5,000         5,000
                                    Extra nourishment                         10,000        10,000
                                    Medical treatment                       4,92,000      4,92,000
                                    Pain and sufferings                       50,000        50,000
                                    Compensation for continuing and         1,60,000      2,40,000
                                    permanent disability
                                                                                       (enhanced)
                                    Future medical expenses                   50,000      1,50,000
                                                                                       (enhanced)
                                                                 Total      7,94,000      9,74,000

14.The Civil Miscellaneous Appeal is allowed and the award of the

Tribunal is modified, enhancing the compensation amount from

Rs.7,94,000/- to Rs.9,74,000/-. The second respondent-Insurance

Company is directed to deposit the said amount to the credit of

M.C.O.P.No.565 of 2011 along with interest at the rate of 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,

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within a period of six weeks from the date of receipt of a copy of this

judgment. On such deposit being made, the appellant/claimant is

permitted to withdraw the award amount along with accrued interest and

costs as awarded by the Tribunal, less, the amount, if any already