Madras High Court

S.Nandakumar vs M/S.South India Surgical Co. on 3 April, 2023

                                                                                CMA.No.1130 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED :03.04.2023

                                                        CORAM

                                  THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

                                                CMA.No.1130 of 2019

                   S.Nandakumar                                                     .. Appellant
                                                      Vs.
                   1.M/s.South India Surgical Co., Ltd.,
                     No.850, Anna Salai,
                     Chennai 600 002.
                    (R1 set ex parte in the trial court)

                   2. United India Insurance Company Ltd.,
                      No.158, Purasawalkam High Road,
                     Chennai 600007
                     Serviced at United India Insurance Company Ltd.,
                     Motor Third Party Claims HUB
                     Silinghi Buildings, No.134, Greams Road,
                     Chennai 600 006.                             .. Respondents

                   Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                   Vehicles Act 1988 against the Judgment and Decree dated 05.02.2016 made
                   in M.A.C.T.O.P.No.4085 of 2011 on the file of the Motor Accidents Claims
                   Tribunal(Special Sub Court I to deal with MCOP cases) Chennai.
                                    For Appellant           : Mr.M.Swamikkannu
                                    For Respondents         : Mr.D.Bhaskaran for R2
                                                             Set exparte - R1
                                                    JUDGMENT

This appeal has been filed by the appellant/claimant seeking https://www.mhc.tn.gov.in/judis

CMA.No.1130 of 2019

enhancement of compensation under the impugned award dated 05.02.2016

made in M.A.C.T.O.P.No.4085 of 2011 on the file of the Motor Accidents

Claims Tribunal (Special Sub Court I to deal with MCOP cases) Chennai.

2. The case of the claimant / appellant is that on 03.09.2011 at about

11.00 hours, while the appellant was riding his motor cycle bearing

Regn.No.TN-09-BH-2752 from North to South direction along with pillion

rider at Anna Salai-Canara Bank junction, a car bearing Regn.No.TN-01-

AF-6500, came from the opposite direction in a rash and negligent manner

in high speed by ignoring the signal and dashed against the motor cycle.

Due to the said impact, the appellant and the pillion rider sustained grievous

injuries. Claiming that the driver of the car alone is solely responsible for

the accident, the appellant/claimant has filed a claim petition claiming a

sum of Rs.27,00,000/-

3. The Tribunal, based on the oral and documentary evidences has

observed that the driver of the first respondent is responsible for the

accident and fastened the liability on the second respondent/Insurance

Company as insurer of the first respondent and ultimately quantified the

total compensation at Rs.10,48,982/- with interest at the rate of 7.5% per https://www.mhc.tn.gov.in/judis

CMA.No.1130 of 2019

annum from the date of petition till the date of deposit. Aggrieved against

the same, the claimant / appellant is before this Court.

4. The learned counsel for the claimant / appellant has submitted that

though the Tribunal has correctly held on the question of negligence and

liability, has erred in deciding the quantum of compensation payable to the

appellant. He further submitted that the Tribunal has erred in awarding a

meagre sum of Rs.6000/- towards Transport to hospital, Rs.10,000/-

towards extra nourishment, Rs.2000/- towards damages to articles,

Rs.8000/- towards attender charges, Rs.50,000/- towards marital

prospectus, Rs.50,000/- towards pain and sufferings. He further submitted

that the Tribunal has erred in not awarding any amount towards loss of

expectation of life and loss of amenities and future additional transport

expenses. It ought to have award just compensation considering the

grievous injuries, period of treatment and nature of employment. It has

erred in reducing the disability from 70% to 55% and awarding

Rs.1,65,000/- only towards disability. In any event, the Tribunal erred in

awarding compensation at Rs.10,48,982/- as against the claim of

Rs.27,00,000/-. Hence, he prays for enhancement of the Award amount.

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CMA.No.1130 of 2019

5. Before the Tribunal, the Appellant/claimant has examined three

witnesses and marked PW1 to PW3 and filed twenty documents which were

marked as Ex.P1 to Ex.P20. On the side of the second respondent/Insurance

Company, neither witness was examined nor filed any document.

6. Per contra, the learned counsel for the second respondent /

Insurance Company has submitted that the Tribunal has granted reasonable

compensation under various heads and no modification needs to be granted.

Hence, he prays to dismiss the Appeal.

7. This Court has considered the said submissions made by the

learned counsel for the appellant and the learned counsel for the second

respondent and perused the materials available on record.

8. Based on the evidences of P.W.1 and PW2 and perusing the

exhibits in Ex.P1/FIR copy and Ex.P17/Copy of charge sheet, the Tribunal

has fastened the liability on the driver of the car bearing Regn.No.TN-01-

AF-6500.

9. As far as the quantum of compensation arrived at by the Tribunal https://www.mhc.tn.gov.in/judis

CMA.No.1130 of 2019

is concerned, to prove the avocation and income of the appellant P.W.1 has

been examined, who deposed that he was a Programme Analyst Trainee in

Cognizant Solutions, aged about 23 years earning a sum of Rs.2,75,000/-

per annum. Though the PW3/Doctor has assessed the disability of the

claimant at 70% in Ex.P18, the Tribunal has wrongly fixed disability of the

claimant at 55% and awarded only Rs.1,65,000/- towards disability. From

the records, it is seen that he has sustained multiple compound and

comminuted fracture in right leg thigh bone, both bone fracture below knee

near ankle, major degloving injury and fracture in right leg foot and heel,

fracture of nasal bone, severe injury in forehead and skull and multiple

injuries in right hand and internal and external injuries all over the body and

hence the same needs revisit. This court is of the considered opinion that

since the year of accident is 2011, the Tribunal has rightly assessed that

Rs.3000/- is the correct assessment for each percentage and also the

disability has to be taken at 55% and thus fixed a sum of Rs.1,65,000/-

(3000 x 55%) towards disability. Considering the nature of injuries and

period of treatment, he must have spent some sum on conveyance expenses

and the same may be fixed at Rs.30,000/- instead of Rs.6,000/- as assessed

by the Tribunal.

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CMA.No.1130 of 2019

10. On perusal of records, it is seen that the Tribunal has not

awarded any amount under the head of future medical expenses. Hence, this

court is inclined to grant a sum of Rs.30,000/- under the said head. Due to

the grievous injuries sustained by the appellant/claimant, he had taken the

help of an attender for a long period and hence the award granted under the

attender charges is fixed at Rs.50,000/-. Similarly, it would be appropriate

to fix a sum of Rs.30,000/- towards Extra Nourishment. This Court is of the

considered view that due to the nature of injuries sustained by the appellant

and period treatment given in the hospital as in-patient and based on

Ex.P15/salary slips, this court is inclined to take eight months for

calculation of loss of income and thus arrived at Rs.1,48,440/- (18555 x 8

months) instead of six months as assessed by the Tribunal at Rs.1,11,330/-.

11. Insofar as the other head such as medical expenses, damages to

articles, disability, pain and sufferings and loss of amenities, the assessment

of the compensation awarded by the Tribunal is a just compensation and it

does not call for any interference by this Court.

12. In fine, the re-structured compensation, item-wise, would be thus:


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                                                                                  CMA.No.1130 of 2019




                                      Heads         Amount         Award Amount
                                                   awarded by       by this Court
                                                  the Tribunal          (Rs.)
                                                      (Rs.)
                              Medical Expenses        6,46,652/-           6,46,652/-

                              Loss of income          1,11,330/-           1,48,440/-
                              Conveyance                6,000/-               30,000/-
                              expenses
                              Extra Nourishment         10,000/-              30,000/-
                              Attender charges           8,000/-              50,000/-
                              Damages to                 2,000                 2,000/-
                              articles
                              Disability              1,65,000/-           1,65,000/-
                              Pain & sufferings         50,000/-              50,000/-
                              Loss of amenities         50,000/-              50,000/-
                              Future medical             NIL                  30,000/-
                              expenses
                              Total                 10,48,982/-           12,02,092/-



                             13. In the result,

a) this Civil Miscellaneous Appeal filed by the claimant / appellant is

partly allowed, by enhancing the total amount of compensation from

Rs.10,48,982/- to Rs.12,02,092/- along with interest at the rate of 7.5% p.a.

from the date of filing of the petition till the date of deposit.

(b) The second respondent/Insurance Company is directed to deposit

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CMA.No.1130 of 2019

the enhanced award amount together with interest from the date of claim till

the date of deposit and costs as assessed by the Tribunal, to the credit of

M.A.C.T.O.P.No.4085 of 2011 within a period of six weeks from the

date of receipt of a copy of this Judgment. Needless to state that the

appellant shall pay necessary court fees for the enhanced compensation