Madras High Court

N.Parthasarathy vs G.Neelamegam on 10 April, 2023

                                                                               CMA.No.1346 of 2017

                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 10.04.2023
                                                        CORAM
                                  THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
                                               C.M.A.No.1346 of 2017
                   N.Parthasarathy                                               ... Appellant

                                                            ..Vs..
                   1.G.Neelamegam
                   (Remained exparte before the trial court)

                   2.Future Generali India Insurance Co., Ltd.,
                     Karumuthu Nilayam, 1st floor North Wing,
                     O.No.758, N.No.192, Anna Salai,
                     Chennai 600 002.                                          ... Respondents

                   Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor

                   Vehicles Act, 1988, against the judgment and decree dated 31.01.2014

                   made in MACTOP.No.1242 of 2010 on the file of the Motor Accident

                   Claims Tribunal (IV Judge, Small Causes Court, Chennai).

                                    For Appellant           : Mr.M.Mahendran
                                                              for M/s.N.M.Muthurajan
                                    For Respondents         : Set exparte - R1
                                                               Mr.E.Rajadurai for R2
                                                               for Mr.M.B.Gopalan Associates

                                                      JUDGMENT

This appeal has been filed by the appellant/claimant seeking

enhancement of compensation under the impugned award dated 31.01.2014

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CMA.No.1346 of 2017

passed by the IV Judge, Small Causes Court, Chennai / Motor Accident

Claims Tribunal, in MACTOP.No.1242 of 2010.

2. The appellant unsatisfied with the quantum of compensation

awarded by the Tribunal under the impugned award have preferred this

appeal seeking enhancement.

3. The details of the compensation awarded by the Tribunal under

the impugned award are as follows:

                                      Heads                Award Amount
                                                               (Rs.)
                              Loss of earning                          25,000/-
                              (5000 x5)
                              Transport                                  7000/-
                              Extra Nourishment                          7,000/-
                              Medical Expenses                         10,000/-
                              Pain & Sufferings                        25,000/-
                              Disability (40%)                         72,000/-
                              Total                                   1,46,000/-

4. The learned counsel appearing for the appellant has submitted that

the Judgment of the lower court is contrary to law and weight of evidence.

He further submitted that the Tribunal failed to note that the thing “under

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CMA.No.1346 of 2017

influence of alcohol” for a person is to be proved independently by

examining doctor and other related evidence. It has erred in fixing 20%

contributory negligence on the part of the appellant. The Tribunal has

awarded a meagre sum of Rs.25,000/- only under the head of pain and

sufferings for grievous injuries sustained by the appellant. Though the

appellant has sustained 50% partial and permanent disablement, the

Tribunal has re-assessed at 40% without any contra evidence and awarded

only Rs.72,000/- at the rate of Rs.1800/- per percentage which is incorrect.

It has failed to grant the compensation for disablement not only on the basis

of percentage of disablement, but also depending upon the nature of injuries

and age of the victim as well. The appellant was in-patient at Government

Hospital for 24 days and subsequently continued out- patient treatment for

about one year. It has also erred in awarding Rs.25000/- towards loss of

earning. Also, the compensation awarded under the other heads are also

very meagre. It has erred in fixing the rate of interest at 7.5% and the same

is to be enhanced and hence, he prayed for enhancement of compensation.

5. The learned counsel appearing for the second respondent/

Insurance Company has submitted that after considering the oral and

documentary evidence on record, the Tribunal has awarded just and https://www.mhc.tn.gov.in/judis

CMA.No.1346 of 2017

reasonable compensation and therefore, the award passed by the Tribunal

does not warrant any interference by this court.

6. 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. The first

respondent has remained exparte before the Tribunal.

7. Since the appellant was aged about 42 years at the time of accident

as per Ex.P1/copy of FIR and Ex.P10/copy of driving license and there are

four dependents for the appellant and he was a tender coconut retail vendor

earning Rs.400/- per day, the assessment of the Tribunal at Rs.5000/- per

month towards loss of earning, is on the lesser side. Hence, considering the

year of accident and the age of the appellant, this Court is inclined to fix

Rs.6500/- as monthly income of the appellant. Due to the grievous injuries

sustained by him, he would have taken treatment for atleast five months and

hence his loss of earning capacity is assessed at Rs.32,500/-(6500 x 5

months) by this court.

8. P.W.1 deposition shows that he sustained injuries in the accident https://www.mhc.tn.gov.in/judis

CMA.No.1346 of 2017

and immediately he was taken to the Government Hospital, wherein he was

treated as in-patient. A perusal of Ex.P11/discharge summary would show

that the appellant sustained fracture posterior dislocation of right hip with

fracture of right tibial spine and was treated as in-patient from 24.01.2010

to 18.02.2010 and underwent surgery thereby ORIF with plating was done.

Ex.P13 the photograph with CD shows the nature and gravity of the injuries

sustained by the claimant. He further deposed that he was working as

Tender coconut retail vendor and earning Rs.400/- per day at the time of

accident and after the accident, he finds difficulty in sitting cross legged,

climbing steps, standing, walking and lifting weight. PW2 has assessed the

disability of the appellant at 50% for the injuries sustained by him and he is

not able to do his business. Upon perusing Ex.P19/x-ray, PW2/Doctor has

assessed the disability of the appellant at 50% and issued Ex.P18/disability

certificate. PW2 further deposed that he has not seen the further treatment

records and has not filed X-ray report in support of his assessment. In such

circumstances, the Tribunal has fixed 40% disability for the injuries

sustained by the appellant. Considering the age of the appellant, the

Tribunal has awarded Rs.1800/- per percentage and thus arrived at

Rs.72000/- (1800x 40%) under the head of disability which is incorrect and

hence the same needs re-visit. Considering the age of the appellant/claimant https://www.mhc.tn.gov.in/judis

CMA.No.1346 of 2017

and nature of injuries, this court is inclined to fix Rs.3000/- per percentage

and thus arrived at Rs.1,20,000/-(3000 x 40%). From the records, it is seen

that he has taken continuous treatment in private hospitals even after

discharge from the Government Hospital. This Court is of the considered

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

and the period of treatment as in-patient and outpatient, he has incurred

transport expenses and he might have taken nutritious food and hence this

court is inclined to grant a sum of Rs.10,000/- each towards Transport to

Hospital and Extra Nourishment instead of Rs.7000/- each as assessed by

the Tribunal.

9. A Perusal of Ex.P11/Discharge summary shows that the claimant

has taken treatment as in-patient in Government General Hospital from

24.01.2010 to 18.02.2010. After the accident, he could not do his day to

day need by himself without the help of attender during the treatment

period and he also finds it difficulty in sitting cross legged, climbing steps,

standing , lifting weight. From the records, it is seen that due to the

accident that has occurred on 24.01.2010, the appellant has underwent

surgery of ORIF with plating was done and he finds it difficulty in walking,

standing, climbing steps and playing, but the Tribunal has awarded a https://www.mhc.tn.gov.in/judis

CMA.No.1346 of 2017

meagre sum of Rs.25,000/- towards Pain and sufferings and hence the same

needs revisit. Hence, a sum of Rs.30,000/- is fixed by this court towards

Pain and sufferings.

10. Insofar as the other head such as medical expenses is concerned,

the assessment of the compensation awarded by the Tribunal is just and

reasonable compensation and it does not call for any interference by this

Court.

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

                                      Heads             Amount       Award Amount
                                                       awarded by     by this Court
                                                      the Tribunal        (Rs.)
                                                          (Rs.)
                              Loss of earning              25000/-           32,500/-
                              capacity                    (5000x5)          (6500x5)
                              Transport          to        7,000/-          10,000 /-
                              Hospital
                              Extra Nourishment            7,000/-           10,000/-
                              Medical Expenses            10,000/-           10,000/-
                              Pain & Sufferings           25,000/-           30,000/-
                              Disability (40%)            72,000/-         1,20,000/-
                              Total                     1,46,000/-         2,12,500/-




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                                                                                  CMA.No.1346 of 2017

                             12. 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.1,46,000/- to Rs.2,12,500/- 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

the 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

MACTOP.No.1242 of 2010 within a period of six weeks from the date

of receipt of a copy of this Judgment and thereafter, recover the same from

the first respondent/owner of the vehicle, in accordance with law. Needless

to state that the appellant shall pay necessary court fees for the enhanced

compensation amount before receiving the copy of this judgment.