Umapathy vs D. Daniel Rajan
2023 Latest Caselaw 10496 Mad

Citation : 2023 Latest Caselaw 10496 Mad
Judgement Date : 16 August, 2023

Madras High Court

Umapathy vs D. Daniel Rajan on 16 August, 2023

CMA No. 2727 / 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 16.08.2023

CORAM :

THE HONOURABLE MR. JUSTICE SUNDER MOHAN

Civil Miscellaneous Appeal No. 2727 of 2022
Umapathy ... Appellant
Versus

1.D. Daniel Rajan

2.The Manager,
Reliance General Insurance Co.Ltd.,
“Heavitree” unit No.1, 3rd floor, No. 23,
Spurtank road, Chetpet, Chennai – 31.

(The first respondent have been called absent,
set exparte by MACT/CJM at Tiruvallur; Hence,
notice may be dispensed with in this petition) ... Respondents

PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the

Motor Vehicles Act, 1988 seeking for enhancement of compensation

against the Judgment and Decree dated 31.01.2013 made in M.C.O.P.

No. 912 of 2009 on the file of the Motor Accident Claims Tribunal,

Chief Judicial Magistrate, Tiruvallur.

For Appellants : Mr. M. Lokesh.

For Respondents : Mr. P. Suresh Srinivasan for R2.

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CMA No. 2727 / 2022

R1 - Exparte.

JUDGMENT

The appeal has been filed by the appellant challenging the award

passed by the Tribunal in M.C.O.P. No. 912 of 2009 dated 31.01.2013.

2.The appellant had filed a claim petition before the Tribunal

stating that on 14.09.2007, while the appellant was going towards

Tiruttani in a motor cycle bearing Registration No. TN 20 AC 6130 as a

pillion rider near Meera theatre, Tata van bearing Registration No. TN 51

Z 4345 belonging to the first respondent driven by its driver in a rash and

negligent manner on the opposite direction, dashed the appellant, as a

result of which the appellant sustained grievous injuries. Thus, the

appellant filed claim petition seeking compensation.

3.The second respondent filed counter denying all the averments

made in the claim petition stating that the accident occurred due to the

rash and negligent riding by the rider of the motorcycle; that there is a

collision between two vehicles; that since the accident is head on

collision, contributory negligence has to be fixed on the appellant; that

the claim petition is bad for non-joiner of necessary parties; that in any https://www.mhc.tn.gov.in/judis

CMA No. 2727 / 2022

case, the compensation claimed was excessive and prayed for dismissal

of the claim petition.

4.The first respondent remained exparte before the Tribunal.

5.The appellant examined three witnesses as PW1 to PW3 on their

side and marked Ex.P.1 to Ex.P.7. On the side of the second respondent,

RW1 was examined and Ex.R.1 to Ex.R.4 were marked.

6.The Tribunal after considering the oral and documentary

evidence found that the accident occurred due to the negligence of the

driver of the Tata van belonging to the first respondent and directed the

respondents to pay a sum of Rs.1,43,700/- as compensation to the

appellant. Aggrieved by the said award, the appellant has preferred the

instant appeal seeking enhancement of compensation.

7.The learned counsel for the appellant submitted that though the

appellant had examined the doctor as PW2 who had issued Ex.P.3,

disability certificate to show that the appellant suffered 50% permanent

disability, the Tribunal had not awarded any compensation under the https://www.mhc.tn.gov.in/judis

CMA No. 2727 / 2022

head partial permanent disability. The learned counsel further submitted

that no amount has been awarded under the head attendant charges and

further, fairly submitted that the award of compensation under the other

heads are reasonable and prayed for the compensation towards disability

and attendant charges.

8.The first respondent remained exparte before the Tribunal and

the learned counsel for the appellant has sought permission of this Court

to dispense with the notice to the first respondent. Hence, notice to the

first respondent is dispensed with.

9.The learned counsel for the second respondent submitted that the

appellant was not examined by the Medical Board. PW2 is a private

doctor and hence, the Tribunal had not accepted the disability certificate

issued by PW2. Therefore, the Tribunal was right in not awarding

compensation under the head disability. Hence, no interference is called

for and prayed for dismissal of the appeal.

10.The only question that arise for consideration in the instant

appeal is whether the compensation awarded by the Tribunal is just and https://www.mhc.tn.gov.in/judis

CMA No. 2727 / 2022

reasonable.

11.The Tribunal had not awarded any compensation under the

head disability. The appellant had marked Ex.P.2, O.P. sheet issued to

him by the Government Hospital, Chennai. Ex.P.2 shows that the

appellant had suffered fracture in his right leg. PW2, doctor had also

issued a certificate stating that the appellant had suffered fracture in the

right leg below the ankle. However, PW2 had assessed the disability at

50%. Considering the nature of injuries and the period of treatment

taken by the appellant, this Court is of the view that the assessment of

disability made by PW2 is on the higher side. In the facts and

circumstances of this case, this Court is of the view that it would be just

and reasonable to fix the disability at 30%, having regard to Ex.P.2 and

the evidence of PW2, doctor. The appellant is entitled to Rs.2,000/- per

percentage of disability, since the accident took place in the year 2007.

Thus, the appellant is entitled to Rs.60,000/- (Rs.2000 X 30) under the

head disability. Since the appellant took treatment from 14.09.2007 to

13.10.2007, the appellant is entitled to a sum of Rs.7,500/- towards

attendant charges. The award under the other heads are just and the same

are confirmed. Thus, the award of the Tribunal is modified as follows;

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                                                                                  CMA No. 2727 / 2022
                     ld




                          S.              Description       Amount      Amount      Award
                          No                               awarded by awarded by confirmed or
                                                            Tribunal   this Court enhanced or
                                                              (Rs)        (Rs)      granted
                          1.      Loss of income                23,700      23,700    Confirmed
                          2.      Transport charges              5,000        5,000   Confirmed
                          3.      Extra nourishment             10,000      10,000    Confirmed
                          4.      Pain and sufferings          1,00,000    1,00,000   Confirmed
                          5.      Damages to clothes             5,000        5,000   Confirmed
                          6.      Disability                        ---     60,000     Granted
                          7.      Attendant Charges                 ---       7,500    Granted
                                  Total                        1,43,700    2,11,200 Enhanced by
                                                                                    Rs.67,500/-

12. With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

Rs.1,43,700/- is hereby enhanced to Rs.2,11,200/- together with interest

at 7.5% per annum (excluding the default period if any) from the date of

petition till the date of deposit. The respondents are directed to deposit

the award amount now determined by this Court along with interest and

costs, less the amount already deposited, if any, within a period of six (6)

weeks from the date of a receipt of copy of this Judgment. On such https://www.mhc.tn.gov.in/judis

CMA No. 2727 / 2022

deposit, the appellant is permitted to withdraw the award amount along

with proportionate interest and costs, less the amount if any, already

withdrawn. The appellant is directed to pay necessary Court fee, if any