Madras High Court

Murugesan vs Viji on 23 August, 2023

                                                                             C.M.A.No.1544 of 2023

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 23.08.2023

                                                       CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                                  C.M.A.No.1544 of 2022
                     Murugesan                                              ... Appellant

                                                         Versus
                     1.Viji

                     2. Muthukovan

                     3.The Reliance General Insurance Co. Ltd,
                       No.6, 6th Floor, Reliance House,
                       Haddows Road, Sasthri Bhavan Opp,
                       Nungambakkam,
                       Chennai-34.                                        ... Respondents

                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, against the judgment and decree dated 28.02.2022
                     passed in M.C.O.P. No.3788 of 2016, on the file of the Motor Accident
                     Claims Tribunal, III Court of Small Causes, Chennai.
                                  For Appellant        : Mr.R.Navaneetha Krishnan
                                  For R3               : Ms.G.Sukumari




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                                                                                  C.M.A.No.1544 of 2023



                                                           JUDGMENT

This appeal has been filed by the appellant/claimant challenging

the compensation awarded by the Tribunal in M.C.O.P.No.3788 of 2016,

dated 28.02.2022.

2.The claim petition was filed stating that on 18.10.2015, at about

20.30 hrs, the appellant was walking from North to South direction at SP

Road, Mathya Kilash Bus Stop Back side, Chennai; that at the time, the

car bearing Reg.No.TN-05-AS-0178 came from East to West direction in

a rash and negligent manner and dashed against the appellant and thereby

the appellant sustained grievous injury; that thus, the appellant was

entitled for compensation.

3.The respondents 1 and 2 were remained ex-parte before the

Tribunal.

4.The 3rd respondent/Insurance Company filed a counter denying

all the averments made in the claim petition and stated that the accident

occurred due to the negligent act of the appellant, who had failed to

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C.M.A.No.1544 of 2023

exercise caution while crossing the road; that hence, the 3rd respondent

was not liable to pay any compensation to the appellant; that in any case,

the compensation claimed is excessive and prayed for dismissal of the

claim petition.

5.Before the Tribunal, the appellant examined himself as P.W.1

and marked Ex.P.1 to Ex.P.12 on his side. On behalf of the 3rd

respondent, one witness was examined and Ex.R1 to Ex.R4 were marked.

The disability certificate issued to the appellant by the Regional Medical

Board Govt. Hospital, Chennai, was marked as Ex.C1.

6.The Tribunal after considering the oral and documentary

evidence had held that the accident occurred due to the rash and

negligent driving by the driver of the car and being the insurer of the

offending vehicle, directed the 3rd respondent to pay a sum of

Rs.2,51,200/- as compensation to the appellant, at the first instance with

liberty to recover the same from the respondents 1 and 2.

7.Aggrieved over the award passed by the Tribunal, the appellant

has filed the present appeal seeking enhancement of compensation. https://www.mhc.tn.gov.in/judis

C.M.A.No.1544 of 2023

8.The learned counsel for the appellant submitted that the

appellant suffered functional disability as could be inferred from the

discharge summary and disability certificate which was issued by the

Medical Board. However, the Tribunal had erroneously granted

compensation by adopting percentage method; that the notional income

fixed by the Tribunal at Rs.8,000/- for the accident which took place in

the year 2015 is meagre; that the appellant had taken treatment as

inpatient for 104 days in the hospital and therefore, the award under other

heads were also meagre, and hence, prayed for enhancement of

compensation.

9.The learned counsel for the appellant further submitted that the

respondents 1 and 2 remained ex-parte before the Tribunal and therefore,

prayed to dispense with notice to the respondents 1 and 2 and had also

made an endorsement to that effect. Hence, notice to the respondents 1

and 2 is dispensed with.

10.The learned counsel for the 3rd respondent submitted that the

award of the Tribunal is just and reasonable and does not call for any https://www.mhc.tn.gov.in/judis

C.M.A.No.1544 of 2023

inference and prayed for dismissal of the appeal.

11.The only question involved in the instant appeal is whether the

compensation awarded by the Tribunal is just and reasonable?

12.On perusal of the records, it is seen that the admitted facts are

that the appellant suffered both bone fractures on the left leg and he had

taken treatment as inpatient for nearly 104 days. The Medical Board had

assessed the disability as 25% partial permanent disability on

examination. Though the appellant had stated that he was working as a

mason, no proof has been produced to prove his income or avocation.

Considering the nature of the injuries and the disability certificate issued

by the Medical Board, this Court is of the view that the appellant had

suffered functional disability and hence, it would be just and reasonable

to fix functional disability at 10%. The Tribunal had fixed Rs.8,000/- as

notional income, which is meagre. In the facts and circumstances, it

would be just and reasonable to fix the notional income at Rs.12,000/-

per month. The appellant was 49 years at the time of accident and the

multiplier applicable is 13. Hence, the award of compensation under the https://www.mhc.tn.gov.in/judis

C.M.A.No.1544 of 2023

head disability by adopting multiplier method would be as follows:

Rs.12,000 X 12 X 13 X 10/100 = Rs.1,87,200/-.

The Tribunal considering the facts and circumstances held that the

appellant could not have pursued his avocation for six months. There is

no infirmity in said finding. Further, since the notional income is fixed as

Rs.12,000/-pm, the compensation under the head of loss of income for

six months is enhanced to Rs.72,000/-. The appellant has taken treatment

as inpatient in the hospital for 104 days and hence, this Court is of the

view that the attender charges awarded by the Tribunal is meagre and the

same is enhanced to 50,000/-. Similarly, the award under the head loss of

amenities and pain and sufferings is also enhanced to Rs.50,000/- each.

The amounts awarded by the Tribunal under other heads is just and

reasonable and hence the same are confirmed. Thus, the compensation

awarded by the Tribunal is modified as follows:





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                                                                                     C.M.A.No.1544 of 2023




                        S.         Description          Amount           Amount            Award
                        No                             awarded by      awarded by       confirmed or
                                                        Tribunal        this Court      enhanced or
                                                          (Rs)             (Rs)           granted
                        1.         Disability               1,00,000       1,87,200       Enhanced
                        2.         Attender Charges           26,000        50,000        Enhanced
                        3.         Loss of Amenities          30,000        50,000        Enhanced
                        4.         Pain and                   30,000        50,000        Enhanced
                                   Sufferings
                        5.         Extra                      15,000        15,000       Confirmed
                                   Nourishment and
                                   Transportation
                        6.         Damages to                  1,000         1,000       Confirmed
                                   Clothes
                        7.         Loss of Income             48,000        72,000        Enhanced
                                   for 6 months
                        8.         Medical Bills               1,182         1,182       Confirmed
                                   Total                    2,51,182       4,26,382  Enhanced by

rounded off to rounded off to Rs.1,75,200/-

2,51,200 4,26,400

13.With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

Rs.2,51,200/- is hereby enhanced to Rs.4,26,400/- together with interest

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

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C.M.A.No.1544 of 2023

petition till the date of deposit. The 3rd respondent/Insurance Company is

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 four (4) weeks from the date of a receipt of copy of this