Madras High Court

P.Rajagopal vs K. Suguna on 30 August, 2023

                                                                                 CMA No. 2766 / 2022

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 30.08.2023

                                                         CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                         Civil Miscellaneous Appeal No. 2766 of 2022

                     P.Rajagopal                                            ... Appellant
                                                           Versus

                     1. K. Suguna

                     2. National Insurance Company Limtid,
                        2nd Floor, LRN Building,
                        Saradha College Road,
                        No. 53, Salem Taluk, Salem District.

                     (The 1st respondent remain ex-parte before the
                     tribunal. Hence may be dispense with for R-1
                     in this Appeal)                                              ... Respondents

                     PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, 1988 against the Judgment and Decree in M.C.O.P.
                     No. 739 of 2020 dated 22.03.2022 on the file of the Motor Accidents
                     Claims Tribunal, Special Sub Court No.1 at Salem.


                                  For Appellant        : Mr. M. Lokesh.

                                  For Respondents     : Mr. S. Vaidvel for R2.

                                                         R1 – ex parte.


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                                                                                    CMA No. 2766 / 2022




                                                       JUDGMENT

The appeal has been filed challenging the award passed by the

Tribunal in M.C.O.P. No. 739 of 2020 dated 22.03.2022.

2.The appellant had filed claim petition seeking compensation

before the Tribunal stating that on 26.05.2020, when the appellant was

riding the two wheeler bearing Registration No. TN 29 BJ 5221 along

with the pillion rider on Tharamangalam – Omalur Main road, a eicher

van bearing Registration No. TN 25 AM 5062 driven by its driver in a

rash and negligent manner, which was proceeding on the same road

before the two wheeler, took a sudden right turn without any signal, as a

result of which the two wheeler dashed the van and the appellant

sustained grievous injuries all over the body and was admitted in hospital.

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

4.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 driving of the appellant; that the claim petition is bad https://www.mhc.tn.gov.in/judis

CMA No. 2766 / 2022

for non-joinder of necessary parties; and that in any case, the

compensation claimed by the appellant is excessive and prayed for

dismissal of the petition.

5. The appellant examined one witness on his side as PW.1 and

marked Ex.P.1 to Ex.P.18. On the side of the second respondent, neither

any witness has been examined nor any document has been marked.

Further, Ex.C.1 and Ex.C.2 have been marked.

6.The Tribunal after considering the oral and documentary

evidence found that the accident occurred due to the rash and negligent

driving of the driver of the van belonging to the first respondent and

awarded a compensation of Rs.29,56,571/- to the appellant to be paid by

the second respondent. Aggrieved by the said award, the appellant had

preferred the instant appeal.

7.The learned counsel for the appellant submitted that due to the

injuries suffered by the appellant, his right leg above the knee was

amputated. The Medical Board assessed 85% permanent disability. The

appellant was working as a Mason and was earning Rs.15,000/- per https://www.mhc.tn.gov.in/judis

CMA No. 2766 / 2022

month. However, the Tribunal had fixed meagre notional income at

Rs.7,500/- per month. Hence, he prayed for enhancement by fixing the

higher notional income.

8.Since the first respondent remained ex parte before the Tribunal,

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

to dispense with the notice to the first respondent and filed verified

petition and made endorsement to that effect. Hence, notice to the first

respondent is dispensed with.

9.The learned counsel for the second respondent, per contra,

submitted that the compensation awarded by the Tribunal is just and

reasonable. The appellant has claimed Rs.30,00,000/- and the Tribunal

has awarded Rs.29,56,571/- as compensation and therefore, no

interference is called for and prayed for dismissal of the appeal.

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

appeal is whether the compensation awarded by the Tribunal is just and

reasonable?

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CMA No. 2766 / 2022

11.On perusal of the records, it is seen that the appellant examined

himself as PW1 and had stated that he was working as a Mason. The

accident is said to have taken place in the year 2020. Considering the

avocation, age of the appellant and the year of the accident, this Court is

of the view that it would be just and reasonable to fix the notional income

at Rs.15,000/- per month. Since the appellant was aged 26 years at the

time of the accident, he is entitled to 40% enhancement towards future

prospects and the multiplier applicable is 17. It is seen that the Tribunal

considering the injuries and the disability certificate issued by the

Medical Board had fixed the functional disability at 85%. There is no

infirmity in the functional disability fixed by the Tribunal in view of the

injuries suffered by the appellant as revealed from Ex.P.7 discharge

summary, Ex.C.1 disability certificate and Ex.P.17 photographs.

Therefore, the loss of income would be Rs.15,000 + Rs.6000/- (40% of

Rs.15,000) = Rs.21,000 X 12 X 17 X 85/100 = Rs.36,41,400/-. The

award under the other heads are just and the same are confirmed. It is

well settled that the Tribunal and the Courts have to award just

compensation. Though the claimants have claimed lesser compensation,

the Courts have power to grant just compensation more than the amount

claimed by the claimants. Thus, the award of the Tribunal is modified as https://www.mhc.tn.gov.in/judis

CMA No. 2766 / 2022

follows;

S. Description Amount Amount Award
No awarded by awarded confirmed or
Tribunal by this enhanced or
(Rs) Court granted
(Rs)
1. Pain and sufferings 1,00,000 1,00,000 Confirmed
2. Medical Expenses 6,84,871 6,84,871 Confirmed
3. Transport Expenses 50,000 50,000 Confirmed
4. Extra nourishment 25,000 25,000 Confirmed
5. Attender charges 25,000 25,000 Confirmed
6. Damages to clothes 1,000 1,000 Confirmed
7. Loss of amenities 1,00,000 1,00,000 Confirmed
8. For fixing External leg 1,50,000 1,50,000 Confirmed
9. Loss of earnings 18,20,700 36,41,400 Enhanced
Total 29,56,571 47,77,271 Enhanced by
rounded Rs.18,20,700/-
off to
47,77,300

12. With the above modification, this Civil Miscellaneous

Appeal is allowed and the compensation awarded by the Tribunal at

Rs.29,56,571/- is hereby enhanced to Rs.47,77,300/- 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 second respondent 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

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CMA No. 2766 / 2022

period of eight (8) weeks from the date of a receipt of copy of this

Judgment. On such deposit, the appellant is permitted to withdraw the

award amount along with interest and costs, less the amount if any,