Madras High Court

Chandra vs The Managing Partner on 30 August, 2023

                                                                              C.M.A.No.657 of 2022

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 30.08.2023

                                                       CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                                  C.M.A.No.657 of 2022

                     Chandra                                                      ... Appellant

                                                         Versus

                     1.The Managing Partner,
                       Aghin Roadways, MMC 4/2155/2,
                       Mundok Road Mahe,
                       Mahe UT.Dist,
                       Pondicherry, UT-673 310.

                     2.The General Manager,
                       Reliance General Insurance,
                       No.19, Reliance Centre,
                       Walchand Hirachand Marg,
                       Ballard Estate, Mumbai – 400 001.                          ... Respondents

                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, against the judgment and decree dated 14.09.2021
                     passed in M.C.O.P.No.649 of 2015, on the file of the Motor Accident
                     Claims Tribunal, Sessions Judge, Mahila Court, Perambalur.


                                  For Appellant        : Mr.S.P.Yuvaraj

                                  For R2               : Mr.P.Suresh Srinivasan


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                                                                                  C.M.A.No.657 of 2022

                                                        JUDGMENT

This appeal has been filed by the appellant/claimant challenging

the compensation awarded by the Tribunal in M.C.O.P.No.649 of 2015,

dated 14.09.2021.

2.The claim petition was filed stating that on 01.05.2015 at about

11.30 a.m., while the appellant was travelling in TATA ACE vehicle

bearing Regn No.TN 46 P 5054 at Thittakudi to Ramanatham Road, the

Tarras Lorry bearing Regn No. PY 03 9533, driven by its driver in a rash

and negligent manner, dashed against the TATA ACE; that due to the

said accident, the appellant sustained grievous injuries and thus, the

appellant was entitled for compensation.

3.The 1st respondent/owner of the offending vehicle remained ex-

parte before the Tribunal.

4.The 2nd respondent/Insurance Company filed a counter denying

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

travelled as gratuitous passenger in the goods vehicle; that due to

overload, the driver of the TATA ACE lost balance and dashed against https://www.mhc.tn.gov.in/judis

C.M.A.No.657 of 2022

the lorry and hence, the 2nd respondent was not liable to pay any

compensation to the appellant; that in any case, the compensation

claimed was excessive and prayed for dismissal of the claim petition.

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

P.W.2-Doctor and marked Ex.P.1 to Ex.P.21 on his side. The 2nd

respondent had not examined any witness or marked any document. The

disability certificate of the appellant was marked as Ex.X1.

6.The Tribunal after considering the oral and documentary

evidence, directed the 2nd respondent to pay a sum of Rs.8,33,805/- as

compensation to the appellant.

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

filed the present appeal seeking enhancement of compensation.

8.The learned counsel for the appellant submitted that though there

was overwhelming medical evidence to show that the appellant suffered

100% functional disability, the Tribunal awarded compensation by

adopting percentage method. The learned counsel relied upon Ex.P5 to https://www.mhc.tn.gov.in/judis

C.M.A.No.657 of 2022

P7-discharge summaries to prove the nature of injuries suffered by the

appellant and the treatment taken by her. The learned counsel also relied

upon Ex.X1-disability certificate issued by the Medical Board to show

that the appellant was certified as Nuerologically handicaped. Therefore,

the learned counsel submitted that the appellant had suffered 100%

functional disability; that she was running beauty parlor and earning

more than Rs.20,000/- per month prior to the accident; and that the award

of the compensation under other heads is also meagre and prayed for

enhancement.

9.The learned counsel for the 2nd respondent per contra submitted

that the Tribunal had accepted Ex.X1-disability certificate issued by the

Medical Board and had rightly awarded compensation by adopting

percentage method and there is no reason to interfere with the award of

the Tribunal and prayed for dismissal of the appeal.

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

compensation awarded by the Tribunal is just and reasonable?

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C.M.A.No.657 of 2022

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

marked discharge summaries issued by the hospital which had treated

her. From Ex.P5-discharge summary issued on 03.06.2015, it is seen that

the following treatment was given to the appellant:-

“Patient admitted with very low GCS and severe head injury. Patient intubated and on ventilatory support. Tracheostomy done on 02.05.2015. MRI is S/o severe diffuse axonal injury and brain stem injury. Patient is clinically showing features of midbrain injury right 3rd nuclear palsy / impaired dolls eye movement / left hemiparesis with severe rigidity and also features of automatic instability. Patient weaned from ventilator. GCS E4 VT M5 (on metal tube). Patient is off ventilator past 10 days. She is showing signs of automatic instability on and off in the form of tachycardia / tachypnoea and rigidly. Clinically her GCS has improved. Need for prolonged nursing care / physiotherapy and tracheostomy care explained.

Possibility of delayed recovery / persistant vegetative state also explained. Patient is discharged with advise for tracheostomy care, home nursing care and physiocare. Patient needs further evaluation after 2 weeks for planning tracheostomy closure.”

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C.M.A.No.657 of 2022

12.That apart, the Medical Board had certified that the appellant is

neurologically handicaped and assessed the disability as 54%. As per the

discharge summary, the appellant suffered RTA with Grade III diffuse

axonal injury / Brain stem contusion, base of skull fracture extending

across sphenoid bone, right fronto parietal subcortical contusion, diffuse

cerebral edema and paid syndrome. In the said discharge summary which

is extracted above, it is stated that there is possibility of delayed recovery /

persistant vegetative state for the appellant.

13.Considering the above facts, this Court is of the view that the

percentage of disability assessed by the Medical Board has to be fixed as

percentage of functional disability. Therefore, in the facts and

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

and reasonable to award compensation by adopting multiplier method.

Though it is claimed that the appellant was running a beauty parlour and

earning more than Rs.20,000/- per month, no documentary proof was

produced to establish the same. However, considering the age, avocation

and the year of accident, this Court is of the view that it would be just

and reasonable to fix the notional income of the appellant at Rs.12,000/-

per month. The appellant will also be entitled to 40% towards future https://www.mhc.tn.gov.in/judis

C.M.A.No.657 of 2022

prospect. It is seen from Ex.P19 that the appellant was aged 35 years at

the time of accident and hence the multiplier applicable is 16. Thus, the

award of compensation under the head permanent disability has to be as

follows:

Rs.16,800/- (Rs.12,000/- + 40%) X 12 X 16 X 54/100 =

Rs.17,41,824/-

14.The amount awarded by the Tribunal towards pain and

suffering is meagre and the same is enhanced to Rs.50,000/-. The

appellant was treated as in-patient for 34 days and hence, the award

under the head attender charges is enhanced to Rs.25,000/-. The Tribunal

had not awarded any amount under the head loss of amenities and hence

a sum of Rs.25,000/- is awarded towards loss of amenities. The amount

awarded under other heads is just and reasonable and the same are

confirmed. Further, the learned counsel for the appellant had not pointed

out any error in the finding of the Tribunal with regard to fixing of 10%

contributory negligence on the part of the appellant. Hence, the said

finding is confirmed. Thus, the compensation awarded by the Tribunal is

modified as follows:-

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                                                                                       C.M.A.No.657 of 2022




                        S.         Description          Amount            Amount            Award
                        No                             awarded by       awarded by       confirmed or
                                                        Tribunal         this Court      enhanced or
                                                          (Rs)              (Rs)           granted
                        1.         Disability              1,62,000        17,41,824       Enhanced
                        2.         Pain and                  20,000          50,000        Enhanced
                                   Suffering
                        3.         Attender Charges          15,000          25,000        Enhanced
                        4.         Extra                     15,000          15,000       Confirmed
                                   Nourishment
                        5.         Transportation            25,000          25,000       Confirmed
                        6.         Medical Expenses        6,65,450         6,65,450      Confirmed
                        7.         Loss of Income            24,000          24,000       Confirmed
                        8.         Loss of Amenities                -        25,000         Granted
                                   Total                   9,26,450        25,71,274     Enhanced by
                                                                                        Rs.14,80,342/-
                                   After deducting         8,33,805        23,14,147
                                   10% towards
                                   contributory
                                   negligence

15.With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

Rs.8,33,805/- is hereby enhanced to Rs.23,14,147/-, 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 2nd respondent/Insurance Company is

directed to deposit the award amount now determined by this Court along

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C.M.A.No.657 of 2022

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 deposit, the appellant is permitted to withdraw the

entire award amount now determined by this Court, along with interest