Madras High Court

Varadhan vs Venkatesan on 31 August, 2023

                                                                          C.M.A.No.1086 of 2023

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 31.08.2023

                                                       CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                                  C.M.A.No.1086 of 2023

                     Varadhan                                              ... Appellant

                                                         Versus


                     1.Venkatesan

                     2.Reliance General Insurance Co. Ltd.,
                       Reliance House, No.6, 6th Floor,
                       Haddos Road, Nungambakkam,
                       Chennai – 600 006.                                  ... Respondents

                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, against the judgment and decree dated 23.01.2023
                     passed in M.A.C.T.O.P.No.4500 of 2018, on the file of the Motor
                     Accident Claims Tribunal, IV Court of Small Causes, Chennai.


                                  For Appellant        : Mr.K.Ayyadurai

                                  For R2               : Mr.G.Sukumari




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                                                                                  C.M.A.No.1086 of 2023



                                                         JUDGMENT

This appeal has been filed by the appellant/claimant challenging

the compensation awarded by the Tribunal in M.A.C.T.O.P.No.4500 of

2018, dated 23.01.2023.

2.The claim petition was filed stating that on 22.07.2018, at about

17.00 hour, when the appellant was walking on the Ennore High Road,

near IOC bus stop, the motorcycle bearing Regn No.TN-03-U-2787,

ridden by its rider in a rash and negligent manner dashed against the

appellant; that due to the said accident, the appellant sustained grievous

injuries and that he was working as driver and hence, entitled to

compensation of Rs.6,00,000/-.

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 injuries

and disability suffered by the appellant was exaggerated for the purpose

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C.M.A.No.1086 of 2023

of the case; that in any case, the compensation claimed was 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.13 on his side. On behalf of the 2 nd

respondent, R.W.1 was examined and Ex.R1 to Ex.R6 were marked. The

disability certificate of the appellant was marked as Ex.C1.

6.The Tribunal after considering the oral and documentary

evidence directed the 2nd respondent to pay a sum of Rs.2,77,414/- as

compensation to the appellant at the first instance and thereafter, recover

the same from the 1st respondent.

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

filed the present appeal seeking for enhancement of compensation.

8.The learned counsel for the appellant submitted that the

appellant was working as heavy vehicle driver and earning Rs.1000/- per

day; that on account of the accident, he sustained fracture in both legs

and was in the hospital for nearly 43 days as in-patient. Considering the https://www.mhc.tn.gov.in/judis

C.M.A.No.1086 of 2023

nature of injuries, the Tribunal ought to have awarded compensation by

determining functional disability and by adopting multiplier method. The

learned counsel further submitted that though surgery was conducted and

steal plates were implanted, no compensation was awarded for future

medical expenses which included the costs for removal of implants and

hence, prayed for allowing of the appeal.

9.The learned counsel for the appellant submitted that the 1st

respondent remained ex-parte before the Tribunal and he prayed to

dispense with notice to the 1st respondent and he has also made an

endorsement to that effect. Hence, notice to the 1st respondent is

dispensed with.

10.The learned counsel for the 2nd respondent submitted that the

appellant had neither established the avocation nor the income. The

appellant had also not established any functional disability so as to

warrant award of compensation by adopting multiplier method and

hence, prayed for dismissal of the appeal.

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C.M.A.No.1086 of 2023

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 records, it is seen that admittedly, the appellant

was in hospital and took treatment as in-patient for 43 days as could be

seen from Ex.P2 and Ex.P3-discharge summaries. He was diagnosed with

fracture proximal tibia on left / fracture lateral malleoulus on right /

fracture 2, 3, 4 matatarpal bone on right. The appellant deposed before

the Tribunal that he was working as driver and marked Ex.P8-driving

license. Ex.P8 reveals that the appellant had license for driving heavy

vehicles. However, the appellant had not produced any document to

prove his income. Considering the age, avocation, the year of accident

and evidence on records, this Court is of the view that it would be just

and reasonable to fix the notional income at Rs.15,000/-. The nature of

injuries namely fracture in both legs and the fact that the appellant was

carrying on work as lorry driver, suggest that the appellant would have

suffered functional disability. Considering the disability certificate issued

by the Medical Board, the injuries suffered by the appellant and his

avocation, it would be just and reasonable to fix functional disability at

15%. The appellant was 45 years at the time of accident and the https://www.mhc.tn.gov.in/judis

C.M.A.No.1086 of 2023

multiplier applicable is 13. Thus, the appellant would be entitled to

compensation under the head disability in the following manner.

Rs.15,000/- X 12 X 13 X 15/100 = Rs.3,51,000/-

13.As regards future medical expenses, the appellant had

undergone surgery and steal plates which were implanted have to be

necessarily removed. Considering the fact that the appellant had spent a

sum of Rs.15,000/- for surgery in a Government Hospital, it would be

just and reasonable to award Rs.15,000/- towards future medical

expenses. The appellant would have suffered loss of income for a period

of two month. Hence, the amount awarded under the head loss of income

is enhanced to Rs.30,000/-. The compensation 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.1086 of 2023




                        S.         Description          Amount            Amount            Award
                        No                             awarded by       awarded by       confirmed or
                                                        Tribunal         this Court      enhanced or
                                                          (Rs)              (Rs)           granted
                        1.         Disability              1,40,000         3,51,000       Enhanced
                        2.         Medical Expenses           7,914           7,914       Confirmed
                        3.         Loss of Income            11,000          30,000        Enhanced
                        4.         Pain and                  30,000          30,000       Confirmed
                                   Sufferings
                        5.         Transportation            10,000          10,000       Confirmed
                                   Expenses
                        6.         Nutrition                 15,000          15,000       Confirmed
                                   Expenses
                        7.         Damages to                 2,000           2,000       Confirmed
                                   Clothes
                        8.         Attender Charges          21,500          21,500       Confirmed
                        9.         Loss of Amenities         40,000          40,000       Confirmed
                        10.        Future Medical                   -        15,000         Granted
                                   Expenses
                                   Total                   2,77,414         5,22,414     Enhanced by
                                                                                         Rs.2,45,000/-

14.With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

Rs.2,77,414/- is hereby enhanced to Rs.5,22,414/-, 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

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C.M.A.No.1086 of 2023

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

Judgment, at the first instance and thereafter recover the same from the

1st respondent. On such deposit, the appellant is permitted to withdraw