Madras High Court

Patakam Hemalatha vs K.Praveen Babu on 1 August, 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       Dated : 01.08.2023

                                                            Coram

                                        The Honourable Mr.Justice SUNDER MOHAN

                                                    C.M.A.No.1077 of 2022


                     Patakam Hemalatha                                                   ...Appellant


                                                            Versus


                     1.K.Praveen Babu
                     2.ICICI Lombard General Insurance Co. Ltd.,
                        First Floor, Arihant Plaza,
                        Nos.84 & 85, Wall Tax Road,
                        Chennai – 600 003.                                           ...Respondents

This Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 25.10.2021 passed by the Special Court II (Motor Accidents Claims Tribunal), Chennai in M.A.C.T.O.P.No.5322 of 2016.

                                       For Appellant            :    Mr.R.Kalai Arasan

                                       For Respondent – 1       :    No Appearance

                                       For Respondent – 2       :    Mr.M.Jeyaraj




https://www.mhc.tn.gov.in/judis



                                                           JUDGMENT

This Civil Miscellaneous Appeal has been preferred by the

appellant/claimant seeking to enhance the compensation awarded by the

Special Court II (Motor Accidents Claims Tribunal), Chennai in

M.A.C.T.O.P.No.5322 of 2016 vide judgment and decree dated 25.10.2021.

2. The brief facts of the case are as follows:

On 04.05.2016, at about 9.30 a.m., when the appellant/claimant was

crossing the Rajiv Gandhi Salai near IGP Company, Kandan Chavadi from

west to east direction at pedestrian cross, a motorcycle bearing Registration

No.TN 22 DB 2104 belonging to the 1st respondent, driven by its driver

coming from south to north direction in the said Rajiv Gandhi Salai, hit the

appellant/claimant, thereby, the accident had occurred. In the accident, the

appellant/claimant had sustained severe injuries. Hence, the

appellant/claimant had filed a claim petition in M.A.C.T.O.P.No.5322 of

2016 against the 1st respondent (owner of the offending vehicle) and 2nd

respondent (insurer of the offending vehicle), claiming a sum of

Rs.60,00,000/- as compensation for the severe injuries sustained by her in

the accident.

https://www.mhc.tn.gov.in/judis

3. The 2nd respondent/Insurance Company (insurer of the offending

vehicle) had filed its counter statement denying all the averments made by

the appellant/claimant in the Claim Petition. In the counter statement, it is

stated that there was no negligence on the part of the driver of 1 st

respondent's motorcycle; the appellant/claimant who crossed the road

suddenly on the wrong side had invited the accident and hence, the 2 nd

respondent/Insurance Company is not liable to pay any compensation on

behalf of the 1st respondent. It is further stated that the driver who rode the

1st respondent's motorcycle was not holding a valid driving license at the

time of accident, despite which, the 1st respondent had handed over the

motorcycle to him and thereby, the 1st respondent had willfully violated the

terms and conditions of the policy and hence, the claim petition is liable to

be dismissed.

4. Before the Tribunal, on the side of the claimant, in order to prove

the averments in the claim petition, appellant/claimant examined herself as

P.W.1 and marked 21 documents as Exs.P1 to P21. On the side of the

respondents, no witness was examined and no document was marked. One

Court document viz., Disability Certificate issued by the Regional Medical

Board, Government Royapettah Hospital, Chennai was marked as Ex.C1. https://www.mhc.tn.gov.in/judis

5. On appreciation of the oral and documentary evidence produced

before it, the Tribunal arrived at the conclusion that the accident had

occurred due to the rash and negligent driving of the driver who rode the 1st

respondent's motorcycle and hence, being the insurer of 1st respondent's

motorcycle, the 2nd respondent/Insurance Company is liable to pay the

compensation to the appellant/claimant. Accordingly, the Tribunal directed

the 2nd respondent/Insurance Company to pay a sum of Rs.10,61,200/- as

compensation with cost and interest at the rate of 7.5% per annum from the

date of filing of the petition till the date of realization, to the

appellant/claimant.

6. Aggrieved over the quantum of compensation awarded by the

Tribunal, the appellant/claimant has preferred the present appeal before this

Court.

7. Mr.R.Kalai Arasan, learned counsel for the appellant/claimant

submitted that the compensation awarded by the Tribunal is meagre,

particularly, the amount of Rs.50,000/- awarded by the Tribunal under the

head, 'Disability' is on the lower side. He also submitted that in the

accident, the appellant/claimant had sustained several injuries viz., fracture https://www.mhc.tn.gov.in/judis

in both legs, fracture in spinal cord, fracture in elbow and fracture in hip

region, etc., as a result of which, she is suffered from functional disability

and she lost her earning power; though the Regional Medical Board,

Government Royapettah Hospital, Chennai had assessed the disability of

appellant/claimant as 10%, subsequent to the order of this Court, it had

examined the appellant/claimant once again and issued the Disability

Certificate dated 17.02.2023 stating that due to the injuries sustained by the

appellant/claimant in the accident, she is affected from 70% permanent

locomotor disability. Therefore, the learned counsel prayed this Court to

consider the Disability Certificate dated 17.02.2023 issued by the Regional

Medical Board, Government Royapettah Hospital, Chennai and enhance the

amount awarded by the Tribunal towards, 'Disability'.

7.1. Further, the learned counsel submitted that the appellant/claimant

was treated as in-patient in the Hospital for nearly 20 days in two spells i.e.,

from 04.05.2016 to 21.05.2016 (18 days) and from 05.10.2016 to

06.10.2016 (2 days); but, without considering the this aspect, the Tribunal

had awarded a meagre amount of Rs.20,000/- under the head, 'Loss of

Earnings'; similarly, the amount awarded under the head, 'Attender Charges'

is also meagre. He also submitted that though the appellant/claimant had https://www.mhc.tn.gov.in/judis

marked Ex.P12 before the Tribunal, to establish the fact that the plate and

screws which were fixed in her leg to be removed in future; the Tribunal did

not award any compensation under the head, 'Future Medical Expenses'.

Hence, the learned counsel prayed this Court to award a just and reasonable

compensation towards the head, 'Future Medical Expenses'.

8. Though the 1st respondent remained ex-parte before the Tribunal,

this Court issued notice to him. Thereafter, the 1st respondent had entered

appearance through his counsel. However, today, none appeared on behalf

of the 1st respondent.

9. Mr.M.Jeyaraj, learned counsel appearing for the 2nd

respondent/Insurance Company submitted that the compensation awarded

by the Tribunal is just and reasonable and hence, the same need not to be

enhanced. He further submitted that though the appellant/claimant had

stated in the claim petition that she is not able to do her regular work

because of the injuries sustained by her in the accident, she did not produce

any documentary evidence before the Tribunal to prove that she is affected

from functional disability and due to which, she lost her earning power; and

hence, the Tribunal had awarded Rs.50,000/- towards the head, 'Disability' https://www.mhc.tn.gov.in/judis

and Rs.20,000/- towards the head, 'Loss of Earning'. He also submitted that

the amount awarded by the Tribunal towards all other heads are also just

and reasonable and hence, this appeal is liable to be dismissed.

10. Heard the learned counsel for appellant/claimant & the learned

counsel appearing for 2nd respondent/Insurance Company and perused the

materials available on record.

11. Now, the only issue to be decided in this case is that whether the

quantum of compensation awarded by the Tribunal is just and reasonable?

12.From a perusal of the records, it is seen that in Ex.C1, the

Regional Medical Board, Government Royapettah Hospital, Chennai had

assessed the disability of appellant/claimant as 10%. However, subsequent

to the admission of this appeal, this Court vide order dated 13.12.2022,

directed the appellant/claimant to appear before the Regional Medical

Board, Government Royapettah Hospital, Chennai for medical examination.

Pursuant to the said order of this Court, the Regional Medical Board,

Government Royapettah Hospital, Chennai had once again examined the

appellant/claimant and issued the Disability Certificate dated 17.02.2023 https://www.mhc.tn.gov.in/judis

stating that the appellant/claimant suffered from 70% permanent locomotor

disability. Considering the nature of injuries sustained by the appellant i.e.,

fracture in both legs, fracture in spinal cord, fracture in elbow and fracture

in hip region, etc., this Court is of the view that the appellant had certainly

suffered functional disability and the functional disability can be fixed at

25%. Though the appellant had marked pay slip to show that she was

earning Rs.20,000/- per month in a private concern, this Court is of the view

that the Tribunal was right in fixing the notional income as the employer

was not examined. However, considering the year of the accident, age,

educational qualification and the avocation of the appellant, this Court is of

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

Rs.15,000/- per month. Hence, the compensation under the head 'Loss of

Earning Capacity' has to be calculated as follows:

Rs.15,000 x 25/100 x 12 x 17 = Rs.7,65,000/-

13. It is to be noted that in the present case, the appellant/claimant

was taking treatment as in-patient in the Hospital for nearly 20 days, but, the

Tribunal had not awarded any compensation for the said treatment period.

Hence, considering the treatment period of appellant/claimant, this Court

awards Rs.20,000/- under the head, 'Loss of Amenities of Life'. It is also to https://www.mhc.tn.gov.in/judis

be noted that the appellant/claimant had stated in her deposition that the

plate and screws which were fixed in her leg have to be removed in future

and to prove the same, she had marked the Future Medical Expenses

Certificate issued by Helios Hospital as Ex.P12 before the Tribunal,

however, the Tribunal had not awarded any compensation under the head,

'Future Medical Expenses'. Therefore, this Court is of the opinion that it

would be just and appropriate to award Rs.40,000/- under the head, 'Future

Medical Expenses'. Further, it seems that the amount awarded by the

Tribunal towards the head, 'Attender Charges' is on the lower side and

hence, this Court enhances the 'Attender Charges' as Rs.15,000/-.

14. The compensation awarded by the Tribunal towards all other

heads are just and reasonable and hence, the same are confirmed. The

break-up details of the enhanced compensation are as follows:

                      Sl.No.            Description          Amount         Amount           Award
                                                          awarded by the   awarded by      Confirmed or
                                                            Tribunal       this Court      Enhanced or
                                                              (Rs.)           (Rs.)          Granted
                         1               Disability         Rs.50,000/-         ---          Deleted
                         2            Pain & Sufferings     Rs.40,000/-    Rs.40,000/-      Confirmed
                         3             Transportation       Rs.7,000/-      Rs.7,000/-      Confirmed
                         4            Medical Expenses     Rs.9,28,195/-   Rs.9,28,195/-    Confirmed
                         5           Extra Nourishment      Rs.10,000/-    Rs.10,000/-      Confirmed
https://www.mhc.tn.gov.in/judis



                      Sl.No.             Description              Amount          Amount           Award
                                                               awarded by the    awarded by      Confirmed or
                                                                 Tribunal        this Court      Enhanced or
                                                                   (Rs.)            (Rs.)          Granted
                         6            Attender Charges           Rs.6,000/-      Rs.15,000/-      Enhanced
                         7             Loss of Earnings          Rs.20,000/-         ---           Deleted
                         8         Loss of Earning Capacity          ---        Rs.7,65,000/-      Granted
                         9         Loss of Amenities of Life         ---         Rs.20,000/-       Granted
                         10        Future Medical Expenses           ---         Rs.40,000/-       Granted
                                         Total                 Rs.10,61,195/-   Rs.18,25,195/-        ---
                                                                                                 Enhanced by
                                     Rounded Off               Rs.10,61,200/-   Rs.18,25,200/-   Rs.7,64,000/-

15. In the result, this Civil Miscellaneous Appeal is partly allowed

and the compensation of Rs.10,61,200/- awarded by the Tribunal is

enhanced to Rs.18,25,200/- (Rupees Eighteen Lakhs Twenty Five Thousand

and Two Hundred only). The 2nd respondent/Insurance Company is directed

to deposit the enhanced award amount of Rs.18,25,200/-, after deducting the

amount(s), if any, already deposited, along with interest at 7.5% per annum

from the date of petition till the date of deposit (excluding the default

period, if any), to the credit of M.A.C.T.O.P.No.5322 of 2016, within a

period of six weeks from the date of receipt of a copy of this judgment. On

such deposit being made, the appellant/claimant is permitted to withdraw

the award amount along with proportionate interest and cost. The

appellant/claimant is directed to pay the necessary Court fee, if any, on the https://www.mhc.tn.gov.in/judis