Madras High Court

Kathirvel vs Santhana Raman on 2 August, 2023

                                                                             C.M.A.No.2067 of 2022



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     Dated: 02.08.2023

                                                 CORAM:
                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                                   C.M.A.No.2067 of 2022


                Kathirvel                                                        ...Appellant
                                                            Vs.
                1.Santhana Raman
                2.National Insurance Company Limited,
                   Third Party Motor Claims Office,
                   3rd Floor, No.751, Anna Salai,
                   Chennai 600 002.                                              ...Respondents

                   (1st respondent remained exparte before the
                    Tribunal and hence, notice may be dispensed
                    with for 1st respondent)


                PRAYER : The Civil Miscellaneous Appeal is filed under Section 173 of
                Motor Vehicles Act, 1988, against the judgment and decree dated 24.03.2021 in
                M.A.C.T,O.P.No.516 of 2012 on the file of the Motor Accident Claims Tribunal
                / Additional Subordinate Judge, Ponneri.


                                   For Appellant     : M/s.A.Subadra
                                   For Respondents : M/s.R.Rathna Thara for R2




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




                1/9
                                                                           C.M.A.No.2067 of 2022



                                                   JUDGMENT

The Civil Miscellaneous Appeal is filed for enhancement of

compensation granted by the Tribunal in the award dated 24.03.2021 in

M.A.C.T.O.P.No.516 of 2012 on the file of the Motor Accident Claims Tribunal

/ Additional Subordinate Judge, Ponneri.

2. The appellant/claimant filed the claim petition claiming a sum of

Rs.4,20,000/- as compensation for the injuries sustained by him in the accident

that took place on 29.07.2012. According to the appellant, on the date of

accident i.e., on 29.07.2012 at about 16.00 hours, when he was riding in the

bicycle at Nandhanam Signal, a Innova car bearing registration No. TN 07 AP

3364 belonging to the first respondent, driven by its driver in a rash and

negligent manner, dashed against the appellant and caused the injuries. Hence,

he filed claim petition claiming compensation against the respondents.

3. The first respondent, who is the owner of the offending vehicle,

remained ex-parte before the Tribunal.

4.The second respondent/Insurance Company filed a counter statement,

denying the averments made in the claim petition and stated that the accident https://www.mhc.tn.gov.in/judis

C.M.A.No.2067 of 2022

was not due to rash and negligent driving of the car belonging to the first

respondent and that in any case the appellant was also responsible for the

accident. In any event, the compensation claimed by the appellant is excessive

and prayed for dismissal of the claim petition.

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

marked 8 documents as Exs.P1 to P8. The second respondent/Insurance

Company did not let in any oral and documentary evidence. The disability

certificate issued by the Medical Board was marked as Ex.C1.

6. The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred only due to the rash and negligent

driving by the driver of the car belonging to the first respondent and directed

the second respondent being insurer of the offending vehicle to pay a sum of

Rs.2,04,000/- as compensation to the appellant.

7.The learned counsel for the appellant submitted that the appellant has

suffered fracture in his left knee. He was working as a driver prior to the

accident. The Tribunal has awarded compensation by adopting percentage

method instead of multiplier method. Further, the appellant had also marked

Ex.P8/Salary slip to prove that he was earning a sum of Rs.12,000/- per month. https://www.mhc.tn.gov.in/judis

C.M.A.No.2067 of 2022

Even, in the earliest versions (i.e.,) in the FIR lodged before the Police and in

Ex.P2/Accident Register, he had stated that he was working as a driver.

Considering the nature of injuries, which was assessed as partial permanent

disability, the Tribunal should have assessed the functional disability and

adopted multiplier method for awarding compensation. Further, the Tribunal

has not awarded any compensation under the head Attender charges, though the

appellant had taken treatment as an in-patient in the hospital. Hence, he prayed

for allowing the appeal.

8. Per contra, the learned counsel for the second respondent/ Insurance

Company submitted that the Tribunal awarded compensation by adopting

percentage method, in the absence of any evidence to show that the appellant

has suffered functional disability. Further, the compensation under the other

heads are also just and reasonable and there is no reason to interfere with the

award passed by the Tribunal and prayed for dismissal of the appeal.

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

compensation awarded by the Tribunal is just and reasonable.

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

C.M.A.No.2067 of 2022

10. From the award of the Tribunal, it is seen that the appellant was

examined by the Medical Board which issued the disability certificate, marked

as Ex.C1. The Medical Board stated that the appellant suffered 40% partial

permanent disability; and suffered post traumatic sequelae left knee tibia

plateanu fracture. As submitted by the learned counsel for the appellant, the

appellant had mentioned his avocation in Ex.P1/FIR and to the Doctor, which is

recorded in Ex.P2/Accident Registrar. Considering the fact that the appellant

has suffered a knee fracture, as a result of which, his movement was restricted,

this Court is of the view that the appellant has suffered functional disability and

hence, the multiplier method can be adopted to award compensation.

Considering the nature of injuries, Ex.C1/disability certificate and the

avocation of the appellant, this Court is of the view that the functional

disability for the whole body can be fixed as 20%. Though the appellant has

marked Ex.P8/salary certificate, the employer/author of the said certificate has

not been examined. Considering the facts and circumstances of the case, the

notional income can be fixed as Rs.10,000/- per month. Hence, a sum of

Rs.1,68,000/- [10,000 x 12 x 7 x 20/100] is awarded under the head loss of

future earning capacity. The compensation awarded under the head partial

permanent disability is hereby set aside. The Tribunal has taken the notional

income at Rs.6,000/- and awarded compensation of Rs.18,000/- towards loss of

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

C.M.A.No.2067 of 2022

income for three months. Due to the injuries, the appellant would not have

attended the work atleast for a period of 3 months. Hence, a sum of Rs.30,000/-

(Rs.10,000/- x 3months) is awarded towards loss of income during treatment

period. The appellant had also taken treatment as an in-patient in the hospital.

However, the Tribunal has not awarded any amount towards attendant charges.

Considering the period of treatment taken by the appellant, a sum of

Rs.10,000/- is awarded towards attendant charges. The amount of compensation

awarded by the Tribunal under all other heads are just and reasonable and

hence, the same are hereby confirmed. Thus, the compensation awarded by the

Tribunal is modified as follows:

                      S.No          Description     Amount            Amount              Award
                                                   awarded by       awarded by         confirmed or
                                                    Tribunal         this Court        enhanced or
                                                      (Rs)              (Rs)            granted or
                                                                                         reduced
                    1.            Loss of Income        18,000            30,000           Enhanced
                    2.            For partial          1,40,000                   -         Set aside
                                  Permanent
                                  Disability
                    3.            Attender                      -         10,000             Granted
                                  charges
                    4.            Loss of future                -       1,68,000             Granted
                                  earning
                                  capacity

                    5.            Medical               20,000            20,000          Confirmed
https://www.mhc.tn.gov.in/judis





                                                                                  C.M.A.No.2067 of 2022



                                  expenses
                    6.            Transportation          2,000           2,000       Confirmed
                    7.            Extra                   3,000           3000        Confirmed
                                  nourishment
                    8.            Damage to               1,000           1,000       Confirmed
                                  clothing and
                                  articles
                    9.            Pain &                 10,000          10,000       Confirmed
                                  sufferings
                    10.           Loss of                10,000          10,000       Confirmed
                                  amenities
                                  Total            Rs.2,04,000/-   Rs.2,54,000/- Enhanced by
                                                                                 Rs.50,000/-

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

the compensation awarded by the Tribunal at Rs.2,04,000/- is hereby enhanced

to Rs.2,54,000/- together with interest at the rate of 7.5% per annum from the

date of petition till the date of deposit (excluding the default period, if any).

The appellant/claimant is directed to pay necessary Court fee, if any, on the

enhanced compensation. The 2nd respondent/Insurance Company is directed to

deposit the enhanced award amount now determined by this Court i.e.,

Rs.2,54,000/- along with interest and costs, less the amount already deposited,

if any, within a period of six weeks from the date of receipt of a copy of this

judgment. On such deposit, the appellant is permitted to withdraw the award

amount, now determined by this Court, along with interest and costs, less the

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