Madras High Court
K.Sekar … vs D.Venkatesan on 5 January, 2023
C.M.A.No.3333 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2023
CORAM :
THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
C.M.A.No.3333 of 2012
K.Sekar … Petitioner / Appellant
Vs.
1.D.Venkatesan
2.The Oriental Insurance Co. Ltd.,
No.8, Esplanade,
UIL Building,
Chennai – 600 108. … Respondents / Respondents
This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the award and Decree passed by the Additional
District Judge, Accidents Claim Tribunal/Fast Track Court No.1 Chennai, in
M.C.O.P.No.4007 of 2007 dated 23.11.2010 awarding Rs.11,000/-.
For Appellant : Mr.N.S.Sivakumar
For Respondent 1 : Ex-parte in the Lower Court itself
For Respondent 2 : Mr.M.J.Vijayaraaghavan
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C.M.A.No.3333 of 2012
JUDGMENT
This Civil Miscellaneous Appeal has been filed challenging the award
and decree dated 23.11.2010 made in M.C.O.P.No.4007 of 2007 on the file of
Additional District Judge, Accident's Claim Tribunal/I Fast Track Court,
Chennai.
2. The brief fats of the case are as follows:
On 20.03.2007 at about 2.30 hrs, when the appellant was sleeping near
the road side platform at Mecnical Road near Raghul Foundation, Kilpauk,
Chennai, the first respondent's lorry bearing Registration No.TN-20-AA-
4559 was driven in reverse in a rash and negligent manner without looking
the appellant and ran over his leg and caused grievous injuries to the
appellant. Stating that the accident had occurred, due to the rash and
negligent driving of the driver of the lorry, the appellant filed a claim petition
before the Tribunal for a compensation of sum of Rs.2,00,000/- towards loss
of expenses Part I & II. On consideration of the materials and evidence
available on record, the Tribunal has awarded a compensation of Rs.11,000/-.
Aggrieved by this order, the appellant has come forward with this present
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C.M.A.No.3333 of 2012
appeal.
3. Learned counsel for the appellant submitted that the appellant is a
lorry driver, aged about 26 and earning a sum of Rs.250/- per day. Due to the
accident caused by the rash and negligent driving by the driver of the first
respondent's lorry, the appellant sustained fracture on his right leg. For the
said accident, a case was also registered in Crime No.198 of 2007 on the file
of G3 Police Station, Kilpauk, Chennai – 600 010 and the copy of the same
was marked as Ex.P.1
4. Learned counsel for the appellant further submitted that the
appellant has under went a treatment at Puthur from 20.03.2007 to
31.07.2007 for the sustained fracture and the medical records pertaining to
the same was marked on the side of the appellant as Ex.P.2., however, there
was no evidence adduced on the side of the respondents. Hence, the learned
counsel for the appellant prayed for allowing this appeal by enhancing the
compensation awarded by the Tribunal.
5. Learned counsel appearing for the second respondent submitted that
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C.M.A.No.3333 of 2012
the appellant has to prove that the first respondent has got valid insurance
policy for the vehicles involved in the accident and the driver of the vehicle
had valid and effective license at the time of the accident. However, the
present case on hand, the appellant has not produced any driving license and
also failed to prove that he was working as a driver and earning a sum of
Rs.250/- per day. Hence, the compensation awarded by the Tribunal is just,
proper and reasonable one and not want any interference by this Court.
6. Heard the learned counsel for the appellant and the learned counsel
appearing for the second respondent/Insurance Company and the first
respondent being remained ex-parte in the Trial Court and no appearance
before this Court despite the notice was served to him.
7. It is evident from the finding of the Tribunal that the copy of the FIR
which was marked as Ex.P.1 clearly establishes the accident has happened
only due to the negligence of the driver of the first respondent's lorry and the
only contention of the first respondent is that the appellant himself is
responsible for the alleged accident, but, there is no contra evidence in this
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C.M.A.No.3333 of 2012
case and the tribunal has relied on the judgment of this Court in the case of
Ramachandran and others Vs. Valliammal and others reported in 1992 1 MLJ
Page 188, wherein it was held that the accident has happened only due to the
rash and negligent driving of the driver and the main contention of the
second respondent/Insurance company is that the first respondent being the
owner of the alleged lorry had no valid insurance policy at the time of
accident is not acceptable in the absence of any evidence. Hence, the
Tribunal has came to the conclusion that the second respondent has valid
policy of insurance at the time of accident.
8. In regard to shifting of the appellant from K.M.C Hospital, Kilpauk,
Chennai to Puthur Hospital, the appellant has claimed a sum of Rs.2,000/-
towards transportation to hospital, however, the same was rejected by the
Tribunal, since no record was produced to prove the same. Further, the
appellant has contented that he was working as a driver and earned a sum of
Rs.250/- per day and due to this accident, he could not attend his work for
about six months, for which he claimed a sum of Rs.26,000/- towards loss of
earning and partial loss of earning. But no proof was produced for his
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C.M.A.No.3333 of 2012
earning, except his oral evidence and also not produced the driving license.
The contention of the second respondent that the appellant has not find any
job at any point of time is not acceptable to this Court and after considering
the oral and documentary evidence available, the Tribunal has awarded a sum
of Rs.11,000/- as compensation to the appellant which are as follows:
Compensation Compensation
Head claimed by the awarded by the
appellant Tribunal (Rs.)
Transport 2,000/- 500/-
Loss of earning and 26,000/- 2,500/-
partial earning
Extra nourishment 1,000/- 500/-
Damages to cloths 1,000/- 500/-
and article
Compensation for 25,000/- 5,000/-
pain and sufferings
Permanent disability 1,35,000/- 2,000/-
and loss of earning
power
Total 1,90,000/- 11,000/-
The above compensation totalling a sum of Rs.11,000/- paid to the appellant
under various heads, which in the opinion of this Court is not just proper,
reasonable and hence warrants interference.
9. In regard to transportation, the Tribunal has granted only a sum of
Rs.500/-, whereas the appellant has claimed a sum of Rs.2,000/-. It is
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C.M.A.No.3333 of 2012
pertinent to note that Puthur is the place, where the appellant was taking
treatment is situated in neighbouring state of Andhra Pradesh, which is more
than 120 k.m from Chennai, since the appellant sustained fracture in the right
leg would have had some difficulty in travelling in a public bus to go to
Puthur for treatment and for the same, he would have even hired some private
transportation. Hence, the award of sum of Rs.500/- towards transportation
in the absence of any records produced by the appellant is not sustainable.
10. In regard to the loss of earning and partial loss of earning, the
appellant has claimed a sum of Rs.26,000/- by contending that he was
working as a driver and earning a sum of Rs.250/- per day, however, failed to
produce any proof for the same except the oral evidence and did not produce
the driving license. Moreover, the Tribunal has observed that the reasonable
person of this age will not sit idle in the home and could easily earn a sum of
Rs.100/- per day is correct and acceptable and even according to this
observation, the appellant, who did not work for a period of six months will
come to a sum of Rs.18,000/- despite this award, a sum of Rs.2,500/- is not
reasonable and not acceptable to this Court.
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C.M.A.No.3333 of 2012
11. In regard to the claiming of a sum of Rs.1,000/- towards extra
nourishment, the Tribunal has observed that the appellant has sustained
fracture in the right leg and needs some extra nourishment for better healing
and proper growth, despite this observation, the Tribunal has granted only a
sum of Rs.500/- which is not reasonable and acceptable to this Court.
12. The appellant has claimed a sum of Rs.1,000/- towards
compensation for damages to clothing and articles and the Tribunal has
observed that the appellant has not produced any record but need to prove the
damages caused to the cloths and belonging is unsustainable. In this case,
the appellant was sleeping near the road side and vehicle belonging to the
first respondent ran over on the legs of the appellant. In this kind of case,
there will not be any record to prove the damages caused to clothing and
articles. Hence, the compensation of Rs.500/- awarded by the Tribunal
towards damages to clothing and article is also not acceptable.
13. In regard to the pain and suffering, the appellant has claimed a sum
of Rs.25,000/-. It is an admitted fact that immediately after the accident, the
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C.M.A.No.3333 of 2012
appellant was taken to K.M.C hospital, Kilpauk, Chennai for treatment and
continued his further treatment at Puthur and also produced Ex.P.2, the
particulars of Puthur treatment; establishes that the appellant has underwent
different treatment for fracture, which will prove the highness of pain. In this
regard, the respondent has contended that the injuries were simple and
superficial and has not caused any untold misery pain or mental agony.
Moreover, the appellant has not examined any doctor to prove the injury and
treatment is not acceptable to this Court for the reason that it is an admitted
fact that the appellant suffered fracture in the right leg. In this circumstances,
the Tribunal, awarding a compensation of sum of Rs.5,000/- towards pain
and suffering is not reasonable and proper.
14. The next head i.e., towards compensation in continuing of
permanent disability and loss of earning power, the appellant has claimed a
sum of Rs.1,35,000/-. In this case, the appellant has not taken any steps to
examine the doctor who has given substantial treatment or the expert to prove
the disability sustained by the appellant. As per section 163 A (5) II
Schedule Disability in non-fatal accidents; injuries deemed to be result in
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C.M.A.No.3333 of 2012
permanent total disablement/permanent partial disablement and percentage of
loss of earning capacity shall be as per schedule I under Workmen's
Compensation Act, 1923. Hence, the award of sum of Rs.2,000/- is unjust,
unreasonable, unacceptable and improper. Therefore, the compensation
awarded to the appellant under various heads warrants interference by this
Court for the reasons stated supra. Thus, the total compensation awarded by
the Tribunal is modified to Rs.70,500/- from Rs.11,000/-, the details which
are as follows:
Compensation Compensation
Head awarded by the enhanced by this
Tribunal (Rs.) Court (Rs.)
Transport 500/- 1,500/-
Loss of earning and 2,500/- 18,000/-
partial earing
Extra nourishment 500/- 1,000/-
Damages to cloths 500/- 1,000/-
and article
Compensation for 5,000/- 15,000/-
pain and sufferings
Permanent disability 2,000/- 34,000/-
and loss of earning
power
Total 11,000/- 70,500/-
15. In fine, this appeal is allowed. The second respondent/Insurance
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C.M.A.No.3333 of 2012
company is directed to deposit the aforesaid modified compensation amount
with interest and costs, less the amount already deposited, if any, within a
period of four weeks from the date of receipt of a copy of this judgment. On
such deposit being made, the Tribunal shall transfer the amount lying in the
deposit to the bank account of the appellant through RTGS within a period of
two weeks thereafter. No costs.
05.01.2023
vm
Index : Yes/No
Speaking Order : Yes/No
Neutral Judgment : Yes/No
To
1. The Additional District Judge,
Accidents Claim Tribunal/Fast Track Court No.1,
Chennai.
2.The Section Officer,
VR Section,
Madras High Court.
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C.M.A.No.3333 of 2012
J.SATHYA NARAYANA PRASAD,J.
vm
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C.M.A.No.3333 of 2012
C.M.A.No.3333 of 2012
05.01.2023
https://www.mhc.tn.gov.in/judis
