Madras High Court
P.Ramasamy … vs K.Mayavatharan on 5 January, 2023
C.M.A.No.2563 of 2014
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.2563 of 2014
P.Ramasamy … Appellant / Petitioner
Vs.
1.K.Mayavatharan
2.J.Balamani
3.National Insurance Company Limited,
Heaving its issuing office at 1st Floor, Karthikeya Complex,
403, B-10, Mettur Main Road,
Bhavani, Erode – 638 302.
Having its Divisional Office at D.No.930,
Sathy Road, Gandhipuram,
Coimbatore. … Respondents / Respondents
This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the Judgment and Decree dated 10.04.2013 made
in M.C.O.P.No.526 of 2012 on the file of the Motor Accidents Claims
Tribunal/Special Sub Court at Coimbatore.
For Appellant : Mr.Ma.P.Thangavel
For Respondents 1 & 2 : Notice Dispensed with
Page No.1 of 13
https://www.mhc.tn.gov.in/judis
C.M.A.No.2563 of 2014
Respondent 3 : Mr.D.Bhaskaran
JUDGMENT
This Civil Miscellaneous Appeal No.2563 of 2014 has been filed to
enhance the compensation amount awarded in the judgment and decree dated
10.04.2013 made in M.C.O.P.No.526 of 2012 on the file of Motor Accident
Claims Tribunal/Special Sub Court, Coimbatore with interest and cost by
allowing this Civil Miscellaneous Appeal.
2. The facts of the case in a nutshell:
On 19.04.2012 at about 1.00 P.M., the appellant was waiting for
the traffic green signal with his started motor cycle bearing Reg.No.TN-38-
AM-8313 at the junction of Palaghat Main Road and Sungam Bye-Pass road
near Ukkadam bus stop in order to go to east. After getting the signal, the
appellant carefully moved with his motor cycle towards east, at that same
time, a lorry bearing Reg.No.TN-39-BD-4748 driven by the first respondent
in a rash and negligent manner without noticing appellant's motor cycle and
hit behind the appellant. In the result, the appellant was thrown away on the
road and sustained grievous injuries. The appellant is a free lance driver and
aged about 67 years; earns a sum of Rs.15,000/- per month. The appellant
https://www.mhc.tn.gov.in/judis
C.M.A.No.2563 of 2014
underwent amputation and become bedridden and cannot do his day today
activities without the help of others. Hence, the appellant filed the claim
petition claiming a compensation of a sum of Rs.10,00,000/- before the
Tribunal.
3. The learned counsel for the appellant submitted that the appellant
was a driver and earning a sum of Rs.15,000/- per month and to substantiate
the same, his Salary Certificate was marked as Ex.P.9. In the said accident,
the appellant has sustained grievous injuries. Due to the same, his right leg
was amputated below the knee and X-ray certificate was marked as Ex.P.12,
which shows the disability as 60%. Moreover, the appellant was hospitalized
for 35 days and the certified xerox copy of the discharge summaries were
marked as Ex.P.2 and Ex.P.3.
4. The learned counsel for the appellant further submitted that the
Tribunal has awarded only a sum of Rs.5,91,000/- towards compensation as
against the claim of Rs.10,00,000/- and the same is unjust, unreasonable and
improper. In support of his submission, the learned counsel has relied upon
https://www.mhc.tn.gov.in/judis
C.M.A.No.2563 of 2014
the following decisions of the Hon'ble Apex Court and the same is reads as
follows:
(i) In the case of K.Janardhan Vs. United India Insurance Co. Ltd. &
Anr. reported in 2008 (2) TN MAC 162 (SC), it was held that:
“4. Applying the said ratio of the cited judgment to the
facts of the present case we are of the opinion that the
appellant herein has also suffered a 100% disability and
incapacity in earning his keep as a tanker driver as his right
leg had been amputated from the knee. Additionally, a perusal
of Sections 8 and 9 of the Motor Vehicles Act, 1988 would show
that the appellant would now be disqualified from even getting
a driving license.
5. We therefore allow this Appeal, set aside the
judgment of the High Court and restore that of the
Commissioner but with no order as to costs.”
(ii) In the case of S.Suresh Vs. Oriental Insurance Co. Ltd and
another reported in 2010 (1) TN MAC 253 (SC), the relevant paragraphs are
read as under:
“7. The correctness of the impugned judgment is
questioned mainly on the ground that the claimant being a lorry
driver, the loss of his right leg ipso facto meant a “total
disablement” as understood in terms of Section 2(1)(1) of the Act
https://www.mhc.tn.gov.in/judis
C.M.A.No.2563 of 2014
and as such the compensation payable to the claimant had to be
computed on that basis. In support of the plea, reliance is placed
on a Four-Judge Bench decision of this Court in Pratap Narain
Singh Deo v. Srinivas Sabata & anr., 1976 (1) SCC 289. In that
case, a carpenter had suffered amputation of his left arm from
the elbow. This Court held that his amounted to a total disability
as the injury was of such a nature that the claimant had been
disabled from all work which he was capable of performing at
the time of the accident. It was observed as under:
“5. The expression “Total Disablement” has been
defined in Section 2(1)(1) of the Act as follows:
(l) “total disablement” means such disablement whether
of a temporary or permanent nature, as incapacitates workman
for all work which he was capable of performing at the time of
the accident resulting in such disablement.
It has not been disputed before us that the injury was of
such a nature as to cause permanent disablement to the
respondent, and the question for consideration is whether the
disablement incapacitated the respondent for all wok which he
was capable of performing at the time of the accident. The
Commissioner has examined the question and recorded his
finding as follows:
The injured workman in this case is carpenter by
profession. By loss of the left hand above the elbow, he has
evidently been rendered unfit for the work of carpenter as the
work of carpentry cannot be done by one hand only. This is
obviously a reasonable and correct finding.”
8. In our view, the ratio of the said judgment is squarely
https://www.mhc.tn.gov.in/judis
C.M.A.No.2563 of 2014
applicable to the facts at hand. We are of the opinion that on
account of amputation of his right leg below knee, he is
rendered unfit for the work of a driver, which he was
performing at the time of the accident resulting in the said
disablement. Therefore, he has lost 100% of his earning
capacity as a lorry driver, more so, when he is disqualified from
even getting a driving license under the Motor Vehicles Act.”
5. The learned counsel for the appellant further relied upon the
Judgment of the Division Bench of this Court in the case of National
Insurance Co.Ltd., Chennai & Others Vs. Jansi Rani & Others, reported in
CDJ 2019 MHC 5202. For better appreciation, the relevant paragraphs are
extracted hereunder:
“9. With regard to the quantum, it is an admitted case
that the deceased was working as a driver and the only dispute
is with regard to the quantum of monthly salary. According to
the claimants, it is only Rs.21,000/- as proved by PW3 evidence,
whereas, the Insurance Company would submit that Rs.21,000/-
cannot be paid in cash though PW3 himself stated that the
amount was paid in cash. The said contention of the Insurance
Company is acceptable since no company would pay Rs.21,000/-
in cash. Therefore, Rs.21,000/- fixed by the Tribunal is set aside.
10. As proved by Ex.P.7, the deceased was a driver. The
date of the accident is 18.05.2013. It is very difficult to get a
driver nowadays. In the year 2013 also, it would have been very
https://www.mhc.tn.gov.in/judis
C.M.A.No.2563 of 2014
difficult to get a driver for less than Rs.15,000/- per month.
Therefore, Rs.15,000/- is taken as monthly income of the
deceased.”
6. Per contra, learned counsel for the third respondent submitted that
the appellant has to prove that the lorry bearing Reg.No.TN39-BD-4748 was
insured with them at the time of accident, which occurred on 19.04.2012 and
the appellant has to further prove that the vehicle and documents pertaining
to both the vehicles are in order. He further submitted that the police has
instituted a criminal case against the driver of the heavier vehicle and by this
it cannot be inferred that he was at fault and it is the appellant who had been
the tortfeasor and invited the accident.
7. Learned counsel for the third respondent further submitted that
according to Ex.P.2, which was marked as certified xerox copy of discharge
summary, the appellant was a chronic diabetics, heart and B.P. patient. The
salary certificate which was marked as Ex.P.9 should not be taken into
account for the reason that the appellant was not examined. Further, in the
case of compensation, the income of the claimant is vital and the appellant
did not produce any necessary documents. He further submitted that the
https://www.mhc.tn.gov.in/judis
C.M.A.No.2563 of 2014
judgments which were relied by the learned counsel for the appellant is not
applicable to this case.
8. Heard the learned counsel for the appellant as well as the third
respondent and perused the materials available on record.
9. In this case, the appellant was examined as P.W.1 and F.I.R was
marked as Ex.P.1. and other relevant documents were marked to prove that
the accident was caused by the rash and negligent act of the first respondent.
After analyzing those documents, the Tribunal has held that they are
sufficient to hold that the first respondent's rash and negligent act is the cause
for the accident. The contention of the third respondent is that the
contributory negligence on the part of the appellant is also not proved and the
same was rejected by the Tribunal. From the above, it is crystal clear and
evident that it is the first respondent who drove the vehicle in a rash and
negligent manner and committed the offence.
https://www.mhc.tn.gov.in/judis
C.M.A.No.2563 of 2014
10. The appellant was examined himself as P.W.1 and P.W.2 /doctor
has deposed about the nature of the injuries sustained. Ex.P.2 & P.3 are
Discharge Summaries, Ex.P.5 is Lab report showing appellant's blood sugar
level, Ex.P.10 are Photographs showing appellant's grievous injuries, Ex.P.11
is Disability Certificate and Ex.P.12 is X-ray. Further, the doctor who has
examined the appellant finally arrived a permanent disability as 60% by
relying upon the Wound Certificate and other relevant documents. On
perusal of the Wound Certificate and other relevant documents, the Tribunal
has held that the doctor who has given percentage of disability as 60% is
correct.
11. In regard to the age of the appellant, there is no documents such as
birth certificate, school certificate, mark sheet and other relevant documents
to substantiate his age. In other documents submitted by the appellant, his
age was mentioned as 67. Even in Discharge Summary and driving license,
the age of the appellant is mentioned as 67. Hence, the Tribunal has decided
the age of the appellant as 67 at the time of accident and applied the
multiplier as 5.
https://www.mhc.tn.gov.in/judis
C.M.A.No.2563 of 2014
12. In regard to the salary, the appellant has produced the salary
certificate and the same was marked as Ex.P.9, however, the person who
issued the certificate was not examined. In the absence of such evidence by
the employer or the person who issued the certificate, the appellant getting a
salary of 15,000/- per month cannot be acceptable, however, the Tribunal has
observed that in the place like Coimbatore, which is an industrial city and
textile town and which is also called as “Manchester of South India”, a
person who is in the age of 67 also can earn a sum of Rs.15,000/- as a
monthly salary. Despite this observation, the Tribunal has came to a
conclusion that the appellant has not produced the authenticated document
and fixed a minimum salary of Rs.6,000/- as monthly income of the appellant
i.e., Rs.200/- per day as the salary is unjust, improper and unsustainable.
13. Considering the above facts and circumstances and the ratio laid
down by the Hon'ble Apex Court and Division Bench of this Court, the award
of sum of Rs.2,16,000/- towards the compensation for partial and permanent
disability and a sum of Rs.15,000/- towards pain and sufferings is
https://www.mhc.tn.gov.in/judis
C.M.A.No.2563 of 2014
unreasonable and unacceptable to this Court. Therefore, the compensation
awarded to the appellant under these two heads is interfered with by this
Court for the reasons already stated supra. Thus, the total compensation
awarded by the Tribunal is modified to Rs.7,50,000/- from Rs.5,91,000/-. The
details of which are as follows:
Compensation Compensation
Head awarded by the enhanced by this
Tribunal (Rs.) Court (Rs.)
Compensation for 2,16,000/- 3,60,000/-
partial permanent (6,000 x 12 x 5 x 60%) (10,000 x 12 x 5 x 60%)
disability
Transport to Hospital 5,000/- 5,000/-
Extra Nourishment 10,000/- 10,000/-
Pain and Sufferings 15,000/- 30,000/-
Medical Bills 3,45,000/- 3,45,000/-
Total 5,91,000/- 7,50,000/-
14. In fine, this appeal is partly allowed. The third
respondent/Insurance 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 to the credit of M.C.O.P.No.526 of 2012 on the file of
Motor Accidents Claims Tribunal/Special Sub Court at Coimbatore. On such
https://www.mhc.tn.gov.in/judis
C.M.A.No.2563 of 2014
deposit being made, the appellant is permitted to withdraw the award amount
now determined by this Court along with interest and costs, less the amount if
any already withdrawn by making necessary application before the Tribunal.
No costs.
05.01.2023
vm
Index : Yes/No
Speaking Order : Yes/No
Neutral Citation : Yes/No
J.SATHYA NARAYANA PRASAD,J.
vm
https://www.mhc.tn.gov.in/judis
C.M.A.No.2563 of 2014
To:
1.The Motor Accidents Claims Tribunal,
Special Sub-Court,
Coimbatore.
2.The Section Officer,
VR Section,
Madras High Court.
C.M.A.No.2563 of 2014
05.01.2023
https://www.mhc.tn.gov.in/judis
