Madras High Court

Mohamed Haneef vs Srm Transport India P.Ltd. on 18 July, 2023

CMA No. 2065 / 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 18.07.2023

CORAM :

THE HONOURABLE MR. JUSTICE SUNDER MOHAN

Civil Miscellaneous Appeal No. 2065 of 2022
Mohamed Haneef ... Appellant
Versus

1.SRM Transport India P.Ltd., SRM Nagar,
Kattankulathur, Chengalpattu,
Kancheepuram District – 603203.

2.The New India Assurance Company Ltd.,
Micro Office, No.77/156, Cuddalore main Road,
Vridhachalam – 606001. ... Respondents

PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 59 of 1988 seeking to allow this appeal by
enhancing the award passed by the Tribunal in M.C.O.P. No. 148 of
2019 dated 29.03.2022.
For Appellant : Mr. S. Udhayakumar.

For Respondents : Mr. P. Kandasamy for R2.
No appearance for R1.

JUDGMENT

The appeal has been filed by the petitioner challenging the

quantum of compensation awarded by the Tribunal in M.C.O.P. No. 148 https://www.mhc.tn.gov.in/judis

CMA No. 2065 / 2022

of 2019 dated 29.03.2022.

2.The appellant / petitioner had filed a claim petition stating that

on 21.01.2018 at about 14.15 hrs, while the petitioner was driving his

Auto-rickshaw bearing Registration No.TN-15-D-2068 towards Sheik

Hussainpet from Ulundhurpettai with passengers in Chennai – Trichy

NH Road, the first respondent's bus bearing registration No.TN-19-D-

3416 driven in a rash and negligent manner and hit the auto from behind

as a result of which one passenger died on the spot and the petitioner and

the other passenger sustained grievous injuries and thus he is entitled for

compensation.

3.The second respondent filed a counter denying all the averments

made in the claim petition and stated that in any case, the claim was

excessive.

4.The first respondent, owner of the bus remained ex-parte before

the tribunal.

5.The appellant examined himself as PW1 and marked Ex.P.1 to

Ex.P.31. No witness was examined on the side of the respondents and https://www.mhc.tn.gov.in/judis

CMA No. 2065 / 2022

Ex.R.1 viz., MVI Report has been marked through PW1. The disability

certificate issued by the Medical Board was marked as Ex.C.1.

6.The Tribunal after considering the oral and documentary

evidence awarded a compensation of Rs.23,26,000/- to the appellant to

be paid by the second respondent. Aggrieved by the said quantum of

compensation, the appellant had preferred the instant appeal.

7.The learned counsel for the appellant submitted that the

compensation awarded by the Tribunal is meagre considering the nature

of injury suffered by the appellant and his avocation prior to the accident.

Though the Tribunal had applied the multiplier method, the notional

income fixed by the Tribunal at Rs.10,000/- per month is not just. The

learned counsel further submitted that the appellant was in the hospital

for 33 days and had suffered grievous injuries in the spine and the

Attender charges at Rs.10,000/- is meagre.

8.Though notice has been served on the first respondent, none has

entered appearance on behalf of them.

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

CMA No. 2065 / 2022

9.The learned counsel for the second respondent, per contra,

submitted that the Tribunal had awarded a just compensation and the

same need not be interfered with. Further, the learned counsel submitted

that the Tribunal having awarded compensation under the head loss of

income by adopting multiplier method, ought not to have awarded

compensation under the head physical disability by using percentage

method. Hence, in any case, the award passed by the Tribunal is

excessive and the same has to be reduced.

10.This Court on perusal of the records finds that the appellant was

owner cum driver of an auto-rickshaw. The Tribunal found that the

accident took place due to the rash and negligent driving of the driver of

the bus belonging to the first respondent. There is no dispute with regard

to the finding on negligence. It is seen from the records that the

appellant took treatment as in patient in JIPMER Hospital from

20.01.2018 to 23.01.2018 and at SIMS Hospital from 24.01.2018 to

07.02.2018 and at Manakula vinayagar Medical college from 07.02.2018

to 19.02.2018 and again at JIPMER Hospital from 31.03.2018 to

01.04.2018. The hospital records shows that the appellant suffered

fracture in three bones in the spinal cord and surgery was conducted to https://www.mhc.tn.gov.in/judis

CMA No. 2065 / 2022

treat the said fractures. The appellant had also during his examination

explained the nature of difficulty and hardship faced by him on account

of injuries. PW1, in his evidence, had stated that he is in a vegetative

state and his legs and hips are paralysed; and that because of the disc

compression and the neurological defect, his body from hip to toe is

paralysed; that he is unable to carry on his regular activities; and that he

needs constant support and assistance to take care of his daily needs.

There is no evidence to the contrary. In such circumstances, this Court is

of the view that the Tribunal was right in adopting the multiplier method.

However, the Tribunal had not taken into account the future prospects.

The Tribunal had taken Rs.10,000/-as notional income for the accident

that took place in the year 2018. The evidence of PW1 shows that he

was a owner cum driver of an auto-rickshaw. Considering the nature of

the job pursued by the appellant and the year of the accident, this Court is

of the view that notional income of the deceased has to be fixed at

Rs.15,000/- per month. Having regard to the fact that the appellant had

sustained grievous injuries and on account of the injuries he is now

reduced to vegetative state as stated earlier and cannot pursue his

avocation any more, he is entitled to future prospects as well. Since he

was aged 28 years, he was entitled to future prospects at 40%. Further, https://www.mhc.tn.gov.in/judis

CMA No. 2065 / 2022

the attendant charges awarded by the Tribunal at Rs.10,000/- is meagre

and the same is enhanced to Rs.50,000/- as he is in a vegetative state.

The physical disability in relation to his whole body is assessed at 70%.

In the facts and circumstances of the case, the disability assessed by the

Medical Board has to be treated as functional disability for the purpose

of calculating the loss of income by multiplier method. However, the

compensation under the head 'Permanent disability' is not warranted and

hence omitted. Thus, the loss of income is calculated as follows;

Rs.15,000/- + 40% = Rs.21,000 X 17 X 12 X 70/100 = Rs.29,98,800/-.

The compensation under the other heads are just and the same are

confirmed. Further, the appellant is entitled to loss of earnings during

the period of treatment. Thus, Rs.15,000/- X 12 = Rs.1,80,000/- is

awarded towards loss of earnings. Thus, the compensation awarded by

the Tribunal is modified as follows:

                            S. No Description        Amount          Amount      Award
                                                    awarded by       awarded confirmed or
                                                     Tribunal         by this  enhanced or
                                                       (Rs)         Court (Rs)   granted
                            1.    Loss of income        14,28,000    29,98,800      Enhanced
                            2.     Permanent             2,10,000           ---      Deleted
                                  disability
                            3.     Pain and              1,00,000     1,00,000     Confirmed
                                  sufferings

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

                                                                                    CMA No. 2065 / 2022


                            4.        Transportation        1,52,000     1,52,000     Confirmed
                            5.        Extra                   15,000      15,000     Confirmed
                                      Nourishment
                            6.        Cost of                 10,000      50,000      Enhanced
                                      Attendant
                            7.        Medical bills         4,11,000     4,11,000    Confirmed
                            8.         Loss of                   ----    1,80,000      granted
                                      earnings
                                      Total                23,26,000    39,06,800    Enhanced by
                                                                                    Rs.15,80,800/-

11. With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

Rs.23,26,000/- is hereby enhanced to Rs.39,06,800/- 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 second respondent / Insurance

Company is directed to deposit the enhanced award amount now

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

already deposited, if any, within a period of six (6) weeks from the date

of a receipt of copy of this Judgment. On such deposit the appellant is

permitted to withdraw the award amount along with proportionate

interest and costs, less the amount if any, already withdrawn. The

appellant is directed to pay the necessary Court Fee if any on the