Madras High Court

V.Suriya vs Sri Ambal Agencies on 28 July, 2023

CMA No. 956 / 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 28.07.2023

CORAM :

THE HONOURABLE MR. JUSTICE SUNDER MOHAN

Civil Miscellaneous Appeal No. 956 of 2022

V.Suriya ... Appellant
Versus

1.Sri Ambal Agencies,
No.3/136, North Street,
A. Valavanthi Main Road,
Thalamalaipatty Post, Namakkal Taluk,
Namakkal District.
(R-1 remained exparte before the Tribunal)

2.M/s. Oriental Insurance Company Limited,
KVA Complex, No.90-A, Thuraiyur Road,
Namakkal Taluk and District. ... Respondents

PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the judgment and decree dated
21.08.2017 made in M.C.O.P. No.721 of 2016 on the file of the MACT /
Additional District Court at Namakkal.

For Appellant : Mr. Lokesh
for Mr.C. Ramaraj

For Respondents : Mr.Eleveera Ravindran for R2
No appearance for R1

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CMA No. 956 / 2022

JUDGMENT

The appeal has been filed by the petitioner challenging the

quantum of compensation awarded by the Tribunal in M.C.O.P. No. 721

of 2016 dated 21.08.2017.

2. The appellant had filed the claim petition before the Tribunal

stating that on 17.02.2015, while he was riding as a pillion rider in a two

wheeler bearing Registration No.TN28 AL 7536 on the left side of the

road towards East to West direction on the Duraiyur – Namakkal main

road, near Nallipalayam Earikarai Kasthuri Patty Bus stop cut road,

opposite to mortuary, an auto bearing Registration No.TN28 AM 6540

which was coming in the opposite direction, driven by its driver in a rash

and negligent manner, dashed against the motorcycle in which the

appellant was riding as a pillion rider and caused the accident. In the

said accident, the appellant sustained grievous injuries and thus filed

claim petition claiming a sum of Rs.25,00,000/- as compensation against

the respondents.

3. The first respondent remained ex-parte before the tribunal.

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CMA No. 956 / 2022

4. The second respondent filed counter denying all the averments

made in the claim petition. The accident occurred only due to the rash

and negligent riding by the rider of the motorcyle. The rider of the

motorcycle did not possess valid driving licence at the time of accident.

The owner and insurer of the motorcycle were not impleaded as parties to

the claim petition. Hence, the petition is bad for non-joinder of necessary

parties. The age, occupation and income of the appellant are denied. The

compensation claimed by the appellant is highly excessive and prayed for

dismissal of the claim petition.

5. The appellants examined two witnesses on their side and marked

Exs.P.1 to Exs.P.13. The second respondent examined two witnesses on

their side and marked Exs.R.1 to Exs.R.3. Three documents were

marked as Exs.X.1 to Exs.X.3.

6. The Tribunal after considering the oral and documentary

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

driving by the driver of the auto belonging to the first respondent and

directed the second respondent/insurance company to pay a sum of https://www.mhc.tn.gov.in/judis

CMA No. 956 / 2022

Rs.8,22,200/- as compensation to the appellant, at the first instance and

recover the same from the first respondent since the driver of the auto dis

not possess valid driving licence at the time of accident. Aggrieved over

the quantum of compensation awarded by the Tribunal, the appellant has

preferred the instant appeal.

7. The learned counsel for the appellant submitted that at the time

of accident, the appellant was aged 19 years, working as a carpenter,

earning a sum of Rs.15,000/- per month. In the accident, the appellant

sustained grievous head injury, fracture of left hand and fracture of right

leg compensation due to which he is unable to do his work as he was

doing earlier. The notional monthly income fixed by the Tribunal at

Rs.6,500/- for the accident which took place in the year 2015 is meagre.

The learned counsel further submitted that PW2-doctor issued

Ex.P.11/disability certificate assessing the disability sustained by the

appellant as 48%. However, the Tribunal without any basis, reduced the

disability to 40% and awarded compensation. The learned counsel

further submitted that the compensation awarded by the Tribunal under

the heads pain & sufferings, extra nourishment, loss of amenities,

transportation and attender charges are meagre and prayed for https://www.mhc.tn.gov.in/judis

CMA No. 956 / 2022

enhancement of compensation.

8. Though notice has been served on the first respondent and his

name has been printed in the cause list, none has entered appearance on

behalf of the first respondent.

9. The learned counsel for the second respondent per contra

submitted that the appellant did not subject himself to the Medical Board.

The disability certificate issued by PW2-doctor ought not to have been

accepted by the Tribunal. The appellant has not proved that he has

suffered functional disability and hence the Tribunal ought not to have

awarded compensation by adopting multiplier method. The appellant has

not produced any documents to substantiate his avocation and income.

In the absence of any material documents, the notional monthly income

fixed by the Tribunal is just and reasonable. Considering the nature of the

injuries, the disability assessed by PW2-Doctor at 48% is on the higher

side. The compensation awarded by the Tribunal under different heads

are also on the higher side and prayed of dismissal of the appeal.

10. Heard the learned counsel appearing for the appellant as well https://www.mhc.tn.gov.in/judis

CMA No. 956 / 2022

as the second respondent and perused the materials available on record.

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CMA No. 956 / 2022

11. The short question involved is this instant appeal is “whether

the appellant is entitled to enhancement of compensation under the head

loss of income”.

12. From the materials on record, it is seen that the appellant was

working as a carpenter at the time of accident. The accident had taken

place in the year 2015. Though the appellant has claimed a sum of

Rs.15,000/- towards his monthly income, he has not proved the same.

Considering the cost inflation index and the fact that the daily wage

workers are also earning substantially at the relevant point of time and

even taking a conservative view of the matter, this Court is of the view

that the notional income of the appellant can be fixed at Rs.12,000/- per

month. However, since there is no evidence to prove that the appellant

suffered loss of future earning capacity, he is not entitled to enhancement

under the head future prospects.

13. Further, it is seen that PW2-Doctor has examined the appellant

and assessed the disability of the appellant as 48%. PW2-Doctor has not

assessed the functional disability of the appellant. However, the Tribunal https://www.mhc.tn.gov.in/judis

CMA No. 956 / 2022

had reduced the disability of the appellant to 40% and awarded

compensation by adopting multiplier method. It is seen from the

evidence of PW1 & PW2 that the appellant had suffered the following

injuries -

1. RTA with anterior frontal hemorrhagic contusion.

2. Bilateral cerebral parietal and frontal cortical sulcal spaces acute sub arachnoids hemorrgage with sub dural pneumocephalus.

3. Multiple linear displaced as well as depressed commented fractures involving walls of both maxillary, ethnocide, sphenoid sinuses.

4. Fracture left orbit, left frontal, nasal, bony nasal septum

5. Fracture syphilis and para syphilis of left mandible

6. Fracture of both mandible condoyle and dislocation of both temporal mandible joints with adjacent scalp and facial soft tissue hematoma.

7. Left forearn fracture

8. Left olecranon fracture

9. Facial nerve fracture

14. The appellant has also stated in his deposition that on account

of the injuries, he is unable to carry on his job in the manner as he was

doing earlier. Considering the nature of injuries and the evidence

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CMA No. 956 / 2022

adduced by the parties and the nature of job pursued by the appellant,

this Court is of the view that the functional disability can be fixed at

25%. Thus, the compensation under the head loss of income is modified

as follows :

Rs.12,000 x 12 x 18 x 25/100 = Rs.6,48,000/-.

15. The amounts awarded by the Tribunal under the other heads

are just and reasonable. Hence, the same need not be interfered with.

Thus, the compensation awarded by the Tribunal is modified as follows;

                            S.  Description           Amount          Amount          Award
                            No.                      awarded by     awarded by     confirmed or
                                                      Tribunal       this Court    enhanced or
                                                        (Rs)            (Rs)         granted
                            1.        Loss of            5,61,600       6,48,000    Enhanced
                                     income
                            2.       Medical             2,25,640       2,25,640    Confirmed
                                     expenses
                            3.       Pain and              10,000         10,000    Confirmed
                                     sufferings
                            4.        Loss of              10,000         10,000    Confirmed
                                     amenities
                            5.       Extra                  5,000          5,000    Confirmed
                                     Nourishment
                            6.       Transport              5,000          5,000    Confirmed
                                     Expenses
                            7.       Attendant              5,000          5,000    Confirmed
                                     Charges
                                     Total         8,22,240/-          9,08,640/- Enhanced by
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                                                                                   CMA No. 956 / 2022

rounded off to rounded off to Rs.86,400/-

Rs.8,22,200 Rs.9,08,600

16. With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

Rs.8,22,200/- is hereby enhanced to Rs.9,08,600/- 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, at the first instance and recover the

same from the first respondent. On such deposit, the appellant is