Madras High Court
V.Elumalai vs Mrs.D.Radha on 27 June, 2023
C.M.A.No.3889 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.06.2023
CORAM:
THE HONOURABLE Mrs.JUSTICE R.KALAIMATHI
C.M.A.No.3889 of 2019
V.Elumalai ... Appellant
vs.
1. Mrs.D.Radha
2.Reliance General Ins. Co. Ltd.
Motor III Party Claims Office
Raj Towers, Plot No.2054, 2nd Avenue
2nd Floor, Anna Salai, Chennai-2 ... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, against the Judgment and decree made in MCOP
NO.1988 of 2014 on the file of II Judge, Small Causes Court at Chennai
dated 6th day of June 2019.
For Appellant : Mr.T.G.Balachandran
For Respondents : Mr.P.Suresh Srinivasan for R2
R1-Refused
1/12
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C.M.A.No.3889 of 2019
JUDGMENT
This Civil Miscellaneous Appeal has been preferred against the
Judgment and decree passed in M.C.O.P.No.1988 of 2014 dated
06.06.2019 on the file of the Motor Accident Claims Tribunal (II Court of
Small Causes, Chennai), Chennai, for the enhancement of compensation.
2. The claim application was filed under Section 166 of the Motor
Vehicles Act, 1988 and under Rule 3 of MACT Rules claiming
compensation of Rs.15 lakhs for the injuries sustained by the appellant /
claimant in the Motor road accident that had taken place on 21.03.2014.
The Tribunal, after hearing both sides and upon considering the oral and
documentary evidence, has granted compensation of Rs.2,35,000/-
payable by the 2nd respondent/insurance company, with interest at the rate
of 7.5% per annum, from the date on which the petition was taken on file till
the date of deposit.
3. Reiterating the grounds of appeal, Mr.T.G.Balachandran, the
learned counsel appearing for the appellant would strenuously contend that
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on account of the accident, the appellant/claimant sustained “Comminuted
Subrochantric Fracture Femer Right Side. The doctor, who is examined as
P.W.2/Dr.Saravanabavanandham, has assessed the disability as 30%. The
Tribunal has taken disability as 10%. At the best, the Tribunal ought to have
taken the disability as 25% by reducing 5% disability. Though Ex.P.7-
Rough estimate in respect of future medical expenses was marked, no
amount was granted under this head. Further, no amount was granted
under the heads of loss of amenities and loss of earning during treatment
period. He further contended that in respect of the medical bills-Ex.P.5 for a
sum of Rs.1,34,603/- was produced, the Tribunal, holding that there is no
dispute over it, granted only an amount of Rs.1,30,000/- towards medical
expenses. He also contended that with regard to the loss of earning
capacity, in view of the disability suffered by the appellant and due to which
he is not able to attend his work as he did before, multiplier method has to
be invoked. To strengthen his argument, the following judgments were
referred to;
(i) In Rajkumar Vs. Ajaykumar and Another reported in (2011) 1
SCC 343 wherein, the Hon'ble Supreme Court has held that the injured
claimant was a Cheese Vendor and on account of accident, he suffered
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C.M.A.No.3889 of 2019
fracture of both bones of left leg and fracture of left radius. The Tribunal
has taken the disability of 45% which is shown in the disability certificate,
as economic disability. In appeal, the High Court rejected for increase in
compensation on the ground that the disability certificate was not reliable
and the Supreme Court held that the Tribunal overlooked the fact that the
disability referred to 45% disability with reference to left lower limb and not
in regard to the functional disability of the body. The Hon'ble Apex Court
assessed the permanent functional disability of body of the injured/claimant
as 25% and a stress was made by the Hon'ble Apex Court that the
percentage of permanent disability is expressed by the doctors with
reference to the whole body, or more often than not with reference to a
particular limp.
(ii) In C.A.No.1134 of 2015 Judgment dated 16.06.2015 (The
Managing Director, Tamil Nadu State Transport (Villupuram) Limited
Vs. Hyder Ali), this Court has confirmed the Judgment of the Tribunal
wherein, the claimant had suffered fracture of both bones in his right leg
viz., tibia & fibula and after treatment, he suffered malunion of bones
resulting in inability to walk normally and restriction of the movement of the
right ankle. The Tribunal has taken the disability as 30% though the
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C.M.A.No.3889 of 2019
disability was assessed as 45% and by invoking multiplier method, an
amount of Rs.2,97,000/- was granted, which was confirmed by this Court.
4. Per contra, Mr.P.Suresh Srinivasan, learned counsel for the 2nd
respondent/Insurance company vehemently contended that as regards the
future medical expenses, the claimant has not undergone any surgery for
the removal of implant. He further contended that the Tribunal, after taking
into consideration the oral and documentary evidence, has granted
amounts under various heads and the same appear to be reasonable and
hence, they need no interference.
5. The manner in which the accident had taken place is not in
dispute. From the evidence of P.W.1, it is seen that on 21.03.2004, at
about 8.30 hours, while the appellant/claimant was traveling in a motorcycle
with his daughter, bearing Regn.No.TN09-BP-3874 along Old Mambalam
Road to Govindan road junction from South to North direction, a motorcycle
bearing Regn.No.TN-09-BP-0304, came from East to West direction in a
rash and negligent manner, hit his motorcycle, thereby caused the injuries.
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C.M.A.No.3889 of 2019
6. To substantiate the case of the appellant, the appellant and
Dr.Saravanabavanantham have been examined as P.W.1 and P.W.2
respectively. As many as 16 documents have been marked on the
appellant/claimant's side as Ex.P.1 to Ex.P.16. Discharge summary issued
by the Pallava Hospital is marked as Ex.P.4. Ex.P.5 is the series of medical
bills. The estimate as regards the future medical expenses is marked as
Ex.P.7.
7. On the respondents' side, neither any oral evidence nor
documentary evidence was let in.
8. The appellant/claimant is said to be running a tea stall. Tea Stall
licence is marked as Ex.P.10. It is, therefore, evident that he has been
continuously running tea stall. It could be seen from Ex.P.4-discharge
summary that he sustained “Comminuted Subrochantric Fracture Femer
Right Side” and he had undergone a surgery where “Open
Reduction/Reconstruction of Nailing was done under S.A. on 24.03.2014. It
is also evident that he was treated as inpatient for 9 days. The disability is
assessed by Dr.Saravanabavanantham-P.W.2 as 30%. The disability was
fixed by the Tribunal as 10%. The Tribunal held that there is no evidence to
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C.M.A.No.3889 of 2019
show that his nature of job or income is lost. Femur bone is the thigh bone.
Of course, after treatment, the claimant would definitely find it difficult to lift
the weight and climbing up. However, as the claimant, who is running a tea
stall, would not find much difficulties in continuing the same. Therefore, the
question of invoking multiplier method for the loss of income does not arise.
However, taking into consideration the age of the appellant and the injuries
sustained during the course of accident and also its impact on the
avocation, an amount of Rs.5,000/- is awarded in addition to the amount
already awarded by the Tribunal with regard to disability.
9. Due to the fracture suffered by the appellant and the surgery
underwent by him, an amount of Rs.24,000/- is granted towards loss of
income for 3 months by fixing his monthly income as Rs.8,000/-. An
amount of Rs.10,000/- is granted for loss of amenities.
10. As regards the medical bills, the Tribunal, after scrutinizing the
bills produced, awarded a sum of Rs.1,30,000/-, which needs no
interference.
11. As regards the other heads, the amount awarded by the Tribunal
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appears to be reasonable and hence, the same need not be interfered with.
Therefore, the compensation awarded by the Tribunal is reworked as
tabulated below:
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C.M.A.No.3889 of 2019
Sl. Description Amount Amount Award
No. awarded by awarded by this confirmed or
Tribunal Court enhanced or
granted or
reduced
1 Disability Rs.35,000/- Rs.40,000/- Enhanced
2 Pain and Sufferings Rs.25,000/- Rs.25,000/- Confirmed
3 Extra Nourishment Rs.25,000/- Rs.25,000/- Confirmed
4 Transportation Rs.20,000/- Rs.20,000/- Confirmed
5 Medical Expenses Rs.1,30,000/- Rs.1,30,000/- Confirmed
6 Loss of Income -- Rs.24,000/- Awarded
7 Loss of Amenities --- Rs.10,000/- Awarded
Total Rs.2,35,000/- Rs.2,74,000/- Enhanced
12. Thus, the compensation awarded by the Tribunal is enhanced
from Rs.2,35,000/- to Rs.2,74,000/- which would carry interest at the rate
of 7.5% per annum from the date on which the petition was taken on file till
the date of realisation.
13. In the result,
(i) The Civil Miscellaneous Appeal is partly allowed. No costs.
(ii) The compensation awarded by the Tribunal is enhanced from
Rs.2,35,000/- to Rs.2,74,000/-.
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(iii) The 2nd respondent / Insurance Company is directed to deposit
the enhanced compensation amount i.e., Rs.2,74,000/- (less the amount
already deposited if any) together with interest at the rate of 7.5% per
annum from the date on which the petition was taken on file till the date of
realisation to the credit of M.C.O.P.No.1988 of 2014 on 06.06.2019 on the
file of the Motor Accident Claims Tribunal (II Court of Small Causes,
Chennai) Chennai, within a period of eight weeks from the date of receipt of
a copy of this Judgment.
(iv) On such deposit being made, the appellant / claimant is at liberty
to withdraw the same on filing of cheque petition. The claimant is directed
to pay the requisite Court fee for the enhanced compensation amount, if
required. The Tribunal below shall disburse the enhanced amount upon
production of the certified copy showing proof of payment of Court fee by
the claimant.
27.06.2023
Index : Yes/No
Speaking / Non-speaking order
ksa-2
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C.M.A.No.3889 of 2019
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C.M.A.No.3889 of 2019
R.KALAIMATHI, J.,
ksa-2
To:
1. The Motor Accident Claims Tribunal
(II Court of Small Causes, Chennai) Chennai
2. The Section Officer,
V.R.Section,
High Court of Madras,
Chennai.
C.M.A.No.3889 of 2019
27.06.2023
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