Madras High Court

Niruban vs Thangamani on 9 March, 2023

                                                                                   CMA.No.2620 of 2014

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 09.03.2023

                                                         CORAM

                                  THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

                                                CMA.No.2620 of 2014

                   Niruban                                                             .. Appellant
                                                       Vs.
                   1. Thangamani
                   2.United India Insurance Co., Ltd.,
                     Cuddalore                                              .. Respondents

                   Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor

                   Vehicles Act 1988 against the Judgment and Decree dated 02.08.2013 made

                   in M.C.O.P.No.132 of 2011 on the file of the Motor Accidents Claims

                   Tribunal/(Sub-Court) Chidambaram.

                                    For Appellant            : Mr.V.Anand

                                    For Respondents          : Ms.I.Malar for R2

                                                              No appearance - R1

                                                     JUDGMENT

This appeal has been filed by the claimant seeking enhancement of

compensation under the impugned award dated 02.08.2013 made in

M.C.O.P.No.132 of 2011 on the file of the Motor Accidents Claims

Tribunal/(Sub-Court) Chidambaram.

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CMA.No.2620 of 2014

2. The case of the claimant / appellant is that on 23.09.2010 at about

09.00 p.m., while the appellant was riding his cycle along with other in the

left side of the road, a Toyota Qualis car bearing Regn.No.TN-46-C-7170

belonging to the first respondent driven by its driver in a rash and negligent

manner, hit the claimant due to which, he sustained grievous injuries hit

against the cycle, due to which, the appellant and his pillion rider sustained

injuries. Claiming that the driver of the car is solely responsible for the

accident, the appellant/claimant has filed a claim petition claiming a sum of

Rs.12,00,000/-

3. The Tribunal, based on the oral and documentary evidences and

has observed that the driver of the first respondent is responsible for the

accident and fastened the liability on the Insurance Company as insurer of

the first respondent and ultimately quantified the total compensation at

Rs.1,91,000/- with interest at the rate of 7.5% per annum from the date of

petition till the date of deposit. Aggrieved by which, the claimant /

appellant is before this Court.

4. The learned counsel for the claimant / appellant has

submitted that the Tribunal has failed to consider the doctor's evidence https://www.mhc.tn.gov.in/judis

CMA.No.2620 of 2014

who assessed the partial and permanent disability as 25% and awarded

only a sum of Rs.50,000/- which is contrary to the Apex Court Judgment.

He further submitted that the Tribunal has awarded a meagre sum of

Rs.35,000/- towards Medical Bills and expenses. He further submitted that

the claimant not only suffered head injury but also on his knees due to

which he could not sit normally on the floor and even could not lift the

normal weight. The Tribunal did not consider the age, income, expectation

of life, loss of amenities properly. He further submitted that the Tribunal

has failed to award adequate compensation under the heads of nourishment,

transport and attender charges. It has failed to award any amount under the

head of loss of amenities considering the age and work that he is a Welder.

He was aged about 28 years at the time of accident, he was a Welder

earning Rs.12,000/- per month. The doctor assessed the disability of the

appellant as 25% and thereby the Tribunal has awarded a sum of

Rs.50,000/- towards disability. He further submitted that PW2/Doctor

deposed that the injured has sustained injuries on the head and knees and

grievous injuries all over the body. Immediately after the accident, he was

admitted in the R.M.M.C.H, Chidambaram and later to PIMS Hospital,

Puducherry from 24.09.2010 to 09.10.2010. But the award granted by the

Tribunal under the heads of transport, nutrition, pain and suffering, loss of https://www.mhc.tn.gov.in/judis

CMA.No.2620 of 2014

income and attender charges are grossly low, unjust and arbitrary and

deserves to be enhanced and in any event, the Tribunal erred in awarding

compensation at Rs.1,91,000/- as against the claim of Rs.12,00,000/-.

Hence, he prays for enhancement of Award amount.

5. Before the Tribunal, the Appellant/claimant has examined four

witnesses and marked PW1 to PW4 and filed twenty documents which were

marked as Ex.P1 to Ex.P20 and one material object as MO1. On the side of

the second respondent/Insurance Company, neither witness was examined

nor any document marked.

6. Per contra, the learned counsel for the second respondent /

Insurance Company has submitted that the Tribunal has granted reasonable

compensation under various heads and no modification needs to be granted.

Hence, he prays to dismiss the petition.

7. This Court has considered the said submissions made by the

learned counsel for the appellant and the learned counsel for the second

respondent and perused the materials available on record.

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CMA.No.2620 of 2014

8. Based on the evidences of P.W.1 to PW4 and perusing the

exhibits in Ex.P1, Ex.P2, Ex.P4, Ex.P5, Ex.P6, Ex.P8, Ex.P11, Ex,P18, the

Tribunal has fastened the liability on the Driver of the car, which has to be

compensated by the second respondent herein.

9. As far as the quantum of compensation arrived at by the Tribunal

is concerned, to prove the avocation and income of the appellant P.W.1 has

been examined, who deposed that he was a Weldor and was earning more

than Rs.12000/- per month. The disability of the claimant was assessed as

25% based on cross-examination of PW2/Doctor and Ex.P8 to Ex.P10,

Ex.P18, Ex.P19 and Rs.2000/- for each percentage which is incorrect and

hence the same needs revisit. From the records, it is seen that he has taken

treatment in private hospitals even after discharge from the Government

Hospital. This court is of the considered opinion that the Rs.3000/- is the

correct assessment for each percentage instead of Rs.2000/- and thus

arrived at Rs.75000/- (3000 x 25%) towards disability. In respect of

income, Rs.10,500/ is fixed as his monthly income and due to the injuries

sustained by him, five months is taken for treatment period. Therefore,

Rs.52500/- (Rs.10500 x 5 months) is calculated as his loss of earning.

During the said treatment period, he has incurred transport expenses and the https://www.mhc.tn.gov.in/judis

CMA.No.2620 of 2014

same may be fixed at Rs.15000/-and nutrition may may be fixed at

Rs.15,000/- instead of Rs.10,000/- as assessed by the Tribunal.

10. With regard to loss of amenities, the Tribunal has not awarded

any amount and hence a sum of Rs.10,000/- is fixed by this court. The

Tribunal has awarded Rs.31,500/- towards loss of earning. Considering the

socio-economic conditions, this court re-fix the same as Rs.52,500(10500 x

5 months) taking five months for loss of income. This Court is of the

considered view that due to the nature of injuries sustained by the appellant

and treatment given in the hospital and the period of treatment as in-patient,

this court is inclined to take three months for calculation of loss of income.

Accordingly, the amount awarded towards loss of income stands modified

from Rs.3000/- to Rs.15000/. Further, on perusal of records, it is seen that

the Tribunal has not granted compensation under the head of loss of

amenities, attender charges and transport expenses. Accordingly, a sum of

Rs.15,000/- towards Transport Expenses, Rs.15000 towards Nutrition and

Rs.10,000/- towards attender charges respectively is awarded by this court.

Due to the grievous injuries sustained by the claimant, he had taken the help

of attender and hence award under the attender charges is fixed at

Rs.10,000/-.

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CMA.No.2620 of 2014

11. Insofar as the other heads such as pain and sufferings and

medical expenses, the assessment of the compensation awarded by the

Tribunal is a just compensation and they do not call for any interference by

this Court.

12. In fine, the re-structured compensation, item-wise, would be thus:

                                      Heads          Amount        Award Amount
                                                    awarded by      by this Court
                                                   the Tribunal         (Rs.)
                                                       (Rs.)
                              Loss of earning           31,500/-             52,500/-

                              Transport                   9500/-             15,000/-
                              Nutrition                 10000/-              15,000/-
                              Medical Expenses          35000/-              35,000/-
                              Attender Charges            5000/-             10,000/-
                              Pain & Sufferings         50000/-              50,000/-
                              Disability                50000/-              75,000/-
                              Loss of amenities         ----                 10,000 /-
                              Total                   1,91,000/-           2,62,500/-


                             13. In the result,

a) this Civil Miscellaneous Appeal filed by the claimant / appellant is

partly allowed, by enhancing the total amount of compensation from

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CMA.No.2620 of 2014

Rs.1,91,000/- to Rs.2,62,500/- along with interest at the rate of 7.5% p.a.

from the date of filing of the petition till the date of deposit.

(b) The second respondent/Insurance Company is directed to deposit

the Award amount together with interest from the date of claim till the date

of deposit and costs as assessed by the Tribunal, to the credit of

M.C.O.P.No.132 of 2011 within a period of six weeks from the date of

receipt of a copy of this Judgment. Needless to state that the appellant shall

pay necessary court fees for the enhanced compensation amount before