Madras High Court
T.Prabhu vs A.Paramasivam on 30 March, 2023
C.M.A.(MD)No.464 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A.(MD)No.464 of 2022
T.Prabhu ...Appellant/Petitioner
Vs.
1.A.Paramasivam
2.The General Manager,
United India Insurance Company Limited.,
Ground Floor, United India Complex,
Aurubindo Road, Block-19,
Neyveli, Cuddalore-607 803. ...Respondents/Respondents
PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of
the Motor Vehicles Act, 1988, to set aside or modify the judgment and
decree dated 21.12.2021 passed in M.C.O.P.No.81 of 2019 on the file fo
the Motor Accident Claims Tribunal Cum Chief Judicial Magistrate,
Theni and allow the appeal with costs.
For Appellant : Mr.S.Vikram
For R2 : Mr.C.Karthik
1/9
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C.M.A.(MD)No.464 of 2022
JUDGMENT
This Civil Miscellaneous Appeal has been filed challenging the
quantum of compensation awarded by the Tribunal.
2.For the sake of convenience, the parties are referred to herein,
as per their rank before the Trial Court.
3.The brief facts, leading to the filing of this Civil
Miscellaneous Appeal, are as follows:-
(i)the injured claimant was proceeding in his auto bearing
Registration No.TN-60-S-3849 on 11.03.2018 at about 03.00 p.m., along
with some passengers. At the time, the offending vehicle bearing
Registration No.TN-07-AR-7328 came in an opposite direction dashed
against the auto and as a result, the claimant sustained multiple grievous
injuries all over his body. The passengers of the auto had also sustained
injuries.
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C.M.A.(MD)No.464 of 2022
(ii)The first respondent before the Tribunal took a stand that at
the time of accident, the claimant was only rash and negligent in driving
the auto.
(iii)The Insurance Company before the Tribunal admitting the
accident took a stand that the claimant allowed excessive passengers in
his auto, which resulted in the accident.
4. Before the Tribunal, on the side of the claimant, the claimant
himself was examined as P.W.1 and Ex.P1 to Ex.P8 were marked. On the
side of the respondent R.W.1 was examined and Ex.R1 was marked.
Ex.C1 was also marked.
5.The tribunal on appreciation of entire evidence available on
record and also the disability certificate marked as Ex.C1, found that the
driver of the car/first respondent was rash and negligence in driving
awarded the compensation as indicated below:
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C.M.A.(MD)No.464 of 2022
S.No. Description Amount
1. Permanent Disability Rs.3,00,000/-
2. Pain and suffering Rs. 60,000/-
3. Nutritious charges Rs. 20,000/-
4. Loss of income Rs. 48,000/-
Total Rs.4,28,000/-
Challenging the same, the present Civil Miscellaneous Appeal has been
filed by the claimant.
6.I have heard the learned counsel appearing on either side and
also perused the materials available on record.
7.The learned counsel for the appellant mainly contended that
the disability certificate clearly shows that the claimant had suffered 60%
permanent disability and his total hip had been immobilised. There
would be no movement. This aspect was not taken into consideration by
the Tribunal. Though sufficient evidence was available in the records, the
Tribunal had simply rejected the claim of the claimant on the ground that
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C.M.A.(MD)No.464 of 2022
no proper evidence had been adduced by the claimant to substantiate the
said fact. Further, the Tribunal had not adopted multiplier method.
8.The learned counsel for the respondent would submit that the
accident was occurred mainly due to the excessive passengers in the auto.
Therefore, contributory negligence has to be fixed on the part of the
claimant.
9.In view of the above submission, now the point arises for
consideration in this appeal is:
(1) Whether the compensation awarded by the Tribunal is
proper?
10.Admittedly, the accident and the Insurance are not disputed
by both sides. Though in the copy of the Accident Register, it was
mentioned that the claimant had sustained only fracture in his right Tibia,
it is relevant to note that mere entry in the AR copy cannot be a
determinative factor. At the time of admission in the causality, the entries
reflected in the AR copy cannot be a conclusive. Sometimes, the nature
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C.M.A.(MD)No.464 of 2022
of injuries sustained by the parties will be missed in the AR copies. But
the fact remains that he was admitted in the Government Medical College
Hospital at the time of accident. Thereafter, total hip replacement
surgery was conducted on 14.09.2018 and he was discharged on
22.09.2018. This had been clearly noted by a team of Doctors, while
assessing disability. Therefore, merely because the AR copy did not
contain this particular, it cannot be stated that the claimant had not
sustained any injuries at the time of accident.
11.The Tribunal having considered the disability certificate, the
nature of injuries, his continuous treatment and the surgery underwent by
him, had awarded only Rs.8,000/- as monthly income. The claimant was
a auto driver by profession.
12.Taking note of the total immobilization, replacement of hip,
the functional disability and also considering the disability certificate
under Ex.C1, this Court fixes the monthly income of the injured claimant
at Rs.9,000/- (Rupees Nine Thousand only) per month. In the case of
injuries, there would be no deduction towards personal expenses. Hence,
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C.M.A.(MD)No.464 of 2022
the deduction made by the Tribunal is hereby set aside. Further,
considering the age of the claimant at the time of accident, this Court
fixes 17 as multiplier as per the dictum laid down in the National
Insurance Company Ltd., vs. Pranay Sethi and Others [CDJ 2017 SC
page 1220]. In the result, the claimant is entitled to the compensation as
stated below:
S.No. Description Amount
1. Loss of income
(9,000*12*17*60/100) Rs.11,01,600/-
2. Pain and suffering Rs. 60,000/-
3. Nutritious charges Rs. 20,000/-
Total Rs.11,81,600/-
13.In fine, this Civil Miscellaneous Appeal is allowed and the
compensation awarded by the Tribunal is enhanced as stated above.
14.The second respondent/Insurance Company is directed to
deposit the compensation amount as modified by this Court i.e.,
Rs.11,81,600/- (Rupees Eleven Lakhs Eighty One Thousand Six Hundred
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C.M.A.(MD)No.464 of 2022
only) with interest at the rate of 7.5% per annum from the date of petition
till the date of realization to the credit of M.C.O.P.No.81 of 2019, on the
file of the Motor Accident Claims Tribunal /Chief Judicial Magistrate,
Theni within a period of one month from the date of receipt of a copy of
this judgment, less the amount, if any already deposited. On such
deposit, the claimant is permitted to withdraw said amount, less the
amount if any already withdrawn, by making necessary application
before the Tribunal. No costs.
30.03.2023
NCC : Yes/Nos
Index : Yes/No
Internet : Yes/No
ta
To
1.The Motor Accident Claims Tribunal/
Chief Judicial Magistrate, Theni.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.464 of 2022
N.SATHISH KUMAR, J.
ta
C.M.A.(MD)No.464 of 2022
30.03.2023
https://www.mhc.tn.gov.in/judis
