Madras High Court

Sudhakar vs Sivakumar on 21 November, 2023

                                                                                    C.M.A. No. 1849 of 2021


                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED : 21.11.2023

                                                           CORAM:

                                    THE HONOURABLE MR. JUSTICE K. RAJASEKAR

                                                   C.M.A. No. 1849 of 2021

                     Sudhakar                                  ... Appellant / Petitioner

                                                              Vs.
                     1.           Sivakumar

                     2.           Bharti AXA General Insurance
                                   Company Limited,
                                  2nd Floor, Metro Plaza,
                                  No.162, Anna Salai,
                                  Chennai -2.                  ... Respondents / Respondents


                                  Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act, 1988 against the Judgment and decree dated 25.10.2019
                     passed in M.A.C.T.O.P. No. 3127 of 2015 on the file of the II Special Sub
                     Judge, Motor Accident Claims Tribunal, Special Sub Court -2 for Motor
                     Accident Claims Petitions, Small Causes Court, Chennai.


                                  For Appellant    :      M/s. M. Malar
                                  For R1           :      Dispensed With
                                  For R2           :      No Appearance



                     1/9
https://www.mhc.tn.gov.in/judis
                                                                                   C.M.A. No. 1849 of 2021


                                                        JUDGMENT

This Civil Miscellaneous appeal has been filed by the claimant

seeking enhancement of compensation awarded in M.A.C.T.O.P. No.3127

of 2015, dated 25.10.2019 on the file of the II Special Sub Judge, Motor

Accident Claims Tribunal, Special Sub Court -II for Motor Accident Claims

Petitions, Small Causes Court, Chennai.

2. For the sake of convenience, the parties are referred herein

according to their litigative status and rank before the Tribunal.

3. The case of the claimant is that on 30.12.2014 at about 23:30

Hours, the claimant was riding his two wheeler bearing Registration No.TN-

07-AB-8839 on Kathanchavadi R.G. Salai service road, while he reached

near Prince Tower, an auto bearing Registration No.TN-04-U-0650 driven

by its driver in rash and negligent manner, hit against the two wheeler of the

claimant causing grievous injuries to the claimant. A criminal case was also

registered against the auto driver in Cr.No.1087/S1/2014 on the file of the

J3, Guindy Traffic Investigation, Chennai. Due to the injuries sustained, the

claimant has come forward with a claim petition seeking compensation for a

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

sum of Rs.10,00,000/- along with interest under section 166 of Motor

Vehicles Act, 1988.

4. The first respondent is the owner of the auto bearing

Registration No.TN-04-U-0650 has not contested the claim and remained

ex-parte. The second respondent - insurance company is the insurer of the

first respondent auto has filed a counter and denied the manner in which the

accident has taken place and also disputed the age, occupation, income and

the disability of the claimant. The insurance company also contended that

the accident was taken place due to the negligence on the part of the

claimant and also denied the validity of insurance policy to the auto at the

time of occurrence. The insurance company also contended that the

compensation claimed under various heads is on the higher side, hence

prays to dismiss the claim petition.

5. Before the Tribunal, on the side of the claimant, P.W.1 and

P.W.2 were examined and Exs.P.1 to P.14 were marked, on the side of the

respondent, no witnesses were examined and no exhibits were marked.

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

6. Based on the evidence placed on record, the Tribunal in point

No.1, has held that the rash and negligence on the part of the driver of the

auto bearing Registration No.TN-04-U-0650 is responsible for the accident.

In point nos. 2 and 3, the Tribunal has quantified and granted compensation

for a sum of Rs.67,409/- along with interest @ 7.5% per annum from the

date of filing of petition till the date of realization and fixed the liability on

the second respondent - insurance company to indemnify the first

respondent and to pay the compensation to the claimant.

7. Aggrieved over the compensation awarded by the Tribunal, the

claimant has come forward with this appeal seeking enhancement of

compensation.

8. The learned counsel appearing for the claimant has submitted

that the compensation awarded under the head disability is on the lower

side. According to her, the claimant has sustained two fractures in cerepitus

left clavicle and cerepitus right big toe, hence the Doctor has assessed the

disability of the claimants as 20% but the Tribunal without giving any

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

reason has fixed the disability as 5% and awarded Rs.3,000/- per percentage

of disability.

9. In this case, the evidence of the P.W.2 - Doctor, who assessed

the disability of the claimant shows that there are various complications

sustained by the claimant, subsequent to the accident, these complications

has not been properly adverted by the Tribunal. Without giving any

reasoning, the Tribunal has reduced the percentage of disability. This Court

is of the view the reduction of percentage of disability by the Tribunal is not

proper and accepts the 20% disability assessed by the P.W.2. This Court

judgment in M. Chinnathambi vs. S. Deepa and another reported in [CDJ

2020 MHC 1013; 2020 (1) TNMAC 617] has held that due to paucity of

time, the compensation awarded under percentage of injury method in the

year 2014 and 2015 has fixed Rs.4,000/- per percentage of injury, hence,

this Court is of the view that Rs.4,000/- per percentage of disability in this

case is proper, accordingly, Rs.80,000/- (Rs.4,000/- x 20% (disability)) is

awarded under the head disability.

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

10. The Tribunal has awarded Rs.5,000/- each under the heads loss

of amenities, transportation charges and pain and suffering. This Court is of

the view the compensation under the above heads are on the lower side,

hence inclined to modify the same as Rs.15,000/- for loss of amenities,

Rs.10,000/- towards transportation charges and Rs.15,000/- towards pain

and suffering. As far as the other heads are concerned, the Tribunal has

awarded just compensation and the same is hereby confirmed.

11. Accordingly, the award passed by the Tribunal under various

heads are hereby modified as follows:

S. Description Amount Amount Award
No awarded by awarded by confirmed
Tribunal this Court or enhanced
(Rs) (Rs) or reduced
1. Disability 15,000/- 80,000/- Enhanced
2. Pain and Sufferings 5,000/- 15,000/- Enhanced
3. Transport expenses 5,000/- 10,000/- Enhanced
4. Extra Nourishments 5,000/- 5,000/- Confirmed
5. Damges to articles 1,000/- 1,000/- Confirmed
6. Attender charges 5,000/- 5,000/- Confirmed
7. Loss of amenities 5,000/- 15,000/- Enhanced
8. Loss of expectation of 1,000/- 1,000/- Confirmed
life

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

S. Description Amount Amount Award
No awarded by awarded by confirmed
Tribunal this Court or enhanced
(Rs) (Rs) or reduced
9. Loss of income 24,000/- 24,000/- Confirmed
10. Medical expenses 1,409/- 1,409/- Confirmed
Total Compensation 67,409/- 1,57,409/- Enhanced
67,500/-
(round off)

12. In the result, this Civil Miscellaneous Appeal is partly allowed

and the compensation awarded by the Tribunal at Rs.67,500/- is hereby

enhanced to Rs.1,57,409/- [Rupees One Lakh Fifty Seven Thousand

Four Hundred and Nine only] together along with interest at the rate of

7.5% per annum from the date of filing of Claim Petition till the date of

deposit. The second respondent -Insurance Company is directed to deposit

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

amount already deposited, if any, within a period of six weeks from the date

of receipt of a copy of this judgment to the credit of M.A.C.T.O.P.No.3127

of 2015 on the file of the II Special Sub Judge, Motor Accidents Claims

Tribunal, Special Sub Court -II for Motor Accident Claims Petitions, Small

Causes Court, Chennai. On such deposit, the appellant/ claimant is