Madras High Court

K.Vignesh vs Bcg Tanners on 29 November, 2023

Author: M.Dhandapani

Bench: M.Dhandapani

                                                                                   C.M.A.No.1104 of 2020

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 29.11.2023

                                                         CORAM:

                                    THE HONOURABLE MR.JUSTICE M.DHANDAPANI

                                                  C.M.A.No.1104 of 2020

                   K.Vignesh                                                             ...Appellant

                                                            Vs.

                   1.      BCG Tanners,
                           No.58/38, 13th Cross Street, New Colony,
                           Chromepet, Chennai.

                   2.      The New India Assurance Company Limited,
                           No.45, Moore Street, Vth Floor, Chennai – 1.
                           Now the 2nd respondent having third (party cell) office at,
                           No.232, N.S.C. Bose Road, VI-Floor,
                           Chennai – 1.                                                ...Respondents


                              Civil Miscellaneous Appeal filed under Section 173 of Motor
                   Vehicles Act, 1988, as against the judgment and decree dated 06.10.2016
                   made in M.C.O.P.No.2306 of 2006 on the file of the VI-Small Causes Court,
                   Chennai/Motor Accident Claims Tribunal, Chennai.

                                  For Appellant   : Mr.K.Ponnuswamy for
                                                    M/s.Anand and Suryas

                                  For Respondents : R1 – Exparte
                                                    Ms.C.Sangamithirai, for R2


                   Page No.1 of 9




https://www.mhc.tn.gov.in/judis
                                                                                   C.M.A.No.1104 of 2020




                                                      JUDGEMENT

Challenging the judgment and decree dated 06.10.2016 made in

M.C.O.P.No.2306 of 2006 on the file of the VI-Small Causes Court, Chennai/

Motor Accident Claims Tribunal, the claimant is before this Court.

2. The case of the appellant is that, on 08.09.2005 at about 03.15 p.m.,

when the appellant, who was a minor at that time, was crossing the Radha

Krishan Salai, Near Fire Station Department and was proceeding from South

to North direction, a car bearing Regn.No.TN-22-AC-3637, owned by the 1st

respondent, insured with the 2nd respondent came in a rash and negligent

manner and hit the appellant, as a result of which, the appellant sustained

grievous injuries all over his body. Thereby, the appellant filed a claim petition

claiming a compensation of Rs.2,00,000/-. After contest, the tribunal, vide

impugned judgment awarded a compensation of Rs.1,10,000/-. Aggrieved with

the said order, the present appeal has been filed by the claimant seeking

enhancement of the compensation fixed.

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

3. Learned counsel appearing for the appellant submitted that

admittedly, the above said accident occurred solely due to the rash and

negligent driving of the driver of the 1st respondent, due to which, the

appellant sustained grievous teeth injuries and fracture injuries and at the time

of accident, the appellant was aged about only 17 years and pursuant to the

above said accident, he is not able to lead his life in a normal manner. Further,

the Doctor, who was examined as PW2, assessed the disability suffered by the

appellant at the rate of 25%, by examining the injuries relating to dental and

the Doctor, who was examined as PW3 assessed the disability suffered by the

appellant at the rate of 40%, by examining the fracture injuries and in-toto the

disability suffered by the appellant was fixed at the rate of 65%. However,

without considering any of the above said facts, the tribunal, by adopting the

guidelines framed under the Persons with Disabilities Act, had fixed the

disability suffered by the appellant as 20% and by adopting a sum of Rs.3000/-

per percentage of disability, had awarded a compensation of Rs.60,000/-

towards Disability, which is perverse and unreasonable. Further, the

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compensation awarded under other heads are also on the lower side and the

same has to necessarily be enhanced. Accordingly, he prayed for appropriate

orders.

4. Per contra, the learned counsel appearing for the 2 nd respondent/

Insurance Company submitted that, the assessment of disability made by the

Doctors after a lapse of 10 years from the date of accident cannot be sustained,

since they are not the Doctors who have treated the appellant at the time of

accident. Hence, after considering the above said facts and after considering

all the relevant documents, the Tribunal has rightly awarded the compensation,

which does not require any further enhancement. Accordingly, he prayed for

dismissal of the appeal.

5. Heard the learned counsel for the appellant and the learned counsel

appearing for the 2nd respondent and perused the materials available on record.

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

6. The factum and manner of the accident is not disputed by the parties.

Therefore, this Court is not entering into the said aspect. The major grievances

of the Appellant/claimant is with regard to the quantum of compensation

awarded by the Tribunal. It is claimed by the appellant that though the doctors

assessed a disability of 65% in total, the tribunal held that the appellant

suffered only 20% disability.

7. Though the tribunal fixed the disability suffered by the appellant at

the rate of 20% by following the guidelines framed under the Persons with

Disabilities Act, however, the disability suffered by the appellant is of partial

permanent nature and not permanent, for which the appellant made a claim

under the MV Act, which cannot be equated with the provisions of the Persons

with Disabilities Act and, therefore, the reasons assigned by the Tribunal for

reducing the disability is wholly perverse and not sustainable.

8. Further, it is to be pointed out that the percentage of disability varies

from doctor to doctor. Hence, considering the deposition made by the Doctors

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and the Disability certificates and also taking into account the nature of

injuries suffered by the appellant, and in the absence of any contra evidence

placed by the insurance company or contradiction in the deposition of the

doctors, elicited by the insurance company, this Court fixes the disability

sustained by the appellant at the rate of 45%. Further, as per the existing law at

the relevant point of time, a sum of Rs.2,000/- per percentage of disability has

to be adopted. Therefore, the amount under the head of disability stands

enhanced to a sum of Rs.90,000/- (45% x Rs.2,000/- = Rs.90,000/-).

9. Insofar as the compensation awarded under the other heads are

concerned, this Court is of the view that the compensation are just and

reasonable and the same does not warrant any interference of this Court.

10. In view of the above, the compensation awarded by the Tribunal is

modified as under :-

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Heads Awarded by Awarded by the Tribunal this Court (Amount in (Amount in Rs.) Rs.) Towards Pain and sufferings 20,000/- 20,000/-

                                  Towards Transport      &      Extra        7,500/-      7,500/-
                                  nourishment
                                  Disability                                60,000/-    90,000/-
                                  Attender Charges for 3 days                1,500/-      1,500/-
                                  Damages to clothes                          500/-        500/-
                                  Loss of amenities                         10,000/-    10,000/-
                                  Medical expenses                           8,141/-      8,141/-
                                  Future Medicine Expenses                   2,000/-      2,000/-
                                                             Total        1,09,641/-   1,39,641/-

11. Accordingly, the appeal is partly allowed and the impugned award

of the Tribunal is modified enhancing the compensation amount from

Rs.1,09,641/- to Rs.1,39,641/-. The 2nd respondent/Insurance Company is

directed to deposit the said amount to the credit of M.A.C.T.O.P.No. 2306 of

2006 along with interest at the rate of 7.5% per annum from the date of claim

petition till the date of deposit and costs as awarded by the Tribunal, less, the

amount, if any already deposited, within a period of four (4) weeks from the

date of receipt of a copy of this judgment. On such deposit being made, the

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Tribunal is directed to transfer the said amount directly to the bank account of

the Appellant through RTGS within a period of two (2) weeks thereafter, upon

production of proof with regard to payment of Court fee on the enhanced

compensation by the appellant. There shall be no order as to costs in the

present appeal.



                                                                                        29.11.2023

                   skt

                   Index                    : Yes / No
                   Speaking Order           : Yes / No
                   Neutral Citation Case    : Yes / No



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