Madras High Court
Kothar Ali vs Derin on 12 October, 2023
C.M.A(MD)No.128 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :12.10.2023
CORAM
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.M.A.(MD)No.128 of 2021
Kothar Ali ... Appellant/Petitioner
Vs.
1.Derin
2.United India Insurance Company Ltd.,
Through its Branch Manager,
560 X II Floor,
Kandan Complex,
Opposite to Bus Stand,
Valliyoor. ... Respondents/Respondents
PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree made in
M.C.O.P.No.666 of 2014 on the file of the Motor Accident Claims
Tribunal, (Special Sub-Court), Tirunelveli, dated 01.06.2015.
For Appellants : Mr.T.Selvakumaran
For R-1 : No Appearance
For R-2 : Mr.A.Shajahan
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C.M.A(MD)No.128 of 2021
JUDGMENT
This Civil Miscellaneous Appeal is filed by the claimant
challenging the quantum of award passed in M.C.O.P.No.666 of 2014
on the file of the Motor Accident Claims Tribunal, (Special Sub-Court),
Tirunelveli, dated 01.06.2015.
2. The appellant/claimant filed M.C.O.P.No.666 of 2014
seeking compensation for the injuries and the consequent disability
suffered as a result of the injuries suffered by him in the accident.
3. The Tribunal awarded compensation at Rs.2,98,000/-
under the following heads:
S.No Description Amount awarded by
Tribunal
(Rs)
1. For permanent partial 90,000
disability(30 X 3000)
2. For loss of earning 27,000
during the treatment
period(4500 X 6)
3. For Transportation 15,000
Nutrition and other
expenses
4. For pain and 15,000
suffering
5. For loss of amenities 25,000
in life
6. For Medical Expenses 1,26,100
Total Rs.2,98,100
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C.M.A(MD)No.128 of 2021
4. The learned counsel for the appellant submitted that the
compensation awarded under the heads of permanent disability, loss of
earning for a period of six months and pain and suffering, are very low
and thus, the appellant filed this present Civil Miscellaneous Appeal
seeking enhancement of compensation.
5. In reply, the learned counsel for the second
respondent/Insurance Company submitted that the Tribunal had
considered the oral and documentary evidence properly and awarded
just and fair compensation. Disability Certificate produced by the
appellant was issued by a private Medical Practitioner and therefore,
the Tribunal reduced the disability from 40% to 30%. Rs.3,000/- per
percentage was adopted and thus, a sum of Rs.90,000/- was awarded
under the head of “permanent partial disability”. The appellant was
only an agricultural coolie. Therefore, the award for loss of earning for
six months at Rs.27,000/- (Rs.4,500/- X 6), is also appropriate.
Appellant underwent treatment only for five days and the amount
awarded at Rs.15,000/- under head of “pain and suffering” is also
correct. Thus, he prayed for dismissal of this appeal.
6. This Court considered the rival submissions and perused
the records.
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C.M.A(MD)No.128 of 2021
7. It is seen from the claim petition averments and the
submissions of the learned counsel appearing for the parties that on
28.05.2013, when the appellant was riding his two-wheeler bearing
Registration No.TN 72-AZ-5187 from east to west on Cheranmahadevi-
Ambai road at about 2.30 p.m., when he reached C.S.I Church, a
Mahindra Van bearing Registration No.TN-72-Z-9322, came from
opposite direction in a rash and negligent manner and hit against the
appellant's motor-cycle. As a result, he suffered multiple fractures in
his right leg and injuries all over the body. He was working as an
agricultural coolie and was earning Rs.10,000/- per month. Due to the
disability suffered, he is not able to work as he was used to do before
the accident. His earning capacity is diminished. Thus, he filed the
petition seeking compensation of Rs.8,00,000/-.
8. During the enquiry before the Tribunal, on the side of the
appellant/claimant, the appellant was examined as P.W.1 and Doctor
was examined as P.W.2. Exs.P1 to P9 were marked on his side. On
side of the respondents, R.Ws.1 and 2 were examined and Exs.R1 to R3
were produced.
9. From the oral and documentary evidence produced in this
case, it is not in dispute that the accident had happened because of the
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C.M.A(MD)No.128 of 2021
rash and negligent driving of the Mahindra Van bearing Registration
No.TN-72-Z-9322. The second respondent/Insurance Company has not
disputed its liability to pay compensation for the reason that the vehicle
was insured with the second respondent/Insurance Company and there
is no violation of any policy conditions. The only question arises for
consideration in this appeal is,
“Whether the quantum of compensation
awarded to the appellant/claimant is just and
appropriate?
10. This Court finds from the award that the Tribunal had
taken the disability at 30%, though the Doctor assessed the disability at
40%, for fixing the quantum of compensation under the head of
“permanent partial disability” and fixed Rs.3,000/- per percentage and
thus, awarded Rs.90,000/-. This amount in the considered view of this
Court is too low. Considering the Cost of Inflation Index at the relevant
point of time, this Court is of the view that instead of
Rs.3,000/- per percentage, a sum of Rs.4,000/- per percentage may be
awarded for arriving at the quantum of compensation under the head of
“permanent partial disability”. Thus, it comes to Rs.1,20,000/-
(Rs.4,0000 X 30).
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C.M.A(MD)No.128 of 2021
11. It is seen that under the head of “loss of earning for six
months” a sum of Rs.27,000/- was awarded at the rate of Rs.4,500/-
per month. As an agricultural coolie, by doing coolie work, the
appellant could have earned a sum of Rs.6,000/- per month.
Therefore, the loss of earning for six months is fixed at Rs.36,000/-
(Rs.6,000/- X 6). A sum of Rs.15,000/- was awarded under the head of
“pain and suffering”. This Court finds from Exs.P2 and P4 -Discharge
summaries that the appellant suffered “Comminuted Tibial Plateau
Fracture”. He was admitted at Sushrushah Hospital on 30.05.2014.
Surgery was performed to him on 31.05.2014 and he was discharged on
04.06.214. During the course of treatment, external fixation with 'T'
clamp under image intensifier control for fracture tibial plateau (right)
was done. Then, he was admitted again on 11.10.2014 in the same
hospital for removal of external fixation.
12. It is no doubt that appellant would have suffered pain due
to the Comminuted Tibial Plateau Fracture caused because of the
accident and during the course of surgical treatment on both occasions
as aforesaid. Therefore, this Court is of the view that the compensation
awarded at Rs.15,000/- towards pain and suffering is too low and a
sum of Rs.50,000/- would be just and appropriate compensation under
the head of “pain and suffering”. The compensation awarded under
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C.M.A(MD)No.128 of 2021
other heads are confirmed. Thus, the compensation awarded by the
Tribunal is modified as follows:
S.No Description Amount Amount Award
awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. For permanent 90,000 1,20,000 Enhanced
partial (30 X 3000) (30 x 4000)
disability
2. For loss of 27,000 36,000 Enhanced
earning during (4500 X 6) (6000 X 6)
the treatment
period
3. For 15,000 15,000 Confirmed
Transportation
Nutrition and
other expenses
4. For pain and 15,000 50,000 Enhanced
suffering
5. For loss of 25,000 25,000 Confirmed
amenities in
life
6. For Medical 1,26,100 1,26,100 Confirmed
Expenses
Total Rs.2,98,100 Rs.3,72,100 By enhancing
a sum of
Rs.74,100
19. In the result,
(i) This Civil Miscellaneous Appeal is partly allowed, enhancing
the award of the Tribunal from Rs.2,98,100/- (Rupees Two Lakhs
Ninety Eight Thousand and Hundred Only) to a sum of Rs.3,72,100/-
(Rupees Three Lakhs Seventy Two Thousand and Hundred Only) along
with interest at the rate of 7.5% per annum from the date of petition till
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C.M.A(MD)No.128 of 2021
date of realisation and proportionate costs.
(ii) claimant is not entitled for interest during the default
period, if any.
(iii) The Insurance Company is directed to deposit the
enhanced award amount with accrued interest and costs after
deducting the amount already deposited if any, within a period of six
weeks from the date of receipt of a copy of this judgment.
(iv) The claimant is permitted to withdraw the award amount,
with proportionate interests and costs.
No Costs.
12.10.2023
pm
Index:Yes/No
NCC:Yes/No
To,
1.The Motor Accident Claims Tribunal,
(Special Sub-Court),
Tirunelveli.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.128 of 2021
G.CHANDRASEKHARAN, J.
pm
C.M.A(MD)No.128 of 2021
12.10.2023
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