Madras High Court

P.Swaminathan vs K.Rajalingam on 12 September, 2023

                                                                             C.M.A.No.1455 of 2023



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     Dated: 12.09.2023

                                                 CORAM:
                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                                 C.M.A.No.1455 of 2023
                    P.Swaminathan                                               ... Appellant
                                                           Vs.
                    1.K.Rajalingam


                    2.United India Insurance Co. Ltd.,
                       Motor Third Party Hub, Silingi Building,
                       Greams Road,
                       Chennai – 600 006.                                        ... Respondents

                    PRAYER : The Civil Miscellaneous Appeal is filed under Section 173 of
                    Motor Vehicles Act, 1988, against the judgment and decree dated
                    20.03.2023 in MCOP.No.711 of 2020 on the file of the Motor Accident
                    Claims Tribunal, Special Sub Court-I, Small Causes Court, Chennai.


                                     For Appellant     : Mr.R.Nalliyappan


                                     For Respondents : Mr.P.Sankaranarayanan for R2
                                                        Notice dispensed with for R1


                                                      JUDGMENT

The claimant had filed the appeal seeking enhancement of

compensation awarded by the Tribunal in MCOP.No.711 of 2020, dated https://www.mhc.tn.gov.in/judis

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20.03.2023, on the file of the Motor Accident Claims Tribunal, Special Sub

Court-I, Small Causes Court, Chennai.

2. According to the appellant, on 29.01.2020 at about 18.30 hours,

while he was riding his motorcycle bearing Registration No.TN-50-F-2812,

in GST Road, near Pallavaram Ponds Company Signal, the rider of the

motorcycle bearing Registration No.TN-11-AA-9916 came from behind in a

rash and negligent manner without observing the Traffic Rules and dashed

against the two wheeler of the appellant, as a result of wihich the appellant

sustained grevious injuries.

3. The first respondent, the owner of the offending vehicle, remained

ex-parte before the Tribunal.

4. The second respondent/Insurance Company resisted the claim

petition and filed a counter denying the averments made in the claim

petition and stated that the rider of the offending vehicle did not possess a valid

driving license; that the second respondent is not liable to pay compensation;

and that in any event, the compensation claimed by the appellant is excessive

and prayed for dismissal of the claim petition.

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C.M.A.No.1455 of 2023

5. Before the Tribunal, the appellant examined himself P.W.1 and the

Doctor as P.W.2 and marked eleven documents as Exs.P1 to P11. On the

side of the second respondent/ Insurance Company no witness was examined.

However, three documents were marked as Ex.R1 and R3.

6. The Tribunal considering the pleadings, oral and documentary

evidence held that the accident occured due to the rash and negligent riding of

the offending vehicle and directed the second respondent being the insurer of

the offending vehicle to pay a sum of Rs.41,693/- as compensation to the

appellant. Aggrieved over the said award, the appellant has preferred the instant

appeal.

7. The learned counsel for the appellant submitted that the Tribunal

had erroneously rejected the Disability Certificate marked as Ex.P.10 issued

by P.W.2-Doctor, who had observed that the appellant suffered from fracture

of Proximal TIBIA. P.W.2-Doctor, had assessed the permanent disability as

25%. The learned counsel further submitted that in the Accident Register

Ex.P.1, it is stated that the appellant suffered Proximal TIBIA fracture.

Therefore, the finding of the Tribunal holding that no records were produced

to prove the injuries is erroneous. The learned counsel further submitted that https://www.mhc.tn.gov.in/judis

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the Tribunal had not awarded any compensation under the head “Pain and

Suffering” and prayed for enhancement of the compensation awarded by the

Tribunal.

8. The first respondent remained ex-parte before the Tribunal. Hence,

the learned counsel prayed that notice to the first respondent may be

dispensed with and had also made an endorsement to that effect in the Court

bundle. Hence, notice to the first respondent is dispensed with.

9. Per contra, the learned counsel for the second respondent/Insurance

Company submitted that P.W.2 was not the Doctor who treated the appellant

and the Tribunal had rightly rejected the Disability Certificate issued by

him. In the absence of any acceptable evidence, the Tribunal was right in

rejecting the Disability Certificate issued by P.W.2 and therefore, the award

does not call for any interference and prayed for dismissal of the appeal.

10. Heard the learned counsel appearing for the appellant as well as

the learned counsel appearing for the second respondent/Insurance

Company and perused all the materials available on record before this

Court.

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C.M.A.No.1455 of 2023

11. The only question involved in this instant appeal is whether the

compensation awarded by the Tribunal is just and reasonable?

12. It is seen from Ex.P.1-Accident Register, that the appellant had

suffered Proximal Tibia Fracture. P.W.2, who had examined the appellant

had confirmed that the appellant had suffered fracture of Proximal TIBIA.

The Doctor's certificate, corroborated the version in the Accident Register.

P.W.2, a private Doctor was not the Doctor who treated the appellant. The

appellant was not examined by the Medical Board. However, considering

the nature of injuries, this Court is of the view that it would be just and

reasonable to fix the Disability as 15%. Since, the accident is of the year

2020, the appellant would be entitled to Rs. 7,000/- per percentage of

disability. Therefore, the compensation under the head “Disability” has to be

fixed at Rs.7,000/- x 15 (15% of disability) = Rs.1,05,000/-. The

compensation under the head “Medical expenses” is confirmed.

13. On perusal of the award of the Tribunal, it is seen that the Tribunal

has not awarded compensation under the heads “Transport expenses”, “Pain

and suffering” and “Extra nourishment”. Considering the facts and

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circumstances of this case, this Court is of the view that it would be just and

reasonable to grant Rs.5,000/- under the head “Transport expenses”,

Rs.5,000/- under the head “Extra nourishment” and Rs.10,000/- under the

head “Pain and suffering”.

14. Thus, the compensation awarded by the Tribunal is modified as

follows:


                      S.N          Description      Amount             Amount       Award confirmed
                       o                           awarded by       awarded by this or enhanced or
                                                    Tribunal            Court         granted or
                                                      (Rs)               (Rs)           reduced
                      1.          Disability              40,000          1,05,000 Enhanced
                      2           Medical                  1,693             1,693 Confirmed
                                  expenses
                      2.          Transport                   ---            5,000 Granted
                                  expenses
                      3.          Pain and                    ---           10,000 Granted
                                  suffering
                      4.          Extra                       ---            5,000 Granted
                                  nourishment
                                  Total              Rs.41,693/-      Rs.1,26,693/- Enhanced         by
                                                                                    Rs.85,000/-

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

and the compensation awarded by the Tribunal at Rs.41,693/- is hereby

enhanced to Rs.1,26,693/- together with interest at the rate of 7.5% per

annum (excluding the default period, if any) from the date of petition till the

date of deposit. The appellant is directed to pay necessary Court fee, if any, https://www.mhc.tn.gov.in/judis

C.M.A.No.1455 of 2023

on the enhanced compensation. The second respondent/Insurance Company

is directed to deposit the modified award amount now determined 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. On such deposit, the appellant is permitted to withdraw the award

amount along with interest and costs, after adjusting the amount if any,