Madras High Court

D.Vijayakanth vs C.Dharmalingam on 13 September, 2023

                                                                              C.M.A.No.2266 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  Dated: 13.09.2023

                                                       Coram:
                                  THE HONOURABLE MR.JUSTICE P.VELMURUGAN

                                               C.M.A.No.2266 of 2018
                                                       ---

                     D.Vijayakanth                                                   .. Appellant
                                                           Vs.
                     1. C.Dharmalingam
                     2. Shriram General Insurance Co. Ltd.,
                        2nd Floor, Rear Portion, Nagappa Complex,
                        1076, Mettupalayam Road,
                        Coimbatore-641 002.                                       .. Respondents


                                   Civil Miscellaneous Appeal against the Award and decree
                     dated 05.01.2018 made in M.C.O.P.No.2113 of 2011 on the file of the
                     Motor Accidents Claims Tribunal / Special Sub-Court No.2, Salem.


                                           For appellant    : Mr.K.Varadha Kamaraj
                                           For respondents : No appearance for R-1
                                                                 M/s.R.Srividhya for R-2




                     Page No.1/ 12


https://www.mhc.tn.gov.in/judis
                                                                              C.M.A.No.2266 of 2018



                                                    JUDGMENT

The appellant is the claimant. He has filed the claim

petition seeking compensation and after enquiry, the Tribunal

awarded Rs.7,88,519/-, against which, the claimant has preferred this

appeal for enhancement of the compensation.

2. On 02.11.2011 at about 3 p.m., when the claimant was

riding a motor cycle bearing Registration No.TN-36-K-0437, along

with his friend Palanisamy, on the Ariyur to Pellur Road, near

Thandavankottai, the driver of a Minidor vehicle bearing

Registration No.TN-36-J-7722 drove it in a rash and negligent manner

from opposite direction and dashed against the claimant, due to

which, the claimant sustained injuries. Immediately after the

accident, the claimant took first-aid in the Government Hospital,

Pennagaram and thereafter at Kurinji Hospital, Salem. The claimant

was a Welder in a crusher company under the employment of

https://www.mhc.tn.gov.in/judis C.M.A.No.2266 of 2018

J.K.Crusher at Sriperumbadur, and earning not less than Rs.10,000/-

per month and hence, he has filed the claim petition seeking

compensation of Rs.10 lakhs from the respondents.

3. The second respondent/Insurance Company filed counter

disputing the manner of the accident, the claim of the claimant and

the factum of insurance. The driver of the Minidor vehicle was not

having effective driving licence to drive the said vehicle. The second

respondent is not liable to pay any compensation and prayed to

dismiss the claim petition.

4. Before the Tribunal, the claimant examined himself as

P.W.1 and one Palanisamy was examined as P.W.2 and Exs.P-1 to

P-16 were marked. On the side of the respondents before the

Tribunal, R.W.1 and R.W.2 were examined and Exs.R-1 to R-4 were

marked. Besides, Ex.X-1 was marked before the Tribunal. Exs.C-1 and

C-2 were marked as Court documents.

https://www.mhc.tn.gov.in/judis C.M.A.No.2266 of 2018

5. The Tribunal, after enquiry, awarded compensation of

Rs.7,88,519/- with interest @ 7.5% per annum from the date of claim

petition till the date of deposit, against which, the claimant has filed

the present appeal seeking enhancement of compensation.

6. Learned counsel for the appellant/claimant submitted

that though the liability is not in dispute and the accident is also not

in dispute, the present appeal has been filed by the claimant seeking

enhancement of the compensation. Though the claimant sustained

multiple grievous injuries and though the accident took place on

02.11.2011, he took treatment for four years and he was working as

Welder and after accident, he could not continue to do that welding

work as before and there is loss of earning and also due to the

accident, there is shortening of leg and he also lost even marital

prospects. The Tribunal has not considered the above aspects and

simply awarded compensation under different heads, which

warrants interference.

https://www.mhc.tn.gov.in/judis C.M.A.No.2266 of 2018

7. Learned counsel for the second respondent/Insurance

Company submitted that there is no proof for employment/income

and loss of earning. Considering the medical records, the Tribunal

has rightly awarded the compensation, which is 'just' compensation

and that there is no merit in the appeal and the same is liable to be

dismissed.

8. Heard both sides and perused the materials available on

record.

9. The claimant has filed the present appeal for

enhancement of the compensation stating that the compensation

awarded by the Tribunal does not reflect the 'just' compensation,

which is very low and therefore, the claimant has approached this

Court.

https://www.mhc.tn.gov.in/judis C.M.A.No.2266 of 2018

10. The accident took place on 02.11.2011 and thereafter, he

took treatment and he has produced the disability certificate from the

Medical Board, which has fixed the disability at 60%. Though the

claimant has stated that he was a Welder and doing welding work

and from that work, he was earning a sum of Rs.12,000/- per month,

there is no evidence and except the claimant, there is no other witness

examined to prove the employment of the claimant and also his

income. Considering the same, the Tribunal has fixed the notional

income of Rs.6,500/-. The appellant/claimant has not proved

through any contra evidence to show that he was earning a sum of

Rs.12,000/- p.m. from the welding profession and this Court finds

that there is no perversity in appreciation of evidence by the Tribunal

in fixing the notional income in the absence of any contra evidence.

11. As far as the disability compensation is concerned, the

Medical Board has given the percentage of disability at 60% and the

accident was of the year 2011 and during the relevant period,

https://www.mhc.tn.gov.in/judis C.M.A.No.2266 of 2018

Rs.3,000/- per percentage was awarded and the Tribunal has also

rightly considered the same and awarded compensation of Rs.3,000/-

per percentage of the disability and thus, Rs.3,000/- x 60% =

Rs.1,80,000/- is awarded as the compensation under the head

'disability' and there is no perversity in the same.

12. The Tribunal has also rightly awarded a sum of

Rs.1,00,000/- for pain and suffering and also for loss of amenities at

Rs.75,000/-. The medical bills were granted by the Tribunal at

Rs.3,54,019/- and there is no perversity in awarding the

compensation under these heads. The Tribunal has appreciated the

documents available on record and granted the above compensation,

which needs no interference by this Court.

13. As far as the loss of income is concerned, the Tribunal

has awarded Rs.39,000/-(Rs.6,500 x 6) for the period of six months.

Considering the injury sustained by the claimant and the period of

https://www.mhc.tn.gov.in/judis C.M.A.No.2266 of 2018

treatment undergone by him, and he could not go for his work atleast

for one year, though there is no specific evidence and considering the

materials available on record, this Court is of the view that the loss of

income should be for atleast one year, i.e. Rs,.6,500x12=Rs.7,80,000/-.

Further, the medical records show that the claimant has undergone

treatment for minimum 2 to 4 years and therefore, the amount

awarded by the Tribunal for transportation at the rate of Rs.15,000/-

is very low and the same is enhanced to Rs.50,000/-.

14. Considering the nature of injuries and the period of

treatment undergone by the claimant, the amount awarded under the

head 'extra-nourishment' is increased from Rs.10,000/- to Rs.50,000/-.

15. The amounts awarded by the Tribunal under the other

heads being just and fair, the same are confirmed.

16. Thus, the modified compensation is tabulated

https://www.mhc.tn.gov.in/judis C.M.A.No.2266 of 2018

hereunder:

Sl.No. Heads under which the Amounts awarded Amounts compensation is awarded by the Tribunal (in awarded by this Rs.) Court (in Rs.) 1 Permanent disability 1,80,000 1,80,000 2 Pain and suffering 1,00,000 1,00,000 3 Loss of amenities in life 75,000 75,000 4 Medical expenses based on medial bills 3,54,019 3,54,019 5 Loss of income 39,000 7,80,000 6 Transportation charges 15,000 50,000 7 Loss of extra-nourishment 10,000 50,000 8 Attender's charges 15,000 15,000

Total 7,88,519 16,04,519

17. With the above modification in the compensation, the

appeal filed by the claimant is partly allowed. There shall be no order

as to costs in the present appeal.

18. The second respondent/Insurance Company is directed

to deposit the total compensation as computed by this Court, to the

credit of M.C.O.P.No.2113 of 2011 before the Motor Accidents Claims

https://www.mhc.tn.gov.in/judis C.M.A.No.2266 of 2018

Tribunal/Special Sub-Court No.2, Salem, along with interest and

costs as awarded by the Tribunal, less the amount if any already

deposited, within a period of six weeks from the date of receipt of a

copy of this judgment.

19. On such deposit being made, the Tribunal is directed to

calculate the above enhanced compensation including interest and

costs (as awarded by the Tribunal), after adjusting the amount, if any

already withdrawn by the claimant and credit the actual amount in