Madras High Court
Thennarasan @ Thennarasu vs R.Suman on 13 September, 2023
CMA No. 2011 / 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.09.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Civil Miscellaneous Appeal No. 2011 of 2023
Thennarasan @ Thennarasu ... Appellant
Versus
1.R.Suman
2.IFFCO Tokio General Insurance Co. Ltd.,
No.128, Habibullah Road,
T.Nagar, Chennai – 600 017. ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the order made in M.C.O.P.No.7211
of 2018 dated 24.03.2023, on the file of the Motor Accidents Claims
Tribunal (In the V Court of Small Causes, at Chennai).
For Appellant : Mr. Amar D. Pandiya
For Respondents : R1 - Exparte
Mr.B.Sivakollappan for R2
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CMA No. 2011 / 2023
JUDGMENT
The instant appeal has been filed seeking enhancement of
compensation awarded by the Tribunal.
2. The appellant filed a claim petition stating that on 10.10.2018 at
about 19.30 Hours, while he was travelling as a pillion rider in the
motorcycle bearing Reg.No.TN-03-K-7174, the offending motorcycle
belonging to the first respondent insured with the second respondent
came in a rash and negligent manner and rammed into the two-wheeler,
in which, the appellant travelled, as a result of which, the appellant fell
down and sustained grievous injuries and thus, entitled to compensation.
3. The first respondent remained exparte before the Tribunal.
4. The second respondent/Insurance Company filed a counter
denying the averments made in the claim petition and stated that the rider
of the offending vehicle was a minor and hence, there was a violation of
the insurance policy and therefore, the second respondent was not liable
to pay compensation; and that in any event, the compensation claimed
was successive and prayed for dismissal of the claim petition.
5. The appellant examined two witnesses as P.W.1 and P.W.2 and
marked seventeen documents as Exs.P1 to P17. The second respondent
examined R.W.1 and R.W.2 and marked eight documents as Exs.R1 to
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CMA No. 2011 / 2023
R8. The Disability Certificate issued by the Medical Board was marked
as Ex.C.1.
6. The Tribunal after considering the oral and documentary
evidence held that the accident took place due to the negligence of the
rider of the offending vehicle insured with the second respondent and the
rider did not have a valid driving license at the time of the accident.
The Tribunal therefore, directed the second respondent/Insurance
Company to pay the compensation of Rs.3,89,000/- and recover it from
the first respondent.
7. The learned counsel for the appellant submitted that the
appellant who was a polio patient had sustained “Grade II C3 Distal
Femur Fracture and Shaft of 2nd MTB right leg/lacerated wound right
knee”. The Medical Board assessed the disability at 19% as permanent
disability. However, the Tribunal had erroneously awarded compensation
only by adopting Percentage method instead of the Multiplier method.
The learned counsel also submitted that the compensation under the other
heads is also meagre and therefore, requires enhancement.
8. Since the first respondent remained ex-parte before the Tribunal,
the learned counsel sought permission of this Court to dispense with
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CMA No. 2011 / 2023
notice to the first respondent and made an endorsement to that effect.
Hence notice to the first respondent is dispensed with.
9. The learned counsel for the second respondent/Insurance
Company per contra, submitted the appellant had admitted that he was
working as a clerk in a private company; that there is absolutely no
evidence to show that he had suffered any functional disability; that
therefore, the Tribunal was right in adopting the Percentage method to
award compensation. The learned counsel also submitted that the award
of compensation under the other heads is just and reasonable and no
interference is called for.
10. Heard the learned counsel for the appellant as well as the
learned counsel for the second respondent/Insurance Company and
perused the materials available on record.
11. The only question involved in the instant appeal is whether the
compensation awarded by the Tribunal is just and reasonable?
12. On perusal of the records, it is seen that the appellant was
affected by polio and due to the accident, he sustained the following
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CMA No. 2011 / 2023
injurious “Grade II C3 Distal Femur Fracture and Shaft of 2nd MTB
right leg/lacerated wound right knee” as per Ex.P2/Discharge Summary.
The Medical Board assessed the disability as 19% as permanent.
Considering the fact that the accident is of the year 2018, the appellant
was doing a desk job as a clerk, the nature of injuries and the disability
assessed by the Medical Board, this Court is of the view that the
functional disability can be assessed as 10%. Considering the avocation,
age of the appellant and the year of the accident, this Court is of the view
that it would be just and reasonable to fix Rs.15,000/- per month as
notional income of the appellant. In the facts, the appellant would not be
entitled to enhancement towards future prospects. The multiplier
applicable is “18”. Therefore, by adopting Multiplier method, the
disability is calculated as follows:
Rs.15,000/- X 12 X 18 X 10/100 = Rs.3,24,000/-
Further, the appellant would have suffered Loss of Income for a period
of three months. Considering the nature of injuries, the award under the
head Loss of Income has to be enhanced from Rs.24,000/- to Rs.45,000/-
(Rs.15,000/- X 3). The compensation awarded by the Tribunal under the
heads Pain and Suffering and Loss of Amenities is enhanced to
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CMA No. 2011 / 2023
Rs.50,000/- each. The compensation awarded by the Tribunal under other
heads is just and reasonable and hence, the same are confirmed. Thus, the
compensation awarded by the Tribunal is enhanced from Rs.3,89,000/- to
Rs.6,69,000/- break-up as follows:-
S. No Description Amount Amount Award
awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Disability 95,000/- 3,24,000/- Enhanced
2. Medical 1,66,441/- 1,66,441/- Confirmed
Expenses
3. Loss of income 24,000/- 45,000/- Enhanced
4. Pain and 30,000/- 50,000/- Enhanced
Suffering and
Mental Agony
5. Transportation 10,000/- 10,000/- Confirmed
Expenses
6. Nutrition 20,000/- 20,000/- Confirmed
Expenses
7. Damages to 1,000/- 1,000/- Confirmed
Clothes
8. Attender 2,500/- 2,500/- Confirmed
Charges
9. Loss of 40,000/- 50,000/- Enhanced
Amenities
Total 3,88,941/- 6,68,941/- Enhanced by
rounded of to rounded of to Rs.2,80,000/-
Rs.3,89,000/- Rs.6,69,000/-
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CMA No. 2011 / 2023
13. With the above modification, this Civil Miscellaneous Appeal
is partly allowed and the compensation awarded by the Tribunal at
Rs.3,89,000/- is hereby enhanced to Rs.6,69,000/- together with interest
at 7.5% per annum (excluding the default period, if any) from the date of
petition till the date of deposit. The second respondent / Insurance
Company is directed to deposit the enhanced award amount now
determined by this Court along with interest and costs, less the amount
already deposited, if any, at the first instance within a period of six (6)
weeks from the date of a receipt of a copy of this Judgment and recover
the same from the first respondent. On such deposit, the appellant is
permitted to withdraw the award amount along with interest and costs,
less the amount if any, already withdrawn. The appellant is directed to
pay the necessary Court Fee, if any, on the enhanced award amount.
No costs.
13.09.2023
dk
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
To
1.The V Court of Small Causes,
Motor Accident Claims Tribunal,
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CMA No. 2011 / 2023
Chennai.
2.The Section Officer,
VR Section,
High Court of Madras,
Chennai.
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CMA No. 2011 / 2023
SUNDER MOHAN, J
dk
C.M.A. No. 2011 of 2023
Dated: 13.09.2023
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