Arumugam vs Rajeswari
2023 Latest Caselaw 12665 Mad

Citation : 2023 Latest Caselaw 12665 Mad
Judgement Date : 19 September, 2023

Madras High Court

Arumugam vs Rajeswari on 19 September, 2023

CMA No. 2100 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 19.09.2023

CORAM :

THE HONOURABLE MR. JUSTICE SUNDER MOHAN

Civil Miscellaneous Appeal No. 2100 of 2023

Arumugam ... Appellant

Versus

1. Rajeswari

2. Reliance General Insurance Co. Ltd.,
Reliance House, 5th Floor,
No.6, Haddows Road,
Chennai – 600 006. ... Respondents

PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the Judgment and Decree dated
02.11.2018 made in M.C.O.P. No.1943 of 2015 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court No.1, Small Causes Court,
Chennai.

For Appellant : Mr.K.Varadha Kamaraj

For Respondents : Mr.G.Vasudevan (for R2)
R1-Ex parte

JUDGMENT

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

CMA No. 2100 of 2023

The claimant has preferred the instant appeal seeking enhancement

of compensation awarded in M.C.O.P. No.1943 of 2015 on

the file of the Motor Accidents Claims Tribunal, Special Sub Court No.1,

Small Causes Court, Chennai.

2. The appellant filed the claim petition stating that on 02.10.2014

at about 20.30 hours, while he was walking on a public road, the two

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

manner dashed against him, as a result of which, he sustained grievous

injuries.

3. The 1st respondent remained ex parte before the tribunal. The 2nd

respondent filed the counter denying the averments made in the claim

petition and stated that the accident took place due to the negligence of

the appellant; that in any case, the compensation claimed by the appellant

was excessive and prayed for dismissal of the claim petition.

4. The appellant examined himself as PW1 and the Doctor who

had examined him, as PW2 and marked Ex.P1 to Ex.P8. The 2nd https://www.mhc.tn.gov.in/judis

CMA No. 2100 of 2023

respondent examined RW1 and marked Ex.R1 to Ex.R3.

5. The tribunal after taking into consideration the oral and

documentary evidence awarded the total compensation of Rs.65,800/- to

the appellant.

6. The learned counsel for the appellant submitted that the

appellant sustained 'Fracture clavicle M/3 right shoulder' and the said

injury is grievous in nature. PW2-Doctor, had assessed the disability at

20% after examining the appellant and Ex.P8-X-ray. The learned

counsel therefore submitted that the tribunal ought not to have reduced

the disability as 5% and granted compensation on that basis. The learned

counsel further submitted that the award under the other heads also

requires enhancement and prayed for allowing the appeal.

7. Since the 1st respondent remained ex parte before the tribunal,

the learned counsel for the appellant made an endorsement to dispense

with the notice to the 1st respondent. Hence, notice to 1st respondent is

dispensed with.

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

CMA No. 2100 of 2023

8. The learned counsel for the 2nd respondent per contra

submitted that the appellant did not subject himself for examination to

the Medical Board and hence, the tribunal was right in not accepting the

evidence of PW2 fully. The learned counsel further submitted that the

award of the compensation under other heads, is also just and reasonable

and prayed for dismissal of the appeal.

9. The only question in the instant appeal is whether the

compenation awarded by the tribunal is just and reasonable?

10. This Court finds that the appellant had sustained Fracture

clavicle M/3 right shoulder and he was admitted as inpatient in

Government Stanley Hospital. PW2-Doctor, who had examined the

appellant has assessed the disability as 20%. Ex.P8-X-ray also confirms

the fact that the appellant has suffered a frature. Considering the nature

of injuries, this Court is of the view that the tribunal was not justified in

reducing the disability percentage as 5% and awarding Rs.3,000/- per

percentage of disability. Though, the appellant was not examined by the

Medical Board, this Court is of the view that the disability can be fixed https://www.mhc.tn.gov.in/judis

CMA No. 2100 of 2023

as 15%. Further, since the accident took place in the year 2014, the

appellant is entited to Rs.4,000/- per percentage of disability.

Accordingly, the award under the head disability is enhanced to

Rs.60,000/-. The tribunal has not awarded compensation under the head

loss of amenities and hence, he would be entitled to Rs.15,000/- under

the said head. As regards, loss of earning during the treatment period, it

is seen that the tribunal has taken the notional income as Rs.6,000/- per

month and awarded Rs.12,000/- toward loss of earning for the period of

two months. However, consdering the fact that the accident took place in

the year 2014 and the appellant has established that he was self

employed, this Court is of the view that it is just and reasonable to fix

Rs.10,000/- as notional monthly income and award Rs.20,000/- under the

head loss of earning for the period of two months.

11. The award under other heads are just and reasonable and the

same are confirmed. Thus, the award of the Tribunal is modified as

follows;

                       S.               Description         Amount       Amount         Award
                       No                                  awarded by   awarded by   confirmed or

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

                                                                                    CMA No. 2100 of 2023

                                                           Tribunal        this Court   enhanced or
                                                             (Rs)             (Rs)        granted
                        1. Disability                          15,000          60,000    Enhanced
                        2. Pain and Sufferings                 15,000          15,000    Confirmed
                        3. Loss of Amenities                          --       15,000     Granted
                        4. Extra Nourishment                   10,000          10,000    Confirmed
                        5. Transportation                       3,000           3,000    Confirmed
                        6. Attender Charges                       750             750    Confirmed
                        7. Loss of Earnings                    12,000           20000    Enhanced
                        8. Loss of future prospects            10,000           10000    Confirmed
                              Total                            65,750        1,33,750 Enhanced by
                              Rounded off to                   65,800        1,33,800 Rs.68,000/-

15.With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

Rs.65,800/- is hereby enhanced to Rs.1,33,800/- 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 2nd respondent is directed to deposit

the award amount now determined by this Court along with interest and

costs, less the amount already deposited, if any, within a period of six (6)

weeks from the date of receipt of copy of this Judgment. On such deposit,

the appellant is permitted to withdraw the entire amount 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 https://www.mhc.tn.gov.in/judis

CMA No. 2100 of 2023