Madras High Court
K.Vinoth vs M.Udayan on 27 September, 2023
CMA No. 1270 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.09.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Civil Miscellaneous Appeal No. 1270 of 2022
K.Vinoth ... Appellant
Versus
1. M.Udayan
2. Oriental Insurance Co., Ltd.,
Kumar Complex, 1st Floor, 146,
West Car Street,
Tiruchengode, Namakkal District. ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the Judgment and Decree dated
13.08.2021 made in M.C.O.P. No.7374 of 2017 on the file of the Motor
Accidents Claims Tribunal, II Court of Small Causes, Chennai.
For Appellant : Mr.R.Nalliyappan
For Respondents : Mrs.A.Salomi (for R2)
R1-Died
JUDGMENT
The claimant has preferred the instant appeal seeking
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CMA No. 1270 of 2022
enhancement of compensation awarded by the tribunal.
2. The appellant filed the claim petition stating that on
05.11.2017 at about 6.00pm, when he was travelling as a pillion rider in
a motorcycle bearing Regn.No.PY-01-CP-4663, belonging to the 1st
respondent and insured with the 2nd respondent, near Puducherry-
Villupuram Main Road near Reddypalayam Indira Gandhi Square, the
rider of the motorcycle, rode the same in a rash and negligent manner
and suddenly applied brake, as a result of which, the appellant
sustained grievous injuries.
3. The 1st respondent, owner of the offending vehicle, remained ex
parte before the tribunal. The 2nd respondent filed the counter
stating that the accident took place only due to the negligence of the
driver of the unknown four wheeler; that three persons travelled in the
two-wheeler and that in any case, the compensation claimed is excessive
and prayed for dismissal of the claim petition.
4. Before the tribunal, the appellant/claimant examined himself as
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CMA No. 1270 of 2022
PW1 and marked Ex.P1 to P11. On the side of the 2nd respondent no
oral or document evidence, was let in. The disability certificate issued
to the appellant by the Medical Board, was marked as Ex.C1.
5. The tribunal after taking into consideration the oral and
documentary evidence, held that the accident took place due to the rider
of the two-wheeler insured with the 2nd respondent and further
observing that the claimant has also contributed to the accident, had
fixed 10% contributory negligence on the appellant for triple riding and
directed the 2nd respondent to pay a sum of Rs.9,69,900/- [determined
compensation is Rs.9,62,900/-] as compensation to the
appellant/claimant.
6. The learned counsel for the appellant submitted that the
appellant was examined by the medical board, which had assessed the
disability percentage at 31%. The appellant suffered locomotor
disability due to L2 Burst fracture with paraplegia (ASIA-A). The
doctor, who examined the appellant has observed as under:
''He had sustained injury to back and hip. He was
initially treated in Pondicherry Government Hospital
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CMA No. 1270 of 2022
and then subsequently brought to MIOT Hospital for
further management.''
Therefore, the learned counsel submitted that considering the above
injuries, the tribunal ought to have awarded compensation by adopting
multiplier method and that the compensation awarded under other
heads are meagre and prayed for enhancement.
7. During pendency of the appeal, the 1 st respondent/owner of the
offending vehicle died.
8. The learned counsel for the 2nd respondent submitted the
tribunal after considering the evidence had rightly awarded
compensation by adopting percentage method; that the appellant has
not established any functional disability; that he had not proved his
avocation and therefore, the award of the tribunal is 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?
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CMA No. 1270 of 2022
10. On perusal of the records, it is seen that the appellant suffered
L2 Burst fracture with paraplegia (ASIA-A). The medical board had
assessed the disability at 31% temporary. However, the appellant had
not adduced any evidence to show that he had suffered functional
disability. In the absence of any proof, the tribunal was right in
awarding compensation under percentage method and therefore, no
interference is called for in the said finding. Further, the finding of the
tribunal that the claimant has also contributed to the accident and fixing
10% contributory negligence on the appellant/claimant for triple riding,
is justified and hence, confirmed.
11. However, considering the nature of injuries, this Court is of
the view that the appellant would be entitled to compensation under the
head loss of amenities at Rs.50,000/-. Compensation of Rs.10,000/-
each awarded under the heads extra nourishment and transportation, is
meagre and accordingly, the same is enhanced to Rs.15,000/- each.
Further, the compensation of Rs.24,000/- under the head Attender
charges is enhanced to Rs.30,000/-.
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CMA No. 1270 of 2022
12. 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
Tribunal this Court or enhanced
(Rs) (Rs) or granted
1. Compensation for 1,55,000 1,55,000 Confirmed
injuries
2. Medical Expenses 7,90,891 7,90,891 Confirmed
3. Attender charges 24,000 30,000 Enhanced
4. Pain and Sufferings 80,000 80,000 Confirmed
5. Extra Nourishment 10,000 15,000 Enhanced
Transportation 10,000 15,000 Enhanced
6. Loss of Amenities --- 50,000 Granted
Total 10,69,891 11,35,891 Enhanced by
Rs.66,000/-
8. Less: 10% 1,06,989.10 1,13,589.10
contributory
negligence
Total 9,62,901.90 10,22,301.90 Enhanced by
Rounded off to 9,62,900/- 10,22,300/- Rs.59,400/-
Amount mentioned in 9,69,900/-
the Award
13.With the above modification, this Civil Miscellaneous
Appeal is partly allowed and the compensation awarded by the Tribunal
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CMA No. 1270 of 2022
at Rs.9,69,900/- is hereby enhanced to Rs.10,22,300/- 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 2 nd respondent-Insurance
Company 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 amount. No costs.
ars 27.09.2023
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
To
1. The Motor Accidents Claims Tribunal, Special Sub Court No.1,
Small Causes Court, Chennai.
2. The Section Officer,
VR Section,
Madras High Court,
Chennai – 600 104.
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CMA No. 1270 of 2022
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CMA No. 1270 of 2022
SUNDER MOHAN, J.
ars
C.M.A. No. 1270 of 2022
27.09.2023
https://www.mhc.tn.gov.in/judis
