Madras High Court

Premalatha vs Anandan on 13 August, 2024

                                                                          C.M.A.(MD) No.841 of 2024

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED : 13.08.2024

                                                        CORAM

                                  THE HON'BLE MR.JUSTICE SUNDER MOHAN

                                            C.M.A.(MD) No.841 of 2024

                    Premalatha
                    W/o.Ravichandran                                            ... Appellant

                                                          Vs.

                    1.Anandan
                      S/o.Govindaraj

                    2.The Branch Manager,
                      TATA AIG General Insurance Company Limited,
                      1st Floor, Raj Tower, 6, 7,
                      Karur Bypass Road,
                      Near Kalaingar Arivalaiyam,
                      Trichy - 620002.                                          ... Respondents

                       [R1 was set exparte before the Tribunal]

                    Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
                    Vehicles Act, 1988, to set aside the Decree and Judgment passed in
                    M.C.O.P.No.123 of 2020 dated 29.03.2022 on the file of MACT (Special
                    Subordinate Court), Thanjavur.


                                   For Appellant       : Mr.A.Sivasubramanian

                                   For R2              : Mr.V.Sakthivel


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                    Page No. 1 of 10
                                                                        C.M.A.(MD) No.841 of 2024

                                                  JUDGMENT

The instant appeal has been filed by the claimant, seeking

enhancement of compensation awarded by the Motor Accident Claims

Tribunal (Special Subordinate Court), Thanjavur, vide its Judgment and

Decree dated 29.03.2022 in M.C.O.P.No.123 of 2020.

2. The appellant/claimant filed a claim petition in M.C.O.P.No.123

of 2020 before the Tribunal stating that on 12.12.2019, at about 02.00

p.m., while she was riding her two-wheeler bearing Registration

No.TN-49-BT-7151, a Tata Ace vehicle owned by the first respondent and

insured with the second respondent Insurance Company came in a rash

and negligent manner and collided with the two-wheeler, as a result of

which she sustained fractures in her left hand and left leg, and her leg

below the knee was amputated.

3. The owner of the insured vehicle had remained exparte before

the Tribunal. The second respondent, Insurance Company, filed a counter

affidavit before the Tribunal stating that the accident took place only due

to the negligence of the appellant/injured claimant; and that, in any case,

the compensation claimed by the appellant/claimant was excessive.

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4. Before the Tribunal, the appellant/claimant has examined herself

as P.W.1 and marked Exs.P1 to P12. The second respondent, Insurance

Company, has neither examined any witnesses nor marked any

documents.

5. The Tribunal, after considering the oral and documentary

evidence, held that the accident took place only due to the negligence of

the driver of the insured vehicle. However, the Tribunal held that, since

the appellant/injured claimant did not have a valid driving license, 10%

contributory negligence should be apportioned to her. The Tribunal fixed

the total compensation at Rs.14,22,862/-, from which Rs.1,42,286/- was

deducted towards 10% contributory negligence. The Tribunal directed the

second respondent, the Insurance Company, to deposit Rs.12,80,576/-

along with interest at 7.5% per annum from the date of the claim petition

until the date of deposit and costs.

6. The learned counsel for the appellant/injured claimant submitted

that her only grievance is that the quantum of compensation awarded by

the Tribunal is meagre and requires enhancement under the heads of 'loss

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of income due to the disability', 'attendant charges, and ''future medical

expenses'.

7. The learned counsel for the second respondent, Insurance

Company, per contra, submitted that the Tribunal had awarded just and

reasonable compensation, and no interference is called for.

8. The only question involved in the instant appeal is whether the

Tribunal has awarded just and reasonable compensation.

9. The appellant/injured claimant was 39 years old at the time of the

accident. She claimed that she was working as a tailor and earning a sum

of Rs.25,000/- per month. Although she had examined herself as P.W.1,

she did not produce any documentary evidence to prove either her

avocation or income. Considering the said fact, the Tribunal adopted the

notional income of Rs.7,000/- per month. Since the appellant/injured

claimant had deposed that she was working as a tailor and there is no

contrary evidence, and considering the year of the accident, the age of the

appellant/injured claimant, and her avocation, this Court is of the view

that it would be just and reasonable to fix the notional income of the

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appellant/injured claimant at Rs.12,000/- per month. Further, the

appellant/injured claimant is entitled to a 40% enhancement towards

'future prospects'.

10. The Medical Board, Thanjavur Medical College and Hospital,

assessed the disability of the appellant/injured claimant at 74%.

Considering the avocation of the appellant/injured claimant and the

injuries sustained by her, this Court is of the view that the functional

disability assessed by the Tribunal at 50% is in accordance with the law.

Hence, no interference is called for in that finding.

11.Thus, the compensation under the head 'loss of income due to

the disability' has to be enhanced as follows:

Loss of income due to the disability:

Age of the injured claimant - 39 years.

                    Monthly notional income          - Rs.12,000/-

                    Annual income (Rs.12,000 x 12)                : Rs.1,44,000/-

                    Add: Future Prospects (40 %)
                         (Rs.1,44,000 x 40%)                      : Rs. 57,600/-
                                                                  -------------------
                                                                  : Rs.2,01,600/-
                                                                  -------------------

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                    Multiplier 15 (applicable)
                    (Rs.2,01,600 x 15)                            : Rs.30,24,000/-

                    Loss of income due to the disability
                    (Rs.30,24,000 x 50/100)                             - Rs.15,12,000/-

12. The award under the heads 'pain and sufferings' and 'loss of

amenities' is confirmed. The award under the head 'loss of income during

treatment' is enhanced to Rs.12,000/- from Rs.8,000/-.

13. Since the appellant/injured claimant's leg has been amputated,

she is entitled to attendant charges. The Tribunal has only awarded a

meagre sum of Rs.7,000/-. The nature of the injury warrants enhancement

under the said head. In the facts and circumstances, considering the injury,

the period of treatment, and the need for continuous help, this Court is of

the view that it would be just and reasonable to award Rs.1,50,000/-

towards 'attendant charges'.

14. The compensation under the heads 'conveyance charges',

'special diet', and 'reimbursement of medical bills' is also confirmed.

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15. It is seen from the records that the appellant/injured claimant

would be entitled to an artificial leg, a motorized wheelchair, and the

future medical expenses. Thus, this Court is of the view that it would be

just and reasonable to award Rs.1,00,000/- for the cost of fixing an

artificial leg, Rs.1,00,000/- for the purchase of a motorized wheelchair,

and Rs.50,000/- for future medical expenses.

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

follows:

                     Sl.           Description            Amount             Amount            Award
                     No                                  awarded by        awarded by        confirmed,
                                                        the Tribunal        this Court      enhanced or
                                                                                              granted
                       1 Loss of income due to the
                         disability                     Rs.8,82,000/- Rs.15,12,000/-         enhanced
                       2 Pain and sufferings            Rs.1,00,000/- Rs. 1,00,000/-         confirmed
                       3 Loss of amenities              Rs.1,00,000/- Rs. 1,00,000/-         confirmed
                       4 Loss of income during
                         treatment                      Rs.       8,000/- Rs.    12,000/-    enhanced
                       5 Attendant charges              Rs.       7,000/- Rs. 1,50,000/-     enhanced
                       6 Conveyance charges             Rs. 10,000/- Rs.         10,000/-    confirmed
                       7 Special diet                   Rs.       5,000/- Rs.     5,000/-    confirmed
                       8 Reimbursement             of
                         medical bills                  Rs.3,10,862/- Rs. 3,10,862/-         confirmed
                       9 For fixing an artificial leg         -           Rs. 1,00,000/-      granted


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                      10 For purchasing motorized         -
                         wheelchair                                Rs. 1,00,000/-      granted
                      11 Future medical expenses          -        Rs.    50,000/-     granted
                                   Total            Rs.14,22,862/- Rs.24,49,862/- Enhanced by
                                                                                  Rs.10,27,000/-

17. Since the Tribunal's finding regarding the contributory

negligence, fixed at 10% on the appellant/claimant, is justified and there

is no challenge to this finding, it is hereby confirmed. Thus, the

compensation payable by the second respondent Insurance Company is

Rs.22,04,876/- [Rs.24,49,862 x 90/100].

18. The second respondent Insurance Company shall deposit the

enhanced compensation of Rs.22,04,876/- together with interest at 7.5%

per annum from the date of the claim petition till the date of realization

and the costs, after deducting the amount already deposited, if any, within

a period of 6 weeks from the date of receipt of a copy of this Judgment.

19. On such a deposit, the appellant/claimant is permitted to

withdraw the compensation, interest, and costs, less the amount already