Madras High Court

Arun Kumar vs Abul Hassan on 14 August, 2024

                                                                        C.M.A.(MD) No.583 of 2024

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED : 14.08.2024

                                                        CORAM

                                  THE HON'BLE MR.JUSTICE SUNDER MOHAN

                                            C.M.A.(MD) No.583 of 2024



                    Arun Kumar.
                    Through his mother and Natural guardian Jeevarani.         ... Appellant

                                                          Vs.

                    1.Abul Hassan,
                    2.The New India Assurance Company Limited,
                    Through its Branch Manager.                                ... Respondents

                    [Cause title is accepted vide order dated 09.02.2024 in
                    CMP(MD)No.1379 of 2024]

                    [Notice to the first respondent is dispensed with, as he was set
                    ex parte before the Tribunal, vide order dated 17.04.2024
                    in C.M.P.(MD)No.5486 of 2024]


                    Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                    Vehicles Act, 1988 against the judgment and decree dated 15.06.2023
                    passed by the Motor Accidents Claim Tribunal (Chief Judicial
                    Magistrate), Tirunelveli in M.C.O.P.No.157 of 2016.
                                   For Appellant            : Mr.K.Chengiz Khan

                                   For Respondents
                                              R1            : Dispensed with
                                              R2            : Mr.A.Ilango

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                    Page No. 1 of 8
                                                                          C.M.A.(MD) No.583 of 2024




                                                    JUDGMENT

The instant Civil Miscellaneous Appeal has been filed by the

claimants seeking enhancement of the compensation awarded by the

Motor Accidents Claim Tribunal (Chief Judicial Magistrate), Tirunelveli

in M.C.O.P.No.157 of 2016.

2. The appellant filed a claim petition stating that while he was

walking on the road, a TATA Ace vehicle bearing Reg.No.TN-65-Q-4596

insured with the second respondent herein, came in a rash and negligent

manner and dashed against the appellant, as a result of which, he

sustained multiple fracture over the skull, which had caused injury to the

brain.

3. The owner of the vehicle remained ex parte before the Tribunal. The

second respondent herein filed a counter stating that the accident did not

take place due to the negligence of the Driver of TATA Ace vehicle and

that in any case, the compensation claimed is exorbitant.

4. The appellant had examined his father and Doctor as P.W.1 and

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P.W.2, respectively and marked Exs.P1 to P16. The second respondent

had examined as R.W.1 and R.W.2 and marked Exs.R1 to R5.

5. The Tribunal, after taking into consideration the oral and

documentary evidence, held that the accident took place only due to the

rash and negligent driving of the offending vehicle insured under the

second respondent herein and determined the compensation at

Rs.12,56,350/-.

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

Tribunal had erred in computing the loss of compensation under the head

of permanent disability by adopting percentage method; that the evidence

of the Doctor and the report of the Medical Board would show that the

minor boy aged 13 years had suffered 100% disability; and that the

Tribunal had erred in not granting compensation under the head of pain

and sufferings.

7. Since the first respondent remained ex parte before the Tribunal,

notice to the first respondent is dispensed with.

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8. The learned counsel for the second respondent Insurance

Company, per contra, submitted that in the absence of any evidence to

show that the deceased had suffered permanent disability, the Tribunal

was right in fixing the compensation on the basis of the percentage

method and loss of earning capacity cannot be equeled with disability and

therefore, the award passed by the Tribunal is just and reasonable.

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

compensation awarded by the Tribunal is just and reasonable?.

10. The Medical Records i.e., Ex.P4, the discharge summary,

produced on the side of the appellant would show that the appellant had

suffered occipital fracture with diffuse brain edema hemorrhage. The

Medical Board attached to the Tirunelveli Government Hospital

examined the appellant and issued Ex.P10-disability certificate. The

Board had observed that the appellant is visually disabled and suffered

from 100% visual impairment. They had also observed that the condition

is not likely to improve. In the light of the said evidence, this Court is of

the view that the permanent disability is likely to result in loss of earning

capacity. The medical condition of the appellant shows that his loss of

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earning capacity has to be assessed as 100%. Therefore, in the facts of the

case, the Court is of the view that the compensation has to be determined

by adopting multiplier method to award just and reasonable compensation.

11. The appellant was aged 13 years at the time of accident and was

studying in school till then. He was unable to continue his studies and the

evidence suggests that he is in a vegetative state. Therefore, this Court is

of the view that the notional annual income can be fixed at Rs.1,20,000/-

in the special facts and circumstances of the case and by adopting

multiplier at ‘15’, the compensation under the head permanent disability

can be enhanced from Rs.6,00,000/- to Rs.18,00,000/-. The Tribunal had

not awarded compensation under the head pain and sufferings. However,

this Court is of the view that it would be reasonable to award

Rs.1,50,000/- under the said head. Similarly, considering the nature of the

disability, the compensation under head future medical expenses in the

case has to be enhanced from Rs.25,000/- to Rs.1,00,000/-. The award of

compensation under the other heads are reasonable and hence, confirmed.

The compensation is modified as follows:

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Sl. Description Amount Amount Award No awarded by awarded by confirmed, the Tribunal this Court enhanced or granted 1 Permanent Disability Rs.6,00,000/- Rs.18,00,000/- Enhanced 2 Medical Expenses Rs.5,01,350/- Rs. 5,01,350/- Confirmed 3 Extra nourishment Rs. 10,000/- Rs. 10,000/- Confirmed 4 Discomfort, Rs. 25,000/- Rs. 25,000/- Confirmed Inconvenience and Loss of earnings to the parents during the period of hospitalization 5 Transportation charges Rs. 20,000/- Rs. 20,000/- Confirmed 6 Future Medical Expenses Rs. 25,000/- Rs.1,00,000/- Enhanced 7 Loss of Marital Prospects Rs. 50,000/- Rs. 50,000/- Confirmed 8 Loss of convenience Rs. 25,000/- Rs. 25,000/- Confirmed 9 Loss of pain and - Rs.1,50,000/- Granted sufferings Total Rs.12,56,350/- Rs.26,81,350/- Enhanced by Rs.14,25,000/-

12. The second respondent Insurance Company is directed to

deposit the enhanced award amount of Rs.26,81,350/- together with

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

till the date of realization (excluding the period of dismissal for default, if

any) and costs, less the amount already deposited, if any, within a period

of six (6) weeks from the date of receipt of a copy of this order.

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13. On such deposit, the appellant is entitled to withdraw the

aforesaid amount together with interest and costs, less the amount already

withdrawn, if any, by filing appropriate application before the Tribunal.

The appellant is directed to pay the necessary Court Fee, if any, on the

enhanced award amount.