Madras High Court
Nagarathinam vs The Managing Director on 3 January, 2024
C.M.A.(MD).No.1256 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 04.12.2023
PRONOUNCED ON : 03.01.2024
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
C.M.A.(MD)No.1256 of 2017
Nagarathinam ... Appellant
Vs.
The Managing Director,
Tamil Nadu State Transport Corporation,
Byepass Road,
Madurai. ... Respondent
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, to enhance the award passed in M.C.O.P.No.
902 of 2012 dated 06.10.2015 on the file of the 4th Additional
Subordinate Judge (Motor Accidents Claims Tribunal), Madurai.
For Appellant : Ms.P.Yasmin Begum
For Respondent : Mr.M.Prakash
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellant/petitioner challenging the judgment and decree passed by the
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learned Motor Accident Claims Tribunal (4th Additional Subordinate
Judge), at Madurai in M.C.O.P.No.902 of 2012 dated 06.10.2015. The
appellant herein is the claimant in the claim petition and the injured
claimant has preferred this appeal seeking enhancement of compensation.
2.For the sake of convenience, the parties are addressed herein as
per the rank in M.C.O.P.No.902 of 2012.
3.The brief facts leading to the filing of the Civil Miscellaneous
Appeal is as follows:-
On 22.07.2011 at about 17.15 hours at Cumbam to Chinnamanur
Main road near Anumanthapatty bus stop I.e., 3 kms south of
Uthamapalayam Police Station, the petitioner was travelling in a bus
bearing registration No.TN-72-N-1213 belonging to the respondent as
passenger from Cumbam to Chinnamanur. Due to the over crowd in the
bus, the petitioner was standing near the front entrance of the bus, while
the same was running along Cumbam to Chinnamanur road from north to
south direction. When the bus was proceeding from north to south, the
driver drove the bus in a rash and negligent manner and while the bus
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was crossing Cumbam, he applied sudden break causing a sudden jolt. As
a result of which, the petitioner was thrown away from the bus and
sustained severe head injury and she was immediately rushed to
Uthamapalayam Government Hospital for first aid and from there, she
was shifted to Devadoss Multispeciality hospital on 22.07.2011 itself.
Thereafter, she was discharged on 02.08.2011. After which, she
continued her treatment as out patient. The accident occurred only due to
rash and negligent driving of the driver of the respondent. As a result of
which, the petitioner has filed a claim petition seeking compensation of
Rs.5,00,000/- from the respondent Corporation for the rash and negligent
driving of the driver of the respondent Corporation to compensate the
injury sustained by the her/injured.
4.The respondent Corporation had filed a counter before the
learned Tribunal refuting the allegations made by the petitioner in the
claim petition and claimed that the accident happened only due to the
petitioner who failed to hold the hand bar near the front entrance.
5.The learned Tribunal framed three issues and three witnesses
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were examined as P.W.1 to P.W.3 thereby marking Ex.P1 to Ex.P3 on the
side of the petitioner and one witness was examined on the side of the
respondent Corporation and no document was marked. The learned
Tribunal after recording the evidence and hearing the arguments
advanced on both the sides and scrutinizing the evidence, both the oral
and documentary and upon appreciation of evidence, held that the
accident occurred only due to the negligence of the driver of the
respondent Corporation. The respondent Corporation is held vicariously
liable for the conduct of the driver of the Corporation. The partial
permanent disability of 39% as fixed by P.W.3 Doctor Adiyappan is
excessive and the learned Tribunal has reduced the same to 29% and had
calculated compensation for partial permanent disability by fixing Rs.
2,000/- per percentage for 29%. Thereby, a sum of Rs.58,000/- granted
towards partial permanent disability. The learned Tribunal has awarded a
sum of Rs.9,000/- (Rs.4,500x2) for loss of income for two months. The
learned Tribunal has awarded the compensation under the following
heads:-
Head Compensation awarded
(I)Partial Permanent Disability: Rs.58,000/-
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(ii)loss of income: Rs.9,000/-
(iii)Pain and suffering Rs.30,000/-
(iii)Extra nourishment: Rs.5,000/-
(iv)Transportation: Rs.5,000/-
(v)Medical Expenses: Rs.92,560/-
(vi)Loss to cloths: Rs.1,000/-
Total compensation awarded: Rs.2,00,560/- with interest @
7.5 % from the date of the claim
until the realization and costs.
6.Challenging the award, the petitioner has filed this Civil
Miscellaneous Appeal seeking enhancement of compensation claiming
that the Tribunal ought to have awarded compensation at a higher rate of
more than Rs.2,000/- for every percentage of disability by considering
that the petitioner has sustained grievous head injury wherein dislocation,
blood clot in brain and right ear, which could be substantiated from the
C.T. Scan report which was marked as Ex.P17 to Ex.P21. The petitioner
further claims that the Tribunal ought to have considered that the
petitioner is facing severe head ache all the time, suffering from tinnitus,
amnesia loss of memory, dimness of eye sight and loss of sensation in
taste and smell, etc. The learned counsel for the petitioner categorically
submitted that the Tribunal ought to have applied multiplier method for
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arriving at the compensation for the disability.
7.In the instant case, the petitioner had claimed that she earned an
amount of Rs.10,000/- per month by her fruits/snacks vending business
per month. However, considering the fact that she did not file any
document to prove the same, the learned Tribunal has fixed a sum of Rs.
4,500/- as monthly income and on the basis of which, the Tribunal has
awarded a compensation of Rs.9,000/- for two months under the head of
loss of income. However, while considering the head of partial
permanent disability, the learned Tribunal put into account the evidence
deposed by P.W.3 namely Doctor Adiyappan, who issued the permanent
disability certificate assessing the disability as 39%. Taking into account
the cross examination of P.W.3, wherein the said Doctor Adiyappan had
admitted that he was not the Medical Officer, who treated the petitioner
but he had issued the said disability certificate on the basis of the scan
report taken at the time of treatment undergone by the petitioner during
2015 and he further deposed that all those blood clots in the said scan
report has been duly treated and presently the petitioner is no more
suffering for blood clots in any part of her head. That apart he had also
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admitted that the scan report will not reveal anything about the memory
aspects of the petitioner. Considering all those facts, the learned Tribunal
felt that the partial permanent disability of 39% as fixed by P.W.3 is
excessive and has reduced the same to 29% and had calculated
compensation for partial permanent disability by fixing Rs.2,000/- per
percentage for 29%. Considering the fact that the accident took place in
the year 2015 and even after span of 7 years, the petitioner is still
suffering the side effects of injury sustained and the same has been duly
deposed by the Doctor who is treating the petitioner post accident.
Hence, this Court is of the considered view that the learned Tribunal
ought not to have reduced the percentage of partial permanent disability
from 39% to 29% without any rational justification.
8.In view of the same, this Court is inclined to fix the partial
permanent disability to 39% as certified by P.W.3 vide Ex.P22, who is an
expert witness. That apart this Court is also inclined to enhance the
compensation from Rs.2,000/- to Rs.2,500/- per percentage I.e. Rs.
2500x39%=Rs.97,500/-. The learned Tribunal has fixed the monthly
income of the petitioner as Rs.4,500/- I.e. Rs.150/- per day. This Court is
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inclined to enhance the monthly income from Rs.4,500/- to Rs.6,000/- ie.
Rs.200/- per day. Hence, the compensation under the Head of loss of
income for two months is enhanced from Rs.9,000/- to Rs.12,000/-.
Hence, the total compensation will be enhanced from Rs.2,00,560/- to
2,43,060/-.
Head Compensation Compensation Enhanced/
awarded before awarded before Confirmed
learned this Court
Tribunal
(I)Partial Rs.58,000/- Rs.97,500/- Enhanced
Permanent
Disability:
(ii)loss of Rs.9,000/- Rs.12,000/- Enhanced
income:
(iii)Pain and Rs.30,000/- Rs.30,000/- Confirmed
suffering
(iii)Extra Rs.5,000/- Rs.5,000/- Confirmed
nourishment:
(iv)Transportat Rs.5,000/- Rs.5,000/- Confirmed
ion:
(v)Medical Rs.92,560/- Rs.92,560/- Confirmed
Expenses:
(vi)Loss to Rs.1,000/- Rs.1,000/- Confirmed
cloths:
Total Rs.2,00,560/- Rs.2,43,060/- Enhanced
compensation
awarded:
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9.The petitioner/claimant is entitled to a sum of Rs.2,43,060/- as
compensation with interest at the rate of 7.5% from the date of the claim
petition till the date of realization. The respondent/Transport Corporation
is directed to deposit Rs.2,43,060/- with 7.5% interest from date of the
claim petition till the date of realization and the amount if not deposited
earlier, has to be deposited within a period of 8 weeks from the date of
receipt of copy of this order. On such deposit, the petitioner/claimant is
permitted to withdraw the award amount with proportionate interest after
deducting any amount received by him earlier without filing any formal
petition before the Tribunal. The petitioner/claimant is not entitled for
interest for the default period, if there is any.
10.Accordingly, the Civil Miscellaneous Appeal stands partly
allowed. There shall be no order as to costs.
03.01.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
Mrn
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L.VICTORIA GOWRI, J.
Mrn
To
1.The Motor Accidents Claims Tribunal,
(4th Additional Sub Judge), Madurai.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
03.01.2024
https://www.mhc.tn.gov.in/judis
