Madras High Court

Devaraj vs Vimalraj on 4 January, 2024

                                                                                       C.M.A. No. 2413 of 2021


                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        DATED : 04.01.2024

                                                             CORAM:

                                    THE HONOURABLE MR. JUSTICE K. RAJASEKAR

                                                    C.M.A. No. 2413 of 2021

                     Devaraj                                             ... Appellant / Petitioner

                                                                Vs.

                     1.           Vimalraj

                     2.           The Managing Director,
                                  Tamil Nadu State Transport Corporation Ltd.,
                                  No.12, Ramakrishna Road,
                                  Salem - 636 007.                    ... Respondents / Respondents


                                  Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act, 1988 against the Judgment and decree dated 18.03.2021
                     passed in M.C.O.P. No. 135 of 2019 on the file of the I Special Subordinate
                     Judge, Motor Accident Claims Tribunal, Salem.



                                  For Appellant     :       M/s. T.S. Arthanareeswaran

                                  For R1            :       M/s. P. Jagadesan

                                  For R2            :       M/s. Nitin


                     1/11
https://www.mhc.tn.gov.in/judis
                                                                                  C.M.A. No. 2413 of 2021




                                                        JUDGMENT

This Civil Miscellaneous appeal has been filed by the claimant

seeking enhancement of compensation awarded in M.C.O.P. No. 135 of

2019, dated 18.03.2021 on the file of the I Special Subordinate Judge,

Motor Accident Claims Tribunal, Salem.

2. For the sake of convenience, the parties are referred herein

according to their litigative status and rank before the Tribunal.

3. On 27.07.2018, at about 10:45 AM, the claimant was riding a

Super Splendor motorcycle bearing Registration No.TN-30-L-2544 on

Kalparapatty to Elampilli Road, while he reached near Veerapathira

Kaliamman Kovil, a TNSTC bus bearing Registration No.TN-30-N-0405

came behind in a rash and negligent manner, hit on the backside of the

claimant's motorcycle causing grievous injuries to the claimant. A criminal

case was registered against the driver of the TNSTC bus in Cr.No.265/2018

under section 279, 337 of IPC on the file of Magudamchavadi Police

Station, Salem District. For the injuries sustained, the claimant has filed

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this claim petition seeking compensation for a sum of Rs.15,00,000/- under

section 166 of the Motor Vehicles Act, 1988.

4. The first respondent, who is the driver of the TNSTC bus,

filed a counter and stated that he drove the bus with due care and caution

and also contended the rash and negligence on the part of the claimant, who

without noticing on coming vehicles has suddenly entered from the sub road

to main road and dashed against the respondent's bus and invited the

accident, hence prays to dismiss the claim petition.

5. The second respondent - Transport Corporation filed a

counter and disputed the age, income, occupation, injuries sustained,

disability and medical expenses of the claimant and further contended that

the accident was taken place only due to the rash and negligence on the part

of the claimant, hence prays to dismiss the claim petition.

6. Before the Tribunal, on the side of the claimant, P.W.1 and

P.W.2 were examined and Exs.P.1 to P.9 and Court Ex.C.1 - disability

certificate issued by Salem Medical Board and Ex.C.2 - Medical Board

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report were marked. On the side of the respondent, R.W.1 was examined

and no exhibits were marked.

7. Based on the evidence placed on record, the Tribunal in point

no.1, has held that the rash and negligence on the part of the first

respondent's bus driver is responsible for the accident. In point nos.2 and 3,

the Tribunal has quantified and granted compensation for a sum of

Rs.5,69,216/- along with interest @ 7.5% per annum from the date of filing

of petition till the date of realization and fixed the liability on the part of the

second respondent - Transport Corporation to pay the awarded

compensation to the claimant.

8. Aggrieved over the award, the claimant has filed this appeal

seeking enhancement of compensation.

9. The learned counsel appearing for the claimant submitted

that, the Medical Board and the Tribunal has not properly considered the

nature of injuries sustained and the disability of the claimant and fixed 5%

permanent disability and awarded compensation by adopting percentage

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method. He also further submitted that the compensation awarded under

various other heads are on the lower side, hence prays to enhance the

compensation.

10. Per contra, the learned counsel appearing for the Transport

Corporation submitted that based on the evidences placed on record, the

Tribunal has awarded a just compensation, hence prays to confirm the

award.

11. Heard the submissions made on both sides and perused the

materials placed on record:

12. The major contention raised by the claimant is that he

sustained grievous injuries and fractures, but the percentage of disability

fixed by the Medical Board and the Tribunal is not proper, hence prays to

modify the award and to enhance the quantum of compensation awarded

under other heads. The Transport Corporation has not filed any appeal

challenging the liability fixed on them.

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13. Ex.P.2 – Wound certificate and Ex.P.3 and P.4 – discharge

summaries shows that the claimant has sustained following injuries:

“Traumatic brain injury with base of skull fracture and maxillofacial injury,

Right multiple ribs fracture with right pneumothorax and Left clavicle

fracure” and the above injuries have been treated by undergoing ortho

surgery in the hospital. Ex.C.1 – Disability certificate of the claimant and

Ex.C.2 - Medical Report issued by the Medical Board shows that the

claimant has been examined by Psychiatric and Ortho Doctors and they

have assessed the disability sustained by the claimant is only 5% permanent

disability and recorded that the claimant has sustained fracture in the left

collar bone and in the right shoulder. The Tribunal after appreciating the

disability certificate and Report of the Medical Board has held that the

claimant has sustained non functional disability and awarded compensation

Rs.25,000/- by adopting percentage method by granting Rs.5,000/- per

percentage of disability. Considering the age of the claimant, year of

accident, nature of injuries and the Medical Board Report, this Court is of

the view that the Tribunal has properly awarded compensation under the

head disability, hence this Court is inclined to confirm the same.

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14. Considering the nature of injuries and period of treatment,

the Tribunal has awarded Rs.50,000/- under the head pain and suffering and

Rs.25,000/- towards loss of amenities, however, based on Ex.C.1, Ex.P.3

and P.4 - discharge summaries, the claimant has sustained traumatic brain

injury and fracture in the skull, considering the above injuries, this Court is

of the view that the compensation awarded under the head pain and

suffering and loss of amenities is on the lower side, hence this Court is

inclined to award Rs.75,000/- towards pain and suffering and Rs.50,000/-

towards loss of amenities.

15. With regard to loss of income during the treatment period,

before the Tribunal, the claimant has submitted that he was doing textile

business and earning Rs.30,000/- per month, but to prove the same, the

claimant has not adduced any oral or documentary evidence, hence the

Tribunal by considering the age of the claimant has fixed Rs.7,500/- as the

monthly income of the deceased. The Tribunal based on Exs.P.2 to P.4 -

medical records and the nature of injuries sustained by the claimant and

taking note of the fact that he has undergone in-patient treatment for 20

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days in two hospitals and subsequently, continued his treatment, hence held

that, the claimant would have lost his income for a period of three months,

hence awarded Rs.22,500/- (Rs.7,500/- x 3) as loss of income for the

claimant during his treatment period. This Court is of the view that the

monthly income fixed by the Tribunal is on the lower side, hence this Court

is inclined to modify the monthly income of the claimant as Rs.12,000/- and

accordingly, the compensation under loss of income during the treatment

period is modified as Rs.36,000/- (Rs.12,000/- X 3).

16. The Tribunal has awarded Rs.10,000/- towards attender

charges, considering the treatment period and nature of injuries, this Court

is of the view that, the claimant would have been assisted by an attender

during his entire treatment period of three months, hence, this Court is

inclined to modify the attender charges to Rs.22,500/- by fixing Rs.7,500/-

per month for the attender. Whereas the other heads are concerned the

Tribunal has awarded a just compensation and the same are hereby

confirmed.

17. Accordingly, the award passed by the Tribunal under various

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heads are hereby modified as follows:

                         S.               Description           Amount      Amount       Award
                         No                                    awarded by awarded by confirmed or
                                                                Tribunal   this Court enhanced or
                                                                  (Rs)        (Rs)      reduced
                        1.        Pain and Sufferings              50,000/-     75,000/-    Enhanced
                        2.        Loss of income during the        22,500/-     36,000/-    Enhanced
                                  treatment period
                        3.        Medical expenses               4,15,716/-   4,15,716/-    Confirmed
                        4.        Transportation Charges           10,000/-     10,000/-    Confirmed
                        5.        Extra Nourishment                10,000/-     10,000/-    Confirmed
                        6.        Attender Charges                 10,000/-     22,500/-    Enhanced
                        7.        Damage to artices                 1,000/-       1,000/-   Confirmed
                        8.        Loss of amenities                25,000/-     50,000/-    Enhanced
                        9.        Permanent Disability             25,000/-     25,000/-    Confirmed
                                  Total Compensation             5,69,216/-    6,45,216/-   Enhanced

16. In the result, this Civil Miscellaneous Appeal is partly allowed

and the compensation awarded by the Tribunal at Rs.5,07,342/- is hereby

enhanced to Rs.6,45,216/- [Rupees Six Lakh Forty Five Thousand Two

Hundred and Sixteen only] together along with interest at the rate of 7.5%

per annum from the date of filing of Claim Petition till the date of

realization, excluding the default period, if any. The Second Respondent -

Transport Corporation is directed to deposit the amount awarded by this

Court along with interest and costs, less the amount already deposited, if

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any, within a period of six weeks from the date of receipt of a copy of this

judgment to the credit of M.C.O.P.No.135 of 2019 on the file of the I

Special Subordinate Judge, Motor Accidents Claims Tribunal, Salem. On