Madras High Court

Nandhagopal vs Shankar on 5 January, 2024

                                                                                      C.M.A. No. 2475 of 2021


                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED : 05.01.2024

                                                              CORAM:

                                    THE HONOURABLE MR. JUSTICE K. RAJASEKAR

                                                     C.M.A. No. 2475 of 2021

                     Nandhagopal                                        ... Appellant / Petitioner
                                                                 Vs.

                     1.           Shankar

                     2.           A.M.V. Jayaraman

                     3.           The United India Insurance Co. Ltd.,
                                  D.O.Code No.170600, 1171,
                                  Muthaiah Complex,
                                  Mettur Road, Erode - 638 011.        ... Respondents / Respondents


                                  Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act, 1988 against the Judgment and decree dated 09.07.2020
                     passed in M.A.C.T.O.P. No. 1270 of 2019 on the file of the I Special
                     District Judge, Motor Accident Claims Tribunal, Salem.


                                  For Appellant      :       M/s. C. Paraneedharan
                                  For RR 1 & 2       :       No Appearance
                                  For R3             :       M/s. D. Bhaskaran




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                                                                                  C.M.A. No. 2475 of 2021




                                                        JUDGMENT

This Civil Miscellaneous appeal has been filed by the claimant

seeking enhancement of compensation awarded in M.A.C.T.O.P. No. 1270

of 2019, dated 09.07.2020 on the file of the I Special District 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 16.11.2018, at about 6:40PM, the claimant was riding a

TVS Wego Scooter bearing Registration No.TN-52-F-9963 on the Salem to

Kovai National Highway, while he reached near Soolaimedu, Eicher

Company, a bus bearing Registration No.TN-86-C-2299 came behind the

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

claimant's scooter and caused grievous injuries. A criminal case was

registered against the driver of the bus in Cr.No.717/2018 U/s. 279, 338 of

IPC on the file of Kondalampatty Police Station. For the injuries sustained,

the claimant filed a claim petition seeking compensation for a sum of

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Rs.15,00,000/- under section 166 of the Motor Vehicles Act, 1988.

4. The third respondent - insurance company, who is the insurer

of the bus bearing Registration No.TN-86-C-2299, filed a counter and

disputed the manner in which the accident has taken place and contended

that the bus driver has driven the bus with due care and caution, the accident

has happened only due to the rash and negligence on the part of the

claimant, who has not possessed a valid driving licence and rode the scooter

without head gear at the time of occurrence. The insurance company also

disputed the age, occupation, injuries sustained, disability and income of the

claimant and contended that the compensation claimed under various heads

are on the higher side, hence prays to dismiss the claim petition. The first

and second respondents have not contested the claim and remained ex-parte.

5. 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

is responsible for the accident. In point nos.2 and 3, the Tribunal has

quantified and granted compensation for a sum of Rs.5,07,342/- along with

interest @ 7.5% per annum from the date of filing of petition till the date of

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realization and fixed the liability on the part of the third respondent -

insurance company to indemnify the second respondent and to pay

compensation to the claimant.

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

seeking enhancement of compensation. The insurance company has not

preferred any appeal challenging the liability fixed on them.

7. The learned counsel appearing for the claimant submitted that

the Tribunal has not properly appreciated the injuries sustained by the

claimant and awarded lower compensation under the head Disability, loss of

income during the treatment period and pain and suffering. Further

submitted that the Tribunal ought to have adopted multiplier method in

awarding compensation under the head loss of income and the

compensation awarded under various heads are on the lower side, hence

prays to enhance the compensation.

8. Per contra, the learned counsel appearing for the insurance

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

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

award.

9. I have considered the submissions made on both sides and

perused the materials available on record.

10. Ex.X.1- disability certificate of the claimant issued by the

Medical Board shows that the claimant has sustained 25% permanent

disability and he sustained fracture shaft of right side femur with fracture

lateral femoral condyle and bimalleolar fracture right ankle and degloving

injury right thigh and he is facing difficulty in squatting and sitting cross

legged, pain in hip and ankle limp while walking, hence the Tribunal has

accepted the percentage of disability assessed by the Medical Board and

awarded Rs.3,000/- per percentage of disability. Considering the nature of

injuries and the disability certificate issued by the Medical Board shows that

the claimant has sustained only permanent disability and not functional

disability, hence this Court is of the view that the Tribunal has rightly

adopted percentage method in granting compensation. However, this Court

in M. Chinnathambi vs. S. Deepa and another [CDJ 2020 MHC 1013;

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2020 (1) TNMAC 617], awarded Rs.5,000/- per percentage of disability for

the accident cases taken place from the year 2016 onwards, hence,

considering the date of accident and also the age of the claimant herein, this

Court is inclined to modify the award of Rs.3,000/- per percentage of

disability by the Tribunal to Rs.5,000/- hence, the total compensation

granted under the disability is modified to Rs.1,25,000/- (Rs.5,000/- x 25%

of disability).

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

before the Tribunal, the claimant has submitted that he was earning

Rs.12,000/- 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

claimant. The Tribunal based on Exs.P.2 to P.4 - medical records and the

nature of injuries sustained by the claimant has held that, the claimant

would have lost his income for a period of five months, hence awarded

Rs.37,500/- (Rs.7,500/- x 5) as loss of income for the claimant during his

treatment period. Considering the nature of injuries, the award of five

months loss of income during the treatment period by the Tribunal is

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reasonable and proper. However, considering the age of the claimant and

date of accident, 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.10,000/- and accordingly, the

compensation under loss of income during the treatment period is modified

as Rs.50,000/- (Rs.10,000/- X 5).

12. The Tribunal has awarded Rs.25,000/- under the head pain and

suffering, while considering the nature of injuries sustained by the claimant

and period of treatment, this Court is inclined to modify the same to

Rs.30,000/-. Whereas the other heads are concerned, the Tribunal has

awarded a just compensation and the same are hereby confirmed.

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

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 25,000/- 30,000/- Enhanced
2. Loss of income during the 37,500/- 50,000/- Enhanced
treatment period

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S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) reduced
3. Medical expenses 3,06,342/- 3,06,342/- Confirmed
4. Transportation Charges 12,500/- 12,500/- Confirmed
5. Extra Nourishment 12,500/- 12,500/- Confirmed
6. Attender Charges 12,500/- 12,500/- Confirmed
7. Damage to artices 1,000/- 1,000/- Confirmed
8. Loss of amenities 25,000/- 25,000/- Confirmed
9. Permanent Disability 75,000/- 1,25,000/- Enhanced
Total Compensation 5,07,342/- 5,74,842/- Enhanced

14. 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.5,74,842/- [Rupees Five Lakh Seventy Four Thousand

Eight Hundred and Forty Two 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 Third

Respondent - Insurance Company is directed to deposit the amount awarded

by this Court along with interest and costs, less the amount already

deposited, if 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.1270 of 2019 on the file

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of the I Special District Judge, Motor Accidents Claims Tribunal, Salem. On