Madras High Court

Manikandan … vs K.N.P.Vadivel on 6 January, 2024

                                                                               CM.A.No.3098 of 2021


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 06.01.2024

                                                         CORAM


                  THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI,J.


                                              C.M.A.No.3098 of 2021


                  Manikandan                                                       …Appellant
                                                   Vs.


                  1. K.N.P.Vadivel
                  2. National Insurance Company Ltd.,
                      Divisional Officer, No74-A, Paramathi Road,
                      Namakkal Town & District.                                    …Respondents


                  Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
                  Vehicles Act,1988, for the enhancement of the compensation in the Judgment
                  and decree dated 30.09.2020 made in M.C.O.P No.1264 of 2015 on the file of
                  MACT/Additional District Court at Namakkal.


                                         For Appellant     : Mr.M.Lokesh
                                         For Respondents   : Mr.S.Vadivel for R2
                                                            Notice dispensed with for R1

                  1/10

https://www.mhc.tn.gov.in/judis
                                                                                       CM.A.No.3098 of 2021




                                                          JUDGMENT

This Civil Miscellaneous Appeal is preferred against the award of

the Motor Accident Claims Tribunal/Additional District Court at Namakkal in

M.C.O.P.No.1264 of 2015.

2. Shortly stated, on 16.12.2014 at about 02.30 am at near

Kosavampatty Railway Bridge, on the road of Namakkal to Thuraiyur Main

Road, the injured petitioner Manikandan was riding in a Apache Two

Wheeler bearing Registration No.TN-28/AM-5520 on the left side of the road

towards east to west direction. At the same time, a Swift Car bearing

Registration No.TN-28/AE-4313 was in opposite direction. Unfortunately,

the petitioner's vehicle hit the Swift Car and caused the accident. Due to this

accident, the petitioner sustained following injuries namely:-

1. Head injury with hemorrhage contusion both frontal lobe right

tempero partial subdural hematoma.

2. Multiple abrasions over the left foot and toes.

3. Lacerated wound over the right leg.

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3. Lacerated wound over left leg as per wound certificate.

4. Immediately after the accident, the injured petitioner was

admitted in M.M. Hospital, Namakkal for better treatment. He was inpatient

for more than 12 days and spent nearly Rs.1,00,000/- for medical expenses.

Till today, he is taking treatment as an outpatient.

5. The 2nd respondent in its counter affidavit resisted the claim of

the petitioner by stating that in the investigation of the Namakkal Police, it

was found that the injured was responsible for the accident due to the rash and

negligent driving of the two wheeler. The Namakkal Police also registered a

case in Cr.No.929 of 2014 under Section 279 and 337 IPC and was closed as

“mistake of fact”. Even the M.V.I. report would elucidate that the accident

occurred due to the negligent act of the petitioner.

6. Before the Tribunal, the petitioner has examined himself as

P.W.1 and three other witnesses were examined as P.W.2 to P.W.4. 15

documents were marked as Ex.P1 to Ex.P15. On the side of the 2 nd

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respondent, two witnesses were examined as R.W.1 and R.W.2. Ex.R1 and

Ex.R2 were marked.

7. Based on the pleadings, the Tribunal has formulated the

following points for consideration.

1.Whether the accident in question occurred due to the rash and negligent driving of the driver of the 1st respondent's car bearing registration number TN 28 AE 4313?

2. Whether the injuries sustained by the petitioner has caused any disability reducing his earning power?

3.Whether the petitioner is entitled to claim compensation and if so what is the just compensation that can be awarded to the petitioner?

4. Whether the respondents are liable to pay compensation awarded to the petitioner?

5.To what other reliefs?

8. The Tribunal came to the conclusion that the accident took place

due to the rash and negligent driving of the driver of the 1st respondent car

bearing registration number TN 28 AE 4313 and awarded compensation a

sum of Rs.2,10,000/- carrying interest at the rate of 7.5% per annum.

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9. Before the Tribunal, P.W.2 & P.W.4 were examined to speak

about the disability caused to the petitioner. P.W.2, an Orthopadic surgeon

who issued Ex.P.12 disability certificate deposed that, due to the said accident

the claimant has suffered 26% of permanent disability. Whereas, P.W.4, in

Ex.P.15 disability certificate assessed the disability as 40%. However the

Tribunal fixed 30% disability and the order of the Tribunal in this regard is

extracted as follows:-

“However, from the evidence of P.W.2 and P.W.4 it is pellucid that there is no consensus of opinion between the two physicians as to the nature of disability caused and the percentage of disability caused to the petitioner. Situated thus this Tribunal on evaluation of the evidence on record decides that the injuries sustained by the petitioner in the accident has caused partial permanent disability to the petitioner and the percentage of disability can be safely fixed at 30%.”

10.The learned counsel appearing for the appellant/injured would

argue that the accident in this case took place in the year 2014. However, the

Tribunal has taken a sum of Rs.3000/- for each percentage of disability,

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which is very meager. To support his contention, he has relied upon the

decision M.Chinnathambi Vs. S.Deepa reported in 2020 (1) TN MAC 617,

in which it is held as follows:-

“This Court by the Judgment reported in the matter of National Insurance Co. Ltd. v. G. Ramesh, 2013 (2) TN MAC 583, granted Rs.3,000 per percentage for accident occurred in the year 2009, enhancing from Rs.2,000 per percentage taking into account the cost of living at that time. Due to passage of time, a sum of Rs.3,000 per percentage of disability awarded in the year 2013 for the accident of the year 2009 is to be enhanced. Taking into consideration the raise in cost of living, it will be reasonable to Award a sum of Rs.4,000 per percentage for the accident of the year 2014 and 2015 and Rs.5,000 per percentage for the accident from the year 2016 onwards towards disability certified by the qualified Doctor or Medical Board. In the present case, the accident has occurred on 1.7.2016. A sum of Rs.5,000 per percentage of disability is granted. Accordingly, a sum of Rs.60,000 (Rs.5,000 x 12%) is awarded towards disability by awarding a sum of Rs.5,000 per percentage of disability.”

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11. On the other hand, the learned counsel appearing for the 2 nd

respondent/Insurance Company would submit that when there is no consensus

of opinion between the two Doctors, the Tribunal ought not to have fixed

even 30% of disability.

12. Heard on both sides. Records perused.

13. The Tribunal on appreciating the evidence on record and the

injuries sustained by the petitioner in the accident, rightly came to the

conclusion that the claimant has suffered a partial permanent disability and

had rightly fixed 30% disability. The order of the Tribunal in this regard is

confirmed.

14. As per the decision case reported in 2020(1) TN MAC 617, the

injured is entitled to a sum of Rs.4000/- per percentage for 30% disability i.e.,

Rs.4000/- X 30= Rs.1,20,000/-.

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15.Considering the nature of injury suffered by the claimant a sum

of Rs.30,000/- is awarded under the head of loss of income.

16. The compensation awarded by the Tribunal under other heads

are confirmed. Thus, the compensation awarded by the Tribunal is modified

as follows:

S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Compensation for 90,000/- 1,20,000/- Modified
disability caused
2. Medical expenses 75,000/- 75,000/- confirmed
3. Compensation for 15,000/- 15,000/- confirmed
pain and sufferings
4. Transport to 10,000/- 10,000/- confirmed
hospital
5. Attendant charges 10,000/- 10,000/- confirmed
6. Extra nourishment 10,000/- 10,000/- confirmed
and other
incidental expenses
7. Loss of Income - 30,000/- granted
Total Rs.2,10,000/- Rs.2,70,000/- enhanced by
Rs.60,000/-

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

and the compensation awarded by the Tribunal at Rs.2,10,000/- is hereby

enhanced to Rs.2,70,000/- together with interest at the rate of 7.5% per annum

from the date of petition till the date of deposit. The appellant is directed to

pay the Court fee, if any on the enhanced amount of compensation. The

second respondent/Insurance Company is directed to deposit the enhanced

award amount now determined 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. On such deposit, the appellant

is permitted to withdraw the enhanced award amount, along with interest and

costs, less the amount if any, already withdrawn by making necessary