Madras High Court
Periyasamy vs Sethuraman on 2 January, 2024
C.M.A. No. 1920 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.01.2024
CORAM:
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
C.M.A. No. 1920 of 2021
Periyasamy ... Appellant / Petitioner
Vs.
1. Sethuraman
3. The United India Insurance Co. Ltd.,
D.No.167-D, Attur Main Road,
Venkateshwara Theatre Bus Stop,
Gangavalli, Salem - 636 105. ... Respondents / Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the Judgment and decree dated 29.01.2021
passed in M.C.O.P. No. 1592 of 2019 on the file of the I Special
Subordinate Judge, Motor Accident Claims Tribunal, Salem.
For Appellant : M/s. C. Paraneedharan
For R1 : No Appearance
For R2 : M/s. J. Chandran
1/8
https://www.mhc.tn.gov.in/judis
C.M.A. No. 1920 of 2021
JUDGMENT
This Civil Miscellaneous appeal has been filed by the claimant
seeking enhancement of compensation awarded in M.C.O.P. No. 1592 of
2019, dated 29.01.2021 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 04.06.2019, at about 11:30PM, the claimant was sleeping
in the portico of the Gangavalli Arokia Maatha Christian Hospital, a
Hyundai Santro car bearing Registration No.TN-31-K-4559 driven by its
driver in a rash and negligence manner, had ran over the claimant and
caused grievous injuries to the claimant. A criminal case was registered
against the the driver of the car in Cr.No.62/2019 U/s.279 and 337 of IPC
on the file of Gangavalli Police Station. For the injuries sustained, the
claimant has filed claim petition seeking compensation for a sum of
Rs.15,00,000/- under section 166 of the Motor Vehicles Act, 1988.
https://www.mhc.tn.gov.in/judis
4. The first respondent is the owner of the offending car filed a
counter and disputed the age, occupation, income, injuries sustained and
disability of the claimant and contended that accident has happened only
due to the rash and negligence on the part of the claimant, who was under
the influence of alcohol, invited accident. He further submitted that the
driver of the car has a valid driving licence and the insurance policy of the
car was in force at the time of occurrence, hence, the second respondent -
insurance company is liable to pay any compensation awarded.
5. The second respondent - insurance company filed a counter
and disputed the manner in which the accident has taken place and
contended that the accident was happened only due to the negligence on the
part of the claimant, who without noticing the on coming car and suddenly
entered before it and invited the accident. The insurance company also
disputed the age, income, occupation, treatment undergone and disability
sustained by the claimant and contended that the compensation claimed
under various heads are on the higher side, hence prays to dismiss the claim
petition.
https://www.mhc.tn.gov.in/judis
6. Before the Tribunal, on the side of the claimant, P.W.1 was
examined and Exs.P.1 to P.20 and Ex.X.1 - disability certificate of the
claimant issued by the Salem Medical Board were marked. On the side of
the respondent, no witnesses were 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 driver of
the car bearing Registration No.TN-31-K-4559 is responsible for the
accident. In point nos. 2 and 3, the Tribunal has quantified and granted
compensation for a sum of Rs.5,56,118/- along with interest @ 7.5% per
annum from the date of filing of claim petition till the date of realization
and fixed the liability on the part of the insurance company to indemnify the
first respondent and to pay 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
https://www.mhc.tn.gov.in/judis
that, Tribunal has not properly considered the nature of injuries sustained
and the disability of the claimant and awarded compensation by adopting
percentage method instead of granting compensation under loss of earning
capacity. 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 insurance
company submitted that based on the evidences placed on record, the
Tribunal has awarded a just compensation, hence prays to confirm the
award.
11. I have 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, so he could not continue his
earlier avocation, hence prays to grant compensation under the head loss of
earning capacity.
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13. Ex.P.5 – Wound certificate and Ex.P.6 – discharge summary
shows that the claimant has sustained following injuries: “Left 6th RIB
Fracture, Right 7th, 8th RIB Fracture with Right Hemothorax, Degloving
injury over chest and abdomen and Fracture on Right Lateral End Clavicle”
and the above injuries have been treated conservatively in the hospital.
Ex.X.1 – disability certificate of the claimant issued by the Salem Medical
Board shows that the claimant has sustained 45% permanent disability and
recorded that the claimant has sustained fractures in 6th, 7th and 8th Ribs and
fracture in the right shoulder, hence there is a restriction in the movement of
his shoulder and chest area. The Tribunal after appreciating the disability
report of the Medical Board has held that the claimant has sustained non
functional disability and awarded compensation Rs.2,25,000/- 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/- each under the head pain and
suffering and loss of amenities, Rs.60,000/- towards loss of income during
the treatment period of the claimant. Whereas the other heads are
concerned the Tribunal has awarded a just compensation and this Court is of
the view that the appeal filed by the claimant has no merits, hence, inclined
to confirm the award of the Tribunal.
15. In the result, this Civil Miscellaneous Appeal is dismissed
and the award of the Tribunal is hereby confirmed. No cost.
02.01.2024
stn
Index:Yes/No
Speaking Order:Yes/No
Neutral Citation Case: Yes/No
To:
1. The I Special Subordinate Judge,
Motor Accident Claims Tribunal,
Salem.
2. The Section Officer,
V.R.Section,
High Court, Chennai.
https://www.mhc.tn.gov.in/judis
K. RAJASEKAR, J.
stn
02.01.2024
https://www.mhc.tn.gov.in/judis
