Madras High Court
The Branch Manager vs R.Raja … 1St on 8 November, 2024
C.M.A.No.1893 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.11.2024
CORAM:
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
C.M.A.No.1893 of 2022 and
C.M.P.No.13879 of 2022
The Branch Manager,
United India Insurance Company Limited,
CB Hub, First Floor,
104-A, Peramanur Main Road,
Peramnaur,
Salem District - 636 007. ... Appellant / 2nd Respondent
Vs.
1. R.Raja … 1st Respondent / Petitioner
2. MS TVL Jayam Bus Roadlines,
No.130A, Athur Road,
Rasipuram Taluk,
Namakkal - 637 408. … 2nd Respondent / 1st Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and decree passed in
M.C.O.P.No.386 of 2019 on 29.11.2019 on the file of the Motor Accident
Claims Tribunal, Special Subordinate Judge No.2, Salem.
For Appellant : Mr.J.Chandran
For Respondents : No appearance for R1
Mr.R.Natesan for R2
JUDGMENT
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This civil miscellaneous appeal has been filed by the Insurance
Company challenging the quantum of compensation awarded to the first
respondent / claimant in M.C.O.P.No.386 of 2019, dated 29.11.2019 by the
Motor Accident Claims Tribunal, Spl. Subordinate Judge No.2, Salem.
2. The claimant, aged about 28 years, alleged to be earning a sum of
Rs.12,000/- per month, met with an accident on 27.09.2018, when he was
travelling in a bus bearing Registration No.TN-28-AN-5279, belonging to
the second respondent, driven by its driver, in a rash and negligent manner,
due to which, the claimant fell down from the bus and he sustained fractures
in left zygomea and left clavicle. He underwnet ORIF with plating. He
undergone impatient treatment from 29.09.2018 to 15.10.2018. Due to
injuries sustained, the claimant has come forward with a claim petition
seeking compensation for a sum of Rs.20,00,000/- along with interest.
3. The second respondent, who is the owner of the bus has not
contested the claim and remained ex-parte. The appellant, who is the insurer
of the bus filed a counter and contested the claim petition on the ground that
the claimant was responsible for the accident, who was travelling carelessly
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on the footboard of the bus in a drunken mood. He further contested the case
disputing both the liability as well as the quantum of compensation claimed.
4. Before the Tribunal, on the side of the claimant, P.W.1 and P.W.2
were examined and Exs.P1 to P10 were marked. On the side of the appellant
/ second respondent, no witnesses were examined and no exhibits were
marked. The Tribunal after considering the evidence placed on record, has
held that the rash and negligent driving of the driver of the bus bearing
Registration No.TN-28-AN-5279 is responsible for the accident and the
appellant / second respondent is liable to pay the compensation. Further, the
Tribunal has quantified and granted a compensation for a sum of
Rs.10,19,333/- along with interest @ 7.5 per annum from the date of filing
of claim petition till the date of realization.
5. Aggrieved over the quantum awarded by the Tribunal, this appeal
has been filed by the Insurance Company seeking reduction of the
compensation awarded.
6. Heard the learned counsel for appellant / Insurance Company and
the learned counsel for second respondent / owner of the vehicle. Inspite of
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serving of notice, the claimant has not come forward to appear before this
Court.
7. Mr.J.Chandran, learned counsel appearing for the appellant /
Insurance Company submitted that the major grievance of the appellant is
that the Tribunal has awarded compensation under the heads disability,
future medical expenses and extra nourishment, which are very exorbitant
and the same is required to be modified. He further contended that the
compensation awarded under other heads are on the higher side without
following the norms and principles settled by this Court for fixing the
compensation. Hence, he prays to modify the same.
8. I have considered the submissions made on both sides and perused
the materials available on record.
9. A perusal of the evidence of P.W.2-Doctor, who assessed the
disability, shows that he issued the disability certificate based on the
documents produced before him and also he had treated the claimant
personally. According to him, the claimant has sustained fractures in left
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zygomea and left clavicle. He had further stated that he was treated with
ORIF with plating. Except these two injuries, no other greivous injury has
been found either in Ex.P5- discharge summary or in Ex.P10-disability
certificate. Considering the above injuries sustained by the claimant, his
disability was assessed at 40% as per the disability certificate marked as
Ex.P.10 by the Doctor. The Doctor-P.W.2, further stated that the claimant is
having intellectual disability and headache with memory loss. Based on this
evidence, the Tribunal has also accepted the disability and treated the injury
as a non-functional disability and awarded Rs.3,000/- per percentage of
injury, thereby granting compensation of Rs.1,20,000/- under the head
disability. This Court in the case of M.Chinnathambi vs. S. Deepa and
another [CDJ 2020 MHC 1013; 2020 (1) TNMAC 617], has held that
Rs.5,000/- per percentage of injury would be awarded for the accident that
took place from the year 2016, hence, considering the date of accident, this
Court is inclined to modify the same by adopting Rs.5,000/- per percentage
of injury and award compensation of Rs.2,00,000/- (Rs.5,000/- x 40%)
under the head disability.
10. The Tribunal has also awarded a sum of Rs.2,00,000/- as
compensation under the head future medical expenses. On a careful perusal
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of the evidence of the claimant as well as P.W.2-Doctor, they have never
produced any document or any evidence to state that future medical
treatment is required for the claimant. The evidence of P.W.2 was only to
the effect that the claimant has suffered some disability and nowhere it is
stated that he requires further treatment. Further, the Tribunal has not given
any proper reasons for awarding such a huge sum under the head future
medical expenses. In these circumstances, I am of the view that awarding
compensation under the head future medical expenses is unwarranted and
the same is hereby cancelled.
11. The Tribunal has also awarded a sum of Rs.1,00,000/- under the
head extra nourishment and the same is also exorbitant. Considering the
nature of injuries sustained by the claimant, awarding Rs.25,000/- under the
head extra nourishment would be sufficient. Accordingly, the same is hereby
modified. Similarly, a sum of Rs.60,000/- awarded under the head loss of
amenities is also modified to Rs.25,000/-.
12. Insofar as the loss of income is concerned, the Tribunal has
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awarded a sum of Rs.7,500/- as monthly income during the treatment period
of ten months. However, the discharge summary shows that the claimant has
underwent impatient treatment from 29.09.2018 to 15.10.2018. No medical
records have been produced to show that the claimant has undergone further
treatment for the injury sustained by him. Without any evidence for further
treatment or without any evidence to show that the claimant was unable to
recover himself from the injury for a long period, the Tribunal has awarded
ten months income as loss of income. This Court, considering the period and
also the nature of injury, is of the view that, granting loss of income for a
period of three months would be sufficient and the same is modified.
Further, the monthly income fixed by the Tribunal at Rs.7,500/- is on the
lower side and the same is modified to Rs.12,000/- by considering the date
of accident. Accordingly, this Court is inclined to award Rs.36,000/-
(12,000/- X 3) as compensation under the head loss of income during the
treatment period. Similarly, the compensation awarded under the other heads
is reasonable and accordingly, the same is hereby confirmed.
13. Accordingly, the award passed by the Tribunal under various
heads is hereby modified as follows:
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S.No Description Amount Amount Award
awarded by awarded by confirmed
Tribunal this Court or enhanced
(Rs) (Rs) or reduced
1. Permanent Disability 1,20,000/- 2,00,000/- Enhanced
@ 40% (40% X
Rs.5000/-)
2. Pain and Suffering 50,000/- 50,000/- Confirmed
3. Loss of Amenities 60,000/- 25,000/- Reduced
4. Medical Expenses 3,68,333/- 3,68,333/- Confirmed
5. Loss of income 75,000/- 36,000/- Reduced
during treatment
period (Rs.12,000 X
3)
6. Future Medical 2,00,000/- - -
expenses
7. Transportation Rs.25,000/- Rs.25,000/- Confirmed
Charges
8. Extra Nourishment Rs.1,00,000/- Rs.25,000/- Reduced
9. Attender Charges Rs.20,000/- Rs.20,000/- Confirmed
10. Damages to Clothes Rs.1,000/- Rs.1,000/- Confirmed
Total Compensation 10,19,333/- 7,50,333/- Reduced
14. In the result, this Civil Miscellaneous Appeal is partly allowed
and the compensation awarded by the Tribunal at Rs.10,19,333/- is hereby
reduced to Rs.7,50,333/- together along with interest at the rate of 7.5% per
annum from the date of filing of Claim Petition till the date of deposit,
excluding the default period, if any. The appellant / Insurance Company is
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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.386 of 2019 on the file of the Motor Accident Claims
Tribunal, Special Subordinate Judge No.2, Salem. On such deposit, the first
respondent / claimant is permitted to withdraw the award amount now
determined by this Court along with interest and costs, less the amount if
any, already withdrawn. The Tribunal shall disburse the amount now
awarded by this Court by directly giving credit to the Savings Bank Account
of the claimant. There shall be no order as to costs in the present appeal.
Consequently, connected miscellaneous petition is closed.
08.11.2024
Index :Yes / No
Speaking Order :Yes / No
Neutral Citation Case: Yes / No
vji
To
1. The Motor Accident Claims Tribunal,
Spl. Subordinate Judge No.2, Salem.
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2. The Section Officer,
V.R. Section,
High Court, Chennai.
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K.RAJASEKAR, J.
vji
and
08.11.2024
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