Madras High Court
D.Mahendran vs S.Bhakiyaraj on 12 February, 2025
CMA.No.363 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :12.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
CMA No.363 of 2025
D.Mahendran ... Appellant
Vs.
1.S.Bhakiyaraj
2.HDFC ERGO General Insurance Company Limited
Rep by Manager
165-166, 1st floor, HT Parekh Marg, Backbay Reclamation
Church Gate, Mumbai,
Maharastra State-400020 ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of
Motor Vehicles Act 1988, to allow this appeal by enhancing the award
passed by the Tribunal (Sub-Ordinate Judge, Palacode) in
MCOP.No.163 of 2019 dated 05.01.2022.
For appellant : Mr.S.Udhaya Kumar
For Respondents : Mr.S.Arun Kumar for R2
R1- Notice-Dispensed with
Page 1 of 9
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CMA.No.363 of 2025
JUDGMENT
Heard the arguments of the learned counsel for the appellant and
the learned counsel for the second respondent. The first respondent
remained ex-parte before the Tribunal. Hence, notice to him is
dispensed with.
2. The Civil Miscellaneous Appeal has been filed by the
appellant/ claimant seeking enhancement of the compensation awarded
by the Tribunal. Both the counsel appearing for the appellant and the
second respondent have not advanced any arguments on the question of
negligence and liability. Hence, the facts necessary for deciding
negligence and liability have not been considered in the present appeal.
3. The learned counsel for the appellant submitted that as per
Exhibit P16, the gross salary of the appellant was Rs.15,015/- The
Tribunal erred in fixing the income of the injured as Rs.12,500/- per
month by over looking the salary certificate produced by the appellant.
It is further submitted by the learned counsel for the appellant that as
per the disability certificate issued by the medical board marked as
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Exhibit C1, the appellant suffered 100% disability. It is mentioned in
the disability certificate that the appellant suffered weakness in both
the upper limbs as well as lower limbs with Spasticity Grade-II. It is
also stated that the appellant has no control over the bladder and bowel.
In view of the same, the amount of Rs.50,000/- awarded by the
Tribunal under the head attendant charges is very much on the lower
side. It is further submitted by the learned counsel that the award of
meagre amount under the head transportation charges, loss of amenities
etc., requires enhancement.
4. The learned counsel for the second respondent submitted that
in Exhibit P16, Salary Slip, there is a special allowance of Rs.2,250/-
and the said allowance cannot be taken into consideration. Therefore,
the Tribunal is justified in fixing the income of the appellant as
Rs.12,500/- per month. The learned counsel further submitted that the
Tribunal applied multiplier method and awarded just compensation and
therefore, the award amount need not be enhanced.
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5. In order to prove the income of the deceased, the appellant/
claimant produced Exhibits P15 and P16, salary certificate and salary
slips. As per Exhibit P15, salary certificate, the gross salary of the
claimant was mentioned as Rs.12,500/-. In Exhibit P16, Salary Slip for
the month of November 2018, a special allowance of Rs.2,250/- is
added. Therefore, the gross salary was mentioned as Rs.15,015/- As
rightly pointed out by the learned counsel for the second respondent,
the special allowance granted to the employee taking into consideration
the festival celebrated in the month of October- November cannot be
taken into consideration while fixing the income of the claimant.
Therefore, the amount of Rs.12,500/- fixed by the Tribunal based on
Exhibit P15, salary certificate requires no interference.
6. It is not in dispute that claimant suffered weakness in both the
upper and lower limbs. The gravity of the disability is described as
'Spasticity Grade-II' in the disability certificate issued by the Medical
Board. It is also stated that he suffered severe head injury and he has no
control over the bladder and bowel. Taking into consideration the
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seriousness of the disability suffered by the victim, the Medical Board
opined that he suffered 100% disability. Since the claimant has no
control over the bladder and bowel, he requires assistance of attender
throughout his life. Therefore, the amount of Rs.50,000/- awarded
under the head 'attendant charges' is very much on the lower side.
Taking into consideration the income of the claimant fixed at
Rs.12,500/- based on the salary certificate produced by him and a
multiplier method is adopted, this court is inclined to increase the
compensation awarded under the head 'attendant charges' to
Rs.2,00,000/-. It is not in dispute that the claimant had undergone
treatment in the hospital for 84 days. Therefore, the amount of
Rs.5000/- awarded under the head 'Extra Nourishment' is increased to
Rs.15,000/-. The amount awarded under the head 'Transportation' is
increased to Rs.15,000/-. Likewise, the claimant is entitled to
Rs.25,000/- under the head 'loss of amenities'.
7. In view of the same, the compensation awarded by the
Tribunal is modified as follows.
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Sl. Description Amount Amount Award
N awarded awarded confirmed
o by by this or
Tribunal Court enhanced
(Rs) (Rs) or granted
1. Pain and Suffering 75,000/- 75,000/- Confirmed
2. Attendant Charges 50,000/- 2,00,000/- Enhanced
3. Extra Nourishments 5,000/- 15,000/- Enhanced
4. Transportation 5,000/- 15,000/- Enhanced
Expenses
5. Permanent 37,80,000/- 37,80,000/ Confirmed
Disability -
6. Loss of Amenities 10,000/- 25,000/- Enhanced
8. Medical Expenses 8,45,426/- 8,45,426/- Confirmed
Total 47,70,426/- 49,55,426/ Enhanced
- by
Rs.1,85,000
/-
8. In view of the discussions made earlier, the Civil
Miscellaneous Appeal is partly allowed and the compensation awarded
by the Tribunal at Rs.47,70,426/- is hereby enhanced to Rs. 49,55,426/-
This Court, while condoning the delay of 804 days in filing appeal in
CMP.No.20011 of 2024, ordered that appellant is not entitled to
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interest for the delay period of 804 days. The appellant/claimant is
entitled to interest on the enhanced sum at the rate of 7.5% per annum
excluding the delay period (804 days) from the date of filing of the
claim petition till the date of realization. The second
respondent/Insurance Company is directed to deposit the enhanced sum
along with interest and costs, less the amount already deposited, if any,
within a period of six weeks from the date of receipt of copy of this
judgment. On deposit of the enhanced sum, the appellant/claimant is
entitled to withdraw the same along with interest and costs, less the
amount if any, already withdrawn by filing a formal application before
the Tribunal. The appellant is directed to pay the necessary Court Fee,
if any, on the enhanced award amount. No costs.
12.02.2025
Index:Yes/No
Internet:Yes/No
nr
https://www.mhc.tn.gov.in/judis
To
1. Motor Accident Claims Tribunal,
Sub-Ordinate Judge, Palacode
2. The Section Officer,
VR Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
S.SOUNTHAR, J.
nr
12.02.2025
https://www.mhc.tn.gov.in/judis
