Madras High Court
Nazeer Basha vs R.Elavarasan on 26 February, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
C.M.A(MD)Nos.176 & 822 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 31.01.2025
Pronounced on : 26.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
C.M.A.(MD)Nos.176 & 822 of 2022
C.M.A.(MD)No.176 of 2022
Nazeer Basha ... Appellant/ Petitioner
(Rep. By his wife/Guardian
Sithy Shinosa Banu)
Vs.
1.R.Elavarasan
2.The Branch Manager,
M/s.United India Insurance Company Ltd.,
No.23, E.V.R. Road, Puthur,
Trichy – 17. ...Respondents / Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the fair and decreetal order dated
29.01.2021 made in MCOP No.491 of 2017 on the file of Motor
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C.M.A(MD)Nos.176 & 822 of 2022
Accident Claims Tribunal, Special Subordinate Court, Tiruchirappalli
and allow the Civil Miscellaneous Appeal.
For Appellant : Mr.K.Govindarajan
for Mr.S.Alagusundar
For Respondents : Mr.S.Royce Immanuel – for R2
C.M.A.(MD)No.822 of 2022
The Branch Manager,
M/s.United India Insurance Company Ltd.,
No.23, E.V.R. Road,
Puthur,
Thiruchirapalli – 620 017. ... Appellant / 2nd Respondent
Vs.
1.Nazeer Basha ...1st Respondent / Petitioner
(Rep. By his wife/Guardian
Sithy Shinosa Banu)
2.R.Elavarasan ...2nd Respondent / 1st Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the fair and decreetal order dated
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C.M.A(MD)Nos.176 & 822 of 2022
29.01.2021 made in MCOP No.491 of 2017 on the file of Motor
Accident Claims Tribunal, Special Subordinate Court, Tiruchirappalli
and allow this Civil Miscellaneous Appeal.
For Appellant : Mr.I. Robert Chandrakumar
For Respondents : Mr.K.Govindarajan – for R1
for Mr.S.Alagusundar
COMMON JUDGMENT
(Judgment of this Court was delivered by R.POORNIMA, J.)
The appellant/ Insurance Company has filed the Civil
Miscellaneous Appeal in C.M.A(MD)No.822 of 2022 and the claimant
has filed C.M.A.(MD)No.176 of 2022 against the fair order and decretal
order dated 29.01.2021 passed in M.C.O.P.No.491 of 2017 by the Motor
Accident Claims Tribunal, Special Subordinate Court, Tiruchirappalli.
2. The brief facts of the petition filed by the claimant before
the Tribunal is as follows:
(i) On 25.02.2017 at about 900 p.m., the petitioner was
standing in the centre median of the road, opposite to Lakshmipuram Bus
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stop in Trichy – Thanjavur Main Road, at that time, the first respondent's
Mahindra TUV – 300 bearing Registration No.TN-49-BH-6936 was
proceeding in the above said road from West to the East, which was
driven by its driver in a rash and negligent manner with hectic and
uncontrollable speed without blowing horn and without watching the
petitioner, dashed on the petitioner thereby caused the accident. Due to
the accident, the petitioner was thrown away and sustained severe head
injury, fracture in the right frontal bone with diffuse cerebral oedema,
minimal right frontal lobe haemorrhagic contusion significant bifrontal
lobe contusion, minimal right frontal lobe SAH, minimal hemispheric,
fissure SDH, and severe injury caused in backside head, large lacerated
wound over forehead, abrasion over left forearm and both legs and
sustained multiple grievous injuries all over the body.
(ii) After the accident, the petitioner was admitted at Retna
Global Hospital, Trichy as in patient from 25.02.2017 to 12.4.2017 and
now he is taking continuous treatment as outpatient. Nurses are giving
physiotherapy treatment and further treatment at home of the petitioner.
The petitioner spent more than Rs.8,00,000 towards medical expenses.
So far, he has to incur a huge amount for medical expenses.
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(iii) The accident occurred purely due to rash and negligent
driving of the driver of the first respondent's Mahendra TUV 300 bearing
Registration No.TN 49 BH 6936 against whom a case has been registered
by the Traffic Investigation Wing Police Station in Crime No.50/2017,
for the offence under Sections 279 and 337 of IPC.
(iv) In the above accident, the petitioner has sustained total
and permanent disability. Due to the severe head injury, fracture in right
frontal bone with diffuse cerebral oedema and minimal right frontal lobe
haemorrhagic contusion significant bifrontal lobe contusion, minimal
right frontal lobe SAH, minimal hemispheric, fissure SDH, and severe
injury caused in backside head, the petitioner has a severe headache,
giddiness and vomiting often. He lost his memory power and having
intermittent head pain and is also unable to concentrate on avocation as
before and still he is bedridden. On account of the large lacerated wound
over the forehead, sutures were performed. Due to this, the petitioner's
face becomes totally deformed. Due to the abrasion over the left forearm
and both legs, the petitioner's left hand lost its grasping power and the
petitioner is not able to lift and carry any weight and climb on steps and
unable to ride any two wheeler vehicle. During the treatment taken in the
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above-mentioned Retna Global Hospital, Trichy, the duty Doctor made a
hole in the throat of the petitioner by surgery on 28.02.2017 and insert a
tube in the throat, thereby breathing is happened to the petitioner. Now
the movement of the petitioner's head is totally restricted. Due to the
severe head injury, multiple injuries were caused all over the body, the
petitioner has not yet regained his consciousness. Even though he is
taking treatment as per the advice of the doctor, the possibility of
complete recovery is in question, the petitioner is totally and permanently
disabled.
(v) The petitioner further stated that due to accidental
injuries and severe head injury, the petitioner could not move from the
bed from the date of the accident till date. Moreover, urine and motion
were passed by the petitioner through the tube. After discharge from the
hospital, the petitioner is bedridden at present, and he has only liquid
items through tube by way of his nose. The petitioner has appointed two
nurses to give physiotherapy treatment and for dressing to the petitioner
at the petitioner's residence, for that he is paying a sum of Rs.1,000/-
each as salary, till date he is taking continuing treatment at his home.
Now the petitioner could not move his head from right to left and from
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left to right. The petitioner went into a coma stage. The petitioner's
mental suffering and pain which cannot be expressed in terms of words
and the petitioner has undergone severe and unbearable pain and untold
sufferings. The Doctor advised the petitioner that due to severe head
injury, the petitioner cannot do his routine work and personal work
independently for more than one year.
(vi) The petitioner has two sons, both are studying 9th and 5th
standard respectively. The petitioner is the only earning member to his
family and with very great difficulty the petitioner had spent a huge
amount towards educational expenditure for his minor sons. Due to the
accident, the entire proceeding was conducted by the petitioner's wife,
who is a guardian of the injured petitioner in this petition. So far he spent
a sum of Rs.8,00,000/- towards medical treatment and he has obtained a
huge amount from his relatives and neighbours.
(vii) At the time of accident, the petitioner was aged about
40 years and was hale and healthy. Before the accident, he was doing
business and earned not less than a sum of Rs.15,000/- per month. Due to
the fracture in the head, severe head injury and fracture in the clavicle
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and multiple injuries all over the body, is having undergone severe and
unbearable pain and untold sufferings and lost his earning capacity in
future and sustained recurring loss of income.
(viii) Due to the inability the wife alone, signed and
represented the petitioner. The petitioner estimates the loss in a sum of
Rs.1,00,00,000, which is quite modest and reasonable. The first
petitioner is owner of the Mahendra TUV 300 bearing Registration
No.TN–49–BH–6936 involved in the accident and the second respondent
is the insurance company of the first respondent's vehicle. Hence, both
the respondents are jointly and severally liable to pay the compensation
to the petitioner.
3. The brief averments contained in the counter filed by the
2nd respondent are as follows:
(i) The 2nd respondent denied the age, occupation,
employment details, monthly income, nature of injuries, period of
treatment, disability, amount claimed, etc.
(ii) The 2nd respondent states that as per the police records
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the petitioner suddenly crossed the road without seeing the oncoming
vehicle and was the sole person responsible for the accident. The first
respondent drove the vehicle at a minimal speed, adhering to the traffic
rules at the time of the accident. It is the petitioner alone, who invited the
accident by not adhering the traffic regulations. The accident occurred
due to the negligence of the petitioner. The 2 nd respondent is not liable to
pay compensation to the petitioner.
(iii) About age and income, the petitioner is put to strict
proof of the same.
(iv) The claim amount is highly excessive and without any
basis. Hence, the petition is liable to be dismissed.
4. On the side of the petitioner, PW1 and P.W.2 was
examined and Ex.P1 to Ex.P32 were marked. The Medical Board issued
disability certificate which was marked as Ex.C1. On the side of the 2nd
respondent, no witness was examined and no document was marked. The
first respondent did not appear, called absent and set experts.
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5. After hearing both sides, the trial Judge awarded
compensation of Rs.33,20,200/- under the following heads :
Permanent disability Rs.20,16,000/-
Pain and sufferings Rs.1,00,000/-
For lack of convenience Rs.15,000/-
and discomfort
Medical expenses Rs.11,12,200/-
Future Medical expenses Rs.25,000/-
Extra nourishment Rs.15,000/-
Attendant expenses Rs.20,000/-
Travel expenses Rs.15,000/-
Damages to clothing Rs.2,000/-
Total Rs.33,20,200/-
The learned Judge directed the 2nd respondent Insurance company to pay
the entire amount within a period of two months.
6. Aggrieved with the impugned award, the Civil
Miscellaneous Appeal in C.M.A.(MD)No.856 of 2021 has been filed by
the claimant before the lower Court for enhancement of compensation
on the following grounds :
(a) That the Tribunal has failed to consider the oral and
documentary evidence available on record in a proper perspective
manner.
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(b) That the Tribunal ought to have awarded a sum of
Rs.13,85,157/- instead of Rs.11,12,000/- under the head of Medical
expenses which was supported by Exs.P.12 to P.21 & P.30.
(c) That the reason assigned by the Tribunal in reducing the
medical expenses that the Physiotherapist was not examined is
unsustainable in law and ought to have seen that the bills were produced
and the same was not disputed by the respondents herein.
(d) That the Tribunal ought to have taken a sum of
Rs.15,000/- as income instead of Rs.8,000/- which was supported by
Ex.P.22 and it will shows the petitioner was a businessman.
(e) That the Tribunal ought to have seen that the petitioner
had filed his Pan card and he is an assessee and ought to have awarded a
sum of Rs. 15,000/- per month.
(f) That the Tribunal ought to have seen that admittedly the
petitioner is in coma stage which was supported by Medical Board and
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the report was filed as Ex.C.1 and ought to have awarded a sum of
Rs. 10,00,000/- for pain and suffering instead of Rs.1,00,000/-.
(g) That the Tribunal ought to have seen that a coma is a
prolonged state of unconsciousness and during coma, a person is
unresponsive to their environment and the person is alive and looks like
they are sleeping and therefore, the petitioner needs continuous care and
medical treatment and therefore, the Tribunal ought to have awarded
more amount in the following heads :
i. Future medical expenses Rs. 10,00,000/-
ii. Extra Nourishment Rs.1,00,000/-
iii. Transportation Rs.1,00,000/-
(h) That the Tribunal ought to have awarded a sum of
Rs.1,00,000/- for transportation to the hospital and he had taken to
Hospital on various occasions.
(i) That the Tribunal ought to have awarded a sum of
Rs.1,00,000/- for consortium, since the petitioner is in coma.
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(j) That the Tribunal ought to have seen that the petitioner
need continuous treatment and he has to give treatment regularly and
ought to have awarded a sum of Rs.10,00,000/- for future medical
expenses.
Therefore, he prayed to enhance the award amount by modifying
the order of the trial Court.
7. Aggrieved by the said order, the Civil Miscellaneous
Appeal in C.M.A.(MD)No.822 of 2022 has been filed by the Insurance
Company who is the 2nd respondent and before the lower Court against
the quantum of compensation with the following among other grounds :
(i) That the Tribunal erroneously fixed the entire negligence
against the 1st respondent Car, when the accident happened at the four
way.
(ii) That the Tribunal ought to have fixed contributory
negligence as against the Claimant, because the occurrence took place in
the middle of the National Highway.
(iii) That the Tribunal erroneously awarded an exorbitant
sum of Rs. 33,20,200/- as compensation in a case of injury.
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(iv) That the Tribunal erroneously fixed the age of the
Claimant as 40 instead of 41.
(v) That the Tribunal erroneously fixed the multiplier as 15
instead of 14.
(vi) That the Tribunal erroneously added 40% of the monthly
income towards the future prospects instead of 25%.
(vii) It is submitted that no permission under Section 170 of
the Motor Vehicles Act is required by the Appellants to contest the claim
on all grounds as the Appellant was impleaded as a party Respondent in
the above Claim Petition as rendered by the Judgment of Hon'ble
Supreme Court reported in 2012 ACJ 2729.
Hence, prayed to set aside the judgment of the trial Court and
allow the Civil Miscellaneous Appeal.
8. Since the Civil Miscellaneous Appeals arose out of the
judgment in M.C.O.P.No.491 of 2017, issues, facts, evidences and
documents involved in these Civil Miscellaneous Appeals are all one and
the same, they are taken up for hearing together and are disposed of by
this common judgment.
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9. Heard the learned counsel on either side and perused the
materials available on record.
10. Now, this court has to decide the following points for
consideration :
(1) Whether the compensation awarded by the
Tribunal is on the higher side ?
(2) Whether the claimant is entitled for enhanced
compensation ?
11.Point Nos.1 and 2 :-
Exhibit P1 is the FIR filed in Crime No.50/2017 dated
26.02.2017, by the Traffic Investigation Wing-South Police Station,
Trichy, against the driver, Tamilarasan, who is the first respondent's
driver for the offence under Section 279 and 337 of IPC. The name of the
complainant is Abdul Basheeth, who is the brother of the petitioner.
Ex.P2 is the accident register issued by Retna Global Hospital, Trichy to
the petitioner, which reveals that he was admitted in the hospital on
25.02.2017, due to Head injury. Ex.P3 is the Motor Vehicle Inspection
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Report was issued by the Motor Vehicle Inspector Grade-I, RTO for
vehicle bearing Registration No.TN 49 BH 6936 and the Inspector
certified that the accident was not due to any mechanical defect. Ex.P4 is
the charge sheet registered in FIR No.50/ 2017 by Sub Inspector of
Police, Traffic Investigation Wing-South Police Station, Trichy, against
the driver of the first respondent. Ex.P5 is the rough sketch showing the
place of the accident. Ex.P7 is the discharge summary issued by Retna
Global Hospital reveals that the petitioner was admitted to the hospital on
25.02.2017 and discharged on 12.04.2017, in the column post-operative
period, it was mentioned that he was continued on ventilator support. He
had a decerebrating response to pain. He was continued on ventilation,
his postop CT brain showed reduction in mass effect and visualization of
basal cisterns. He was given antibiotics, antioedema measures,
nootropics and neutraceuticals. He was nursed in air bed, given regular
chest and limb physiotherapy, started on RT feeds. He required
tracheostomy and weaning off ventilator support. He remained off
ventilator and was shifted to ward for nursing care. He had repeated
episodes of autonomic hyperreflexia with decerebrating response during
which sedatives were given. His operative site ws lax, sutures were
removed and wound appeared healthy. Ex.P8 is the discharge summary
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issued by Hannah Joseph Hospital to the petitioner shows that was
admitted on 05.11.2017 and discharged on 08.11.2017, in the course in
the hospital it was mentioned that 44 years old Mr. Nazer Batcha an old
case of RTA with head injury (post craniectomy status) presented to us
with lower respiratory tract infection. CT brain revealed
encephalomalacia changes in bilateral parasagittal parieto - occipital
lobes and bilateral basal ganglionic region. He was planned for
re tracheostomy as he had stridor but patient relatives not willing for
further management. In view of financial constraints patient's relatives
wanted to get discharged and hence patient was discharged at request
(against Medical Advice). Ex.P9 is the discharge summary issued by
Dr.Shri Ramyaa Multi Speciality Hospital, Trichy shows that he was
admitted on 09.11.2017 and discharged on 13.11.2017, course in the
hospital, Patient got admitted and treated with inj. Xone and other
supportive measures. Hourly Ryle's tube feeding given. Neuro surgeon's
opinion obtained. The relatives were explained about the need of surgery
procedure, but they are not willing and hence discharged. Ex.P10 and
Ex.P11 are X-ray and scan report. Ex.P12 is the medical bill for a sum of
Rs.2,44,847/-. Ex.P13 is the medical bill for a sum of Rs.1,86,174/-.
Ex.P14 is the medical bills for a sum of Rs.40,546/-. Ex.P15 is the
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medical bills for a sum of Rs.33871/-. Ex.P16 is the medical bill for a
sum of Rs.22,360/-. Ex.P17 is the medical bills for a sum of Rs.32,027/-.
Ex.P18 is the medical bill for a sum of Rs.23,372/-. Ex.P19 is the
medical bill for a sum of Rs.34,430/-. Ex.P20 is a medical bill for a sum
of Rs.5,70,860/-. Ex.P21 is a medical bill for a sum of Rs.7,697/-.
Ex.P22 is the purchase bill from the Garments for his business. Ex.P30
is the medical bill for a sum of Rs.1,59,579/-. Ex.P29 is the discharge
summary issued by Retna Global Hospital shows that he was admitted on
16.07.2018 and discharged on 25.07.2018. Ex.P23 is the photograph of
the petitioner. Ex.P24 is the Doctor certificate issued by the Retna Global
Hospital on 01.06.2017. Ex.C1 is the disability certificate issued by the
Medical Board shows that the petitioner has having 100% of disability.
12. During trial, the petitioner's wife Sithy Shinosha Banu
was examined as P.W.1. The Court observed that the petitioner was
brought to the Court in an unconscious state. Ex.P24 Doctor certificate
shows that the petitioner needs physical support from his family members
and is bedridden. Ex.C1 also supported the above certificate by stating
that the patient unconscious, post-injury sequelae in post craniotomy
status and the percentage of disability is 100%.
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13. The appellant/claimant prayed to enhance the medical
expenditure for a sum of Rs.13,85,157/- instead of Rs.11,12,000/-.
14. A Perusal of the medical records shows that the
petitioner produced the following bills in support of his claim,
Exs.P12 to Exs.P19 medical bills, Ex.P20 physiotherapy charges,
Ex.P21 and Ex.P30 are the bills for oil treatment and other
treatment. Out of the claim, the Tribunal allowed 50% of the bills
produced for physiotherapist charges and oil treatment by stating
that the petitioner failed to examine the concerned person, which
seems to be improper. The Medical bills are issued in favour of the
petitioner merely because, she has not examined the concerned
person, he cannot be refused payment of the bill amount. The total
amount arrives at Rs.13,85,157/-, since the bills are made in his
name and it is proved by medical records that he was undergoing
treatment in various hospitals, we hold that the petitioner is entitled
to the entire medical bills produced by him, a sum of Rs.13,85,157/-
allowed for medical expenditure.
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15. The learned counsel for the claimant further argued that
the monthly income of the petitioner was taken as Rs.8,000/- which is not
proper as the petitioner was doing business and derived a sum of
Rs.15,000/- per month. He further stated that Ex.P22 is the bills produced
for the purchase of clothes for his business, he also filed a PAN card
under Ex.P.26 to show that he is an income tax assessee and hence, the
tribunal ought to have awarded a sum of Rs.15,000/- as monthly income.
16. On careful perusal of Ex.P22 series of bills were issued
for the year 2017, but the petitioner does not produce a Certificate viz.,
RC to prove that he is doing business. Ex.P26 is indeed the Pan Card of
the petitioner to show that he is an income tax assessee, but he has not
produced income tax returns filed by him to show the annual income
derived by him. Therefore, the above documents cannot be taken for
income proof. The Tribunal fixed the notional income of the injured
claimant at Rs.8,000/- per month, we are not agreeable to the same, as the
petitioner would be entitled to minimum wages payable to skilled
workmen. The minimum wages payable to the skilled labour as on the
date of the accident viz., 25.02.2017 is Rs.13,705/- per month.
Therefore, we fix a sum of Rs.13,700/- towards monthly income; in
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addition to the salary, 25% to be added when the petitioner was between
40-50 years, a sum of Rs.3,426/-, 25% of his salary added for future
prospectus in view of the ratio laid down by the Court in National
Insurance Company Limited vs. Pranay Sethi and Others reported in
AIR 2017 SC 5157.
17. The date of birth of the petitioner, as per PAN card is
20.05.1976 at the time of the accident, he was 40 years multiplier to be
applied 15. Therefore, his loss of income would be
Rs.17,131 x 12 = Rs.2,05,572/-, less tax 10% is Rs.20,557/- =
Rs.1,85,015/- x 15 x 100% = Rs.27,75,225/-.
18. The petitioner prays to award a sum of Rs.10 lakhs for
pain and suffering instead of Rs.1,00,000/-, by stating that the petitioner
is in coma stage. It is true that the petitioner is still in common stage,
viz., unconscious and minimal brain activity, he cannot consciously move
his limbs or body.
19. The counsel for the claimant relied upon the judgment in
Ram @ Shoban Ram Vs. Manjunath and another reported in 2018 (3)
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TLNJ 17 (civil) in which the Court has held as follows :
“Motor Vehicles Act 1988, Section 173 read with
Schedule II - In an road traffic accident the petitioner had
got injured and due to injuries in the brain stem gone to
the vegetative state as against the claim of
Rs. 1,50,00,000/- the tribunal awarded a sum of
Rs.87,00,000 under various heads. An appeal challenging
the quantum the High Court taking into consideration the
earnings of the claimant, the disability of 100 per cent
and the pathetic condition of the claimant who have to be
dependent for everything in his future has enhanced the
compensation under the conventional heads of extra
nourishment, Loss of martial life, attender charges,
physiotherapy total compensation was enhanced to
Rs.95,31,162/- - C.M.A is partly allowed.
20. The Apex court in its judgment relied upon judgement
reported in Kajal Vs Jagadish Chand and Others reported in 2020 4
SCC 413, in which it was held as under :
“6. It is impossible to equate human suffering
and personal deprivation with money. However, this is
what the Act enjoins upon the courts to do. The court
has to make a judicious attempt to award damages, so
as to compensate the claimant for the loss suffered by
the victim. On the one hand, the compensation should
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not be assessed very conservatively, but on the other
hand, compensation should also not be assessed in so
liberal a fashion so as to make it a bounty to the
claimant. The court while assessing the compensation
should have regard to the degree of deprivation and
the loss caused by such deprivation. Such
compensation is what is termed as just compensation.
The compensation or damages assessed for personal
injuries should be substantial to compensate the
injured for the deprivation suffered by the injured
throughout his/her life. They should not be just token
damages.”
xxxxx xxxx xxxx
12. The assessment of damages in personal
injury cases raises great difficulties. It is not easy to
convert the physical and mental loss into monetary
terms. There has to be a measure of calculated guess
work and conjecture. An assessment, as best as can, in
the circumstances, should be made.
xxxxx xxxxx xxxx
27. One factor which must be kept in mind while
assessing the compensation in a case like the present
one is that the claim can be awarded only once. The
claimant cannot come back to court for enhancement
of award at a later stage praying that something extra
has been spent. Therefore, the courts or the tribunals
assessing the compensation in a case of 100%
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disability, especially where there is mental disability
also, should take a liberal view of the matter when
awarding compensation. While awarding this amount
we are not only taking the physical disability but also
the mental disability and various other factors. This
child will remain bedridden for life. Her mental age
will be that of a nine month old child. Effectively,
while her body grows, she will remain a small baby.
We are dealing with a girl who will physically become
a woman but will mentally remain a 9 month old child.
This girl will miss out playing with her friends. She
cannot communicate; she cannot enjoy the pleasures
of life; she cannot even be amused by watching
cartoons or films; she will miss out the fun of
childhood, the excitement of youth; the pleasures of a
marital life; she cannot have children who she can
love let alone grandchildren. She will have no
pleasure. Her’s is a vegetable existence. Therefore, we
feel in the peculiar facts and circumstances of the case
even after taking a very conservative view of the
matter an amount payable for the pain and suffering of
this child should be at least Rs.15,00,000/.”
21. Taking into consideration of the pathetic condition of the
petitioner, coupled with the fact that his disability was assessed by the
Medical Board at 100% and he is not in a position to move or continue to
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C.M.A(MD)Nos.176 & 822 of 2022
do any profession or job, but he should be confined to bed. As stated by
the Apex Court, the determination of damages in personal injury it’s not
easy, the hardship and suffering cannot be computed in terms of money.
22. Therefore, this Court decided to raise compensation for
the pain and suffering to Rs.5,00,000/- instead of Rs.1,00,000/-, and the
Tribunal awarded extra nourishment a sum of Rs.15,000/- which is too
low, and therefore, we raised the same to Rs.1,00,000/-, as per the
medical record, the petitioner has to undergo continuous treatment in
future but the Tribunal awarded for future treatment only Rs.25,000/-
which is on the lesser side, we raise the same to Rs.8,00,000/- for future
medical expenses.
23. The trial Court awarded transportation charges
Rs.15,000/-, but the records produced by the petitioner shows that he was
taking treatment in various hospitals and the transport charges awarded
by the Tribunal is too less. Hence, we awarded a sum of Rs.1,00,000/- for
transport charges.
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C.M.A(MD)Nos.176 & 822 of 2022
24. As far as the Civil Miscellaneous Appeal filed by the
Insurance Company is concerned, the learned counsel for the Insurance
Company argued that the Tribunal ought to have fixed contributory
negligence as against the claimant because the accident took place in the
middle of the National Highway and also argued that the award is an
exorbitant and the age of the injured has to be fixed instead of 40 as 41,
the future prospectus to be taken as 25% instead of 40%.
25. It is not proved that the negligence on the part of
petitioner. Rather it is proved that the driver of the first respondent driven
the vehicle in a rash and negligent manner and caused the accident. A
criminal case was filed against the driver and final charge sheet also filed
against him. Therefore, the argument advanced by the Insurance
Company it is not sustainable. Further, the age of the petitioner at the
time of accident is 40 not 41. The future prospectus is only at 25%, not
40%. There is no ground to allow the Civil Miscellaneous Appeal filed
by the insurance company and hence, the same is liable to be dismissed.
The point Nos.1 and 2 are answered accordingly.
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C.M.A(MD)Nos.176 & 822 of 2022
26. Given the above, we modify the award as follows :
Permanent disability Rs.27,75,225/-
Rs.17,131 x 12 x 15 x
100% = Rs.30,83,580, less
tax 10% is Rs.3,08,358/-
Pain and sufferings Rs.5,00,000/-
For lack of convenience Rs.15,000/-
and discomfort
Medical expenses Rs.13,85,157/-
Future Medical expenses Rs.8.00,000/-
Extra nourishment Rs.1,00,000/-
Attendant expenses Rs.20,000/-
Travel expenses Rs.1,00,000/-
Damages to clothing Rs.2,000/-
Total Rs.56,97,382/-
27. In the result, the Civil Miscellaneous Appeal in C.M.A.
(MD)No.822 of 2022 is dismissed. No costs.
28. In the result, the Civil Miscellaneous Appeal in C.M.A.
(MD)No.176 of 2022 is allowed. The award passed by the trial Court is
enhanced and the 2nd respondent-Insurance Company is directed to pay a
sum of Rs.56,97,382/- to the appellant/claimant along with interest at the
rate of 7.5% per annum from the date of petition till the date of deposit of
the amount, less the amount if already deposited to the credit of
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C.M.A(MD)Nos.176 & 822 of 2022
M.C.O.P.No.491/2017 on the file of the Special Subordinate Court,
Motor Accident Claims Tribunal, Trichy, within four weeks from the date
of receipt of a copy of this order. On such deposit, the claimant is
permitted to withdraw the same, less the amount already withdrawn, if
any, together with proportionate interest and costs, by filing an
appropriate petition before the Tribunal. No costs.
(G.R.S., J.) & (R.P., J.)
26.02.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
RM
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C.M.A(MD)Nos.176 & 822 of 2022
To
1.The Special Subordinate Court
Motor Accident Claims Tribunal,
Trichy.
Copy to
1.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court, Madurai.
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C.M.A(MD)Nos.176 & 822 of 2022
G.R.SWAMINATHAN, J.
AND
R.POORNIMA, J.
RM
Common Judgment in
C.M.A.(MD)Nos.176 & 822 of 2022
26.02.2025
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