Madras High Court
S.Suresh vs P.Ramalingam on 27 April, 2021
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
C.M.A.No.3441 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 22.02.2021
Pronounced on : 27.04.2021
CORAM:
THE HONOURABLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A.No.3441 of 2012
S.Suresh
S/o.Subramani .. Appellant
Vs.
1.P.Ramalingam
S/o.Ponnaiya
2.Bajaj Allianz General Insurance Co., Ltd.,
Bhagawathi Palace, II Floor,
J.Block, No.13, 3rd Avenue,
Anna Nagar East,
Chennai – 600 102. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the fair and decretal order dated 20.06.2012 made
in M.C.O.P.No.67 of 2009 on the file of the Motor Accident Claims Tribunal,
Sub-Court, Mettur.
1/19
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C.M.A.No.3441 of 2012
For Appellant : Mr.S.S.Saminathan
For R2 : Mr.N.Somasundaar
JUDGMENT
(The case has been heard through video conference) This Civil Miscellaneous Appeal has been filed against the award dated 20.06.2012 made in M.C.O.P.No.67 of 2009 on the file of the Motor Accident Claims Tribunal, Sub-Court, Mettur.
2.The appellant is the claimant in M.C.O.P.No.67 of 2009 on the file of the Motor Accident Claims Tribunal, Sub-Court, Mettur. He filed the above claim petition claiming a sum of Rs.15,00,000/- as compensation for the injuries sustained by him in the accident that took place on 03.11.2007.
3.According to the appellant/claimant, on 03.11.2007, at about 11.30 a.m., while the appellant was proceeding in his Bajaj Discover Motorcycle bearing Registration No.TN-04-AB-4519 from Thambaram to Maraimalai Nagar on the extreme left side of the road, near Potheri SRM College, an auto bearing Registration No.TN-22-1-9588, which came in a rash and negligent 2/19 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3441 of 2012 manner without blowing horn at a high speed in the opposite direction dashed against the said motorcycle. Due to the said impact, the appellant sustained nasal bleeding, contusion over his upper, lower lips, abrasion over his left arm, fracture over his right leg, head injury and multiple injuries all over his body. Therefore, he filed the above claim petition claiming compensation.
4.The 2nd respondent/Insurance Company filed counter statement denying the averments made in the claim petition. The 2nd respondent/Insurance Company contented that the 1st respondent was not possessing valid driving licence at the time of accident. Therefore, the 2nd respondent/Insurance Company is not liable to pay any compensation to the appellant/claimant. The claimant has to prove the age, income, nature of injuries, medical expenses incurred due to the accident with relevant documentary evidence.
5.In order to prove his claim, the injured/claimant had examined himself as P.W.1. and the Doctor was examined as P.W.2. Documents were marked as Exs.A1 to A25. The 1st respondent remained ex-parte before the 3/19 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3441 of 2012 Tribunal. No oral or documentary evidence was adduced on the side of the 2nd respondent/Insurance Company.
6.The Tribunal, considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of the Auto rickshaw belonging to the 1st respondent and directed both the respondents 1 and 2, jointly and severally, to pay a sum of Rs.2,16,400/- as compensation to the appellant/claimant.
7.Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant has come out with the present appeal for enhancement of compensation.
8.Heard the learned counsel for the appellant Mr.S.S.Saminathan. As per his submissions, the learned Tribunal failed to appreciate the evidence and had not assessed the disability suffered by the claimant. P.W.2/Doctor had assessed the partial permanent disability as 52%, whereas the learned Tribunal had considered 40% disability without any scientific reason and had invoked the percentage system whereby Rs.1,500/- was fixed per one percent 4/19 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3441 of 2012 disability and totally the claimant was granted Rs.60,000/- only as compensation. The claimant had furnished the salary certificate and claimed for partial permanent disability. Without assigning any reason for rejecting the salary certificate, the Tribunal had invoked the percentage system. Therefore, the claimant was granted only a meagre amount as compensation. Had the Tribunal invoked the multiplier system, the compensation would have been on the higher side and would meet the requirements of the claimant and it could have been a just compensation.
9.Mr.S.S.Saminathan, learned counsel appearing for the appellant relied on the following ruling, in support of his submissions regarding enhancement:
“New India Assurance Co.Ltd., Vs. Rekhaben Bharatkumar Nanalal Thakkar and Others” reported in 2016 (1) TNMAC 606 (DB) (Guj.).
Liability of Insurer Goods Vehicle – Deceased travelling in vehicle as hirer or gratuitous passenger – Whether Insurer rightly held liable.
10.The learned counsel for the 2nd respondent/Insurance Company had 5/19 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3441 of 2012 submitted his arguments stating that the Tribunal had properly assessed the evidence and and his claim could have been accepted if the responsible officer of the company, where the claimant was stated to be employed, had been examined along with proper registers and acquittance regarding the salary of the claimant. Since the claimant had not examined any officials from the Company where he was working to determine the salary of the claimant and when no witness had been examined independently from the Company wherein the appellant had furnished salary certificate, the same was not accepted by the Tribunal stating that responsible officer of the organization had not been examined wherein the claimant had been employed. Also in the order, the learned Tribunal had observed that there was no evidence as documentary proof furnished by the claimant stating that due to this accident and the resulting partial permanent disability. He was terminated from employment by his employer. Under those circumstances the learned Tribunal had properly assessed the evidence and had rejected the contention of the claimant that he had suffered functional disability due to the accident affecting his avocation and income. Therefore, the Tribunal had not invoked the multiplier system, instead the percentage system was invoked. In support 6/19 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3441 of 2012 of his contentions, the learned counsel for the 2nd respondent had cited the following rulings:-
1. “Managing Director, Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., Vs. Nagamalli and Others” reported in 2016 (1) TNMAC 596 (DB).
False Evidence – Effect Determination of Income on basis of false evidence – Failure of Tribunal in exercising care and caution while marking such documents – Tribunal directed to coduct preliminary enquiry and proceed in terms of Section 340, Cr.P.C.
2. “M.Palaniappan Vs. Managing Director, Tamil Nadu State Transport Corporation [Kumbakonam Division] Ltd.,” reported in 2019 (1) TNMAC 754 (Mad).
Negligence – Contributory Negligence – Finding of – Challenge to – Injured/Claimant travelling in transport Corporation Bus by sitting on top foot board of Bus – Lost control and fell down, when Bus suddenly turned right and applied brake – Tribunal's finding that accident taken place due to rash and negligent driving of Bus Driver – However, as Claimant travelled sitting on foot board, Tribunal holding that Claimant contributed to accident to extent of 25% - Not proper – Rash and negligent driving in not properly negotiating a pit on road, resulted in a jerk – Claimant travelling sitting on top most foot board i.e. floor of Bus, slipped through entrance and fell down – Fastening Contributory Negligence of 7/19 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3441 of 2012 25% on part of Claimant, held, unwarranted – Finding of Contributory Negligence set aside.
Permanent Disability – Compensation – Determination – Injured/Claimant, working as a Clerk in Bank, suffered grievous injuries – Treated as inpatient for 55 days and undergone 3 surgeries – 65% disability assessed – Tribunal, fixing disability at 60%, awarded Rs.1,20,000 at rate of Rs.2,000 per percentage of disability – Confirmed in Appeal.
Loss of Income during treatment period – Award of – Injured/Claimant, working as a Clerk in Bank, suffered grievous injuries – Treated as inpatient for 55 days and undergone 3 surgeries – Tribunal, taking amount mentioned in pleading, awarded Rs.69,948 as Loss of Income for 6 months – Nor proper – Taking Income as per Pay Certificate/Ex.P14 at Rs.15,000, High Court awarded Rs.90,000 [Rs.15,000 X 6].
3. “Branch Manager, New India Assurance Co.Ltd., Vs. B.C.Chandren, C.Govindan, Branch Manager, New India Assurance Co.Ltd.,” reported in 2018 (2) TNMAC 562 (Mad).
Permanent Disability – Assessment – Injured/Claimant aged 27 yrs., working as Sweet Master, earning Rs.5,000 p.m., - Suffered multiple injuries including fracture of right upper jaw and loss of eye sight – P.W.2/Doctor assessed disability in respect of fracture of upper jaw at 50% - P.W.3/Doctor assessed disability 8/19 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3441 of 2012 in respect of loss of eye sight at 60% - No calculation – sheet attached with Disability Certificates issued by P.W.s 2 and 3 – Injured not treated by P.Ws2 and 3 – Assessment made after 3 years of occurrence, cannot be accepted in toto – Whole body disability not assessed – P.W.2 assessed 50% disability in view of and suffering undergone in teeth – P.W.3 assessed 60% disability due to partial loss of eye sight- Nothing on record to show that Claimant not able to carry on his work as Sweet Master – Held, disability can be fixed at 40% - Considering age of Claimant, Disability Compensation awarded at Rs.80,000 at rate of Rs.2,000 per percentage of disability [Rs.2,000 X40%]
4. “S.Moorthy Vs. K.Kumar, Managing Director, Tamil Nadu State Transport Corporation (Coimbatore Division I) Ltd” reported in 2019 (1) TNMAC 577 (Mad).
Negligence – Composite Negligence – Injured/Claimant travelling in Jeep – Case of Claimant/P.W1 that Bus driven rashly and negligently in high speed dashed against Jeep – Case of Respondents that on seeing Jeep coming in high speed, Bus was stopped at left side of road – Jeep came in wrong side and dashed against right side of Bus and rolled down – Evidence of P.W.1 in cross-examination that he travelled in Jeep sitting at back side and did not know as to at whose negligence, accident occurred – Police Complaint preferred against Jeep Driver – Jeep Driver admitted offence and paid Fine before Criminal 9/19 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3441 of 2012 Court – Criminal Court Judgment/Ex.P5 marked – Tribunal, considering oral and documentary evidence including FIR, Charge-sheet and Criminal Court Judgment, fixed liability on part of Jeep Driver at 75% and 25% on part of Bus Driver – Jeep rolled down at a distance in accident – Finding of Tribunal fixing liability on part of Bus and Jeep required no interference, confirmed.
Motor Accident Claim – Compensation – Quantum – Enhancement – Injured/Claimant, a Coolie suffered fracture in right hand and head injury – Treated as inpatient for 25 days – 25% disability – Tribunal awarding Rs.62,600 as against claim of Rs.3,00,000 – Scope for enhancement – Permanent Disability:
Tribunal awarding Rs.25,000 taking Rs.1,000 per percentage of disability: Not proper: Taking Rs.1,500 per percentage of disability, High Court awarded Rs.37,500 – Pain and Suffering:
Considering nature of injuries, Rs.8,000 awarded by Tribunal enhanced to Rs.10,000 – Future Loss of Earning Power: Rs.24,000 awarded by Tribunal confirmed – Loss of Earning during Treatment Period: Taking monthly Income at Rs.1,800, Tribunal rightly awarded Rs.1,500: Confirmed – Transport Expenses: Enhanced from Rs.1,000 to Rs.2,000 – Extra- Nourishment: Enhanced from Rs.3,000 to Rs.5,000 – Awarding Rs.5,000 towards Medical Expenses and Rs.2,400 towards Attendant Charges, High Court enhanced Total Compensation from Rs.62,600 to Rs.87,400.
5. “The Managing Director, Tamil Nadu State Transport Corporation 10/19 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3441 of 2012 (Kumbakonam Division II) Ltd. Vs. S.Kannappan,” reported in 2007 (2) TNMAC 1.
Motor Vehicles Act, 1988 Section 173 Nonfatal Accident – Appeal by Tamil Nadu State Transport Corporation against award of compensation – Tribunal awarded Rs.1,10,000/- for the injuries sustained by the claimant/respondent – Tribunal assessed the age of the claimant at 27 years, held that he suffered a Permanent Disability to the tune of 40% and awarded a lump sum compensation of Rs.90,000/- for Permanent Disability as such – Maximum rate, viz., Rs.2,000/- per 1% disability be absolutely justifiable – Thus the lump sum amount to be awarded towards compensation for Permanent Disability to the respondent/ claimant shall have to be fixed at Rs.40 X 2,000 = Rs.80,000/- instead of Rs.90,000/- - Loss of Earning occasioned to him during the Period of Treatment could be assessed at Rs.10,000/- - Held, that the total amount of Rs.1,10,000/- awarded by the Tribunal as compensation is not excessive and does not deserve any reduction but deserves confirmation in the hands of this Court – No scope for interference with the award passed by the Tribunal – Appeal is dismissed.
6. “K.Krishnan Vs. The Managing Director, Tamil Nadu State Transport Corporation” reported in CDJ 2008 MHC 2501.
11.Also the claimant had furnished medical bills from SRM Hospital 11/19 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3441 of 2012 where he had underwent treatment immediately after the accident and subsequently from MIOT Hospital, Chennai. Those medical bills were accepted, whereas the claimant had also furnished physiotherapy bill for Rs.25,000/- and bills from Annai Indira Physio Therapy Centre, Mettur, and Ex.A-16 letter head produced M.R.H Natural Clinic. However, no proper details have been produced. Therefore, no amount had been granted for the same. The contention of the appellant is to be rejected and the Tribunal properly appreciated and assessed the evidence based on which reasonable amount had been awarded as compensation. Therefore, it does not warrant any interference, the appeal lacks merits and it is to be dismissed.
12.Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the 2nd respondent/Insurance Company and perused all the materials available on record.
Point for Consideration:
The only question that arises for consideration in this appeal is:-
Whether the appellant is entitled for enhancement of compensation?
13.Perused the petition in M.C.O.P.No.67 of 2009 on the file of the 12/19 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3441 of 2012 Motor Accident Claims Tribunal, Sub-Court, Mettur, and counter filed by the 2nd respondent/Insurance Company. The award passed by the learned Tribunal, Sub-Court, Mettur, the memorandum of appeal preferred by the claimant in C.M.A.No.3441 of 2012 and the records received from the Sub- Court, Mettur.
14.On perusal of the records, it is found that the P.W.2/ Dr.Krishnasami who had issued disability certificate under Ex.A24, in his cross examination, he admitted that he had not stated the instruments that he had used to test the partial permanent disability of the claimant/Suresh. The method adopted in arriving at conclusion that the claimant suffered partial permanent disability, either the method adopted under the Workmen Compensation Act or under the persons with Disabilities Act. Therefore, the contention of the learned counsel for the appellant that the learned Tribunal had not appreciated the evidence, cannot at all, be accepted when the P.W.2 / Doctor had stated that the claimant had suffered 62% partial permanent disability and in his cross-examination he admits that he had not mentioned the tools instruments that he had used to arrive at a conclusion that the 13/19 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3441 of 2012 claimant suffered 52% disability. Then such evidence need not be considered by the Tribunal. Anyhow to grant just compensation, the learned Tribunal had accepted 40% partial permanent disability on the ground that the claimant had not furnished any documentary evidence that he had been removed from service as he was unable to perform his job due to this accident, resulting in partial permanent disability. Under those circumstances, the learned Tribunal had invoked percentage system by applying Rs.1,500/- for 1% per partial permanent disability and for 40% disability, he was granted a sum of Rs.60,000/. Therefore, the contention that the learned Tribunal had not properly appreciated the evidence is rejected. On perusal of the judgment, it is found that along with medical bills from SRM Hospital and MIOT Hospital, the claimant had furnished medical bills from Ayurvedha and Siddha Doctors and from Physiotherapist. The learned Tribunal had also rejected those documents as they are preferred only for the purpose of higher claim.
15.On perusal of this order, it is found that age of the claimant on the date of the accident was 24 years. Therefore, the body in its youth naturally overcomes the damages or injuries suffered in accident. On perusal of the 14/19 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3441 of 2012 earliest documents, it is found that the claimant only suffered injuries on the face and on the head and therefore, the claim of the claimant that he suffered 52% disability based on P.W.2/Doctor's opinion had been rightly rejected by the Tribunal. Under such circumstances, the contention of the appellant / claimant to invoke the multiplier system cannot at all be accepted.
16.If he had suffered functional disability affecting his avocation and income and it had been proved through evidence, then even in the absence of proof of income, the Tribunal can fix the notional income and grant award for functional disability. Here, such things do not arise. Therefore, the learned Tribunal rightly calculated the loss of income based on percentage method.
17.For the period of treatment, i.e. three months minimum, the claimant might not have attended his work for such term, Rs.10,000/- X 3 = Rs.30,000/- can be allotted. For partial permanent disability 40%, it can be considered as Rs.2,500/- per percentage and for 40%, it would be Rs.1,00,000/- (40 x 2500). The Tribunal awarded a meagre sum of Rs.5,000/- each towards Transport to Hospital and Extra Nourishment and the same is enhanced to Rs.10,000/- each. A sum of Rs.30,000/- towards Pain and 15/19 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3441 of 2012 sufferings is enhanced to Rs.40,000/-. The Tribunal awarded a sum of Rs.1,16,400/- towards Medical Expenses is just and reasonable and the same is confirmed by this Court. Accordingly, the amount of compensation awarded by the Tribunal under various heads is modified as under:
S.N Description Amount awarded Amount awarded Award o by Tribunal by this Court confirmed or (Rs) (Rs) enhanced or granted
1. Permanent 60,000/- 1,00,000/- Enhanced Disability
2. Loss of Income - 30,000/- Granted
3. Medical 1,16,400/- 1,16,400/- Confirmed Expenses
4. Transport to 5,000/- 10,000/- Enhanced Hospital
5. Extra 5,000/- 10,000/- Enhanced Nourishment
6. Pain & 30,000/- 40,000/- Enhanced Sufferings Total Rs.2,16,400/- Rs.3,06,400/- Enhanced by Rs.90,000/-
18.Accordingly, this Civil Miscellaneous Appeal is partly allowed. Both first respondent as well as the second respondent are directed to deposit the amount, which this Court determined in this appeal, to the credit of M.C.O.P.No.67 of 2009 on the file of the Motor Accident Claims 16/19 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3441 of 2012 Tribunal, Sub-Court, Mettur, with accrued interest at the rate of 7.5% per annum from the date of the claim petition till the date of deposit along with costs, through RTGS or NEFT method as held by this Court in (The Oriental Insurance Company Limited, Kannur Vs. Rajesh and two others) 2016 (1) TN MAC 433, after adjusting the amount, if any, already deposited, within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant shall be entitled to withdraw the award amount with accrued interest. The appellant is directed to pay appropriate Court fees within a period of two months, failing which, he is not entitled to claim interest on the award amount. No costs.
gbi 27.04.2021
Index : Yes / No
Internet : Yes/ No
To
1.The Sub-Judge,
Motor Accident Claims Tribunal, Mettur.
2.The Section Officer,
17/19
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3441 of 2012
V.R.Section,
High Court,
Madras.
18/19
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3441 of 2012
SATHI KUMAR SUKUMARA KURUP, J.
gbi
Pre delivery judgment in
C.M.A.No.3441 of 2012
27.04.2021
19/19
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