Madras High Court
Judgment Reserved On Judgment ... vs Manoharan
C.M.A.No.247 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM:
THE HONOURABLE TMT.JUSTICE S.KANNAMMAL
C.M.A. No.247 of 2020
Judgment reserved on Judgment pronounced on
09.07.2021 02.09.2021
Ajith Kumar ... Appellant
Vs.
1.Manoharan
2.The Divisional Manager
Royal Sundaram General Insurance Co. Ltd.,
No.08, 100 Feet Road,
Marappalaiyam, Nadasen Nagar,
Heritage Town,
Puducherry – 605 005. ... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
15.03.2019 made in M.C.O.P.No.21 of 2017 on the file of the Motor Accident
Claims Tribunal, Sub Court, Neyveli.
1/11
http://www.judis.nic.in
C.M.A.No.247 of 2020
For Appellant : Mr.P.Paramasiva Doss
For R2 : Mr.M.B.Raghavan for
M/s.M.B.Gopalan Associates
JUDGMENT
The matter is heard through “Video Conferencing/Hybrid mode”.
2. This Civil Miscellaneous Appeal has been filed for enhancement of compensation granted by the award dated 15.03.2019 made in M.C.O.P.No.21 of 2017 on the file of the Motor Accident Claims Tribunal, Sub Court, Neyveli.
3. The appellant is the claimant in M.C.O.P.No.21 of 2017 on the file of the Motor Accident Claims Tribunal, Sub Court, Neyveli. He filed the above said claim petition, claiming a sum of Rs.10,00,000/- as compensation for the injuries sustained in the accident that took place on 10.04.2017.
4. The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred involving the lorry belonging to the 2/11 http://www.judis.nic.in C.M.A.No.247 of 2020 1st respondent and directed the 2nd respondent-Insurance Company, as insurer of the lorry belonging to the 1st respondent, to pay a sum of Rs.50,000/- as compensation to the appellant.
5. Not satisfied with the amounts awarded by the Tribunal, the appellant has come out with the present appeal seeking enhancement of compensation.
6. The learned counsel appearing for the appellant contended that in the accident, the appellant sustained both bone fracture in left leg, left maxilla fracture, left lat wall orbit fracture and grievous injuries all over the body. The District Medical Board, Cuddalore examined the appellant and certified that the appellant suffered 9% permanent physical impairment in his whole body and issued Ex.C1 – disability certificate. At the time of accident, the appellant was aged 19 years, working as Welder & skilled labour in M/s.Arunachalam & Co., Neyveli and was earning a sum of Rs.15,000/- per month. The Tribunal ought to have fixed the monthly income of the appellant at Rs.15,000/- as claimed by the appellant and applied the multiplier '16' and granted compensation for permanent disability by adopting multiplier method. The appellant has marked Exs.P2 - copy of MLC report 3/11 http://www.judis.nic.in C.M.A.No.247 of 2020 issued by Zipmer Hospital, Pondicherry, Ex.P6 – Discharge summary, Ex.P11 – Medical certificate of Zipmer Hospital, Pondicherry to show that the appellant has treatment as outpatient. The Tribunal erred in awarding a lumpsum amount of Rs.50,000/- towards permanent disability. The Tribunal failed to award any amount towards pain & sufferings, extra nourishment, transportation, medical expenses and damages to clothes and prayed for enhancement of the compensation.
7. In support of his contention, the learned counsel for the appellant relied on the Division Bench judgment of this Court in CMA No.3392 of 2019 wherein it has been held as follows -
13. The counsel appearing for the second respondent/Insurance Company raised objection for awarding compensation towards loss of income by applying multiplier method since Tribunal awarded a sum of Rs.1,35,000/- for the disability it would be sufficient for the appellant. However, we are not in a position to accept the contention of the respondent/Insurance Company due to the reason that the Act itself provides a method for the purpose of awarding compensation when the claim made under 163 A of the Motor Vehicles Act. If 4/11 http://www.judis.nic.in C.M.A.No.247 of 2020 any claim has been made under 163 A of the Act, under no fault liability clause, the claimant should be awarded compensation based on the standard income as mentioned in the second schedule by applying the multiplier method. On perusal of the second schedule, it is clear that both the injured as well as in the fatal cases, the loss of income should be awarded by applying multiplier method. When such being the case, when a person come forward before the Court proving disability, by leading evidence, we do not find any impediment/obstacles for awarding compensation by the Tribunal by applying 7/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3392 of 2019are multiplier method. Hence, we are inclined to apply multiplier method, in the present cases since the Tribunal failed to apply the same.
7. Per contra, the learned counsel appearing for the 2nd respondent- Insurance Company contended that the appellant has not examined the doctor who treated the appellant to prove the nature of injuries sustained by him in the accident. In such circumstances, the appellant was referred to District Medical Board, Cuddalore for ascertaining the disability sustained by the appellant. The District Medical Board, Cuddalore examined the appellant and certified that the appellant suffered 9% permanent disability. The Tribunal, considering Ex.C1 – disability certificate issued by District Medical Board, 5/11 http://www.judis.nic.in C.M.A.No.247 of 2020 Cuddalore, fixed the permanent disability of the appellant as 9%. The appellant has not proved that he suffered functional disability and he is not able to do his work as he was doing earlier and lost his entire earning capacity. In the absence of any material evidence to prove that the appellant suffered functional disability, following the Second Schedule under Section 163A, the Tribunal rightly awarded a sum of Rs.50,000/- towards compensation for permanent disability. The appellant has sustained only simple injuries and hence the compensation awarded by the Tribunal is not meagre. The appellant has not made out any case for enhancement for enhancement of the compensation and prayed for dismissal of the appeal.
8. Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the 2nd respondent-Insurance Company and perused the entire materials on record.
9. From the materials on record, it is seen that the appellant has filed claim petition under Section 163 A of the Motor Vehicles Act. It is the claim of the appellant that in the accident, he sustained both bone fracture in left leg, left maxilla fracture, left lat wall orbit fracture and grievous injuries all over the body. The appellant has not filed any document to prove the injuries 6/11 http://www.judis.nic.in C.M.A.No.247 of 2020 sustained by him. Hence, he was referred to Medical Board, Cuddalore. The District Medical Board, Cuddalore has examined the appellant and certified that the appellant has suffered 9% permanent disability. The claim petition is filed under Section 163(A) of the Motor Vehicles Act.
10. As per II Schedule of the Motor Vehicles Act, in case of claim petitions filed under Section 163-A, in case of injuries and disabilities, the victim is entitled to compensation only under following heads -
4.General Damages in case of injuries and disabilities:
(i) Pain and Sufferings
(a) Grievous injuries Rs.5,000/-
(b) Non-grievous injuries Rs.1,000/-
(ii) Medical expenses-actual expenses incurred supported by bills / vouchers but not exceeding as one time payment Rs.15,000/-
5. Disability in non-fatal accidents :
The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents :
Loss of income, if any, for actual period of disablement not exceeding fifty-two weeks.
Plus either of the following -
(a) In case of permanent total disablement, the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of 7/11 http://www.judis.nic.in C.M.A.No.247 of 2020 determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which would have been payable in case of permanent total disablement as specified under item (a) above.
Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen Compensation's Act, 1923.
11. In the Division Bench Judgment relied on by the learned counsel for the appellant, the appellant therein has examined two doctors to prove the disability suffered by him. Whereas, in the case on hand, the appellant has not proved that he suffered functional disability by letting in any oral or documentary evidence and hence he is not entitled to compensation by adopting multiplier method. The appellant is entitled to compensation towards permanent disability only by adopting percentage method. For 9% disability, the appellant is entitled to a sum of Rs.36,000/- towards disability at the rate of Rs.4000/- per disability. As per II Schedule of Motor Vehicles Act, for the claim filed under 163-A, in case of injuries and disabilities, the appellant is entitled to a sum of Rs.5,000/- towards pain and sufferings. The appellant has not produced any medical bills or vouchers to prove the medical expenses incurred by him. Hence, he is not entitled to any amount towards 8/11 http://www.judis.nic.in C.M.A.No.247 of 2020 medical expenses. In toto, the appellant is entitled to only a sum of Rs.41,000/- as compensation. However, the Tribunal, considering the entire materials on record, has awarded a sum of Rs.50,000/- as compensation to the appellant and directed the 2nd respondent – Insurance Company to pay a the same. In the above said circumstances, the appellant has not made out any case for enhancement.
12. In the result, the appeal is dismissed and the amount awarded by the Tribunal at Rs.50,000/- is confirmed together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The 2nd respondent-Insurance Company is directed to deposit the award amount along with interest and costs, 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.21 of 2017. On such.. deposit, the appellant is permitted to withdraw the award amount, along with interest and costs, after adjusting the amount, if any already withdrawn, by filing necessary applications before the Tribunal. No costs.
02.09.2021 rgr Index : Yes / No Internet : Yes / No 9/11 http://www.judis.nic.in C.M.A.No.247 of 2020 To
1.The Subordinate Judge, Motor Accident Claims Tribunal, Neyvelil.
2.The Section Officer, VR Section, High Court, Madras.
10/11 http://www.judis.nic.in C.M.A.No.247 of 2020 S.KANNAMMAL, J.
rgr Pre-delivery Judgment in C.M.A.No.247 of 2020 02.09.2021 11/11 http://www.judis.nic.in