Madras High Court
Mariya Amulraj vs Poornima on 8 June, 2022
Author: P.T.Asha
Bench: P.T.Asha
CMA.No.2473 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.06.2022
CORAM
THE HONOURABLE MS. JUSTICE P.T.ASHA
CMA.No.2473 of 2017
Mariya Amulraj ... Petitioner/ Appellant
Vs
1. Poornima
2. The Reliance General Insurance Co. Ltd.,
Rai's Tower,
Plot No.2054, 2nd Avenue,
2nd Floor,
Next to Senthil Nursing Home,
Anna Nagar,
Chennai - 600040. ... Respondents/ Respondents
PRAYER: Appeal filed under Section 173 of the Motor Vehicles Act,
1988, to enhance the award dated 04.02.2015 and made in
M.A.C.T.O.P.No.7804/2013 on the file of the Motor Accident Claims
Tribunal, III Court of Small Causes, Chennai.
For Petitioners : M/s.Subadara
For Respondents : M/s.C.Bhuvana Sundari [R.2]
No appearance [R.1]
1/8
https://www.mhc.tn.gov.in/judis
CMA.No.2473 of 2017
JUDGEMENT
The petitioner has filed the above Civil Miscellaneous Appeal seeking an enhancement of the award granted in MCOP No.7804 of 2013 on the file of the Motor Accident Claims Tribunal (III Court of Small Causes) Chennai. The brief facts preceding the filing of the appeal are as follows:-
2. The petitioner who is aged about 43 years and carrying on business of running a general merchant store had sustained injuries in the road accident on 27.10.2013. It is his case that on the said date when he was driving his Hero Honda Motor Cycle bearing Registration No.TN-20-K-
1465, keeping to the extreme left side of the road, the Indica car belonging to the 1st respondent bearing Registration No.TN-20-BJ-8727, driven by its driver in a rash and negligent manner hit the motor cycle of the petitioner, as a result of which he had sustained grievous injuries. He was admitted to the Saveetha Medical College Hospital, where he had taken treatment as an inpatient for over 12 days. The petitioner claimed a compensation of Rs.12,00,000/-. The 1st respondent/owner of the vehicle had entered appearance but had not filed his counter and was ultimately set ex parte on 2/8 https://www.mhc.tn.gov.in/judis CMA.No.2473 of 2017 25.03.2015.
3. The insurance company who was arrayed as the 2nd respondent had filed their counter inter alia denying the allegations contained in the claim petition and putting the petitioner to strict proof of the R.C.Book, Driving License, Valid Insurance Policy and Badge etc., in respect of the 1st respondent vehicle. The insurance company sought to have the petition dismissed. Before the Tribunal the petitioner had examined PW.2 (Doctor) who had issued Ex.P.8 (Disability Certificate). The doctor had assessed the disability at 35%. The Tribunal below, however, reduced the percentage of disability to 30% and ultimately had awarded a sum of Rs.1,84,699/- together with interest at 7.5%.
4. Aggrieved by the fact that the Tribunal below had not adopted a multiplier method and on the contrary had adopted the percentage method to arrive at a compensation for his disability, the learned counsel for the appellant M/s. Subadara would contend that a perusal of Ex.P.3 (discharge summary) and Ex.P.8 (disability certificate) would clearly show that the petitioner had sustained grievous injuries which has affected his future 3/8 https://www.mhc.tn.gov.in/judis CMA.No.2473 of 2017 prospects. The learned counsel would rely upon the evidence of P.W.2 and would contend that the P.W.2 being an expert the Tribunal below ought to have accepted the assessment given by him and not refused the same without assigning reasons. She would further argue that the amounts granted under the various heads were also on the lower side. She would therefore seeks to have the award enhanced.
5. Per contra, M/s. C.Bhuvana Sundari, learned counsel appearing on behalf of the insurance company would submit that the injuries sustained by the petitioner has not acted as a fetter to his earning capacity. The petitioner admittedly was running a general provision store which continues to date and this would clearly establish that the injuries has not impacted the petitioner’s future capacity to earn money. Therefore, the award does not requires any re-consideration.
6. Heard the learned counsel on both sides.
7. Admittedly, the petitioner had sustained injuries in a road accident on 27.10.2013. He has not been out of employment at any point of time 4/8 https://www.mhc.tn.gov.in/judis CMA.No.2473 of 2017 since he was self-employed and running a general provision store. Neither the injury nor the disability has had an adverse impact on his business, therefore, the disability has not reduced the petitioner’s earning capacity. The disability has been assessed at 35% by the doctor who was examined as P.W.2. The doctor in question is not an Orthopedician and his credential given at the time of adducing evidence indicates that he is a Neurosurgeon. Therefore, the correctness of the certificate becomes doubtful. However, the 2nd respondent/insurance company has not filed any appeal against the award. Therefore, the assessment done by P.W.2 can be taken into account.
8. Considering the fact that the disability has not hindered the avocation of the petitioner or reduced his earning capacity, the award given under the head of compensation for functional disability is correct. Admittedly, the petitioner had been in the hospital for 12 days during which time he would have required an attendant to be alongside him and further it is also submitted that the petitioner has received only a sum of Rs.10,000/- towards extra nourishment. Therefore, the amount under the head of attender charges is enhanced to a sum of Rs.7,500/- from Rs.2,520/- and for extra nourishment enhanced to a sum of Rs.15,000/- from Rs.10,000/-. 5/8 https://www.mhc.tn.gov.in/judis CMA.No.2473 of 2017 Considering the fact that the petitioner had been an inpatient for over 12 days and undergone surgery, a further sum of Rs.5,000/- has to be added under the head of pain and sufferings. Therefore, the reworked compensation would be as follows:
S.No Description Amount Amount Award confirmed awarded by awarded by or enhanced or Tribunal this Court granted or reduced (Rs) (Rs)
1. Loss of Income 15,120/- 15,120/- Confirmed
2. Attender Charges 2,520/- 7,500/- Enhanced
3. Transport to Hospital 10,000/- 10,000/- Confirmed
4. Extra Nourishment 10,000/- 15,000/- Enhanced
5. Damage to clothing 2,000/- 2,000/- Confirmed
6. Medical Expenses 20,059/- 20,059/- Confirmed
7. Damages for mental shock 10,000/- 10,000 Confirmed and agony
8. Pain and sufferings 25,000/- 30,000/- Enhanced
9. Compensation for 90,000/- 90,000/- Confirmed functional Disability TOTAL 1,84,699/- 1,99,679/- Enhanced by Rs.14,980/-
9. Therefore, the Civil Miscellaneous Appeal is allowed and the award of the Tribunal be and hereby is enhanced to a sum of Rs.1,99,679/- from Rs.1,84,699/- together with interest @ 7.5 % per annum from the date of petition till the date of deposit. In all other aspects the award of the Tribunal is confirmed. The 2nd respondent/ insurance company is directed 6/8 https://www.mhc.tn.gov.in/judis CMA.No.2473 of 2017 to deposit the said amount (Rs.1,99,679/-) to the credit of M.C.O.P.No.7804 of 2013 on the file of the Motor Accident Claims Tribunal, (III Court of Small Causes), Chennai together with interest @ 7.5% per annum from the date of claim petition till the date of deposit and costs as awarded by the Tribunal, less, the amount, if any already deposited, within a period of six weeks from the date of receipt of a copy of this Judgment. On such deposit being made, the claimants are permitted to withdraw the amount now determined by this Court, along with interest and costs, after adjusting the amount if any already withdrawn. The Tribunal shall not disburse the amounts until proof of payment of the Court fee is produced by the claimant failing which the Tribunal shall get a confirmation from this Court that the Court fee has been paid. No costs.
08.06.2022 Index : Yes/No Internet: Yes/No shr To
1. Motor Accident Claims Tribunal, III Court of Small Causes, Chennai.
2.The Section Officer, V.R.Section, High Court, Madras.
7/8 https://www.mhc.tn.gov.in/judis CMA.No.2473 of 2017 P.T. ASHA, J, shr CMA.No.2473 of 2017 08.06.2022 8/8 https://www.mhc.tn.gov.in/judis