Mr.Prakash v. Vijayakumar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Date of Reserving Judgment 04.02.2021 Date of Pronouncing Judgment 16.03.2021

CORAM

THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN Prakash .. Appellant Vs.

1.Vijayakumar 2.The New India Assurance Co. Ltd., Tarapore Towers Division, Tarapore Towers, 3rd Floor, No.826, Anna Salai, Chennai - 02.

.. Respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree of the Motor Accidents Claims Tribunal (Additional District Judge-IV) at Ponneri made in M.C.O.P.No.336 of 2010 dated 12.03.2014.

For Appellant : Mr. Terry for Mr. R. Nithyanandam For Respondents : Mr. J. Chandran, for R2 R1 - Ex parte 1/8

J U D G M E N T

The award dated 12.03.2014, passed in M.C.O.P.No.336 of 2010 is under challenge. The claimant filed the present appeal seeking enhancement of compensation.

2.

The brief facts leading to the filing of the appeal are as follows:- (i) The appellant sustained injuries on 03.04.2010 as a result of an accident caused by a Tipper Lorry bearing Registration No.TN-20-AP-4777 owned by the first respondent and insured with the second respondent. The appellant preferred a claim before the Motor Accident Claims Tribunal in M.C.O.P.No.336 of 2010 seeking a compensation of Rs.10,00,000/-. (ii) The Motor Accident Claims Tribunal, by its Award dated 12.03.2014 in M.C.O.P.No.336 of 2010 directed the respondents 1 and 2 jointly and severally to pay the appellant a sum of Rs.4,10,000/- together with interest at the rate of 7.5%, per annum from the date of claim till the date of realisation.

2/8

3.

Aggrieved by the quantum of compensation awarded by the Tribunal, the appeal has been filed by the claimant seeking enhancement of compensation.

4.

Heard the learned counsel appearing for the appellant and the learned counsel appearing for the second respondent. 5.

The factum of the accident and the manner of the accident and negligence on the part of the driver of the first respondent which was insured with the second respondent / New India Assurance Company Limited are not in dispute and hence, the finding rendered in this regard by the Motor Accident Claims Tribunal are hereby confirmed. 6.

Based upon Exs.P.2 to P.4 discharge summary, P.W.2 had issued Ex.P.14 disability certificate by correlating with Exs.P.11, P.15 and P.16 X-ray. On perusal of the evidence of P.W.2 Doctor, coupled with the above said documentary evidence, it appears that the claim petitioner had 3/8

sustained commuted fracture over his right thigh for which iron rod, screw fixed by doing surgery. He was in the hospital for 24 days in three spells, as could be seen from the discharge summary Exs.P.2 to P.4. 7.

After going through the evidence of the Doctor, who had assessed disability as 90% and on perusal of the disability certificate Ex.P14, I find the following injuries sustained by the claimant: "1.Multiple # ® Femur. ILIL nail finished, Bone loss and wound injury shortening 1.1/2 " ® Leg, Hip flexibility 60", RER 50 Limb & Paning. For this injury 45% disability.

2. Multiple # ® Tibia cancellous Screw fixed and IL Nail Tibia, in siting and cannot flex knee upto 45 cannot walk and limbing with stick. For this injury 30% disability.

3. Eye Lower lid, Water flows from eyes, scar marks disjoyment. For this injury 15% disability." 8.

Accordingly, I find that the percentage of disability fixed by the Tribunal as 80% is just and reasonable. The date of the accident is 03.11.2010 and though the Tribunal has taken Rs.2,000 per percentage of disability, this Court is inclined to enhance the same to Rs.3,000/- per 4/8

percentage of disability (80x3000) = 2,40,000/-. Transportation to hospital is enhanced to Rs.10,000/- from Rs.5,000/-, Extra Nourishment is enhanced to Rs.10,000/- from Rs.5,000/-, no amount was awarded towards loss of amenity. Therefore this Court is inclined to award Rs.10,000/- towards loss of amenity. Similarly, no amount was awarded towards Attendant Charges. Therefore, this Court is inclined to award Rs.15,000 towards Attendant Charges. Loss of Income for a period of three months is enhanced to Rs.30,000/- from Rs.10,000.

9.

In the absence of any positive evidence to show that the claim petitioner who sustained disability, is unable to perform his job as earlier and in the absence of any positive evidence on medical side to show that he has lost his earning capacity the tribunal has rightly rejected the claim on the above head and the same is hereby confirmed. 10.

Thus, the compensation awarded by the Tribunal is enhanced from Rs.4,10,000/- to Rs.5,45,000/- the details of which read as follows: 5/8

Sl.

No.

Heads Tribunal Award High Court MODIFIED/ CONFIRMED 1 Transport to Hospital Rs.5,000/- Rs.10,000/- Modified 2 Extra Nourishment Rs.5,000/- Rs.10,000/- Modified 3 Pain and Sufferings Rs.50,000/- Rs.50,000/- Confirmed 4 Disability 80% Rs.1,60,000/- Rs.2,40,000/- Modified 5 Medical Expenditure Rs.1,80,000/- Rs.1,80,000/- Confirmed 6 Loss of Income Rs.10,000/- Rs.30,000/- Modified 7 Loss of Amenity NIL Rs.10,000/- Awarded 8 Attendant Charges NIL Rs.15,000/- Awarded Total Rs.4,10,000/- Rs.5,45,000/- 11.

Accordingly, the modified compensation of Rs.5,45,000/- is to be paid to the appellant along with the interest from the date of accident. The second respondent / New India Assurance Company Ltd., is directed to deposit the modified award amount of Rs.5,45,000/- along with the interest, within a period of eight weeks, from the date of receipt of copy of the judgment and on such deposit, the appellant-claimant is permitted to withdraw the entire award amount by filing an appropriate application and the payments are to be made through RTGS. Thus, the award dated 6/8

12.03.2014, passed in M.C.O.P.No.336/2010, stands modified and C.M.A.No.1245/2015 stands allowed in part.

16.03.2021 Index : yes/no Internet : yes/no Speaking Order/Non-Speaking Order AT 7/8

RMT.TEEKAA RAMAN.J, AT To The Motor Accidents Claims Tribunal, Additional District Judge-IV, Ponneri.

Pre-delivery Order in 16.03.2021 8/8