R.Balachandar v. T.Maheswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 04.03.2019 Pronounced on : 11.06.2019
CORAM:
THE HONOURABLE Mr.JUSTICE RMT.TEEKAA RAMAN C.M.A.No.1481 of 2011 R.Balachandar ... Appellant/Petitioner
Versus
1.T.Maheswaran 2.T.Eswaran 3.United India Insurance Co., Ltd., Muthiah Complex, 2nd Floor, 1170, Mettur Road, Erode - 638 001.
... Respondents/Respondents [Notice for R1 & R2 may be dispensed with Since R1 & R2 were set exparte before the Tribunal] Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the award dated 20.09.2010 made in MCOP.No.237 of 2008 on the file of the Motor Accident Claims Tribunal cum Sub Court, Bhavani and for enhancement of compensation.
For Appellant : Mr.C.Kulanthaivel For Respondents : Exparte - R1 & R2 : Mrs.R.Sreevidhya ( for R3)
JUDGMENT
The claimant is the appellant herein, who has preferred this appeal against the award dated 20.09.2010 passed in MCOP.No.237 of 2008 on the file of the Motor Accident Claims Tribunal cum Sub Court, Bhavani, seeking enhancement of compensation.
2.The factum of the accident, manner of the accident and the rash and negligent driving on the part of the driver/the first respondent are not in dispute. So, this Court is not traversing into these aspects once again. However, the main challenge in this appeal is questioning the quantum of compensation.
3.On the point of quantum, I have heard the respective parties counsel and perused the materials available on record. 4.PW.2/Doctor has described the nature of injuries of PW.1/Balachandar/claimant and marked Ex.P18/wound certificate, Ex.P19/X-ray bill and Ex.P20/X-ray respectively. As per the oral and documentary evidence in respect of the medical evidence of Doctor/PW.2, the disability of the claimant was fixed at 47%. After going through the evidence, the Tribunal fixed the disability of the claimant at 25% and accordingly, awarded a sum of Rs.60,000/-.
5.Taking into consideration of the nature of the injury and the fact that the injured claimant was working as driver, he could earn atleast a sum of Rs.5,000/- per month at the relevant point of time and due to the injuries sustained in the accident, he could not perform his duty for a period of six months. This Court feels that it is necessary to consider the period of treatment as he had lost his earning capacity. Hence, a sum of Rs.30,000/- (Rs.5,000 x 6 months) shall be awarded which will be a fair and reasonable compensation, for the loss of income during the period of treatment.
6.Though the learned counsel for the appellant would contend that in view of the injuries sustained in the accident, he is unable to continue his avocation as driver as before the accident. The point for determination is whether the appellant/claimant has sustained as such nature of injuries and the same is rendered as functional disability. The criteria laid down by the Honourable Supreme Court in Rajkumar Vs. Ajaykumar & another case reported in 2010 (2) TN MAC 581 SC to award compensation by applying multiplier method has not been satisfied in this case. In view of the adaucity of the evidence of PW.2 as it could be seen form Ex.P18 and hence the plea was rejected by the appellant's counsel and the appellant has suffered functional disability is not proved in any manner known to law.
Hence, this Court is of the considered view that the disability may be fixed at 45% and accordingly a sum of Rs.90,000/- is hereby awarded towards disability. 7.Taking note of the injuries and the period of treatment taken by the claimant/appellant, this Court feels that the compensation amount awarded under the head 'Pain and suffering' a sum of Rs.30,000/- is fair and reasonable one and the same is hereby confirmed. During the period of hospitalisation, the Transport charges of Rs.5,000/- is enhanced to Rs.20,000/-. Accordingly, a sum of Rs.5,000/- towards Extra-nourishment is enchanced to Rs.20,000/-. Considering the medical bills, which reflects the amount incurred towards Medical expenses the sum of Rs.
considering the further treatment a sum of Rs.35,000/- for future medical expenses is also awarded as against the Tribunal award of Rs.1,00,000/- to meet the ends of justice. The Tribunal was not awarded any amount under the heads of Loss of Amenities and Attender charges. Hence, this Court awards a sum of Rs.20,000/- each under the above said heads and the other heads awarded by the Tribunal does not want any interference. 8.Consequently, the total compensation amount of Rs.2,15,000/- awarded by the Tribunal is hereby modified and enhanced to Rs.3,81,632/-. The break up details of the enhanced compensation amount are as follows:- Description Amount awarded by Tribunal Amount awarded by this Court Loss of Income Rs.15,000/- Rs.30,000/- Transport charges Rs.5,000/- Rs.20,000/- Extra-nourishments Rs.5,000/- Rs.
20,000/- Pain and suffering Rs.30,000/- Rs.30,000/- Disability Rs.60,000/- Rs.90,000/- Medical expenses Rs.1,00,000/- Rs.1,16,632/- Future medical expenses - Rs.35,000/- Loss of Amenities - Rs.20,000/- Attender charges - Rs.20,000/- Total Rs.2,15,000/- Rs.3,81,632/- 9.In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation amount of Rs.2,15,000/- awarded by the Tribunal is hereby enhanced to Rs.3,81,632/-, with interest at the rate of 7.5% per annum, from the date of petition till the date of realisation.
(ii)The second and third respondents are directed to deposit the enhanced award amount along with interest and costs, less the amount already deposited, if any, within a period of twelve weeks from the date of receipt of a copy of this Judgement.
(iii)On such deposit being made, the appellant/claimant is permitted to withdraw the amount along with interest and costs, after adjusting the amount if any, already withdrawn.
(iv)The appellant is directed to pay necessary Court fee, if any, on the enhanced compensation. No costs. Sd/- Assistant Registrar(CS-V) //True copy// Sub Assistant Registrar klt To 1.The Motor Accidents Claims Tribunal, Subordinate Judge, Bavani.
2. The Section Officer, V.R. Section, High Court, Madras - 104.
+1cc to Mr.C.Kulanthaivel, Advocate SR.No.47106 +1cc to Mrs.R.Sreevidhya, Advocate SR.No.47673 C.M.A.No.1481 of 2011 JP(CO) GMY(01/10/2019)