Mentallay Disabled And Blind v. S. Ponraj S/O. Sundaram,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 10.11.2020

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.M.A.No.1452 of 2013 Mentally Disabled and Blind S. Saravanan (rep. By his father and N.F, V. Saminathan) ...Appellant / Claimant Vs 1.S. Ponraj 2.The Tamilnadu State Transportation Corporation (Coimbatore Division II) Ltd., rep. By its Managing Director, Chennimalai Road, Erode 638 001.

...Respondents / Respondents

Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 24.11.2010, made in M.C.O.P. No.179 of 2009, on the file of the Sub Court, (Motor Accident Claims Tribunal) Perundurai. For Appellant : Mr. Sriram for M/s. K. Govi Ganesan For Respondents : No appearance (For R1) Ms. A. Indumathi for M/s. A. Sundaravadhanam (For R2)

J U D G M E N T

The matter is heard through "Video Conferencing". This appeal has been filed for enhancement of compensation granted by the award dated 24.11.2010, made in M.C.O.P. No.179 of 2009, on the file of the Sub Court, (Motor Accident Claims Tribunal) Perundurai.

2.The appellant, who is a mentally disabled and blind person, represented by his father, filed M.C.O.P. No.179 of 2009, on the file of the Sub Court, (Motor Accident Claims

Tribunal) Perundurai, claiming a sum of Rs.5,00,000/-, as compensation for the injuries sustained by him in the accident that took place on 15.02.2009.

3.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the 1st respondent, driver of the Bus belonging to the 2nd respondent-Transport Corporation and directed the respondents to jointly and severally pay a sum of Rs.29,500/- as compensation to the appellant. 4.Not being satisfied with the amounts awarded by the Tribunal in the award dated 24.11.2010, made in M.C.O.P. No.179 of 2009, the appellant has come out with the present appeal. 5.The learned counsel appearing for the appellant contended that in the accident, the appellant sustained contusion in the brain. The Tribunal having found that the blood clot in the brain may be cured or may not be cured, ought to have held that the appellant suffered grievous injuries and has permanent disability.

The appellant has become mentally disabled. The Tribunal ought to have awarded more compensation. The appellant filed Ex.P3 - Medical Certificate to show that he is not able to recognise anybody and he requires medical and neurological treatment. The Tribunal failed to consider the evidence of Doctors who are the experts in the medical field. The Tribunal erroneously substituted its own opinion. The Tribunal ought to have personally examined the appellant who appeared in person before it, instead of finding fault with the evidence of Doctors. The Tribunal ought to have granted compensation for permanent disability. The amounts awarded by the Tribunal is meagre and prayed for enhancement of the compensation. 6.Per contra, the learned counsel appearing for the 2nd respondent-Transport Corporation submitted that P.W.

2- Doctor who did not treat the appellant deposed that the appellant suffered permanent disability. P.W.2 - Doctor is not the Doctor who treated the appellant and he is not a Neurologist. The Tribunal considering all the materials, concluded that appellant has not suffered permanent disability, by giving valid reason. The compensation awarded by the Tribunal under different heads are not meagre. Hence, appellant is not entitled for any enhancement of the compensation and prayed for dismissal of the appeal.

7.Though notice has been served on the 1st respondent and his name is printed in the cause list, there is no representation for him either in person or through counsel.

8.Heard learned counsel appearing for the appellant as well as the 2nd respondent-Transport Corporation and perused the materials available on record.

9.From the materials on record, it is seen that it is the contention of the appellant that due to the contusion in the brain, the appellant has become mentally unstable and could not recognize anybody and suffered permanent disability. The appellant marked Ex.P3 - certified copy of the Medical Certificate issued by Dr.M.R.Raveenthiran, who treated the appellant and proved that appellant requires medical and neurological management. The appellant also examined P.W.2Doctor who certified that he suffered 15% permanent disability. The Tribunal without considering Exs.P3 and P4, disability certificates and evidence of Doctors in proper perspective, has erroneously held that the appellant has not suffered any disability.

The Tribunal having held that appellant's injury in the brain may be cured or may not be cured, or may be cured after some months, erroneously held that there is no disability suffered by the appellant. There is no contra evidence to Exs.P3, P4 and evidence of Doctors. The respondents have not examined any Doctor to disprove the evidence of P.W.2-Doctor and documents viz., Exs.P3 and P4. The reliance placed by the Tribunal and evidence of P.W.2 Doctor to come to the conclusion that appellant has not suffered any permanent disability, is erroneous. The contention of the learned counsel appearing for the appellant that Tribunal would have examined the appellant who appeared before the Tribunal to come to a conclusion with regard to mental state of the appellant has considerable force and the same is acceptable.

The appellant filed claim petition represented by his father and his father gave evidence as P.W.1. Considering the above materials in its entirety, this Court is of the view that appellant has suffered permanent disability due to the contusion in the brain and evidence of P.W.2-Doctor certifying that the appellant suffered 15% permanent disability is acceptable. The appellant is entitled to compensation for 15% permanent disability by applying multiplier method. The appellant claimed that he was working as Assistant in Sivajothi Paper Package Industry and was earning a sum of Rs.150/- per day. Considering the date of accident, a sum of Rs.3,750/- is fixed as monthly income, as claimed by the appellant. The appellant was aged 28 years at the time of accident.

As per the judgment of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC Supreme Court [Sarla Verma & others vs. Delhi Transport Corporation & another], the correct multiplier applicable is '17'. Hence, the appellant is entitled to a sum of Rs.1,14,750/- [Rs.3,750/- x 12 x 17 x 15%] towards disability.

10. Considering the nature of injuries, oral and documentary

evidence, the amounts awarded by the Tribunal towards transportation, extra nourishment and damages to clothes are meagre and the same are enhanced to Rs.7,500/-, Rs.10,000/-, and Rs.1,000/- respectively. The consolidated sum of Rs.5,000/- awarded by the Tribunal towards Doctors fee, hospital charges, medical expenses, attendant charges, food is meagre and hence, the same is enhanced to Rs.10,000/-. The Tribunal has not awarded awarded any amount towards loss of amenities. The appellant is entitled to a sum of Rs.20,000/- towards loss of amenities. P.W.3-Doctor has stated that the appellant requires future medical treatment. Considering the same, a sum of Rs.20,000/- is granted towards future medical expenses. The amounts awarded by the Tribunal under other heads are just and reasonable and hence, the same are hereby confirmed. Thus, the compensation awarded by the Tribunal is modified as follows: Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted S.

No Description 1.

Transportation 2,000/- 7,500/- Enhanced 2.

Extra nourishment 2,000/- 10,000/- Enhanced 3.

Damages to clothes 500/- 1,000/- Enhanced 4.

Doctors fee, hospital charges, medical expenses and attendant charges, food, etc., 5,000/- 10,000/- Enhanced 5.

Pain and suffering 10,000/- 10,000/- Confirmed 6.

Simple injuries 10,000/- 10,000/- Confirmed 7.

Loss of amenities - 20,000/- Granted 8.

Future medical expenses - 20,000/- Granted 9.

Disability - 1,14,750/- Granted Total 29,500/- 2,03,250/- Enhanced by Rs.1,73,750/- 11.In the result, the appeal is partly allowed and the amount awarded by the Tribunal at Rs.29,500/- is enhanced to Rs.2,03,250/- together with interest at the rate of 7.5% per

annum from the date of petition till the date of deposit. The respondents are jointly and severally directed to deposit the enhanced award amount, now determined by this Court, along with interest and costs, within a period of twelve weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P. No.179 of 2009. On such deposit, the father of the appellant is permitted to withdraw the award amount along with accrued interest, for the welfare of the appellant. The appellant is directed to pay the court fee, if any, on the enhanced amount of Rs.1,73,750/-. No costs.

Sd/- Assistant Registrar(CS-V) //True copy// Sub Assistant Registrar gsa To 1.The Subordinate Judge, (Motor Accident Claims Tribunal), Perundurai.

2.The Section Officer, V.R Section, High Court, Madras.

+1cc to Mr.K.Govi Ganesan, Advocate SR.No.36575 C.M.A.No.1452 of 2013 VBA(CO) RVM(13/08/2021)