M.Palanisamy v. J.K.Roopan

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Date of Reserving Judgment 21.01.2021 Date of Pronouncing Judgment 26.04.2021

CORAM

THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN C.M.A.No.1841 of 2015 M. Palanisamy .. Appellant/Petitioner Vs.

1. J.K. Roopan

2. M/s. HDFC ERGO General Insurance Company Limited, 4th floor, Rajanarayanan Towers, 70 Race Course Road, Coimbatore - 18.

.. Respondents/Respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to enhance the compensation awarded in the judgment and decree dated 02.12.2014 made in MCOP.No.364 of 2009 on the file of MACT/Chief Judicial Magistrate Court at Namakkal, with interest and cost by allowing this civil miscellaneous appeal.

For Appellant : Mr. Ma. P. Thangavel For Respondents : Mr. J. Michael Visuvaram, for R2 R1 - No Appearance

J U D G M E N T

The award dated 02.12.2014 passed in M.C.O.P.No.364 of 2009, is under challenge in the present civil miscellaneous appeal. The claimant is the appellant and the appeal is filed seeking enhancement of compensation.

2.

The brief facts leading to the filing of the appeal are as follows:

(i) The appellant while travelling as a pillion rider, on 14.02.2009 in a Hero Honda Splendor Bike bearing Registration

No.TN-30-Q-1165 met with an accident and sustained injuries. As a result of an accident caused by a Tat Indica Car bearing Registration No.TN-38-AB-8553 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.364 of 2009 seeking compensation of Rs.7,00,000/-. (ii) The Motor Accident Claims Tribunal, by its Award dated 02.12.2014 in M.C.O.P.No.364 of 2009 directed the respondents to pay jointly and severally the appellant a sum of Rs.2,89,731/- together with interest at the rate of 7.5%, per annum from the date of claim till the date of realisation.

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 for the appellant and the learned counsel 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 / HDFC ERGO General Insurance Company Limited are not in dispute and hence, the finding rendered in this regard by the Motor Accident Claims Tribunal are hereby confirmed.

6.

Before the Tribunal, the Insurance Company has taken a plea that the car was not insured with the second respondentInsurance Company at the material point of time. However, the records reveal the fact that RW1 was examined and he had taken a different stand that the policy was canceled, as the cheque was dishonored. However, they have not filed any communication to that effect.

7.

In the absence of any positive evidence indicating repudiation of Insurance policy cover being communicated to the owner and also taking note of the fact that on the date of the accident, the driver of the offending vehicle did not possess necessary valid badge endorsement.

The Tribunal, after following the settled proposition of law, has ordered for pay and recovery on the part of the Insurance Company. 8.

In the absence of any challenge to such order of pay and recovery on the part of the Insurance Company and no argument being advanced on that point, I find no material to contra finding as to the above fact. Accordingly, the pay and recovery as ordered by the Tribunal is hereby confirmed. 9.

On the point of quantum of compensation, heard the rival parties. The claim petitioner being the injured has filed

the petition in MCOP.No.364 of 2009 claiming compensation. P.W.2 / Doctor would depose that the disability is fixed at 75% and issued Ex.P15 to that effect.

10.

On perusal of Exs.P9, P10 and P11, it is seen that the injured has been admitted in the hospital and undergone three surgeries on the respective dates viz., the first operation as an inpatient was between 14.02.2009 and 11.03.2009; the second time operation was conducted between 10.08.2009 and 27.08.2009 and the third time operation was done between 29.10.2009 and 02.11.2009 and thus, he was under treatment as an inpatient for a period of 46 days.

11.

As per discharge summary, the following injuries were found:

Fracture femur right compound grade III B fracture both bones right leg with bone loss of tibia Segmental fracture fibula and he has given treatment, IM nailing (right femur) and external fixation of tibia on 14.02.2009 wound debridement, closure and skin grafting on 18.02.2009 Lrs with upper tibial corticotomy for bone transport on 07.03.2009. 12.

In the second surgery, IM nailing and external fixation was done, the right femur bone was fractured compound grade III B fracture of both taken right and this patient was diagnosed to have fracture right femur, compound grade III B fracture both bones right leg with bone loss of tibia, segmental fracture fibula and underwent above mentioned surgeries. Hence, taking note of the fact as mentioned in the discharge summaries under Exs.A9, A10 and A11, and the oral evidence of the medical Doctor PW2 coupled with the documentary evidence Ex.P1disability certificate, I find that the disability would be fixed at 50%.

13.

The learned counsel for the appellant-claim petitioner would contend that due to the injuries sustained in the accident, the appellant-claim petitioner had suffered functional disability and he could not perform his regular routine duties as prior to the accident. After perusing the evidence of P.W.2 Doctor and also the discharge summary, wherein, the nature of the treatment given to the claim petitioner and physical condition of the claim petitioner was explained, the Tribunal has rightly come to the conclusion that the injury has not resulted in functional disability and accordingly, rejected the adoption of multiplier method. For revisiting the evidence, I find that except the percentage of disability, which is partial permanent disability, the finding rendered by the Tribunal that the multiplier method need not be applied, appears to be well settled and well merited.

14.

In view of the injuries sustained by the claim petitioner and the treatment taken by him as an inpatient, attendant charges is fixed at Rs.30,000/-, since he has underwent surgeries for three times. Pain and sufferings is fixed at Rs.40,000/-, Transportation is fixed at Rs.25,000/-, loss of amenities-25,000/-, Nutrition and extra nourishment is fixed at Rs.20,000/- and he could not have suffered partial loss of income for a period of six months at the rate of Rs.6,500/- (6,500X6=39,000). 2000/- per percentage of disability and 60,000x2,000=1,20,000/-.

15.

Thus, the compensation awarded by the Tribunal is enhanced from Rs.2,89,731/- to Rs.5,24,731/- the details of which read as follows:

Sl.

No.

Heads Tribunal Award High Court MODIFIED/ CONFIRMED Partial loss of earning (Rs.3,000x3) Rs.9,000/- Rs.39,000/- (6,500x6) Modified Medical Expenses Rs.2,25,731/- Rs.2,25,731/- Confirmed 3 Pain & Sufferings Rs.5,000/- Rs.40,000/- Modified Partial Permanent Disability (25xRs.2,000) Rs.50,000/- Rs.1,20,000/- (60,000x2,000 ) Modified 5 Attendant Charges Nil Rs.30,000/- Awarded 6 Transportation Nil Rs.25,000/- Awarded 7 Loss of Amenities Nil Rs.25,000/- Awarded 8 Nutrition and Extra Nourishment Nil Rs.20,000/- Awarded Total Rs.2,89,731/- Rs.5,24,731/- 16.

Accordingly, the modified compensation of Rs.5,24,731/- is to be paid to the appellant along with the interest from the date of accident. The second respondent / HDFC ERGO General Insurance Company Limited, is directed to deposit the modified award amount of Rs.5,24,731/- 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 02.12.2014,

passed in M.C.O.P.No.364/2009, stands modified and C.M.A.No.1841/2015 stands allowed in part. No costs. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar AT To:

The Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Namakkal.

Copy to:

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

+1cc to Mr.S.Michael Visuvasam, Advocate, S.R.No.25369 Pre-delivery Order in C.M.A.No.1841 of 2015 RSI(CO) SU(28/10/2021)