R.Prema v. State Express Transport
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.11.2020
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.M.A.No.2864 of 2013 R.Prema .. Appellant/Petitioner Vs State Express Transport Corporation Limited Represented by its Managing Director Chennai-1.
.. Respondent/Respondent Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 17.06.2011 made in M.C.O.P.No.4409 of 2008 on the file of Motor Accident Claims Tribunal, IV Small Causes Court, Chennai.
For Appellant :
Ms.A.Subadra for Ms.M.Malar For Respondent :
Mr.K.Kathiresan
J U D G M E N T
The matter is heard through "Video Conferencing". The Civil Miscellaneous Appeal is filed for enhancement of compensation granted by the Tribunal in the award dated 17.06.2011 made in M.C.O.P.No.4409 of 2008 on the file of Motor Accident Claims Tribunal, IV Small Causes Court, Chennai. 2.The appellant is claimant in M.C.O.P.No.4409 of 2008 on the file of Motor Accident Claims Tribunal, IV Small Causes Court, Chennai. She filed the said claim petition claiming a sum of Rs.18,00,000/- as compensation for the injuries sustained by her in the accident that took place on 17.09.2008. 3.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of the bus belonging to the respondent and directed the respondent/Transport Corporation to pay a sum of Rs.11,45,400/- as compensation to the appellant.
4.Not being satisfied with the amounts awarded by the Tribunal, the appellant has come out with the present appeal seeking enhancement of compensation.
5.The learned counsel appearing for the appellant contended that the Tribunal failed to consider the evidence of the appellant as P.W.2 and Doctor as P.W.5, the documents filed by the appellant and treatment taken by her. The appellant has taken treatment as in-patient in three different hospitals on five different spells for more than 80 days. P.W.5/Doctor examined the appellant and certified that the appellant suffered 75% disability. The Tribunal erroneously reduced the percentage of disability to 70% and granted compensation only for 70% disability. The fingers in the left leg are dislocated and the movements are restricted. The appellant was working as a tailor and was earning a sum of Rs.10,000/- per month. The Tribunal erroneously fixed a meagre sum of Rs.4,500/- as monthly income of the appellant and awarded only a sum of Rs.
36,000/- towards loss of income. The Tribunal has not awarded any amount towards attendant charges, extra nourishment and loss of amenities. The appellant is depending on others for her day to day activities. The Tribunal ought to have adopted multiplier method and awarded compensation and prayed for enhancement of compensation. 6.Per contra, the learned counsel appearing for the respondent/Transport Corporation contended that the Tribunal considering the evidence of appellant as P.W.2 and the Doctor as P.W.5 with regard to nature of injuries and disability suffered by her, has awarded compensation under different heads, which are not meagre. P.W.5 is not the doctor who treated the appellant. The percentage of disability assessed by P.W.5/Doctor is excessive.
The appellant has not made out any case for enhancement of compensation and prayed for dismissal of the appeal.
7.Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondent/ Transport Corporation and perused the entire materials available on record.
8.From the materials available on record, it is seen that in the accident, the appellant has sustained injuries, bones in the left leg were cut into pieces. The appellant has taken treatment as in-patient in five different spells for more than 80 days and underwent surgeries. The appellant produced Exs.P5, P6, P12 and P15/Discharge summaries, Ex.P37/Disability certificate and Exs.P7, P8, P13 and P14/Medical bills to prove the nature of injuries, treatment taken and expenses incurred by her. P.W.5/Doctor deposed about the nature of injuries and certified that the appellant suffered 75% disability. The
Tribunal reduced the percentage of disability to 70% on the ground that the assessment of disability may vary from Doctor to Doctor. The respondent has not let in any contra evidence to the evidence of P.W.5/Doctor. In view of the same, the appellant is entitled to compensation for 75% disability. The appellant has not proved that she suffered functional disability and lost her earning capacity. Hence, the appellant is not entitled to compensation by adopting multiplier method. The Tribunal has granted compensation at the rate of Rs.2,000/- per percentage of disability and the same is proper. Thus, the appellant is entitled to a sum of Rs.1,50,000/- (Rs.2,000/- X 75%) towards disability.
8(i).The appellant has claimed that she was working as a tailor and was earning a sum of Rs.10,000/- per month. The Tribunal has awarded a sum of Rs.36,000/- towards loss of income for eight months during treatment period by fixing a sum of Rs.4,500/- as monthly income of the appellant. The accident has occurred in the year 2008 and the monthly income fixed by the Tribunal is meagre. Hence, a sum of Rs.6,500/- per month is fixed as notional income of the appellant. Due to the injuries, the appellant would not have attended the work atleast for a period of ten months. Hence, a sum of Rs.65,000/- (Rs.6,500/- x
10) is awarded towards loss of income for a period of ten months.
8(ii).According to the appellant, she has taken treatment as in-patient in Parvathi Hospital on 17.09.2008 and 18.09.2008, in Apollo First Med Hospital from 19.09.2008 to 03.10.2008, in MIOT Hospital on three different spells from 03.10.2008 to 21.11.2008, 28.10.2009 to 04.11.2009 and 14.12.2010 to 24.12.2010 for more than 80 days. The Tribunal has not awarded any amount towards attendant charges, extra nourishment and loss of amenities. Considering the nature of injuries, disability and period of treatment taken by the appellant, Rs.20,000/- each is awarded towards attendant charges and extra nourishment and Rs.10,000/- is awarded towards loss of amenities. The amounts awarded by the Tribunal under all other heads are just and reasonable and hence, the same are hereby confirmed. Thus, the compensation awarded by the Tribunal is modified as follows: S.No Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted or reduced 1.
Loss of income 36,000 65,000 Enhanced
2.
Transportati on 10,000 10,000 Confirmed 3.
Damage to clothes 1,000 1,000 Confirmed 4.
Medical expenses 8,98,400 8,98,400 Confirmed 5.
Pain and suffering 60,000 60,000 Confirmed 6.
Permanent disability 1,40,000 1,50,000 Enhanced 7.
Attendant charges - 20,000 Granted 8.
Extra nourishment - 20,000 Granted 9.
Loss of amenities - 10,000 Granted Total 11,45,400 12,34,400 Enhanced by Rs.89,000/- 9.In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.11,45,400/- is hereby enhanced to Rs.12,34,400/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The appellant is directed to pay necessary Court fee, if any, on the enhanced compensation. It is made clear that the appellant is not entitled for any interest for the delay period on the amount of Rs.89,000/- enhanced by this Court as per the order of this Court dated 07.08.2013 made in M.P.No.1 of 2012 in C.M.A.SR.No.91659 of 2012.
The respondent/Transport Corporation is directed to deposit the enhanced award amount now determined by this Court 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 judgment. On such deposit, the appellant is permitted to withdraw the enhanced award amount along with interest and costs, less the amount if any, already withdrawn. No costs.
Sd/- Assistant Registrar(CS VIII) dt 23/02/2021 //True Copy// Sub Assistant Registrar kj
To
1. The IV Judge, The Motor Accident Claims Tribunal, Small Causes Court, Chennai.
2. The Section Officer V.R.Section High Court, Chennai.
+1cc to Mr.K.Kathiresan, Advocate, S.R.No.35699 +1cc to Ms.M.Malar, Advocate, S.R.No.35687 C.M.A.No.2864 of 2013 MG(CO) HS(13/08/2021)