K.Ramalingam v. D.Gopal

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 19.07.2017

CORAM

THE HON'BLE DR.JUSTICE S.VIMALA C.M.A.No.2083 of 2017 K. Ramalingam ... Appellant/Petitioner

Versus

1. D.Gopal

2. National Insurance Co. Ltd.

No.751, Anna Salai, Chennai - 600 002.

...

Respondents/Respondents Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Judgment and decree dated 24.06.2016 in M.C.O.P. No.1758 of 2013 on the file of the Motor Accident Claims Tribunal / IV Judge, Court of Small Causes / Chennai.

For Appellant Ms.Ramya V. Rao For Respondents Mr.S.Vadivel for R2

JUDGMENT

The injured Ramalingam, aged 40, a Fisherman, earning a sum of Rs.500/- per day met with an accident on 23.02.2013 and on account of the injuries sustained by him, particularly the head injury, which is certified by the Doctor at 50%, the claimant has filed this appeal claiming compensation of Rs.7,00,000/-. The details of injury with consequences suffered need to be mentioned specifically :- (I) Head injury - loss of consciousness, right ear bleed (II) Multiple Bi frontal contusions of brain (III) Right temporal contusion of brain (IV) Anterior inter hemisphere bleed

2. The claimant contended that he suffered loss of earning capacity permanently on account of the injuries sustained by him. The Tribunal passed an award granting a compensation of Rs.94,250/- and the break up details reads as under :-

1. Disability Rs.45,000/-

2. Pain and suffering Rs.15,000/-

3. Extra nourishment Rs. 5,000/-

4. Transport to hospital Rs. 5,000/-

5. Damages to clothes Rs. 1,000/-

6. Attender charges Rs. 1,750/-

7. Medical expenses Rs. 5,000/-

8. Future medical expenses Rs. 5,000/-

9. Loss of income Rs. 6,500/-

10. Loss of amenities Rs. 5,000/- ---------------- Rs.94,250/- -----------------

3. Aggrieved over the quantum of compensation awarded, the claimant has filed this appeal seeking enhancement of compensation.

4. The main contention raised by the learned counsel for the appellant is that when the claimant suffered head injury, the consequences are severe and it would affect his earning capacity especially when he is a person, who has to travel across the sea everyday. Therefore, it is contended that the compensation awarded by the Tribunal is unjust, arbitrary, not proportionate to the nature of injury sustained and that it requires proportionate increase.

5. The learned counsel appearing for the respondent would dispute the liability to pay the compensation alleging that it is a case where already adequate amount of compensation has been awarded under appropriate heads and that the tribunal has itemised every heads; therefore, there is no scope of increasing the compensation.

6. On perusal of the evidence of the Doctor, it is seen that he had assessed the disability of the claimant at 50%. The learned counsel for the respondent would submit that there is always a 5% margin of error in fixing the percentage of disability and therefore in this case, disablement can be taken as 30%. Even for 30% disablement, if compensation is awarded at the rate of Rs.3,000/- per percentage, the disablement compensation can be awarded at Rs.90,000/-, which is the fair and reasonable compensation to be awarded.

7. As regards the amount awarded under the other heads, it is seen that the Tribunal has awarded only a sum of Rs.6,500/- for two months (loss of income) taking the notional income at Rs.3,250/- per month. The accident occurred during February 2013 and with the rise in cost of living it is impossible to run a family with a mere Rs.3,250/- per month. Therefore, the compensation amount awarded under the head of loss of income is

increased to Rs.13,000/- for two months at the rate of Rs.6,500/- per month.

8. Similarly, for loss of amenities, the Tribunal awarded only Rs.5,000/-. Taking into account the nature and magnitude of the injury suffered by the claimant, particularly injuries in the head, this Court is of the view that atleast a sum of Rs.10,000/- shall be awarded towards loss of amenities.

9. For pain and suffering, the Tribunal has awarded a sum of Rs.15,000/-; for extra Nourishment, a sum of Rs.5,000/- was awarded and for attendant charges, a sum of Rs.1,750/- was awarded. The amount awarded under the above heads appears to be inadequate and liable to be enhanced. Having regard to the head injury suffered by the claimant and the period of treatment, the amount awarded under these heads are enhanced to Rs.25,000/-, Rs.10,000/- and Rs.5,000/- respectively.

10. In effect, the amount of Rs.94,250/- awarded by the Tribunal is modified and enhanced to Rs.1,70,000/- as mentioned below:-

1. Disability Rs.90,000.00

2. Pain and suffering Rs.25,000.00

3. Extra nourishment Rs.10,000.00

4. Transport to hospital Rs. 5,000.00

5. Damages to clothes Rs. 1,000.00

6. Attender charges Rs. 5,000.00

7. Medical expenses Rs. 5,000.00

8. Future medical expenses Rs. 5,000.00

9. Loss of income Rs.13,000.00

10. Loss of amenities Rs.10,000.00 -------------------- Rs.1,69,000.00 Rounded off to Rs.1,70,000.00 ---------------------

11. In the result, the Civil Miscellaneous Appeal is allowed by enhancing the award passed by the Tribunal from Rs.94,250/- to Rs.1,70,000/-. No costs.

12. It is represented by the learned counsel for the Insurance Company that the entire amount, as determined by the claims Tribunal, has been already deposited and it has been withdrawn by the claimant. In view of the enhancement of the compensation amount, the Insurance Company is directed to deposit the enhanced amount with interest at the rate of 7.5% from the date of petition till the

date of deposit, within a period of four weeks from the date of receipt of copy of the judgment On such deposit, after payment of balance court fee, if any, the Tribunal shall transfer the amount due to the bank account of the claimant. Sd/- Assistant Registrar(CS-vii) //True Copy// Sub Assistant Registrar vsi2/kv To

1. Motor Accident Claims Tribunal / IV Judge, Court of Small Causes Chennai..

2. The Section Officer, V.R. Section, High Court, Madras - 104. (2 copies) +1cc to Mr.S.VADIVEL, Advocate, S.R.No.50402 +1cc to Mr.A.N.VISWANATHAN, Advocate, S.R.No. 50517 C.M.A.No.2083 of 2017 MP(CO) TR(05/02/2018)