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Madras High CourtCMA/3233/2019partly allowed

P.Durairaj v. D.Karthikeyan

2021-04-21Honourable Mr Justice C. Saravanan4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21.04.2021

CORAM

THE HON'BLE MR.JUSTICE C.SARAVANAN C.M.A.No.3233 of 2019 P.Durairaj ... Appellant/ Petitioner Vs.

1.D.Karthikeyan 2.The New India Assurance Company Ltd, Represented by its Divisional Office, D.No.133/31-1, Sedukrishna Trade Centre, 2nd Floor, Trichy Main Road, Gugai, Salem - 636 004.

... Respondents/ Respondents Prayer:Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Judgment and Decree dated 25.09.2018 made in M.C.O.P.No.277 of 2015, on the file of the Motor Accidents Claims Tribunal, (Chief Judicial Magistrate Court), Salem.

For Appellant : Mr.K.Varadha Kamaraj For Respondents: Mr.J.Chandran for R2 No appearance for R1

JUDGMENT

The claimant is the appellant in this appeal. The claimant has filed this appeal for enhancement of compensation awarded by the Motor Accidents Claims Tribunal (Chief Judicial Magistrate Court), Salem vide its judgment and decree dated 25.09.2018 in M.C.O.P.No.277 of 2015.

2.In this appeal, the claimant has sought for enhancement of compensation awarded in the impugned judgment and decree passed by the Tribunal. The Tribunal has awarded a sum of Rs.16,81,000/- as compensation by adopting a notional income of Rs.6,500/- as the monthly income of the claimant on the ground that there are no other documents to esablish that the claimant was earning a sum of Rs.20,000/- per month. The Tribunal has awarded a sum of Rs.16,81,000/- under the following heads:-

Loss of Income Rs.10,53,000 Medical Expenses Rs. 3,38,000 Pain and sufferings Rs. 1,00,000 Loss of Amenities and Loss of Marriage Prospectus Rs. 1,00,000 Transport Expenses Rs. 20,000 Attender charges Rs. 25,000 Nutrition and other expenses Rs. 20,000 Loss of artificial leg Rs. 25,000 Total Rs.16,81,000 3.I have heard the learned counsel for the appellant and the respondent. Due to the accident and injury, there was the amputation of the left leg below knee.

4.The Tribunal has considered 75% disability based on Exs.X1 and X2 and has awarded a sum of Rs.16,81,000/- has detailed above. In my view, the adoption of notional income of Rs.6,500/- for determining a loss of income appears to be very low. It is inspired from the decision of the Hon'ble Supreme Court in Syed Sadiq Vs. United India Insurance Co. Ltd., (2014) 2 SCC 735. In my view, it would be fair to conclude that the appellant/claimant would have earned a sum of Rs.12,500 per month. Even otherwise, he was having a yarn godown and was purpotedly having income as a yarn merchant and collection agent. Even it the appellant has not filed any documents to substantiate his income of Rs.

20,000/- per month, considering the fact that the accident is of the year 2015, it can be safely assumed that notional income of the appellant would have been atleast Rs.12,500/- per month for the purpose of determination of just compensation. The Tribunal has ought to have arrived at the functional disability while awarding compensation to the appellant based on the injury. 5.The amputation of left leg below the knee certainly compromised the quality of life. Though the Tribunal has considered 75% disability based on Exs.X1 and X2, it would be fair to conclude that the functional disability of 50%. As there is a amputation of one of the leg below the knee. 6.

Loss of Income Rs.18,90,000 Monthly Notional Income Rs. 12,500 + Future Prospectus 40% Rs. 5,000 ---------------- Rs. 17,500 Annual loss of income (17,500 x 12) Rs.

2,10,000 Multiplier X Rs.37,80,000 ------------------ x Functional Disability Rs.18,90,000 50% Medical Expenses Rs. 3,38,000 Pain and sufferings Rs. 50,000 Loss of Amenities Rs. 1,00,000 Loss of Marriage Prospectus Rs. 1,00,000 Transport Expenses Rs. 20,000 Attender charges Rs. 25,000 Nutrition and other expenses Rs. 20,000 Towards artificial leg Rs. 25,000 Total Rs.25,68,000/- 7.The 2nd respondent/Insurance Company is therefore directed to deposit the enhanced amount of compensation of Rs.25,68,000/- together with interest at 7.5% per annum from the date of numbering of the claim petition till the date of such deposit, less any amount already deposited by it, within a period of eight weeks from the date of receipt of a copy of this Judgment.

8.On such deposit being made by the 2nd respondent/Insurance Company, the appellant/claimant is permitted to withdraw his share together with interest accrued thereon, less any amount already withdrawn in the same proportion as was ordered by the Tribunal.

9.This Civil Miscellaneous Appeal stands Partly Allowed with the above observations. No costs.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar jas To:

1.The New India Assurance Company Ltd, Represented by its Divisional Office, D.No.133/31-1, Sedukrishna Trade Centre, 2nd Floor, Trichy Main Road, Gugai, Salem - 636 004.

2.The Motor Accidents Claims Tribunal, (Chief Judicial Magistrate Court), Salem.

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

+1 cc to Mr.J.Chandran, Advocate Sr.NO.25100 +1 cc to Mr.K.Varadhakamaraj, Advocate Sr.NO. 24567 C.M.A.No.3233 of 2019 SSV(CO) A.SK(12.11.2021)