Kodandappa v. S. Dinakaran

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.04.2021

CORAM

THE HON'BLE MR.JUSTICE C.SARAVANAN C.M.A.NO.1417 OF 2021 (THROUGH VIDEO CONFERENCING) Kondandappa ... Appellant/ Petitioner Vs.

1. S.Dinakaran

2. The Branch Manager, The National Insurance Company Limited, Branch Office, Anuradha Complex, III Floor, Bangalore Road, Opp to Raja Theatre, Krishnagiri - 635 001.

... Respondents/ Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to enhance the compensation amount made in the Judgment and Decree dated 07.03.2020 made in M.C.O.P.No.320 of 2019 on the file of the Motor Accident Claims Tribunal, Special Sub Court, Krishnagiri.

For Appellant : Mr.S.P.Yuaraj For Second Respondent : Mr.J.Chandran

J U D G M E N T

The claimant is the appellant in this Civil Miscellaneous Appeal. He has filed this appeal for enhancement of compensation awarded by the Motor Accidents Claims Tribunal, [Special SubCourt (MACT)], Krishnagiri in the impugned Judgment and Decree dated 07.03.2020 in M.C.O.P.No.320 of 2019.

2. By the impugned Judgment and Decree, the Tribunal has awarded a sum of Rs.3,95,222/- together with interest at 7.5% per annum from the date of claim petition till the date of deposit except the default period, to the appellant/claimant.

3. The case of the appellant/claimant before the Tribunal is that on 15.08.2018 at about 19:30 hours (7.30 p.m.), the appellant/claimant while travelling in an insured Tata Tipper lorry bearing registration No.TN-70-Q-1940 in Berigai to Theertham road met with an accident. It is stated that when the said lorry was coming at the curved road situated at Chinna Theertham in Berigai, the driver of the said lorry drove the vehicle in a rash and negligent manner at an uncontrollable speed and applied break, as a result of which, the said lorry dashed on the road side stone situated on the left side and capsized. In the accident, the appellant/claimant and others sustained injuries.

4. It is submitted that the accident is of the year 2018, but the Tribunal has considered only Rs.3,000/- per percentage for awarding compensation for 45% permanent disability assessed. It is further submitted that the Tribunal has awarded only a sum of Rs.17,000/- towards loss of income for the period of two months by considering a notional income of Rs.8,500/- per month during the treatment.

5. The learned counsel for the appellant/claimant submits that the amount awarded towards permanent disability has to be enhanced to Rs.5,000/- from Rs.3,000/- per percentage. He further submits that the Tribunal has considered very low income of Rs.8,500/- per month to award the aforesaid income of Rs.17,000/- towards loss of income for the period of two months during the treatment.

6. Defending the impugned Judgment and Decree, the second respondent Insurance Company submits that the Tribunal has awarded a just compensation and therefore prays for confirmation of the award considering the overall facts.

7. He further submits that the appellant/claimant travelled as a gratuitous passengers and was therefore not entitled to any compensation as per the decisions of the Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Baljit Kaur, (2004) 2 SCC 1 and in New India Assurance Co. Ltd. v. Asha Rani [(2003) 2 SCC 223.

8. I have heard the learned counsel for the appellant/ claimant and the learned counsel for the second respondent. I have perused the impugned Judgment and Decree.

9. The issue as to whether the appellant/claimant travelled as a gratuitous passenger cannot be decided in absence of any contra evidence and appeal on behalf of the second respondent Insurance Company. Therefore, this Court is confining its

enquiry only with regard to the quantum of compensation awarded by the Tribunal.

10. In my view, the Tribunal ought to have awarded another sum of Rs.45,000/- towards permanent disability at Rs.4,000/- per percentage. The Tribunal has considered only Rs.8,500/- per month as notional income. Since the accident is of the year 2018 and the appellant was said to be working as a loading and unloading man. He would have been earned a sum of Rs.12,500/- per month. Therefore, same is considered as notional income of the appellant/claimant for the purpose of awarding compensation towards loss of income.

11. As far as the nature of injuries suffered by the appellant, namely, open wound left arm with triceps tear with wedial epicondyle fracture with ulnar nerve palsy/post interhemispheric SAH, are concerned, it would have taken some time to return to normal life. This Court is therefore inclined to enhance the period of loss of income to 6 months from 2 months at a notional income of Rs.12,500/- per month for the purpose of awarding a just compensation towards loss of income during the period of treatment.

12. A sum of Rs.1,35,000/- awarded towards permanent disability and a sum of Rs.17,000/- awarded towards loss of income during the treatment period are enhanced as follows:- Permanent Disability:- Permanent Disability - 45% Rs.4,000/- per percentage (45 x 4,000) = Rs.1,80,000/- Loss of income during the treatment period:- Notional Income - Rs.12,500/- per month Period of treatment - 6 months (6 x 12,500) = Rs.75,000/-

13. The amount of compensation awarded by the Tribunal under the other heads is confirmed. Thus, the compensation of Rs.3,95,222/- awarded by the Tribunal is enhanced to Rs.4,98,222/- as follows:-

Heads Amount awarded by the Tribunal Amount awarded by this Court Permanent Disability Rs. 1,35,000/- Rs. 1,80,000/- Medical Expenses Rs. 1,27,222/- Rs. 1,27,222/- Transportation Rs. 10,000/- Rs. 10,000/- Nourishment and Attender charges Rs. 15,000/- Rs. 15,000/- Pain and Sufferings Rs. 45,000/- Rs. 45,000/- Social amenities Rs. 45,000/- Rs. 45,000/- Loss of income during the treatment period Rs. 17,000/- Rs. 75,000/- Damages to clothes Rs. 1,000/- Rs. 1,000/- Total Rs. 3,95,222/- Rs. 4,98,222/-

14. Thus, the second respondent Insurance Company is therefore directed to deposit a sum of Rs.4,98,222/- together with interest at 7.5% per annum from the date of claim petition till the date of deposit except the default period, less any amount already deposited, within a period of eight weeks from the date of receipt of a copy of this Judgment.

15. On such deposit, the appellant/claimant is permitted to withdraw the same together with interest, less any amount already withdrawn, by filing suitable application before the Tribunal.

16. This Civil Miscellaneous Appeal is therefore partly allowed. No cost.

Sd/- Deputy Registrar(TNMCC) //True Copy// Sub Assistant Registrar jen To 1.

The Motor Accident Claims Tribunal, Special Sub Court, Krishnagiri.

+1cc to Mr.S.P.Yuaraj, Advocate, S.R.No.26664 +1cc to Mr.J.Chandran, Advocate, S.R.No.26871 C.M.A.No.1417 of 2021 AD(CO) CS/26/10/2021