Sivakumar v. S.Karthikeyan

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 12.06.2023 Coram:

THE HONOURABLE MRS.JUSTICE N.MALA Sivakumar ... Appellant

Versus

1.S. Karthikeyan 2.The Divisional Manager The United India Insurance Company Limited TP Claims Hub, No.81, Katpadi Road TKM Complex 2nd Floor, Vellore - 632 004.

... Respondents Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decree dated 09.01.2020 made in M.A.C.T.O.P.No. 398 of 2018 on the file of Motor Accident Claims Tribunal, Special Sub Court, Tiruvannamalai.

For Appellant :

Mr.A.G.F. Terry Chella Raja For R1 :

Exparte before the Tribunal For R2 :

Mr.M. Krishnamurthy ---- 1/8

JUDGMENT

The above appeal is filed by the claimant seeking enhancement of compensation.

2.

According to the claimant, on 10.11.2017, while the claimant was travelling in a Tata car along with others due to the rash and negligent driving of the driver, the car dashed against a tamarind tree. Due to the impact, the claimant sustained grievous injuries. Therefore, the claimant filed the claim petition claiming a sum of Rs.7,00,000/- as compensation for the injuries sustained by him.

3.

Before the Claims Tribunal, the first respondent remained exparte and the claim petition was contested by the second respondent/Insurance Company. The second respondent/Insurance Company filed a detailed counter affidavit denying all the allegations made in the claim petition apart from disputing the negligence, liability and quantum of compensation.

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4.

Before the Claims Tribunal, the claimant examined himself as PW1 and Ex.P1 to Ex.P10 were marked in support of the claim. On the side of the 2nd respondent/Insurance Company, no oral or documentary evidence was adduced. Ex.C1 disability certificate issued by the Medical Board was marked as court document.

5.

The Claims Tribunal, on an assessment of the entire evidence on record rendered a finding of negligence against the driver of the first respondent. The Tribunal awarded a sum of Rs.2,78,957/- as compensation along with 7.5% interest. Not satisfied with the award passed by the Claims Tribunal, the claimant has filed the above appeal for enhancement of compensation.

6.

The learned counsel for the appellant submitted that the award of the Tribunal towards "permanent disability" was unsustainable. The learned counsel further submitted that the award under other heads was meagre and the same deserved to be enhanced. 3/8

7.

The learned counsel for the appellant further submitted that the Claims Tribunal having adopted the unit method erred in awarding Rs.3,000/- per percentage of disability instead of Rs.5,000/- per percentage of "permanent disability". The learned counsel relied on Chinnathambi's case in suppport of his contention. The learned counsel submitted that the claimant was hospitalized for 6 days for medical treatment and therefore the Tribunal ought to have awarded reasonable sum towards attender charges.

8.

The learned counsel for the second respondent/Insurance Company, on the other hand, submitted that the compensation awarded by the Claims Tribunal was just, fair and reasonable and did not call for any interference in the appeal.

9.

I have heard both the learned counsels and perused the materials available on record.

10.

I find justification in the submission of the learned counsel for the appellant that the Claims Tribunal ought to have fixed Rs.5,000/- per 4/8

percentage of disability. Following the judgment of this Court in Chinnathambi case reported in 2020 (1) TNMAC 617, I find that the claimant is entitled to Rs.5,000/- per percentage of disability, as the accident took place in the year 2015. Therefore, the award of the Tribunal towards "permanent disability" is enhanced to Rs.1,50,000/-. 11.

It is submitted by the learned counsel for the appellant that the claimant suffered fracture of left medial epicondyle of humur with internal fixator and articular comminution present, medial pillar disrupted, trochlea comally split into 2 fragment, lateral pillar intact and trochlea fracture off from capitellum. The claimant was hospitalized for six days for treatment of the aforesaid injuries. I am therefore of the view that the award of the Tribunal towards "attender charges" needs to be enhanced. 12.

In view of the above discussions, the award of the Tribunal is modified as follows:- 5/8

S.No.

Various Heads Award of the Tribunal Award of this Court 1.

Permanent Disability Rs.90,000 Rs.1,50,000 2.

Pain and Suffering Rs.30,000 Rs.30,000 3.

Loss of Amenities Rs.20,000 Rs.20,000 4.

Nutrition and Damage to Articles Rs.15,000 Rs.15,000 5.

Attendar Charges Rs.5,000 Rs.15,000 6.

Transport Expenses Rs.3,000 Rs.3,000 7.

Loss of income Rs.14,000 Rs.14,000 8.

Medical Expenses Rs.1,01,957 Rs.1,01,957 Total Rs.2,78,957 Rs.3,58,957 13.

The claimant is entitled to enhanced compensation amount of Rs.3,58,957/- along with 7.5% interest from the date of the claim petition till the date of deposit.

14.

In view of the above discussion, there shall be a direction to the second respondent/Insurance Company to deposit the enhanced compensation amount after deducting the amount, if any, already deposited with interest as stated above within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit being made, the claimant is entitled to withdraw the same by making appropriate application before the Tribunal.

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15.

Accordingly, the Civil Miscellaneous Appeal is partly allowed. There shall be no order as to costs.

12.06.2023 Index:Yes/No Speaking Order :Yes/No MSM To

1. The Special Sub Court, The Motor Accident Claims Tribunal, Tiruvannamalai. 2.The Section Officer, V.R.Section, High Court, Madras.

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N.MALA.J., msm 12.06.2023 8/8