E. Kannan v. Rajendran

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 19.11.2021

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.M.A.No.892 of 2014 E.Kannan .. Appellant / Petitioner Vs.

1.Rajendran 2.The United India Insurance Company Limited Karaikal, Represented by its Branch Manager No.2, Church street Karaikal Town and District.

.. Respondents / Respondents Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 02.01.2014 made in M.C.O.P.No.60 of 2013 on the file of the Motor Accident Claims Tribunal, District Court, Karaikal.

For Appellant : Mr.K.Kumaraguru for M/s.Sai and Bharath For R1 : Mr.S.Srinivasan For R2 : Mr.S.Arunkumar

J U D G M E N T

(This matter is heard through ?Video-Conferencing/Hybrid Mode?.) The Civil Miscellaneous Appeal is filed for enhancement of compensation granted by the Tribunal in the award dated 02.01.2014 made in M.C.O.P.No.60 of 2013 on the file of the Motor Accident Claims Tribunal, District Court, Karaikal. 2.The appellant is claimant in M.C.O.P.No.60 of 2013 on the file of the Motor Accident Claims Tribunal, District Court, Karaikal. He filed the said claim petition claiming a sum of Rs.4,00,000/- as compensation for the injuries sustained by him in the accident that took place on 10.09.2012.

3.According to the appellant, on 10.09.2012 at about 10.45 p.m., while he was riding in his Bajaj Discover motorcycle bearing Registration No.PY-02 J-7583 along with his colleague as a pillion rider from South to North at Bharathiyar Main Road, near Saravana Super Market, Keezhakasakudy, Karaikal, slowly on the extreme left side of the road, the 1st respondent rode the Hero Honda motorcycle bearing Registration No.TN-47 Q-1035 in a rash and negligent manner, hit against the Bajaj Discover motorcycle driven by the appellant and caused the accident. In the accident, the appellant sustained grievous injuries and took treatment as in-patient in Government General Hospital, Karaikal, for two days and thereafter, in Rohini Hospital, Tanjore, from 13.09.2012 to 22.09.2012 and underwent surgery.

In the accident, he suffered fractures on the right fore arm and mandible. Due to the injuries and fracture, he could not carry on his work as Mason and therefore, filed claim petition claiming compensation against the respondents 1 and 2. 4.The 1st respondent, owner-cum-rider of the Hero Honda motorcycle remained exparte before the Tribunal. 5.The 2nd respondent/Insurance Company filed counter statement and stated that the appellant misunderstood the policy issued by the 2nd respondent and filed claim petition against the 2nd respondent. Even according to the appellant, accident has occurred only due to rash and negligent riding by the 1st respondent. The Hero Honda motorcycle belonging to the 1st respondent is not insured with the 2nd respondent/Insurance Company.

Bajaj Discover motorcycle of the appellant was insured with the 2nd respondent, the motorcycle of the 1st respondent was not insured at the time of accident and therefore, the claim petition filed against the 2nd respondent is not maintainable. The 2nd respondent is not liable to pay any compensation to the appellant and prayed for dismissal of the claim petition. 6.Before the Tribunal, the appellant examined himself as P.W.1 and Dr.Rajagopal as P.W.2 and marked 13 documents as Exs.P1 to P13. The 2nd respondent/Insurance Company did not let in any oral and documentary evidence.

7.The Tribunal considering the pleadings, oral and documentary evidence let in by the appellant, held that the accident has occurred only due to rash and negligent riding by the 1st respondent, the 1st respondent-s motorcycle was not insured at the time of accident and directed the 1st respondent to pay a sum of Rs.1,44,600/- as compensation to the appellant. 8.Not being satisfied with the amounts awarded by the Tribunal, the appellant has come out with the present Civil Miscellaneous Appeal seeking enhancement of compensation.

9.The learned counsel appearing for the appellant contended that the appellant produced Exs.P7 to P11 medical bills. The Tribunal erroneously rejected certain bills and granted lesser amount towards medical expenses. The Tribunal failed to grant any amount towards future medical expenses. The appellant was aged 26 years at the time of accident and was a Mason by profession. He suffered fractures on right forearm and mandible. Due to fracture, he could not continue his work as Mason. The Tribunal ought to have granted compensation towards disability by adopting multiplier method. The appellant has taken treatment as in-patient for more than 20 days. The Tribunal has not granted any amount towards attendant charges. The amounts granted by the Tribunal under different heads are meagre and prayed for enhancement of compensation.

10.Per contra, the learned counsel appearing for the 1st respondent contended that the appellant has not proved his avocation and income. The appellant has also not proved that due to the injuries, he could not continue his work as Mason and lost his earning capacity. In the absence of name in the bills, the Tribunal rightly did not accept some of the bills for Rs.8,808/-. The total compensation granted by the Tribunal is excessive. The appellant is not entitled for any enhancement of compensation and prayed for dismissal of the appeal. 11.Mr.S.Arunkumar, the learned counsel appearing for the 2nd respondent/Insurance Company contended that there is no award against the 2nd respondent. The offending vehicle was not insured with the 2nd respondent/Insurance Company.

The Tribunal rightly directed the 1st respondent to pay the compensation, there is no claim against the 2nd respondent in the appeal and prayed for dismissal of the appeal against the 2nd respondent. 12.Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondents 1 and 2 and perused the entire materials on record. 13.From the materials on record, it is seen that it is the contention of the appellant that he was a Mason by profession at the time of accident and was earning a sum of Rs.500/- per day. The appellant failed to substantiate the same by letting in acceptable evidence. In the absence of document with regard to income of the appellant, the Tribunal fixed a sum of Rs.200/- per day as income of the appellant. The accident is of the year 2012.

Even a coolie will be earning more than Rs.

in the year 2012. The appellant was aged 26 years at the time of accident. Considering the age of appellant and date of accident, a sum of Rs.7,500/- per month is fixed as notional income of the appellant. Due to the injuries and fracture, the appellant would not have attended his work atleast for a period of three months. Thus, the compensation awarded by the Tribunal towards loss of income during treatment period is enhanced to Rs.22,500/- (Rs.7,500/- X 3).

13(i). P.W.2/Doctor examined the appellant and certified that he suffered 34% disability. P.W.2/Doctor in his crossexamination admitted that percentage of disability will be reduced in future. The Tribunal considering the evidence of P.W.2/Doctor, fixed the disability of the appellant at 30%. The appellant has not proved that he lost his earning capacity and suffered functional disability. The Tribunal applied percentage method and granted compensation towards disability. There is no error in granting compensation by applying percentage method. The Tribunal granted a sum of Rs.1,000/- per percentage of disability. The accident is of the year 2012. The appellant is entitled to a sum of Rs.3,000/- per percentage of disability. The amount granted by the Tribunal towards partial disability is enhanced to Rs.90,000/- (Rs.3,000/- X 30%).

13(ii). The appellant has taken treatment as in-patient in Government General Hospital, Karaikal, for two days and thereafter, in Rohini Hospital, Tanjore, from 13.09.2012 to 22.09.2012. The Tribunal has not granted any amount towards attendant charges. Considering the period of treatment taken by the appellant, a sum of Rs.10,000/- is granted towards attendant charges. The Tribunal considering the medical bills produced by the appellant, held that appellant has not deducted amount for refund of medicines and produced duplicate bills. Considering the same, the Tribunal rightly deducted Rs.8,808/- and awarded a sum of Rs.79,600/- towards medical expenses, which is in order.

The appellant has not produced any document to prove that he requires future medical expenses and therefore, he is not entitled to any amount towards future medical expenses. A sum of Rs.5,000/- granted by the Tribunal towards extra nourishment is meagre and hence, the same is hereby enhanced to Rs.10,000/-. The amounts awarded by the Tribunal under all other heads are just and reasonable and hence, the same are hereby confirmed.

S.No Description Amount awarded by Tribunak (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted or reduced 1.

Pain and suffering 25,000 25,000 Confirmed 2.

Extra nourishment 5,000 10,000 Enhanced 3.

Partial disability 30,000 90,000 Enhanced 4.

Medical expenses 79,600 79,600 Confirmed 5.

Loss of income during treatment period 5,000 22,500 Enhanced 6.

Attendant charges - 10,000 Granted TOTAL 1,44,600 2,37,100 Enhanced by Rs.92,500/ - 14.In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.1,44,600/- is hereby enhanced to Rs.2,37,100/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The 1st respondent is directed to deposit the award amount now determined by this Court along with interest and costs, less the amount already deposited, if any, within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit, the appellant is permitted to withdraw the award amount now determined by this Court along with interest and costs, less the amount if any, already withdrawn. This appeal is dismissed against the 2nd respondent/Insurance Company. No costs.

Sd/- Assistant Registrar True Copy// Sub Assistant Registrar

kj To

1. The District Judge Motor Accident Claims Tribunal Karaikal.

2. The Section Officer V.R.Section, High Court, Chennai.

+1cc to Mr.S.Arunkumar, Advocate, S.R.No.60175 +1cc to Mr.S.Srinivasan, Advocate, S.R.No.59707 C.M.A.No.892 of 2014 SVI[co] NSK/16/06/2022