Deepa v. Ranjitham

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 02.02.2021

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.M.A.NO.4074 OF 2019 Deepa .. Appellant/Claimant .Vs.

1.Ranjitham 2.The Oriental Insurance Co. Ltd.

Siva complex II floor, 22C Saradha college main road Salem-636 016.

Branch office at Mettur road Parimalam complex, EVN road Erode-1.

3.Sivakumar 4.Kannan 5.Raja .. Respondents/Respondents Prayer:

This Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 29.07.2019 made in M.C.O.P.No.283 of 2017 on the file of Motor Accident Claims Tribunal, Special Sub Court, Erode. For Appellant : Mr.T.S.Arthanareeswaran for Mr.C.Paraneedharan For R1, R3 to R5 : No appearance For R2 : Mr.M.J.Vijayaraaghavan

J U D G M E N T

This matter is heard through "Video-Conferencing". The Civil Miscellaneous Appeal is filed for enhancement of compensation granted by the Tribunal in the award dated 29.07.2019 made in M.C.O.P.No.283 of 2017 on the file of Motor Accident Claims Tribunal, Special Sub Court, Erode.

2.The appellant is claimant in M.C.O.P.No.283 of 2017 on the file of Motor Accident Claims Tribunal, Special Sub Court, Erode. She filed the said claim petition claiming a sum of Rs.10,00,000/- as compensation for the injuries sustained by her in the accident that took place on 24.07.2016. 3.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the 4th respondent, the driver of the car belonging to the 1st respondent and directed the 2nd respondent/Insurance Company being insurer of the said car to pay a sum of Rs.2,10,000/- as compensation to the appellant. 4.Not being satisfied with the amounts awarded by the Tribunal, the appellant has come out with the present appeal seeking enhancement of compensation.

5.The learned counsel appearing for the appellant contended that in the accident, the appellant suffered both bones fracture of right leg. The appellant has taken treatment as in-patient in Dharan Hospital, Salem, from 24.07.2016 to 29.07.2016, underwent surgery and interlocking nailing was fixed on her right tibia. The Medical Board after examining the appellant, certified that the appellant suffered 40% partial permanent disability and issued Ex.C1/disability certificate. The Tribunal fixed the disability of the appellant at 20% and awarded a sum of Rs.3,000/- per percentage of disability, which is meagre. At the time of accident, the appellant was working as a coolie in masonry work and was earning a sum of Rs.14,000/- per month. The Tribunal without considering the same, erred in fixing the notional income of the appellant at Rs.

8,800/- per month. The appellant is still taking treatment for the injuries and the Tribunal ought to have awarded compensation towards future medical expenses. The amounts awarded by the Tribunal under different heads are meagre and prayed for enhancement of compensation.

6.Per contra, the learned counsel appearing for the 2nd respondent/Insurance Company contended that the appellant failed to prove the avocation and income. In the absence of material evidence with regard to avocation and income, the Tribunal fixed notional income of the appellant at Rs.8,800/- per month and the same is in order. The total compensation awarded by the Tribunal is excessive. The appellant has not made out any case for enhancement of compensation and prayed for dismissal of the appeal.

7.Though notice has been served on the respondents 1, 3 to 5 and their names are printed in the cause list, there is no representation for them either in person or through counsel.

8.Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the 2nd respondent/ Insurance Company and perused the entire materials on record. 9.It is the contention of the appellant that in the accident, the appellant suffered both bones fracture of right leg. The appellant has taken treatment as in-patient in Dharan Hospital, Salem, from 24.07.2016 to 29.07.2016, underwent surgery and interlocking nailing was fixed on her right tibia. The Medical Board after examining the appellant, certified that the appellant suffered 40% partial permanent disability and issued Ex.C1/disability certificate. The Tribunal fixed the disability of the appellant at 20% and awarded a sum of Rs.3,000/- per percentage of disability.

The accident is of the year 2016 and the amount awarded by the Tribunal per percentage of disability is meagre. This Court by the judgment reported in 2020 (1) TN MAC 617 [M. Chinnathambi Vs. S.Deepa and another], fixed a sum of Rs.4,000/- per percentage of disability for the accident occurred in the year 2014 & 2015 and a sum of Rs.5,000/- per percentage of disability for the accident occurred from the year 2016 onwards, due to raise in cost of living. In the present case, the accident is of the year 2016. In view of the same, a sum of Rs.5,000/- is awarded per percentage of disability. Thus, the compensation awarded by the Tribunal towards disability is modified to Rs.1,00,000/- (Rs.5,000/- X 20%). The amounts awarded by the Tribunal towards transportation, extra nourishment and attendant charges are meagre.

Considering the nature of injuries, disability and period of treatment taken by the appellant, the amounts awarded by the Tribunal towards transportation, extra nourishment and attendant charges are enhanced to Rs.10,000/- each. The appellant has not produced any document to prove that she is still taking treatment and therefore, she is not entitled to any compensation towards future medical expenses. 9(i). According to the appellant, she was working as a coolie in masonry work and was earning a sum of Rs.14,000/- per month. The appellant failed to substantiate the said contention. In the absence of any material evidence with regard to income, the Tribunal fixed a sum of Rs.8,800/- per month as notional income of the appellant, which is meagre. The accident is of the year 2016 and hence, a sum of Rs.

14,000/- per month is fixed as notional income of the appellant. Due to the injuries, the appellant would not have attended the work atleast for a period of four months. Thus, the compensation awarded by the Tribunal towards loss of earning is modified to Rs.56,000/- (Rs.14,000/- X 4). 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 Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted or reduced 1.

Loss of earning 35,200 56,000 Enhanced 2.

Transportati on 6,000 10,000 Enhanced 3.

Extra nourishment 8,000 10,000 Enhanced 4.

Attendant charges 6,000 10,000 Enhanced 5.

Damage to clothes and articles 3,000 3,000 Confirmed 6.

Medical expenses 61,500 61,500 Confirmed 7.

Pain and suffering 30,000 30,000 Confirmed 8.

Permanent disability 60,000 1,00,000 Enhanced 2,80,500 Enhanced by Rs.70,500/- (Rs.2,80,500/-- Rs.2,10,000/-) 10.In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.2,10,000/- is hereby enhanced to Rs.2,80,500/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The 2nd respondent/Insurance Company 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 six 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. No costs.

Sd/- Deputy Registrar(Admin III) TOTAL 2,09,700 rounded off to 2,10,000 //True Copy// Sub Assistant Registrar

kj To

1. The Special Subordinate Judge Motor Accident Claims Tribunal Erode.

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

+2cc to Mr.T.S.Arthanareeswaran, Advocate, S.R.No.6436 C.M.A.No.4074 of 2019 NMI(CO) CS/19/11/2021