Kanagaraj v. Mohan Kumar

JUDGMENT The Civil Miscellaneous Appeal has been filed by the claimant in M.C.O.P.No.344 of 2008, aggrieved over the quantum of compensation awarded by the Motor Accidents Claims Tribunal, II Small Causes Court, Chennai, wherein, the Motor Accidents Claims Tribunal has awarded a sum of Rs.1,01,800/- as compensation for the injuries sustained by the claimant in the accident taken place on 18.07.2007.

¶2The parties are referred to hereunder according to status and ranking before the trial Court.

¶3On 18.07.2007 at about 8.00 a.m., the claimant was riding his motorcycle bearing registration No.TN 29 4357 from Kaveripattinam to Kalvehalli to his house on KRP Dam Road, near Perumal Temple on the left side of the road, at that time, the driver of the Pickup Van, bearing registration No.KA 01/AB 8000 drove the same in a rash and negligent manner and dashed against the petitioner's motorcycle and due to the impact, the petitioner fell down and sustained fracture on his right knee and also sustained multiple injuries all over his body. A case was registered by the Kaveripattinam Police against the driver of the Pickup Van in Crime No.727/2007 under Sections 279, 337 IPC. Hence, the petitioner claimed compensation for a sum of Rs.5,00,000/-.

¶4The first respondent - vehicle owner, remained ex-parte before the Tribunal. The second respondent is the Insurance Company countered that the accident was occurred only due to rash and negligent driving of the claimant and that the driver of the Pickup van is not responsible for the accident. They have also disputed the contributory negligence only on the part of the rider of the motorcycle and negligence injuries and disabilities caused to the petitioner and stated that compensation claimed before the Tribunal is on the higher side and prays to dismiss the Claim Petition.

¶5Before the Tribunal, the claimant was examined as P.W.1 and one Dr.Ashok Kumar was examined as P.W.2 to prove the disability and claimant marked documents as Exs.A1 to A10 and on the side of the second respondent-Insurance Company no witness was examined and no documents marked.

¶6Based on the evidence adduced before the Tribunal, it is held that from the evidence of the injured and since no rebuttal evidence adduced by the respondent side to disprove the evidence of the claimant, the rash and the negligent act of the driver of the private bus is responsible for the injuries caused to the claimant.

¶7The Tribunal has awarded compensation on the following heads: Permanent Disability at Rs.40,000/-; Compensation of Pain and Sufferings and mental agony at Rs.10,000/-; Partial Loss of earning capacity at Rs.9,000/-; Transport to Hospital and Extra Nourishment at Rs.5,000/-; Medical Expenses at Rs.35,776.36/-; and Attendant Expenses at Rs.2,000/-.

¶8The claimant has filed this appeal on the grievance that the compensation awarded for the injures and disabilities caused to him is on lower side and prays to increase the compensation.

¶9The learned counsel for the appellant would submit that the claimant has suffered 40% injury and the Tribunal has followed the percentage method and granted Rs.1,000/- per percentage of injury sustained by him, which is on the lower side. Similarly, in other heads also the compensation granted needs to be revised.

¶10The claimant herein has sustained the following injuries as stated in Ex.P9-Disability Certificate as follows: ",tUila tyJ Kl;ofhypy; ogah vYk;gpd; nky; gFjp cile;J mjw;fhf mWit rpfpr;ir bra;ag;gl;Ls;sJ/ mjdhy; tyJ Kl;ofhypd; rijfs; ,Wfp ngha; cs;sJ/ tyJ Kl;ofhiy kog;gjpYk; ePl;LtjpYk; rpukk; kw;Wk; typ cs;sJ. tPf;fk; Vw;gLfpwJ/ rhpahf rg;gdpl;L mku Koatpy;iy/ Fe;jpfhypl;L mku Koatpy;iy/ fhypy; uhL kw;Wk; !;f;U bghUj;jg;gl;Ls;sjhy; elf;Fk; bghGJk; md;whl ntiyfis bra;a[k; bghGJk; rpukkhft[k; typa[k; ,Uf;fpwJ/ ,jdhy; ,tuhy; ePz;l neuk; elf;fnth. epw;fnth KoahJ/ ,tuhy; irf;fpy; nghd;w ,Urf;fu thfd';fs; Xl;l KoahJ/ nkYk; ,tuhy; khog;gofspy; Vwp ,w';f KoahJ/ nkYk; ntfkhf elf;ft[k; md;whl ntiyfisa[k;. tptrha ntiyfisa[k;. ghy; fwf;Fk; ntiyfisa[k; bra;a KoahJ/" The Doctor who was examined as D.W.2 has issued Disability Certificate and deposed that the claimant has suffered fracture of right tibial Condyles on the right knee and he developed stiffness on the muscles on the right knee and difficult to bend and stretch his right leg. He has also listed out further complications of the injuries sustained by him.

¶11The Tribunal after considering the evidence of P.W.2 and medical records has accepted the percentage fixed by the P.W.2 i.e., 40%. The claimant has not sustained any permanent functional disability in view of the injuries sustained by him by following the Judgements of the Hon'ble Apex Court in Rajkumar vs. Ajaykumar reported in 2011 1 SCC 343. Since the injuries sustained by the claimant is not the functional permanent disability, granting of compensation by adopting percentage method is proper. The Tribunal has granted a sum of Rs.1,000/- per percentage of disability. Admittedly, the accident was occurred on 18.07.2007, and during that relevant period the Courts have adopted granting of Rs.2,000/- per percentage of injury. Accordingly, I am inclined to enhance the compensation for a sum of Rs.2,000/- per percentage of disability. Accordingly, compensation awarded under the head permanent disability is enhanced to Rs.2,000/- per percentage and the appellant is entitled for a sum of Rs.80,000/- [Rs.2000 X 40% = Rs.80,000/-] under the head Permanent Disability.

¶12The Tribunal has also granted compensation for a sum of Rs.10,000/-for pain and sufferings and mental agony and this Court finds that the same is fair and proper. The injured was admitted into the hospital and undergone in-patient treatment on 18.07.2007 and discharged on

23.07.2007 as per Ex.A4-Discharge Summary shows that the claimant was fitted with L-plates and screws on the right tibial Condyles. Considering the period of taking in-patient treatment, the Tribunal has awarded a sum of Rs.9,000/- as partial loss of earning during the treatment period and the same is confirmed. The Tribunal has awarded a sum of Rs.5,000/- for Transport to Hospital and Extra Nourishment and the same is on the lower side and this Court enhance the amount to Rs.10,000/- for transport to Hospital and Extra Nourishment. The Tribunal has allowed the entire medical expenses of Rs.35,776.36/- and this Court is of the view that no need for further revision in this particular head. The Tribunal has awarded attendant charges for a sum of Rs.2,000/- but failed to grant future medical expenses. Admittedly, the claimant has fitted with L-plates, screws which requires to be removed, subsequently. Accordingly, I am inclined to award a sum of Rs.15,000/- under the head future medical expenses.

¶13Accordingly, the award passed by the Tribunal under various heads are hereby enhanced is as follows: S. Description Amount awarded by Tribunal

(Rs) Amount awarded by this Court

(Rs) Award confirmed or enhanced or granted or reduced

¶1Permanent Disability Rs.40,000/- Rs.80,000/- Enhanced

¶2Pain and sufferings and Mental Agony Rs.10,000/- Rs.10,000/- Confirmed

¶3Partial loss of earning Rs.9,000/- Rs.9,000/- Confirmed

¶4Transport to Hospital and Extra Nourishment Rs.5,000/- Rs.10,000/- Enhanced

¶5Medical expenses Rs.35,776.36/- Rs.35,776.36/- Confirmed

¶6Attendant Expenses Rs.2,000/- Rs.2,000/- Confirmed

¶7Future Medical Expenses ...... Rs.15,000/-Granted Total Rs.1,01,776.36/-Rs.1,61,776.36/-Enhanced by Rs.60,000/-

¶14In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal is at Rs.1,01,776.36/- is hereby enhanced to Rs.1,61,776.36/- [Rupees One Lakh Sixty One Thousand Seven Hundred and Seventy Six and Thirty Six Paise only] together with interest at the rate of 7.5% per annum from the date of Claim Petition till the date of deposit. The second 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 to the credit of M.C.O.P.No.344 of 2008, on the file of the Motor Accidents Claims Tribunal, Additional Subordinate Judge, Krishnagiri. On such deposit, the appellant/claimant is entitled to withdraw the amount, now awarded by this Court along with interest and costs, less the amount if any, already withdrawn without making any formal application. Since this Court has enhanced the compensation, the appellant/claimant is directed to pay necessary Court fee, if any, on the enhanced compensation. In other aspects, the award of the Tribunal shall stand confirmed. There shall be no order as to costs in the present appeal.

20.07.2023 ssi Index:Yes/No Speaking Order:Yes/No To:

¶1The Additional Subordinate Judge, Motor Accidents Claims Tribunal, Krishnagiri.

¶2The Section Officer, V.R.Section, High Court, Chennai. K.RAJASEKAR,J. ssi Pre delivery Judgment made in

20.07.2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 13.06.2023 PRONOUNCED ON : 20.07.2023 CORAM: THE HONOURABLE MR. JUSTICE K.RAJASEKAR Civil Miscellaneous Appeal No.1552 of 2013 Kanagaraj ... Appellant/Petitioner Vs. 1. Mohan Kumar [R1 remained ex-parte before Tribunal. Hence, notice to R1 dispensed with] 2. The Branch Manager, Oriental Insurance Co., Ltd., No.14, Sankarapuram, No.19/1, 1st Floor, 3rd Cross, Shankarapuram, Bangalore – 560 004. … Respondents/Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and decree dated 22.01.2010 made in M.C.O.P.No.344 of 2008 on the file of the Motor Accidents Claims Tribunal, Court of Additional Subordinate Judge at Krishnagiri. For Appellant : Mr. M.Sriram For R1 : Ex-parte before Tribunal For R2 : Mr.D.Baskaran