V.Ponnusammy v. M/S Prabakaran and Brothers

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.07.2023 CORAM: THE HONOURABLE MR. JUSTICE K. RAJASEKAR Civil Miscellaneous Appeal Nos.169, 170, 171 & 209 of 2017 V.Ponnusamy … Appellant/Petitioner in CMA No.169/2017 P.Amutha … Appellant/Petitioner in CMA No.170/2017 S.Divya … Appellant/Petitioner in CMA No.171/2017 P.Nithya … Appellant/Petitioner in CMA No.209/2017 Vs.

¶1M/s.Prabakaran & Brothers Dharapuram Road, Oddanchatiram, Dindigul District

¶2The National Insurance Company Ltd., Greams Road, Chennai – Tirupur Branch

... Respondents /Respondents in all CMAs COMMON PRAYER: Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles Act, 1988 against the Common Award and Decree dated 30.11.2012 passed in M.C.O.P. Nos.719, 720, 721 & 723 of 2002 on the file of the Motor Accident Claims Tribunal, II Small Causes Court, Chennai. For Appellant in all CMAs : Mr. K.Varadhakamaj For R1 in all CMAs : Ex-parte For R2 in all CMAs : M/s.N.B.Surekha COMMON JUDGMENT These Civil Miscellaneous Appeals have been filed by the claimants seeking enhancement of compensation awarded in M.C.O.P.Nos.719, 720, 721 & 723 of 2002, respectively, dated 30.11.2012 on the file of the Motor Accident Claims Tribunal, II Small Causes Court, Chennai.

¶2The parties are referred to hereunder according to their litigative status and ranking before the Tribunal.

¶3The case of the claimants are that on 21.08.2001 at about

12.00hours, while the petitioner in MCOP No.719/2002 was driving the Car namely Toyota Qualis bearing Registration No.TN 07 U 6181 along with petitioners in MCOP Nos.720, 721 & 723/2002 from Ooty to Pillayarpatti, while the car reached near Ottanchatiram a Bus bearing Registration No.TN 57 Y 3699 came in rash and negligent manner and hit on the car which resulted causing severe injuries to the petitioners. Subsequently, the petitioners have come forward with the respective claim petitions in M.C.O.P.Nos.719, 720, 721 & 723 of 2002 under Section 166 of the Motor Vehicles Act claiming compensation of Rs.27,000/-, Rs. 5,50,000/-, 5,00,000/- and Rs.20,00,000/- for the injuries sustained by them in the road accident.

¶4The first respondent has not contested the claim and was remained ex-parte before the Tribunal. The second respondent has contested the claim and disputed the manner in which the accident had taken place and further contended that the accident had happened only due to the rash and negligent driving on the part of the driver of the car i.e., the petitioner in MCOP No.719/2002 at the same time, the driver of the bus driven with due care and caution the accident had occurred and that the bus driver is not responsible for the accident. Hence the Insurance Company is not liable to pay compensation. They also disputed the age, income, avocation and injury sustained by the petitioners.

¶5Based on the evidences placed on record, the Tribunal has held that the accident had happened due to the negligent driving of the driver of the bus and also quantified the compensation and awarded a sum of Rs.4,11,000/-, Rs.1,55,000/- , Rs.1,47,000/- & Rs.4,21,000/- respectively along with interest @ 7.5% per annum from the date of filing of claim petitions till the date of realization.

¶6Aggrieved over the quantum of compensation awarded by the Tribunal, the claimants have filed these appeals seeking enhancement of compensation.

¶7The learned counsel appearing for the claimants has submitted that the Tribunal has not properly appreciated the evidences placed on record, fixed the notional monthly income and awarded compensation, which is on the lower side. The compensation awarded under various heads is also very meagre and prays to enhance the same.

¶8Per contra, the learned counsel appearing for the respondent – Insurance Company has submitted that based on the evidences placed on record, the Tribunal has rightly fixed the notional income and also awarded just compensation, hence prays to confirm the award of the Tribunal.

¶9I have considered the rival submissions made on both sides and also perused the records.

¶10It is the case of the claimant in CMA No.169/2017 that the claimant was running Ponnusamy Hotel at Royapettah and was earning a sum of Rs.1,50,000/- per month and due to the injuries sustained he was not able to do his business as earlier. But the claimant had not proved the income and the Tribunal based on the evidence of P.W.1 has fixed the monthly income of Rs.5,000/- per month, considering the date of accident is of the year 2001, this Court is of the view the same is reasonable and the same is hereby confirmed. The claimant has sustained following injuries, recorded in Ex.P5 – Wound Certificate issued by Meenakshi Mission Hospital and Research Centre: "Severe head injury, right sylvion supra sylvion right side, tentorial magin sub-archanoid haemorrhage with effacement of right lateral ventricle and Type-1 compound communited fracture shaft of numerus right". Ex.P6 – Discharge Summary, shows the claimant has undergone GA open reduction and internal fixation and C.T Scan Report-Ex.P7 shows that "(1) Subarachnoid haemorrhage seen in right sylvian cistern, tentorial surfces and right sulcal spaces (2) Peterchial Haematoma in the righ temporal region and Cerebral odema". While awarding compensation for disability, the Tribunal based on the opinion of the Doctor – P.W.2, who assessed the disability and held that the petitioner has sustained patial permanent disability as 55%, the Tribunal has considered the disability and fixed the disability to the extent of 55% and awarded a sum of Rs.2,000/- per percentage of injury is proper and no need for interference of the same and the same is hereby confirmed.

¶11The compensation awarded under other heads such as Extra Nourishment, the Tribunal has awarded a sum of Rs.10,000/- and this Court is of the view the same is very meagre and this Court is inclined to enhance the same to the tune of Rs.20,000/- under the head Extra Nourishment. The Tribunal has awarded a sum of Rs.20,000/- under the head Pain and Sufferings and considering the injuries sustained by the claimant, this Court is inclined to grant a sum of Rs.40,000/-. As far as the compensation awarded under other heads are concerned, the same are just and reasonable and the same are hereby confirmed.

¶12Thus, the compensation Awarded by the Tribunal under various heads in CMA No.169/2017 is hereby modified as follows: S. Description Amount awarded by Tribunal

(Rs) Amount awarded by this Court

(Rs) Enhanced/ Reduced / Granted / Confirmed

¶1Loss of Income Rs.30,000/- Rs.30,000/- Confirmed

¶2Transportation Rs.10,000/- Rs.10,000/- Confirmed

¶3Extra Nourishment Rs.10,000/- Rs.20,000/- Enhanced

¶4Damages to clothes Rs.1,000/- Rs.1,000/- Confirmed

¶5Medical Expenses Rs.2,10,000/- Rs.2,10,000/- Confirmed

¶6Attender Charges Rs.5,000/- Rs.5,000/- Confirmed

¶7Loss of amenities of life and Mental agony Rs.25,000/-Rs.25,000/-Confirmed 8 Pain and Suffering Rs.20,000/-Rs.40,000/-Enhanced 9 Disability Rs.1,00,000/-Rs.1,00,000/-Confirmed Total Rs.4,11,000/ -Rs.4,41,000/-Enhanced by Rs.30,000/-

¶13It is the case of the claimant in CMA No.170/2017 that, she is House Wife and she has sustained following injuries recorded in Ex.P13 – Wound Certificate issued by Meenakshi Mission Hospital and Research Centre: "(1) Laceration wound measuring about 8c.m. x 1c.m. Wound present over shoulder region, swelling (2) Tenderness over the right shoulder region (3) Cut laceration over middle finer right side (4) Shoulder movements painful (5) Fracture right ramus of mandible". The claimant has undergone GA open reduction and internal fixation was also done of fracture mandible. While awarding compensation for disability, the Tribunal based on the opinion of the Doctor – P.W.5, who assessed the disability and held that the petitioner has sustained patial permanent disability to the extent of 30% and the Tribunal has accepted the same and awarded a sum of Rs.2,000/- per percentage of injury is proper. It requires no interference and the same is hereby confirmed.

¶14The compensation awarded under other heads such as Extra Nourishment, the Tribunal has awarded a sum of Rs.5,000/-, this Court is of the view the same is very meagre and inclined to enhance to Rs.10,000/-. The Tribunal has awarded a sum of Rs.15,000/- under the head Pain and Sufferings and considering the injuries sustained, and petitioner being a lady and was homemaker, since she has sustained injuries on fracture of right shoulder, her day-to-day work has been affected hence, this Court is inclined to grant a sum of Rs.30,000/- under the head Pain and Sufferings. As far as the compensation awarded under other heads are concerned, the same are just and reasonable and the same are hereby confirmed.

¶15Thus, the compensation Awarded by the Tribunal under various heads in CMA No.170/2017 is hereby modified as follows: S. Description Amount awarded by Tribunal

(Rs) Amount awarded by this Court

(Rs) Enhanced/ Reduced / Granted / Confirmed

¶1Transportation Rs.5,000/- Rs.5,000/- Confirmed

¶2Extra Nourishment Rs.5,000/- Rs.10,000/- Enhanced

¶3Damages to clothes Rs.1,000/- Rs.1,000/- Confirmed

¶4Medical Expenses Rs.44,000/- Rs.44,000/- Confirmed

¶5Attender Charges Rs.5,000/- Rs.5,000/- Confirmed

¶6Loss of amenities of life and Mental agony Rs.20,000/- Rs.20,000/- Confirmed

¶7Pain and Suffering Rs.15,000/-Rs.30,000/-Enhanced 8 Disability Rs.60,000/-Rs.60,000/-Confirmed Total Rs.1,55,000/ -Rs.1,75,000/-Enhanced by Rs.20,000/-

¶16The claimant in CMA No.171/2017, was aged about 14 years and was a student at the time of accident, she has sustained following injuries recorded in Ex.P16 – Accident Register Copy issued by Meenakshi Mission Hospital and Research Centre and Ex.P17 – Wound Certificate and Ex.P18 – Discharge Summary issued by Malar Hospitals, Chennai: "Sutured wound left side of forehead, left eyelid and infra orbital region and undisplaced fracture left zygoma" and the claimant has undergone GA Exploration, removal of F.B. While awarding compensation for disability, the Tribunal based on the opinion of the Doctor – P.W.6, who assessed the disability, held that the petitioner has sustained patial permanent disability to the extent of 30%, and awarded a sum of Rs.2,000/- per percentage of injury, and this Court finds no reason for interference, and the same is hereby confirmed.

¶17The compensation awarded under other heads such as Extra Nourishment, the Tribunal has awarded a sum of Rs.5,000/- and this Court is if the view the same is very meagre and enhanced to Rs.10,000/-. The Tribunal has awarded a sum of Rs.20,000/- under the head Pain and Sufferings and considering the injuries sustained by her, this Court is inclined to grant a sum of Rs.40,000/- under the head Pain and Sufferings. As far as the compensation awarded under other heads are concerned, the same are just and reasonable and the same are hereby confirmed.

¶18Thus, the compensation Awarded by the Tribunal under various heads in CMA No.171/2017 is hereby modified as follows: S. Description Amount awarded by Tribunal

(Rs) Amount awarded by this Court

(Rs) Enhanced/ Reduced / Granted / Confirmed

¶1Transportation Rs.5,000/- Rs.5,000/- Confirmed

¶2Extra Nourishment Rs.5,000/- Rs.10,000/- Enhanced

¶3Damages to clothes Rs.1,000/- Rs.1,000/- Confirmed

¶4Medical Expenses Rs.31,000/- Rs.31,000/- Confirmed

¶5Mental Agony, Loss of amenities, Attender Charges, Loss of Education Rs.25,000/- Rs.25,000/- Confirmed

¶6Pain and Suffering Rs.20,000/- Rs.40,000/- Enhanced

¶7Disability Rs.60,000/-Rs.60,000/-Confirmed Total Rs.1,47,000/ -Rs.1,72,000/-Enhanced by Rs.25,000/-

¶19The claimant in CMA No.209/2017 was aged about 17 years and was a student at the time of accident, she has sustained following injuries recorded in Ex.P21 – Wound Certificate issued by Meenakshi Mission Hospital and Research Centre: "(1) Laceration over right upper eyelid, forehead measuring 12c.m length – bone depth with depressed fracture beneath (2) Laceration left eyebrow upto forehead, root of nose, bone depth 10c.m length (3) Irregular multiple laceration over left side nect (4) Laceration over left hand with complete rupture of extersor digtorum tendon of ring finger and partial rupture on middle finger (5) Severe head injury – right frontal and communited depressed fracture, fractures involving nasal bone, roof of orbit, planum shinoidale, pterytoid plate, anterior and posterolateral wall of right maxilla, haemorrhagic contusion right frontal bone and airpockets in brain" and the claimant has undergone surgery on would debridement and elevation of depressed fracture and closure of all laceration, left hand externsor, degitorum tendon complete rupture of right finger and partial teat of middle finger was also debrided and tendon suturing done by Orthopaedic Surgeon". While awarding compensation for disability, the Tribunal based on the opinion of the Doctor – P.W.6, who assessed the disability and fixed the disability at 70% partial permanent disability and awarded a sum of Rs.2,000/- per percentage of injury is proper, same requires no interference and the same is hereby confirmed.

¶20The compensation awarded under other heads such as Loss of Education and Loss of Amenities the Tribunal has awarded a sum of Rs.25,000/- and this Court is of the view the same is very meagre and this Court is inclined to enhance the same to the tune of Rs.40,000/-. The Tribunal has awarded a sum of Rs.25,000/- under the head Pain and Sufferings and considering the injuries sustained by her, this Court is inclined to grant a sum of Rs.40,000/- under the head Pain and Sufferings. As far as the compensation awarded under other heads are concerned, the same are just and reasonable and the same are hereby confirmed.

¶21Thus, the compensation Awarded by the Tribunal under various heads in CMA No.209/2017 is hereby modified as follows: S. Description Amount awarded by Tribunal

(Rs) Amount awarded by this Court

(Rs) Enhanced/ Reduced / Granted / Confirmed

¶1Transportation Rs.10,000/- Rs.10,000/- Confirmed

¶2Extra Nourishment Rs.10,000/- Rs.10,000/- Confirmed

¶3Damages to clothes Rs.1,000/- Rs.1,000/- Confirmed

¶4Medical Expenses Rs.1,00,000/- Rs.1,00,000/- Confirmed

¶5Attender Charges Rs.10,000/- Rs.10,000/- Confirmed

¶6Mental agony, Loss of amenities of life and Loss of Education Rs.25,000/- Rs.40,000/- Enhanced

¶7Pain and Suffering Rs.25,000/-Rs.40,000/-Enhanced 8 Disability Rs.1,40,000/-Rs.1,40,000/-Confirmed 9 Loss of Earning Power Rs.1,00,000/-Rs.1,00,000/-Confirmed Total Rs.4,21,000/ Rs.4,51,000/-Enhanced by -Rs.30,000/-

¶22The Tribunal has also held that the petitioners are not entitled for interest for the default period from 30.01.2006 to 29.01.2007 and from

05.04.2007 to 05.07.2010 and this Court is incline to accept the same and the same is hereby confirmed and the claimants are not entitled for interest for the delay in filing this appeal.

¶23In the result,

(1) C.M.A.No.169/2017 is partly allowed and the compensation awarded by the Tribunal is at Rs.4,11,000/- is hereby enhanced to Rs.4,41,000/- [Rupees Four Lakhs and Forty One Thousand only] together with interest at the rate of 7.5% per annum from the date of filing of Claim Petition till the date of deposit, excluding the default period, if any.

(2) C.M.A.No.170/2017 is partly allowed and the compensation awarded by the Tribunal is at Rs.1,55,000/- is hereby enhanced to Rs.1,75,000/- [Rupees One Lakh and Seventy Five Thousand only] together with interest at the rate of 7.5% per annum from the date of filing of Claim Petition till the date of deposit, excluding the default period, if any.

(3) C.M.A.No.171/2017 is partly allowed and the compensation awarded by the Tribunal is at Rs.1,47,000/- is hereby enhanced to Rs.1,72,000/- [Rupees One Lakh and Seventy Two Thousand only] together with interest at the rate of 7.5% per annum from the date of filing of Claim Petition till the date of deposit, excluding the default period, if any.

(4) C.M.A.No.209/2017 is partly allowed and the compensation awarded by the Tribunal is at Rs.4,21,000/- is hereby enhanced to Rs.4,51,000/- [Rupees Four Lakhs and Fifty One Thousand only] together with interest at the rate of 7.5% per annum from the date of filing of Claim Petition till the date of deposit, excluding the default period, if any.

(5) 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.Nos.719, 720, 721 & 723 of 2002 respectively, on the file of the Motor Accident Claims Tribunal, II Small Causes Court, Chennai. On such deposit, the claimants are permitted to withdraw the award amount, now determined by this Court, along with proportionate interest and costs, less the amount, if any, already withdrawn. The Tribunal shall disburse the amount by directly giving credit to the Savings Bank Account of the claimants. Since this Court has enhanced the compensation, the appellants/claimants are 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.

21.07.2023 ssi Index:Yes/No Speaking Order:Yes/No To:

¶1The II Judge, Small Causes Court, Motor Accident Claims, Chennai.

¶2The Section Officer, V.R.Section, High Court, Chennai. C.M.A.oNos.169,o170,o171o&o209oofo2017 K.oRAJASEKAR,oJ. ssi C.M.A.oNos.169,o170,o171o&o209oofo2017

21.07.2023