CMA.No.1204 of 2009 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.09.2019 CORAM: THE HONOURABLE MRS. JUSTICE R. HEMALATHA CMA.No.1204 of 2009 Raju @ Rajan ...Appellant .Vs. 1.Tmt.N.Varalakshmi 2.The Oriental Insurance Co. Ltd., Branch Office, No.68, Vallal Pachayappan Street, Kancheepuram 3.T.Sumathi 4. The New India Assurance Co. Ltd., Chennai. ... Respondents PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the decree and Judgment dated 24.11.2008 passed in MCOP.No.183 of 2006 on the file of the Motor Accidents Claims Tribunal / Chief Judicial Magistrate, Perambalur. For Appellant : Mr.V.Anand For Respondents : No appearance 1/8 http://www.judis.nic.in CMA.No.1204 of 2009 JUDGMENT The appellant is the claimant in MCOP.No.183 of 2006 on the file of the Motor Accident Claims Tribunal / Chief Judicial Magistrate, Perambalur. He filed the claim petition under Sections 163(A) and 166 of the Motor Vehicles Act, 1988 seeking compensation of Rs.5,00,000/- for the injuries sustained by him in a road accident that took place on 18.07.2005. 2. The case of the claimant is that on 18.07.2005, he was travelling as a load man in a lorry bearing Registration No. TN 09 AH 7710 from Coimbatore to Chennai. When the lorry was nearing Vikravandi, another speeding lorry bearing Registration No. TN 21 M 1332 belonging to the first respondent came on the opposite direction and hit the lorry in which the claimant was travelling, as a result of which, he sustained injuries all over his body. He was immediately rushed to the Government Hospital at Villupuram and thereafter, he was referred to Madras Medical College Hospital, Chennai. He was treated as an inpatient for two months. The further contention of the claimant is that the accident took place due to the rash and negligent driving of the driver of the lorry bearing Registration No. TN 21 M 1332 belonging to the first respondent and that since the said lorry was insured with the second respondent, both of them are jointly and severally liable to pay compensation 2/8 http://www.judis.nic.in CMA.No.1204 of 2009 to him. He also impleaded the owner and the insurer of the lorry in which he travelled, as respondents 3 and 4 in the claim petition. 3. The first and third respondents remained absent before the Tribunal and therefore, they were set ex-parte. The learned Chief Judicial Magistrate/ Motor Accidents Claims Tribunal after analysing the evidence on record, awarded a compensation of Rs.93,000/- together with interest at the rate of 7.5% per annum. Not satisfied with the quantum of compensation awarded by the Tribunal, the claimant has filed the present appeal under Section 173 of the Motor Vehicles Act, 1988. 4. Mr.V.Anand, learned counsel appearing for the appellant / claimant contended that though Dr.Saravanan (PW2) had assessed the partial permanent disability as 58%, the Tribunal has awarded only a sum of Rs.58,000/- towards disability. He would further contend that no amounts were awarded towards "transportation", "extra nourishment", "attender's charges", "loss of amenities" and "loss of income". He therefore prayed for enhancement of compensation. 5. No appearance on behalf of the respondents. 3/8 http://www.judis.nic.in CMA.No.1204 of 2009 6. A perusal of the records shows that Dr.Saravanan (PW2) had assessed the partial permanent disability of the claimant as 58%. It is pertinent to point out that Dr.Saravanan (PW2) is not the Doctor who gave treatment to the claimant. A copy of the Accident Register (Ex.P2) shows that the claimant sustained the following injuries: "1.Fracture of left humerus 2.Fracture of RB near left wrist 3.Abrasion forehead 2x1 cm 4.Abrasion right knee 2x2 cm" The discharge summary (Ex.P3) issued by the Government General Hospital, Chennai shows that the claimant was admitted on 18.07.2005 and discharged on 18.09.2005 The Tribunal accepted the percentage of disability assessed by Dr.Saravanan (PW2) by observing that the discharge summary (Ex.P3) and the evidence of Dr.Saravanan (PW2) clearly shows that the claimant had sustained a partial permanent disability of 58%. 7. The learned counsel appearing for the claimant also contended that an operation was performed on the left hand of the claimant and screws were also fixed and in the facts and circumstances of the case, the assessment made by Dr.Saravanan (PW2) towards partial permanent disability is perfectly 4/8 http://www.judis.nic.in CMA.No.1204 of 2009 in order. However, for a fracture of left hand, the percentage of partial permanent disability issued by the doctor seems to be on the higher side and therefore, it is reduced to 30% and since there is no functional disability, adopting multiplier method is not warranted as far as the present case is concerned. Therefore, a sum of Rs.2,000/- per percentage of disability is awarded for the "loss of earning capacity" which would come to Rs.60,000/-. Since the accident took place in the year 2005, the monthly income of the appellant / claimant is fixed as Rs.3,000/-. As the appellant was working as a load man, he would not have been in a position to attend to his work atleast for six months and therefore a sum of Rs.18,000/- (Rs.3,000/- x 6 months) is awarded towards "loss of income". The award passed by this court under various heads is extracted hereunder: S.No. Head Amount granted 1. Loss of earning capacity Rs.60,000/- 2. Pain and sufferings Rs.14,000/- 3. Transportation Rs.5,000/- 4. Extra nourishment Rs.5,000/- 5. Loss of amenities Rs.5,000/- 6. Attender's charges Rs.2,000/- 7. Damage to clothes Rs.1,000/- 8. Loss of income Rs.18,000/- Total Rs.1,10,000/- 5/8 http://www.judis.nic.in CMA.No.1204 of 2009 8. Thus, the compensation awarded by the Tribunal is enhanced from Rs.93,000/- to Rs.1,10,000/- which would carry interest at the rate of 7.5% per annum. 9. The Tribunal has clearly held that the lorry bearing Registration No. TN 21 M 1332 was responsible for the accident and therefore directed the first and second respondents to pay the compensation amount jointly and severally to the claimant. The claim petition as regards the third and fourth respondents were dismissed by the Tribunal. It is pertinent to point out that no appeal has been filed by the second respondent / Oriental Insurance Company Limited against the orders passed by the Tribunal. The records also show that the driver of the lorry bearing Registration No. TN 21 M 1332 was at fault and therefore, the second respondent / Oriental Insurance Company Limited is liable to pay compensation to the claimant. 10. In the result, (i) The Civil Miscellaneous Appeal is partly allowed. No costs. (ii) The compensation awarded by the Tribunal is enhanced from Rs.93,000/- to Rs.1,10,000/-. 6/8 http://www.judis.nic.in CMA.No.1204 of 2009 (iii) The appellant / claimant is directed to pay the court fee for the enhanced compensation amount, if any, and the Registry is directed to draft the decree only after the receipt of Court fee. (iv) The second respondent / Oriental Insurance Company Limited is directed to deposit the enhanced compensation amount i.e., Rs.1,10,000/- (less the amount already deposited) together with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit to the credit of MCOP.No.183 of 2006 on the file of the Motor Accident Claims Tribunal / Chief Judicial Magistrate, Perambalur within a period of four weeks from the date of receipt of a copy of this order. (v) On such deposit being made, the appellant / claimant is at liberty to withdraw the same after following due process of law. 13.09.2019 mbi Index : Yes/No Speaking / Non-speaking order To The Motor Accidents Claims Tribunal, The Chief Judicial Magistrate, Perambalur. 7/8 http://www.judis.nic.in CMA.No.1204 of 2009 R. HEMALATHA, J. mbi CMA.No.1204 of 2009 13.09.2019 8/8 http://www.judis.nic.in