Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 850 (MAD)

Kamatchi v. Arunachalam Pillai

2015-02-11

D.HARIPARANTHAMAN

body2015
Judgment :- 1. The appellant is the claimant in M.C.O.P.No.198 of 2010 on the file of Motor Accident Claims Tribunal, Chief Judicial Magistrate, Dindigul. He claimed compensation for a sum of Rs.3,00,000/- for the injuries sustained by him in a road accident that happened on 27.08.2010 at about 6.00 a.m. 2. The claimant is a milk vendor by profession. On the date of accident, he travelled in his TVS XL Super bearing Registration No.TN 57 F 0400 with 200 litres of milk in two cans in his pillion. While so, the lorry bearing Registration No.TN 28 Z 0699 belonging to the first respondent and insured with the second respondent insurance company dashed against the two wheeler, due to the rash and negligent driving of the lorry driver. The claimant was thrown out of vehicle and he sustained grievous injury with fracture on his right thigh and right knee and multiple injuries all over the body. 3. The claimant was admitted in JCB Hospitals, Dindigul on 27.08.2010 and surgery was conducted on the right leg and rods were inserted and was discharged on 03.09.2010. Later, he was again admitted in the Hospital for the removal of the rods. He was discharged from the hospital on 16.03.2011. Thus, the claimant was admitted as inpatient twice in the hospital and two surgeries were performed as stated above. 4. In the M.C.O.P. Proceedings, besides examining himself, the claimant also examined the doctor, who issued disability certificate that the claimant suffered 48% disability. The Tribunal took it as 35% and awarded a sum of Rs.94,000/- as compensation under various heads as follows: (i) Loss of earning for six months at Rs.3,000/- p.m. : Rs.18,000.00 (ii) For Transportation : Rs. 1,000.00 (iii) For Medical Treatment : Rs.25,000.00 (iv) For pain and suffering : Rs.10,000.00 (v) For disability 35X1000 : Rs.35,000.00 (vi) Damage of Milk and milk cans : Rs. 5,000.00 Total : Rs.94,000.00 Thereafter, the aforesaid compensation was reduced by 25% towards contributory negligence on the part of the claimant and thus, a sum of Rs.23,500/- was deducted and finally, Rs.70,500/- was awarded as compensation. The Tribunal attributed contributory negligence on the part of the claimant solely on the reason that the claimant did not possess license to ride the two wheeler. There is no other reason given by the Tribunal for attributing contributory negligence on the part of the claimant. 5. The Tribunal attributed contributory negligence on the part of the claimant solely on the reason that the claimant did not possess license to ride the two wheeler. There is no other reason given by the Tribunal for attributing contributory negligence on the part of the claimant. 5. The claimant has filed this appeal seeking to pay compensation for a sum of Rs.3,00,000/- including the compensation that was awarded by the Tribunal. The claimant also restricted his claim in this appeal only to Rs.1,29,500/- as enhanced compensation. 6. Heard both sides. 7. The learned counsel for the appellant has submitted that the Tribunal was not in correct in reducing the percentage of disability from 48% to 35%, though the doctor deposed that the claimant suffered 48% disability and produced disability certificate to that effect. 8. He has also brought to the notice the portion of the judgment of the Tribunal that dealt with the evidence of the doctor. According to him, there is no reason to reduce the disability of 35%, particularly, when the Tribunal chose not to adopt the multiplier method. 9. The learned counsel for the insurance company has virtually no answer in the aforesaid submission made by the learned counsel for the claimants. 10. In these circumstances, I am of the view that the Tribunal is not correct in reducing the disability certified by the doctor without any reasons. A reading of the evidence of doctor, I am of the view that the Tribunal ought not to have reduced the percentage of disability, particularly, when the Tribunal did not choose to adopt the multiplier method. Hence, I take the percentage of disability suffered by the claimant as 48%. 11. Further as rightly contended by the learned counsel for the claimant, the Tribunal is not correct in granting only R.1,000/- per percentage disability and the Tribunal ought to have given Rs.2,500/- as per the judgment of this Court in National Insurance Co. Ltd., V. G.Ramesh reported in 2013(2) TNMAC 583, wherein, this Court awarded Rs.3,500/- per percentage of disability. However, the learned counsel for the claimants has submitted that he would be satisfied if Rs.2,500/- is awarded. Hence, I am of the view that the claimant shall be given compensation of Rs.1,20,000/- (Rs.2,500 x 48%) for disability. 12. Ltd., V. G.Ramesh reported in 2013(2) TNMAC 583, wherein, this Court awarded Rs.3,500/- per percentage of disability. However, the learned counsel for the claimants has submitted that he would be satisfied if Rs.2,500/- is awarded. Hence, I am of the view that the claimant shall be given compensation of Rs.1,20,000/- (Rs.2,500 x 48%) for disability. 12. Likewise, the Tribunal is not correct in awarding only Rs.10,000/- towards pain and sufferings, particularly, when the claimant underwent surgery twice and for inpatient sufficiently in a longer period in the hospital. Hence, I am of the view that atleast Rs.30,000/- should be awarded towards pain and suffering. 13. Likewise, the Tribunal is not correct in awarding Rs.1,000/- for transportation and it should be atleast Rs.2,000/-. Hence, I am of the view that the claimant shall be entitled for modified compensation as follows: (i) Loss of earning for six months at Rs.3,000/- p.m. : Rs. 18,000.00 (ii) For Transportation : Rs. 2,000.00 (iii) For Medical Treatment : Rs. 25,000.00 (iv) For pain and suffering : Rs. 30,000.00 (v) For disability 48X2500 : Rs.1,20,000.00 (vi) Damage of Milk and milk cans : Rs. 5,000.00 Total : Rs.2,00,000.00 14. Further, as rightly contended by the learned counsel for the claimant that the Tribunal was not correct in deducting 25% from the compensation on the ground that the claimant also contributed to the accident. The only reason given by the Tribunal is that the claimant did not possess license. In this case, the Sub Inspector of Police, Thadicombu police station has registered a case in Cr.No.422 of 2010 only for the offences under Sections 279 and 337 of I.P.C. against the lorry driver. There is no other reason by the Tribunal for the contributory negligence on the part of the claimant. There is absolutely no evidence to suggest that the claimant contributed for the accident. Hence, there is no warrant to make deduction of 1/4th amount from the compensation on the ground of contributory negligence on the part of the claimant. Therefore, I am of the view that the claimant is entitled for compensation of RS.2,00,00/-. 15. The Tribunal has already awarded Rs.70,500/- as compensation. Now, this Court has enhanced the same to Rs.2,00,000/- and the balance compensation payable is Rs.1,29,500/-. Therefore, I am of the view that the claimant is entitled for compensation of RS.2,00,00/-. 15. The Tribunal has already awarded Rs.70,500/- as compensation. Now, this Court has enhanced the same to Rs.2,00,000/- and the balance compensation payable is Rs.1,29,500/-. The Insurance Company shall deposit the enhanced amount of compensation i.e. Rs.1,29,500/-, with interest at 7.5% per annum from the date of petition, within a period of six weeks from the date of receipt of a copy of this order. The claimants are permitted to withdraw the entire amount that would be deposited by the Insurance Company. 16. The appeal is disposed with the above terms. No costs.