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2018 DIGILAW 2534 (MAD)

B. Venkateshkumar v. P. Nagarajan

2018-08-14

V.M.VELUMANI

body2018
JUDGMENT : 1. This Civil Miscellaneous Appeal has been filed against the fair and decreetal order, dated 12.03.2010 made in MCOP.No.102 of 2008 on the file of Motor Accident Claims Tribunal Principal Sub-Court, Karur. 2. The appellant herein is the claimant. Not being satisfied with the Award passed by the Tribunal, the appellant/claimant has filed the present appeal. 3. The facts of the case are as follows:- (a) On 17.12.2007, at about 6.45 p.m., while the appellant/claimant was going in the Car bearing Regn. No.TN 38 Q 5693 from Karur to Kovai, the driver of the Lorry bearing Regn. No.TN 47 2399, belonging to the first respondent, drove the vehicle in a rash and negligent manner and dashed against the appellant's car and due to which, the claimant sustained injuries all over the body. Immediately, he was admitted in the Amaravathi Hospital, Karur and thereafter, on 31.12.2017, he was shifted to the KG Hospital, Coimbatore, for taking further treatment. The appellant/claimant claimed a sum of Rs.25,00,000/- as compensation before the Tribunal, for the injuries suffered by him due to rash and negligent driving by the Driver of the first respondent's vehicle. (b) The second respondent in his counter denied the allegations made by the appellant and stated that the accident was happened only due to the rash and negligent driving of the car and the injuries suffered by the claimant is only simple injuries and the said injuries have been cured. He further contended that the accident took place only due to the rash and negligent driving of the appellant and the quantum of compensation claimed is exorbitant and prayed for dismissal of the claim petition. (c) Before the Tribunal, the appellant examined himself as PW.1 and one Doctor Mrualidharn as PW.2 and marked 16 documents as Ex.P1 to EX.P16. On the side of respondents, no one was examined and no document was marked (d) The Tribunal considering the evidence of PW.1 and Ex.P1 - First Information Report, came to the conclusion that the accident took place, only due to the rash and negligent driving of the Driver of first respondent's vehicle and held that the respondents are liable to pay a sum of Rs.4,49,740/- as compensation together with interest at 7.5% per annum from the date of petition till the date of realisation, to the appellant/claimant. 4. 4. Against the said Judgment and Decree, the appellant/claimant has filed the present appeal for enhancement of compensation. 5. The only point for consideration in this appeal is whether the appellant is entitled to enhancement of compensation or not. 6. The learned counsel appearing for the appellant contended that two surgeries were conducted to the appellant and he lost his eye sight and he is unable to do his work and he could not continue his business of Polythene cover production and a total loss of income is Rs.15,000/- per month and hence, he prayed for enhancement of compensation to a sum of Rs.25,00,000/-. 7. The Tribunal considering the oral and documentary evidence let in by the appellant, came to the conclusion that the accident took place only due to the rash and negligent driving by the driver of the Lorry. Taking into consideration the evidence of Doctor PW.2 and documents filed by the appellant, awarded a sum of Rs.Rs.4,49,740/- as compensation. 8. The learned counsel appearing for the appellant contended that the Tribunal had erred in revising the disability from 61% as certified by Doctor to 50%, without any basis. The Tribunal did not properly consider the submission made by the appellant and had erroneously fixed the income of the deceased at Rs.8,000/- per month. The Tribunal ought to have adopted multiplier method while awarding compensation. The Tribunal taking into consideration of the age of the appellant ought to have given more compensation for loss of income. He further contended that the amount awarded by the Tribunal towards transportation and extra nourishment is very low. The Tribunal did not consider the fact that due to the accident entire nervous system of the appellant is affected and he is not able to do his normal work, as done by him before the accident. 9. The learned counsel appearing for the second respondent contended that injuries suffered by the appellant are only simple in nature and the same have been completely cured. He further contended that the appellant has not produced any document for permanent disability to show that he could not continue his business and there was total loss of income. The Tribunal had an opportunity of observing the appellant while deposing as PW.1 and rejected the contention of the appellant that he is permanently disabled and prayed for dismissal of this Civil Miscellaneous Appeal. 10. The Tribunal had an opportunity of observing the appellant while deposing as PW.1 and rejected the contention of the appellant that he is permanently disabled and prayed for dismissal of this Civil Miscellaneous Appeal. 10. I have heard the learned counsel appearing on either side and perused the materials available on record. 11. From the materials on record, it is seen that the appellant was examined as PW.1 and PW.2 - Dr. Muralidharan, Specialist in Neurology was examined as PW.2, who deposed with regard to injuries suffered by the appellant in the Head, Brain and also eye-sight of the appellant. PW.2 Doctor also deposed that due to the injuries in the nervous system, he lost the sense of smell. Considering all the injuries, PW.2 Doctor has certified that the appellant has suffered 61% of disability. The Tribunal reduced the same as 50% on the ground that PW.2 is not a specialist to give certificate with regard to the loss of eye sight. The said reason is not correct. The Neurologist can certify not only with regard to the injuries in brain but also to the loss of eyesight, due to the injuries to the nervous system. The second respondent has not let in any contra evidence except stating that PW.2 is not the Doctor who treated the appellant in the hospital and the percentage of the disability certified by PW.2 is on the higher side. 12. Considering the fact that a qualified Doctor has certified the percentage of disability of the appellant at 61%, the same is acceptable while granting compensation. The Tribunal reducing the permanent disability as 50% and granted compensation to the appellant at the rate of Rs.2,000/- per percentage and awarded a sum of Rs.1,00,000/- and said amount is very meagre. In view of the same, the conclusion of the Tribunal reducing the percentage of disability to 50% and awarding a sum of Rs.1,00,000/- is hereby set aside and the appellant is entitled to the compensation for 61% of disability at the rate of Rs.3,000/- per percentage of disability (Rs.3,000x 61 = Rs.1,83,000/-). Accordingly, a sum of Rs.1,83,000/- is hereby awarded towards permanent disability. 13. The contention of the appellant that the Tribunal has not considered the documents filed by the appellant with regard to fixing of monthly income at Rs.8,000/- per month is not correct and it is contrary to the evidence on record. Accordingly, a sum of Rs.1,83,000/- is hereby awarded towards permanent disability. 13. The contention of the appellant that the Tribunal has not considered the documents filed by the appellant with regard to fixing of monthly income at Rs.8,000/- per month is not correct and it is contrary to the evidence on record. The Tribunal considering the income tax returns filed by the appellant, fixed the monthly income at Rs.8,000/- per month and awarded a sum of Rs.40,000/- and the same is affirmed. The Tribunal ought to have awarded future loss of income is acceptable. The appellant is aged about 27 years at the time of accident and there is every possibility that he could have earned more income in future. In view of the same, a sum of Rs.50,000/- is hereby awarded towards loss of future income. 14. The Tribunal has not given any amount with regard to loss of amenities and hence, the appellant is entitled to a sum of Rs.25,000/- towards loss of amenities and the same is hereby awarded. Taking into consideration, the appellant was taking treatment for 14 days as in-patient from 18.12.2007 and 31.12.2007 and underwent two surgeries, no amount is awarded towards attendant charges and hence, a sum of Rs. 10,000/- is hereby awarded towards attendant charges. The Tribunal awarded only a sum of Rs.10,000/- towards transportation and extra nourishment and the said amount is very meagre. Since the appellant was in the hospital for 14 days and underwent two surgeries, the compensation for extra nourishment is enhanced to a sum of Rs.25,000/- and a sum of Rs.5,000/- is hereby awarded towards transportation. In all other aspects, the amount awarded by the Tribunal is hereby confirmed. Therefore, the award of the Tribunal is enhanced from Rs.4,40,740/- to Rs.6,28,740/- in the following manner:- S. No Description Amount awarded by Tribunal Amount awarded by this Court Award confirmed or enhanced or granted 1 Disability 1,00,000.00 1,83,000.00 Enhanced to Rs.83,000/- 2 Loss of Income 40,000.00 40,000.00 Confirmed 3 Attendant charges - 10,000.00 Granted Rs.10,000/- 4 Future loss of income - 50,000.00 Granted Rs.50,000/- 5 Loss of amenities - 25,000.00 Granted Rs.25,000/- 6. Transportation and Extra Nourishment charges 10,000.00 30,000.00 Enhanced to Rs.20,000/- 7 Medical expenses 2,65,740.00 2,65,740.00 confirmed 8. Pain and suffering 25,000.00 25,000.00 Confirmed Total 4,40,740.00 6,28,740.00 Enhanced by RS.1,88,000/- 15. The interest awarded by the Tribunal at the rate of 7.5% per annum remains un-altered. Transportation and Extra Nourishment charges 10,000.00 30,000.00 Enhanced to Rs.20,000/- 7 Medical expenses 2,65,740.00 2,65,740.00 confirmed 8. Pain and suffering 25,000.00 25,000.00 Confirmed Total 4,40,740.00 6,28,740.00 Enhanced by RS.1,88,000/- 15. The interest awarded by the Tribunal at the rate of 7.5% per annum remains un-altered. 16. The second respondent/Insurance Company is directed to deposit the said sum of Rs.6,28,740/- together with interest at 7.5% per annum from the date of petition till the date of deposit to credit of MCOP.No.102 of 2018, on the file of Motor Accident Claims Tribunal Principal/Sub-Court, Karur, after deducting the amount already deposited if any, within a period of eight weeks from the date of receipt of a copy of this Judgment and on such deposit being made, the appellant/claimant is permitted to withdraw the award amount with accrued interest and costs on filing proper application before the Tribunal. 17. In the result, this Civil Miscellaneous Appeal is partly allowed. No costs.