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2018 DIGILAW 3030 (MAD)

ESSAKIMUTHU v. CORRESPONDENT, JOSE MATRICULATION SCHOOL

2018-09-18

V.M.VELUMANI

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JUDGMENT V.M. Velumani, J. The appellants are the claimants. They filed M.C.O.P Nos. 341 of 2006 and 342 of 2006 claiming a sum of Rs. 7,00,000/- each for the injuries sustained by them in the accident that occurred on 08.02.2006. 2. According to the appellants, on 08.02.2006, when the appellant in C.M.A.No.1466 of 2008 was riding a Hero Honda Motor Cycle bearing Registration No. TN-10-D-9968, in which, the appellant in C.M.A.No.1465 was travelling as a pillion rider, a Mahindra Van bearing Registration No. TN-72-F-2415 belonging to the first respondent insured with the second respondent came from East to West in a rash and negligent manner and tried to overtake another Van. At that time, the Mahindra Van entered into the wrong side and directly hit the motor cycle. Due to the said impact, the appellants sustained multiple fractures all over the body. A surgery was done to both the appellants and metal plates were implanted. They spent nearly Rs.2,00,000/- for medical expenses. Even though they discharged from the hospital, they could not do their normal work as they were doing before the accident and continued to take treatment as out-patient. The appellant in C.M.A.(MD) No.1465 of 2008 was working as Two wheeler Mechanic and the appellant in C.M.A(MD) No.1466 of 2008 was working as Catering Server in Railway. Both of them were earning a sum of Rs.4,000/- each per month. Hence, they claimed Rs.7,00,000/- as compensation under various heads. 3. The first respondent owner of the vehicle in the counter statement denied all the averments and contended that the amounts claimed are excessive and if any amount is awarded, the second respondent is liable to pay the compensation. 4. The second respondent Insurance Company filed a statement of objection and denied all the averments and contended that there is contributory negligence on the part of the appellants in riding the two wheeler and they invited the accident. The amounts claimed are excessive. 5. Before the Tribunal, the appellants examined themselves as P.W.1 and P.W.2 and examined Doctor Ramaguru as P.W.3 and marked 23 documents as Ex.P.1 to Ex.P.23 and the respondents neither examined witnesses nor marked documents to prove their case. 6. The amounts claimed are excessive. 5. Before the Tribunal, the appellants examined themselves as P.W.1 and P.W.2 and examined Doctor Ramaguru as P.W.3 and marked 23 documents as Ex.P.1 to Ex.P.23 and the respondents neither examined witnesses nor marked documents to prove their case. 6. The Tribunal, considering the oral and documentary evidence let in by the appellants, held that the accident occurred only due to rash and negligent driving of the first respondent and considering Ex.P.1 and Ex.P.2 and the nature of injuries, awarded a sum of Rs. 2,10,000/- each as compensation. 7. Not being satisfied with the said amounts, the claimants have come out with the present appeals. 8. The learned counsel appearing for the appellants contended that the Tribunal ought to have taken into consideration the period of treatment for determining compensation. The Tribunal ought to have granted Rs. 2,00,000/- under the head of marriage prospects. The Tribunal ought to have granted Rs. 10,20,000/- towards loss of income. If the Tribunal rightly calculates Rs. 2,000/- for 1% of disability, Rs. 1,40,000/- ought to have been granted towards disability at 70%. Since the appellants suffered grievous injury, the Tribunal ought to have separately awarded amount towards disability and loss of income. The amounts granted towards pain and suffering and towards Transportation are very meagre. The Tribunal has not granted any amount for attendant charges. 9. The first respondent though entered appearance through Advocate, there is no representation when the matter is taken up for hearing. 10. The learned counsel appearing for the second respondent Insurance Company contended that the Tribunal, considering the evidence on record, awarded a total sum of Rs. 2,10,000/- each, which is just and proper compensation and prayed for dismissal of the appeals. 11. Heard the learned counsel appearing for the appellants and the second respondent/Insurance Company and perused the materials on record. 12. As far as the claimant in M.C.O.P.No.341 of 2006 (C.M.A.(MD) No.1465 of 2006) is concerned, the Tribunal has granted a sum of Rs. 1,40,000/- for 70% of permanent disability and for loss of income. The said amount is modified by this Court. The appellant is entitled to a sum of Rs. 1,40,000/-(70% X 2000) for 70% of disability alone. 12. As far as the claimant in M.C.O.P.No.341 of 2006 (C.M.A.(MD) No.1465 of 2006) is concerned, the Tribunal has granted a sum of Rs. 1,40,000/- for 70% of permanent disability and for loss of income. The said amount is modified by this Court. The appellant is entitled to a sum of Rs. 1,40,000/-(70% X 2000) for 70% of disability alone. The appellant was admitted in Tirunelveli Medical College Hospital, Palayamkottai, as in- patient from 08.02.2006 to 18.09.2006, from 27.10.2006 to 6.12.2006, from 1.5.2007 to 7.5.2007, from 14.08.2007 to 25.09.2007 and thereafter as outpatient, he was taking treatment. In view of the same, the appellant would have lost his income atleast for a period of 17 months and therefore, he is entitled to a sum of Rs. 68,000/- (17 X 4000) towards loss of income during the treatment period. 13. As far as the claimant in M.C.O.P.No.342 of 2006 (C.M.A.(MD) No.1466 of 2006 is concerned, he was doing Catering service in Railway and earning a sum of Rs. 4000/-. Considering the same, the notional income of the appellant is fixed at Rs. 4000/-. The appellant admitted in Tirunelveli Medical College Hospital at Palayamkottai as in-patient from 8.2.2006 to 3.5.2006, from 19.5.2006 to 16.6.2006, from 3.10.2006 to 20.10.2006, from 3.12.2006 to 18.12.2006 and from 5.6.2007 to 6.7.2007 and thereafter, as out-patient, he was taking treatment. In view of the same, the appellant would have lost his income atleast for a period of 16 months and therefore, he is entitled to a sum of Rs. 64,000/- (16 X 4000) towards loss of income during the treatment period. 14. The Tribunal has granted Rs.20,000/- each to the appellants towards pain and suffering and the same is enhanced to Rs.50,000/- each. The Tribunal has not granted any amount towards attendant charges. Both the appellants are entitled to Rs.20,000/- towards attendant charges. The Tribunal has granted Rs.25,000/- each towards the loss of marriage prospects. Considering the fact that the appellant/claimant in both the cases have lost their marriage prospects due to the injuries, the same is enhanced to Rs.50,000/- each. A sum of Rs.10,000/- granted towards Transportation and extra nourishment is also confirmed. The amount given for medical bills is confirmed. The Tribunal has not granted any amount towards loss of amenities and the appellants are entitled to Rs.25,000/- each for loss of amenities. 15. A sum of Rs.10,000/- granted towards Transportation and extra nourishment is also confirmed. The amount given for medical bills is confirmed. The Tribunal has not granted any amount towards loss of amenities and the appellants are entitled to Rs.25,000/- each for loss of amenities. 15. Accordingly, the appellant in C.M.A.(MD) No.1465 of 2008 is entitled to get the following compensation : Sl. No. Heads Amount awarded by Tribunal (Rs.) Amount awarded by this Court (Rs.) Award confirmed/ enhanced/granted/set aside 1. Loss of income & Disability 1,40,000 - set aside 2. Disability - 1,40,000 Granted 3. Loss of income during the treatment period - 68,000 Granted 4. Pain and suffering 20,000 50,000 Enhanced 5. Attendant Charges - 20,000 Granted 6. Medical expenses 15,000 15,000 Confirmed 7. Loss of marriage prospects 25,000 50,000 Enhanced 8. Transportation and extra nourishment 10,000 10,000 Confirmed 9. Loss of amenities - 25,000 Granted Total 2,10,000 3,78,000 Enhanced by Rs. 1,68,000/- 16. Accordingly, the appellant in C.M.A.(MD) No.1466 of 2008 is entitled to get the following compensation : Sl. No. Heads Amount awarded by Tribunal (Rs.) Amount awarded by this Court (Rs.) Award confirmed/ enhanced/granted/ set aside 1. Loss of income & Disability 1,40,000 - set aside 2. Disability - 1,40,000 Granted 3. Loss of income during the treatment period - 68,000 Granted 4. Pain and suffering 20,000 50,000 Enhanced 5. Attendant Charges - 20,000 Granted 6. Medical expenses 15,000 15,000 Confirmed 7. Loss of marriage prospects 25,000 50,000 Enhanced 8. Transportation and extra nourishment 10,000 10,000 Confirmed 9. Loss of amenities - 25,000 Granted Total 2,10,000 3,78,000 Enhanced by Rs. 1,64,000/- 17. With the above modification, the Civil Miscellaneous Appeals are partly allowed. No costs. 18. The second respondent/Insurance Company is directed to deposit the compensation amounts now determined by this Court with interest and costs to the credit of M.C.O.P. Nos. 341 and 342 of 2006 on the file of the Motor Accidents Claims Tribunal(Additional District Judge/FTC No.II), Tirunelveli, less the amount, if any already deposited, within a period of four weeks from the date of receipt of a copy of this judgment. On such deposit, the appellants/ claimants are permitted to withdraw the amount by making necessary application before the Tribunal.