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2021 DIGILAW 2240 (MAD)

C. Thomas v. S. Purushothaman

2021-09-02

ABDUL QUDDHOSE

body2021
JUDGMENT : ABDUL QUDDHOSE, J. Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act against the Judgment and Decree dated 14.10.2009 and made in MCOP No. 108 of 2007 on the file of the Motor Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track Court-II, Poonamallee. 1. This civil miscellaneous appeal has been filed by the claimant seeking enhancement of compensation under the impugned award dated 14.10.2009 passed by the Motor Accident Claim Tribunal (Additional District and Sessions Judge, Fast Track Court-II, Poonamallee) in MCOP No. 108 of 2007. 2. The Appellant has challenged the impugned award on the following grounds: (a) The Tribunal has erroneously exonerated the liability of the second respondent Insurance Company. (b) The quantum of compensation awarded by the Tribunal is inadequate and is not a just compensation. 3. The details of the compensation awarded by the Tribunal to the Appellant/claimant are as follows: Heads Award Amount Loss of earning during the treatment period Rs. 4,000/- Medical expenses Rs. 10,000/- Transport to hospital Rs. 1,000/- Extra nourishment Rs. 2,000/- Pain and suffering and mental agony Rs. 10,000/- Loss of future amenities for his disability Rs. 30,000/- Total Rs. 57,000/- 4. Admittedly as seen from the evidence available on record and as per the findings rendered by the Tribunal, it is clear that the driver of the insured vehicle was possessing LMV driving licence, though he was not having a badge to drive the insured vehicle which is a tourist vehicle. It is well settled by the Hon’ble Supreme Court with regard to the aforementioned issue, in Mukund Dewangan’s Case AIR 2017 SC 3665. In the said decision, the Hon’ble Supreme Court has held that it is not required to possess a badge for the purpose of claiming compensation and it is sufficient, if the driver of the insured vehicle was possessing a valid LMV license. Since the law is well settled, the Tribunal has erroneously exonerated the liability of the second respondent Insurance Company under the impugned Award, despite the fact that the weight of the insured vehicle is much below the norms fixed by the Hon’ble Supreme Court in Mukund Dewangan’s Case referred to supra. By total non-application of mind to the settled law, the Tribunal has erroneously exonerated the liability of the second respondent Insurance company. By total non-application of mind to the settled law, the Tribunal has erroneously exonerated the liability of the second respondent Insurance company. Hence, the first contention of the Appellant/claimant has to be necessarily accepted by this Court and the second respondent insurance Company must be held liable to pay the claim of the Appellant/claimant. 5. Insofar as the second contention raised by the Appellant/claimant that the compensation awarded by the Tribunal is not a just compensation is concerned, the followed reasons are given for enhancement of compensation amount in favour of the Appellant/claimant: (a) The Appellant/claimant sustained injuries which includes fracture on his right leg. The Doctor has assessed his disability at 40%. However, the Tribunal without any basis has reduced the disability to 30%. No reasons have been given by the Tribunal for reduction of the disability to 30%, excepting for stating that the disability assessed by the Doctor is disproportionate to the injury of the Appellant/claimant. That cannot be a proper reason for reduction of the disability to 30%. Hence, this Court is of the considered view that the disability assessed by the Doctor at 40% will have to be accepted. Accordingly, this Court fixes the disability of the Appellant/claimant at 40% instead of 30% erroneously assessed by the Tribunal. The Tribunal has awarded the disability compensation of Rs. 30,000/- calculated at Rs. 1,000/- per percentage of disability for the 30% disability assessed by the Tribunal. Since the disability is enhanced to 40% by this Court, the disability compensation is enhanced to Rs. 40,000/- calculated at Rs. 1,000/- per percentage of disability for 40% disability from Rs. 30,000/- calculated at Rs. 1,000/- per percentage of disability for 30% disability awarded by the Tribunal. (b) Insofar as the compensation awarded by the Tribunal under various other heads are concerned, this Court deems it fit to enhance the compensation towards transportation from Rs. 1,000/- to Rs. 2,000/-. (c) The Tribunal has also not awarded any compensation towards attender charges and loss of amenities to the Appellant/claimant which he is legally entitled to as per the settled law. After giving due consideration to the nature of injuries sustained by the Appellant/claimant and the year of the accident, this Court awards a compensation of Rs. 5,000/- each towards attender charges and loss of amenities. After giving due consideration to the nature of injuries sustained by the Appellant/claimant and the year of the accident, this Court awards a compensation of Rs. 5,000/- each towards attender charges and loss of amenities. (d) Insofar as the compensation awarded by the Tribunal towards loss of earnings during the period of treatment, medical expenses, extra nourishment, pain and suffering and mental agony are concerned, this Court is of the considered view that the same cannot be considered to be inadequate as alleged by the Appellant/claimant and therefore, the same is confirmed by this Court. 6. For the foregoing reasons, the compensation awarded by the Tribunal is enhanced to Rs. 77,000/- from Rs. 57,000/- in the following manner: Heads Amount awarded by the Tribunal Amount awarded by this Court Loss of earning during the treatment period Rs. 4,000/- Rs. 4,000/- Medical expenses Rs. 10,000/- Rs. 10,000/- Transport to hospital Rs. 1,000/- Rs. 1,000/- Extra nourishment Rs. 2,000/- Rs. 2,000/- Pain and suffering and mental agony Rs. 10,000/- Rs. 10,000/- Loss of future amenities for his disability Rs. 30,000/- Rs. 40,000/- Loss of amenities -- Rs. 5,000/- Attender charges -- Rs. 5,000/- Total Rs. 57,000/- Rs. 77,000/- 7. In the result, this civil miscellaneous appeal is partly allowed by enhancing the award amount from Rs. 57,000/- to Rs. 77,000/-. The Second respondent Insurance company is directed to deposit the enhanced award amount after deducting the amount already deposited if any together with interest from the date of claim till the date of deposit, excluding the period of delay in filing and numbering of this appeal and cost to the credit of MCOP No. 108 of 2007 within a period of four weeks from the date of receipt of a copy of this Judgment. On such deposit being made, the Tribunal shall transfer the amount lying to the credit of MCOP No. 108 of 2007 to the bank account of the Appellant/claimant through RTGS within a period of one week thereafter. No costs.