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2021 DIGILAW 3434 (MAD)

T. Paul Dhas v. N. Stalin

2021-12-07

R.THARANI

body2021
JUDGMENT : (Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, to set aside the judgment and decreetal order made in M.C.O.P.No.64 of 2010 dated 29.02.2012 by the learned Motor Accident Claims Tribunal, (Special Court), Nagercoil.) 1. This Civil Miscellaneous Appeal has been filed against the award passed in M.C.O.P.No.64 of 2010 dated 29.02.2012, on the file of the Motor Accident Claims Tribunal/Special Judge, Nagercoil. 2. The appellant herein is the claimant and the respondents herein are the respondents in the claim petition. The appellant herein has filed a claim petition in M.C.O.P.No.64 of 2010, claiming compensation for the injuries sustained by him, in an accident that took place on 17.04.2010. The Tribunal has awarded a sum of Rs. 1,10,000/- (Rupees One Lakh and Ten Thousand only) as compensation. Against which, the appellant has preferred this appeal, for enhancement of compensation. 3. Brief substance of the claim petition in M.C.O.P.No.64 of 2010 is as follows: The petitioner was a mason earning Rs.8,750/- per month. On 17.04.2010, at about 9.30 p.m., when the petitioner was walking along the pathway to his house, a Tata car bearing registration No.TN-74-L-8367 was driven by its driver in a rash and negligent manner, dashed against the petitioner from behind and the petitioner sustained injuries and he took treatment as 'in patient' from 17.04.2010 till 06.05.2010 in the Government Hospital, Aasaripallam. Subsequently, he took treatment in Siva Private hospital as 'in patient' from 06.05.2010 till 11.05.2010. He took treatment as in patient for a total period of 20 days. Subsequently, he took treatment as 'out patient'. The petitioner is permanently disabled and he claimed a sum of Rs.5,00,000/- (Rupees Five Lakhs only) as compensation. 4. Brief substance of the counter filed by the third respondent therein is as follows: The manner of the accident has to be proved by the petitioner. The involvement of the vehicle and the accident was brought to the knowledge of the third respondent, only after the receipt of notice from the Court. The owner of the vehicle or the injured did not inform the accident. It was the petitioner, who crossed the road without observing the traffic and he invited the accident. The driver of the car drove the vehicle in a careful manner and he saved the petitioner by applying sudden brake, when the petitioner was crossing the road. The owner of the vehicle or the injured did not inform the accident. It was the petitioner, who crossed the road without observing the traffic and he invited the accident. The driver of the car drove the vehicle in a careful manner and he saved the petitioner by applying sudden brake, when the petitioner was crossing the road. The petitioner has to prove his age, income and profession. The claim is excessive. 5. The first and second respondents were set exparte. On the side of the claimant, three witnesses were examined and ten documents were marked. On the side of the respondents, no witness was examined and no document was marked. After trial, the Tribunal has awarded a sum of Rs.1,10,000/- (Rupees One Lakh and Ten Thousand only) as compensation to be paid by the respondents therein. Against which, the appellant has preferred this Civil Miscellaneous Appeal for enhancement of the award. 6. On the side of the appellant, it is stated that the Tribunal failed to adopt multiplier method to evaluate the disability. The Tribunal failed to consider that the appellant was a mason and he could not continue his work after the accident. Fixing Rs.1,500/- (Rupees One Thousand and Five Hundred only) per percentage of disability is erroneous. The Tribunal failed to consider the salary certificate to fix the loss of income. The compensation awarded under various heads is very low and it has to be enhanced. 7. On the side of the appellant, it is stated that the left hand and left leg of the appellant were fractured. The appellant was having three fractures. The disability was assessed as 30%. P.W.2 has assessed the disability and issued disability certificate, Ex.P10. Whereas the Tribunal has made an observation that the appellant was having only lacerated injuries. 8. On the side of the respondents, it is stated that in Ex.P5, wound certificate issued by the Government hospital, it was stated that all the injuries are only lacerated injuries. The Tribunal also observed the same in the judgment. The date of surgery was not mentioned in the wound certificate. 9. On the side of the appellant, it is stated that the wound certificate was marked as Ex.P5, discharge summary was marked as Ex.P9 and disability certificate was marked as Ex.P8. The Tribunal also observed the same in the judgment. The date of surgery was not mentioned in the wound certificate. 9. On the side of the appellant, it is stated that the wound certificate was marked as Ex.P5, discharge summary was marked as Ex.P9 and disability certificate was marked as Ex.P8. In the wound certificate, the injuries are mentioned only as lacerated injuries but final opinion was given as “the injuries are grievous in nature”. Only when there is a fracture, it will be mentioned in the wound certificate as grievous in nature. Hence, it is decided that the appellant sustained fracture. 10. It is seen that the appellant took treatment as 'in patient' for 26 days. The evidence of P.W.2 and Ex.P10 reveals that surgery was undergone by the appellant and screw was affixed on the left knee of the appellant. On the basis of Ex.P5, Ex.P9 and Ex.P10 and on the basis of the evidence of P.W.2, the Tribunal fixed the disability at 30%, which is reasonable. 11. On the side of the appellant, it is stated that the appellant being a mason due to the fracture on the left knee and left hand, he could not do his work again and hence, there is functional disability and multiplier method has to be adopted. In support of this contention, a judgment of the Hon'ble Supreme Court in the case of Erudhaya Priya v. State Express Transport Corporation Ltd., in Civil Appeal Nos. 2811 to 2812 of 2020 is cited, wherein it is stated as follows: “In terms of the judgment dated 20.10.2014, the MACT opined that the permanent disability of 31.1% would have to be considered and applied the multiplier method to calculate the loss of earning power. Since the appellant was 23 years of age, multiplier of 17 was applied on the monthly salary of the appellant as a software engineer and the compensation was worked out for loss of earning power to Rs.9,27,424/-.” 12. In the above cited case, the fracture was on the hip joint and the facts of the case is not similar to the facts of the present case. Hence, the above citations is not applicable to the present case. 13. In the above cited case, the fracture was on the hip joint and the facts of the case is not similar to the facts of the present case. Hence, the above citations is not applicable to the present case. 13. The learned counsel for the appellant would rely upon a judgment of this Court in the case of New India Assurance Company Limited v. Kuppan and other in C.M.A.No.3536 of 2011, wherein it is stated as follows: “Though the Tribunal adopted the multiplier at 16 instead of 15, the Tribunal failed to award any compensation under the head of loss of amenities and attenders charges. Therefore, the quantum of compensation does not find any interference.” 14. In the above mentioned case, the claimant undertook treatment as 'in patient' for a period of eight months. But the disability was fixed as 31%, which is for the whole body. The facts of the case is not similar to the facts of the present case. The case cited above is not applicable to the present case. 15. The learned counsel for the appellant would rely upon a judgment of this Court in the case of Iffco Tokyo General Insurance Company Limited v. J.Jeyakumar and others in C.M.A.(MD)No.1109 of 2013, wherein it is stated as follows: “In the above circumstances, though there is only 30% disability the same can be considered as functional disability. The claimant has not filed any appeal for enhancement of the compensation. The compensation amount awarded by the Tribunal under various heads is very reasonable.” In the above cited case, the disability was fixed as 45% and the facts of the case is not similar to the facts of the present case. 16. The Tribunal has awarded a sum of Rs.1,500/- for each percentage of the disability. The accident is of the year 2010. Hence, the compensation for 30% disability is enhanced to Rs.90,000/- (Rupees Ninety Thousand only). 17. On the side of the appellant, it is stated that the appellant was a mason and was earning Rs.350/- per day. The Tribunal has fixed the income only as Rs. 200/- per day and fixed the monthly income at Rs.6,000/- (Rupees Six Thousand only) and the Tribunal has awarded a sum of Rs.1,800/- (Rupees One Thousand and Eight Hundred only) for a period of three months towards temporary loss of income. 18. The Tribunal has fixed the income only as Rs. 200/- per day and fixed the monthly income at Rs.6,000/- (Rupees Six Thousand only) and the Tribunal has awarded a sum of Rs.1,800/- (Rupees One Thousand and Eight Hundred only) for a period of three months towards temporary loss of income. 18. On the side of the respondents, it is stated that the appellant was not a mason. The complaint was given by the wife of the appellant, wherein the appellant was not mentioned as a mason. He was mentioned as a coolie and only to get higher compensation, the word 'mason' was subsequently used. The salary certificate was marked as Ex.P7. P.W.3 gave evidence in support of Ex.P7. There is no rebuttal evidence on the side of the respondents. Hence, it is decided that the appellant was a mason at the time of accident and the income was fixed as Rs.7,500/- per month. For the period of treatment and for the period of rehabilitation, the appellant is entitled to a sum of Rs.45,000/- (Rupees Forty Five Thousand only). The award of compensation for medical expenses (Rs.500/-), transport expenses (Rs.2,000/-), additional nourishment (Rs.5,000/-), clothing and articles (Rs.500/-), pain and suffering (Rs.30,000/-), future prospects of life (Rs.10,000/-) are all reasonable. The appellant took treatment as 'in patient' for 26 days and hence, a sum of Rs.17,000/- (Rupees Seventeen Thousand and Five Hundred only) is awarded towards medical expenses. In total, a sum of Rs.2,00,000/- (Rupees Two Lakhs only) is awarded as compensation. 19. Hence, it is decided that the appellant is entitled to a sum of Rs. 2,00,000/- (Rupees Two Lakhs only) as compensation with interest at the rate of 7.5% from the date of the claim petition till the date of realization. 20. The third respondents/ Insurance Company is directed to deposit Rs.2,00,000/- (Rupees Two Lakhs only) with 7.5% interest from date of the claim petition till the date of realization with cost and the amount has to be deposited within a period of 8 weeks from the date of receipt of copy of this order. On such deposit, the appellant is permitted to withdraw the award amount with interest after deducting any amount received by him earlier. The claimant is not entitled for interest for the default period, if there is any. The appellant is directed to pay extra Court fee, if any. On such deposit, the appellant is permitted to withdraw the award amount with interest after deducting any amount received by him earlier. The claimant is not entitled for interest for the default period, if there is any. The appellant is directed to pay extra Court fee, if any. In the result, this Civil Miscellaneous Appeal is partly allowed. No Costs.