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2021 DIGILAW 478 (MAD)

Singaravelu S/o. Muthu Gounder v. Baskar Kanthe Rao Bukkar S/o. Kandar Rao Bukkar

2021-02-11

R.SUBBIAH, SATHI KUMAR SUKUMARA KURUP

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JUDGMENT : Sathi Kumar Sukumara Kurup, J. This Civil Miscellaneous Appeal has been filed against the Judgment and Decree dated 21.12.2012 made in M.C.O.P.No.701 of 2011 on the file of Motor Accident Claims Tribunal, Additional District Judge, Namakkal. 2. The claimant before the Tribunal, Namakkal had filed this appeal seeking enhancement of the compensation. 3. The case in brief is as follows: On 30.09.2010 at about 9.30 am, when the claimant was getting down from the tractor bearing Registration No. TN 28 AC 8544, which was parked on the left side road, at that time, the TATA lorry bearing Registration No.MH 15 BJ 7159 belonging to the first respondent and insured with the second respondent, driven by its driver in a rash and negligent manner without observing road traffic rules, hit the claimant resulting in the claimant sustaining grievous injuries and multiple fractures all over the body. Immediately, the claimant was admitted in the Civil Hospital, Surat and subsequently he was taken to Ganga Hospital, Coimbatore where he had spent 50 days and Rs.5,00,000/- towards medical and other expenses. His right leg was completely amputated above the knee. 4. Mr. C. Thangaraju, learned counsel appearing for the appellant submitted his arguments. As per his submissions, the appellant himself had adduced evidence as P.W.1 before the Tribunal, Namakkal. During the evidence, he had marked documents from Exs.P.1 to P.12. At the time of accident, the claimant was aged about 40 years. He was a heavy vehicle driver in RCS Transport, Namakkal. He earned more than Rs.20,000/-. He is the breadwinner of the family. Subsequent to the accident, he is unable to drive the heavy vehicle due to the amputation of the left leg above the knee. Therefore, he had produced the disability certificate under Ex.P.12 wherein it has been mentioned as 82% disability. He had marked Ex.P.5 as his medical bills and Ex.P.6 as driving licence regarding his tractor. He had marked Ex.P.7, his photograph regarding fracture and amputation and Ex.P.10 as Salary certificate. He had also examined the employer P.W.2 under whom he had served regarding proof of income. He had also examined the Doctor who had assessed his partial permanent disability, as P.W.3. He had marked Ex.P.7, his photograph regarding fracture and amputation and Ex.P.10 as Salary certificate. He had also examined the employer P.W.2 under whom he had served regarding proof of income. He had also examined the Doctor who had assessed his partial permanent disability, as P.W.3. After due enquiry, the Tribunal had failed to consider the partial permanent disability suffered by the claimant resulting in loss of his job as a heavy vehicle driver who was working on inter state and national permit lorry and had fixed notional income as Rs.6,000/- whereas evidence available by way of the employer who had deposed as P.W.2 is that the income of the claimant was Rs.10,000/- per month and Rs.400/- as batta per day. The Tribunal had fixed the notional income as Rs.6000/-. Therefore, the award passed is on the lower side. Aggrieved by the same, the appellant/claimant has filed this appeal seeking enhancement. 5. Mr. S. Arun Kumar, learned counsel appearing for the Insurance Company has submitted his arguments. As per his submissions, the accident took place in the year 2010. At that time, the salary as per P.W.2 was Rs.10,000/-. Therefore, this Court can consider Rs.10,000/- as salary and not more than that whereas the appellant claims Rs.20,000/- per month. Regarding all other heads there is no dispute. The only dispute by the claimant is with regard to the salary of Rs.20,000/- per month as it was not accepted by the Tribunal. The Insurance Company accepts that the claimant's salary may be fixed at Rs.10,000/- and appropriate orders may be passed. 6. Point for consideration Whether the appellant/claimant is entitled to enhancement of the award amount. 7. Perused the petition and counter in MCOP.No.701 2011, the award passed by the Motor Accident Claims Tribunal, Additional District Judge, Namakkal and the grounds of appeal filed by the claimant seeking enhancement. 8. Submissions of the learned counsel for the Insurance Company cannot be accepted as there is evidence from the employer as P.W.2 that Rs.400/- batta was paid to the driver for every trip per day and the salary was Rs.10,000/- for the driver who works on interstate and national permit lorry throughout India. Based on the case that if he drives from one state to another it may take 20 days or 30 days, the batta will given as Rs.400/- per day. Based on the case that if he drives from one state to another it may take 20 days or 30 days, the batta will given as Rs.400/- per day. If that is taken for 15 days instead of 20 or 30 days, it will be Rs.6000/- Therefore, this Court fixes the salary as Rs.16000/- per month. 9. The contention that the claimant before the Tribunal had not filed any proof for age cannot be accepted. As the claimant had furnished his driving licence as Ex.P.6 wherein date of birth is mandatory and heavy duty licence as well as transport licence were also furnished, proof of avocation Ex.P.6 was available before the Tribunal and the age proof was also available. But the Tribunal had failed to appreciate the same. As per the ratio laid down by the Hon'ble Supreme Court in Sarla Verma and others vs. Delhi Transport Corporation reported in (2009) 6 SCC 121 , and Ankur Kapoor Vs. Oriental Insurance Co. Ltd., reported in ( (2018) 1 SCC 136 ), Loss of income due to partial permanent disability is arrived at as follows: I Income fixed Rs.16,000/- Taking the multiplier as 14 for the age group 41 to 45 years 16000x12x14x85/100=22,84,800/- 10. As per the medical bills, the Tribunal had awarded a sum of Rs.1,90,000/- which is justified. Considering the nature of injuries and the claimant's right leg had been amputated above the knee, appropriate amount has to be given for pain and sufferings due to the injuries. As per the ratio laid down by the Hon'ble Supreme Court in Ankur kapoor Vs. Oriental Insurance Co. Ltd., reported in ( (2018) 1 SCC 136 ), the Tribunal awarded a sum of Rs.20800/- and the same is enhanced to Rs.2,00,000/-. 11. As per the ratio laid down by the Hon'ble Supreme Court in Ankur kapoor Vs. Oriental Insurance Co. Ltd., reported in ( (2018) 1 SCC 136 ). The non-pecuniary heads have to be considered leniently by the Tribunal. Here at an young age, he had suffered amputation and also his genital organs were affected. Therefore, this Court awards a sum of Rs.50,000/- towards loss of matrimonial life and awards a sum of Rs.1,00,000/- each under the head loss of amenities and loss of expectation of life. 12. The non-pecuniary heads have to be considered leniently by the Tribunal. Here at an young age, he had suffered amputation and also his genital organs were affected. Therefore, this Court awards a sum of Rs.50,000/- towards loss of matrimonial life and awards a sum of Rs.1,00,000/- each under the head loss of amenities and loss of expectation of life. 12. The appellant had taken treatment from Civil Hospital, Gujarat and thereafter, at Ganga Hospital, Coimbatore, where he had spent 50 days and he is also entitled to attendant charges. Therefore, this Court awarding a sum of Rs.1,00,000/- will not be excessive towards attendant charges. 13. Considering the nature of injuries sustained by the claimant, this Court awards a sum of Rs.1,00,000/- towards future medical expenses and Rs.70,000/- towards extra nourishment. 14. The break-up details of the amounts awarded under various heads are as follows: Sl. No. Head under which the compensation is awarded Amounts awarded by the Tribunal Amounts awarded by this Court 1. Loss of Income 9,79,200 22,84,800 2. Pain and Sufferings 20,800 2,00,000 3. Loss of Expectation of Life - 1,00,000 4. Attendant Charges - 1,00,000 5. Loss of Matrimonial Life - 50,000 6. Future Medical Expenses - 1,00,000 7. Medical Expenses 1,90,000 1,90,000 8. Loss of Amenities - 1,00,000 9. Extra Nourishment - 70,000 Total 11,90,000 31,94,800 Rounded off - 31,95,000 15. The Point for consideration is answered in favour of the appellant/claimant against the respondents/Insurance Company. In the result, this Civil Miscellaneous Petition is partly allowed. The second respondent/Insurance Company is directed to deposit the amount, which we have determined in this appeal, to the credit of M.C.O.P.No.701 of 2011, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Namakkal, with interest at the rate of 7.5% per annum from the date of Claim Petition till the date of deposit along with costs if any as awarded by the Tribunal, through RTGS or NEFT method as held by this Court in (The Oriental Insurance Company Limited, Kannur Vs. Rajesh and two others) 2016 (1) TN MAC 433, after adjusting the amount, if any, already deposited, within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant shall be entitled to withdraw the award with accrued interest. Rajesh and two others) 2016 (1) TN MAC 433, after adjusting the amount, if any, already deposited, within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant shall be entitled to withdraw the award with accrued interest. The appellant is directed to pay appropriate Court fees within a period of two months, failing which, he is not entitled to claim interest on the award amount. No costs.