C.M.A.No.2643 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on:02.03.2023

Delivered on: 09.03.2023

CORAM:

THE HONOURABLE MR.JUSTICE P.B.BALAJI

C.M.A.No.2643 of 2019

Pandian

... Appellant

Vs.

1.Srinivas Kesineni

(Since R1 remained ex-parte

before the Tribunal, his presence

may be dispensed with)

2.Oriental Insurance Co. Ltd

No.215, Prakasam Salai

Broadway,

Chennai-600 106

... Respondents

PRAYER: Appeal filed under Section 173 of the Motor Vehicles Act, 1988

to set aside the judgment and decree dated 24.01.2019, made in

M.A.C.T.O.P. No.3320 of 2016 on the file of the Motor Accident Claims

Tribunal,Special Sub Court No.1, Motor Accidents Claims Petitions, Small

Causes Court,Chennai .

For Appellant

: Mr.F.Terry Chellaraj

For Respondents

: Mr.M.J.Vijaya Raghavan for R2

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C.M.A.No.2643 of 2019

JUDGMENT

The claimant before the Motor Accident Claims Tribunal in

M.A.C.T.O.P. No.3320 of 2016 on the file of the Small Causes Court,

Chennai is the appellant in the present Civil Miscellaneous Appeal,

aggrieved by the award passed by the Tribunal, for a sum of Rs.1,04,500/- as

against the claim of Rs.15,00,000/- sought for in the claim petition. The 1^st

respondent is the owner of the bus involved in the accident and the 2^nd

respondent is the insurer of the 1^st respondent.

2. The appellant/claimant, on 01.01.2016, in the late evening at about

07.30 p.m travelling as a pillion rider in a motorcycle, near Arunachalam

Nagar, near Tindivanam to Vandavasi Road, met with an accident caused by

the rash and negligent driving of the bus by the 1^st respondent. The claimant

suffered multiple grievous injuries and in respect of which he sought for

compensation of Rs.15,00,000/-.

3. The 1^st respondent did not choose to appear before the Tribunal. The

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C.M.A.No.2643 of 2019

2^nd respondent/insurer filed a counter denying the various claims made by the

appellant/claimant and besides also stating that the claim was exaggerated

and unrealistic.

4. Before the Tribunal, Claimant examined himself as P.W.1 and a

Doctor by name Dr.K.J.Mathiazhagan was examined as P.W.2 and Exs.P.1 to

P.12 were marked. On the side of the respondents, especially on the side of

the 2^nd respondent no oral and documentary evidence was let in.

5. The Tribunal on perusing the materials available on record and

discussing the oral and documentary evidence, arrived at a sum of

Rs.1,04,500/- towards compensation to be paid for the injuries sustained by

the appellant. Aggrieved by this award, the claimant is before this Court by

way of the present Civil Miscellaneous Appeal.

6. Heard the learned counsel for the claimant/appellant as well as the

2^nd respondent/insurance company.

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C.M.A.No.2643 of 2019

7. Learned counsel for the appellant stated that the claimant was

working as a coolie and was aged about 30 years at the time of the accident

and he was earning about Rs.1,000/- per day and therefore the Tribunal erred

in fixing Rs.7,000/- as his monthly income. The counsel also drew the

attention of this Court to the nature of injuries suffered by the claimant,

treatment taken for the same and attacked the percentage of disability fixed

by the Tribunal at 10%. It is also argued by the counsel that the multiplier

method ought to have been adopted for the disability suffered by the

claimant/appellant. Learned counsel also agitated and argued the various

other grounds in the Civil Miscellaneous Appeal.

8. Per contra, the counsel for the insurance company/2^nd respondent

contended that in the absence of any proof of income, the Tribunal was not in

error in fixing the notional income at Rs.7,000/- and that multiplier method

cannot be adopted, since the claim was based only on injuries and not on any

permanent disability caused and prayed for conf