Madras High Court
National Insurance Company Limited vs Minor S.Murali on 29 July, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.07.2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.No.2656 of 2009 & M.P.No.1 of 2009 National Insurance Company Limited, No.81 D, Chetty Street, Thiruchengode Post and Taluk, Namakkal District. ... Appellant Vs. 1.Minor S.Murali, Rep. by his mother and Next friend Pachaamma, No.100 A, Bengali Street, Old PET, Krishnagiri Town and Taluk 2.P.V.Govindasamy ... Respondents PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the decree and judgment passed in M.A.C.T.O.P.No.818 of 2005, dated 07.01.2009, on the file of the Motor Vehicle Accidents Claims Tribunal, Chief Judicial Magistrate, Krishnaigiri. For Appellant : Mr.N.B.Surekha For Respondents : Mr.M.A.Gouthaman for R-1 R-2 (served) - - - J U D G M E N T
The appellant / second respondent has preferred the present appeal against the judgment and decree passed in M.A.C.T.O.P.No.818 of 2005, on the file of the Motor Vehicle Accidents Claims Tribunal, Chief Judicial Magistrate, Krishnaigiri.
2. The short facts of the case are as follows:-
The minor petitioner represented by his mother has filed the claim in M.C.O.P.No.818 of 2005, claiming compensation of a sum of Rs.3,00,000/- from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that on 29.12.2004, at about 08.30 a.m., when the petitioner was proceeding on his bicycle towards Pudupet Krishnagiri Town, on the extreme left of the road and when he was near the fish market near Vinayaga Medical shop, the first respondent's tractor and trailer bearing registration No.29 8479, coming behind the bicycle and driven in a rash and negligent manner dashed against the bicycle. As a result, the petitioner fell down and the front wheel of the tractor ran over the stomach of the petitioner. As a result, his abdomen was displaced upwards and he sustained fracture of bone in his hip. He was admitted at Krishnagiri Government Hospital, wherein first aid was given and subsequently admitted at St.Johns Hospital, Bangalore, wherein he received treatment as an inpatient and a surgical operation was also conducted. Prior to the accident, the petitioner was working as a two wheeler mechanic at Balaji Work Shop, Pudupet and earning Rs.2,000/- per month. Due to the disability sustained in the accident, he is not able to do his work as before. Hence, the petitioner has filed the claim against the first and second respondents, who are the owner and insurer of the tractor.
3. The second respondent, in his counter has submitted that the accident was caused only due to the negligence of the petitioner who was playing on the side of the road and as such, this respondent is not liable to pay any compensation. The averments in the claim regarding age, income and occupation of the petitioner, nature of injuries sustained and disability was not admitted. It was submitted that the driver of the tractor did not have a valid licecne to drive it at the time of accident. It was submitted that the claim was excessive.
4. The Motor Accidents Claims Tribunal had framed two issues for consideration in the case, viz., "(i) Was the accident caused by the rash and negligent driving by the driver of the first respondent's tractor?
(ii) Is the petitioner entitled to get compensation? If so, what is the quantum of compensation which the petitioner is entitled to get?"
5. On the petitioner's side, two witnesses were examined and eight documents were marked as Exs.P1 to P8, viz., Ex.P1-copy of F.I.R., Ex.P2-copy of wound certificate, Ex.P3-medical treatment issued at St.Johns Hospital, Bangalore, Ex.P4-medical receipts, Ex.P5-photos showing injuries sustained by petitioner, Ex.P6-copy of policy, Ex.P7-disability certificate and Ex.P8-X-rays. On the respondent's side, no witness, no documents.
6. P.W.1, the mother of the petitioner had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident and in support of her evidence, she had marked Exs.P1 to P6. The Tribunal, on scrutiny of Ex.P1 and evidence of P.W.1 and documentary exhibits and on observing that the respondents had not let in any evidence to rebut the claim of P.W.1 regarding manner of accident held that the accident had been caused by the rash and negligent driving of the driver of the first respondent's tractor.
7. On scrutiny of Exs.P2 and P3, it is seen that the petitioner had sustained lacerated injuries over his left chest and left stomach and also sustained lacerated injuries over his left cheek and left thigh and that three of the injuries are grievous in nature. P.W.2, Dr.Ashok Kumar had adduced evidence that he had examined the petitioner on 23.11.2008 and that on taking X-rays, he had observed that the petitioner had sustained fracture of bone in his pelvis and that a surgery had been conducted. He deposed that the wound sustained in this region had not healed and that the fractured bone had mal-united. He deposed that the petitioner experiences difficulty in sitting cross-legged and in squatting and also experiences difficulty in riding vehicles and certified that the petitioner had sustained 40% disability and in support of his evidence, he had marked Exs.P7 and P8.
8. The Tribunal, on scrutiny of oral and documentary evidence awarded a sum of Rs.70,000/- for disability; Rs.75,000/- for grievous injuries sustained by petitioner; Rs.10,000/- for pain and suffering; Rs.5,000/- for mental agony; Rs.5,000/- for nutrition; Rs.3,000/- for transport and Rs.42,169/- for medical expenses. In total, the Tribunal awarded a sum of Rs.2,10,169/- as compensation to the petitioner and directed the first and second respondents to jointly and severally pay the said sum together with interest at the rate of 7.5% per annum from the date of filing the claim till date of payment of compensation, with costs, within two months from the date of its order.
9. Aggrieved by the award passed by the Tribunal, the second respondent / National Insurance Company Limited, Namakkal has preferred the present appeal.
10. The learned counsel for the appellant has contended in his appeal that the Tribunal erred in relying only on the F.I.R. and accident register to come to the conclusion that the entire negligence on the driver of the tractor and failed to note that no eyewitnesses had been examined to prove the negligence. It was contended that the Tribunal failed to note that the driver of the first respondent's tractor did not have a valid driving licecne and hence, erred in fastening the liability on the insurance company alone. It was also contended that the Tribunal erred in awarding Rs.70,000/- for disability after having come to a conclusion that the wound had healed. It was contended that the Tribunal erred in awarding a sum of Rs.75,000/- for injuries after having awarded a sum of Rs.70,000/- for disability. It was contended that the award passed was excessive and hence, it was prayed to set-aside the award passed by the Tribunal.
11. The very competent counsel, Mr.M.A.Gouthaman for the claimant submits that the claimant had sustained multiple bone fracture injuries and he is aged about 17 years. The doctor had assessed the disability at 40%. The claimant had undergone a surgical operation. The fractured bone had been mal-united.
12. On considering the factual position of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence and liability. However, the quantum of compensation is slightly on the higher side. Hence, this Court reduces the compensation as follows:-
Rs.80,000/- towards disability; Rs.15,000/- towards pain and suffering; Rs.10,000/- towards transport; Rs.10,000/- for nutrition; Rs.10,000/- for attender charges; Rs.41,000/- for medical expenses; Rs.30,000/- towards loss of amenities and loss of comfort. In total, this Court awards a sum of Rs.1,96,000/- as compensation, as it is found to be appropriate in the instant case. As such, this Court scales down the compensation from Rs.2,10,169/- to Rs.1,96,000/-. The rate of interest fixed by the Tribunal is appropriate and the same is confirmed.
13. On 18.09.2009, this Court directed the appellant to deposit the initial compensation with interest, awarded by the Tribunal. Now, it is open to the claimant, to withdraw the entire modified compensation amount, with interest, as per this Court's findings, lying in the credit of M.A.C.T.O.P.No.818 of 2005, on the file of the Motor Vehicle Accidents Claims Tribunal, Chief Judicial Magistrate, Krishnaigiri, after filing a Memo, along with a copy of this order, subject to production of proof, the claimant attaining the age of a major. Likewise, the appellant / insurance company is permitted to withdraw the excess compensation amount, with proportionate interest, if any.
14. In the result, the above appeal is partly allowed. Consequently, the order and decree passed in M.A.C.T.O.P.No.818 of 2005, on the file of the Motor Vehicle Accidents Claims Tribunal, Chief Judicial Magistrate, Krishnaigiri, dated 07.01.2009, is modified. There is no order as to costs. Consequently, connected miscellaneous petition is closed.
29.07.2013
Index : Yes.
Internet : Yes.
r n s
To
The Chief Judicial Magistrate,
Motor Vehicle Accidents Claims Tribunal,
Krishnaigiri.
C.S.KARNAN, J.
r n s
C.M.A.No.2656 of 2009 &
M.P.No.1 of 2009
29.07.2013