Madras High Court
M/S.New India Assurance Co. Ltd vs S.Vasantha Kumar (Minor) on 26 November, 2018
Equivalent citations: AIRONLINE 2018 MAD 2144
Author: V.M.Velumani
Bench: V.M.Velumani
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.11.2018
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
CMA.Nos.409 to 417 of 2015
M/s.New India Assurance Co. Ltd.,
No.45, Moore Street, 5th Floor,
Chennai – 600 001. ... Appellant in all C.M.As.
Vs.
S.Vasantha Kumar (Minor)
Rep.by his M & N.F.S.Shanthi ... 1st Respondent in CMA.No.409/2015
Tmt.B.Kuppanmmal ... 1st Respondent in CMA.No.410/2015
V.Boopathy ... 1stRespondent in CMA.No.411/2015
V.Dhanasekar ... 1st Respondent in CMA.No.412/2015
Tmt.Nirmala ... 1st Respondent in CMA.No.413/2015
Tmt.S.Santhi ... 1st Respondent in CMA.No.414/2015
Tmt.D.Jaya ... 1st Respondent in CMA No.415/2015
B.Santhosh Kumar ... 1st Respondent in CMA.No.416/2015
D.Lakshmi Priya ... 1st Respondent in CMA No.417/2015
Mr.K.Vishnu Kumar ... 2nd Respondent in all C.M.A.s
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Common Prayer: Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, 1988 against the common judgment and
decree dated 05.11.2014 made in M.C.O.P.Nos.6084, 6088, 6089,
6090, 6091, 6095, 6096, 6097 and 6098 of 2012 on the file of the IV
Judge, Small Causes Court, (Motor Accidents Claims Tribunal), Chennai.
For Appellant : Mr.J.Chandran
(in all C.M.As.)
For R-1 : Mr.A.A.Venkatesan
(in all C.M.As.)
For R-2 : Not ready in notice
COMMON JUDGMENT
These Civil Miscellaneous Appeals have been filed against the common award and decree dated 16.02.2017 made in M.C.O.P.Nos.6084, 6088, 6089, 6090, 6091, 6095, 6096, 6097 and 6098 of 2012 on the file of the IV Judge, Small Causes Court, (Motor Accidents Claims Tribunal), Chennai.
2. Since all the appeals are arising out of the same accident, they are disposed of by this common judgment.
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3. The parties are referred to as per their rank in the respective claim petitions for the sake of convenience.
4. All the appeals are filed by the second respondent / Insurance company challenging the common award of the Tribunal made in M.C.O.P.Nos.6084, 6088, 6089, 6090, 6091, 6095, 6096, 6097 and 6098 of 2012 on the file of the IV Judge, Small Causes Court, (Motor Accidents Claims Tribunal), Chennai.
5. The claimants in all the appeals filed the claim petitions, claiming various amounts as compensation for the injuries sustained by them in the accident that took place on 18.08.2012.
6. The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to the rash and negligent driving by the driver of the bus belonging to the second respondent and directed the appellant/insurance company to pay the compensation to the first respondent in all the appeals and awarded various amounts as compensation.
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7. Though the second respondent / insurance company filed the appeal challenging the liability as well as the quantum of compensation awarded by the Tribunal, when the appeals are taken up for hearing, the learned counsel for the second respondent/insurance company contended that they are not seeking to set aside the award of the Tribunal with regard to negligence fixed on the part of the driver of the first respondent and that they are questioning the award only with regard to quantum of compensation awarded by the Tribunal and prayed for deciding the appeal with regard to the same.
8. The learned counsel appearing for the second respondent/insurance company contended that the Tribunal erred in granting a sum of Rs.30,000/- based on the OP chit – Ex.P24 and the same is excessive. In MCOP No.6095/2012 (CMA No.414/2015), the Tribunal erred in applying multiplier method for awarding compensation for the injuries sustained by the claimant. All the claimants have stated that they have taken treatment in KVT Health Care Physiotheraphy Hospital which is not a registered hospital and the contention of the claimants in all the claim petitions cannot be accepted. The Tribunal has fixed excessive notional income in MCOP No.6095/2012 (CMA No.414/2015), without any basis and adopted multiplier method. The http://www.judis.nic.in 5 learned counsel further contended that the amounts awarded by the Tribunal under different heads are exorbitant and prayed for setting aside the award of the Tribunal in all the appeals.
9. Per contra, the learned counsel appearing for the claimants contended that the claimants have proved that the accident occurred due to the negligence on the part of the driver of the bus belonging to the first respondent and insured with the second respondent/insurance company. The Tribunal, considered the oral and documentary evidence let in by the claimants in each and every case and awarded compensation under different heads which are not excessive and prayed for dismissal of all the appeals.
10. Heard the learned counsel for the parties and perused the materials available on record.
11. The contention of the learned counsel for the second respondent / insurance company that the amounts awarded by the Tribunal under various heads to all the claimants are excessive has considerable force. It is seen from the records that the Tribunal has awarded Rs.30,000/- as compensation in MCOP Nos.6088/2012 http://www.judis.nic.in 6 (CMA No.410/2015), 6090/2012 (CMA No.412/2015), 6096/2012 (CMA No.415/2015), 6097/2012 (CMA No.416/2015) & 6098/2012 (CMA No.417/2015) 2012, based on the OP chits. Considering the nature of injuries sustained by the claimants in the said claim petitions, the amounts awarded by the Tribunal is excessive and hence the same is reduced to Rs.10,000/- in each of the claim petitions.
MCOP No.6084 of 2012 (CMA No.409/2015) As far as compensation awarded by the Tribunal in this case is concerned, the injured is a minor student, aged 11 years at the time of accident. Based on the guidelines issused by the Hon'ble Apex Court, the Tribunal had applied multiplier method for awarding compensation towards continuing permanent diability by adopting multiplier 18, since the claimant was aged 11 years, by giving valid reasons and the same is in order. However, the Tribunal has taken notional income of the claimant as Rs.7,000/- per month and the same is excessive. Hence, the notional income of the minor claimant is fixed as Rs.45,000/- per annum and the amount awarded by the Tribunal towards continuing permanent disability is reduced to Rs.1,62,000/- [45000 x 18 x 20%]. The amount awarded by the Tribunal under the heads of deprevation of http://www.judis.nic.in 7 pleasure and enjoyment, transportation, attender charges and damages to clothes are excessive and hence they are reduced to Rs.50,000/-, Rs.10,000/-, 15,000/- and Rs.1,000/- respectively. The amounts awarded by the Tribunal towards pain and suffering, extra nourishment, loss of amenities and medical expenses are reasonable and hence they are confirmed. The amount of Rs.40,000/- awarded by the Tribunal towards loss of income to parents is not proper and hence the same is set aside. Thus, the amount awarded by the Tribunal is modified as follows -
S.No Description Amount Amount Award
awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Continuing 3,02,400/- 1,62,000/- Reduced
permanent
Disability
2. Deprivation of 1,00,000/- 50,000/- Reduced
pleasure and
enjoyment
3. Transportation 30,000/- 10,000/- Reduced
4. Extra 50,000/- 50,000/- confirmed
Nourishment
5. Pain and 75,000/- 75,000/- confirmed
Suffering
6. Attender 50,000/- 15,000/- Reduced
charges
7. Loss of income 40,000/- - Set aside
to parents
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8. Loss of 20,000/- 20,000/- Confirmed
amenities
9. Medical 33,428/- 33,428/- Confirmed
expenses
10. Damages to 3,000/- 1,000/- Reduced
clothes
Total 7,03,826/- 4,16,428/- Reduced by
Rs.2,87,398/-
Rounded off to Rs.4,16,500/-
MCOP No.6089 of 2012 (CMA No.411/2015) The learned counsel for the appellant contended that as far a claimant in this case is concerned, he is the complainant. On his complaint, case was registere in FIR No.1358/2012. In the FIR, he has stated that he is not admitted in the hospital since he has not suffered any injuries. He only attended the other injured persons. From the records, it is seen that in the evidence, the claimant, as P.W.3 has deposed that he has not taken treatment as inpatient and he was treated only as outpatient. In view of the above, the entire award amount ranted by the Tribunal is set aside and he is entitled only to a sum of Rs.15,000/- as compensation.
http://www.judis.nic.in 9 MCOP No.6091 of 2012 (CMA No.413/2015) As far as compensation awarded by the Tribunal in this case is concerned, it is seen from the records, that P.W.8-Doctor has certified the percentage of disability with regard to the disability suffered by the claimant and nature of injuries. Since the claimant has not suffered any fracture, the Tribunal has reduced the disability to 15% and awarded a sum of Rs.30,000/- by granting Rs.2,000/- per percentage of disability. The said amount is reasonable and hence the same is concfirmed. The amount awarded by the Tribunal under the heads of Pain & Suffering, Extra nourishment, transportation, attender charges and damages to clothes are excessive and hence they are reduced to Rs.20,000/-, Rs.10,000/-, 5,000/-, Rs.5,000/- and Rs.1,000/- respectively. The amounts awarded by the Tribunal under other heads are reasonable and hence they are confirmed. Thus, the amount awarded by the Tribunal is modified as follows -
S.No Description Amount Amount Award
awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs.) (Rs.) granted
1. Continuing 30,000/- 30,000/- Confirmed
disability
2. Pain and 40,000/- 20,000/- Reduced
suffering
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3. Extra 30,000/- 10,000/- Reduced
Nourishment
4. Transportation 25,000/- 5,000/- Reduced
5. Medical bills 22,948/- 22,948/- Confirmed
6 Loss of income 32,500/- 32,500/- Confirmed
7. Loss of 15,000/- 15,000/- Confirmed
amenities
8. Attender 30,000/- 5,000/- Reduced
charges
9. Damages to 3,000/- 1,000/- Reduced
clothes
Total 2,28,448/- 1,41,448/- Reduced by
Rs.87,000/-
Rounded off to Rs.1,41,500/-
MCOP No.6095 of 2012 (CMA No.414/2015) As far as compensation awarded by the Tribunal in this case is concerned, the claimant is a house wife. However, the Tribunal has applied multiplier method on assumption with regard to the disability suffered by the claimant. The claimant is a house wife and she has not let in any evidence to prove that she has suffered functional disability and she is totally immobilized and is unable to do any work as done earlier. The Tribunal, in such circumstances, erred in adopting multiplier method for granting compensation. Hence, the claimant is entitled to compensation only by granting Rs.2000/- per percentage of disability http://www.judis.nic.in 11 for 60% disability suffered by her. Thus, the amount awarded by the Tribunal under the head loss of earning power at Rs.7,95,600/- is reduced to Rs.1,20,000/- [ 60 x 2,000/- ]. Similarly, the amounts awarded by the Tribunal under various heads are excessive. The claimant has not filed any document with regard to transport charges. Hence, the amount awarded by the Tribunal at Rs.50,000/- is modified to Rs.5,000/-. The amount awarded under the head extra nourishment is reduced from Rs.75,000/- to Rs.25,000/-. The claimant has taken treatment as inpatient from 19.08.2012 to 19.09.2012, i.e. for 20 days. The Tribunal has awarded a sum of Rs.1,00,000/- towars attender charges which is excessive and the same is reduced to Rs.10,000/-. The amount awarded under the head pain & suffering is reduced to Rs.25,000/-. The amount awarded under the medical expenses are confirmed. The amounts awarded under the heads loss of amenities and damages to clothes are reduced to Rs.25,000/- and Rs.1,000/- respectively. With regard to future medical expenses, the claimant has not filed any document to show that she has to undergo future treatment or she requires further treatment. Hence, the amount of Rs.1,00,000/- awarded by the Tribunal is reduced to Rs.10,000/-. Thus, the amount awarded by the Tribunal is modified as follows -
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S.No Description Amount Amount Award
awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of 7,95,600/- 1,20,000/- Reduced
earning power
2. Transport to 50,000/- 5,000/- Reduced
hospital
3. Extra 75,000/- 25,000/- Reduced
Nourishment
4. Pain and 1,00,000/- 25,000/- Reduced
suffering
5. Medical 1,28,208/- 1,28,208/- Confirmed
expenses
6 Attender 1,00,000/- 10,000/- Reduced
charges
7. Damages to 3,000/- 1,000/- Reduced
clothes
8. Loss of 1,00,000/- 25,000/- Reduced
amenities
9. Future medical 1,00,000/- 10,000/- Reduced
expenses
Total 14,51,808/- 3,49,208/- Reduced by
Rs.11,02,600/-
Rounded off to Rs.3,49,200/-
In the result -
(i) All the Civil Miscellaneous Appeals are partly allowed, modifying the award of the Tribunal, details as follows -
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MCOP / CMA Amount Awarded Amount Awarded
Nos. by the Tribunal by this Court
6084 of 2012 / Rs.7,03,900/- Rs.4,16,500/-
409 of 2015
6088 of 2012 / Rs.30,000/- Rs.10,000/-
410 of 2015
6089 of 2012 / Rs.2,37,376/- Rs.15,000/-
411 of 2015
6090 of 2012 / Rs.30,000/- Rs.10,000/-
412 of 2015
6091 of 2012 / Rs.2,28,449/- Rs.1,41,500/-
413 of 2015
6095 of 2012 / Rs.14,51,808/- Rs.3,49,200/-
414 of 2015
6096 of 2012 / Rs.30,000/- Rs.10,000/-
415 of 2015
6097 of 2012 / Rs.30,000/- Rs.10,000/-
416 of 2015
6098 of 2012 / Rs.30,000/- Rs.10,000/-
417 of 2015
(ii) The second respondent /insurance company is directed to deposit the modified award amount in all the claim petitions/CMAs, less the amount already deposited, if any, along with interest and costs to the credit of the respective claim petitions, on the file of the IV Judge, Small Causes Court, (Motor Accidents Claims Tribunal), Chennai, within a period of six weeks from the date of receipt of copy of this judgment; http://www.judis.nic.in 14
(iii) On such deposit being made, the claimants are permitted to withdraw the modified award amount, less the amount already withdrawn, if any, alongwith accrued interest and costs by making necessary applications before the Tribunal. No costs.
(iv) The second respondent / insurance company is permitted to withdraw the excess amount, if any lying to the credit of the claim petitions alongwith proportionate interest and costs.
26.11.2018
Index : Yes/No
Internet : Yes/No
Speaking / Non-speaking order
rgr
To
1.The IV Judge,
Small Causes Court,
(Motor Accidents Claims Tribunal),
Chennai,
2.The Record Keeper
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.,
rgr
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CMA.Nos.409 to 417 of 2015
26.11.2018
http://www.judis.nic.in