Madras High Court
R.Vivegananthan vs M/S.Nnl Bus Service on 24 August, 2018
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.08.2018
CORAM
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.(MD)No.1492 of 2010
R.Vivegananthan ... Appellant/Claimant
Vs.
1.M/s.NNL Bus Service,
V.O.C.Road,
Karaikudi.
2.The National Insurance Company,
Sekkalai Road,
Karaikudi.
Rep. by its Manager. ... Respondents/Respondents
PRAYER: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to
set aside the dismissal order, dated 08.08.2007 made in M.C.O.P.No.87 of 2006
on the file of Motor Accident Tribunal-cum-Subordinate and Assistant Sessions
Court, Devakottai and grant an award of Rs.10,00,000/- compensation to the
appellant by allowing the appeal.
!For Appellant : Mr.G.Karnan
^For R2 : Mr.K.R.Shiva Shankari
:JUDGMENT
Being aggrieved against the dismissal over the award passed by the Motor Accidents Claims Tribunal-cum-Chief Judicial Magistrate, Tirunelveli in M.C.O.P.No.357 of 2007, the appellant-claimant has filed the present appeal.
2.The appellant, who is the claimant, filed claim petition in MCOP.No.357 of 2007 for the injuries sustained by him in the accident that took place on 12.10.2007 claiming a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only) as compensation. The first respondent is the owner of the vehicle involved in the accident and the second respondent is the insurer of the vehicle.
3.Facts of the case:-
According to the appellant, when she was waiting for the bus at Vadikottai Bus Stop, Vadikottai Vilakku, a lorry bearing Registration No.TN 33 D 3330 belonging to the first respondent insured with the second respondent driven by its driver in a rash and negligent manner and without observing the traffic rules came and dashed against the appellant and hit over the Wall of the bus stop. Due to the said impact, she sustained multiple injuries and crush injuries over the right leg. Immediately, she was taken to Government Hospital, Sankarankovil and after taking first aid she was referred to Tirunelveli Medical College Hospital, Palayamkottai, Tirunelveli District and was taking treatment as inpatient from 12.10.2007. In the hospital, appellant's right leg was amputated in order to save her life. At the time of accident, she was aged about 12 years and was studying 7th standard. Due to the accident and amputation, she could not concentrate on her studies and she could not do her normal activities without help of others. Being the female child, her marriage life is very much affected.
Therefore, she claimed a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only) as compensation against both the respondents.
4.The first respondent remained ex-parte before the Tribunal. The second respondent filed counter statement and denied all the allegations made by the appellant and submitted that the compensation claimed by the appellant is excessive and prayed for dismissal of the claim petition.
5.Before the Tribunal, the appellant/claimant was examined as P.W.1 and one Dr.Ramaguru, was examined as P.W.2 and marked 10 documents as Exs.A1 to A10. The second respondent did not let in any oral and documentary evidence.
6.The Tribunal, considering the pleadings, oral and documentary evidence, Ex.P1-F.I.R., evidence of P.W.1-claimant, came to the conclusion that the accident occurred only due to the rash and negligent driving by driver of the first respondent. Considering the nature of the injuries sustained by the appellant, the Tribunal awarded a total sum of Rs.7,65,000/- (Rupees Seven Lakhs Sixtyfive Thousand only) as compensation.
7.Aggrieved against the said award, the Appellant/claimant has filed the present Civil Miscellaneous Appeal. The respondents have not filed any appeal challenging the award of the Tribunal.
8.The learned counsel appearing for the appellant contended that the Tribunal did not properly appreciate the evidence let in by the appellant as well as the provisions of Motor Vehicles Act and judgment of the Hon'ble Apex Court. He reiterated the averments made in the claim petition as well as in the grounds of appeal and contended that the Tribunal failed to fix the notional income for minor for future prospects.
9.The learned counsel appearing for the appellant relied on the following Judgments:-
(i)V.Mekala v. M.Malathi reported in 2014(2) TN MAC 6 (SC), wherein in paragraphs 20 & 22 it has been held as follows:-
?20.The Compensation under the head Pain & Suffering and Mental Agony was awarded by the High Court after recording concurrent finding with the Award passed by the Tribunal. However, the Courts below have not recorded the nature of the permanent disablement sustained by the Appellant, while awarding Rs.1,00,000/- under this head which is too meager an amount and is contrary to the Judgment of R.D.Hattangadi and Govind Yadav cases (supra). The relevant Paragraphs of Govind Yadav case read as under:
?25.the Compensation awarded by the Tribunal for Pain, Suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the Appellant had remained in the Hospital for a period of over three months. It is not possible for the Tribunals and the Courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of Compensation.
26.Admittedly, at the time of accident, the Appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met by awarding him a sum of Rs.1,50,000/- in lieu of Pain, Suffering and trauma caused due to the amputation of leg.?
Therefore, under this head the amount awarded should be enhanced to Rs.2,00,000/- as the Doctor-PW2 has opined that at the time of walking with support of crutches, the Claimant-Appellant will be suffering pain permanently. Therefore, under this head it has to be enhanced from Rs.1,00,000/- to Rs.2,00,000/-.
22.The amount of compensation awarded under the head of 'Loss of Enjoyment of Life and Marriage Prospects' at Rs.2,00,000/- is totally inadequate since her marriage prospect has substantially reduced and on account of permanent disablement she will be deprived of enjoyment of life. Therefore, it would be just and proper to enhance the Compensation from Rs.2,00,000/- to Rs.3,00,000/-. In so far as, purchase of crutches periodically, it would be just and proper to award a sum of 50,000/-.? and Royal Sundaram Alliance Insurance Co. Ltd., V.Dhanabagyam reported in 2018(1) TN MAC 569 (DB) wherein in paragraph 22 it has been held as follows:-
?22.Insofar as Future Medical Expenses is concerned, it is the clear case of the Claimant-injured that she has lost her left leg above knee and fixed with an Artificial Limb, for which, the Tribunal has awarded Rs.1,29,912. But the Tribunal has failed to take note of the fact that the Artificial Limb should be periodically replaced. There is clear evidence that the Claimant-injured has to change the Artificial Limb, once in five years and maintain it. Therefore, considering the future requirement, an additional sum of Rs.1,29,812 is awarded, under this head, in addition to the sum awarded by the Tribunal. However, the said compensation does not carry any Interest.?
10. Per contra, the learned counsel appearing for the second respondent contended that the Tribunal has considered all the materials on record awarded a sum of Rs.7,65,000/- as compensation. The said compensation is just and proper and the appellant is not entitled for any enhancement of compensation.
11.I have heard the learned counsel appearing for the appellant and the learned counsel appearing for the second respondent and also perused all the materials available on record.
12.The only issue to be decided in the appeal, is whether the compensation awarded by the Tribunal is meagre or just compensation.
13.From the materials on record, it is seen that the Tribunal relying on the judgment of the Hon'ble Supreme Court of India reported in 2013(2) TN MAC 338 Master Mallikarjun Vs. Divisional Manager, National Insurance Co. Ltd., & another, held that the appellant sustained 100% disability and awarded a sum of Rs.6,00,000/- (Rupees Six Lakhs only) for Pain and Sufferings, loss amenities and mental agony. The Tribunal awarded a sum of Rs.50,000/- (Rupees Fifty Thousand only) for marital prospects and a sum of Rs.50,000/- for fixing the Artificial Leg. The said amount is very meagre.
14.Considering the age of the appellant and nature of the injuries sustained by her and amputation of right leg and the judgment relied on by the counsel for the appellant, a sum of Rs.50,000/-
(Rupees Fifty Thousand only) awarded by the Tribunal towards fixing the artificial leg, is on the lower side and therefore, the same is enhanced to a sum of Rs.2,00,000/- (Rupees Two Lakhs only).
15. Further, a sum of Rs.50,000/- (Rupees Fifty Thousand only) awarded by the Tribunal towards future marital prospects, is on the lower side and therefore, the same is enhanced to a sum of Rs.3,00,000/- (Rupees Three Lakhs only).
16.Taking into consideration the appellant is a female child. The trial Court has not given any compensation for loss of earning capacity. Considering the fact that the right leg of the appellant is amputated and her studies will be affected and her prospects of getting good job is very much reduced, a sum of Rs.2,00,000/- (Rupees Two Lakhs only) is awarded for loss of earning capacity. The award of the Tribunal under other heads is confirmed.
17.The rate of interest awarded by the Tribunal at 7.5% per annum is confirmed.
18. In view of the settled position of law, this Court modifies the award of the Tribunal by enhancing the compensation, as under:-
S.No Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted
1.
For permanent disability, Pain and suffering, Loss of amenities, mental agony and unable to do normal work 6,00,000 6,00,000 confirmed
2. For loss of income during treatment period for parents 50,000 50,000 confirmed
3. For Medical Expenses 15,000 15,000 confirmed
4. For fixing the artificial leg 50,000 2,00,000 enhanced
5. For future marital prospects 50,000 3,00,000 enhanced
6. For loss of earning capacity
-
2,00,000 awarded Total Rs.7,65,000 Rs.13,65,000 By enhancing a sum of Rs.6,00,000/-
19. In the result,
(i) This Civil Miscellaneous Appeal is allowed, enhancing the award of the Tribunal from Rs.7,65,000/- (Rupees Seven Lakhs Sixtyfive Thousand only) to a sum of Rs.13,65,000/- (Rupees Thirteen Lakhs and Sixty five Thousand only) along with interest at the rate of 7.5% per annum from the date of petition till date of realisation and proportionate costs, except from 27.10.2009 to 26.10.2015 in which period the claim petition was dismissed and then restored;
(ii) The claimant is directed to submit her Savings Bank Account Detail along with the copy of her passbook to the Tribunal forthwith;
(iii) The second respondent-Insurance is directed to deposit the entire enhanced award amount along with accrued interest and costs, less the amount deposited, if any, to the credit of M.C.O.P.No.357 of 2007 on the file of the Motor Accidents Claims Tribunal - cum ? Chief Judicial Magistrate, Tirunelveli within a period of eight weeks from the date of receipt of a copy of this judgment;
(iv) The appellant-claimant is directed to pay the additional Court Fees, if any, within a period of two weeks from the date of receipt of a copy of this judgment;
(v) On compliance of payment of additional Court Fees, if any, by the claimant, the Tribunal is directed to transfer the entire award amount along with accrued interest and costs directly to the Personal Savings Bank Account Number of the appellant-claimant, through RTGS/NEFT system, after getting her Account Details, within a period of two weeks thereafter; and
(vi) In the facts and circumstances of the case, there shall be no order as to costs.
To
1.The Motor Accidents Claims Tribunal - cum ? Chief Judicial Magistrate, Tirunelveli.
2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
.