Madras High Court
The Branch Manager vs Minor Blessy Selja @ Blessy on 17 April, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17/04 /2013
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
C.M.A.(MD)No.1539 of 2006
and
M.P.(MD)No.1 of 2006
The Branch Manager,
United India Insurance Company Limited,
Xavier Building,
II Floor PWD Road,
PB No.50, Nagercoil, Agateeswaram TK,
Kanyakukmari District. ... Appellant
Vs
1.Minor Blessy Selja @ Blessy
aged 7 years Rep. by Father & next
friend Mr.Jelestin George,
House No.47, Golden Street,
Ramanputhur, Nagercoil,
Kanyakumari District.
2.Murugesan
3.T.Tharmalingam ... Respondents
PRAYER
Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, against the common fair and decreetal order dated 31.03.2006 made
in M.C.O.P.No.185 of 2004, on the file of Motor Accidents Claims Tribunal, I
Additional Subordinate Judge, Nagercoil.
!For Appellant ... Mr.J.S.Murali
^For Respondents ... M/s.A.Elis Chitra Devi for R-1
No appearance for R-2 and R-3
- - -
:JUDGMENT
The appellant / third respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.185 of 2004, on the file of Motor Accidents Claims Tribunal, I Additional Subordinate Judge, Nagercoil.
2. The short facts of the case are as follows:-
The minor petitioner, viz., Blessy Selja @ Blessy, represented by her father has filed the claim in M.C.O.P.No.185 of 2004, claiming compensation of a sum of Rs.10,00,000/- from the respondents for the injuries sustained by her in a motor vehicle accident. It was submitted that on 31.05.2004, at about 9 p.m., the petitioner was travelling in the maruthi car bearing registration No.TN-72-J-1292 from Nagercoil to Palayamkottai, along with her father, who was driving the car and accompanied by her mother and brother. At about 10.30 p.m., when the car was proceeding near Munradaippu Railway Bridge, the first respondent's maxi cab van bearing registration No.TN-74-J-7575, coming in the opposite direction and driven at a high speed and in a rash and negligent manner, dashed against the maruthi car and caused the accident. As a result, the petitioner sustained contusion in lower end of right forearm and fracture of both bones in her lower 1/3rd of right forearm. She was admitted at Thiravium Hospital, wherein she received treatment as an inpatient from 31.05.2004 to 04.06.2004. Due to the injuries sustained by her, she is not able to walk and study and write as before. At the time of accident, the petitioner was aged 7 years and studying in the second standard. Hence, the petitioner has filed the claim against the first, second and third respondents, who are the driver, owner and insurer of the Maxi cab bearing registration No.TN-74-J-7575.
3. The third respondent, in his counter has submitted that the petitioner has to prove her age, income and occupation through documentary evidence. It was submitted that the petitioner had not sustained any disability in the said accident. The averments in the claim regarding nature of injuries sustained and period of medical treatment was also not admitted. It was submitted that as the accident had occurred at 10.30 a.m., on the national highway and as it was a head on collision between the two vehicles, contributory negligence has to be attributed to the drivers of both vehicles involved in the accident. It was submitted that the claim was bad for non-joinder of the owner and insurer of the maruthi car. It was submitted that the claim was excessive.
4. The Motor Accidents Claims Tribunal had framed three 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 vehicle?
(ii) Are the respondents liable to pay compensation? and
(iii) What is the quantum of compensation which the petitioner is entitled to get?"
5. In the same accident, the other claims were filed by the injured petitioners in M.C.O.P.Nos.183, 184 and 186 of 2004, claiming compensation for the injuries sustained by them from the same respondents. On the request made by the counsel for their respective petitioners, a joint trial was conducted and common judgment was passed and common evidence was recorded in M.C.O.P.No.183 of 2004. The petitioner in M.C.O.P.No.183 of 2004 was examined as P.W.1. The petitioner in M.C.O.P.No.186 of 2004 was examined as P.W.2 and one Dr.Thiravium was examined as P.W.3 and one Dr.Muthuran was examined as P.W.4 and 33 documents were marked as Exs.P1 to P33, viz., Ex.P1-copy of F.I.R. dated 01.06.2004, Ex.P2-copy of Motor Vehicle Inspector's report dated 01.06.2004, Ex.P3-copy of wound certificate of petitioner in M.C.O.P.No.183 of 2004, dated 14.07.2004, Ex.P4-copy of observation mahazar dated 01.06.2004, Ex.P5-copy of charge sheet dated 16.09.2004, Ex.P6-certificate showing employment of petitioner in M.C.O.P.No.183 of 2004, dated 15.03.2005, Exs.P7 and P8-medical bill (series) pertaining to petitioner in M.C.O.P.No.183 of 2004, Ex.P9-trip sheet, Ex.P10- prescriptions, Ex.P11-medical treatment records, Ex.12-auditor report showing income tax returns of petitioner in M.C.O.P.No.186 of 2004, Ex.P13-driving licence of petitioner in M.C.O.P.Nos.183 of 2004 and 186 of 2004, Exs.P14 and P15-medical bills pertaining to petitioner in M.C.O.P.No.186 of 2004, Ex.P16- trip sheet, Ex.P17-medical treatment records 07.09.2004, Exs.P18 and P19- prescriptions, Ex.P20-school certificate of petitioner in M.C.O.P.No.184 of 2004, dated 22.09.2004, Ex.P21-prescriptions, Exs.P22 and P23-medical bills, Ex.P24-medical treatment records, Ex.P25-medical bills pertaining to petitioner in M.C.O.P.No.185 of 2004, Ex.P26-medical treatment records, Ex.P27- prescriptions, Ex.P28 and Ex.P29-school certificate, Ex.P30-disability certificate issued to petitioner in M.C.O.P.No.183 of 2004, dated 17.08.2005, Ex.P31-disability certificate issued to petitioner in M.C.O.P.No.184 of 2006, dated 12.03.2006, Ex.P32-disability certificate issued to petitioner in M.C.O.P.No.185 of 2004, dated 12.03.2006, Ex.P33-disability certificate issued to petitioner in M.C.O.P.No.186 of 2004, dated 17.08.2005. On the respondents side, one witness was examined and one document, viz., the copy of rough sketch in C.C.70 of 2004, was marked as Ex.R1.
6. P.W.1, the petitioner in M.C.O.P.No.183 of 2004 had adduced evidence which is corroborative of the statements made in the complaint regarding manner of accident and in support of her evidence, she had marked Exs.P1 to P5.
7. R.W.1 had adduced evidence that the first respondent's maxicab had been insured with them and that as the accident had occurred at the middle of the road, contributory negligence has to be attributed to the drivers of both the vehicles involved in the accident and in support of his evidence, he had marked the rough sketch as Ex.R1. On scrutiny of Ex.R1, it is seen that the accident had not occurred at the middle of the road and that it had happened on the left side of the road wherein the petitioner's car had been proceeding. Hence, the Tribunal observed that the accident had occurred only due to the rash and negligent driving by the driver of the first respondent's maxicab. The Tribunal further observed that the charge sheet has been laid as against the driver of the first respondent's vehicle. Hence, the Tribunal on scrutiny of Exs.P1, P2, P4 and P5, held that the accident had been caused by the rash and negligent driving by the driver of the first respondent's vehicle and held that no negligence can be attributed on the part of the petitioner in M.C.O.P.No.186 of 2004 in causing the accident. Hence, the Tribunal held that the first, second and third respondents are jointly or severally liable to pay compensation to the petitioner.
8. P.W.2, had adduced evidence that due to the accident, his daughter had sustained fracture of bone in her wrist and other injuries all over her body and that she is not able to lift weights or write or lift her school bag. He deposed that prior to the accident, she was studying well and that after the accident, she experiences headache and is not able to writ. P.W.3, Doctor had adduced evidence that he had examined the petitioner and found that her right wrist had been fractured and that this is a grievous injury. He deposed that the petitioner had received treatment as an outpatient till 03.07.2005 and that due to the injuries she would experience difficulty in doing intricate work with her hands.
9. P.W.4 doctor had adduced evidence that he had examined the petitioner and found that she had sustained 3% disability in the said accident and in support of his evidence, he had marked Ex.P32, disability certificate. The Tribunal on scrutiny of oral and documentary evidence, awarded a sum of Rs.3,000/- for disability of 3%; Rs.25,000/- for pain and suffering; Rs.500/- for transport; Rs.2,500/- for nutrition; Rs.500/- for damage to clothes and Rs.20,492/- for medical expenses. In total, the Tribunal awarded a sum of Rs.51,992/- as compensation to the petitioner and directed the second and third respondents to jointly or severally deposit the said sum together with interest at the rate of 12% per annum from the date of filing the petition till date of deposit, with costs, within one month from the date of its order.
10. Aggrieved by the award passed by the Tribunal, the third respondent / United India Insurance Company Limited, Kanyakumari District has preferred the present appeal.
11. The learned counsel for the appellant has contended that the Tribunal failed to appreciate Ex.R1, rough sketch, wherein it has been showed that the accident occurred at the middle of the road/bridge and as such, contributory negligence had to be attributed on the drivers of both the vehicles involved in the accident. It was contended that the Tribunal failed to appreciate Ex.P2, Motor Vehicle Inspector's report which confirms the damage caused to both vehicles and that the driver of maruthi car was more rash and negligent. It was contended that the Tribunal ought to have fixed the negligence equally upon both the drivers in the ratio of 50:50 and ought to have awarded only 50% of compensation payable by the appellant and its insured i.e., the third respondent herein. It was contended that the award passed under the various heads were excessive and hence, it was prayed to set-aside the award passed by the Tribunal.
12. The learned counsel for the claimant has submitted that the claimant had sustained grievous injuries on her right hand. The bone had also been fractured in her wrist. The medical expenses incurred was a sum of Rs.20,492/-. The Tribunal had not granted adequate compensation under the heads of 'transport', 'nutrition' and 'attender charges'. After the accident, the minor school going claimant is unable to concentrate on her studies. Besides, she is unable to participate in sports and games.
13. On verifying the facts and circumstances 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, liability and quantum of compensation.
14. As per records, it is seen that this Court imposed a condition on the appellant to deposit the entire compensation amount with accrued interest. Now, it is open to the claimant to withdraw the entire compensation amount with accrued interest thereon, lying in the credit of M.C.O.P.No.185 of 2004, on the file of Motor Accidents Claims Tribunal, I Additional Subordinate Court, Nagercoil, after filing a Memo, along with a copy of this order, subject to deduction of withdrawals made, if any.
15. In the result, the above appeal is dismissed. Consequently, the award and decree passed in M.C.O.P.No.185 of 2004, on the file of Motor Accidents Claims Tribunal, I Additional Subordinate Court, Nagercoil, dated 31.03.2006 is confirmed. There is no order as to costs. Connected miscellaneous petition is closed.
r n s To The I Additional Subordinate Judge, Motor Accidents Claims Tribunal, Nagercoil.