Madras High Court
The New India Assurance Co. Ltd vs Sivakumar [Minor on 4 November, 2016
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:04.11.2016
CORAM
The Honourable MR. JUSTICE M.SATHYANARAYANAN
CMA.Nos.2 and 3 of 2011 & MP.Nos.1&1/2011
The New India Assurance Co. Ltd..
Aricode, Chittur, Palakkad District
Kerala. ... Appellant in both the appeals
Vs
1.Sivakumar [Minor]
rep.by his guardian & father
Mr.Kanakaraj ... R1/Claimant in CMA.No.2/2011
2.V.Jacob
3.Viswa Deepthi Matric Higher
Secondary School, Unjavelampatti
Pollachi. ... RR 2 & 3 in CMA No.2/2011
1.Anandan ... R1/Claimant in CMA.No.3/2011
2.V.Jacob
3.Viswa Deepthi Matric Higher
Secondary School, Unjavelampatti
Pollachi. ... RR 2 & 3 in CMA No.3/2011
Appeals filed under section 173 of the Motor Vehicle Act, 1988 against the common award and decree dated 29.09.2010 passed in MACTOP Nos.460 of 2008 and 461 of 2008 on the file of the Motor Accident Claims Tribunal cum First Additional Sub Court, Coimbatore.
For Appellant in
both appeals : Mr.R.Sivakumar
For R1 in both
appeals : Ms.C.R.Rukmani
For RR2 & 3 : Set Ex-parte in Lower Court
COMMON JUDGMENT
The impugned Award and decree passed by the Motor Accident Claims Tribunal / I Additional Sub Court, Coimbatore, is a common one and hence, these appeals, challenging the said judgment, filed by the Insurance Company, are taken up together and dispose of by this common judgment.
CMA No.2/2011:- [Against MCOP.No.460/2008] 2 The 1st respondent is the injured claimant and he was aged about 12 years at the time of accident which took place on 10.09.2007 at about 10.30 a.m., and the 1st respondent/claimant was engaged in the avocation of sheep breeding and was earning a sum of Rs.2000/- per month. According to the claimant, one Anandan [claimant in MCOP NO.461/2008 / 1st respondent in CMA No.3/2011] was riding the motor cycle bearing Registration No.TN-39-AA-9459 and the claimant herein as well as one Sivakumar, were the pillion riders and were proceeding from West to East on Pollachi to Udumalpet Main Road and at that juncture, a Van bearing Registration No.TN-41-F-8403 cam from the opposite side and hit the motor cycle and as a consequence, the rider of the motor cycle [1st respondent in CMA NO.3/2011] as well as the claimant, being the pillion rider, sustained severe injuries. In this regard, a case was also registered, which, after investigation, has culminated in a charge sheet, in which the driver of the Van has also paid the find amount. The claimant was admitted as an In-Patient between 10.09.2007 and 10.11.2007 and after discharge, took treatment as an Out-Patient and claimed a compensation under the following heads:-
PARTICULARS OF LOSS AND EXPENSES:-
PART-I [In Rupees] [a] Loss of Earnings [from 10.09.07 to 09.09.08] 24,000 00 [b] Partial Loss of earnings --- [c] Transport to Hospital 2,300 00 [d] Extra Nourishment 13,700 00 [e] Damages to clothing & articles --- [f] OTHERS - Medical Expenses etc 65,000 00 - Mental agonies & hardships 15,000 00 - Loss of consortium --- - Loss of love & affection --- - Future medical expenses 30,000 00 PART-II [g] Compensation for pain & suffering 25,000 00 [h] Compensation for continuing of permanent disability, if any 50,000 00 [i] Compensation for loss of earning capacity & future prospects etc. 75,000 00 -------------------- Total 3,00,000 00 --------------------
3 The appellant / Insurance Company - 3rd respondent, filed a counter, denying the allegations and would contend that since two persons travelled as pillion-riders apart from the rider of the vehicle, there was an imbalance and as a consequence, the two-wheeler bearing Registration No.TN-39-AA-9459, dashed against the Van bearing Registration No.TN-41-F-8403 and since the rider - 1st respondent in CMA No.3/2011, had solely contributed to the accident, the Insurance Company ought to have been exonerated from the payment of the compensation. But, on the question of quantum, it is contended that the compensation claimed, is, at any rate, is exorbitant and prays for dismissal of the claim petition.
CMA No.3/2011:- [Against MCOP.No.461/2008] 4 The rider of the motor cycle bearing Registration No.TN-39-AA-9459 has filed the claim petition for compensation and put forth the same contentions as that of the claimant/1st respondent in CMA NO.2/2011 and claimed compensation under the following heads:-
PARTICULARS OF LOSS AND EXPENSES:-
PART-I [In Rupees] [a] Loss of Earnings [from 10.09.07 to 09.09.08] 72,000 00 [b] Partial Loss of earnings --- [c] Transport to Hospital 5,100 00 [d] Extra Nourishment 13,900 00 [e] Damages to clothing & articles --- [f] OTHERS - Medical Expenses etc 66,000 00 - Mental agonies & hardships 15,000 00 - Loss of consortium --- - Loss of love & affection --- - Future medical expenses 25,000 00 PART-II [g] Compensation for pain & suffering 20,000 00 [h] Compensation for continuing of permanent disability, if any 60,000 00 [i] Compensation for loss of earning capacity & future prospects etc. 2,25,000 00 -------------------- Total 5,00,000 00 --------------------
and the 3rd respondent therein / the Insurance Company also put forth the similar defence.
5 During the course of trial, both the claimants were examined as P.W.1 and P.W.2 and the doctor who assessed the disability, was examined as P.W.3 and Exs.P.1 to 21 were marked and on behalf of the 3rd respondent / Insurance Company, RW1-V.Jacob was examined and Ex.R.1-Driving License, was marked.
6 The Tribunal, on consideration of oral and documentary evidences, had awarded a sum of Rs.1,13,920/- with an interest at 7.5% per annum from the date of claim petition till realisation in favour of the claimant in MCOP NO.406/2008 [1st respondent in CMA.No.2/2011] and awarded a sum of Rs.3,02,119/- with an interest at 7.5% per annum from the date of claim petition till realisation in favour of the claimant in MCOP NO.407/2008 [1st respondent in CMA.No.3/2011]. Challenging the findings of the Tribunal on negligence as well as quantum, the present appeals are filed by the Insurance Company. Pending disposal of the appeals, conditional interim orders were passed directing the appellant / Insurance Company to deposit the entire compensation and it has also been deposited ; and that the respective claimants did not withdraw any amount.
7 Mr.R.Sivakumar, learned counsel appearing for the appellant / Insurance Company would contend that the Tribunal has not properly appreciated the fact that admittedly at the time of accident, two persons travelled as pillion riders and as a consequence, there was an imbalance, which resulted in the accident and since the rider of the motor cycle / 1st respondent in CMA NO.3/2011, was the sole contributory to the accident, the Tribunal ought to have exonerated the Insurance Company. But, the Tribunal held it otherwise and insofar as the quantum is concerned, it is the submission of the learned counsel for the appellant that admittedly, the claimants are without any permanent job and therefore, the compensation of Rs.1,13,920/- and Rs.3,02,119/- respectively, awarded to them, at any rate, is exorbitant and prays for allowing of these appeals.
8 Per contra, the learned counsel appearing for the respective 1st respondents/claimants would contend that the Tribunal, on a proper consideration of oral and documentary evidences, had rightly reached the conclusion to award the compensation and prays for dismissal of these appeals.
9 This Court has considered the rival submissions and also perused the impugned common Award passed by the Tribunal as well as the original records.
10 The following questions arise for consideration:-
[a] Whether the Tribunal was right in recording the finding that the driver of the Van bearing Registration No.TN-41-F-8403 had contributed to the accident? and [b] Whether the quantum of compensation awarded to the respective claimants is exorbitant?CMA No.2/2011
Question No.1:-
11 A perusal of Ex.P.1-First Information Report and Ex.P.2-Charge Sheet as well as Ex.P.21-Judgment rendered by the Court, would disclose that the driver of the Van bearing Registration No.TN-41-F-8403 was charge sheeted and he pleaded guilty and paid the fine amount also. The Tribunal has taken note of the said fact and has rightly arrived at the conclusion that the driver of the van alone had contributed to the accident. In the considered opinion of the Court, the said finding is sustainable and therefore, question No.1 is answered against the appellant/Insurance Company.
Question No.2:-
12 Insofar as the quantum is concerned, the 1st respondent in CMA No.2/2011 sustained fracture on his left thigh and he was initially treated at the Government Hospital at Pollachi, by way of First Aid and thereafter, he was referred to the Government Hospital at Coimbatore and a surgical procedure was done and the Tribunal has also awarded a sum of Rs.30,000/- towards Medical Expenses. The Tribunal further found that the claimant had undergone surgery and also requires corrective surgery and would have suffered much on account of the same and has awarded a sum of Rs.10,000/- and in all, aggregating to a sum of Rs.1,13,920/-. In the considered opinion of the Court, the quantum of compensation awarded to the claimant / 1st respondent in CMA No.2/2011, cannot be said to be exorbitant and it is a just and fair compensation and therefore, is of the view that the appeal deserves to be dismissed.CMA.No.3/2011
Question No.1:-
13 The Tribunal while upholding the Award passed in MCOP NO.460/2008, has held that the driver of the Van had contributed to the accident and he has also pleaded guilty and paid the fine amount and as such, Question No.1 is answered in negative against the appellant/Insurance Company.
Question No.2:-
14 Insofar as the quantum is concerned, the 1st respondent/claimant was aged about 37 years at the time of accident and eking out his livelihood as a lorry driver and he suffered fracture on the distal end of right hand radius near the wrist and he had undergone a corrective surgery and a plate was also put up and to substantiate the same, Ex.P.12-Wound Certificate was also marked. The claimant, in order to prove the fact that he was eking out his livelihood as a lorry driver, has also marked his Driving License as Ex.P.15 and the Tribunal found that though it was contended that the claimant was earning a sum of Rs.6000/- per month, no documents have been exhibited and found that he used to be employed for fifteen days and therefore, fixed his daily income at Rs.300/- and arrived at the loss of monthly income at Rs.45,000/- and taking into consideration the fact that he has undergone a corrective surgery and for that purpose, he would have incurred expenses, has fixed the loss of income as Rs.54,000/-. The Tribunal has awarded a sum of Rs.3100/- towards transportation expenses, for extra nourishment, has awarded a sum of Rs.13,900/-. Insofar as the claim of Rs.66,000/- under the head Medical Expenses, the Tribunal found that he has submitted the Bill to the tune of Rs.8,619/- and has accordingly awarded the same under the said head. The Tribunal has also taken into consideration of the fact that he has undergone surgery and that he require further corrective surgery and has awarded a sum of Rs.25000/- towards future medical expenses and taking into consideration the sufferings undergone by him, has awarded Rs.20,000/- towards Pain and Sufferings and taking into consideration of the fact that he has suffered disability at 35%, as evidenced from Ex.P.18, has awarded Rs.52,500/- and for loss of earning capacity, has awarded a sum of Rs.1,25,000/- and in all, aggregating to a sum of Rs.3,02,119/-. In the considered opinion of the Court, the Tribunal had arrived at the said findings based on proper appreciation of oral and documentary evidences and in any event, it cannot be said to be exorbitant. But, it is only a just and fair compensation. Therefore, the Award passed by the Tribunal does not warrant interference.
15 In the result, the Civil Miscellaneous Appeals are dismissed, confirming the common Award and decree passed by the Motor Accident Claims Tribunal [First Additional Sub Court, Coimbatore] made in MCOP Nos.460 and 461 of 2008 dated 29.09.2010.
16 The claimants are permitted to withdraw their respect Award amounts on filing appropriate applications before the Court concerned. No costs. Consequently, the connected miscellaneous petitions are closed.
04.11.2016 Index : Yes / No Internet: Yes / No AP To
1.The First Additional Sub Court Motor Accidents Claims Tribunal Coimbatore.
2.The New India Assurance Co. Ltd..
Aricode, Chittur, Palakkad District Kerala.
Copy to:-
The Section Officer VR Section, High Court, Chennai.
M.SATHYANARAYANAN,J.
AP CMA.Nos.2 & 3/2011 04.11.2016 http://www.judis.nic.in