Madras High Court
Pattammal vs Shahul Hameed on 7 October, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.10.2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.No.2432 of 2004 Pattammal ... Appellant Vs. 1.Shahul Hameed 2.New India Assurance Co., Ltd., Nagapattinam ... Respondents PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 07.04.2004, made in M.C.O.P.No.167 of 2003, on the file of the Motor Accident Claims Tribunal, Additional Sub Court, Nagapattinam. For Appellant : Mrs.S.T.P.Kuilmozhi For Respondents : Mr.P.Kandasamy for R2 R1-Ex parte - - - J U D G M E N T
The appellant / claimant has preferred the present appeal against the judgment and decree dated 07.04.2004, made in M.C.O.P.No.167 of 2003, on the file of the Motor Accident Claims Tribunal, Additional Sub Court, Nagapattinam.
2. The short facts of the case are as follows:-
The claimant had filed a claim petition in M.C.O.P.No.167 of 2003, on the file of the Motor Accident Claims Tribunal, Additional Sub Court, Nagapattinam, claiming a sum of Rs.3,00,000/- as compensation from the respondents for the injuries sustained by her in a motor vehicle accident.
3. It was submitted that on 08.10.2002, at about 08.00 a.m., when the claimant was proceeding on Thanjavur Main Road, near T.N.C.S.C.Godown at Tiruvarur, a Maruthi Omni Van bearing registration No.TN07 F8109, driven at a high speed and in a rash and negligent manner, dashed against her. As a result, she had sustained injuries. Hence, the claimant had filed the claim petition against the respondents, who are the owner and insurer of the Maruthi Omni Van bearing registration No.TN07 F8109.
4. The second respondent Insurance Company had filed a counter affidavit and resisted the claim petition. They had submitted that the driver of the car did not have a valid driving licence and as such the conditions of the policy had been violated. Further, the claimant had suddenly crossed the road and invited the accident and as such they were not liable to pay any compensation to the claimant. Further, they had denied the averments made in the claim petition regarding nature of injuries, mode and period of treatment and disability.
5. On considering the averments of both sides, the Tribunal had framed an issue for consideration namely:
i. Whether the claimant is entitled to receive compensation? If so, what is the quantum of compensation? and who is liable to pay the compensation?
6. On the side of the claimant, two witnesses were examined as P.Ws.1 and 2 and eight documents were marked as Exs.P1 to P8 namely FIR, wound certificate, M.V.I's report, copy of Criminal Court Judgment, medical discharge summons, X'rays, disability certificate and Photo. On the respondents' side no witness was let in and no document was marked.
7. P.W.1 claimant had adduced evidence that she is a fish vendor and earning a sum of Rs.4,500/- per month. She deposed that on 08.10.2002, at about 08.00 a.m., when she was proceeding on Thanjavur Main Road, the first respondent's driver had driven a Maruthi Omni Van bearing registration No.TN07 F8109, in a negligent manner and dashed it against her. Further, she had adduced that she had been hospitalized from 08.10.2002 to 07.11.2002 at Thanjavur Medical College Hospital as an inpatient. She deposed further that she had sustained injuries on her left hand and right hand.
8. P.W.2 Doctor had adduced evidence that the legs of the claimant had been fractured and that she had sustained 20% disability. He deposed that the fractured right hand bone had been malunited and a surgical operation was conducted and steel rod was fixed in the operated area and as such the claimant had sustained 85% disability.
9. On considering the evidences of the witnesses and on perusing the exhibits marked by the claimant, the Tribunal had awarded a sum of Rs.35,000/- as compensation to the claimant and directed the respondents to pay the said award amount, jointly or severally, together with interest at the rate of 9% from the date of filing the claim petition till the date of payment of compensation, with costs.
10. Not being satisfied by the award passed by the Tribunal, the claimant has preferred the present civil miscellaneous appeal.
11. The learned counsel appearing for the appellant has contended in the appeal that the claimant is a fish vendor and both her hands had been fractured and a surgical operation was conducted on her right hand and a steel plate was fixed. The Doctor had assessed the disability at 85%. The claimant had been hospitalized for a period of 17 days, as an inpatient. After the accident, she is unable to do her avocation as a fish vendor. Hence, the very competent counsel prays the Court to grant adequate compensation to the claimant.
12. The very competent counsel for the Insurance Company has vehemently argued that the claimant had sustained simple injuries and she had been hospitalized at Thanjavur Medical College Hospital and as such she is not entitled to receive compensation for medical expenses. But, in spite of it, the Tribunal had granted a sum of Rs.5,000/-. Besides this, the Tribunal had granted sufficient compensation to the claimant under the various relevant heads. Therefore, the above appeal is not maintainable since the Tribunal had granted adequate compensation. Further, the claimant herself had suddenly and negligently crossed the road and invited the accident and as such contributory negligence has to be attributed to the claimant. The Doctor had assessed the disability at 85%, which is on the higher side and has been assessed without any basis. Therefore, the highly competent counsel requests this court to dismiss the appeal since adequate compensation has been awarded and the same had been paid to her.
13. On verifying 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 on the lower side, since the claimant had sustained multiple bone fracture injuries as per doctor's evidence and it is also seen that a surgical operation was conducted on her right hand and steel plate was fixed. Therefore, this Court reassesses the compensation as follows:
i. Rs.30,000/- is awarded for disability, ii. Rs.15,000/- is awarded towards pain and suffering, iii. Rs.5,000/- is awarded towards transport expenses, iv. Rs.5,000/- is awarded towards attender charges, v. Rs.5,000/- is awarded towards nutrition, vi. Rs.10,000/- is awarded towards loss of earning during medical treatment period, vii. Rs.5,000/- is awarded towards medical expenses, and viii. Rs.10,000/- is awarded towards loss of amenities and loss of comfort.
In total, this Court awards a sum of Rs.85,000/- as compensation to the claimant. After subtracting the initial compensation amount of Rs.35,000/-, this Court awards Rs.50,000/- as additional compensation to the claimant, as it is found to be appropriate in the instant case. This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation.
14. This Court directs the second respondent Insurance Company to execute this Court's Judgment, by way of depositing the additional compensation amount, with accrued interest thereon, to the credit of M.C.O.P.No.167 of 2003, on the file of the Motor Accident Claims Tribunal, Additional Sub Court, Nagapattinam, within a period of four weeks from the date of receipt of a copy of this Judgment.
15. After such a deposit having been made, 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.167 of 2003, on the file of the Motor Accident Claims Tribunal, Additional Sub Court, Nagapattinam, after filing a memo along with a copy of this Judgment.
16. In the result, this civil miscellaneous appeal is partly allowed and the Judgment and decree dated 07.04.2004, made in M.C.O.P.No.167 of 2003, on the file of the Motor Accident Claims Tribunal, Additional Sub Court, Nagapattinam, is modified. No costs.
07.10.2013
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Index : Yes/No
Internet : Yes/No
krk
To:
1.The Additional Sub Judge
Motor Accident Claims Tribunal
Additional Sub Court, Nagapattinam
2.The Section Officer
V.R.Section, High Court
Madras
C.S.KARNAN, J.
krk
C.M.A.No.2432 of 2004
07.10.2013
(1/2)