Madras High Court
United India Insurance Co. Ltd vs Kalaivani on 31 July, 2019
Author: S.Ramathilagam
Bench: S.Ramathilagam
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.07.2019
CORAM:
THE HONOURABLE MRS.JUSTICE S.RAMATHILAGAM
C.M.A.No.1137 of 2019
and
C.M.P.No.3182 of 2019
United India Insurance Co. Ltd.,
Branch Office R.P.R, complex,
Bye pass Road, Near Govt Hospital,
Dharmapuri Town Dharmapuri .. Appellant
Vs.
1.Kalaivani
( legal heir of the deceased Durairaj
amended as per order in I.A.No.226 of 2015)
2. Dharanipriya
3. D. Sathyapriya
4. S.Malliga .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
03.09.2015 made in M.C.O.P.No.1447 of 2014 on the file of Motor
Accident Claims Tribunal ( Special Sub Judge) at Dharmapuri.
http://www.judis.nic.in
2
For Appellant : Mr.C. Paranthaman
For R1 to R3 : Mr.M. Selvam
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellant/Insurance Company, challenging the award dated 03.09.2015 made in M.C.O.P.No.1447 of 2014 on the file of the Motor Accident Claims Tribunal, ( Special Sub Judge) at Dharmapuri.
2.The brief facts of the case is as follows:
On 30.07.2011, when the deceased was driving TATA ACE Tempo bearing Registration No.TN-29-AX-7318 after unloading the goods at Dharmapuri and was returning to Rayakotti, at that point of time when he was nearing Papparapatti kootu road, a lorry bearing Registration Number TN-57-C-9389 came in the opposite direction at a high speed, which was driven by its driver in a rash and negligent manner with a view to over take an auto, which was proceeding infront of the vehicle of the deceased and dashed against the deceased tempo. As a result of which, the same was capsized. The deceased sustained fractures of Tibia and knee and he was admitted and taken to Government Medical http://www.judis.nic.in 3 College Hospital, Dharmapuri and admitted as in-patient and for further treatment he was taken to Ganga Hospital, Coimbatore and given treatment from 31.07.2011 to 10.08.2011 and even after discharge on 18.08.2011 he attended Ganga Hospital on 18.08.2011 for removal of suture. Inspite of better treatment, he died on 03.10.2014 in Government Mohan Kumaramangalam Medical College Hospital and the post mortem was conducted thereon. Thus, the legal heirs of the deceased filed a claim petition before the Tribunal claiming a sum of Rs.10,00,000/- as compensation.
3.The appellant Insurance company in the counter statement has denied the negligence aspect and also the sum claimed by the claimants before the Tribunal as highly excessive.
4.The Tribunal upon analysing the documents and evidence, has observed that the the injured has died due to the accident occurred taken on 31.07.2007 and also verified Ex.P.2,3 and 4 which reveals about the treatment given to the deceased and the injuries sustained by the deceased. In the absence of any proof regarding the occupation of the deceased, the Tribunal considering the age of the deceased at the time of the accident awarded Rs.1,50,000/- for loss of income and http://www.judis.nic.in 4 permanent disability. Based on the documents Ex.P.2,3 and 4 the Tribunal has also awarded a sum of Rs.97,000/- towards medical expenses and awarded a sum of Rs.3,32,000/- as compensation. Aggrieved against the said award, the Insurance Company has preferred this appeal.
5.In the grounds of the appeal the appellant has stated that the amount awarded under other heads are without any basis and in the absence of any witness examined before the Tribunal the assessment of the Tribunal is highly erroneous. Hence, in the absence of any evidence regarding the occupation the amount awarded under the different heads is highly excessive.
6. Heard Mr. C. Paranthaman learned counsel appearing for the appellant and Mr.M. Selvam, learned counsel appearing for the respondents 1 to 3 and perused all the materials available on record.
7. Before the Tribunal wife of the deceased was examined as P.W.1, who deposed the facts known to her about the accident. P.W.2/ Sathya moorthy is the only eyewitness who was proceeding in his two wheeler in the same road where the accident took place and he has http://www.judis.nic.in 5 deposed that the driver of the lorry tried to over took the auto, which was proceeding infront of the vehicle of the deceased and further deposed that the negligence on the part of the driver of the lorry is the cause for the accident.
8. It is also seen from the award that the Tribunal has considered the aspects such as loss of income and permanent disability and awarded Rs.1,50,000/- which is not excessive. In view of the treatment taken as inpatient from 31.07.2011 to 10.08.2011 and the surgery undergone by him, this aspect has been very well observed from the documents and the evidence placed by the claimants. Therefore, the award passed by the Tribunal is very much reasonable, but the sum awarded for pain and sufferings at Rs.25,000/- and the Mental agony at Rs.25,000/- is very much disputed by the appellant Insurance company and this Court is also of the view that there cannot be two claims for the same relief. Hence, the sum awarded under the head pain and sufferings is set aside and the sum awarded under other heads remains are confirmed. Accordingly, the compensation awarded by the Tribunal is modified as mentioned hereunder:
http://www.judis.nic.in 6 S.No. Particulars Amount awarded Amount awarded by the Tribunal by this Court 1 Permanent Disability Rs.1,50,000/- Rs.1,50,000/- 2 Pain and sufferings Rs.25,000/- Rs.25,000/- 3 Medical Expenses Rs.97,000/- Rs.97,000/- 4 Transport expenses Rs.10,000/- Rs.10,000/- 5 For nourishment Rs.25,000/- Rs.25,000/-
and loss of articles 6 Mental agony Rs.25,000/- -nil-
7. Attender Charges Rs.15,000/- Rs.15,000/-
Total Rs.3,32,000/- Rs.2,97,000/-
9.In the result, this Civil Miscellaneous Appeal is partly allowed.
The appellant Insurance company has stated that the entire amount has already been deposited, hence they are directed to withdraw the excess amount. The claimants/respondents 1 to 3 are entitled to withdraw the award amount as modified in this Court. The rate of interest and apportionment are same as ordered by the Tribunal. No costs. Consequently, connected Miscellaneous Petition is closed.
31.07.2019 Index: Yes/No Internet : Yes Speaking order/non speaking order smn http://www.judis.nic.in 7 To
1.The Special Subordinate Judge, Motor Accidents Claims Tribunal, Dharmapuri
2.The Section Officer, VR Section, High Court, Madras.
http://www.judis.nic.in 8 S.RAMATHILAGAM,J.
smn C.M.A.No.1137 of 2019 and C.M.P.No.3182 of 2019 31.07.2019 http://www.judis.nic.in