Madras High Court
New India Assurance Co.Ltd vs Kaliyammal on 20 April, 2021
C.M.A.No.1620 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.04.2021
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
C.M.A.No.1620 of 2010
and
M.P.No.1 of 2010
New India Assurance Co.Ltd.,
No.402, Tenkasi Road,
Rajapalayam. ... Appellant
Vs.
1. Kaliyammal
2. Karthikeyan
3. Gopal
4. Ezhil
5. Chinnaswamy
6. Somasundaram
7. Somasundaram
[6th and 7th respondents were the 1st and 2nd respondents
before the tribunal and they remained ex-parte before the
tribunal. Hence, summons to 6th and 7th respondents herein
may be dispensed with]
... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, to set aside the decree and judgment dated 19.02.2010
made in M.C.O.P.No.605 of 2001 on the file of the Motor Accident Claims
1/12
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C.M.A.No.1620 of 2010
Tribunal (Principal District Court), Villupuram District.
For Appellant : Mr.K.Vinoth for
: M/s.Elveera Ravindran
For Respondents : M/s.P.Kavitha Balakrishnan
(for R1 to R4)
: Notice Served (for R5)
: Ex-parte (for R6 to R7)
JUDGMENT
This appeal is laid as against the judgment and decree dated
19.02.2010 made in M.C.O.P.No.605 of 2001 on the file of the Motor
Accident Claims Tribunal (Principal District Court), Villupuram District,
thereby, it awarded the compensation to the tune of Rs.2,00,000/-.
2. For the sake of convenience, the parties are referred to
hereunder according to their litigative status before the Tribunal.
3. The case of the claimants are that the deceased first claimant was
returning by his bullock cart from Ulundurpet to Thirunavalur on
19.06.2001 after unloading the paddy bags at Ulundurpet Regulated
Marketing Committee, near Senthamangalam bus stop. At that time, a lorry
owned by the second respondent was driven by the first respondent in a rash
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C.M.A.No.1620 of 2010
and negligent manner in the same direction and hit on the back side of the
bullock cart due to which, one bullock seriously injured and subsequently,
died. The entire bullock cart was damaged and the deceased first claimant
was seriously injured on his right leg and all over the body. Due to multiple
fracture on his right leg, his right leg was amputated above the knee. While
pending the claim petition, he died due to the injury sustained by him.
4. Resisting the claim petition, the third respondent/Insurance
Company filed a counter stating that only due to the rash and negligent
driving of the deceased first claimant of his bullock cart, the accident took
place and as such, the third respondent is not liable to pay compensation.
5. On the side the of the claimants, P.W.1 to P.W.3 were examined
and Exs.P.1 to P.23 were marked. On the side of the respondents, R.W.1
was examined, but no exhibit was marked.
6. The Tribunal after considering the oral and documentary evidence,
awarded a sum of Rs.2,00,000/- as compensation payable by the second and
third respondents. Aggrieved by the same, the third respondent has
preferred the present Civil Miscellaneous Appeal.
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C.M.A.No.1620 of 2010
7. The learned counsel for the third respondent/Insurance Company
submitted that the deceased first claimant, who met with an accident, died
while pending the claim petition. Therefore, the legal heirs, viz., other
claimants, are not entitled for compensation for the injury sustained by the
deceased first claimant and they are only entitled for the medical expenses
and they are not entitled for compensation for their love and affection,
transportation charges and other expenses incurred by them. He further
submitted that the deceased first claimant ridden his bullock cart in a rash
and negligent manner and as such, he invited the accident and as such, the
third respondent is not liable to pay any compensation. Though the Tribunal
found that the death was not caused due to the injury sustained in the
accident, the Tribunal awarded the compensation in favour of the legal
heirs. As per the proviso to Section 306 of the Indian Succession Act, the
legal representatives of the deceased are not entitled for compensation for
the permanent disability, pain and sufferings suffered by the deceased.
8. Per contra, the learned counsel for the claimants submitted that the
deceased first claimant died only due to the injury sustained by him in the
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C.M.A.No.1620 of 2010
accident. Due to the accident, he suffered crush injury on his right leg.
Immediately, he was taken to the Government Hospital and thereafter, he
was referred to Ramachandra Hospital, Chennai. He had undergone three
surgeries and his right leg was amputated above the knee level. Therefore,
the deceased first claimant's disablement was assessed at 80%. Even then,
the Tribunal had taken into account only 50% and that too granted a sum of
Rs.2,000/- per percentage of disablement. Though the claimants produced
medical bills to the tune of Rs.82,133/-, the Tribunal has awarded the
medical expenses only to the tune of Rs.60,000/-.
9. Heard the learned counsel for the third respondent/Insurance
Company as well as the learned counsel for the claimants.
10. On 19.06.2001, the deceased first claimant was returning by his
bullock cart from Ulundurpet to Thirunavalur after unloading the paddy
bags at Ulundurpet Regulated Marketing Committee, near Senthamangalam
bus stop. At that time, a lorry owned by the second respondent and insured
by the third respondent was driven by the first respondent in a rash and
negligent manner, hit the back side of the bullock cart of the deceased first
claimant. Due to the said accident, one bullock died and the entire bullock
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C.M.A.No.1620 of 2010
cart was damaged. The deceased first claimant sustained crush injury on his
right leg and other injuries all over the body. Immediately, he was taken to
Villupuram Government General Hospital and thereafter, he was referred to
JIPMER Hospital, Puducherry. He had undergone three surgeries and
finally his right leg was amputated above the knee level. Immediately, after
amputation of his right leg, his permanent disability was assessed at 80%.
Therefore, he could not be able to do his avocation. While pending the
claim petition, the deceased first claimant died on 16.10.2002. Though
P.W.1 wife of the first claimant deposed that the injured had undergone
three surgeries and he had been taken treatment for 1 1/2 years till his death,
the claimants did not produce the discharge summary and other medical
records to show that the injured claimant died only due to the injury
sustained during the accident which led to his death.
11. On a perusal of the medical bills, which was marked as Ex.P.12, it
reveals that even till his death, he was continuously taking treatment at
Ramachandra Hospital as out patient. There is no dispute about the
amputation of his right leg due to the accident and they spent a sum of
Rs.82,133/- as medical expenses. It is also seen from the records that every
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C.M.A.No.1620 of 2010
month, the deceased first claimant had come to Chennai for his treatment at
Ramachandra Hospital.
12. As rightly pointed out by the learned counsel for the claimants,
the Tribunal failed to award compensation by applying multiplier method,
when the deceased was assessed 80% of permanent disablement. After the
amputation of his right leg, he could not continue his avocation and he
could not even walk without the help of others. From the date of accident,
viz., on 19.06.2001, and till his death, viz., on 16.10.2002, he had taken
treatment continuously. Therefore, he lost his income and he would have
suffered pain and sufferings during that period.
13. The learned counsel for the third respondent/Insurance Company
submitted that the claimants are not entitled for any compensation in respect
of the injury sustained by the deceased first claimant and also pain and
sufferings suffered by him as per proviso to Section 306 of the Indian
Succession Act. It is true that after the death of injured, the legal heirs are
not entitled for compensation for the injury and pain and sufferings of the
deceased.
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C.M.A.No.1620 of 2010
14. In the case on hand, though P.W.1 categorically deposed that the
deceased first claimant had undergone three surgeries and his right leg was
amputated and during his course of further treatment at Ramachandra
Hospital, Chennai, he died due to the injury sustained by him at the time of
accident. But the claimants failed to produce the discharge summary and
medical records to that effect. Therefore, this Court feels that the present
case is peculiar one, since the deceased first claimant died only due to the
injury sustained by him in the accident took place on 19.06.2001. In fact,
the entire bullock cart was damaged and one bullock also died during the
accident. The accident had happened only because of the rash and negligent
driving of the first respondent. Due to illiteracy, the claimants were not able
to find the medical records. Even though the deceased first claimant was
taking treatment for more than 16 months, the claimants failed to maintain
the medical records properly. However, they marked medical records as
Ex.P.12, which reveals that the deceased first claimant had taken treatment
till his death at Ramachandra Hospital, Chennai.
15. Therefore, this Court treated the present case as special case and
inclined to modify the award as follows:-
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C.M.A.No.1620 of 2010
Sl. Head Amount awarded by Amount
No. the Tribunal awarded by this
Court
1 Medical expenses 68,000 82,500
2 Permanent Disability 1,00,000 1,50,000
3 Pain and Sufferings 20,000 50,000
4 Death of Bullock 10,000 10,000
5 Damage of Bullock Cart 5,000 15,000
6 Transportation 5,000 50,000
Total 2,00,000 3,57,500
16. In the result the Civil Miscellaneous Appeal is dismissed,
however, the compensation amount is enhanced as follows:-
(i) The award passed by the Tribunal is enhanced from Rs.2,00,000/-
to Rs.3,57,500/-.
(ii) The award amount will carry the interest at the rate of 7.5% per
annum from the date of the claim petition till the date of deposit.
(iii) The respondents 1 and 5/claimants 2 and 6 are entitled to get the
compensation amount in the ratio as apportioned by the Tribunal.
(iv) The Appellant/third respondent/Insurance Company is directed
to deposit the award amount, less the amount, if any, already deposited,
along with accrued interest within a period of six weeks from the date of
receipt of copy of this Judgment.
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C.M.A.No.1620 of 2010
(v) On such deposit, the respondents 1 and 5/claimants 2 and 6 are
permitted to withdraw the amount awarded as above by filing proper
application before the Tribunal.
(vi) the respondents 1 and 5/claimants 2 and 6 shall pay requisite
Court fee before the receipt of the copy of the judgment for the enhanced
compensation.
(vii) It is made clear that this judgment shall not be cited as a
precedent.
(viii) In respect of other aspects, the award of the Tribunal is
confirmed.
Consequently, the connected Miscellaneous Petition is closed. There
shall be no order as to costs.
19.04.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
kv
To
1. The Motor Accident Claims Tribunal
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1620 of 2010
(Principal District Court),
Villupuram District.
2. The Section Officer,
V.R. Section, High Court of Madras.
G.K.ILANTHIRAIYAN,J.
Kv
C.M.A.No.1620 of 2010
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1620 of 2010
20.04.2021
https://www.mhc.tn.gov.in/judis/
