Madras High Court
New India Assurance Co. Ltd vs B.Pushpamala on 27 April, 2021
C.M.A.No.1231 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.M.A.No.1231 of 2010 and
MP.Nos.1 & 2 of 2010
New India Assurance Co. Ltd.,
No.2, Woods Road, Anna Salai,
Chennai 600 082 ... Appellant
Versus
1.B.Pushpamala
(already set exparte in MCOP.2867 of 2006
her appearance may be dispensed with)
2.V.Gnanasekar ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the judgment and decree dated 17.11.2009 and made in
M.C.O.P.No.2867 of 2006 on the file of the Motor Accidents Claims
Tribunal II Court, Small Causes Court, Chennai
For Appellant : M/s.C.Sangamathirai
For Respondents
For R2 : Mrs.P.T.Salim Fathima
R1 : Exparte
Page 1 of 10
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C.M.A.No.1231 of 2010
JUDGMENT
This appeal has been laid as against the judgment and decree dated
17.11.2009 and made in M.C.O.P.No.2867 of 2006 on the file of the Motor
Accidents Claims Tribunal II Court, Small Causes Court, Chennai, thereby
awarded the compensation to the tune of Rs.4,51,000/-.
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 claimant is that on 15.12.2005, when he was
walking on the left hand side of the road at NVN Nagar Road Junction, the
driver of the car owned by the first respondent herein drove in a rash and
negligent manner and dashed against the claimant, due to which his right leg
below the knee was fractured. He also sustained injury on his chest and
head. Immediately, he had been taken to Sri Devi Hospital and admitted as
inpatient till 16.12.2004. Against medical advice, he was discharged from
hospital and thereafter on the same day, he was admitted in Bone and Joint
Hospital for further treatment. There, he had undergone surgery on his right
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C.M.A.No.1231 of 2010
leg due to the injuries sustained in the accident. At the time of accident he
was 30 years old and he was working as Salesman in Tasmac and he was
earning a sum of Rs.5,000/- per month. Therefore, the claimant filed claim
petition seeking compensation at Rs.11,00,000/-.
4. Resisting the same, the second respondent filed counter stating
that the accident took place only on the rash and negligent action of the
claimant and not due to the rash and negligent driving of the driver of the
first respondent and as such sought for dismissal of the claim petition.
5. On the side of the claimant, examined P.W.1 and P.W.2 and
marked Ex.P.1 to Ex.P.7. On the side of the respondents, neither oral nor
documentary evidence was let in. On the basis of the evidence available on
records and also considering the submission made by the learned counsel
appearing on either side, the Tribunal fastened liability on the respondents
and awarded compensation for a sum of Rs.4,51,000/-. Aggrieved by the
same, the second respondent came forward with the present appeal in
respect of quantum.
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C.M.A.No.1231 of 2010
6. The learned counsel appearing for the appellant submits that
the Tribunal awarded a sum of Rs.50,000/- under the head of pain and
sufferings to the loss of income to the family member in attending the
claimant. Again the Tribunal awarded a sum of Rs.20,000/- under the head
of pain and sufferings. Though there is no evidence to show that the
claimant was not married at the time of accident, the Tribunal awarded a
sum of Rs.1,00,000/- under the head of loss of expectation of proper marital
alliances. The Tribunal also awarded a sum of Rs.1,00,000/- under the head
of mental agony and torture due to limping and shortening of leg. Therefore,
she prayed for deduction of the award amount awarded by the Tribunal as
compensation.
7. Per contra, the learned counsel appearing for the claimant
submitted that due to accident, he lost two inches of his right leg. Therefore,
he could not even continue his avocation. In fact, the Tribunal failed to
award any attender charges and also amenities for the injury sustained by
the claimant. Insofar as other heads are concerned, the Tribunal rightly
awarded compensation and does not require any reduction in the
compensation.
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C.M.A.No.1231 of 2010
8. Heard Mr.C.Sangamithirai, learned counsel appearing for the
appellant and M/s.P.T.Salim Fathima, learned counsel appearing for the
second respondent herein.
9. The present appeal has been preferred in respect of quantum
awarded by the Tribunal and as such no need to traverse on the fact of law.
10. The claimant examined PW2, the doctor who assessed the
disability of the claimant at 25%. He opined that two centimeters of right
leg was shortened and due to which he cannot fold his leg and he cannot use
indian toilet. He also cannot walk and run. Therefore, he assessed the
disability at 25%. On perusal of the discharge summary which was marked
as Ex.P3 revealed that he sustained fracture on his right leg and he had
undergone surgery. The fracture assessed as Grade II Compound Fracture
both bones in right leg distal 1/3 and thereby shortening of 1/3 right leg
distal.
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C.M.A.No.1231 of 2010
11. Though the claimant produced medical bills, he failed to
produce final bill issued by the hospital, in which he had undergone surgery.
He was admitted initially on 15.12.2005 at Sri Devi Hospital and thereafter
on 16.12.2005, he was shifted to Bone and Joint Hospital and Research
Institute Private Limited, Anna Nagar, Chennai. Thereafter, he was
discharged on 28.12.2005. He had taken treatment for six months and he
had also undergone physiotherapy. Further in respect of permanent
disability, though PW2 assessed disability at 25%, the Tribunal awarded
only Rs.25,000/- by granting Rs.1,000/- per percentage and it is liable to be
increased as Rs.2,000/- per percentage.
12. Accordingly the compensation awarded by the Tribunal stands
modified as under :-
Sl. Head Amount awarded by Amount awarded by
No. the Tribunal this Court
1 Loss of earnings Rs.60,000/- Rs.60,000/-
2 Transport expenses Rs.10,000/- Rs.20,000/-
3 Extra nourishment Rs.20,000/- Rs.20,000/-
4 Damaged to dress and Rs.1,000/- Rs.1,000/-
articles
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C.M.A.No.1231 of 2010
Sl. Head Amount awarded by Amount awarded by
No. the Tribunal this Court
5 Medical Expenses Rs.25,000/- Rs.25,000/-
6 Pain and suffering to Rs.50,000/- NIL
the loss of income to
the family member in
attending the petitioner
7 Mental agony and Rs.1,00,000/- NIL
torture due to limping
and shortening of leg
8 Future medical Rs.40,000/- NIL
transport expenses
9 Loss of expectation of Rs.1,00,000/- Rs.1,00,000/-
proper marital alliances
10 Compensation for pain Rs.20,000/- Rs.50,000/-
and suffering
11 Permanent disability Rs.25,000/- Rs.50,000/-
12 Attender charges NIL Rs.15,000/-
13 Future medical NIL Rs.50,000/-
expenses
Total Rs.4,51,000/- Rs.3,91,000/-
13. In the result the Civil Miscellaneous Appeal is partly allowed
as follows:-
(i) The award passed by the Tribunal is modified from Rs.4,51,000/-
to Rs.3,91,000/-.
(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.
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C.M.A.No.1231 of 2010
(iii) The appellant and the first respondent herein are 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.
(iv) On such deposit, the claimant /2nd respondent herein permitted to
withdraw the amount awarded as above by filing proper application before
the Tribunal.
(v) The claimant is not entitled to any interest for the condoned delay
(default) period, if any.
(vi) There shall be no order as to costs. Consequently, connected
miscellaneous petitions are closed.
27.04.2021
Index:Yes/No
Internet: Yes/no
Speaking/Non-speaking Order
lok
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C.M.A.No.1231 of 2010
To
1.The II Judge,
Motor Accidents Claims Tribunal,
Small Causes Court, Chennai
2.The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
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C.M.A.No.1231 of 2010
G.K.ILANTHIRAIYAN, J.
lok
C.M.A.No.1231 of 2010
27.04.2021
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