Madras High Court
Minor. K.Manikandan vs K.Logabiraman on 3 December, 2021
C.M.A.No.1468 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1468 of 2013
Minor. K.Manikandan .. Appellant
(Represented by his father Murugan)
Vs.
1.K.Logabiraman
(R1 remained exparte before the Tribunal
and hence, notice to R1 is dispensed with)
2.United India Insurance Co. Ltd.,
Motor Third Party Hub,
Silingi Building, 4th Floor,
No.134, Greams Road,
Chennai 600 006. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 12.12.2011
made in M.C.O.P.No.2699 of 2009 on the file of Motor Accident Claims
Tribunal, Small Causes Court No.VI, Chennai.
1/11
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C.M.A.No.1468 of 2013
For Appellant : Mrs.V.Suguna for
M/s.C and K Law Firm
For Respondents : Mrs.K.Saraswathi for
Mr.C.R.Krishnamoorthy for R2
JUDGMENT
The Civil Miscellaneous Appeal is filed for enhancement of
compensation granted by the Tribunal in the award dated 12.12.2011 made
in M.C.O.P.No.2699 of 2009 on the file of Motor Accident Claims Tribunal,
Small Causes Court No.VI, Chennai.
2.The appellant is claimant in M.C.O.P.No.2699 of 2009 on the file of
Motor Accident Claims Tribunal, Small Causes Court No.VI, Chennai. The
minor represented by his father filed the said claim petition claiming a sum of
Rs.9,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 16.08.2009.
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the driver of the auto belonging to the 1st respondent and directed the 2nd
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C.M.A.No.1468 of 2013
respondent/Insurance Company being insurer of the auto to pay a sum of
Rs.2,12,997/- as compensation to the appellant.
4.Not being satisfied with the amounts awarded by the Tribunal, the
appellant has come out with the present appeal seeking enhancement of
compensation.
5.The learned counsel appearing for the appellant submitted that the
appellant sustained fractures over hip, left femur, right fibula, serious injury
over abdomen, rupture in urethra and contusion over both hands. The
appellant took treatment as in-patient from 16.08.2009 to 07.09.2009 in
Government General Hospital and underwent surgery on 27.08.2009,
whereby ORIF with flexible nailing was done. On 08.09.2009, the suture was
removed. Even after prolonged treatment, the appellant could not do his day-
to-day affairs. Now he is taking continuous treatment as out-patient. The
Tribunal has not granted any amounts towards future medical expenses, loss
of earning power, loss of amenities and mental agony. P.W.3/Doctor examined
the appellant and certified that the appellant has suffered 80% disability. To
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C.M.A.No.1468 of 2013
prove the same, the apellant marked the Disability Certificate and X-ray as
Exs.P9 & P8 respectively. The amounts awarded by the Tribunal towards
extra nourishment, disability, transportation and pain & sufferings are meagre
and prayed for enhancement of compensation.
6.Per contra, the learned counsel appearing for the 2nd
respondent/Insurance Company contended that the Tribunal after considering
all the materials available on record, awarded compensation, which is not
meagre. The appellant has not made out any case for enhancement of
compensation and prayed for dismissal of the appeal.
7.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the 2nd respondent/Insurance Company and
perused all the materials available on record.
8.From the materials on record, it is seen that the claim petition is filed
by the minor appellant represented by his father claiming a sum of
Rs.9,00,000/- as compensation for the injuries sustained in the accident that
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C.M.A.No.1468 of 2013
took place on 16.08.2009. At the time of accident, the appellant was aged 11
years. The evidence was let in by the father of the minor appellant to show the
nature of injuries sustained by the minor appellant. Dr.J.R.R.Thiyagarajan
was examined as P.W.3. P.W.3/Doctor after examining the minor appellant
and X-ray with regard to the injuries, certified that the appellant suffered 80%
disability. The appellant has not let in any contra evidence to the evidence of
P.W.3. P.W.3 in his cross-examination deposed that there is a possibility of
5% variation from one Doctor to another for assessing the disability. The
Tribunal reduced the disability to 75% and granted a sum of Rs.1,50,000/- as
compensation towards disability by adopting percentage method. The
appellant was aged 11 years at the time of accident. The issue of
compensation granted for the injuries sustained by the minor, came up for
consideration before the Hon'ble Apex Court in the judgment reported in 2013
(2) TNMAC 338 (SC) [Master Mallikarjun Vs. Divisional Manager,
National Insurance Co. Ltd., and another] and the relevant paragraph is
extracted hereunder:
“12. Though it is difficult to have an accurate
assessment of the compensation in the case of children
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C.M.A.No.1468 of 2013
suffering disability on account of a motor vehicle accident,
having regard to the relevant factors, precedents and the
approach of various High Courts, we are of the view that
the appropriate compensation on all other heads in
addition to the actual expenditure for treatment, attendant,
etc. should be, if the disability is above 10% and up to
30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs;
up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6
lakhs. For permanent disability up to 10%, it should be
Rs.1 lakh, unless there are exceptional circumstances to
take a different yardstick.”
9.The appellant is entitled to compensation, by applying the principle
laid down by the Hon'ble Apex Court in the judgment referred to above. The
contention of the learned counsel for the appellant that the injuries sustained
by the victim in the case reported in 2013 (2) TNMAC 338 (SC) [Master
Mallikarjun Vs. Divisional Manager, National Insurance Co. Ltd., and
another] and the injuries sustained by the appellant in the present case are
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C.M.A.No.1468 of 2013
different and hence, the judgment of the Hon'ble Apex Court referred to above
is not applicable to the present case, is not acceptable. In the judgment
referred to above, the Hon'ble Apex Court held that it is very difficult to have
an accurate assessment of the compensation in the case of minor suffering
disability and after holding so, the Hon'ble Apex Court fixed compensation
payable to the minor based on the percentage of disability. In view of the
same, the appellant is entitled to compensation as per the ratio laid down in
the judgment of the Hon'ble Apex Court referred to above. In the present case,
the appellant suffered 80% disability and hence, he is entitled to a sum of
Rs.5,00,000/- as compensation for disability including pain & suffering and
loss of amenities. Further, Rs.25,000/- each are awarded towards attendant
charges, medical expenses and future medical expenses. The compensation
awarded by the Tribunal under all other heads are hereby set aside.
10.It is well settled that the Tribunal and the Courts have to award just
compensation. Though the claimants have claimed lesser compensation, the
Courts have power to grant just compensation more than the amount claimed
by the claimants. Thus, the compensation awarded by the Tribunal is modified
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C.M.A.No.1468 of 2013
as follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted or
reduced
1. Transportation 10,000 - Set aside
2. Extra nourishment 7,000 - Set aside
3. Damage to clothes 1,000 - Set aside
4. Medical expenses 2,997 - Set aside
5. Attender charges 2,000 - Set aside
6. Pain and suffering 40,000 - Set aside
7. Disability 1,50,000 - Set aside
8. Pain and suffering already - 5,00,000 Granted
undergone and to be
suffered in future, Mental
and Physical shock,
Hardship, Inconvenience
and Discomforts, etc., and
Loss of Amenities in Life
on account of Permanent
Disability
9. Discomfort, Inconvenience - 25,000 Granted
and Loss of Earnings to
the parents during the
period of Hospitalization
10. Medical and Incidental - 25,000 Granted
Expenses during the
period of Hospitalization
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C.M.A.No.1468 of 2013
for 58 days
11. Future Medical Expenses - 25,000 Granted
for correction of the mal
union of fracture and
incidental expenses for
such treatment
Total 2,12,997 5,75,000 Enhanced by
Rs.3,62,003/-
11.In the result, this Civil Miscellaneous Appeal is allowed and the
compensation awarded by the Tribunal at Rs.2,12,997/- is hereby enhanced to
Rs.5,75,000/- together with interest at the rate of 7.5% per annum from the
date of petition till the date of deposit. The appellant is directed to pay
necessary Court fee, if any, on the enhanced compensation. The 2nd
respondent/Insurance Company is directed to deposit the enhanced award
amount now determined by this Court along with interest and costs, less the
amount already deposited, if any, within a period of six weeks from the date
of receipt of a copy of this judgment. On such deposit, the award of the minor
appellant is directed to be deposited in any one of the Nationalised Banks till
the minor attains majority. The father of the minor appellant viz., Murugan, is
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C.M.A.No.1468 of 2013
permitted to withdraw the accrued interest once in three months for the
welfare of the minor. No costs.
03.12.2021
Index : Yes / No
Internet : Yes/ No
vkr
To
1.The Small Causes Court No.VI,
The Motor Accident Claims Tribunal
Chennai.
2.The Section Officer
V.R.Section
High Court, Chennai.
V.M.VELUMANI, J.,
vkr
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C.M.A.No.1468 of 2013
C.M.A.No.1468 of 2013
03.12.2021
https://www.mhc.tn.gov.in/judis
