Madras High Court
Icici Lombard General Insurance ... vs Minor J.Sindhu on 13 December, 2021
C.M.A.Nos.3447 and 3454 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.Nos.3447 & 3454 of 2021
and
C.M.P.Nos.19875, 19900 & 19901 of 2021
ICICI Lombard General Insurance Company Limited
ICICI Lombard House
414, Veer Savarkar Marg
Near Siddhi Vinayak Temple
Prabhadevi, Mumbai-400025.
Maharashtra State. ... Appellant in
both the C.M.A's.
Vs.
1.Minor J.Sindhu
Represented by Father & Next Friend
S.Jaishankar
2.B.Raja
3.The Managing Director
Tamilnadu State Transport Corporation Limited
12, Ramakrishna Road, Salem-636 007.
Salem Taluk and District.
1/13
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C.M.A.Nos.3447 and 3454 of 2021
Branch Office-Oonjakoari
Sankari, Bhavani Main Road
Sankari Village and Taluk
Salem District. ... Respondents in
C.M.A.No.3447 of 2021
1.R.Saravanan
2.B.Raja
3.The Managing Director
Tamilnadu State Transport Corporation Limited
12, Ramakrishna Road, Salem-636 007.
Salem Taluk and District.
Branch Office-Oonjakoari
Sankari, Bhavani Main Road
Sankari Village and Taluk
Salem District. ... Respondents in
C.M.A.No.3454 of 2021
COMMON PRAYER: Civil Miscellaneous Appeals are filed under Section 173
of the Motor Vehicles Act 1988, against the Judgment and Decree dated
10.08.2019 made in M.C.O.P.Nos.211 and 222 of 2014 on the file of Sub
Ordinate Judge cum Motor Accident Claims Tribunal, Subordinate Court,
Sankari.
In both the CMA's:.
For Appellant : Mr.K.Poomalai
For Respondents : Mr.C.Kulanthaivel for R1
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C.M.A.Nos.3447 and 3454 of 2021
COMMON JUDGMENT
[Judgment of the Court was delivered by K.KALYANASUNDARAM, J.]
These appeals are arising out of the common order passed by the Sub
Ordinate Judge cum Motor Accident Claims Tribunal, Subordinate Court,
Sankari, in M.C.O.P. Nos.211 and 222 of 2014, dated 10.08.2019.
2.For the sake of convenience, parties are referred to as per their ranking in
the claim petition.
3.M.C.O.P.No.211 of 2014 was filed by a minor girl-Sindhu, aged about 10
years, seeking compensation of Rs.25,00,000/-. M.C.O.P.No.222 of 2014 was
filed by Saravanan, who sustained injuries in an accident taken place on
20.05.2014. According to the claimants, they were traveling as passenger in the
bus belonging to the Tamilnadu State Transport Corporation Limited bearing
Registration No.TN 30 N 1003. When the bus was proceeding from Salem to
Harur Main Road, the driver of the Mahindra Maximo Plus light Goods Vehicle
bearing Registration No.TN 29 AT 4847 drove in the opposite direction, in a rash
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C.M.A.Nos.3447 and 3454 of 2021
and negligent manner with uncontrolled speed dashed on the right side of the
Transport Corporation bus. Due to the accident both the claimants were sustained
multiple injuries and they were immediately taken to hospital for treatment. In
this regard a criminal case was registered in Cr.No.179 of 2014, under Sections
279, 337 and 338 of IPC, against the driver of the Mahindra Maximo Plus light
Goods Vehicle. Alleging that the accident had taken place due to the rash and
negligent driving of the driver of the Mahindra Maximo Plus light Goods Vehicle,
the claimants laid petitions claiming compensation of Rs.25,00,000/- and
Rs.50,00,000/- respectively before the Tribunal.
4.Resisting the claim petitions, the appellant Insurance Company filed their
counter disputing the manner of accident, age, avocation and income of the
claimants and its liability to pay the compensation. It was also contended that the
compensation claimed by the claimants is excessive.
5. To substantiate the case, on the side of the claimants, P.Ws.1 to 3 were
examined and Exs.P.1 to 29 were marked. On the side of the respondents, R.Ws.1
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C.M.A.Nos.3447 and 3454 of 2021
to 4 were examined and Exs.R.1 to 7 were marked.
6.The Tribunal, after considering the oral and documentary evidence held
that the 1st respondent/driver of the Mahindra Maximo Plus light Goods Vehicle
was responsible for the accident and awarded compensation of Rs.30,00,000/- to
the claimant in M.C.O.P.No.211 of 2014 and awarded compensation of
Rs.20,00,000/- to the claimant in M.C.O.P.No.222 of 2014.
7.Assailing the award passed by the Tribunal, the appellant Insurance
Company has filed these appeals.
8.The learned counsel for the appellant would submit that the Tribunal
erred in fixing the entire negligence on the driver of the Mahindra Maximo Plus
light Goods Vehicle. Further, the driver is not holding a valid driving license at
the relevant point of time and the award of the Tribunal is on the higher side,
which is not in consonance with the facts of this case.
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C.M.A.Nos.3447 and 3454 of 2021
9.Per contra, the learned counsel appearing for the claimants submitted that
the minor claimant was a school going child at the time of the accident and her
right hand was amputated from shoulder level. Though the award of the Tribunal
under the head of 'Pain and suffering' and 'extra nourishment' are appear to be
higher side, the Tribunal failed to take into account, the 'future medical expenses',
'loss of marital aspects', 'loss of amenities' and hence the award is reasonable and
justifiable. In the case of the claimant in M.C.O.P.No.222 of 2014, the learned
counsel submitted that the claimant was a conductor, working in the Transport
Corporation and he sustained injuries at the age of 44 years and due to the right
hand major crush injury, the claimant was not able to do his day to day activities
and also totally lost his earning capacity. Thus the Tribunal has awarded a just and
reasonable award, which does not require this Court's interference.
10.We have considered the rival submissions and perused the materials
available on record.
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C.M.A.Nos.3447 and 3454 of 2021
11.With regard to negligence, it is an admitted fact that a criminal case was
registered against the driver of Mahendra Maximo Plus and after investigation a
final report was filed against him. He pleaded guilty and paid the fine amount.
That apart, the Tribunal based on the reports of the Motor Vehicle Inspector-
Exs.P.7 and P8 came to the conclusion that the accident occurred due to the
negligence of the driver of the Mahendra Maximo Plus Vehicle. Therefore, we
confirm the finding of the Tribunal.
12.Minor J.Sindhu, who met with an accident on 20.05.2014 was 10 years
old and she was a student in Corporation Middle School at Thiruppur. She was
admitted as an in-patient at Ganga Hospital, Coimbatore. Her father gave
evidence as P.W.1 and he narrated the injuries sustained by the minor child and
the nature of treatment given to her. It is evident from the records that the right
hand of the minor child was amputated. The Tribunal fixing notional income at
Rs.5,000/- per month has awarded Rs.9,72,000/- towards 'loss of earning
capacity'. Based on Ex.P.6-Medical Bills, the Tribunal has awarded Rs.1,70,000/-
towards 'medical expenses'. Taking note of the fact that the minor child met with
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C.M.A.Nos.3447 and 3454 of 2021
an accident, her hands were amputated and for her further treatment, the Tribunal
has awarded Rs.15,00,000/- as 'pain and sufferings'. Rs.50,000/- was awarded
towards 'transportation' and Rs.3,00,000/- was awarded for 'Extra nourishment'.
Further an amount of Rs.8,000/- was awarded towards 'Attender charges'. As
rightly pointed out by the learned counsel for the claimants, the Tribunal failed to
award compensation for loss of amenities and loss of marital aspects and future
medical expenses. Therefore, in our considered view, the amount awarded
towards pain and sufferings and extra nourishment can be adjusted with other
heads. Amounts awarded under other heads are just and reasonable.
13.In so far as the claimant in M.C.O.P.No.222 of 2014, he was working as
a Conductor and his right hand was crushed in the accident. The medical board
assessed his disability as 55 %. He was provided with alternative employment.
Taking into consideration that the injuries sustained by him and the period of
treatment, Rs.5,00,000/- awarded under the head of pain and suffering appears to
be on higher side. Hence it is reduced to Rs.2,00,000/- and the amounts awarded
under the other heads cannot be said to be exorbitant or bonanza, therefore, there
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C.M.A.Nos.3447 and 3454 of 2021
are confirmed.
14.In the result,
(i) the C.M.A.No.3447 of 2021 stands dismissed. The appellant/Insurance
Company is directed to deposit the award amount with accrued interest and costs,
less the amount already deposited, if any, within a period of eight weeks from the
date of receipt of a copy of this order. On such deposit, the father of the minor
child, Mr.S.Jaishankar is permitted to withdraw 50 % of the amount, less the
amount already withdrawn. Remaining 50% of the amount shall be deposited in
any Fixed Deposit Scheme in any one of the Nationalized Bank and it shall be
renewed periodically till the minor child attains majority and the interest accrued
thereon shall be withdrawn by the father of the minor child, once in three months.
(ii) the C.M.A.No.3454 of 2021 stands partly allowed and the thus, the
total compensation payable to the claimant is re-calculated and tabulated below:
1. Loss of earning capacity Rs.9,24,000/-
2. Medical Expenses Rs.4,53,000/-
3. Pain and Sufferings Rs.2,00,000/-
4. Transportation Expenses Rs.50,000/-
5. Nutrition Food Rs.50,000/-
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C.M.A.Nos.3447 and 3454 of 2021
1. Loss of earning capacity Rs.9,24,000/-
6. Future Medical Expenses Rs.20,000/-
7. Damages Rs.3,000/-
Total Rs.17,00,000/-
15.The appellant in C.M.A.No.3454 of 2021 is directed to deposit the
modified award amount of Rs.17,00,000/- to the credit of the claim petition
within a period of eight weeks from the date of receipt of a copy of this order.
On such deposit, the claimant is permitted to withdraw the award amount, less the
amount already withdrawn, if any, together with proportionate interest and costs.
16.The Tribunal having analyzed the evidence found that the driver of the
offending vehicle was not holding an effective and valid driving license at the
time of accident and hence directed the appellant in both the C.M.A's., to satisfy
the award amount and thereafter recover the same from the owner of the
offending vehicle, such finding of the Tribunal is confirmed. No costs.
Consequently connected miscellaneous petitions are closed.
[M.K.K.S.,J.] [V.S.G.,J.]
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C.M.A.Nos.3447 and 3454 of 2021
13.12.2021
Index : Yes/No
Internet : Yes/No
Speaking order/Non-speaking order
Jer
To
1.The Sub Ordinate Judge cum Motor Accident Claims Tribunal
Subordinate Court, Sankari.
2.V.R.Section,
Madras High Court,
Chennai.
3.The Managing Director
Tamilnadu State Transport Corporation Limited
12, Ramakrishna Road, Salem-636 007.
Salem Taluk and District.
Branch Office-Oonjakoari
Sankari, Bhavani Main Road
Sankari Village and Taluk
Salem District.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.3447 and 3454 of 2021
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
Jer
C.M.A.No.3447 and 3454 of 2021
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C.M.A.Nos.3447 and 3454 of 2021
13.12.2021
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