Madras High Court

E.Vasudevan (Minor) vs R.Kamaraj on 23 February, 2021

                                                                                          C.M.A.No.969 of 2014

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        DATED: 23.02.2021

                                                            CORAM:

                              THE HONOURABLE MR.JUSTICE D. KRISHNAKUMAR

                                                       C.M.A.No.969 of 2014

                E.Vasudevan (Minor)
                S/o.Elumalai                                                ..Appellant


                                                              Versus

                1.R.Kamaraj
                [was set exparte in the trial Court]


                2.ICICI Lombard Gl.Insurance Co.Ltd.,
                  Arihant Plaza, No.84/85, Walltax Road,
                  Chennai – 600 003                                         ..Respondents

                Prayer:            Civil Miscellaneous Appeal filed under Section 173 of the Motor
                Vehicles Act, against the judgment and decree dated 20.09.2013 made in
                MACT.O.P.No.2091 of 2011 on the file of the Special Sub Judge-I, Motor
                Accidents Claims Tribunal, (Court of Small Causes), Chennai.


                                    For Appellant         : Mr.P.T.Salim Fathima
                                    For Respondents : Ms.R.Sreevidhya [for R2]
                                                      R1 – Notice served
                                                        *****




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                                                                                  C.M.A.No.969 of 2014

                                                 JUDGMENT

The Appellant/claimant has filed this appeal against the judgment and

decree dated 20.09.2013 made in MACT.O.P.No.2091 of 2011 on the file of the

Special Sub Judge-I, Motor Accidents Claims Tribunal, (Court of Small

Causes), Chennai.

2. The learned counsel appearing for the appellant submits that the first

respondent was set ex-parte.

3. The case of the appellant/claimant is as follows:

On 01.06.2011 at about 15.00 hours, the minor petitioner was riding the

cycle from North to South direction in Tirvuallur Salai and while he was about

to join K.B.Dasan Salai, a Motor Cycle bearing Registration No.TN-07-R-8317

came from West to East direction in K.B.Dasan Salai in a very high speed, rash

and negligent manner endangering to the public safety, came to the extreme

Northern side of the road and dashed against the petitioner, due to which he

sustained multiple compound and commuted fracture and degloving injury in

both bones in right leg below knee. Severe injury in the skull and chest.

Multiple internal and external injuries all over the body. Immediately, the

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C.M.A.No.969 of 2014

appellant/claimant was admitted at C.M.O., Government Royappettah Hospital,

Chennai, and for further treatment at St.Isabella Hospital, Mylapore, Chennai.

Since the appellant/claimant is a 14 year old boy, the appellant/claimant filed a

claim petition seeking compensation in a sum of Rs.9,00,000/- for the injuries

sustained by him in the accident.

4. Resisting the claim made by the appellant/claimant, the 2nd respondent

Insurance company has filed a detailed counter statement inter alia stating that

the accident did not occur in the manner as projected by the first

respondent/claimant. Thus, they prayed for dismissal of the claim petition.

5. Before the Tribunal, to prove his case, the father of the injured was

examined as P.W.1 and one Mr.Dr.Amarnath R.Sowlee was examined as P.W.2

and 7 documents were marked as Ex.P.1 to Ex.P7. On the side of the 2 nd

respondent/Insurance Company, none were examined and no exhibits were

marked.

6. On appreciation of materials, the Tribunal arrived at a finding that the

accident had occurred due to the rash and negligent driving of the Motorcycle

bearing Registration No.TN-07-R-8317 and held that the 2nd respondent/ https://www.mhc.tn.gov.in/judis/

C.M.A.No.969 of 2014

Insurance Company, as insurer of the said vehicle, is liable to pay

compensation. Accordingly, the Tribunal awarded a sum of Rs.1,13,000/- as

compensation. The break-up details are as follows:

Sl. Compensation awarded under the Amount No. head (in Rs.)

1. Permanent disability 50,000/-

25% x Rs.2,000/-

                               2.   Transportation                                 5,000/-
                               3.   Extra Nourishment                              5,000/-
                               4.   Medical Treatment                            38,000/-
                               5.   Pain and Sufferings                          15,000/-
                                                             Total          1,13,000/-

The said sum was directed to be paid together with interest at 7.5% p.a. from

the date of claim petition till the date of realization. Unsatisfied with the said

award, the appellant/claimant preferred the appeal before the said Court.

7. According to the appellant, oral and documentary evidence was

adduced before the Tribunal to prove that the appellant/claimant has sustained

30% of the disability in the accident.

8. Heard the learned counsel for the appellant/claimant and the learned

counsel for the 2nd respondent/Insurance Company.

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C.M.A.No.969 of 2014

9. Learned counsel for the appellant/claimant contended that P.W.2 –

Doctor was examined on the side of the appellant/claimant and he deposed that

the appellant/claimant has sustained 30% the disability in the said accident. The

Tribunal assessed 25% disability without any reason. Therefore, the said

finding of the Tribunal is liable to be set aside. Learned counsel further submits

that the amount awarded under the other heads is on the lower side.

10. Learned counsel for the respondent would submit that the award of

the Tribunal is fair and just and does not require any interference by this Court.

Learned counsel for the 2nd respondent/Insurance Company has objected for

awarding enhancement of compensation.

11. On perusal of evidence of P.W.2, Doctor, who was examined on the

side of the appellant, it is seen that he has assessed 30% disability. The Tribunal

has assessed 25% without any reason and therefore, this Court is of the opinion

that the appellant/claimant has suffered 30% partial disability in the said

accident. Considering the fact that P.W.2 was examined and deposed that the

appellant/claimant suffered 30% disability and taking note of the principles laid

down by the Supreme Court of India, this Court is of the view that the

compensation awarded under the head 'disability' requires enhancement. https://www.mhc.tn.gov.in/judis/

C.M.A.No.969 of 2014

12. This Court is of the view that the Tribunal has awarded Rs.2,000/-

per percentage of disability. Considering the age of the appellant/claimant i.e.,

14 at the time of the accident, it is appropriate to fix Rs.3,000/- per percentage

of disability. Therefore, compensation payable under the head 'disability' would

be,

30% x Rs.3000 = Rs.90,000/-.

The amount awarded under the other heads is hereby confirmed.

13. Accordingly, the modified compensation payable would be:

                             Sl.     Compensation awarded under the           Amount
                             No.                 head                         (in Rs.)
                               1.   30% of Disability                            90,000.00
                               2.   Transport                                      5,000.00
                               3.   Extra Nourishment                              5,000.00
                               4.   Pain and Sufferings                          20,000.00
                               5.   Attender Charges                               5,000.00
                               6.   Loss of Amenities                              5,000.00
                               7.   Medical Expenses                             38,000.00
                                                                   Total       1,68,000.00

14. In the result, this Civil Miscellaneous Appeal is partly allowed, the

total compensation of Rs.1,13,00/- awarded by the Tribunal is enhanced to

Rs.1,68,000/- along with interest at the rate of 7.5% per annum.

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C.M.A.No.969 of 2014

15. The 2nd respondent/Insurance Company shall deposit the modified

compensation amount, as awarded by this Court along with interest at the rate

of 7.5% per annum from the date of petition till the date of deposit, less the

amount already deposited, if any, within a period of six weeks from the date of

receipt of a copy of this judgment. The modified award amount of the

appellant/claimant shall be deposited in a nationalized bank till the minor

attains the majority and the father of the minor petitioner is permitted to