Madras High Court
Minor Ramesh vs Joint Director Of Medical And ... on 20 January, 2021
C.M.A. No.2482 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.2482 of 2019
Minor Ramesh
rep. by next friend, guardian and grand father,
Ramakrishnan .. Appellant
Vs.
1.Joint Director of Medical and Rural Health Services,
O/o. Joint Director of Medical and Rural Health Services,
Perambalur Post, Taluk & District 621 212.
2.Joint Director of Medical and Rural Health Services,
O/o. Joint Director of Medical and Rural Health Services,
Kancheepuram, Tamil Nadu 631 502.
3.M/s.The Oriental Insurance Company Ltd.,
Divisional Office – I,
Rep. By its Divisional Manager,
Oriental House, 1st floor,
No.216/115, Prakasam Salai,
Broadway, Chennai 1. .. Respondents
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C.M.A. No.2482 of 2019
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 07.01.2019, made
in M.C.O.P. No.625 of 2016, on the file of the Chief Judicial Magistrate,
(Motor Accident Claims Tribunal) Perambalur.
For Appellant : Mr.S.Kamadevan
For Respondents : Mr.M.Krishnamoorthy (For R3)
JUDGMENT
The matter is heard through "Video Conferencing".
This appeal has been filed for enhancement of compensation granted
by the award dated 07.01.2019, made in M.C.O.P. No.625 of 2016, on the file
of the Chief Judicial Magistrate, (Motor Accident Claims Tribunal)
Perambalur.
2.The minor appellant, represented by his grandfather, filed M.C.O.P.
No.625 of 2016, on the file of the Chief Judicial Magistrate, (Motor Accident
Claims Tribunal) Perambalur, claiming a sum of Rs.10,00,000/- as
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C.M.A. No.2482 of 2019
compensation for the injuries sustained by him in the accident that took place
on 24.01.2016.
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 Ambulance belonging to the respondents 1 and 2 and
directed the 3rd respondent as insurer of the offending vehicle to pay a sum of
Rs.1,20,000/- as compensation to the appellant.
4.Not being satisfied with the amounts awarded by the Tribunal in the
award dated 07.01.2019, made in M.C.O.P. No.625 of 2016, the appellant has
come out with the present appeal.
5.The learned counsel appearing for the appellant contended that in the
accident, the appellant suffered injuries and fracture. He has taken treatment
as inpatient at Kauvery Hospital, Trichy, from 26.01.2016 to 17.02.2016. He
was referred to the Medical Board. The Medical Board certified that the
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C.M.A. No.2482 of 2019
appellant suffered 35% disability. The Tribunal reduced the percentage of
disability to 10% and awarded only Rs.1,00,000/-. The Tribunal has not given
any justifiable reason to reduce the percentage of disability to 10%. The
amounts awarded by the Tribunal under different heads are meagre and
prayed for enhancement of the compensation.
6.Per contra, the learned counsel appearing for the 3rd respondent-
Insurance Company contended that the Medical Board assessed the disability
only for a particular limb and not for whole body. The appellant has not filed any
medical records with regard to injuries and period of treatment taken. The
Tribunal considering the injuries and improvement in physical condition of the
appellant, fixed 10% permanent disability and following the judgment of the
Hon'ble Apex Court reported in 2013 (2) TN MAC 338 (SC), [Master
Mallikarjun Vs. Divisional Manager, National Insurance Co. Ltd., &
another], awarded compensation. The learned counsel appearing for the 3rd
respondent further contended that in Master Mallikarjun's case, referred to
above, the disability assessed for a particular part of the body is 34% and
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C.M.A. No.2482 of 2019
disability for whole body is 18%. The Hon'ble Apex Court taking into
consideration the 18% disability assessed for whole body, granted
compensation only for 18% disability. The learned counsel appearing for the
3rd respondent contended that in the present case, the disability assessed is
only for a particular part of the body. The appellant is not entitled to
compensation for 35% disability assessed for a particular part of the body, as
per the judgment of the Hon'ble Apex Court referred to above. The Tribunal
rightly converted the same to whole body, fixed the disability at 10% and
granted compensation. There is no error in fixing 10% disability for whole
body and prayed for dismissal of the appeal.
7.In support of his contentions, the learned counsel relied on the
following paragraphs of the judgment reported in 2013 (2) TN MAC 338
(SC), referred to above:
“5.The surgeon had assessed the disability to the
extent of 34% of right lower limb and 18% to the whole
body.
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C.M.A. No.2482 of 2019
12. Though it is difficult to have an accurate
assessment of the compensation in the case of children
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 upto 30%
to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto
90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs.
For permanent disability upto 10%, it should be Re.1 lakh,
unless there are exceptional circumstances to take different
yardstick.”
8.Heard learned counsel appearing for the appellant as well as the 2nd
respondent-Insurance Company and perused the materials available on record.
9.From the materials on record, it is seen that it is the case of the appellant
that he suffered severe injuries in the accident and has taken treatment in
Hospital for the same. He was referred to the Medical Board and the Medical
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C.M.A. No.2482 of 2019
Board assessed the disability of the appellant as 35% for right upper limb and
right lower limb. The Medical Board has not assessed the disability for whole
body. As rightly pointed out by Mr. M.Krishnamoorthy, learned counsel
appearing for the 2nd respondent, the Hon'ble Apex Court in the judgment
reported in 2013 (2) TN MAC 338 (SC) (Master Mallikarjun case) referred
to above, has awarded compensation only for 18% disability assessed for
whole body. Therefore, the contention of the learned counsel appearing for
the appellant that appellant is entitled to compensation for 35% disability is
not correct. The Medical Board assessed the disability of the appellant at
35%. The Tribunal has not stated that 10% disability is for whole body. The
disability assessed by the Medical Board is converted to whole body as
11.66%. As per the judgment of the Hon'ble Apex Court in Master
Mallikarjun case, referred to above, for 10%-30% disability, the
compensation payable is Rs.3,00,000/-. Hence, the amount awarded by the
Tribunal towards permanent disability including pain and suffering and loss
of amenities is enhanced to Rs.3,00,000/-, for 11.66% disability. The amounts
granted by the Tribunal under other heads are just and reasonable and hence,
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C.M.A. No.2482 of 2019
the same are confirmed. Thus, the compensation awarded by the Tribunal is
modified as follows:
S. No Description Amount Amount Award
awarded by awarded by this confirmed or
Tribunal Court (Rs) enhanced or
(Rs) granted
1. Discomfort, 10,000/- 10,000/- Confirmed
inconvenience and loss
of earnings
2. Incidental expenses 10,000/- 10,000/- Confirmed
3. Disability, pain and 1,00,000/- 3,00,000/- Enhanced
suffering and loss of
amenities
Total 1,20,000/- 3,20,000/- Enhanced by
Rs.2,00,000/-
10.In the result, the appeal is partly allowed and the amount awarded
by the Tribunal at Rs.1,20,000/- is enhanced to Rs.3,20,000/- together with
interest at the rate of 7.5% per annum from the date of petition till the date of
deposit. The 3rd respondent-Insurance Company is directed to deposit the
award amount now determined by this Court, along with interest and costs,
within a period of six weeks from the date of receipt of a copy of this
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C.M.A. No.2482 of 2019
judgment, to the credit of M.C.O.P. No.625 of 2016. On such deposit, the
award amount is directed to be deposited in any one of the Nationalized
Bank, till the minor appellant attains majority. The grand father of the minor
appellant is permitted to withdraw the accrued interest, once in three months
for the welfare of the minor appellant. No costs.
20.01.2021
Index: Yes/No
gsa
To
1.The Chief Judicial Magistrate,
(Motor Accident Claims Tribunal),
Perambalur.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A. No.2482 of 2019
V.M.VELUMANI, J.,
gsa
C.M.A.No.2482 of 2019
20.01.2021
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