Madras High Court
Udaiyal vs Panneer Selvam on 22 January, 2021
C.M.A(MD)No.963 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A(MD)No.963 of 2010
Udaiyal : Appellant/Claimant
Vs.
1.Panneer Selvam
2.The Divisional Manager,
United India Insurance Company Ltd.,
7A, West Masi Street,
Madurai, Madurai District. : Respondents/Respondents
PRAYER: Civil Miscellaneous Appeal has been filed under
Section 173 of Motor Vehicles Act, to set aside the award in
M.C.O.P.No.29 of 2007 on the file of the Motor Accident Claims
Tribunal, Paramakudi, dated 07.01.2010 and to enhance the award
amount.
For Appellant : Mr.D.Senthil
For R1 : Mr.T.Lajapathi Roy
For R2 : Mr.S.Natarajan
JUDGMENT
This appeal has been preferred by the claimant seeking
enhancement of compensation.
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C.M.A(MD)No.963 of 2010
2. The claim petition in M.C.O.P.No.29 of 2007 was filed by the
appellant before the Motor Accident Claims Tribunal, Paramakudi
seeking compensation of Rs.1,50,000/-. The case of the claimant is
that on 10.10.2006 she was not well and hence, she travelled in a
bus along with her husband from her native place to Paramakudi.
After alighting from the bus, both were standing near five corner bus
stop to board a mini bus and at that time, a Herohonda motorcycle
TN-65-B-7665, which was owned by the first respondent insured
with the second respondent came in a high speed and hit against
her. In the accident, she sustained fracture and injuries on her
body. Therefore, she was taken to Paramakudi Government Hospital
and after providing first-aid, she was referred to Government Rajaji
Hospital, Madurai.
3. The claimant would state that from 10.10.2006 to
09.11.2006 she was taking treatment as inpatient in Government
Rajaji Hospital, Madurai and she also underwent surgery. It is
further stated that she is an agricultural coolie and her husband is
senior citizen aged about 70 years old and hence, their family is
suffering.
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C.M.A(MD)No.963 of 2010
4. A counter affidavit has been filed by the second respondent
before the Tribunal disputing the manner of accident and their
liability to pay compensation. It is their case that the claimant
without following the traffic regulations attempted to cross the road,
thereby invited the accident, therefore, she is not entitled for
compensation.
5. Before the Tribunal, in order to prove the case of the
claimant, P.Ws.1 to 3 were examined and Exs.P1 to P12 were
marked. On the side of the respondents three witnesses were
examined and five documents were produced.
6. The Tribunal, based on the evidence of P.W.1 and the
documents Ex.P1-FIR, Ex.P2-Observation Mahazar, Ex.P3-sketch,
Ex.P4-Motor Vehicle Inspector Report, Ex.P5-Charge-sheet, held that
the driver of the two-wheeler caused accident. The said finding has
become final, as no appeal has been preferred against the findings
of the Tribunal.
7. Insofar as quantum of compensation is concerned, P.W.1
has stated that for a period of 30 days i.e., from 10.10.2006 to
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C.M.A(MD)No.963 of 2010
09.11.2006 she took treatment as Inpatient in Government Rajaji
Hospital, Madurai. The evidence of P.W.2 and Ex.P8 discharge
summary corroborated the evidence of P.W.1. P.W.2-doctor
Palaniappan after examining the claimant and perusing the medical
records, issued a Ex.P9 disability certificate stating that she
sustained 50% permanent disability. Since, P.W.2 did not give
treatment to the claimant and she was examined by P.W.2 on
23.08.2008, the Tribunal has taken the disability as 25%. According
to P.W.1 she has to spend another Rs.15,000/- for removal of the
plate.
8. The Tribunal considering the evidence of claimant, has
awarded a sum of Rs.25,000/- for injuries, Rs.3,000/- for attendant
charges, Rs.1,500/- for extra nourishment, Rs.3,000/- for loss of
income, Rs.3,000/- for transportation, Rs.25,000/- for permanent
disability and Rs.10,000/- for future medical expenses.
9. It is the submission of the learned counsel for the appellant
that though it is proved that the claimant had sustained fracture and
he was treated as inpatient for more than 30 days, the Tribunal has
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C.M.A(MD)No.963 of 2010
not awarded any amount for pain and suffering. In respect of other
heads also, the award amount is very meager.
10. Considering the materials available on record, this Court is
of the opinion that the claimant is entitled to compensation of
Rs.15,000/- for pain and suffering and Rs.10,000/- for attendant
charges. The award of the tribunal is modified as under:-
S.No Description Amount Amount Award confirmed
awarded by awarded by or enhanced or
Tribunal this Court granted
(Rs) (Rs)
1. For grievous 25,000 25,000 confirmed
injuries
2. For attendant 3,000 10,000 enhanced
charges
3. For Nutrition 1,500 1,500 confirmed
4. For Loss of 3,000 3,000 confirmed
Income
5. For 3,000 3,000 Confirmed
Transportation
6. For 25% 25,000 25,000 confirmed
disability
7. For future 10,000 10,000 confirmed
medical
expenses
8. For pain and - 15,000 awarded
suffering
Total Rs.70,500 Rs.92,500/- By enhancing a
sum of
Rs.22,000/-
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C.M.A(MD)No.963 of 2010
11.While deciding the liability, the Tribunal had taken note of
the fact that the second respondent Insurance Company issued
notice under Ex.R4, seeking the driving licence particulars from the
insured, the first respondent herein and the driving licence was not
produced and he also remained ex-parte before the Tribunal and the
driver of the two-wheeler was not examined, exonerated the
insurance company from paying the compensation.
12. It is seen from the records that the rider of the vehicle,
namely, Selvakumar was holding the licence for driving the light
motor vehicle, but he was not granted a licence to ride two-wheeler.
So, the Tribunal directed the claimant to recover the award from the
owner of the vehicle.
13. In the matter on hand, it is not disputed that the claimant
is a third party and the offending vehicle TN-65-B-7665 had
insurance coverage with the second respondent Insurance Company
on the date of accident. It is well settled that even there is any
violation of policy conditions, the Insurance Company has to pay the
amount at the first instance to the claimant and thereafter, recover
from the owner of the vehicle. So, the finding of the Tribunal the
claimant has to recover the award amount from the owner of the
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C.M.A(MD)No.963 of 2010
vehicle is set aside and the Insurance Company is hereby directed to
satisfy the award amount at the first instance and thereafter, recover
the said amount from the owner of the vehicle.
14 In the result, this Civil Miscellaneous Appeal is allowed,
enhancing the award of the Tribunal from Rs.70,500/- to a sum of
Rs.95,000/-. The original award amount of the Tribunal shall
carry interest at the rate of 7.5% per annum and the
enhanced award amount shall carry interest at the rate of
6% p.a.
15. The second respondent-Insurance Company shall deposit
the modified award amount with accrued interest and costs, within a
period of eight weeks from the date of receipt of a copy of this
judgment, less the amount already deposited, if any and thereafter,
recover the same from the owner of the vehicle. On such deposit,
the claimant is entitled to withdraw the entire amount. No costs.
22.01.2020
am
Internet:Yes/No
Index : Yes/No
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C.M.A(MD)No.963 of 2010
Note: In view of the present lock down
owing to COVID-19 pandemic, a web copy
of the order may be utilized for official
purposes, but, ensuring that the copy of
the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The Motor Accident Claims Tribunal,
Paramakudi.
2.V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.963 of 2010
K.KALYANASUNDARAM.J.,
am
C.M.A(MD)No.963 of 2010
22.01.2010
http://www.judis.nic.in
