Madras High Court

Parthasarathy vs K.A.Abdul Hadhi & Bros on 25 January, 2021

                                                              1

                                      In the High Court of Judicature at Madras

                                                Dated: 25.01.2021

                                                      Coram

                                   The Honourable Mr. Justice D.KRISHNA KUMAR


                                              C.M.A.No.1944 of 2012



                     Parthasarathy                                    ... Appellant


                                                     ..Vs..


                     1.K.A.Abdul Hadhi & Bros.
                       (A partnership firm rep. by
                       Managing Partner K.A. Abdul Hadhi),
                       Dolath Beedi Mfrs.,
                       17, Fort Street,
                       Tirupattur,
                       Vellore District.

                     2.Oriental Insurance Company Ltd.,
                       Branch Office,
                       12, Katpadi Road,
                       Gudiyatham-632 602,
                       Vellore District.                                  ... Respondents


                     Prayer : This Civil Miscellaneous Appeal is filed under Section 173
                     of Motor Vehicles Act, 1988, against the judgment and award
                     passed by the learned Additional Sub Judge, (MACT), Krishnagiri in
                     M.C.O.P.No.289 of 2009 dated 06.01.2012.




https://www.mhc.tn.gov.in/judis/
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                                    For Appellant             : Mr.P.Mani
                                    For Respondent-1          : No Appearance
                                    For Respondent-2          : Mr.N.Sampath

                                                    JUDGMENT

Being aggrieved by the award passed by the Motor Accident

Claims Tribunal / learned Additional Sub Judge, (MACT), Krishnagiri

in M.C.O.P.No.289 of 2009 dated 06.01.2012, the

appellant/claimant has preferred the present appeal.

2. Heard Mr.P.Mani, learned counsel appearing on behalf of

the appellant and Mr.N.Sampath, learned counsel for the second

respondent/Insurance Company. Inspite of the notice served on the

first respondent, none appears on his behalf. Hence, the appeal is

taken up today for final disposal.

3. The brief facts of the case are as follows:

a) On 15.07.2006 at about 2.00 p.m., when the

claimant/appellant was riding in his motor cycle bearing registration

No.TN-29-H-9241 along with two others, the first respondent

vehicle viz., Tempo Van bearing registration No.TN-23-W-5032

insured with the second respondent herein came in the opposite

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direction in a rash and negligent manner, dashed against the motor

cycle causing grievous injuries to the appellant as well as the pillion

rider. Hence, the claimant/appellant had filed a claim petition

before the Tribunal claiming a sum of Rs.10 lakhs as compensation

for the injuries sustained by him in the accident.

b) Before the Tribunal, witnesses P.W.1 to P.W.3 were

examined and exhibits P1 to P11 were marked on the side of the

claimants whereas R.W.1 was examined and exhibits R1 to R3 were

marked on the side of the respondent Insurance Company. After

analyzing both oral and documentary evidences, the Tribunal came

to the conclusion that the accident had occurred only due to the

rash and negligent driving of the driver of the first respondent's

vehicle. Since the name of the driver of the Tempo Van was not

found in the petition and he did not also have a proper and valid

driving license at the time of the accident, the second respondent

Insurance Company is absolved from the liability. However, the

Tribunal has directed the Insurance Company to pay and recover

the compensation amount of Rs.42,000/- with interest at the rate of

9% p.a. awarded to the claimant/appellant herein from the owner of

the vehicle/first respondent herein.

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c) The break-up details of the award passed by the Tribunal is

as follows:

                              S.No.               Heads                     Amounts (Rs.)
                      1                 Temporary disability       20,000
                      2                 Nutritious food             1,000
                      3                 Attendant benefits          1,000
                      4                 Pain and sufferings        10,000
                      5                 Loss of amenities          10,000
                                        Total                      42,000

4. Aggrieved over the same, the claimant/appellant has

preferred the present appeal for enhancement of compensation.

5. The learned counsel for the appellant submitted that the

Tribunal had erred in taking the percentage of disability assessed by

the doctor P.W.3 / Dr.S.Krishnakumar wholly and only it has taken

10% disability to arrive at the loss of disability. He further

submitted that taking into account 40% disability evidenced through

Ex.P9/disability certificate assessed by the doctor, the amount has

to be granted under the said head. Furthermore, he submitted that

the expenses incurred towards medical bills had been denied by the

Tribunal though supported by medical bills marked as Ex.P5 and

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vehemently contended that the Tribunal ought to have awarded the

amount incurred towards medical expenses by the appellant as he

underwent plastic surgery. He also submitted that the amount

awarded by the Tribunal under the other heads needs enhancement.

6. On the other hand, the learned counsel for the Insurance

Company submitted that the Tribunal accepting their contentions in

respect of violation of policy had rightly absolved their liability but

however, directed the Insurance Company to pay the compensation

amount and recover the same from the owner of the vehicle. The

learned counsel also contended that P.W.3 was not the doctor who

treated the appellant for the injuries sustained in the accident. He

also contended that the appellant had not served any notice on the

driver of the Tempo Van which amounts to breach of policy

conditions. He submitted that since there is a violation of policy

conditions, the Insurance company has to be exonerated from

paying the compensation to the claimant as directed by the Tribunal

and pleaded before this Court to direct the first respondent/owner of

the vehicle to pay the compensation amount.

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7. On perusal of the records, it is seen that P.W.3

Dr.S.Krishnakumar had assessed the disability at 40% based on the

medical records under Ex.P9 and hence this Court opines that the

Tribunal had wrongly taken the disability at 10%, without getting an

expert opinion from the medical board as against the assessment of

P.W.3, who has assessed the disability at 40%. Hence, on fixing the

disability at 40% as assessed by P.W.3, a sum of Rs.80,000/-

(Rs.2000/- per percentage of disability) has been arrived for the

disability sustained by the claimant/appellant at the accident that

took place on 15.07.2006. This Court taking into consideration of

the medical bills marked by the appellant as Ex.P5 before the

Tribunal as the plastic surgery undergone by the appellant has not

been disproved by the respondent, awards a sum of Rs.98,016.29/-

rounded off to Rs.98,000/- towards the head of medical expenses.

In regard to the contention of the Insurance Company, this Court

accepts the findings of the Tribunal in directing the Insurance

Company to pay the compensation amount and recover the same

from the owner of the vehicle following the dictum laid down by the

Hon'ble Apex Court in Anu Bhanvara etc. V. Iffco Tokio General

Insurance Company Limited & Others in Civil Appeal

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Nos.6231 & 6232 of 2019. Moreover, this Court is of the view

that the appellant had underwent plastic surgery and undergone

agony both physically and mentally and hence except the amount

awarded by the Tribunal under loss of amenities, the other heads

has to be enhanced. Accordingly, the amount of Rs.15,000/-,

Rs.5000/- and Rs.20,000/- towards nutritious food, attendant

benefits and pain & sufferings respectively are granted by this Court

as against the amount awarded by the Tribunal under the said

heads. In view of the foregoing reasons, the award passed by the

Tribunal is modified by this Court to the following effect:-

S.No. Heads Amount awarded Amount granted by the Tribunal by this Court (Rs.) (Rs.) 1 Temporary disability-40% 20,000 80,000 (Rs.2000/- per disability) (40 x 2000) 2 Nutritious food 1,000 15,000 3 Attendant benefits 1,000 5,000 4 Pain and sufferings 10,000 20,000 5 Loss of amenities 10,000 10,000 6 Medical expenses - 98,000 Total 42,000 2,28,000

8. Accordingly, the Civil Miscellaneous Appeal filed by the

claimant/appellant is partly allowed. As per the findings of the

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Tribunal, this Court directs the second respondent/Insurance

Company to pay and recover the compensation awarded to the

claimant/appellant from the owner of the vehicle/first respondent

herein. The Insurance Company is directed to deposit the

entire/balance of the compensation amount awarded to the

appellant less the amount already deposited if any, before the

Tribunal within a period of 8 weeks from the date of receipt of a

copy of this order. On such deposit being made, the

appellant/claimant is entitled to withdraw the same on filing

appropriate petition before the Tribunal. It is also made clear that

the rate of interest would be 7.5% p.a. for the enhanced

compensation amount from the date of appeal till the date of

realization.