Madras High Court
National Insurance Company ... vs Minor Surendar on 3 June, 2021
C.M.A.No.3234 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 03.06.2021
Coram :
THE HONOURABLE MRS. JUSTICE S.KANNAMMAL
Civil Miscellaneous Appeal No. 3234 of 2010
----
National Insurance Company Limited,
Branch Office,
165, Netaji Road,
Manjakuppam,
Cuddalore-607 001. .. Appellant
Versus
1.Minor Surendar
represented by his mother
and natural guardian Mrs.Rukmani.
2.Chandramohan .. Respondents
Civil Miscellaneous Appeal filed under Section 173 of The Motor
Vehicles Act, 1988 against the Judgment and Decree dated 25.01.2007 made
in M.C.O.P.No.19 of 2005 on the file of the Additional Subordinate
Judge(Motor Accidents Claims Tribunal), Cuddalore.
For Appellant : M/s.R.Rathnathara
For R1 : Minor Surendar
represented by his mother
For R2 : Ex-parte
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C.M.A.No.3234 of 2010
JUDGMENT
(heard through video-conferencing)
This Civil Miscellaneous Appeal is filed against the Judgment and
Decree dated 25.01.2007 made in M.C.O.P.No.19 of 2005 on the file of the
Additional Subordinate Judge(Motor Accidents Claims Tribunal), Cuddalore.
2. The brief facts of the case are as follows:
On 03.07.2003 at about 1.45 p.m., when the injured was riding his
bicycle, the two wheeler belonging to the second respondent herein, came in a
rash and negligent manner and dashed against the injured. As a result, the
injured sustained injuries and he was admitted in the hospital. The Injured was
a minor at the time of accident. Hence the claim petition was filed by the
mother representing the minor. The claimant filed a claim petition before the
Motor Accident Claims Tribunal, Cuddalore, claiming compensation of
Rs.5,00,000/- for the injuries sustained.
3.The appellant is the National Insurance Company and in the counter
statement has denied all the allegations except those that are specifically
admitted. The insurance company denied the alleged injuries sustained by the
petitioner, age, income, occupation and quantum of compensation claimed by
the petitioner and sought for dismissal of the petition.
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C.M.A.No.3234 of 2010
4. In order to prove the claim, on the side of the claimant the mother of
the injured minor was examined as P.W.1 and the minor injured was examined
as P.W.2. The doctor who has given the disability certificate to the minor
injured was examined as P.W.3. 10 documents were marked viz., Ex.P1 to
P10. No oral or documentary evidence was let in on the side of Insurance
Company.
5.The Tribunal upon analysing the evidence and documents placed
before it as given a finding that the accident occurred only due to the rash and
negligent driving of the driver of the car bearing No.PY-01-U-3853 which
belongs to the first respondent. The Tribunal has also awarded Rs.2,93,310/-
towards compensation for the injury sustained by the claimant. The break-up
details of the amount awarded by the Tribunal under various heads are as
follows:
S.No. Heads under which the amount is Amount in Rs.
awarded by the Tribunal
1. Loss of earning capacity 1,50,000/-
2. Future Medical Expenses 75,000/-
3. Pain and Suffering 25,000/-
4. Extra Nourishment 25,000/-
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C.M.A.No.3234 of 2010
S.No. Heads under which the amount is Amount in Rs.
awarded by the Tribunal
5. Transportation 1,000/-
6. Medical Bill 17,310/-
Total Compensation Rs.2,93,310/-
6. Aggrived by the award passed by the Tribunal the insurance company
has preferred this appeal questioning the quantum of compensation. Inspite of
given sufficient opportunities there was no representation for the first
respondent.
7. Heard the arguments of appellant. The learned counsel for the
appellant contended that the Tribunal has grossly erred in awarding exorbitant
sum of Rs.2,93,310/- as compensation which is not inconsonance with the
facts and circumstances of the case and principles for awards in similar case.
The learned counsel for the appellant would submit that the injured was a
minor at the time of accident, but the Tribunal has awarded Rs.1,50,000/- for
loss of earning capacity, considering the 45% disability fixed by P.W.2 the
doctor. The learned counsel further submitted that P.W.2, the doctor has not
treated the injured for the injuries suffered by him in the accident on
03.07.2003, but he has examined the injured for the first time on 04.09.2006
only for the purpose of issuing disability certificate. It is also submitted that
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C.M.A.No.3234 of 2010
the Tribunal has grossly erred in ignoring the tender age of the first
respondent, there are probabilities that the extent of disability will get reduced
over period of time. The learned counsel would further submit that the first
respondent was only a minor and there was no piece of evidence to prove his
occupation and income as alleged in the claim petition and further the first
respondent was not shown to have been incapacitated from doing any work
whatsoever in the future for awarding a substantial sum of compensation under
the head of loss of earning capacity. The compensation of Rs.1,50,000/- under
the head of loss of earning capacity is highly arbitrary and highly excessive.
The learned counsel submitted that the Tribunal grossly erred in awarding a
huge sum of Rs.75,000/- under the head of future medical expenses and not
sustainable in the absence of any reliable evidence on that aspect.
8. It is seen from Ex.P1 the injured himself has given the complaint at
the hospital and the same was admitted by him in his cross examination.
According to the complaint the respondent/injured was aged about 13 years
and at the time of accident he was taking food to his paternal uncle Sundaram
who was working in a car workshop nearby. Hence the allegation that the
injured was aged 16 years and he was a mechanic and earning Rs.5,000/- per
month shall not be taken into consideration.
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C.M.A.No.3234 of 2010
9. The Tribunal has awarded Rs.1,50,000/- towards the permanent
disability based on the disability certificate for 45% given by P.W.2, the
doctor. As submitted by the learned counsel for the appellant the said P.W.2
has not treated the injured and he has given the disability certificate based on
the discharge summary. In such circumstances the percentage of disability at
45% given by P.W.2 cannot be taken as such.
10. The Tribunal has awarded an exorbitant sum of Rs.75,000/- towards
Future Medical Expenses without any basis which needs interference.
11. Considering the nature of injuries and treatment given to the minor
injured, this Court is of the view that 35% disability can be taken and
Rs.3,000/- per percentage of disability would be reasonable for calculating the
compensation for the disability which would come to Rs.1,05,000/-.
12. The compensation of Rs.75,000/- towards future medical expenses is
also on the higher side and awarding Rs.15,000/- would be just and
reasonable. The amount of Rs.25,000/- each for pain and suffering and extra
nourishment awarded by the Tribunal is reasonable and the same is confirmed.
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C.M.A.No.3234 of 2010
13. The amount of Rs. 1,000/- towards transportation charges is very
meager and that can be enhanced to Rs.5,000/-
14. Thus, the award passed by the Tribunal, in comparison with the
amounts now awarded by this Court is tabulated hereunder:
Sl.No Head under which Amount Amount Confirmed/
the amount is awarded by awarded by enhanced
awarded the this Court
Tribunal(in
Rs.)
1. Loss of earning 1,50,000/- 1,05,000/- reduced
capacity
2. Future Medical 75,000/- 15,000/- reduced
Expenses
3. Pain and Suffering 25,000/- 25,000/- confirmed
4. Extra Nourishment 25,000/- 25,000/- confirmed
5. Transportation 1,000/- 5,000/- enhanced
6. Medical Bill 17,310/- 17,310/- confirmed
Total Rs.2,93,310/- Rs.1,92,310/- Reduced by
Compensation Rs.1,01,000/-
15. In the result, this Civil Miscellaneous Appeal is partly allowed. The
appellant/Insurance Company is directed to deposit the award amount now
determined by this Court along with interest at 7.5% p.a., and costs, less the
amount already deposited, if any, within a period of six weeks from the date of
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C.M.A.No.3234 of 2010
receipt of a copy of this judgment, to the credit of M.C.O.P.No.19 of 2005.
The said amount shall be in Fixed Deposit in any one of the Nationalised Bank
till the first respondent attains majority. On such deposit, the 1st
respondent/claimant on attaining the age of majority, is permitted to withdraw
the award amount along with interest and costs. The appellant/Insurance
Company is permitted to withdraw the excess amount, if any lying in the
deposit to the credit of M.C.O.P.No.19 of 2005, if the entire amount has
already been deposited. No costs.
03.06.2021
mpa
To
1. The Additional Subordinate Judge(Motor Accidents Claims Tribunal),
Cuddalore.
2. The Section Officer
Vernacular Records Section
High Court, Madras.
Note: Copy to the first respondent.
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C.M.A.No.3234 of 2010
S.KANNAMMAL, J
mpa
Pre-Delivery Judgement in
CMA. No. 3234 of 2010
03.06.2021
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