Madras High Court
Latha vs Mathaian on 18 November, 2021
CMA.No.141 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
CMA.No.141 of 2020
Latha ..Appellant
Vs.
1.Mathaian
2.Govindan
3.The United India Insurance Company Limited.,
Divisional Office HUB, Ranga Building,
Peramanur Main Road, Peramanur,
Salem – 636 007. ..Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and decree in MCOP.No.1003 of
2017, dated 18.03.2019 on the file of the Motor Accident Claims Tribunal /
Special Sub-ordinate Judge No-II, Salem.
For Appellant : Mr.T.S.Arthanareeswaran
For Respondents : Ms.Janani for R3
1/10
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CMA.No.141 of 2020
JUDGMENT
This appeal is against the award of the Motor Accidents Claims
Tribunal / Special Sub-ordinate Judge No.II, Salem made in MCOP.No.1003
of 2017 in and by which, the Tribunal has awarded a sum of Rs.1,73,540/-
as compensation for the injuries suffered by the claimant in a motor accident
that occurred on 06.07.2016.
2.According to the claimant, while she was travelling as a pillion
rider in motor cycle bearing registration No.TN-33-AW-3982 on
Vaiyappamalai to Mallasamudram main road near Kattupalayam, the motor
cycle bearing registration No.TN-28-AZ-3890 driven by its driver in a rash
and negligent manner dashed against the motor cycle in which, the claimant
was travelling. As a result of the accident, the claimant has suffered
grevious injuries. She is a Tailor by profession and she was aged about 48 at
the time of the accident.
3.The claim petition was filed under Section 163(A) of the Motor
Vehicles Act seeking compensation from the owners of the two wheelers and
the 3rd respondent / Insurance Company, the Insurer of the vehicle in which,
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CMA.No.141 of 2020
the claimant was travelling as a pillion rider. The Tirbunal, on an
assessment of the evidence concluded that the accident occurred due to the
rash and negligent driving of the driver of the vehicle bearing registration
No.TN-28-AZ-3890 owned by the 1st respondent. The Tribunal also found
that the policy of Insurance issued to the vehicle bearing registration No.TN-
33-AW-3982 in which, the insured Claimant was travelling was only an Act
Policy and therefore, it will not cover the injuries suffered by the claimant as
a pillion rider in that vehicle. Hence, the Tribunal awarded compensation
under Section 166 of the Motor Vehicles Act against the 1 st respondent, who
was the owner of the vehicle bearing registration No.TN-28-AZ-3890.
4.On the quantum, the Medical Board has assessed the disability
that was caused to the claimant because of the accident at 10% therefore, the
Tribunal awarded a sum of Rs.30,000/- towards permanent disability at
Rs.3,000/- per percentage of disability, Rs.10,000/- towards pain and
suffering, Rs.15,000/- towards loss of amenities in life, Rs.78,040/- towards
medical expenses, Rs.15,000/- towards of loss of earning at Rs.7,500/- for a
period of two months, Rs.5,000/- for transportion, Rs.10,000/- for extra
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CMA.No.141 of 2020
nourishment, Rs.10,000/- for assistance and Rs.500/- for damages to dress.
In all, the Tribunal awarded a sum of Rs.1,73,540/-. Aggrieved by the said
award, the claimant has come up with this appeal.
5.I have heard Mr.T.S.Arthanareeswaran, learned counsel
appearing for the Appellant and Ms.Janani representing Mr.J.Chandru,
learned counsel appearing for the 3rd respondent. The 1st respondent has
remained exparte before the Tribunal and hence, notice to him is dispensed
with. The 2nd respondent though served, is not appearing either in person or
through counsel.
6.Mr.T.S.Arthanareeswaran, learned counsel appearing for the
Appellant would vehemently contend that the Tribunal ought to have
awarded compensation under 163(A) and ought not to have exonerated the
Insurance Company namely, the 3rd respondent. He would further add that
the compensation awarded is on the lower side. According to him, this
Court in M.Chinnathambi Vs. S.Deepa and another reported in 2020 (1)
TN MAC 617 has awarded a compensation of Rs.4,000/- per percentage of
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CMA.No.141 of 2020
disability and therefore, the Tribunal was not right in granting of Rs.3,000/-
per percentage of disability. He would also submit that the award of
Rs.10,000/- towards pain and suffering is very meagre as the claimant was
hospitalized nearly 51 days and underwent three surgeries in the course of
the treatment. He would also submit that the loss of income for the period
should have been granted at least for three months and grant of loss of
income for a period of two months is on the lower side.
7.Ms.Janani, learned counsel for the 3rd respondent would contend
in as much as the 3rd respondent has been exonerated she has nothing to
agitate on the quantum of compensation. She would submit that the policy
of Insurance for the vehicle namely, TN-33-AW-3982, in which the claimant
was travelling, being an act policy, the Insurance Company cannot be made
liable for the injuries caused to the claimant. Therefore, according to her, the
Tribunal has rightly chosen to make the award under Section 166 as against
the 1st respondent, who was the owner of the offending vehicle namely, TN-
28-AZ-3890. I have considered the rival submissions.
8.As regards the liability of the Insurance Company, it is clear that
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CMA.No.141 of 2020
the Insurance Company cannot be made liable, since it is only an act policy
and it does not cover injury caused to the rider of the vehicle. The Tribunal,
on the basis of the evidence has concluded that the accident was caused
because of the rash and negligent driving of the vehicle bearing registration
TN-28-AZ-3890 and therefore, the 1st respondent, who is the owner of the
vehicle alone is liable to pay compensation. In the absence of the Insurer of
the said vehicle as a party to the proceeding, the Tribunal rightly granted
compensation only as against the 1st respondent alone exonerating, the
respondents 2 and 3. I therefore, do not see any ground to interfere with the
said conclusion of the Tribunal.
9.On the quantum, I see some reason in the contentions of the
learned counsel for the appellant. As rightly pointed out by him, in
M.Chinnathambi Vs. S.Deepa and another reported in 2020 (1) TN MAC
617, this Court has awarded a compensation of Rs.4,000/- per percentage on
disability. In the case on hand, disability has been assessed at 10% by the
Medical Board therefore, the compensation granted under the head of
permanent disability is enhanced to Rs.40,000/- from Rs.30,000/-. It is seen
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CMA.No.141 of 2020
from the records, namely, the discharge summaries that the claimant had
been hospitalized for 51 days and she has undergone three different
surgeries therefore, award of Rs.10,000/- towards pain and suffering is really
on the lower side. I am of the opinion that the award of Rs.40,000/- towards
pain and suffering will be just compensation. The Tribunal has awarded a
sum of Rs.15,000/- towards loss of earning during the period of treatment
and thereafter, when the claimant was prevented from doing her regular
work. The Tribunal has awarded loss of income for a period of two months
as compensation. I find that it is very low.
10.Taking into account the fact that the claimant was hospitalized
for at least 51 days, loss of income for a period of three months would be
just compensation. Therefore, compensation awarded under the head of loss
of income is increased to Rs.22,500/- from Rs.15,000/-. I do not find any
ground to interfere with the quantum fixed on the other heads. The
compensation granted by the Tribunal is re-fixed as follows:-
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CMA.No.141 of 2020
Headings Amount in Rs.
1) Permanent Disability (10% X Rs.4,000) 40,000/-
2) For Pain and suffering 40,000/-
3) For Loss of Amenities 15,000/-
4) For Medical Expenses 78,040/-
Loss of Income (during treatment period) 22,500/-
5)
(Rs.7,500 X 3)
6) Transport Expenses 5,000/-
7) Extra Nourishment 10,000/-
8) For cost of Assistance 10,000/-
9) For loss of dress 500/-
Total 2,21,040/-
Rounded off to Rs.2,21,000/-
11.In all other aspects, the award granted by the Tribunal is
confirmed. This appeal is therefore, partly allowed. No costs.
18.11.2021
kkn
Index:No
Internet:Yes
Speaking
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CMA.No.141 of 2020
To:-
1.The Motor Accident Claims Tribunal,
Special Sub-ordinate Judge No-II, Salem.
2.The United India Insurance Company Limited.,
Divisional Office HUB, Ranga Building,
Peramanur Main Road, Peramanur,
Salem – 636 007.
R.SUBRAMANIAN, J.
https://www.mhc.tn.gov.in/judis
CMA.No.141 of 2020
KKN
CMA.No.141 of 2020
18.11.2021
https://www.mhc.tn.gov.in/judis
