Madras High Court
The Oriental Insurance Co. Ltd vs Minor S.Subashini on 23 September, 2021
C.M.A.No.2686 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
C.M.A.No.2686 of 2016
and C.M.P.No.19264 of 2016
The Oriental Insurance Co. Ltd.,
Divisional Office-III,
3821-Trichy Road,
Coimbatore - 641 108,
Coimbatore District. .. Appellant
Vs.
1. Minor S.Subashini
Rep by NF and Mother Anjali
2. U.Suresh
3. M/s.Saradha Dairy Products Ltd.,
126, Arts College Road,
Coimbatore 641 018,
Coimbatore District. .. Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 against the Judgment and decree dated 15.02.2016 made
in M.C.O.P.No.433 of 2012 on the file of the Motor Accidents Claims
Tribunal, Sub Court, Dharapuram.
For Appellant : Mr.S.Arunkumar
For Respondents : No appearance
-----
https://www.mhc.tn.gov.in/judis/
1/8
C.M.A.No.2686 of 2016
JUDGMENT
(The case has been heard through video conference)
This appeal has been filed by the insurance company challenging the
award dated 15.02.2016, passed by the Motor Accidents Claims Tribunal,
Sub Court, Dharapuram in M.C.O.P.No.433 of 2012.
2. The appellant insurance company has challenged the award
primarily on the ground that the first respondent/claimant is not entitled to
compensation of Rs.3,09,664/- towards medical expenses as determined by
the Tribunal, since the said amount was already paid by the owner of the
vehicle insured with the appellant.
3. The learned counsel appearing for the appellant drew the attention
of this Court to the medical bills which are marked as Ex.P9 before the
Tribunal totally amounting to Rs.3,09,664/- and would submit that the said
bills have been raised only in the name of the third respondent, the owner of
the insured vehicle and only xerox copies of the said bills were filed by the
claimant before the Tribunal and despite the objections raised by the learned
counsel for marking the xerox copies, the Tribunal has marked the same
after recording the objections.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2686 of 2016
4. The respondents have been served through substituted service by
effecting paper publication as per the order dated 14.06.2021, passed by this
Court, however, they have chosen not to appear despite their names have
been printed in the cause list today.
5. This Court has perused and examined the medical bills which have
been marked as Ex.P9 before the Tribunal totaling a sum of Rs.3,09,664/-.
As rightly contended by the learned counsel appearing for the appellant, all
the medical bills are xerox copies and the said bills were also raised only in
the name of the third respondent, the owner of the insured vehicle. This
Court has also perused and examined the deposition of P.W.1 before the
Tribunal and finds that the counsel for the insurance company had objected
to the marking of copies of medical bills by the claimant and only after
recording the said objection, the Tribunal has marked the exhibit as Ex.P9.
The consistent stand taken by the appellant insurance company before the
Tribunal can be seen from the documents available on record that payment
towards medical bills were paid by the third respondent, owner of the
insured vehicle and therefore the claimant is not entitled for compensation
towards the medical expenses.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2686 of 2016
6. This Court, after perusing and examining the medical records and
after considering the deposition of P.W.1 before the Tribunal, is of the
considered view that the Tribunal has failed to note that a sum of
Rs.3,09,664/- which was incurred towards medial expenses of the claimant
as per the medical bills, marked as Ex.P9, were in fact paid by the third
respondent (insured) and therefore, the claimant is not entitled for the said
compensation. Therefore, this Court is of the considered view that by total
non application of mind to the evidence available on record, the Tribunal has
awarded the compensation of Rs.3,09,664/- towards medical expenses for
the claimant under the impugned award.
7. With regard to award of compensation under other heads are
concerned, this Court is of the considered view that the compensation
awarded by the Tribunal towards disability suffered by the claimant at
Rs.50,000/- is low and it has to be enhanced. After giving due consideration
to the crush injury sustained on the foot by the claimant, being a girl child
and on account of disfigurement, this Court deems it fit to enhance the
disability compensation from Rs.50,000/- to Rs.1,00,000/-.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2686 of 2016
8. Insofar as the compensation awarded by the Tribunal towards pain
and suffering, extra nourishment, Transportation and Attendant charges are
concerned, the same will have to be enhanced. Accordingly, this Court
enhances the same to Rs.35,000/-, 15,000/-, 10,000/- and Rs.10,000/-
respectively.
9. As seen from the injuries sustained by the 1st respondent / claimant,
she has sustained disfigurement in her body and further being a Minor,
compensation ought to have been awarded by the Tribunal towards her
disfigurement which has been omitted erroneously under the impugned
award. After giving due consideration to the same, this Court awards a
compensation of Rs.30,000/- towards loss of amenities
10. For the foregoing reasons, the compensation awarded by the
Tribunal is reduced to Rs.2,00,000/- from Rs.3,94,864/- as detailed
hereunder:
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2686 of 2016
Sl. Description Amount Amount Award confirmed
No. awarded by awarded by or enhanced or set
the Tribunal this Court aside or granted or
(Rs.) (Rs.) reduced
(Rs.)
1. Disability at 25% 50,000 1,00,000 Enhanced
2. Pain and Sufferings 25,000 35,000 Enhanced
3. Medical expenses 3,09,664 ----- Set aside
4. Extra nourishment 4,000 15,000 Enhanced
5. Transport expenses 4,000 10,000 Enhanced
6. Attendant Charges 2,200 10,000 Enhanced
7. Loss of amenities and
------ 30,000 Awarded
disfigurement
Reduced amt
Total 3,94,864 2,00,000
Rs.1,94,864/-
11. In the result, the Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.3,94,864/- is hereby
reduced to Rs.2,00,000/- together with interest at the rate of 7.5% per annum
from the date of claim petition till the date of deposit. The appellant /
insurance company is directed to deposit the award amount now determined
by this Court along with interest and costs, less the amount already
deposited, if any, within a period of four weeks from the date of receipt of a
copy of this judgment to the credit of M.C.O.P.No.433 of 2012, on the file of
the Motor Accidents Claims Tribunal, Sub Court, Dharapuram. In case
excess amount has already been deposited by the appellant/insurance
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2686 of 2016
company before the Tribunal, they are permitted to withdraw the same. On
such deposit of the award amount now determined by this Court along with
interest and cost by the appellant/insurance company, the same shall be
deposited in a fixed deposit in a nationalised bank initially for a period of
one year and the next friend and Mother of the minor first respondent
Mrs.Anjali is permitted to withdraw the accrued interest periodically once in
three months. The first respondent/claimant is entitled to refund of Court
fee, if any, on the reduced amount of compensation now determined by this
Court. Consequently, the connected miscellaneous petition is closed. No
costs.
23.09.2021
kk
To
1. The Motor Accidents Claims Tribunal,
Sub Court, Dharapuram.
2. The Section Officer,
VR Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2686 of 2016
ABDUL QUDDHOSE, J.
kk
C.M.A.No.2686 of 2016
and C.M.P.No.19264 of 2016
23.09.2021
https://www.mhc.tn.gov.in/judis/
