Madras High Court
The New India Assurance Company ... vs Anubhav Dutt (Minor) Aged 9 Years on 7 April, 2022
CMA.No.1254 of 2014
and Cros. Ob.No.67 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.04.2022
CORAM
THE HON'BLE MRS.JUSTICE J.NISHA BANU
C.M.A.No.1254 of 2014
and Cros.Obj.No.67 of 2014
and M.P.No.1 of 2014
C.M.A.No.1254 of 2014:
The New India Assurance Company Ltd.
No.45, Moore Street
Chennai – 600 001 ... Appellant
Vs.
1.Anubhav Dutt (Minor) aged 9 years
Rep by father and next friend Mr.Shantanu Dutt
2.Jyothi ...Respondents
Cros.Obj.No.67 of 2014:
Anubhav Dutt (Minor) aged 9 years
Rep by father and next friend Mr.Shantanu Dutt .........Cross appellant
Vs.
1. The New India Assurance Company Ltd.
No.45, Moore Street
Chennai – 600 001
2. Jyothi ...Respondents
https://www.mhc.tn.gov.in/judis
CMA.No.1254 of 2014
and Cros. Ob.No.67 of 2014
PRAYER in C.M.A.No.1254 of 2014: Civil Miscellaneous Appeal filed
under Section 173 of the Motor Vehicles Act, against the Judgment and Decree
dated 22.11.2013 made in MCOP No.477 of 2012 on the file of the Motor
Accident Claims Tribunal (II Court of Small Causes), Chennai.
PRAYER in Cros.Obj.No.67 of 2014: Cross Appeal filed under Order XLI
Rule 22 of CPC, to enhance the judgment and decree of the claims Tribunal in
its award dated 22.11.2013 made in MCOP No.477 of 2012 on the file of the
Motor Accident Claims Tribunal (II Court of Small Causes), Chennai.
For Appellant in C.M.A.No.1254 of 2014
and for R1 in Cros.Obj.No.67 of 2014 : Mr.R.Neethe Perumal
For Respondents
in C.M.A.No.1254 of 2014
and for appellant in
Cros.Obj.No.67 of 2014 : Mr.F.Terry Chellaraja
for M/s.M.Malar for R1
R2- Returned-unavailable
COMMON JUDGMENT
The Civil Miscellaneous Appeal has been filed challenging the quantum
of compensation granted by the award dated 22.11.2013 made in
MCOP No.477 of 2012 on the file of the Motor Accident Claims Tribunal, II
Judge, II Court of Small Causes at Chennai.
https://www.mhc.tn.gov.in/judis
CMA.No.1254 of 2014
and Cros. Ob.No.67 of 2014
2. Cross Objection No.67 of 2014 has been filed under Order XLI
Rule 22 of CPC seeking enhancement of the compensation granted by the
award dated 22.11.2013 made in MCOP No.477 of 2012 on the file of the
Motor Accident Claims Tribunal (II Court of Small Causes), Chennai.
3. Both the appeal and Cross Objection arise out of the same accident
and hence, they are disposed of by this common judgment.
4.The parties are referred to as per their respective ranks in the
present Civil Miscellaneous Appeal.
5. The appellant herein is the 2nd respondent in MCOP No.477 of
2012 on the file of the II Judge, (Motor Accident Claims Tribunal), Chennai.
The 1st respondent/injured child aged about nine (9) years and was represented
by his father Mr.Shantanu Dutt had filed the said claim petition, claiming a sum
of Rs.15,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 26.09.2011.
https://www.mhc.tn.gov.in/judis
CMA.No.1254 of 2014
and Cros. Ob.No.67 of 2014
6.According to the 1st respondent, on 26.09.2011 at about 5.45 p.m.,
while he was playing in the common playing area with other boys of the
residential complex, the driver of the Hyundai Santro Car bearing
Regn.No.TN-07-S-3844 drove the same in a rash and negligent manner and hit
against the 1st respondent. Due to the said impact, the 1st respondent sustained
grievous injuries. The accident had occurred only due to rash and negligent
driving by the driver of the car belonging to the 2nd respondent, which is
insured with the appellant herein. The 1st respondent was aged about 9 years at
the time of accident.
7.The appellant-Insurance Company filed counter statement and
denied all the averments made by the 1st respondent. According to the
appellant, the driver of the car belonging to 2nd respondent drove the same in a
moderate speed and the said accident was occurred within the compound of the
Alsa Court Complex, the said Complex is having separate play area to play for
children, but, the said minor who was playing in the said play area suddenly
came to the road without minding the oncoming vehicle and invited the
accident. The accident occurred only due to the negligence on the part of the
1st respondent. The driver of the 2nd respondent also does not possess any valid
https://www.mhc.tn.gov.in/judis
CMA.No.1254 of 2014
and Cros. Ob.No.67 of 2014
and effective driving licence at the time of accident. Hence, the appellant/
insurer of the car belonging to the 2nd respondent is not liable to pay any
compensation to the 1st respondent. Further, the amounts claimed by the
1st respondent are exorbitant and excessive. Hence, prayed for dismissal of the
claim petition.
8.Before the Tribunal, the father of the minor/1 st respondent
examined himself as P.W.1 and one Dr.J.R.R.Thiagarajan was examined as
P.W.2 and marked 8 documents as Exs.P1 to P8. On behalf of the appellant, no
oral and documentary evidence was let in.
9.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred solely due to the rash and negligent
driving by the driver of the car belonging to the 2nd respondent and therefore,
directed the appellant-Insurance Company, as the insurer of the said vehicle to
pay a sum of Rs.5,93,635/- as compensation to the 1st respondent.
https://www.mhc.tn.gov.in/judis
CMA.No.1254 of 2014
and Cros. Ob.No.67 of 2014
10. Challenging the quantum of compensation granted by the award
dated 22.11.2013 made in M.C.O.P.No.477 of 2012, the appellant-Insurance
Company has filed the present Civil Miscellaneous Appeal.
11. Not being satisfied with the amount awarded by the Tribunal, the
1st respondent has filed the Cross Objection No.67 of 2014 for enhancement of
compensation.
12. The learned counsel appearing for the appellant/Insurance
Company contended that the Tribunal has failed to note that the accident has
occurred in a private residential complex, where rash and negligent driving is
not possible at all. The victim was actually playing and suddenly came to the
road and fell on the car and invited the accident. Moreover, the injured minor
who was studying in VI Std at the time of accident has not proved that he has
lost his academic year. The Tribunal without properly appreciating the
evidence on record, awarded the amount, which are on the higher side.
Therefore, he prayed for setting aside the award passed by the Tribunal.
https://www.mhc.tn.gov.in/judis
CMA.No.1254 of 2014
and Cros. Ob.No.67 of 2014
13. Learned counsel for the first respondent would submit that the
injured cross appellant was nine(9) years old at the time of accident and was a
school student. Due to the injuries sustained in the said accident, he was not
able to go to school and hence, his education was affected. The Tribunal ought
to have applied multiplier method and to award more compensation under the
head 'permanent disability' caused to the injured minor. The Doctor(P.W.2)
assessed the disability as 60% but the Tribunal reduced the disability from 60%
to 40% without assigning proper reason. Hence, prayed for dismissal of the
appeal and to enhance the compensation awarded by the Tribunal.
14. Heard the learned counsel appearing for the appellant/Insurance
Company and the learned counsel for the 1st respondent/claimant and perused
all the materials available on record.
15. As far as the quantum of compensation is concerned, the claimant
was aged about nine(9) years and was studying in IV Std. Considering the
nature of injuries sustained by the claimant, the Tribunal has granted a sum of
Rs.80,000/- towards pain and suffering, Rs.10,000/- towards extra nourishment
and Rs.50,000/- towards mental agony to the 1st respondent. Considering the
https://www.mhc.tn.gov.in/judis
CMA.No.1254 of 2014
and Cros. Ob.No.67 of 2014
fact that the 1st respondent was taking treatment as inpatient from 26.09.2011 to
04.10.2011 and on perusal of Ex.P5, medical bills, the Tribunal has awarded a
sum of Rs.2,92,635/- towards medical expenses. Based on the deposition of
P.W.2, Doctor and Ex.P8, the disability certificate issued by him, the Tribunal
has awarded a sum of Rs.80,000/- towards permanent disability.
The appellant/Insurance Company did not let in any oral and documentary
evidence to substantiate their case before the Tribunal. The Tribunal after
considering both the oral and documentary evidence, awarded a total sum of
Rs.5,93,635/- as total compensation to the 1st respondent/claimant. In my
considered opinion, the compensation awarded by the Tribunal is just and
reasonable. In the above circumstances, this Court is not inclined to interfere
with the award passed by the Tribunal.
16. Accordingly, the award passed by the Tribunal is hereby
confirmed and the Civil Miscellaneous Appeal is dismissed and hence, Cross
Objection filed by the injured minor is also dismissed.
The Appellant-Insurance Company is directed to deposit the amount awarded
by the Tribunal along with interest and costs, less the amount already
deposited, if any, within a period of six weeks from the date of receipt of a
https://www.mhc.tn.gov.in/judis
CMA.No.1254 of 2014
and Cros. Ob.No.67 of 2014
copy of this judgment. On such deposit, the award amount is directed to be
deposited in any one of the Nationalized Banks, till the minor 1st
respondent/claimant attains majority. The father of the minor
1st respondent/claimant is permitted to withdraw the interest, once in three
months for the welfare of the minor 1st respondent/claimant. No costs.
Consequently, connected Miscellaneous Petition is closed.
07.04.2022
Index:Yes/No
msv
To
1.The II Judge,
Motor Accident Claims
Tribunal (II Court of Small Causes), Chennai.
2. The Section Officer,
VR Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis
CMA.No.1254 of 2014
and Cros. Ob.No.67 of 2014
J.NISHA BANU, J.
msv
C.M.A.No.1254 of 2014
and Cros.Obj.No.67 of 2014
and M.P.No.1 of 2014
07.04.2022
https://www.mhc.tn.gov.in/judis
