The New India Assurance Company ... vs S.K.Bharath
2022 Latest Caselaw 4457 Mad

                                                                                  CMA.No.2304 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                  DATED: 08.03.2022
                                                       CORAM:
                                  THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
                                               CMA.No.2304 of 2018
                                                      and
                                               CMP.No.17593 of 2018

                     The New India Assurance Company Limited,
                     Division Office 710900, Garden Apartments,
                     No.68, P.H.Road, Purasawalkam, Chennai – 7.                  ...Appellant

                                                          Vs.

                     1.S.K.Bharath
                     2.K.V.Subadhra
                     3.M/s.Empees International Hotels and Resorts Ltd.,
                       No.693, Mount Road, Chennai – 28.
                       (R3 before the Tribunal died in the course of trial.
                        Hence R3 is not arrayed as a party to the proceedings.)   ...Respondents

                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                     Vehicles Act, to set aside the decree and judgment dated 28.02.2018 made in
                     MCOP No.1278 of 2009, on the file of the Motor Accidents Claims Tribunal /
                     Chief Court of Small Causes, Chennai.


                                         For Appellant       : Mr.J.Chandran
                                         For R2                 : Mr.A.Babu



                     1/10


https://www.mhc.tn.gov.in/judis
                                                                                     CMA.No.2304 of 2018




                                                    JUDGMENT

The 2nd respondent in MCOP No.1278 of 2009 on the file Chief

Court of Small Causes, Chennai / Motor Accident Claims Tribunal is the

appellant herein, aggrieved with the quantum of compensation granted by

award dated 28.02.2018 which compensation was granted owing to the

unfortunate death of the wife of the 1st claimant, Mythili Bharath who was

also the sister of the 2nd and the 3rd claimants. The accident occured on

27.04.2008, when Mythili was travelling as passenger in an autorickshaw

bearing registration No.TN-07-H-9805 at around 12.30 p.m from T.Nagar to

Mandaiveli on Chamiers road from west to east, opposite to Tumbulls signal.

At that time, a Tata Indigo car bearing registration No.TN-01-AB-3646 came

from east to west and dashed against the autorickshaw. It was stated that

there was a signal for the car to stop, but the car did not stop in the signal and

jumped the signal and dashed on the auto and as a result, the auto capsized

and over turned. The deceased fell down and suffered serious injuries in her

spinal column and lungs. Immediately, thereafter she was admitted in

Venkateswara Hospital for one day and later referred to Apollo Speciality

https://www.mhc.tn.gov.in/judis CMA.No.2304 of 2018

Hospital. She took treatment from 28.04.2008 to 12.08.2008 as an inpatient

and again from 02.09.2008 to 03.10.2008 and also again from 03.11.2208 to

18.11.2008 and she died on 18.11.2008.

2.One fact that must be kept in mind was the substantial period of

hospitalization at Apollo Speciality Hospital. Medical records with respect to

same had also been produced. Claiming that compensation should be granted

for the death of Mythili Bharat, her husband and her two sisters had filed

MCOP.No.1278 of 2009.

3.During the course of trial, the 1st claimant S.K.Bharat was

examined as PW-1 and another witness S.K.Lakshmanan was examined as

PW-2. On the side of the petitioner, Exs.P1 to P23 were marked. Relevant

documents would be the copy of First Information Report Ex.P2, the

discharge summary issued by Venkateswara Hospital and series of discharge

summary issued by the Apollo Speciality Hospital, which were marked as

Exs.P3, P5, P7 and P9 and also the medical bills which were marked as

Exs.P4, P6, P8, P12 and P14. Ex.P13 has also to be examined, namely,

https://www.mhc.tn.gov.in/judis CMA.No.2304 of 2018

Identity card and Log book issued by Unit Trust of India / New India

Assurance Company Limited. On the side of the respondents, RW-1

S.Saravanan, an official from hospital of Venkateswara was examined and he

marked Ex.R2 copy of the medical bills issued by Venkateswara hospital,

which is actually equivalent to Ex.P4.

4.The Tribunal by its judgment dated 28.02.2018, framed the

points for determination with respect to the nature of the accident and

whether it was owing to the rash and negligent driving of the 1st respondent

and as to who is liable to pay the compensation and the compensation amount

actually payable.

5.With respect to the first point, the Tribunal came to a definite

finding that the accident was caused only by the rash and negligent driving of

the Tata Indigo car bearing Regn. No.TN-07-AB-3646 and it was also noted

that owing to the impact of the accident, the auto over turned and the

unfortunate victim, Mythili Bharat, had been caught in between and suffered

serious injuries, which necessitated being in hospital in four spells namely, the

https://www.mhc.tn.gov.in/judis CMA.No.2304 of 2018

first spell in Venkateswara Hospital and later three spells in Apollo Speciality

Hospital. She finally died. Therefore, the negligence was fixed on the driver

of the Tata Indigo car bearing Regn. No.TN-07-AB-3646. I would confirm

such finding.

6.Thereafter, the Tribunal determined the issue No.2 stating that the

insurer of the Tata Indigo car will have to pay the compensation and

answered the point accordingly and I would also affirm the said finding.

7.This appeal is primarily focussed on the quantum granted. The

Tribunal had granted a total compensation of Rs.22,34,384/-. It observed that

the deceased was earning pension of Rs.9,500/- and deducted 50% towards

personal expenses. It applied the multiplier of 7. There is no issue on the

aforementioned method in which the compensation was determined. The

Tribunal also granted amounts towards loss of consortium to the 1st petitioner

and loss of estate and also towards funeral expenses. No issues are raised

with respect to the same. Let me also not intefere with those findings. The

Tribunal granted a sum of Rs.17,65,384/- towards medical expenses and had

https://www.mhc.tn.gov.in/judis CMA.No.2304 of 2018

actually observed that the total medical bills incurred was Rs.19,67,200/- and

adjusted Rs.3,00,000/- which had been paid by United Trust of India for

which Ex.P13 had been marked on behalf of the claimants and the balance

medical bills had been granted as they were presented as documents.

8.Learned counsel for the appellant took umbrage at that particular

fact and stated that the medical bills produced were duplicate copies and no

reliance should have been placed by the Tribunal on such medical bills.

9.This necessitated, examination of the records as marked before

the Tribunal. The records were also available. As a fact, medical bills with

respect to Apollo Speciality Hospital namely, Exs.P6, P8 and P12 were

duplicate copies. The duplicate copies had been marked since the claim for

the medical bills for Rs.19,67,200/- had been preferred by the claimants and

forwarded to United Trust of India seeking a claim under a scheme, which the

deceased had been eligible. The United Trust of India / New India Assurance

Company Limited, had however granted only a sum of Rs.3,00,000/-. This

necessitated claiming the balance in the claim petition before the Tribunal.

https://www.mhc.tn.gov.in/judis CMA.No.2304 of 2018

10.The bills presented are not xerox copies. They cannot be strictly

construed as secondary evidence. They are duplicate bills which are copies of

the original prepared and attested as duplicate bills by the Apollo Speciality

Hospital. Therefore, I would not enter any adverse finding with respect to

admissibility of such document. I would taken them on record. The amount

reflected the amount paid by the claimants towards medical treatment of the

deceased Mythili Bharat. The dates in which she had been in hospital had

been stated by me and I would also observe quite extensive treatment had

been given in three different spells. Naturally, expenses would have been

incurred by the claimants towards treatment in the hope that Mythili Bharat

would recover. But she unfortunately died. I would not interfere with the

quantum granted.

11.Learned counsel for the 2nd respondent, however, placed a small

caveat claiming that the 2nd claimant / sister of the deceased had actually

spent a substantial amount for the medical treatment and had also pointed out

https://www.mhc.tn.gov.in/judis CMA.No.2304 of 2018

the proof affidavit of the 1st claimant / husband of the deceased, wherein, he

had stated that he had no objection for apportionment of the award amount

into two equal halves, one to be paid to him and the other to the 2nd

respondent. It is to be noted that the 3rd claimant another sister of the

deceased had died pending the claim petition.

12.I would go with the representations made and interfere with the

apportionment granted. The Tribunal had recognized the services of the sister

to a very negligible extent and had granted a sum of Rs.21,00,000/- to be paid

to the 1st claimant and balance Rs.1,34,384/- to be paid to the 2nd claimant. I

would interfere with that finding and rather divide the award into two equal

halves namely, 50% to the 1st claimant S.K.Bharath and balance 50% to the

2nd claimant K.V.Subadhra. This apportionment would also accrued to the

interest which would have accrued to the amount already deposited. The

appellant is directed to deposit the compensation as quantified by the Tribunal

within a period of eight weeks from the date of receipt of a copy of this order

at 7.5% interest from the date of filing of the petition till the date of actual

deposit and that amount must also be divided into two equal halves between

https://www.mhc.tn.gov.in/judis CMA.No.2304 of 2018

the 1st and 2nd claimant.

13.It is again reiterated that except the terms of apportionment, the

other aspects in the order are not interfered with.

14.With the above observations, the present Civil Miscellaneous

Appeal is dismissed. No order as to costs. Consequently, connected Civil

Miscellaneous Petition is closed.

08.03.2022

smv

Index:Yes/No Internet:Yes/No Speaking / Non-speaking order

To:-

The Motor Accidents Claims Tribunal / Chief Court of Small Causes, Chennai.

C.V.KARTHIKEYAN, J.

smv

https://www.mhc.tn.gov.in/judis CMA.No.2304 of 2018

CMA.No.2304 of 2018 and CMP.No.17593 of 2018

08.03.2022

https://www.mhc.tn.gov.in/judis