Madras High Court
Jagannathan (Died) vs Sahul Hameed on 10 April, 2023
C.M.A.No.3480 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.04.2023
CORAM
THE HONOURABLE MR.JUSTICE P.B.BALAJI
C.M.A.No.3480 of 2017
1.Jagannathan (Died)
2.Sagunthala
3.Vimala
4.Selvapandiyan
5.Rengadurai
6.Dhamotharan
7.Parameswari ... Appellants
[Sole appellant (i.e. 1st appellant) died. The
second to seventh appellants were brought on
record as the legal heirs of the first appellant
vide order dated 16.03.2023 in
C.M.P.Nos.5717, 5720 & 5722 of 2023.]
Vs.
1.Sahul Hameed
2.National Insurance Company Limited,
Rep. by its Branch Manager,
Chennai. ... Respondents
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C.M.A.No.3480 of 2017
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 to set aside the fair and final order dated 16.12.2016
made in M.C.O.P.No.129 of 2009 on the file of Motor Accidents Claims
Tribunal [Sub Court], Nagapattinam.
For Appellants : Mr.B.Jawahar
For R1 : No appearance
For R2 : Mrs.R.Sreevidhya
JUDGMENT
The present Civil Miscellaneous Appeal has been filed by the first
appellant/claimant against the fair and final order dated 16.12.2016 passed
by the Motor Accidents Claims Tribunal [Sub Court], Nagapattinam in
M.C.O.P.No.129 of 2009.
2. During the pendency of this appeal, the first appellant/claimant
died and therefore, the legal heirs of the deceased first appellant/claimant
were impleaded as the second to seventh appellants vide order dated
16.03.2023 in C.M.P.Nos.5717, 5720 & 5722 of 2023.
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C.M.A.No.3480 of 2017
3. The brief facts leading to the present Civil Miscellaneous Appeal
are as follows:-
(i) The deceased first appellant/claimant filed M.C.O.P.No.129 of
2008 before the Motor Accidents Claims Tribunal [Sub Court],
Nagapattinam seeking compensation of Rs.4,00,000/- (Rupees Four Lakhs
only) for the injuries sustained by him as well as the damages to his
property in the accident that occurred on 01.08.2005.
(ii) On 01.08.2005, at 04.30 a.m., when the first appellant/claimant
was sleeping in his thatched house, the vehicle belonging to the first
respondent, due to the rash and negligent driving of the driver, rammed
into his house, causing injuries to the first appellant/claimant as well as
damage to his property.
4. The second respondent Insurance Company has filed a counter
affidavit denying its liability and also putting the appellant/claimant to
strict proof for claiming compensation for injuries, loss of earning as well
as damage to property. Though initially, the second respondent Insurance
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C.M.A.No.3480 of 2017
Company did not raise any question with regard to the ownership of the
property which is the basis of the claim for compensation for damage to
property, an additional counter came to be filed, in and by which, the
appellant/claimant was called upon to prove the ownership of the property
as the patta cannot be taken as a proof of his title.
5. Before the Tribunal, the appellant/claimant examined himself as
P.W.1 and an Engineer was examined as P.W.2 to elicit the loss caused to
the property. On the side of the respondents, no oral or documentary
evidence was adduced. The Tribunal, after considering the oral and
documentary evidence, fixed a sum of Rs.34,700/- [Rupees Thirty Four
Thousand and Seven Hundred only] towards personal injuries alone.
Insofar as damage to property, the Tribunal disallowed the claim of the
appellant/claimant on the ground that the appellant/claimant did not
produce any evidence to establish his ownership of the property, which is
subject matter of the accident.
6. This Court, has by a separate order passed today, allowed
C.M.P.No.22133 of 2017. The following documents filed by the
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C.M.A.No.3480 of 2017
appellant/claimant to establish the ownership of the property, have been
marked:-
Sl. Name of the Documents Exs.
No.
1 House Tax Receipt dated 01.02.1992 P9
2 House Tax Receipt dated 22.09.1994 P10
3 Mortgage Deed dated 29.05.1984 P11
7. Exs.P9 to P11 clearly prove the ownership of the property which
is subject matter of the accident. It is clear that the appellant/claimant
owned the subject property and therefore, the ownership of the subject
property is not in dispute.
8. However, coming to the compensation for damages to property,
evidence of P.W.2 Engineer was available. He has been cross examined
by the second respondent Insurance Company in the course of trial. The
Tribunal as already indicated above, disallowed the claim for
compensation for damages to the property only on the ground that the
appellant/claimant did not establish his ownership over the subject
property.
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C.M.A.No.3480 of 2017
9. Heard the learned counsel for the appellant/claimant as well as
the learned counsel for the second respondent Insurance Company and
perused the oral and documentary evidence.
10. Ex.P5 Series contains the photographs showing the extent of
damages caused to the property. The photographs have been filed along
with a Compact Disc. The evidence of P.W.2 with regard to the damage
caused to the property and movables of the appellant/claimant supports
the claim for damages to the property. This Court however finds that the
property of the appellant/claimant was a thatched roof structure and the
accident occurred way back in the year 2005. The estimate taken by
P.W.2 is on the higher side. This Court considering the actual damage to
the property, finds that probable expenses that may have been incurred by
the appellant/claimant to repair the house and restore to the original
condition would be more than Rs.1,50,000/- [Rupees One Lakh and Fifty
Thousand only]. Therefore, this Court fixes the compensation for loss on
account of damages to the property to Rs.1,50,000/- [Rupees One Lakh
and Fifty Thousand only].
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C.M.A.No.3480 of 2017
11. Insofar as the claim towards loss on account of injuries, the
appellant/claimant is stated to have been doing agricultural work and
earning a sum of Rs.5,000/- [Rupees Five Thousand only] per month. He
was admitted in the hospital for 20 days and treated as an inpatient. There
is no doubt that the injuries sustained by the appellant/claimant were not
grave. However, the pain and suffering underwent by the
appellant/claimant was not only because of the injuries caused to him, but
also because of the damage to his property which is to be factored to
calculate the loss on account of pain and suffering and mental agony.
12. The Tribunal has awarded only a sum of Rs.34,700/- [Rupees
Thirty Four Thousand and Seven Hundred only] towards injuries. This
Court feels that a compensation of Rs.50,000/- [Rupees Fifty Thousand
only] totally for the injuries sustained by the appellant/claimant would be
just and equitable. Accordingly, the amount of Rs.34,700/- [Rupees Thirty
Four Thousand and Seven Hundred only] awarded by the Tribunal
towards Part-I of the Claims, i.e. injuries sustained by the
appellant/claimant, is enhanced to Rs.50,000/- [Rupees Fifty Thousand
only].
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C.M.A.No.3480 of 2017
13. Insofar as the Part-II of the Claims, i.e. compensation for
damages to property, as indicated above, a sum of Rs.1,50,000/- [Rupees
One Lakh and Fifty Thousand only] is fixed. In all, Rs.2,00,000/- [Rupees
Two Lakhs only] (i.e. Rs.50,000/- + Rs.1,50,000/-) is fixed and the award
of the Tribunal is modified accordingly.
14. It is brought to the notice of this Court that the second
respondent Insurance Company has deposited the entire award amount.
Therefore, the second respondent Insurance Company is directed to
deposit the modified/enhanced amount together with interest at 7.5% per
annum from the date of the claim petition till the date of deposit, within a
period of six weeks from the date of receipt of a copy of this Judgment.
15. It is also seen that the sole appellant/claimant died during the
pendency of this appeal and his legal heirs were brought on record as
second to seventh appellants. Considering the age of the deceased first
appellant's wife, i.e. the second appellant, this Court feels that it is proper
and just to award the entire compensation to the second appellant who is
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C.M.A.No.3480 of 2017
the wife of the deceased first appellant/claimant. The second appellant is
therefore entitled to file appropriate application before the Tribunal for
withdrawing the modified/enhanced amount together with accrued
interest.
16. This Civil Miscellaneous Appeal is partly allowed accordingly.
No cost.
10.04.2023
(2/2)
Internet : Yes/No
Index: Yes/ No
jen
To
1.Motor Accidents Claims Tribunal [Sub Court],
Nagapattinam.
2.The Section Officer,
V.R. Section,
Madras High Court.
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C.M.A.No.3480 of 2017
P.B.BALAJI, J.
jen
C.M.A.No.3480 of 2017
10.04.2023
(2/2)
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