Madras High Court
N.Navin Kumar (Minor) vs A.Ramesh on 17 August, 2023
C.M.A.No.1079 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.8.2023
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
C.M.A. No.1079 of 2018
N.Navin Kumar (Minor)
Rep. by his father and next friend,
N.Narayanamoorthy ... Appellant
Vs.
A.Ramesh ... Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, to enhance the compensation amount Awarded in
the Judgment and Decree dated 20.10.2017 made in M.C.O.P.No.4644 of
2013 on the file of the Motor Accident Claims Tribunal/II Small Causes
Court, Chennai.
For Appellant : M/s.C.Swetha for
Mr.A.Thiyagarajan
For Respondent : No Appearance
1/11
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C.M.A.No.1079 of 2018
JUDGMENT
This Civil Miscellaneous Appeal is filed against the Award and
Decree dated 20.10.2017 made in M.C.O.P.No.4644 of 2013 on the file of the
Motor Accident Claims Tribunal/II Small Causes Court, Chennai, for
enhancement of compensation.
2. The appellant is the claimant. The respondent is the owner and
driver of the offending vehicle.
3. The case of the claimant who was aged 13 years at the time of
accident, is that on 16.11.2012 at about 14.30 hours, when he was waiting to
cross the road at Peters Road, near CSI Mohan Matriculation School,
Royapettah, after his school hours, a Crane bearing Regn. No.AP-10-AE-
5691 which was driven by its driver/owner in a very rash and negligent
manner, endangering the public safety, hit an old lady and also the claimant
along with four school children and also dashed on a wall, due to which, the
wall got collapsed and that the claimant sustained grievous injuries.
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C.M.A.No.1079 of 2018
4. Since the claimant was minor at the time of accident, he filed
the claim petition in M.C.O.P.No.4644 of 2013 on the file of the Motor
Accident Claims Tribunal/II Small Causes Court, Chennai, through his father
and next friend, claiming compensation of Rs.20,00,000/- from the
driver/owner of the offending vehicle/respondent herein, as there is no
insurance for the offending vehicle, stating that due to the accident, he
sustained multiple injuries all over the body and he took treatment for more
than two months in a Government Hospital and during the treatment period,
his left leg was amputated.
5. In order to substantiate the case of the claimant before the
Tribunal, on the side of the claimant, 1 witness was examined as P.W.1 and
10 documents were marked as Ex.P.1 to Ex.P.10.
6. Before the Tribunal, the respondent was called absent and set
ex-parte.
7. The Tribunal, after hearing the arguments of the learned
counsel for the claimant and considering the materials, allowed the claim
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C.M.A.No.1079 of 2018
petition by order dated 20.10.2017 with proportionate costs against the
respondent and awarded compensation of Rs.2,95,000/- with interest at 9%
per annum from the date of petition i.e. 21.08.2013 till the date of realization.
8. Challenging the order of the Tribunal, the claimant has filed
the present appeal before this Court through his father, for enhancement of
compensation.
9. The learned counsel for the appellant/claimant would submit
that the age of the claimant at the time of accident was only 13 years and due
to the accident, his left leg was amputated and the Doctor has given the
Disability Certificate assessing the disability of the claimant as 85%. But the
Tribunal has awarded only Rs.2,55,000/- by fixing Rs.3,000/- per percentage
and that the Tribunal has failed to consider the loss of income of the injured
in future. Further, the Attender Charges was not properly awarded by the
Tribunal. The claimant was hospitalised for about two months from
16.11.2012 to 11.01.2013, whereas, the Tribunal has granted only Rs.2,000/-
towards Attender Charges. The claimant had also undergone physiotherapy
treatment and rehabilitation sessions and even though the due bill for
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C.M.A.No.1079 of 2018
Rs.5,07,700/- was produced before the Court, the same was not considered by
the Tribunal. Further, the claimant had produced medical bill for Rs.4,500/-.
But the Tribunal has granted only Rs.2,500/-. Since, the claimant sustained
85% permanent disability, he filed the claim petition seeking compensation
of Rs.20,00,000/-, whereas, the Tribunal has awarded only Rs.2,94,500/-
which does not reflect the "just compensation" and it is an unfair
compensation and therefore, she seeks enhancement of compensation.
10. Though notice was served on the respondent and name is also
printed in the cause list, there is no representation for the respondent.
11. Heard the learned counsel for the appellant/claimant and
perused the entire materials available on record.
12. The accident and the manner of accident are not in dispute.
The injuries sustained by the claimant are also not in dispute. The accident
took place in the year 2012. At the relevant point of time, the amount for
disability was only Rs.3,000/- per percentage and the Tribunal has also
rightly calculated the disability by fixing Rs.3,000/- per percentage.
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C.M.A.No.1079 of 2018
However, the Tribunal has failed to consider that it is a permanent disability,
as the left leg of the claimant was amputated and that the loss of future
earning was also not considered by the Tribunal. Though the learned counsel
stated that the claimant had also undergone Physiotherapy treatment, no
evidence was produced except Ex.P.7/letter issued by the Rehabilitation
Institute. Neither the Author of the said document, nor any expert was
examined to prove the actual expenses incurred for the Physiotherapy and
rehabilitation. Further, neither the injured/claimant nor the Doctor who gave
treatment to the injured/claimant or any competent person from the said
Institute which issued Ex.P.7, was examined. Therefore, the Tribunal has not
considered the same. A perusal of records shows that the claimant was
treated in a Government Hospital and therefore, they have not produced any
other medical expenses. The claimant has not produced any document to
show that he required Physiotherapy treatment, which was not available in
the Government Hospital and therefore, he was forced to take treatment from
a private Hospital. Admittedly, an injured can take treatment either in a
private Hospital or in a Government Hospital. However, in this case, the
treatment has been taken in a Government Hospital and he has not given any
reason as to why he had chosen to take physiotherapy treatment in private
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C.M.A.No.1079 of 2018
Hospital and whether any Doctor had referred him to take physiotherapy
treatment in private Hospital or because of non availability of said treatment
in the Government, he took treatment in the said Institute. As already stated,
because of the non examination of any witnesses or expert or Author of
Ex.P.7 or any competent person from the Institute which issued the medical
certificate to the claimant, the Tribunal has not considered the Physiotherapy
Bill/Ex.P7. Though the appellate Court can re- appreciate the entire evidence
and can give independent findings, at the same time, it has to see only the
materials available on record and it can only re-appreciate the available
materials and the appellate Court cannot traverse beyond that materials.
However, as stated above, since the claimant was only aged 13 years at the
time of accident and his left leg was amputated, naturally he cannot do any
work in future. But, the Tribunal has failed to consider the life expenses and
his future expenses and the loss of future earnings.
13. Therefore, considering the future of the injured/claimant, this
Court awards an additional sum of Rs.5,00,000/- to the claimant, which
would meet the ends of justice and this Court feels that it would a "just
compensation".
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C.M.A.No.1079 of 2018
14. Accordingly, the compensation awarded by the Tribunal is re-
worked as follows;
Sl. Description Amount Amount Award
No. awarded by awarded by confirmed or
Tribunal this Court enhanced or
granted or
reduced
1. For Medical Bills Rs.2,500/- Rs.2,500/- Confirmed
2. For Disability Rs.2,55,000/- Rs.2,55,000/- Confirmed
3. For Attender charges Rs.2,000/- Rs.2,000/- Confirmed
4. For Pain and Sufferings Rs.25,000/- Rs.25,000/- Confirmed
5. For Transport to Hospital Rs.5,000/- Rs.5,000/- Confirmed
6. For Extra Nourishment Rs.5,000/- Rs.5,000/- Confirmed
7. For future loss of earnings - Rs.5,00,000/- Granted
Total Rs.2,94,500/- Rs.7,94,500/-
15. The award of the Tribunal is modified by enhancing the
compensation amount from Rs.2,94,500/- to Rs.7,94,500/-.
16. The respondent is directed to deposit the enhanced award
amount of Rs.7,94,500/- to the credit of M.C.O.P.No.4644 of 2013 on the
file of the Motor Accident Claims Tribunal/II Small Causes Court, Chennai,
along with interest at the rate of 9% per annum, from the date of claim
petition i.e. 21.08.2013 till the date of realisation and costs as awarded by the
Tribunal, less the amount if any already deposited, within a period of six
weeks from the date of receipt of copy of this judgment.
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C.M.A.No.1079 of 2018
17. On such deposit being made, the Tribunal is directed to calculate
the above said compensation, including the interest, costs etc., as awarded by
the Tribunal, after adjusting the amount, if any already withdrawn by the
claimant, and credit the actual amount, in line with the judgment of a
Division Bench of this Court in C.M.A.No.428 of 2016, dated 11.03.2016,
reported in 2016 (2) LW 561 (The Divisional Manager, The Oriental
Insurance Company Limited, Kannur Vs. Rajesh and others).
18. The appellant/claimant is directed to pay necessary Court fee, if
any, on the enhanced compensation amount awarded by this Court.
19. In the result, this Civil Miscellaneous Appeal is partly allowed.
Consequently Connected Miscellaneous Petition is closed. No costs.
17.08.2023
ksa-2
Index : Yes / No
Speaking Order : Yes / No
Neutral Citation Case : Yes/No
https://www.mhc.tn.gov.in/judis
C.M.A.No.1079 of 2018
To
1.The Motor Accident Claims Tribunal/II Small Causes Court,
Chennai,
2.The Section Officer,
VR Section,
High Court,
Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1079 of 2018
P.VELMURUGAN. J.
ksa-2
C.M.A. No.1079 of 2018
17.08.2023
https://www.mhc.tn.gov.in/judis
