Madras High Court
The Branch Manager vs Velliappan on 7 February, 2023
C.M.A.No.1530 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.02.2023
CORAM :
THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
C.M.A.No.1530 of 2017
and CMP.No.8167 of 2017
The Branch Manager
Oriental Insurance Co.Ltd.,
No.23-B, Ground Floor,
Arunagiri Complex
Bye pass road, Hosur – 635 109. … Appellant
Vs.
1. Velliappan
2. P. Anandan … Respondents
This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the award and Decree dated 30.04.2015 made in
M.C.O.P.No.2490 of 2013 on the file of the Motor Accidents Claims
Tribunal, Special Sub Judge, Krishnagiri.
For Appellant : Mr.S.Arun Kumar
For Respondents : M/s.Mukund R.Pandiyan for R1
: R2 Set Exparte in the lower Court itself
Page No.1 of 8
https://www.mhc.tn.gov.in/judis
C.M.A.No.1530 of 2017
JUDGMENT
This Civil Miscellaneous Appeal has been filed challenging the award
and decree dated 30.04.2015 made in M.C.O.P.No.2490 of 2013 on the file of
the Motor Accidents Claims Tribunal, Special Sub Judge, Krishnagiri,
challenging the quantum of compensation.
2. The facts of the case in a nutshell:
On 17.12.2011 at about 6:30 a.m. the first respondent / claimant was
riding the TVS 50 bearing Reg.No.TN 29-R-4563 from his house to buy milk
near Basavanna Koil. The first respondent/claimant was proceeding slowly,
cautiously and on the left side of the road and adhering to the rules of the
road at Chinthagampalli to Basavanna Koil road near Odhikuppam diversion
road. At that time, the driver of the Tipper lorry bearing Reg.No.TN31-A-
0097 belonging to the second respondent and insured with the appellant,
drove the said lorry in a rash, reckless and negligent manner at an
uncontrollable speed without sounding horn and without minding the rules of
the road, came from back side i.e., from Chinthagampalli to Basavanna Koil
road and dashed on the TVS 50 and caused the accident. Due to the impact,
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C.M.A.No.1530 of 2017
the first respondent/claimant fell down from the TVS 50 and sustained
grievous injuries. Immediately after the accident, the claimant/first
respondent was taken to Government Hospital, Krishnagiri for first aid
treatment and he was given treatment in the Intensive Care Unit of the said
hospital. After that he took treatment from Government Hospital, Salem. The
first respondent/claimant had spent a sum of Rs.80,000/- for his medical
expenses and further he needed Rs.50,000/- for his future medical expenses.
The first respondent/claimant was doing tree tapper work and coconut
business and his monthly income was Rs.5,000/-. The Kandhikuppam Police
have registered the case against the driver of the Tipper lorry under Sections
279, 338 of IPC in Crime No.397 of 2011. Hence the claimant/first
respondent filed a claim petition claiming compensation for a sum of
Rs.5,00,000/- under various heads.
3. Aggrieved by the award, the appellant/Insurance Company has come
on an appeal to reduce the quantum of compensation awarded by the
Tribunal. When the appeal was taken for admission total amount of
compensation was deposited, out of which the claimant/first respondent was
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C.M.A.No.1530 of 2017
permitted to withdraw a sum of Rs.2,00,000/-.
4. The learned counsel for the appellant/Insurance Company submitted
that the Tribunal erred in accepting 30% of the disability as assessed by
P.W.2/Doctor and amount awarded by the Tribunal at the rate of Rs.4,000/-
per percentage is excessive. He further submitted that a sum of Rs.75,000/-
was awarded to the claimant/first respondent for fixing his artificial ear is on
the higher side, since the accident was of the year 2011 and the artificial ear
would not have cost more than Rs.50,000/-. The amounts awarded by the
Tribunal under the heads pain & sufferings, attender charges, disability and
nutrition & transportation are excessive and prayed for setting aside the
award passed by the Tribunal.
5. The learned counsel for the first respondent submitted that according
to the discharge certificate which is marked as Ex.P5, Doctor found that the
first respondent/claimant had suffered fracture, loss of right ear and also
undergone cosmetic surgery. Hence the expert assessed the disability of the
claimant/first respondent as 30%. He further submitted that the
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C.M.A.No.1530 of 2017
appellant/Insurance Company has not examined any Doctor to disprove the
percentage of the disability issued by PW2. In view of the Ex.P2, Ex.P3 and
Ex.P5, the disability of the claimant/first respondent was fixed as 30% and
the award of compensation for a sum of Rs.3,15,000/- under various heads by
the Tribunal is proper and reasonable and the appeal is liable to be dismissed.
6. Heard both sides and perused the materials available on record.
7. In this case the appellant/Insurance Company has come on appeal
only with regard to the quantum of compensation awarded by the Tribunal.
The main contention of the appellant/Insurance Company is that the
compensation awarded under the heads 1. Pain and sufferings 2. Nutrition
and Transport 3. Attender charges and 4. Fixation of Artificial ear are
exorbitant and on the higher side. In this case PW2/Doctor has physically
examined the claimant/first respondent and found that there is a fracture, loss
of right ear and cosmetic disfigurement. This Court is of the considered view
that the compensation awarded under the above four heads as stated supra
has to be interfered and modified by this Court. With regard to the artificial
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C.M.A.No.1530 of 2017
ear the award of compensation of Rs.75,000/- that too in the year 2011 is
definitely on the higher side and the Tribunal has erred in awarding the same
and the same is reduced to Rs.50,000/-. With regard to the Pain and
Sufferings, the Tribunal has awarded a sum of Rs.50,000/- which is also on
the higher side and the same is reduced to a sum of Rs.25,000/-. The
compensation awarded under the heads Nutrition & Transport and Attender
charges for a sum of Rs.20,000/- and Rs.10,000/- are also not proper and the
same has to be reduced to Rs.10,000/- and Rs.5,000/- respectively. Hence the
compensation awarded by the Tribunal under the following heads are
modified/reduced as follows:-
Compensation Compensation
Head awarded by the reduced by this
Tribunal (Rs.) Court (Rs.)
Nutrition and Transport 20,000/- 10,000/-
Fixation of artificial ear 75,000/- 50,000/-
Attender charges 10,000/- 5,000/-
Pain and sufferings 50,000/- 25,000/-
Loss of amenities and 25,000/- 25,000/-
discomfort
Permanent disability 1,20,000/- 1,20,000/-
Loss of income 15,000/- 15,000/-
Total 3,15,000/- 2,50,000/-
8. In the result, this Civil Miscellaneous Appeal is partly allowed and
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C.M.A.No.1530 of 2017
the compensation awarded by the Tribunal at Rs.3,15,000/- is hereby reduced
to Rs.2,50,000/- together with interest at the rate of 7.5% per annum from the
date of petition till the date of deposit. The appellant-Insurance Company is
directed to deposit the modified award amount now determined by this Court
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 copy of this
judgment, to the credit of M.C.O.P.No.2490 of 2013 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court, Krishnagiri. On such deposit,
the 1st respondent/claimant is permitted to withdraw the award amount now
determined by this Court, along with interest and costs, less the amount if
any, already withdrawn by making necessary applications before the
Tribunal. The appellant-Insurance Company is permitted to withdraw the
balance amount lying in the credit of M.C.O.P.No.2490 of 2013, if the award
amount has already been deposited by them. Consequently the connected
Miscellaneous Petition is closed. No costs.
07.02.2023
dpq
Index : Yes/No
Speaking Order : Yes/No
https://www.mhc.tn.gov.in/judis
C.M.A.No.1530 of 2017
J.SATHYA NARAYANA PRASAD, J.
dpq
To
1.The Special District Judge,
Krishnagiri.
2. The Section Officer
VR Section.
C.M.A.No.1530 of 2017
and CMP.No.8167 of 2017
07.02.2023
https://www.mhc.tn.gov.in/judis
