Madras High Court
United India Insurance Co. Ltd vs C.Kamesh (Minor) on 15 June, 2023
C.M.A.No.409 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.06.2023
CORAM:
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
C.M.A.No.409 of 2020
and
C.M.P.No.2462 of 2020
United India Insurance Co. Ltd.,
Silingi Building, 4th Floor,
No.132, Greams Road,
Chennai – 600 006. .. Appellant
Vs.
1.C.Kamesh (Minor),
rep. by his Mother & NF Ilakkiya.
2.E.Karthick .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
06.03.2015 made in M.C.O.P.No.5970 of 2012 on the file of the Motor
Accidents Claims Tribunal, IV Court of Small Causes, Chennai.
For Appellant : Mr.D.Bhaskaran
For R1 : Mr.A.A.Venkatesan
For R2 : No appearance
1/12
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C.M.A.No.409 of 2020
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the award dated
06.03.2015 made in M.C.O.P.No.5970 of 2012 on the file of the Motor
Accidents Claims Tribunal, IV Court of Small Causes, Chennai.
2.The appellant herein is the 2nd respondent in M.C.O.P.No.5970 of
2012 on the file of the Motor Accidents Claims Tribunal, IV Court of Small
Causes, Chennai. The 1st respondent herein filed the said claim petition,
claiming a sum of Rs.5,00,000/- as compensation for the injuries sustained by
him in the accident that took place on 24.01.2012.
3.The Tribunal, after considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the rider-cum-owner of the motorcycle, the 2nd respondent herein and directed
the appellant-Insurance Company to pay a sum of Rs.4,03,000/- as
compensation to the 1st respondent.
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C.M.A.No.409 of 2020
4.Challenging the quantum of compensation in the award dated
06.03.2015 made in M.C.O.P.No.5970 of 2012, the appellant-Insurance
Company has come out with this appeal.
5.The learned counsel for the appellant/Insurance Company would
contend that the assessment of disability by P.W.2/Doctor is on the higher
side, as the disability certificate issued by him is without any basis and the
Tribunal has awarded excessive amount of Rs.75,000/- towards disability.
After initial course of treatment, the 1st respondent / claimant has not taken
any subsequent or continuous treatment. The amounts awarded by the
Tribunal for pain and sufferings, extra nourishment, attendant charges and
transportation are highly excessive. He would further contend that the
Tribunal, in the absence of any proof for medical expenses incurred by the 1 st
respondent, has awarded a sum of Rs.50,000/- towards medical expenses and
further awarded a sum of Rs.25,000/- towards future medical expenses, which
is without any basis. The Doctor who treated the 1st respondent was also not
examined. The total compensation awarded by the Tribunal is excessive and
prayed for reducing the quantum of compensation.
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C.M.A.No.409 of 2020
6.Rather the learned counsel for 1st respondent would contend that
P.W.2/Doctor after examining the 1st respondent has assessed the percentage
of disability at 30% and issued Ex.P8/disability certificate to that effect. But,
the Tribunal without giving any valid reason, has reduced the percentage of
disability from 30% to 25% and granted compensation only for 25% of
disability at the rate of Rs.3,000/- per percentage of disability. The 1st
respondent has taken treatment as inpatient in the Government Royapettah
Hospital, Chennai from 24.01.2012 to 25.01.2012, then he was admitted at
Puttur Bone Setting Hospital on 26.01.2012 and taken outpatient treatment
for six months and produced Ex.P4 / OP chits to that effect and the
compensation towards transportation is reasonable. The 1st respondent was
aged 5 years at the time of accident and hence, the amounts awarded under
pain and sufferings and extra nourishment are just and reasonable. The 1 st
respondent spent considerable amounts towards medicines and hence, the
compensation awarded towards medical expenses and future medical
expenses are reasonable. The total compensation awarded by the Tribunal is
not excessive and to strengthen his aforesaid arguments, following judgments
are referred to and prayed for dismissal of the appeal.
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C.M.A.No.409 of 2020
(i)National Insurance Co. Ltd., Thanjavur Vs. Singaram @ Singaru
and another reported in [2014 (1) TNMAC 822], wherein it has been held
that though a sum of Rs.50,000/- awarded for medical expenses, is not
supported by any document, yet it could be seen from the averments that the
respondent has been initially treated at Jayakondam Government Hospital for
two days and thereafter, in Thanjavur Medical College Hospital for 7 days.
Both are Government Hospitals. Therefore, the possibility of incurring
medical expenses for the kind of injuries sustained by the respondent cannot
be ruled out.
(ii)Nesamony Transport Corporation Limited Vs. Chenthilathiapan
& another reported in [I (2000) ACC 332], wherein it has been held that
according to the evidence of P.Ws.3 & 4, the respondent was hospitalised
from 14.01.1988 to 01.02.1988. In the meantime, an operation was
conducted. Though for the entire amount of Rs.25,000/-, there are no medical
bills, the non-production of medical bills cannot be taken as a ground to reject
the evidence of P.W.1, who has stated that he was incurring expenditure by
paying the rent to the hospital room, etc,. Admittedly, as stated by P.Ws.3 and
4, operation was conducted upon the claimant and plate was inserted in his
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C.M.A.No.409 of 2020
left leg. In the light of the above facts and circumstances, I am unable to say
that the amount of compensation of Rs.25,000/- under the head medical
expenses can be said to be excessive.
7.Though notice has been served on 2 nd respondent and his name is
printed in the cause list, there is no representation for him.
8.Heard Mr.D.Bhaskaran, learned counsel for appellant and
Mr.A.A.Venkatesan, learned counsel for 1st respondent and perused the
materials on record.
9.From the materials on record, it is seen that the 1 st respondent got
injured in the accident that occurred on 24.01.2012 and sustained fracture of
right leg, injuries on both legs and multiple injuries all over the body. The 1 st
respondent proved the nature of injuries sustained by him by producing Ex.P8
/ disability certificate issued by P.W.2/Doctor, who examined the 1st
respondent and assessed that the 1st respondent suffered 30% disability. The
Tribunal reduced the percentage of disability and fixed the same at 25% and
awarded a sum of Rs.75,000/- for 25% disability at the rate of Rs.3,000/- per
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C.M.A.No.409 of 2020
percentage of disability. Considering the nature of injuries sustained by the 1st
respondent, the compensation awarded by the Tribunal towards disability is
just and reasonable and does not need any interference.
10.Due to the injuries sustained in the accident, the 1st respondent
would have suffered pain, for which the Tribunal has awarded a sum of
Rs.1,00,000/- towards pain and sufferings, which seems to be little on the
higher side and the same is reduced to Rs.75,000/-.
11.Further, the amounts awarded by the Tribunal towards extra
nourishment at Rs.75,000/- and transportation at Rs.50,000/- are also appears
to be on the higher side and hence, the same are reduced to Rs.50,000/- and
Rs.30,000/- respectively.
12.The 1st respondent has taken inpatient treatment at Government
Royapettah Hospital, Chennai from 24.01.2012 to 25.01.2012 and then he
was admitted at Puttur Bone Setting Hospital on 26.01.2012 and taken
outpatient treatment for six months. Considering the period of treatment taken
by the 1st respondent, an attender would have helped him during the period of
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C.M.A.No.409 of 2020
treatment to do his everyday activities, as his right leg got fractured. Hence,
the compensation awarded by the Tribunal for attendant charges is
reasonable.
13.It is the further case of the appellant-Insurance Company that in the
absence of any medical bills, the Tribunal has awarded a sum of Rs.50,000/-
towards medical expenses is concerned, even though the 1 st respondent has
taken treatment in the Government Hospital, he would have incurred some
medical expenses. Further, the 1st respondent also produced Ex.P4 / O.P chits
of Puttur Bone Setting Centre, Exs.P3 & P6 / X-Ray, Ex.P7 / X-Ray report.
Further, this Court in National Insurance Co. Ltd., Thanjavur Vs.
Singaram @ Singaru and another reported in [2014 (1) TNMAC 822], held
that even when no medical bills are filed, the compensation for medical
expenses can be granted. Hence, the compensation awarded by the Tribunal
for medical expenses does not need any interference.
14.The 1st respondent has not produced any medical records to show
that he has taken continuous medical treatment after filing the claim petition.
If the claimant had undergone surgery by fixing implants, there will be a
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C.M.A.No.409 of 2020
necessity for removal. In the case on hand, no such surgery was undergone by
the claimant. Therefore, a sum of Rs.25,000/- awarded by the Tribunal
towards future medical expenses is hereby set aside.
15.In all other aspects, the award passed by the Tribunal appears to be
reasonable and hence, needs no interference. Thus, the compensation awarded
by the Tribunal is modified as follows:
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Disability 75,000/- 75,000/- Confirmed
2. Pain and sufferings 1,00,000/- 75,000/- Reduced
3. Extra nourishment 75,000/- 50,000/- Reduced
4. Transportation 50,000/- 30,000/- Reduced
5. Damages to clothes 3,000/- 3,000/- Confirmed
6. Attendant charges 25,000/- 25,000/- Confirmed
7. Medical expenses 50,000/- 50,000/- Confirmed
8. Future medical expenses 25,000/- - Set aside
Total Rs.4,03,000/- Rs.3,08,000/- Reduced by
Rs.95,000/-
16.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.4,03,000/- is hereby reduced
to Rs.3,08,000/- 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
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C.M.A.No.409 of 2020
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.5970 of 2012 on the file of the Motor Accidents
Claims Tribunal, IV Court of Small Causes, Chennai. On such deposit, the
Tribunal is directed to deposit the award amount in any one of the
Nationalized Banks, till the minor 1st respondent attains majority. On such
deposit made by the Tribunal, the mother of the 1st respondent, viz., Ilakkiya,
is permitted to withdraw the accrued interest once in three months for the
welfare of the minor 1st respondent. The appellant-Insurance Company is
permitted to withdraw the excess amount lying in the credit of
M.C.O.P.No.5970 of 2012, if the entire award amount has been already
deposited by them. Consequently the connected Miscellaneous Petition is
closed. No costs.
15.06.2023
krk
Index : Yes / No
Internet : Yes / No
Neutral Citation : Yes / No
https://www.mhc.tn.gov.in/judis
C.M.A.No.409 of 2020
To
1.The IV Judge,
Motor Accidents Claims Tribunal,
Small Causes Court,
Chennai.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.409 of 2020
R.KALAIMATHI, J.
krk
C.M.A.No.409 of 2020
15.06.2023
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