Madras High Court

The United India Insurance Company ... vs Minor Sriram on 21 November, 2023

Author: G.Chandrasekharan

Bench: G.Chandrasekharan

    2023/MHC/5179



                                                             1

                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED: 21.11.2023

                                                         CORAM:

                             THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN

                                            C.M.A(MD)NO.1017 OF 2023
                                                      and
                                            C.M.P(MD)No.14022 of 2023


                     The United India Insurance Company Limited,
                     through its Branch Manager,
                     No.53, Kayalpattinam Road,
                     Tiruchendur,
                     Tuticorin District.              :Appellant/Third Respondent

                                                  .vs.

                     1.Minor Sriram

                     (Minor Petitioner through his mother and next guardian Pushparani,
                     son of Jegadheeswaran(Late), aged 40 years, residing at D.No.48,
                     Nadar North Street, Kunnathur, Tirunelveli District and now residing
                     at D.No.54/2F, Gandhi Nagar, Pettai, Tirunelveli)

                     (Amended as per order in I.A.No.1 of 2021, dated 17.08.2021)

                                                                 :First Respondent/First
                                                                                  Petitioners
                     2.The Correspondent,
                       Sivanthi Aditanar College of Engineering at
                     Palayamkottai Road,
                     Kayapattinam Road,
                     Tiruchendur,
                     Tuticorin District                  : Second Respondent
                                                                    /First Respondent


                     PRAYER:          Civil Miscellaneous   Appeal    filed under Section 173 of
                     the Motor Vehicles Act,1988 against the award made in M.C.O.P.No.
                     1363 of 2019, dated 24.02.2023, on the file of the learned Special
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                                                              2

                     Sub-Court dealing with M.C.O.P Cases, Tirunelveli.


                                       For Appellant              :Mr.A.Ilango

                                       For Respondent-1           :Mr.P.Samuel Gunasingh

                                       For Respondent-2           :Mr.R.J.Karthick


                                                      JUDGMENT

*********

Challenging the quantum of compensation awarded in

M.C.O.P.No.1363 of 2019, on the file of the Motor Accidents Claims

Tribunal/Special Sub-Court, Tirunelveli, this Civil Miscellaneous

Appeal is filed.

2.The first respondent/claimant through his mother and next

friend, filed the claim petition seeking compensation of Rs.25 lakhs

for the injuries suffered in the road traffic accident on 7.2.2019 at

5.30 p.m. It is stated in the claim petition that when the first

respondent claimant was travelling as a pillion rider in the motor

cycle bearing Registration No. TN 92 A 3453 near Kayamozhi,

Thalavaipuram Road at Vaikkalpalam Turning, the bus bearing

Registration No. TN 69 S7099 came from the opposite direction,

driven in a rash and negligent manner and dashed against the two

wheeler and as a result, the first respondent suffered extensive

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injuries. He was aged 10 years at the time of accident and because

of the accident, he suffered post external fixation for fracture both

bone right leg and fracture right medial condyle hoffass femur

compound grade 3B. After the accident, he is not able to walk or

run as he was used to do before the accident. The injuries caused in

the accident permanently disabled him in performing his regular

activities and a compensation of Rs.25 lakhs was claimed.

3.The appellant filed counter questioning the liability and

quantum. It was stated that the rider of the motor cycle was also

responsible for the accident. The compensation claimed is

excessive.

4.During the enquiry P.W.1 and P.W.2 were examined. Ex.P1

to Ex.P9 were marked. The disability Certificate issued by the

Medical Board to the first respondent was marked as Ex.C1. There

was no oral or documentary evidence on the side of the appellant.

On the basis of the oral and documentary evidence, the learned

Tribunal awarded a sum of Rs.5,81,300/- as compensation to the

first respondent.

5.The learned counsel for the appellant submitted that the

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injured/first respondent was only 10 years at the time of accident.

Fixing the notional income at Rs.5,000/-p.m and adding 40%

towards future prospects, is excessive. It is his further submission

that minor first respondent was not examined as a witness and that

no evidence was produced regarding the injuries and disability

suffered by the first respondent/claimant. The learned counsel for

the appellant further submitted that compensation may be reduced.

6.In reply to the submission of the learned counsel for the

appellant, learned counsel for the first respondent submitted that

medical records produced in the form of Ex.B2 to Ex.B5 clearly

show the nature of the accident and the injuries suffered by the first

respondent. When the disability certificate proved the nature of the

disability suffered by the first respondent at 30%. Certainly, a boy

aged 10 years at the time of accident in 2019, who suffered

injuries in the accident leading to disability at 30% would face

functional disability in his day-to-day activities. He is now studying

in 12th standard and he cannot walk or run as before. Thus the

compensation awarded is just and appropriate and prayed for

dismissal of the appeal.

7.This Court considered the rival submissions made on either

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side and perused the records produced before this Court.

8.On going through the award of the Tribunal, compensation

was awarded under different heads as follows:

1.Future loss of earning capacity - Rs.4,15,800/-

2.Medical Expenses - Rs.500/-

3.Loss of convenience -Rs.50,000/-

4.Pain and suffering -Rs.50,000/-

5.Transport Expenses -Rs.5,000/-

6.Attendant Charges -Rs.50,000/-

7.Extra Nourishment -Rs.10,000/-

------------------

                                                    Total           -Rs.5,81,300/-
                                                                     ------------------

9.As rightly contended by the learned counsel for the first

respondent, the first respondent had suffered the following injuries:

‘’post external fixation for fracture both bone right leg and

fracture right medial condyle hoffass femur compound grade 3B’’.

10.Claimant’s mother is the best person to give evidence on

behalf of her minor son. She has given clear evidence about the

injuries and disability suffered by her son. Her evidence cannot be

sustained. For a boy aged 10 years at the time of accident, the

injuries suffered will certainly impact the physical activities and in https://www.mhc.tn.gov.in/judis

doing the day-to-day functioning or involving in sport activities.

When that be the case, the disability resulting in functional

disability, the application of multiplier method by the learned

Tribunal cannot be faulted. The learned Tribunal had also taken the

notional income of the minor claimant only at Rs.5000/-p.m which

in the considered view of this Court, is just and appropriate. Relying

on the Sarla Verma’s case and Pranay Sethi’s case, 40% of the

amount is added towards future prospects and compensation for

the loss of earning capacity due to the disability was assessed at

Rs.7000/- x 12 x 15 x 33/100 = Rs.4,15,800/-.This Court is of the

view that this compensation awarded under the head of loss of

earning capacity due to the functional disability, is correct. However,

this Court is of the view that a sum of Rs.50,000/- is awarded

under the head of loss of convenience apart from compensation

awarded under the head of loss of earning capacity due to functional

disability, is not correct. Therefore, the award of Rs.50,000/- under

the head of loss of convenience is not appropriate and the same is

set aside. The other amounts awarded under the head of medical

expenses at Rs.500/-, pain and suffering at Rs.50,000/-, transport

expenses at Rs.5000/-, attendant charges at Rs.50,000/- and extra

nourishment at Rs.10,000/-, considering the nature of the injuries

suffered by the first respondent/claimant and surgical treatment

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undergone by him, needs no interference and the same are

confirmed. Thus the compensation awarded by the Tribunal is

modified as follows:

S.No Name of the Awarded by Awarded by Remarks heads the Tribunal this Court 1 For loss of Rs. Rs. Same earning capacity 4,15,800/-/- 4,15,800/-

                      2             Medical expenses Rs.500/-         Rs.500/-      same

                      3             For    loss      of Rs.50,000/-      ------     Not
                                    convenience                                     awarded
                      4             Pain          and Rs.50,000/-     Rs.50,000/-   Same
                                    suffering
                      5.            Transport          Rs.5,000/-     Rs.5,000/-    same
                                    Expenses
                      6             Attendant          Rs.50,000/-    Rs.50,000/-   Same
                                    Charges
                      8             Extra              Rs.10,000/-    Rs.10,000/-   Same
                                    Nourishment
                      9             Total              Rs.            Rs.5,31,300 reduced
                                                       5,81,300/-

11.In the result, this Civil Miscellaneous Appeal is partly

allowed and the compensation awarded by the Tribunal is reduced

from Rs.5,81,300/- to Rs.5,31,300/- with interest at the rate of

7.5%p.a from the date of claim petition till the date of realization.

The appellant/Insurance Company and second respondent herein

are directed to deposit the above said award amount together with

accrued interest and costs within a period of four weeks from the

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date of receipt of a copy of this judgment. On such deposit being

made, the Tribunal is directed to deposit the award amount so

deposited, in an interest bearing fixed deposit, in any one of the

nationalized Bank, initially for a period of three years, renewable

thereafter, till the minor attains majority. The mother and next

guardian, Pushparani is permitted to withdraw interest from the

above said deposit, once in three months, directly from the bank

and utilize the same for the welfare of the minor boy. Deficit Court