Madras High Court

Minor Rajesh vs S. Vijayakumar on 24 November, 2023

                                                                                       C.M.A. No. 3280 of 2021


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED : 24.11.2023

                                                              CORAM:

                                    THE HONOURABLE MR. JUSTICE K. RAJASEKAR

                                                     C.M.A. No. 3280 of 2021

                     Minor Rajesh                                       ... Appellant / Petitioner

                                                                 Vs.

                     1.           S. Vijayakumar

                     2.           United India Insurance Co. Ltd.,
                                  No.134, Silingi Building,
                                  Greams Road,
                                  Chennai - 600 006.                   ... Respondents / Respondents


                                  Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act, 1988 against the Judgment and decree dated 02.11.2019
                     passed in M.A.C.T.O.P. No.7135 of 2013 on the file of the Motor Accidents
                     Claims Tribunal, VI Court of Small Causes, Chennai.


                                  For Appellants     :       M/s. M. Malar
                                  For R1             :       D/W
                                  For R2             :       Mr. V. Dakshnamoorthy



                                                             JUDGMENT

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This Civil Miscellaneous appeal has been filed by the claimant

challenging the Judgment and Decree passed in M.A.C.T.O.P. No.7135 of

2013, dated 02.11.2019 on the file of the Motor Accidents Claims Tribunal,

VI Court of Small Causes, Chennai, seeking enhancement of compensation.

2. For the sake of convenience, the parties are referred to herein

according to their litigative status and rank before the Tribunal.

3. The claimant herein is a minor aged about nine years. On

11.05.2013, he was riding a bicycle from a shop to his home and he was hit

by a two wheeler bearing Registration No.TN-22-CH-6796 belongs to the

first respondent, who ridden the two wheeler in rash and negligent manner.

Minor claimant has sustained grievous injuries on his head and all over the

body. A criminal case was also registered against the rider of the two

wheeler in Cr.No.655/2013 under section 279 and 337 of I.P.C. on the file of

Mount Traffic investigation Police Station. For the injuries sustained, the

minor claimant represented by his mother has filed this claim petition

seeking compensation for a sum of Rs.2,45,000/- restricted to Rs.1,50,000/-

under section 166 of Motor Vehicles Act and Rule 3 of Motor Accident

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Claims Tribunal Rules.

4. The first respondent is the owner cum rider of the two wheeler

bearing Registration No.TN-22-CH-6796 has not contested the claim and

remained ex-parte. The second respondent - insurance company has filed a

counter and denied the fact that accident was taken place due to the rash and

negligent on the part of the rider of the first respondent vehicle and

contended that the compensation claimed under various heads is highly

excessive, hence prays to dismiss the claim petition.

5. Before the Tribunal, on the side of the claimant, P.W.1 and

P.W.2 were examined and Exs.P.1 to P.13 were marked. On the side of the

respondent, no witnesses were examined and no exhibits were marked.

6. Based on the evidence, placed on record, the Tribunal in

point no.1, has held that accident was taken place only due to the rash and

negligent riding of the two wheeler bearing Registration No.TN-22-CH-

6796 by the first respondent. In point nos.2 and 3, the Tribunal has held the

claimant is entitled for compensation for a sum of Rs.57,850/- along with

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interest @ 7.5% per annum from the date of filing of petition till the date of

realization. In point no.4, the Tribunal has fixed the liability on the second

respondent - insurance company to indemnify the first respondent and to pay

the compensation to the claimant.

7. Aggrieved over the quantum of compensation awarded by

the Tribunal, the claimant has come forward with this appeal seeking

enhancement of compensation.

8. The learned counsel appearing for the claimant has submitted

that the claimant is a minor aged about nine years at the time of occurrence

and he has sustained grievous head injuries i.e., right frontal SAH along with

left roof of orbit fracture extending to right frontal bone, peri sylvian bleed

and other multiple grievous injuries all over the body, but the Tribunal has

not considered the same and not properly appreciated the evidence placed on

record and fixed the disability as 10%, which is not proper. The learned

counsel also submitted that the compensation awarded under various heads

is on the lower side, hence prays to modify the award.

9. Per contra, the learned counsel appearing for the second

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respondent - insurance company has submitted that the Tribunal based on

the evidence placed on record has awarded a just compensation, hence prays

to confirm the same.

10. Heard the submissions made on both sides and perused the

materials placed on record:

11. In this case, the claimant herein is a minor aged about nine

years and on 11.05.2013, he has sustained grievous head injuries like right

frontal SAH along with left roof of orbit fracture extending to right frontal

bone, peri sylvian bleed and other multiple grievous injuries, which leads to

haemorrhage on the sub arachnoid. He was also subjected to treatment in

the Institute of Neurology, the disability of the deceased was assessed by the

P.W.2 - Doctor, who was the retired surgeon of the Government Hospital

and he has also stated that on his examination, he has noted the above

injuries and these injuries have resulted in causing severe complications

such as post traumatic head ache, hence, he was not able to study and

concentrate, accordingly, he has assessed the disability as 30% partial

permanent disability.

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12. The Tribunal after assessing the evidence of P.W.2 and the

disability certificate - Ex.P.12, has held that the certificate is not issued as

per the Rule 4 of "The persons with Disability (Equal opportunities

Protection of Rights and Full Participation) Act.1195 and its Rules 1996".

Further the Ex.P.12 is not accompanied with the mode of assessment/

worksheet as stipulated in the "Guidelines & Gazette Notification Regd. No.

DL 33004/99 (Extraordinary) Part II. Sec.1 June, 13,2001 issued by the

Social Justice & Empowerment, GOI'', hence, by considering the nature of

injuries, the Tribunal has fixed the disability as 10% and by adopting

percentage method granted compensation of Rs.30,000/- by fixing

Rs.3,000/- per percentage of injury.

13. P.W.2 has categorically deposed that the injuries sustained

by the claimant more particularly on the face and the head has resulted in

fracture near the right frontal SAH along with left roof of orbit fracture

extending to right frontal bone, peri sylvian bleed, which leads to

haemorrhage on the sub arachnoid. These injuries caused to the young boy

are serious injuries. The Hon'ble Apex Court in judgment Master

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Mallikarjun vs. Divisional Manager, the National Insurance Company

Limited and another reported in [CDJ 2013 SC 740] has laid down the

dictum for the assessment of quantum of compensation to be fixed for the

minor children in paragraph no.12 as follows:

"Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs. 3 lakhs; upto 60%, Rs. 4 lakhs; upto 90%, Rs. 5 lakhs and above 90%, it should be Rs. 6 lakhs. For permanent disability upto 10%, it should be Re. 1 lakh, unless there are exceptional circumstances to take different yardstick."

14. In this case, the P.W.2, the doctor who assessed the disability

of 30% but the Tribunal has fixed the percentage of disability as 10%. As

per the Hon'ble Apex Court judgment cited supra, the quantum of

compensation fixed for the disability falls between 10% to 30% is

Rs.3,00,000/-. In this case, the Tribunal has fixed the percentage of

disability as 10% and this Court is of the view that the nature of the injuries

sustained by the claimant that too on the face of the young boy, which also

resulted in causing fracture in the head region, reducing the percentage of

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disability is not proper. However, reduction or accepting the percentage of

disability in this case has no effect on the quantum of compensation to be

paid to the claimant herein. Accordingly, the compensation to be awarded is

Rs.3,00,000/- and this Court modifies the compensation awarded by the

Tribunal under the head disability and fix the same as Rs.3,00,000/-.

15. The above compensation granted for Rs.3,00,000/- includes

pain and suffering, extra nourishment, loss of amenities, hence the

compensation awarded by the Tribunal under the heads pain and suffering,

extra nourishment and loss of amenities are hereby removed. Whereas the

compensation awarded by the Tribunal under the heads attender charges,

medical expenses, damages to cloths and transportation charges are hereby

confirmed. Even the claimant has claimed lesser amount has compensation,

he is entitled for just compensation, if the claimant has establish his case for

enhancement of compensation.

16. Even though the claimant has claimed Rs.1,50,000/- as

compensation, granting compensation amount exceeding the claim amount is

permissible, and the judgment in Sidram vs. The Divisional Manager,

United India Insurance [Manu/SC/1493/2022 : 2023 (3) SCC 439], the

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Hon'ble Apex Court has reiterated the same by following the judgment of

Apex Court in Nagappa vs. Gurudayal Singh [2023 (2) SCC 274] and

Laxman Maurya vs. Oriental Insurance Company Limited [2012 ACJ

191].

17. Accordingly, the award passed by the Tribunal under various

heads are hereby modified as follows:

                        S.              Description       Amount            Amount          Award
                        No                               awarded by       awarded by      confirmed
                                                          Tribunal         this Court         or
                                                            (Rs)              (Rs)         enhanced
                                                                                          or reduced
                        1. Disability                         30,000/-      3,00,000/- Enhanced
                        2. Pain and Suffering                 10,000/-        ---           Rejected
                        3. Extra Nourishment                    2,000/-       ---           Rejected
                        4. Transportation                       2,000/-        2,000/- Confirmed
                        5. Damages to cloths                    1,000/-        1,000/- Confirmed
                        6. Attender charges                     2,000/-        2,000/- Confirmed
                        7. Medical expenses                      850/-              850/- Confirmed
                        8. Loss of amenities                  10,000/-        ---           Rejected
                                  Compensation                57,850/-      3,05,850/- Enhanced
                                  Awarded

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

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allowed and the compensation awarded by the Tribunal at Rs.57,850/- is

hereby enhanced to Rs.3,05,850/- [Rupees Three Lakh Five Thousand

Eight Hundred and Fifty only] together along with interest at the rate of

7.5% per annum from the date of filing of Claim Petition till the date of

deposit, excluding the default period, if any. The second respondent -

Insurance Company is directed to deposit the amount awarded 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.7135 of 2013 on the file of the VI

Judge, Motor Accidents Claims Tribunal, Small Causes Court, Chennai. On