Madras High Court
V.Sivanammal (Died) : 1St vs K.Chinnakkanu on 2 August, 2024
CMA.(MD)No.221 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 02/08/2024
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
CMA(MD)No.221 of 2022
1.V.Sivanammal (Died) : 1st Appellant/
2.Pitchaiyammal Claimant
3.Shanthi
4.Arivuselvam
V.Ravichandran (Died)
5.Meena
6.Minor Ravi Bala
7.Minor Ravi Balan : Appellant 2 to 7
(Appellants 2 to 7 are
brought on record as Lrs
of the deceased sole appellant,
vide court order, dated 22.07.22
made in CMP(MD)No.5249 of 2022
in CMA(MD)No.221 of 2022)
Vs.
1.K.Chinnakkanu
2.M/S.IFFCO Tokiyo General Insurance
Company Ltd.,
No.82, Preetham Plasa,
Ground Floor & 1st Floor,
Ponmeni, Madurai.16.
3.S.Mahendran : Respondents/Respondents
(3rd respondent remained
Ex-parte before the
Tribunal. Hence, notice
to the 3rd respondent may
be dispensed with)
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1/11
CMA.(MD)No.221 of 2022
PRAYER:-Civil Miscellaneous Appeal is filed under
Section 173 of the Motor Vehicles Act, 1988 to set aside
the award in respect of the liability and to enhance the
compensation amount in MCOP No.1089 of 2014 on the file
of the Motor Accident Claims Tribunal/Special Sub Judge,
Madurai.
For Appellants : Mr.K.Kumaravel
For 1st Respondent : Mr.R.Manickam
For 2nd Respondent : Mr.V.Sakthivel
For 3rd Respondent : Ex-parte
JUDGMENT
This Civil Miscellaneous Appeal is filed seeking to
set aside the award in respect of the liability and to
enhance the compensation amount in MCOP No.1089 of 2014
on the file of the Motor Accident Claims Tribunal/Special
Sub Judge, Madurai.
2.The facts in brief:-
On 14/03/2014 at about 04.45 pm, the petitioner was
walking along with Madurai-Theni main road from east to
west direction. When she was nearing Kumar Rice Mill,
Chekkanoorani, a Car bearing registration No.TN-60-Z-6476
belonging to the first respondent driven by its driver,
came in a rash and negligent manner and hit the two
wheeler bearing registration No.TN-58-Z-1680, which was
going before him belongs to the third respondent in the
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main petition. The 3rd respondent in turn dashed the
petitioner from behind. She sustained grievous injuries.
3.A case in Crime No.136 of 2014 was registered by
the Chekkanoorani Police station for the offences under
sections 279, 337 and 304(A) IPC. The claimant suffered
several multiple grievous injuries on the left femur bone
and all over the body. She was taken to the Rajaji
Government Hospital, Madurai and treated as inpatient and
latter, shifted to Preethi Hospital, Madurai, underwent
surgery on 15/03/2014. Even now, she is taking treatment
as outpatient. She was aged about 65 years at the time of
the occurrence. By doing agricultural coolie work,
earned not less than Rs.300/- per day. Seeking
compensation of Rs.7,00,000/-, the claim petition was
filed.
4.That was resisted by the respondents 1 and 2 in
the main petition by filing counter.
5.The first respondent in the main petition filed
counter stating that the first respondent vehicle driver
was driving the vehicle carefully, but the third
respondent tried to overtake him. As result of which, the
occurrence took place. The 3rd respondent is liable to pay
the compensation.
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6.The second respondent filed counter supporting the
case of the first respondent by stating that because of
the rash and negligent driving on the part of the 3 rd
respondent, the occurrence took place. It is further
stated that on the date of the occurrence namely on
14/03/2014, the vehicle was not insured with the 2nd
respondent. Apart from that, other customary denials were
made.
7.Before the Tribunal, on the side of the claimant,
5 witnesses were examined and 11 documents were marked.
On the side of the respondents 1 and 2 in the main
petition, 5 witnesses were examined and 5 documents were
marked.
8.At the conclusion of the enquiry process, the
Tribunal recorded a finding that the accident took place
because of the rash and negligent driving on the part of
the first respondent vehicle.
9.Regarding the compensation amount, the partial
permanent disability was fixed at 39%. Adopting
percentage method, Rs.3,000/- was fixed for one
percentage. Rs.1,17,000/- was awarded towards partial
permanent disability. To that, other customary amounts
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were added, apart from the medical expenses, supported by
documentary evidence to the tune of Rs.1,62,600/-.
Finally, the following figure was arrived at as per the
tabulation given hereunder:-
Loss of Income Rs. 16,000/-
Transport expenses Rs. 2,000/-
Extra Nutrition Rs. 5,000/-
Damages to clothes Rs. 1,000/-
Medical expenses Rs. 1,62,600/-
Attendant charges Rs. 5,000/-
Loss of comfort Rs. 10,000/-
Pain and sufferings Rs. 10,000/-
Partial permanent disability Rs. 1,17,000/-
Total Rs. 3,28,600/-
10.Against which, this appeal is preferred by the
claimant.
11.The learned counsel appearing for the appellant
would submit that the first respondent vehicle had no
insurance policy; pay and recovery ought to have been
ordered by the Tribunal in the circumstances.
12.Per contra, the learned counsel appearing for the
2nd respondent would submit that it is not a case of
composite negligence, the complaint was lodged only
against the 3rd respondent driver, but not against the 1st
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respondent driver. According to him, no interference is
called for with regard to the negligence as well as the
quantum.
13.Regarding the first aspect of negligence, it is
seen that the first respondent vehicle in the main
petition bearing registration No.TN-60-Z-6475 was not
insured with the second respondent on the date of the
occurrence. Similarly, the third respondent did not have
any insurance policy at the time of the occurrence. So,
both vehicles were not properly insured. The finding of
fact recorded by the Tribunal is supported by the oral
and documentary evidence. So, that portion of the finding
recorded by the Tribunal requires to be confirmed.
14.Regarding the compensation amount, considering
the age of the petitioner, Rs.3,000/- was taken as factor
for awarding compensation on percentage basis. The
claimant suffered 39% partial permanent disability. But
as per the case of the claimant, disability was 50%. So,
it ought to have been fixed as such by the Tribunal.
15.The nature of the injuries suffered by the
claimant is mentioned in Ex.P2 Discharge Summery issued
by the Preethi Hospital, Madurai. Wherein, we find that
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there was fracture on the left femur bone. So, by
exercising the following manner:
X-Ray:Pelvis AP – Osteoporosis+
X-Ray:Chest AP – NAD
X-Ray: Left thigh with knee AP.LAT – Comminuted
distal femur a displaced.
X-Ray:Left forearm with hand AP.LAT-Comminuted
distal end of radius # extending of upper
in & 1/3 junction with d/3 ulna #
16.The claimant is advised the following:- Patient
and patient attenders informed about the possibility of
wound infection, restriction and stiffness of left Keen
and left wrist movements, possibility of delayed or non
union of fracture/refracture because of severe
osteoporosis for which may need for revision surgical
procedure and need for regular physiotherapy and follow
up. She went surgery for the fracture on the left femur
bone. The nature of injuries suffered by the claimant
shows the osteoporosis complications. She was advised as
noted above. But there is no total functional disability.
17.PW5 Doctor, who examined the claimant for
assessing the disability has stated as follows:-
“jw;nghJ vdJ ghpnrhjidapd;go
mtUf;F Vw;gl;l bjhil vYk;g[ Kwptpw;F
bghUj;jg;gl;l cnyhff; fk;gp mfw;wg;gl;L
tpl;ld. ,lJ nuoad; vYk;g[k; Kwpe;J ,lJ
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bjhil vYk;g[k; jw;nghJ nfhzyhft[k;>
jokdhft[k; ,ize;Js;sJ. md;dh vYk;gpd;
fPH;g;gFjp mfw;wg;gl;L tpl;ld. ,lJ
Kd;ifapy; mWit rpfpr;ir bra;j
fhaj;jGk;g[ cs;sJ. mjd; bjhL
czh;t[ gFjp Fiwe;Js;sJ. ,lJ bjhil
vYk;gpd; Kwptpdhy; ,lJ KHq;fhy; K:l;od;
rhjhuzkhf ,Uf;fntz;oa K:l;L mirt[fs;
40 tpGf;fhL Fiwe;Js;sJ> ,lJbjhil
jirfspd; tGj;jpwd; 20 tpGf;fhL
tpGf;fhLfs; Fiwe;Jk;> nkw;brhd;d ,it
K:d;Wk; nrh;j;J 24% Cdk; Vw;gl;Ls;sJ. ,lJ
Kd;dq;ifapy; vYk;g[ Kwptpdhy; ,lJ
kzpf;fl;L K:l;od; mirt[fs;
tpGf;fhLfs; Fiwe;Jk;> ,lJ Kd; ifapd;
tYj;jpwd; 20 tpGf;fhL Fiwe;Jk;> ,lJ
Kd;if xUq;fpize;j Tl;L ,af;fk; 30
tpGf;fhL Fiwe;Jk;> nkw;brhd;d ,it
K:d;Wk; nrh;eJ 22% Cdk; Vw;gl;Ls;sJ.
jw;nghJs;s typ ntjid 3 tpGf;fhL CdKk;
bjhL czh;t[ Fiwt[ 3 tpGf;fhL CdKk;
Kwpe;j vYk;g[fspd; cUkhw;wk; 3 tpGf;fhL
CdKk; Kwpe;j md;dh vYk;gpd;
fPH;g;gFjp ,Hg;g[ 3 tpGf;fhL Cdj;ija[k;
Vw;gLj;jpa[s;sJ
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4)kUj;Jt tHpfhl;Ljy; ml;ltidg;go
fzf;fpl;ljpy;jw;bghJ ,tUf;F rhiytpgj;J
fhaq;fspdhy; 52% gFjp epue;ju Cdk;
Vw;gl;Ls;sJvd;Wk; ,jdhy; ,tuhy; ,lJ
ifia gad;gLj;jp md;whl ntiyfisr;
bra;tJ rpukk; vd;Wk; ePz;l J}uk; epw;gJ>
elg;gJ> rk;kdk; nghl;L cl;fhUtJ>
Fj;jitj;J cl;fhUtJ nghd;witfis
rpukj;Jld; jhd; bra;a ntz;Lk;
vd;Wk; ,tUf;F ,lJ if kdpf;fl;oy;
bghUj;jg;gl;l cnyhff; fk;gpia
mfw;Wtjw;F kPz;Lk; xU mWit rpfpr;ir
njit vd;Wk; mjw;F jdpahf kUj;Jtidapy;
:U:.25>000/- brythFk; vd;Wk; fUj;Jf;Twp
rhd;wspf;fpnwd;.
17.So reading of the evidence of PW5, it is seen
that mal-union of bones was noticed on the left radius
bone. The main portion of ulna bone was removed. Because
of the accidental injuries and surgery, restrictions of
40% was noticed on the left knee portion. There was
movement restrictions upto 30%.
18.When there is a mal-union of bones on the left
leg region and the movements of ulna bone, naturally it
would have caused restriction of movements as pointed out
earlier. But 52% cannot be taken as functional
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disability. Since she was aged about 61 years at the time
of the occurrence, proper percentage factor was taken by
the Tribunal for assessing the disability. Percentage
method adopted by the Tribunal cannot be found fault.
Other conventional amounts were also reasonably fixed.
So, I find no reason to interfere into the award passed
by the Tribunal.
19.In the result, this Civil Miscellaneous Appeal
fails and the same is dismissed. No costs.
02/08/2024
Index:Yes/No
Internet:Yes/No
er
To,
1.The Motor Accident Claims Tribunal/
Special Judge, Madurai.
2.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
02/08/2024
https://www.mhc.tn.gov.in/judis
