BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28/04/2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.M.A.No.816 of 1997 Minor.Krishnaveni ... Appellant (represented by father and natural guardian G.Balasubramanian.) Vs 1.Frederik Devadass 2.The Senior Divisional Manager, The New India Assurance Co. Ltd., Sivakasi. ... Respondents Prayer Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree made in M.C.O.P.No.478 of 1995, dated 18.09.1996, on the file of the Motor Accidents Claims Tribunal - Additional District Judge - cum - Chief Judicial Magistrate, Srivilliputtur. !For Appellant ... Mr.T.V.Sivakumar ^For Respondents ... Mr.Prabhu Rajadurai (Assisted) :JUDGMENT
This appeal has been preferred against the award passed in M.C.O.P.No.478
of 1995, dated 18.09.1996, on the file of the Motor Accidents Claims Tribunal –
Additional District Judge – cum – Chief Judicial Magistrate, Srivilliputtur.
The claimant is the appellant herein.
The short facts of the case relevant for the purpose of deciding this appeal are
as follows:
2. The minor girl aged 13 years, was proceeding in her cycle to her school
on Sivakasi – Srivilliputtur road, on 02.12.1993, at about 08.30 a.m., a scooter
bearing Registration No.TN-67-Z-2775 was ridden by its rider in a rash and
negligent manner, dashed against the minor girl, causing grievous injuries in
her right leg. There was a mal-union of bones. She had sustained permanent
disability to the tune of 40%. Hence, claiming Rs.2 lakhs, towards compensation,
the claimant had filed the claim petition.
3. The first respondent remained ex-parte. The second respondent in his
counter has contended that the accident had not occurred due to the rash and
negligent riding of the rider of the motor cycle, on the other hand, only due to
the contributory negligence of the claimant, the accident had occurred.
According to the second respondent, the claimant while trying to overtake
another cycle, the claimant failed in her attempt and sustained grievous
injuries, by dashing on the motor cycle.
4. Before the learned Tribunal, P.W.1 to P.W.3, were examined and Exs.P.1
to P.10 were marked on the side of the claimants. R.W.1 was examined and
Exs.R.1 to R.5 were marked on the side of the respondents.
5. After analysing the oral and documentary evidence, the learned Tribunal
has come to a conclusion that the accident had occurred only due to the rash and
negligent riding of the rider of the motor cycle bearing Registration No.TN-67-
Z-2775 and has awarded a compensation of Rs.52,500/-.
6. Aggrieved by the award of compensation, the claimant had preferred this
appeal.
7. Now, the point for determination in this appeal is whether the award of
compensation passed in M.C.O.P.No.478 of 1995, dated 18.09.1996, on the file of
the Motor Accidents Claims Tribunal – Additional District Judge – cum – Chief
Judicial Magistrate, Srivilliputtur, is liable to be enhanced for the reasons
stated in the Memorandum of appeal in C.M.A.No.816 of 1997?
The Point:
8. The quantum of compensation alone is being disputed by the appellant in
this appeal. The learned Counsel for the appellant would contend that for 40%
permanent disability, the learned Tribunal has awarded Rs.40,000/-. The
claimant’s claim for Rs.1,00,000/- (Rupees one lakh) only, under the head loss
of income was rejected by the learned Tribunal, on the ground that at time of
the accident, the claimant was studying in 7th Standard and that there was no
loss of income to her. The learned Counsel for the appellant would bring to the
notice of this Court that at the time of the accident, the claimant was 13 years
old teen-ager and according to P.W.3, the Doctor, there was a mal-union of two
bones in her right leg and due to that, she could not walk properly like others
and the right leg is shortened by half an inch than the left leg and she was
limping while walking. Only on the basis of Ex.P.9, X-ray, the Doctor has
opined as above and Ex.P.10, is the disability certificate, which shows that the
claimant had sustained 40% permanent disability. The Doctor has in clear terms
admitted that due to 40% permanent disability caused to the claimant, her
marital life will be affected. So, the loss of amenities in her life was not
taken into consideration by the learned Tribunal and there was no compensation
was awarded under that score. So, taking into consideration the age of the
claimant, i.e., 13 years and due to 40% permanent disability, she had sustained
in the accident, definitely her marital prospects will be affected. Hence, this
Court is of the view that under the head loss of amenities in life, a sum of
Rs.50,000/- will be a reasonable amount of compensation. The learned Tribunal
has awarded Rs.12,000/- towards compensation under the head pain and sufferings.
Admittedly, soon after the accident, the claimant was treated in the Government
Hospital, Sivakasi as an inpatient from 02.12.1993 till 14.12.1993 and she was
also under treatment between 19.01.1994 and 20.01.1994. So during the period of
treatment, definitely, the claimant would have suffered enormous pain. So,
under the head pain and sufferings, the same amount of compensation fixed by the
learned Tribunal can be awarded. Under the heads, transport to hospital,
damages to cloth and articles, and under the head, extra nourishment, the
learned Tribunal has not awarded any compensation. Hence, I award Rs.2,000/-
towards compensation under the head extra nourishment. I award Rs.1,000/- under
the head transport to hospital and another sum of Rs.1,500/- is awarded towards
damages to cloth and cycle. So, the total award of compensation comes to
Rs.1,06,500/- [Rs.40,000/- + Rs.50,000/- + Rs.2,000/- + Rs.12,000/- + Rs.1,000/-
+ Rs.1,500/- = Rs.1,06,500/-] (Rupees one lakh six thousand and five hundred)
only.
9. Hence, I hold on the point that the award of compensation passed in
M.C.O.P.No.478 of 1995, dated 18.09.1996, on the file of the Motor Accidents
Claims Tribunal – Additional District Judge – cum – Chief Judicial Magistrate,
Srivilliputtur, is liable to be enhanced and fixed as Rs.1,06,500/-, for the
reasons stated in the Memorandum of appeal in C.M.A.No.816 of 1997.
10. In the result, the appeal is allowed and the award of compensation
passed in M.C.O.P.No.478 of 1995, dated 18.09.1996, on the file of the Motor
Accidents Claims Tribunal – Additional District Judge – cum – Chief Judicial
Magistrate, Srivilliputtur, is enhanced and fixed as Rs.1,06,500/-. The claimant
is entitled to 7.5% interest to the enhanced award of compensation from the date
of petition till the date of realisation. Time for deposit of the enhanced award
amount by the respondents is two months from this date. On such deposit, the
claimant is permitted to withdraw the entire award amount, since on the date of
this award, she has become major. Necessary application is to be filed by the
claimant before the appropriate forum. This Court records its appreciation of
both the Counsel Mr.T.S.Sivakumar, learned Counsel for the appellant and
Mr.G.Prabhu Rajadurai, learned Counsel for the Insurance Company, for having
rendered their co-operation in disposing of this case. No costs in the appeal.
To
The Motor Accidents Claims Tribunal –
Additional District Judge – cum –
Chief Judicial Magistrate,
Srivilliputtur.