National Insurance Co. Ltd., v. Minor Lakshmanan,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.10.2018
CORAM:
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE C.M.A.No.2100 of 2011 National Insurance Co. Ltd., Branch Manager Attur, Salem District.
..Appellant/2nd Respondent Vs.
1.Minor - Lakshmanan S/o Palani, minor represented by the Next Friend and father Palani ... Petitioner
2. Saridha (R2-set expart in lower court) ..1st Respondent/Respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988 to set aside the award made in M.C.O.P.No.1100 of 2008 dated 23.11.2010 on the file of the Motor Vehicles Accident Claims Tribunal(Chief Judicial Magistrate) at Dharmapuri.
For Appellant : Ms.M.B.Surekha For Respondent: Mr. P. Mani for R1 R2 - Exparte
JUDGMENT
The instant appeal has been filed by the Insurance Company challenging the quantum of compensation awarded by the Motor Accident Claims Tribunal, Judicial Magistrate at Dharmapuri in its award dated 23.11.2010 passed in MCOP.No.1100 of 2008.
2. The brief facts leading to the filing of the instant appeal are as follows;
(i) The 1st respondent sustained injuries on 11.4.2008 as a result of an accident caused by a lorry bearing Registration No.TN-28-7317, owned by the 2nd respondent and insured with the appellant.
(ii) The 1st respondent preferred a claim before the Motor Accident Claims Tribunal in MCOP.No.1100 of 2008 seeking a compensation of Rs.7 lakhs for the injuries sustained by him. (iii) The Motor Accident Claims Tribunal, by its award dated 23.11.2010 in MCOP.No.1100 of 2008, directed the appellant to pay the 1st respondent a sum of Rs.2,29,500/- together with interest at the rate of 7.5% per annum from the date of claim till the date of realisation.
(iv) Aggrieved by the quantum of compensation awarded by the tribunal, the instant appeal has been filed by the insurance company.
3. Heard Ms.M.B.Surekha, learned counsel for the appellant and Mr.P. Mani, learned counsel for the 1st respondent. The 2nd respondent has remained exparte both before the tribunal as well as this Court.
4. According to the learned counsel for the appellant, the compensation awarded by the tribunal under the impugned award is excessive. According to her, the tribunal ought not to have awarded compensation of Rs.20,000/- towards mental agony in addition to Rs.25,000/- towards pain and suffering. Further, she contends that the tribunal ought not to have awarded a sum of Rs.1 lakh as compensation to the 1st respondent towards loss of future earnings.
5. Per contra, learned counsel for the 1st respondent would submit that the 1st respondent sustained head injuries and was a minor, aged 15 years at the time of the accident. According to him, he was taking continuous treatment and even at the time of filing of their claim petition, he was unable to stand, sit and squat and was having chronic headache and giddiness and was unable to write freely. The disability certificate was also filed by the 1st respondent before the tribunal assessing the disability of the 1st respondent at 45% which was marked as Ex.P.10. He also submitted that the wound certificate, medical bills, Doctor's prescription, Doctor's advice, CT Scan and X-Ray were also filed before the tribunal which were marked as exhibits will reveal that the 1st respondent sustained severe head injuries as a result of the accident. Therefore, according to the learned counsel, the compensation awarded by the tribunal to the 1st respondent is a just compensation.
6. This Court, after having considered the materials available on record and after examining the impugned award and after hearing the submissions of the respective counsels observes the following;
(a) the 1st respondent submitted that the wound certificate Ex.P.2 shows that the 1st respondent has sustained the following injuries;
1. Left Temporal Parietal Hemorrhagic Contusion
(2) Acute SDH (L) TP;
3. A sutured wound about 5 cm over the right parietal region;
4. Abrasion over the posterior aspect of right forearm and just below the right knee;
5. A sutured wound about 6 cm over the darsal aspect of right foot.
(b) The tribunal has also observed in its finding that due to the injuries sustained by the 1st respondent, he has suffered hearing and memory loss. Even though PW2-Doctor has assessed the disability of the 1st respondent as a result of the injuries sustained by him at 45%, the tribunal has assessed the disability only at 35%, and has awarded a compensation of Rs.70,000/- towards disability calculated at the rate of Rs.2,000/- per percentage of disability.
(c) Having suffered head injuries and hospitalised for a considerable period of time, the tribunal has rightly awarded a sum of Rs.1 lakh as compensation to the 1st respondent towards loss of future prospects. The tribunal under the impugned award, has awarded a compensation of Rs.8,500/- towards medical expenses, Rs.3,000/- towards extra nourishment charges, Rs.3,000/- towards transportation cost, Rs.25,000/- towards pain and suffering and Rs.20,000/- towards mental agony in addition to Rs.70,000/- towards disability compensation and Rs.1 lakh towards loss of future prospects. In all, the tribunal has awarded a sum of Rs.2,29,500/- as the total compensation payable to the 1st respondent.
(d) Learned counsel for the appellant has rightly contended that the compensation awarded by the tribunal under the impugned award under two separate heads viz., pain and sufferings and mental agony amounts to duplication. Therefore this Court cancels the compensation awarded by the tribunal towards mental agony.
(e) Insofar as the other heads of compensation awarded by the tribunal are concerned, they are perfectly in order and does not call for any interference of this Court.
7. Accordingly, the compensation awarded by the tribunal under the impugned award is modified and reduced from Rs.2,29,500/- to Rs.2,09,500/- along with interest at the rate of 7.5% per annum from the date of claim till the date of realisatiion.
8. In the result, (i) the appeal is partly allowed. No costs. Consequently, the connected M.P.No.1 of 2011 is closed.
(ii) the compensation awarded by the tribunal under the impugned award is modified and reduced from Rs.2,29,500/- to Rs.2,09,500/- along with interest at the rate of 7.5% per annum from the date of claim till the date of deposit. (iii) It is represented that the entire award amount has already been deposited before the tribunal. The modified amount shall be deposited in any one of the Nationalised Banks till the minor respondent attains majority and the father of the minor shall be entitled to withdraw the accrued interest on the amount deposited once in three months.
(iv) The appellant is permitted to obtain refund of the excess amount lying to the credit of MCOP by filing an appropriate application.
Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar msr/prm To
1. The Motor Vehicles Accident Claims Tribunal (Chief Judicial Magistrate), Dharmapuri.
2.The Section Officer, Vernacular Section, High Court, Madras.
+1cc to Ms.M.B.Surekha, Advocate sr.74427 +1cc to Mr.P.Mani, Advocate sr.74825 C.M.A.No.2100 of 2011 spd(co) nr 09/12/2019