D.Umamaheswari v. K.Raju
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 31.03.2023 Pronounced on : 31.07.2023
CORAM:
THE HONOURABLE Mrs.JUSTICE R.KALAIMATHI D.Umamaheswari ... Appellant vs.
1.K.Raju 2.V.Sumathi 3.The New India Assurance Co. Ltd., 1st Floor, Amman Complex, No.1360, E.V.N.Road, Erode.
4.Dhandapani 5.National Insurance Company Ltd., Gobichettipalayam Town, Gobichettipalayam.
6.V.Karikalan ... Respondents PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the Judgment and Decree of the Motor Accident Claims Tribunal (II Additional District Court), Erode in M.C.O.P.No.53 of 2011 dated 28.06.2013.
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For Appellant : Ms.H.Kavitha For 3rd Respondent : Mr.C.Ramesh Babu For 5th Respondent : Mr.K.Padmanabhan ***********
JUDGMENT
This Civil Miscellaneous Appeals has been filed by the appellants / claimants herein against the Judgment and decree passed in M.C.O.P.No.53 of 2011 dated 28.06.2013 on the file of the Motor Accident Claims Tribunal, Chennai (II Additional District Court), Erode for enhancement of compensation.
2. The claimant had filed this claim petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.10,00,000/- in M.C.O.P.No.53 of 2011 from the respondents.
3. In M.C.O.P.No.53 of 2011, the learned Tribunal, upon considering the evidence, has passed an award for an amount of Rs.1,37,500/- was granted and payable by the third respondent with 7.5% interest from the date of filing of the claim petition till the date 2/11
of realization.
4. It is the evidence of P.W.1 that on 16.05.2010 at about 11.40 am., one Shanmugam along with his daughter Umamaheswari, her minor children Madhanraj and minor Pradeep while they were proceeding in the TATA Indica Car bearing registration No.TN 07 AY 5946 from Erode to Gobichettipalayam near Kullapalayam Pirivu, a bus bearing registration No.TN 33 AD 9519 came at a high speed and driven by the driver in a rash and negligent manner, from the opposite direction and dashed against the car. Eventually, the car got heavily damaged and the said Shanmugam died on the way to the hospital and others sustained serious injuries and fractures, is not in dispute.
5. Since as the claim petition is filed based on a same accident the claim petition has been taken together by recording evidence, judgment in the M.C.O.P came to be passed by the learned Tribunal.
6. To substantiate the claims putforth in the claim petition four 3/11
witnesses one of the injured Umamaheswari, Doctor Periyasamy, Doctor Ramamoorthy, V.V.Mathiyazhagan have been examined as P.W.1 to P.W.4. Exs.P1 to P39 have been marked. On the third respondent side K.Raju, driver of the 2nd respondent bus was examined as R.W.1. No document was marked by the respondent's side.
7. On behalf of the third respondent resisted the above said claims by way of filing counter as follows:
The petitioners were put to proof of the accident, age, occupation and income of the deceased are not admitted by the third respondent and the claim is excessive.
8. On behalf of the fifth respondent / National Insurance Company Limited, Chennai the claim petition is resisted by filing counter as follows:
The accident took place only due to the negligent driving of the driver of the bus namely first respondent. The case was registered 4/11
against the first respondent, driver of the bus. The fifth respondent / Insurance Company is not liable to pay any compensation and the claim is excessive.
9. The learned counsel for the appellant would strenuously argue that the disability fixed by the Doctor / P.W.2 is 20% was reduced to 15% by the tribunal is incorrect. The injured being a tailor her right hand movement is restricted. The disability assessment made by Doctor / P.W.3, Dental Surgeon as 20% has also been reduced to 15% by the tribunal. The amounts granted for transport expenses and extra nourishment are less. No loss of income for the treatment period was awarded.
10. The learned counsel for the third respondent would state that as the injuries are non scheduled injuries, the compensation of Rs.1,37,500/- was granted by the tribunal is a reasonable one and warrants no interference.
11. The learned counsel for the fifth respondent / National 5/11
Insurance Company would putforth that the tribunal has not fastened liability against the fifth respondent. The stand of the claimants that due to the rash and negligent driving of the driver of the bus only accident happened was accepted by the tribunal and consequently the owner of the bus and the Insurance Company of the bus namely third respondent were held jointly and severally liable to pay compensation. The First Information Report was also registered against the driver of the bus namely the first respondent herein. Therefore, the order of the tribunal be confirmed.
12. It is the evidence of P.W.1 that she suffered fractures of fet scapula and right maxillary sinus. By which her right shoulder movements were restricted. It is the evidence of P.W.2 Doctor Periyasamy Orthopaedic Surgeon that due to the said fractures she suffered mal union and she is not in a position to do any work using her left hand. It is the evidence of P.W.2 that due to the accident she also suffered facial injuries. To that effect P.W.3 Doctor Ramamoorthy has been examined. The disability is assessed as 20% + 20% by the above said Doctors. The disability is taken as 35%. 6/11
13. According to Tmt.Umamaheswari P.W.1 that she was running a garment unit under the name and style of Uma Tailoring and earning a sum of Rs.15,000/- per month. To prove the said factum Ex.P16 income tax department acknowledgement is marked, wherein for the assessment year 2009 - 2010 her total income is mentioned as Rs.1,73,400/-. She has taken treatment in Senthil Multi Speciality Hospital, Erode from 16.05.2010 to 01.06.2010 as an inpatient as could be seen from Ex.P12. Relying upon the said details, her income is fixed at Rs.14,000/- per month. Considering the nature of the fractures suffered, loss of income for four months Rs.56,000/- is granted. Towards pain and sufferings an additional amount of Rs.10,000/- is granted. An amount of Rs.5000/- is granted for loss of amenities and in all other aspects the amounts granted appears to be reasonable and it needs no interference. The compensation awarded is reworked and tabulated as follows: 7/11
Sl.
No.
Description Amount awarded by Tribunal Amount awarded by this Court Award confirmed or enhanced or granted or reduced For Transport to Hospital Rs.5,000/- Rs.5,000/- Confirmed For Extra Nourishment Rs.10,000/- Rs. 10,000/- Confirmed For Medical Expenditure Rs.67,500/- Rs.67,500/- Confirmed Pain and Sufferings Rs.10,000/- Rs. 20,000/- Enhanced Loss of Future amenities Rs. 45,000/- Rs. 45,000/- Confirmed Loss of Income --- Rs.56,000/- Granted Total Rs.1,37,500/- Rs.2,03,500/- Enhanced
14. Heard the rival submissions put forth by both sides' learned counsels. Perused the entire materials available on record.
15. Thus, the compensation awarded by the Tribunal is enhanced which would carry interest at the rate of 7.5% per annum from the date of petition till the date of realisation. 8/11
16. In the result, (i) The Civil Miscellaneous Appeal is partly allowed. No costs. (ii) The compensation awarded by the Tribunal is enhanced from Rs.1,37,500/- to Rs.2,03,500/-.
(iii) The 3rd respondent / Insurance Company is directed to deposit the enhanced compensation amount i.e.,Rs.2,03,500/- (less the amount already deposited if any) together with interest at the rate of 7.5% per annum from the date of numbering of the petition till the date of deposit to the credit of M.C.O.P.No.53 of 2011 on the file of the Motor Accident Claims Tribunal, Chennai (II Additional District Court, Erode), within a period of eight weeks from the date of receipt of a copy of this Judgment.
(iv) On such deposit being made, the appellant / claimant is at liberty to withdraw the same on filing of cheque petition. The claimant is directed to pay the requisite Court fee for the enhanced compensation amount, if required. The Tribunal below shall disburse the enhanced amount upon production of the certified copy showing proof of payment of Court fee by the claimant. 9/11
31.07.2023 (2/4) Index : Yes/No Speaking / Non-speaking order rna To
1. The Motor Accident Claims Tribunal, (II Additional District Court), Erode.
2. The Section Officer, V.R.Section, High Court of Madras, Chennai.
R.KALAIMATHI, J., rna 10/11
31.07.2023 11/11