M/S. Bajaj Allianz General v. Minor D. Adish Indrajith
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.03.2016
CORAM
THE HONOURABLE MR.JUSTICE R.SUDHAKAR and THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN C.M.A.No.552 of 2016 and C.M.P.No.4590 of 2016 M/s. Bajaj Allianz General Insurance Company Limited D.No.11, People's Park, 3rd floor Government Arts College Road Coimbatore.
... Appellant/ 2nd Respondent Vs.
1.Minor D. Adish Indrajith Rep. By guardian and grandfather K.N. Ayyasamy ... 1st Respondent/ Petitioner 2.K.A. Divakar ... 2nd Respondent/ 1st Respondent Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the common Judgment and Decree dated 17.08.2015 made in M.C.O.P. No. 151 of 2013 (connected with MCOP Nos. 666 of 2012, 150 and 152 of 2013) on the file of the Motor Accidents Claims Tribunal, (IV Additional District and Sessions Judge), Coimbatore.
For Appellant : Mr. Srinivasan Ramalingam For Respondents/ Caveators : Mr.C. Veeraraghavan for R1
JUDGMENT
(Judgment of the Court was delivered by R.SUDHAKAR,J.) This Civil Miscellaneous Appeal has been preferred by the Insurance Company, challenging the common Judgment and Decree dated 17.08.2015 made in M.C.O.P. Nos. 666 of 2012 and 150, 151 and 152 of 2013, on the file of the Motor Accidents Claims Tribunal, (IV Additional District and Sessions Judge), Coimbatore, whereby, the Tribunal has awarded a compensation of Rs.5,41,718/-, together with interest at 12% p.a. from the date of the petition till such deposit is made.
2. This is a case of injury. On 07.08.2011, at about 9 a.m., the car bearing Registration No.TN 37 AR 7434, driven by one Smt.Meenakshi, on the portico of her house, instead of moving to the front, mistakenly reversed, whereby she lost control and the car fell into a 200 ft. deep well, nearby. In that accident, the co-passengers, Mr.Sivarajan and Mrs. Vasanthi died, Minor D. Adish Indrajith and Minor D. Pawnjith sustained grievous injuries. The minor D. Adish Indrajith, aged 4 years, represented by guardian grand father Mr. K.N. Ayyasamy, who was a co-occupant of the car, has filed the claim petition for a compensation of Rs.7,00,000/-.
3. In support of the claim, the wife of the deceased Sivarajan was examined as P.W.1, Mr. K.M. Ayyasamy, guardian of the injured minor claimant was examined as P.W.2, said to be an eye witness, one Mr. S.Jayaprakash was examined as P.W.3 and the Dr. Gajendran, as PW.4. Exs.P-1 to Ex.P.48 were marked, the details of which are as follows:- Ex.No.
Details P1 Certified copy of F.I.R P2 Certified copy of charge sheet P3 Certified copy of rough sketch P4 Certified copy of MVI report P5 Certified copy of Referred Charge sheet P6 Certified copy of Post Mortem certificate P7 Original death certificate of Sivarajan P8 Original Legal Heir Certificate of Sivarajan P9 Original Driving Licence of Sivarajan P10 Xerox copy of Learner's licence of Meenakshi P11 Xerox copy of family card of Sivarajan P12 Xerox copy of Transfer certificate of Jayamalini P13 Xerox copy of Birth certificate of Kishore P14 Salary certificate of Sivarajan P15 Xerox copy of Death certificate of Vasanthamani P16 Letter of alteration of name in postmortem certificate P17 Original death certificate of Vasanthi P18 Original legal heir certificate of Vasanthi
Ex.No.
Details P19 Xerox copy of passport copy of Vasanthi P20 Xerox copy of Certificate of registration P21 Income tax return copy P22 Income tax return copy P23 Income tax return copy P24 Income tax return copy P25 Income tax return copy P26 Discharge summary of Baby Indrajith P27 Inpatient receipt of Indrajith P28 Medical Bills P29 Discharge summary of Baby Pawanjith P30 CT Scan of Brain P31 CT Scan of Abdomen P32 Ultra sound scan P33 Inpatient receipt of Pawnjith P34 Medical Bills P35 Original Death Certificate of Meenakshi P36 Day book of Subramania Gowder Jewellery P37 Day book of Subramania Gowder Jewellery P38 Day book of Subramania Gowder Jewellery P39 Day book of Subramania Gowder Jewellery P40 Day book of Subramania Gowder Jewellery P41 Statement of Account in the name of Subramaniam Ayyasamy P42 Statement of Account in the name of Vasanthi P43 Notice of Commissioner P44 Letter from Commercial Tax office P45 Disability Certificate of Indrajith P46 X-ray of Indrajith P47 Disability Certificate of Pawnjith P48 X-ray of Pawnjith On behalf of the Insurance Company no witness was examined and no document was marked on their side before the Tribunal.
4. The Tribunal, based on the oral evidence of the witnesses, the F.I.R. and also taking note of the fact that the deceased Meenakshi, who drove the car was possessing Learner's license to drive the car but accompanied with a professional driver, deceased Sivarajan, who was holding a valid license, came to the conclusion that the driver of the car was responsible for the accident and consequently liability was fixed on the Insurance Company. On this issue, learned counsel for the appellant has no serious objection with regard to the finding of the Tribunal as no material has been placed to come to a different conclusion from that of the conclusion arrived at by the Tribunal.
5. Based on the oral and documentary evidence, the Tribunal granted the following amounts as compensation with interest at 12% per annum:- Sl.
No Head Amount granted by the Tribunal Medical Expenses Rs. 91,718/- Pain and Sufferings Rs. 2,00,000/- Loss of Love and affection Rs. 2,00,000/- 25% Disability Rs. 50,000/- Total Rs. 5,41,718/-
6. Learned counsel for the appellant/ Insurance Company stated that in this case the quantum of compensation has to be reduced mainly on the ground that the injured claimant was admitted in the hospital only for 7 days. He further submitted that the compensation under the heading "Pain and Sufferings" is exorbitant. Further, the Tribunal has erred in granting an extremely high amount towards compensation under the heading "loss of love and affection", which is not applicable in a case of injury. The disability fixed by the Doctor PW-4, ought not to have been accepted by the Tribunal, since he has not treated the injured claimant and has not assessed the components of stability, mobility etc., and that he has not produced any worksheet or reports. On the above said grounds, the learned counsel for the appellant/ Insurance Company pleaded to reduce the quantum of compensation.
7. On the other hand, the learned counsel for the 1st respondent/claimant submitted that the age of the claimant was only 4 years, at the time of accident and underwent fracture in left Tibia and on ribs 1 to 6. Though the minor injured was treated in K.G. Hospital, as an inpatient from 07.08.2011 to 13.08.2011, he was under continuous treatment as an outpatient.
The Doctor had assessed 25% disability and exhibits P.26, P.28, P.45 and P.46 have been marked, to support his claim. Learned counsel further submitted that inspite of the fact that the injured/ claimant was a small child, no amount has been granted by the Tribunal, for Extra Nourishment, Transport, Future Medical Expenses and for Attender charges. Considering the age, the grievous injuries sustained by the claimant, the Tribunal has granted a fair and reasonable compensation and hence the learned counsel for the 1st respondent/claimant sought for dismissal of the above Civil Miscellaneous Appeal.
8. This Court considered the submissions made on the learned counsel on either side and perused the materials available on record.
9. Considering the age of the claimant, nature of injuries, period of hospitalisation and the percentage of disability, the appellant/ Insurance Company's plea appears to be tenable. We find, excess amount has been granted for "loss of love and affection" , which does not arise in a case of injury and hence the same cannot be granted. The amount granted towards "Pain and Suffering" seems to be on the higher side and hence it is reduced to Rs.1,00,000/-. In view of the fact that the injured is a small child of tender age, Rs.3000/- per percentage, shall be adopted and hence for 25% disability, the sum of Rs.75,000/- is granted. As the Tribunal has not granted any compensation towards the other heads, we are inclined to modify the compensation granted by the Tribunal, as follows :- Sl .
N o Head Amount granted by the Tribunal Amount granted by this Court Medical Expenses Rs. 91,718/- Rs. 91,718/- Pain and Sufferings Rs. 2,00,000/- Rs. 1,00,000/- Loss of Love and affection Rs. 2,00,000/- -- 25% Disability Rs. 50,000/- Rs. 75,000/- Attender charges -- Rs. 25,000/- Extra Nourishment -- Rs. 30,000/- Transport and Future Medical expenses -- Rs. 20,000/- Total Rs. 5,41,718/- Rs. 3,41,718/- Considering the prevailing rate of bank interest, this court feels that the rate of interest of 12% could be reduced to 7.5% per annum.
10. Accordingly, the Civil Miscellaneous Appeal is allowed, as follows:- (i) The award of the Tribunal is reduced to Rs.3,41,718/- from Rs.5,41,718/-.
(ii) The interest granted by the Tribunal at 12 % is reduced to 7.5% per annum.
(iii) The appellant/Insurance Company is directed to deposit the entire award amount, with the modified interest and costs, less the amount already deposited, to the credit of M.C.O.P.No. 151 of 2013 on the file of the Motor Accidents Claims Tribunal, IV Additional District and Sessions Judge, Coimbatore, within a period of eight weeks weeks from the date of receipt of a copy of this order.
(v) The amount so deposited, shall continue to be in the deposit of the minor/1st respondent, and renewed from time to time, till he attains majority and the guardian/ grandfather is permitted to withdraw the interest accruing on such deposit, once in three months, to meet the necessities of the minor. (vi) There will be no order as to costs in this appeal.
Connected Miscellaneous Petition is closed.
Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar avr To The IV Additional District and Sessions Judge, (The Motor Accidents Claims Tribunal), Coimbatore.
+1cc to Mr.C. Veeraraghavan, Advocate, S.R.No.17806 +1cc to Mr.Srinivasan Ramalingam, Advocate, S.R.No.17742 C.M.A.No.552 of 2016 and C.M.P.No.4590 of 2016 MSM(CO) CA(29/04/2016)