M.Muthulinga Udayar v. Mr.Yesudoss
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.02.2021
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN C.M.A.No.1828 of 2018 M.Muthulinga Udayar ...Appellant/Claimant Vs
1. Mr.Yesudoss
2. The Oriental Insurance Company Limited, Regional Office, No.8, Esplanade, Chennai-600 104.
...Respondents/Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the award and decree dated 06.01.2018 made in M.C.O.P.No.4398 of 2005 passed by the Motor Accidents Claims Tribunal Court of Small Causes, Chennai. For Appellant : Mr.S.Sathish Rajan For Respondents : Mr.K.Vinod for R2 R1 : Not Ready in Notice
JUDGMENT
This Civil Miscellaneous Appeal is filed by the claimant seeking for enhancement of compensation.
2. On 09.07.2005, while the claimant was travelling in a TVS XL super moped bearing registration No.TN 01 C 8986 as a pillion rider, a Maxi Cab Van bearing registration No.TN 31 Q 8012 turned right side of the road without proper signal. Due to that, the van hit on the moped and the claimant, who was on the pillion thrown out from the moped. In this accident, the claimant sustained injury on his head and all over the body. He was admitted in the Government hospital treated for 10 days and got discharged. Claiming that as a vegetable vendor he was earning a sum of Rs.8,000/- per month and because of the accident, he has sustained loss of income and faculty, compensation of Rs.6,00,000/- claimed against the owner of the Maxi Cab and its insurer.
3. The Insurance Company filed a counter stating that the accident occurred due to the negligence of the moped rider and the claimant was travelling as a pillion rider has not sustained serious injury to compensate Rs.6,00,000/-.
4. The Tribunal after considering the evidence let in by the claimants had held that the moped rider had no valid driving license, hence, he has contributed the accident. Therefore, deducting 10% towards the contributory negligence in the award and fixed compensation of Rs.88,746.30 rounded off Rs.89,000/-. Taking into account the injury sustained by the claimant, the Tribunal fixed 10% disability.
5. The learned counsel for the appellant would submit that the claimant sustained head injury and was hospitalised for nearly 10 days, he has lost substantial income during the treatment period. While the doctor has assessed 30% disability, the Tribunal drastically reduced 10% without any justifiable cause. Therefore, the compensation should be enhanced and also deduction 10% of the award amount for contributory negligence of the rider is incorrect. Hence, there should not be any deduction on the above head in the claim petition filed by the pillion rider.
6. The disability summary marked as Ex.P-1 reveals the nature of the injury sustained by the claimant and the same has been extracted by the Tribunal in its order.
For convenience sake of the same is reproduced below:
"(viii) As per Ex.P1 Discharge summary the petitioner/injured was thoroughly examined at Government General Hospital at Ortho Department and Neuro Department. X ray left knee AP and Lateral and CT spine and CT scan brain have been taken and all the examinations report were considered by the specially specific field Doctors and it was mentioned by the Ortho Department that based upon the X ray for knee and CT for spine, it has been mentioned no bone injury and has been stated that NIL, active Orthopaedic management required. Like wise, by the Department of Neurology and Nuero surgery, the CT scan brain was studied and found normal and held NIL active Nuero surgeon management required. The petitioner/injured was instructed to take 3 kind of medicines and advised at the time of discharge to continue the above three medicines and advised to attend ortho department on Wednesday and Saturday if necessary. The
petitioner/injured was discharged on 18.07.2005."
7. The injury sustained by the claimant is only laceration injuries. No bone injury diagnosed. During the treatment period, conservative treatment was given to him. The nature of injury sustained by him are as below:
"1) Laceration C contusion
2) Tempo Parietal region 2x4x3 cm
3) Laceration left temple 4x2x1 cm
4) Laceration left knee 6x3x1 cm"
8. On going by the medical records and other evidence, this Court finds that there is no error in assessment of compensation by the Tribunal except the deduction of contributory negligence for want of driving license. Since the claimant is a pillion rider, negligence of the rider without license cannot be attributed to the pillion rider. Therefore, the said deduction is deleted and also taking note of the nature of the injury and the fact, the claimant was admitted in the Government hospital and treated for the injury, expenses towards the transport and extra nourishment is enhanced from Rs.10,000/- to Rs.20,000/-.
9. Thus, the claimant shall be entitled for a sum of Rs.1,08,607/- with interest at the rate of 7.5% per annum from the date of numbering the petition (02.09.2005) till the date of realisation. The award amount shall be deposited to the credit of the M.C.O.P.No.4398 of 2005 on file of the Motor Accidents Claims Tribunal, Court of Small Causes, Chennai, within a period of twelve weeks from the date of receipt of copy of this judgment.
10. The learned counsel for the appellant says that there is a typographical error in the decree and judgment of the Tribunal regarding the date of numbering the petition. The said typographical error is rectified and date of numbering the petition shall be read as "02.09.2005" instead of "30.09.2015". There shall be no interest for the default period if any.
11. With these modification, this Civil Miscellaneous Appeal is partly allowed. No costs.
Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar rpl
To The Motor Accidents Claims Tribunal, VI Court of Small Causes, Chennai.
Copy To The Section Officer, VR Section, High Court, Madras.
+1cc to Mr.S.Sathish Rajan, Advocate, S.R.No.9630 +1cc to Mrs.Elveera Ravindran, Advocate, S.R.No.9379 C.M.A.No.1828 of 2018 SSI(CO) RGA(14/09/2021)