Neelakandan Nayir v. Senthilkumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 18.03.2016
CORAM
THE HONOURABLE MR.JUSTICE R.SUDHAKAR AND THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN C.M.A. NO.1138 OF 2012 M.P. NO.1 of 2014 and C.M.P.No.4606 of 2016 Neelakandan Nayir .. Appellant/Petitioner - Vs -
1. Senthilkumar
2. M/s.Sri Mugambigai Spinning Mills Ltd., rep. by Managing Director, No.551, Ganesapuram, S.S.Kulam, Coimbatore.
3. Cholamandalam M.S. General Insurance Company Ltd., Avinashi Road, Kalai Kathir Buildings, Coimbatore.
.... Respondents/Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the Award and decree dated 14.11.2011 passed by the Motor Accident Claims Tribunal (Additional District and Sessions Judge), FTC No.1, Coimbatore, made in M.C.O.P.No.757 of 2009.
For Appellant : Mr.C.Veeraraghavan For Respondents : Mr.N.Vijayaraghavan - R3
J U D G M E N T
(DELIVERED BY R.SUDHAKAR, J.) Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.
2. The appellant/claimant has filed the appeal challenging the Award dated 14.11.2011 passed by the Motor Accident Claims Tribunal (Additional District and Sessions Judge), FTC No.1, Coimbatore, made in M.C.O.P.No.757 of 2009.
3. It is a case of injury. On 14.4.2008 at 16.30 hours, when the injured Neelakandan Nayir was riding his motor cycle bearing Registration No.TN 38 K 6925 along with his son Harikrishna as a pillion rider on the extreme left side in the Avinashi road from West to East, a Skoda Octavia car bearing Registration No.TN40 Y 6292 came in a rash and negligent manner and dashed against the vehicle of the injured, as a result, the injured and his son were thrown out and sustained severe injuries. Hence, the claimant/appellant has filed claim petition claiming a sum of Rs.35,00,000/- as compensation. According to the claimant, he was working as Administrative Officer, BLR in Hester Pharmaceuticals Limited, Ahamedabad and was earning a sum of Rs.19,052/- per month.
4. In support of the claim petition, the son of the injured claimant was examined as P.W.1; the claimant was examined as P.W.2; one Gnanasekaran was examined as P.W.3, Dr.Gajendran was examined as P.W.4 and Exs.P-1 to P-58 were marked, the details of which are as follows:- Ex.P-1 15.04.2008 Copy of first information report Ex.P-2 15.04.2008 Copy of rough sketch Ex.P-3 15.04.2008 Copy of MVI report Ex.P-4 15.04.2008 Copy of MVI report Ex.P-5 --- Copy of charge sheet Ex.P-6 -- STC No.1003/2008 extraction copy Ex.P-7 -- Wound certificate of Harikrishnan Ex.P-8 15.04.2008 Discharge summary of Harikrishnan given by KG Hospital Ex.P-9 15.04.2008 Inpatient Receipt given by KG Hospital for Harikrishnan Ex.P-10 23.4.2008 Discharge summary of Harikrishnan given by Ernakulam hospital Ex.P-11 23.4.2008 IP final bill of Harikrishnan Ex.P-12 15.7.2011 Copy of Discharge summary of Harikrishnan given by Ernakulam hospital Ex.P-13 23.4.2008 Copy of Discharge summary of Harikrishnan given by Ernakulam hospital Ex.P-14 -- Medical bills series Ex.P15 -- X-ray receipt
Ex.P16 7.7.2011 Receipt given by blood bank Ex.P17 -- Photographs series Ex.P18 -- Wound certificate of Neelakandan Nayir Ex.P19 15.4.2008 Copy of discharge summary given by KG Hospital for Neelakantan Nayir Ex.P.20 15.4.2008 Copy of receipt given by KG Hospital for Neelakantan Nayir Ex.P21 30.7.2008 Copy of discharge summary given by Ernakulam Hospital for Neelakantan Nayir Ex.P22 30.7.2008 IP final bill of Neelakandan Nayir issued by Ernakulam Hospital Ex.P23 17.12.2008 IP final bill of Neelakandan Nayir issued by Ernakulam Hospital Ex.P24 03.07.2009 copy of discharge summary of Neelankandan Nayir given by KG Hospital Ex.P25 16.11.2009 IP final bill of Neelakandan Nayir issued by Ernakulam Hospital Ex.P26 03.07.2009 copy of discharge summary of Neelankandan Nayir given by KG Hospital Ex.P27 16.11.2009 IP final bill of Neelakandan Nayir issued by Ernakulam Hospital Ex.P28 078.06.2010 IP final bill of Neelakandan Nayir issued by Ernakulam Hospital Ex.P29 ...
Medical bills Ex.P30 06.60.2008 Radiology Report of Neelakandan Nayir Ex.P.31 ..
X-ray bills Ex.P32 10.02.2009 Residential Certificate of Neelakandan Nayir Ex.P33 15.11.2010 Treatment Certificate of Neelakandan Nayir Ex.P34 ..
X-ray bills Ex.P35 ..
Medical bills Ex.P36 20.05.2011 X-ray bills
Ex.P37 ..
Medical bills Ex.P38 ..
SSLC Extract Ex.P39 03.01.1983 Education Certificate of Neelakandan Nayir Ex.P40 ..
Copy of driving licence of Neelakandan Nayir Ex.P41 ..
Copy of salary certificate Ex.P42 24.09.2008 Copy of salary certificate Ex.P43 ..
Copy of pan card of Neelakandan Nayir Ex.P44 24.7.2006 copy of saral form Ex.P45 28.7.2007 Acknowledgement Card of Income Tax Office Ex.P46 28.7.2008 Acknowledgement Card of Income Tax Office Ex.P47 16.4.2008 Copy of Form 16 Ex.P48 20.4.2008 Copy of the letter sent to the office of the Neelakandan Nayir Ex.P49 15.4.2008 Ambulance Bill Ex.P50 ..
Photographs series Ex.P51 11.4.2008 CT scan report Ex.P52 ..
Authorisation letter Ex.P53 ..
copy of salary certificate Ex.P54 ..
copy of salary certificate Ex.P56 ..
Permanent Disability certificate Ex.P57 ..
x-ray Ex.P58 ..
Permanent Disability certificate
5. On the side of the respondents, no witnesses were examined and no documents were marked.
6. The Tribunal based on the oral evidence of witnesses, the F.I.R. and also taking into account the documentary evidence and further there being no satisfactory evidence adduced on behalf of the third respondent/Insurance Company to refute the evidence as to the rash and negligent driving of the Skoda Octavia Car, came to the conclusion that the accident was caused due to the rash and negligent driving by the driver of the Skoda Octavia Car, and therefore, the liability was fixed on the third respondent herein and consequently the third respondent was directed to compensate the claimant. Accordingly, the Tribunal awarded compensation under the following heads :-
Loss of income for 6 months (Rs.19,000x6) - Rs.1,14,000/- Pain and suffering - Rs.
25,000/- Extra nourishment - Rs.
10,000/- Permanent Disability (Rs.2,000x35) - Rs.
70,000/- Attender Charges - Rs.
5,000/- Medical Expenses - Rs.4,31,000/- Future Medical Expenses - Rs.
10,000/- Total Compensation - Rs.6,65,000/-
7. In all, the Tribunal awarded a compensation of Rs.6,65,000/= with interest at the rate of 7.5% from the date of filing of petition. Aggrieved by the said award, the appellant - claimant is before this Court by filing this appeal seeking enhancement of the award.
8. Learned counsel appearing for the appellant-Claimant submitted that the claimant had suffered fracture in tibia and was hospitalised on three occasions. He further submitted that the injured claimant is still not in a position to do his work and hence, the disability fixed by the Tribunal at 35% may be enhanced. Further, the amount awarded under other heads is also meagre. Per contra, it is submitted by the learned counsel for the third respondent/Insurance Company that taking note of the injury sustained by the claimant, the Tribunal had correctly awarded compensation and therefore, no interference is called for with the well considered finding of the Tribunal.
9. This Court has given its careful consideration to the above contentions advanced by either parties and also perused the materials available on record.
10. With regard to the contention of the learned counsel appearing for the appellant that percentage of disability be fixed on the higher side, we find that there is no evidence to show that the injury has caused loss of earning capacity. However, considering the nature of injury and the treatment taken by the injured claimant for a substantial period, at best, the disability can be fixed at 50% and at Rs.3,000/- for 1% be compensated. We find that the Tribunal has awarded meagre amount on other heads and hence, the same needs to be modified.
11. Accordingly, the compensation awarded by the Tribunal is modified as hereunder :- Compensation awarded by the Tribunal Compensation awarded by this Court Loss of income for 6 months (Rs.19,000x6) Rs.1,14,000 /- Rs.1,14,000/- Pain and suffering Rs.
25,000/- Rs.
50,000/- Extra nourishment Rs.
10,000/- Rs.
15,000/- Permanent Disability Rs.
70,000/- (Rs.2,000x35) Rs.1,50,000/- (Rs.3,000 x 50) Attender Charges Rs.
5,000/- Rs.
15,000/- Medical Expenses Rs.4,31,000 /- Rs.4,31,000/- Future Medical Expenses Rs.
10,000/- Rs. 25,000/- Loss of Amenities -- Rs. 50,000/- Total Compensation Rs.6,65,000/- Rs.8,50,000/- The interest awarded by the Tribunal at 7.5% per annum is not in dispute and the same is confirmed.
12. Accordingly, this Civil Miscellaneous Appeal is partly allowed with the above modification. Learned counsel appearing for the third respondent - Insurance company seeks time to deposit the enhanced award amount. The third respondent - Insurance Company is granted eight weeks time to deposit the enhanced award amount along with interest at the rate of 7.5% per annum from the date of filing of the appeal. On such deposit being made, the appellant/claimant is permitted to withdraw the amount along with interest and costs. Consequently, connected miscellaneous petitions are closed. However, in the circumstances of the case, there shall be no order as to costs. Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar sl
To
1. The Additional District and Sessions Judge), FTC No.1(Motor Accidents Claims Tribunal) Coimbatore.
2. The Record Keeper V.R. Section High Court, Madras.
+1cc to M/S. C. Veeraraghavan, Advocate, S.R.No.17803 +1cc to Mr.N. Vijayaraghavan, Advocate, S.R.No.17926 ALA(CO) EU(10/05/2016) C.M.A. NO.1138 OF 2012 M.P. NO.1 of 2014 and C.M.P.No.4606 of 2016