Partly allowed

A.Kanakaraj v. N.L.Char

Madras HC15 Jul 2013CMA/2486/2009

Case brief

AI extract

What is this about?

The High Court modified the Motor Accident Claims Tribunal's award in a matter concerning a motor vehicle accident. Finding the original compensation quantum inadequate given the petitioner's 50% disability and surgical intervention, the Court increased the award from Rs.98,900 to Rs.1,65,000, granting Rs.66,100 as additional compensation.

What did the court decide?

Additional compensation of Rs.66,100 granted, increasing total award to Rs.1,65,000 with interest at 7.5% per annum, payable by the insurance company.

A.Kanakaraj Vs N.L.Char — Medical Negligence | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 15.07.2013

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CORAM

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THE HON'BLE MR.JUSTICE C.S.KARNAN

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C.M.A.No.2486 of 2009
A.Kanakaraj ... Appellant
Vs
1.N.L.Char
2.United India Insurance Company Ltd.,
Now operating from Silingi Building,
No.134, Greames Road,
Chennai – 600 006. ... Respondents

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Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, from the Judgment and Decree dated 22.01.2009 in M.C.O.P.No.3462 of 2004 on the file of the Motor Accident Claims Tribunal, Vth Judge, Court of Small Causes at Chennai.

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For Appellant : Mr.S.Gangaram Prasad

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For Respondents: Mr.J.Chandran (for R2)

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R1 – Not ready Notice

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JUDGMENT

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The appellant / petitioner has preferred the present appeal in C.M.A.No.2486 of 2009, against the Judgment and Decree passed in M.C.O.P.No.3462 of 2004, on the file of the Motor Accident Claims Tribunal / Vth Judge, Court of Small Causes at Chennai.

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2.The short facts of the case are as follows:-

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The petitioner has filed the claim in M.C.O.P.No.3462 of 2004, claiming compensation of a sum of Rs.2,50,000/- from the respondents for the injuries sustained by him in a Motor Vehicle Accident. It was submitted that on 26.06.2004, at about 12.30 hours, when the petitioner was travelling as a pillion rider in the motorcycle https://hcservices.ecourts.gov.in/hcservices/ bearing Registration No.TN-22-B-3437, ridden by his friend

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V.Sathishkumar, from Tambaram to Neelangarai on the Perumbakkam main road, Kalaikoothadi Nagar, Chennai, the Maruti Car bearing Registration No.TN-07-AB-9564, coming behind and driven in a rash and negligent manner, dashed against the motorcycle. As a result, the petitioner sustained injuries and was admitted at Kanchi Kamakoti Sankara Hospital and received treatment as an inpatient. At the time of accident, the petitioner was working as a Petrol Bunk Attendant and earning Rs.3,000/- per month. Hence, the petitioner has filed the claim against the respondents 1 and 2, who are the owner and insurer of the Car.

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3.The 1^st respondent, in his counter had denied the averments in the claim regarding age, income and occupation of the petitioner, nature of injuries sustained, period of treatment, medical expenses and disability. It was submitted that as the driver of the 1^st respondent's Car had a valid driving licence and as the Car was covered under a valid policy of Insurance with the 2^nd respondent, only the 2^nd respondent is liable to pay compensation, which is awarded by the Tribunal. It was submitted that the claim was excessive.

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4.The 2^nd respondent, in his counter had denied the place, date and time of accident, age, income and occupation of petitioner, nature of injuries, period of treatment, medical expenses and disability. It was submitted that the accident occurred due to the rash and negligent riding of the motorcycle and not due to the rash and negligent driving by the driver of the 1^st respondent's vehicle, as alleged. It was also submitted that the driver of the 1^st respondent's vehicle did not have a valid driving licence and that the Car was not covered under valid vehicular documents and insurance at the time of accident. It was submitted that the claim was excessive.

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5.The Motor Accident Claims Tribunal framed two issues for consideration in the case namely (1) Due to whose negligence was the accident caused? and (2) Whether the petitioner is entitled to get compensation? If so, what is the quantum?

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6.On the petitioner's side, two witnesses were examined and seven documents were marked as Exhibits P1 to P7 namely Ex.P1-F.I.R.; Ex.P2-Medical Prescriptions; Ex.P3-Discharge summary; Ex.P4-Medical Bills for Rs.24,816.40; Ex.P5-Old X-ray; Ex.P6-X-ray and Ex.P7Disability Certificate. On the respondents' side, no witness, no documents.

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7.PW1, the petitioner had adduced evidence which is corroborative of the statements made in the claim regarding manner of https://hcservices.ecourts.gov.in/hcservices/ accident and in support of his evidence, he had marked Exs.P1 to P7.

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The Tribunal, on scrutiny of Ex.P1, observed that the F.I.R. has been registered against the driver of the 1^st respondent's Car based on the complaint given by Sathishkumar, the rider of the motorcycle. The Tribunal, on scrutiny of evidence of PW1 and Ex.P1 and on observing that no oral or documentary evidence had been let in on the respondents' side to rebut the claim of PW1 regarding manner of accident, held that the accident had been caused by the rash and negligent driving by the driver of the 1^st respondent's Car and hence held the 2^nd respondent, being the insurer of the Car, liable to pay compensation to the petitioner.

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8.PW1 had further adduced evidence that due to the accident, he had sustained fracture of shaft of femur at the junction of middle lower 1/3^rd right side of leg and had undergone treatment, as an inpatient, from 09.07.2004 to 15.07.2004 and in support of his evidence, he had marked Exs.P2, P3 and P5.

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9.PW2, Dr.Saichandran had adduced evidence that the petitioner had sustained fracture of shaft of femur in right leg (right thigh) and dislocation of right shoulder joint and was first admitted at Kanchi Kamakoti Hospital, Perumbakkam, Chennai, as an inpatient for one day and conservative treatment was provided and thereafter the petitioner was admitted at Sri Ramachandra Hospital, Porur, wherein he received treatment as an inpatient for seven days and a surgery was performed on his right leg and internal fixation was done to fuse the broken bones. He deposed that the fractured femur had malunited and due to this the petitioner experiences difficulty in walking long distances, squatting on the floor, riding a cycle and climbing staircases. He deposed that the petitioner's right leg had been shortened by one inch. He also deposed that the petitioner had sustained injury in his right shoulder joint and the movements of his right shoulder joint had been restricted by 30°. He deposed that the disability sustained by the petitioner was 50% and in support of his evidence, he had marked Exhibits P6 and P7.

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10.The Tribunal, on scrutiny of oral and documentary evidence, awarded a sum of Rs.50,000/- for disability; Rs.9,000/- was awarded for loss of income for three months during medical treatment and convalescence period; Rs.5,000/- was awarded under each of the heads of pain and suffering, nutrition and transportation; Rs.24,900/- was awarded for medical expenses, as per medical bills marked as Ex.P4. In total, the Tribunal awarded a sum of Rs.98,900/- as compensation to the petitioner and directed the 2^nd respondent to pay the said sum together with interest at the rate of 7.5% per annum from the date of filing the claim till date of payment of compensation, with costs, within a period of eight weeks from the date of its order.

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11.Not being satisfied by the award passed by the Tribunal, the https://hcservices.ecourts.gov.in/hcservices/ petitioner has preferred the present appeal. The learned counsel for

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the appellant has contended in his appeal that the Tribunal ought to have awarded a sum of Rs.1,00,000/- under the head of disability as the claimant had sustained 50% disability due to fracture of his right thigh bone, injury to two toes in his right leg and dislocation of right shoulder and that the appellant's right leg had been shortened by one inch. It was contended that the award granted under the head of pain and suffering was also on the lower side. It was contended that the Tribunal failed to grant award for mental agony and for loss of amenities. Hence, it was prayed for additional compensation of Rs.1,00,000/-.

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12.The very competent counsel Mr.J.Chandran appearing for the Insurance Company submits that in the said accident, two vehicles had been involved and as such contributory negligence has to be attributed, but the Tribunal had not considered the same. Further, the claimant had sustained simple injuries but the medical practitioner had assessed the disability at 50%, which is on the higher side.

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13.On considering the factual position of the case and arguments advanced by the learned counsel on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence and liability. However, the quantum of compensation is on the lower side, since the claimant had sustained bone fracture injuries on his right leg and a surgical operation was conducted as per medical evidence. Hence, this Court is inclined to grant additional compensation. Hence, the compensation is assessed as follows:-

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Rs.50,000/- is awarded for disability; Rs.15,000/- towards pain and suffering; Rs.25,000/- towards medical expenses; Rs.15,000/towards transport; Rs.15,000/- towards nutrition; Rs.10,000/- towards attender charges; Rs.10,000/- for loss of earning during medical treatment period and Rs.25,000/- for loss of amenities and loss of comfort. In total, this Court awards Rs.1,65,000/- as compensation, as it is found to be appropriate in the instant case. After deducting initial compensation of a sum of Rs.98,900/-, this Court awards Rs.66,100/- as additional compensation. This additional amount will carry interest at the rate of 7.5% per annum from the date of filing the claim till date of payment of compensation. This Court directs the United India Insurance Company Limited to deposit the said additional compensation amount, with added interest thereon, as per this Court's findings, within a period of four weeks from the date of receipt of this order.

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14.After such a deposit having been made, it is open to the claimant to withdraw the modified compensation amount, lying in the credit of M.C.O.P.No.3462 of 2004, on the file of the Motor Accident Claims Tribunal, Vth Judge, Court of Small Causes at Chennai, after https://hcservices.ecourts.gov.in/hcservices/ filing a memo along with a copy of this order.

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15.In the result, the above appeal is partly allowed. Consequently, the Judgment and Decree passed in M.C.O.P.No.3462 of 2004, on the file of the Motor Accident Claims Tribunal, Vth Judge, Court of Small Causes at Chennai, dated 22.01.2009, is modified. No costs.

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Sd/-
Assistant Registrar
//True Copy//
Sub Assistant Registrar
vs
To
1.The Motor Accident Claims Tribunal,
Vth Judge, Court of Small Causes,
Chennai.
2.The Section Officer,
VR Section, High Court, Madras.
1 cc to Mr.J.Chandran ,Advocate, SR.No.35934
1 cc to Mr.S.Gangaram Prasad ,Advocate, SR.No.35512
C.M.A.No.2486 of 2009
ck(co)
pmk.8.8.2014

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https://hcservices.ecourts.gov.in/hcservices/

A.Kanakaraj v. N.L.Char

Case brief

What is this about?

What did the court decide?

A.Kanakaraj v. N.L.Char

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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