Partly allowed

The National Insurance v. Lubna Saida (Minor)

Madras HC9 Oct 2014CMA/2954/2011

Case brief

AI extract

What is this about?

Appeal and cross objection against a Motor Accident Claims Tribunal award were disposed of. The court held that lack of a valid license does not absolve the insurer of third-party liability per Supreme Court dictum. Compensation was enhanced from the Tribunal's award to include attorney charges and loss of amenities.

What did the court decide?

Compensation enhanced to Rs.1,05,550/- with interest at 7.5% per annum. Insurer directed to deposit amount; recovery from 2nd respondent permitted.

The National Insurance Vs Lubna Saida (Minor) — Motor Accident Claims | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 09.10.2014

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CORAM

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THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN

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C.M.A.No.2954 of 2011 & and M.P.No.1 of 2011 and Cross Objection No.170 of 2011

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The National Insurance Company Ltd., 751, Anna Salai, Chennai – 2. ... Appellant in CMA No.2954 of 2011 / 2nd Respondent/ 1st respondent in Cross Objection No.170 of 2011

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vs.

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1.Lubna Saida (Minor) rep.by her mother and next friend Sofiya ...1st Respondent in CMA No.2954 of 2011/ Petitioner/Appellant in Cross Objection No.170 of 2011 2.R.Venkatesan ...2^nd Respondent both CMA and Cross Objection/ 1st Respondent

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Prayer in CMA No.2954/2011 : Civil Miscellaneous Appeal has been filed under Section 173 of Motor Vehicles Act against the award and decree dated 15.12.2009 made in MCOP No.3282 of 2005 on the file of the Motor Accident Claims Tribunal (V Court of Small Causes) at Chennai.

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Prayer in Cross Objection No.170/2011 : Cross Objection filed under Order 41 Rule 22 of C.P.C. against the decree and judgment dated 15.12.2009 made in MCOP No.3282 of 2005 on the file of the Motor Accident Claims Tribunal (V Court of Small Causes), Chennai.

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For 1^st respondent : Mr.V.Mohan Chowdary in CMA No.2954 and appellants in Cross Obj.170/2011

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

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JUDGMENT

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C.M.A.No.2954 of 2011 has been filed by the insurance company challenging the quantum of compensation awarded by the Motor Accident Claims Tribunal (V Court of Small Causes), at Chennai by decree and judgment dated 15.12.2009 made in MCOP No.3282 of 2005 stating that the amount awarded by the Tribunal is extremely on the higher side.

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Not being satisfied with the quantum of compensation awarded by the Tribunal, the respondent/claimant has filed Cross Objection No.170 of 2011 for enhancement of the compensation amount.

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It is the case of the respondent/claimant before the Tribunal that while the respondent/claimant was standing in front of her house situated in Soorappan Street, Triplicane, a Motor cycle bearing Regn.No.TN07 AX 9100 driven in a rash and negligent manner dashed against the respondent/claimant and thereby caused grievous injuries. Hence, a sum of Rs.2,00,000/- is claimed as compensation.

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The insurance company resisted the insurance claim by filing counter stating that at the time of accident, the rider of the motor cycle did not possess a valid driving licence and hence the insurance company is not liable to pay the compensation amount. That part, the insurance company has also taken a defence that the amount of Rs.80,550/- claimed by the respondent/claimant is extremely on the higher side and the petition is liable to be dismissed.

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In order to prove the claim, the mother of the minor respondent/claimant was examined as P.W.1, besides examining Dr.M.J.Mathiazhagan as P.W.2 and marked 8 documents as Exs.P.1 to P.8. On the side of the insurance company, R.W.1 & R.W.2 was examined and 3 documents were marked as Exs.R1 to R3.

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The Tribunal, after analysing the entire evidence both oral and documentary, adduced on both sides, has come to the conclusion that at the time of accident, the rider of two wheeler did not have a valid driving licence. After having come to such a conclusion, the tribunal directed the appellant/insurance company to pay the entire compensation to the respondent/claimant and then permitted them to recover the same from the owner of the vehicle. Thus, aggrieved over the said finding, the present appeal has been filed by the Insurance Company.

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The undisputed fact is that on account of the accident suffered by the respondent/claimant in the road accident occurred on 24.03.2005 involving a vehicle owned by the 1^st respondent and insured with the appellant/insurance company, the minor respondent/claimant aged about 4 years suffered fracture and she was admitted as inpatient from 24.03.2005 to 28.03.2005. Before the Tribunal, P.W.2

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

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Dr.M.J.Mathiazhagan has deposed that the respondent/claimant has suffered disability at 30%. The tribunal, after considering the evidence of P.W.2 has come to the conclusion that the assessment of percentage of disability may vary to 5% from one doctor to another and thus reduced the percentage of disability to 25% and awarded a sum of Rs.50,000/- as compensation under the head partial permanent disability.

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As contended by the learned counsel appearing for the appellant/insurance company, it is no doubt that the appellant/ insurance company had discharged their liability in proving their defence before the tribunal that the driver of the insured vehicle did not have a valid driving licence at the time of accident. However, as per the dictum laid down by the Hon'ble Supreme Court in the case of S.Iyyapan vs. United India Insurance Co.Ltd, reported in (2013) 7 Supreme Court Cases 62, non-possession of the valid driving licence cannot be a ground for the insurance company to disown its liability to pay the compensation to third party. At the maximum, the tribunal can give liberty to the insurance company to recover the compensation amount from the owner of the insured vehicle after paying the same to the victim / claimant. In view of the dictum laid down by the Hon'ble Supreme Court in the decision cited supra, this Court is not inclined to set aside the finding of the Tribunal.

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In so far as the quantum of compensation is concerned, it is the submission of the learned counsel for the respondent/claimant that taking note of the fact that the minor girl has suffered injury and she needs a attender to take care of her in the hospital, the tribunal has failed to award any amount under this head. It is further submitted that the tribunal has also not awarded any amount under the head loss of amenities and that considering the nature of injuries, the amount awarded under the head pain & suffering may also be increased.

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By way of reply, the learned counsel appearing for the appellant/insurance company submitted that the disability assessed by the doctor at 30% is highly exaggerated since the injuries sustained by the respondent/claimant is simple in nature and hence the amount awarded under this head needs to be reduced and thus, he opposed for the enhancement of the compensation amount.

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Considering the various submissions made by the learned counsel on either side, this Court is of the view that the sum of Rs.15,000/- awarded under the head pain & suffering seems to be reasonable and hence the same is confirmed. Regarding the amount awarded under the head partial permanent disability, the tribunal has awarded only a sum of Rs.50,000/-. PW2, doctor has assessed disability suffered by the victim as 30% and hence I am of the considered opinion that a sum of Rs.60,000/- could be awarded under this head for 30% disability. That apart, since the tribunal has not awarded any amount under the head attender charges and loss of

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

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amenities, I am of the considered opinion that a sum of Rs.5,000/and Rs.10,000/- respectively could be awarded under those heads. Except the above modification, the amount awarded by the Tribunal stands confirmed. Accordingly, the break-up details of the enhanced amount are as follows:-

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Transportation charges Rs. 2,000/2. Extra nourishment Rs. 3,000/3. Medical expenses Rs. 10,550/4. Pain & Sufferings Rs. 15,000/5. Partial permanent disability Rs. 60,000/6. Attender charges Rs. 5,000/7. Loss of amenities Rs. 10,000/------------------Total ... Rs.1,05,550/==========

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In the result, the compensation awarded by the Motor Accident Claims Tribunal (V Court of Small Causes), at Chennai dated 15.12.2009 made in M.C.O.P.No.3282 of 2005 is hereby enhanced to Rs.1,05,550/- and the Civil Miscellaneous Appeal is dismissed. Consequently, Cross Objection No.170 of 2011 is partly allowed.

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In view of the above enhancement of the award, the appellant/insurance company is directed to deposit the enhanced compensation amount along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the tribunal is directed to deposit the said amount in any one of the Nationalised Bank, till she attains majority. The mother of the respondent/claimant is permitted to withdraw the interest from the said deposit amount once in three months. The appellant/insurance company is permitted to recover the entire compensation amount from the owner of the insured vehicle viz., the 2nd respondent, herein.

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Assistant Registrar

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//True Copy//

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Sub Assistant Registrar rgr

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

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1.The Motor Accident Claims Tribunal (V Court of Small Causes), Chennai.

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2.The Record Keeper,

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V.R. Records,

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High Court of Madras.

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- 1 cc to M/s. d. Bharkaran, Advocate SR.48112

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- 2 ccs to M/s. V. Mohan, Chowdary, Advocate SR.47970

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C.M.A.No.2954 of 2011 &
Cross Objection No.170 of 2011
PPA(CO)
Eu 03.02.15

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

The National Insurance v. Lubna Saida (Minor)

Case brief

What is this about?

What did the court decide?

The National Insurance v. Lubna Saida (Minor)

Case brief

What is this about?

What did the court decide?

What the court decided

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