Jothimani Vs. M.Palanisamy - Court Judgment

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.08.2013 CORAM THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.2686 of 2003 Jothimani (Deceased) 1.Latha 2.Minor Priya 3.Minor Ramya 4.Minor Lavanya 5.Karuppathal .Appellants (Minors are represented by their Mother / Natural guardian Latha) (Appellants 1 to 5 brought on record as LRs of deceased sole appellant, vide order of Court dated 14.08.2012 made in CMP.No.17307 to 17309 of 2003 in CMA.No.2686 of 2003) vs 1.M.Palanisamy 2.The Oriental Insurance Company Limited, Branch Office, 59 Raja Street, Gobichettipalayam, Erode District.Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, for enhancement of the compensation amount awarded in the Judgment and Decree dated 21.11.2002 made in M.C.O.P.No.281 of 2002, on the file of the Motor Accident Claims Tribunal / Principal Sub-Court, Erode.

For Appellants : Mr.N.Manokaran For Respondents: Mr.K.S.Narasimhan (for R2) R1 - Exparte JUDGMENT

The 1st appellant herein / original claimant namely Jothimani has filed the claim petition in M.C.O.P.No.281 of 2002, on the file of the Motor Accident Claims Tribunal / Principal Sub-Court, Erode, against the respondents herein stating that on 14.10.2001, at about 03.00 p.m., when the petitioner was proceeding on the motorcycle bearing Registration No.TN-39-F-8022, as pillion rider, on the Kunnathur Main Road, by one Appavu, the 1st respondent's van bearing Registration No.TAP-6318, driven by its driver at a high speed and in a rash and negligent manner, dashed against the motorcyclist.

As a result, the petitioner sustained bone fracture injuries on his head, legs and hands.

Hence, he has filed the claim against the respondents claiming compensation of a sum of Rs.10,00,000/-.

2.The Insurance Company has filed counter statement and refuted the averments in the claim.

Further, it was submitted that the rider of the motorcycle did not possess a valid driving licence.

In the said accident, two vehicles were involved and therefore, the owner and insurer of the motorcycle have to be added as necessary parties, but as they have not been ordered as necessary parties, the claim is bad.

3.On verifying the averments of both parties, the Tribunal had framed two issues namely: (1) Whether the accident was caused due to the rash and negligent driving by the driver of the van?.

and (2) Whether the claimant is entitled to get compensation?.

If so, what is the quantum of compensation?.

4.On the side of the claimant, three witnesses were examined and 17 documents were marked as Exhibits P1 to P17 namely, Ex.P1-F.I.R; Ex.P2-Rough sketch; Ex.P3-Observation Mahazar; Exs.P4 & P5-Motor Vehicle Inspector's report; Ex.P6-Wound Certificate; Ex.P7-Charge sheet; Ex.P8-Judgment copy; Exs.P9 to P12-Medical bills; Ex.P13-Scan; Ex.P14-Scan report; Ex.P15-Discharge summary; Ex.P16-Disability certificate; and Ex.P17-Driving licence.

On the side of the respondents, no witness was examined and no document was marked.

PW1, the wife of the injured petitioner had adduced evidence that on 14.10.2001, at about 03.00 p.m., when her husband was travelling, as a pillion rider on the motorcycle bearing Registration No.TAP-6318, driven by its driver in a high speed and in a reckless manner, dashed against the motorcycle.

PW1 further adduced evidence that her husband had sustained bone fracture injuries on his two legs, hands and head.

He was immediately taken to Government Hospital, Gobichettipalayam, wherein preliminary treatment had been given to her husband and thereafter her husband was referred to Government Hospital, Erode for medical treatment.

Subsequently, he had been admitted at Senthilvel Hospital, Erode.

Thereafter, he was admitted at PSG Hospital, Coimbatore for special treatment.

PW1 further stated that her husband had been hospitalised from 14.10.2001 to 02.01.2002, as an inpatient.

Due to bone fracture injuries, he is unable to move from his bed and also unable to speak.

Her husband was earning Rs.7,000/- per month by way of selling banians and also through commission by way of land transactions.

5.PW3, Appavu, rider of the motorcycle had adduced evidence on similar lines to the evidence of PW1 regarding manner of accident.

PW2, Doctor had adduced evidence that the claimant had sustained 70% disability and that he is unable to speak.

PW2 further stated that the claimant had sustained multiple bone fracture injuries and is unable to breathe normally and that when he was examined on 27.08.2002, the claimant was bedridden as he had lost his strength due to the grievous injuries sustained in the accident.

6.On considering the evidence of the witnesses, the Tribunal had granted a sum of Rs.2,93,000/- as compensation, with interest.

Not being satisfied with the said compensation amount, the claimant has filed the above appeal.

While the appeal was pending on this Court's file, the original claimant Jothimani had expired.

Hence, the legal heir of the deceased have been brought on record.

The learned counsel for the claimant vehemently argued that the claimant had underwent treatment from 14.10.2001 to 19.04.2002 as inpatient as well as outpatient.

In the said accident, the claimant had sustained bone fracture injuries on his skull, legs and hands.

The Doctor had assessed the disability at 70%.

He had also verified the physical condition of the original claimant Jothimani while he was bedridden.

From the date of accident, he has been bedridden and therefore the wife of the deceased had appeared before the trial Court and narrated the entire facts of the case through oral and documentary evidence.

The claimant had spent a sum of Rs.1,85,452/- towards medical expenses.

In order to prove the same, Exhibits P9, P10 and P11 had been marked.

The nature of injuries sustained by him led to the death of the claimant and therefore, all the claimants namely young widow, three minor daughters and aged mother are seeking additional compensation of a sum of Rs.2,00,000/-.

All the claimants are depending upon the income of the deceased.

Now, all the female claimants are in a deserted condition and find it hard to maintain their daily life as they have lost their sole earning member in the family.

7.The very competent counsel for the Insurance Company argued that adequate compensation had been granted by the Tribunal on the basis of oral and documentary evidence.

As per mode of accident, two vehicles were involved and therefore the rider of the motorcycle is also responsible for the said accident.

As such, contributory negligence has to be attributed to the rider of the motorcycle but as the owner and Insurance company have not been added as necessary parties before the trial Court, a lacuna has arisen in the instant case.

In order to prove that the injured claimant had expired only due to the nature of injuries sustained in the accident, no documentary proof later postmortem report and Doctor Certificate had been marked to establish the appeal before this Court.

Hence, the highly competent counsel entreats the Court to dismiss the appeal.

8.On verifying the facts and circumstances of the case and arguments advanced by the very competent counsel on either side and on perusing the impugned award of the Tribunal, this Court does not find any infirmities in the conclusions arrived at regarding negligence and liability.

However, the quantum of compensation is on the lower side.

This Court is of the view that from the date of accident, the injured claimant was bedridden and he underwent treatment at four hospitals as an inpatient for a long period but in spite of this, he had not recovered from his illness.

Therefore, the wife of the injured claimant had adduced evidence before the trial Court.

It is seen from the Doctor's evidence that the Doctor had conducted a physical test, while the injured claimant was bedridden.

Therefore, this Court is of the view that the death of the injured claimant had been caused only due to nature of injuries sustained by him in the accident.

As such, the appeal for grant of additional compensation of a sum of Rs.2,00,000/- as reasonable and hence this Court entertains the appeal and directs the 2nd respondent Insurance Company to pay the additional compensation of a sum of Rs.2,00,000/- with interest at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of compensation, within a period of four weeks from the date of receipt of this order.

Each of the five petitioners are apportioned a sum of Rs.40,000/- with proportionate interest.

9.After such a deposit having been made, it is open to the claimants 1 & 5 & 2 (since attained majority) to withdraw their apportioned share amount, with accrued interest thereon, lying in the credit of M.C.O.P.No.281 of 2002, on the file of Motor Accident Claims Tribunal / Principal Subordinate Court, Erode, after filing a memo, along with a copy of this order.

This Court further directs the learned Judge to deposit the apportioned share of the 3rd and 4th minor claimants, in a nationalised bank, as fixed deposit, under the Cumulative Deposit Scheme till they attain the age of a major and hand over the fixed deposit certificates to the mother of the minors / Natural guardian.

10.In the result, the above Civil Miscellaneous Appeal is allowed.

Consequently, the Award and Decree, passed in M.C.O.P.No.281 of 2002, dated 24.12.1996, on the file of the Motor Accident Claims Tribunal / Principal Subordinate Court, Erode, is modified.

No costs.

05.08.2013 vs Index : Yes / No Internet: Yes / No C.S.KARNAN.J vs To 1.The Motor Accident Claims Tribunal, Principal Subordinate Court, Erode.

2.The Section Officer, VR Section, High Court, Madras.

PRE-DELIVERY ORDER

IN C.M.A.No.2686 of 2003 05.08.2013