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The New India Assurance Company Ltd., Chennai & Another v/s Anubhav Dutt (Minor) & Another

    C.M.A. No. 1254 of 2014 & Cros.Obj. No. 67 of 2014 & M.P. No. 1 of 2014

    Decided On, 07 April 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MRS. JUSTICE J. NISHA BANU

    For the Appellants: R. Neethe Perumal, F. Terry Chellaraja Advocates. For the Respondents: R1, M/s. M. Malar, R. Neethe Perumal, Advocates.



Judgment Text

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the Judgment and Decree dated 22.11.2013 made in MCOP No.477 of 2012 on the file of the Motor Accident Claims Tribunal (II Court of Small Causes), Chennai.

Cross Appeal filed under Order XLI Rule 22 of CPC, to enhance the judgment and decree of the claims Tribunal in its award dated 22.11.2013 made in MCOP No.477 of 2012 on the file of the Motor Accident Claims Tribunal (II Court of Small Causes), Chennai.)

Common Judgment

1. The Civil Miscellaneous Appeal has been filed challenging the quantum of compensation granted by the award dated 22.11.2013 made in MCOP No.477 of 2012 on the file of the Motor Accident Claims Tribunal, II Judge, II Court of Small Causes at Chennai.

2. Cross Objection No.67 of 2014 has been filed under Order XLI Rule 22 of CPC seeking enhancement of the compensation granted by the award dated 22.11.2013 made in MCOP No.477 of 2012 on the file of the Motor Accident Claims Tribunal (II Court of Small Causes), Chennai.

3. Both the appeal and Cross Objection arise out of the same accident and hence, they are disposed of by this common judgment.

4. The parties are referred to as per their respective ranks in the present Civil Miscellaneous Appeal.

5. The appellant herein is the 2nd respondent in MCOP No.477 of 2012 on the file of the II Judge, (Motor Accident Claims Tribunal), Chennai. The 1st respondent/injured child aged about nine (9) years and was represented by his father Mr.Shantanu Dutt had filed the said claim petition, claiming a sum of Rs.15,00,000/- as compensation for the injuries sustained by him in the accident that took place on 26.09.2011.

6. According to the 1st respondent, on 26.09.2011 at about 5.45 p.m., while he was playing in the common playing area with other boys of the residential complex, the driver of the Hyundai Santro Car bearing Regn.No.TN-07-S-3844 drove the same in a rash and negligent manner and hit against the 1st respondent. Due to the said impact, the 1st respondent sustained grievous injuries. The accident had occurred only due to rash and negligent driving by the driver of the car belonging to the 2nd respondent, which is insured with the appellant herein. The 1st respondent was aged about 9 years at the time of accident.

7. The appellant-Insurance Company filed counter statement and denied all the averments made by the 1st respondent. According to the appellant, the driver of the car belonging to 2nd respondent drove the same in a moderate speed and the said accident was occurred within the compound of the Alsa Court Complex, the said Complex is having separate play area to play for children, but, the said minor who was playing in the said play area suddenly came to the road without minding the oncoming vehicle and invited the accident. The accident occurred only due to the negligence on the part of the 1st respondent. The driver of the 2nd respondent also does not possess any valid and effective driving licence at the time of accident. Hence, the appellant/ insurer of the car belonging to the 2nd respondent is not liable to pay any compensation to the 1st respondent. Further, the amounts claimed by the 1st respondent are exorbitant and excessive. Hence, prayed for dismissal of the claim petition.

8. Before the Tribunal, the father of the minor/1st respondent examined himself as P.W.1 and one Dr.J.R.R.Thiagarajan was examined as P.W.2 and marked 8 documents as Exs.P1 to P8. On behalf of the appellant, no oral and documentary evidence was let in.

9. The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred solely due to the rash and negligent driving by the driver of the car belonging to the 2nd respondent and therefore, directed the appellant-Insurance Company, as the insurer of the said vehicle to pay a sum of Rs.5,93,635/- as compensation to the 1st respondent.

10. Challenging the quantum of compensation granted by the award dated 22.11.2013 made in M.C.O.P.No.477 of 2012, the appellant-Insurance Company has filed the present Civil Miscellaneous Appeal.

11. Not being satisfied with the amount awarded by the Tribunal, the 1st respondent has filed the Cross Objection No.67 of 2014 for enhancement of compensation.

12. The learned counsel appearing for the appellant/Insurance Company contended that the Tribunal has failed to note that the accident has occurred in a private residential complex, where rash and negligent driving is not possible at all. The victim was actually playing and suddenly came to the road and fell on the car and invited the accident. Moreover, the injured minor who was studying in VI Std at the time of accident has not proved that he has lost his academic year. The Tribunal without properly appreciating the evidence on record, awarded the amount, which are on the higher side. Therefore, he prayed for setting aside the award passed by the Tribunal.

13. Learned counsel for the first respondent would submit that the injured cross appellant was nine(9) years old at the time of accident and was a school student. Due to the injuries sustained in the said accident, he was not able to go to school and hence, his education was affected. The Tribunal ought to have applied multiplier method and to award more compensation under the head 'permanent disability' caused to the injured minor. The Doctor(P.W.2) assessed the disability as 60% but the Tribunal reduced the disability from 60% to 40% without assigning proper reason. Hence, prayed for dismissal of the appeal and to enhance the compensation awarded by the Tribunal.

14. Heard the learned counsel appearing for the appellant/Insurance Company and the learned counsel for the 1st respondent/claimant and perused all the materials available on record.

15. As far as the quantum of compensation is concerned, the claimant was aged about nine(9) years and was studying in IV Std. Considering the nature of injuries sustained by the claimant, the Tribunal has granted a sum of Rs.80,000/- towards pain and suffering, Rs.10,000/- towards extra nourishment and Rs.50,000/- towards mental agony to the 1st respondent. Considering the fact that the 1st respondent was taking treatment as inpatient from 26.09.2011 to 04.10.2011 and on perusal of Ex.P5, medical bills, the Tribunal has awarded a sum of Rs.2,92,635/- towards medical expenses. Based on the deposition of P.W.2, Doctor and Ex.P8, the disability certificate issued by him, the Tribunal has awarded a sum of Rs.80,000/- towards permanent disability. The appellant/Insurance Company did not let in any oral and documentary evidence to substantiate their case before the Tribunal. The Tribunal after considering both the oral and documentary evidence, awarded a total sum of Rs.5,93,635/- as total compensation to the 1st respondent/claimant. In my considered opinion, the compensation awarded by the Tribunal is just and reasonable. In the above circumstances, this Court is not inclined to interfere with the award passed by the Tribunal.

16. Accordingly,

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the award passed by the Tribunal is hereby confirmed and the Civil Miscellaneous Appeal is dismissed and hence, Cross Objection filed by the injured minor is also dismissed. The Appellant-Insurance Company is directed to deposit the amount awarded by the Tribunal along with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the award amount is directed to be deposited in any one of the Nationalized Banks, till the minor 1st respondent/claimant attains majority. The father of the minor 1st respondent/claimant is permitted to withdraw the interest, once in three months for the welfare of the minor 1st respondent/claimant. No costs. Consequently, connected Miscellaneous Petition is closed.
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