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2012 DIGILAW 3910 (MAD)

N. R. Buhari Naleem @ Buhari v. P. Manickam

2012-09-17

ARUNA JAGADEESAN

body2012
Judgment :- These Civil Miscellaneous Appeals are filed by the claimants against the Judgement and Decree dated 4.10.2007 made in MCOP.Nos.616, 617, 618 and 619/2004 by the learned VI Judge, Small Causes Court (MACT) Chennai, whereby the Tribunal awarded a sum of Rs.2,84,000/- as total compensation with interest at 7.5 per cent p.a. to the injured claimant (N.R.Buhari Naleem @ Buhari) in MCOP.No.616/ 2004 for the injuries sustained by him in the motor accident that had occurred on 6.10.2002, a sum of Rs.1,62,000/- as total compensation with interest at 7.5 per cent p.a. to the claimants in MCOP.No.617/2004, who are the parents of the deceased child, aged about 4 years old who died in the same accident, a sum of Rs.1,30,000/-as total compensation with interest at 7.5 per cent p.a. to the injured claimant (M.A.Muthu Rizwana Begum) in MCOP.No.618/2004 for the injuries sustained by her in the same accident and a sum of Rs.3,17,000/- as total compensation with interest at 7.5 per cent p.a. to the injured claimant (N.Fathimuthu @ Fathima) in MCOP.No.619/2004 for the injuries sustained by her in the same accident. 2. The brief facts are that on 6.10.2002 at 6.30 hours, when the injured claimants and the deceased child were travelling in the Car bearing Reg.No.TN-01-U-8822 from South to North in GST Road, near Pakkam Railway Station, Melmaruvathur, the Lorry bearing Reg.No.TAL-3639 coming in the opposite direction dashed against the Car, due to which, the injured claimants sustained grievous injuries and the deceased child sustained fatal injuries. The injured were admitted in the Government Hospital, Chengalput. The claimants claimed compensation for the injuries sustained by them as well as for the death of the deceased child before the Tribunal. The Tribunal held that the accident had occurred due to the rash and negligent driving of the driver of the offending vehicle and awarded compensation as stated above. As against the same, these Civil Miscellaneous Appeals have been filed by the claimants for enhancement of the compensation. 3. This court heard the submissions of the learned counsel on either side and also perused the materials on record. 4. In so far as the claimant in MCOP.No.616/2004, as against which CMA.No.914/2008 has been filed, is concerned, he sustained multiple abrasions on the left side of the face, left eyebrow, left cheek, tempro mandibular and sustained trochantric fracture of left femur. 4. In so far as the claimant in MCOP.No.616/2004, as against which CMA.No.914/2008 has been filed, is concerned, he sustained multiple abrasions on the left side of the face, left eyebrow, left cheek, tempro mandibular and sustained trochantric fracture of left femur. He was admitted in the Apollo Hospital and was operated with IM Nailing. Initially, he was admitted from 6.10.2002 to 17.10.2002 and thereafter, again from 3.1.2003 to 17.1.2003. As there was implant failure and the fracture was not united, for the second time he was hospitalised and he was given treatment for the same and was given treatment for getting the fractured bone united. But, however, Ex.P3 and Ex.P4 would show that though treatment was given for the union of fractured bones, but however, it was explained to him that this fracture will not unite. 5. PW.4 Dr.N.Saichandran has assessed his disability at 55 per cent and has given reasons for such assessment. He has stated that there is restriction of movements and further, there is shortening of leg and also stated that squatting is not possible. The Tribunal has awarded Rs.55,000/-towards the permanent disability suffered by him, which requires to be enhanced. Taking note of the injuries and the evidence of the Doctor, it is appropriate to award Rs.2000/- per percentage. By awarding Rs.2000/-per percentage, for 55 per cent disability, the compensation towards continuing permanent disability suffered by him would be Rs.1,10,000/-. The award amount of Rs.1,84,027/-rounded off to Rs.1,84,000/- awarded by the Tribunal towards medical expenses, which is borne out by medical records Ex.P6, shall stand unaltered. 6. The monthly income has been taken as Rs.5000/-and the award of compensation of Rs.30,000/- towards the loss of income during the period of treatment for six months at the rate of Rs.5000/- per month awarded by the Tribunal shall also stand unaltered. The Tribunal awarded only Rs.5000/-towards pain and suffering, which needs to be enhanced considering the nature of injuries suffered by him and accordingly, it is enhanced to Rs.30,000/-. The award of compensation of Rs.5000/- each towards transportation charges and extra nourishment respectively shall also stand confirmed. Further, a sum of Rs.20,000/- towards attendant's charges and Rs.20,000/-towards loss of amenities are awarded. In all, the claimant in MCOP.No.616/2004 is entitled to a sum of Rs.4,04,000/- as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization. Further, a sum of Rs.20,000/- towards attendant's charges and Rs.20,000/-towards loss of amenities are awarded. In all, the claimant in MCOP.No.616/2004 is entitled to a sum of Rs.4,04,000/- as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization. 7. In so far as the claimants in MCOP.No.617/2004, as against which CMA.No.915/2008 has been filed, is concerned, they are the parents of the deceased child, who was aged about 4 years at the time of the accident and was studying LKG Standard at Jingle Bells Matriculation School, Tiruvanmiyur. The parents of the deceased child claimed a total compensation of Rs.6,00,000/-. The Tribunal as awarded a total compensation of Rs.1,62,000/-. In the case of Manju Devi Vs. Musafir Paswan (2005-ACJ-99-SC), the Honourable Supreme Court has awarded compensation of Rs.2,25,000/- in respect of death of 13 years old boy by applying the multiplier of 15 and taking the notional income at Rs.15,000/-as per the Second Schedule to the Motor Vehicles Act. 8. In the case of Shyam Narayan Vs. Kitty Tours and Travels (2006-ACJ-320-Delhi) relating to the death of a child aged 5 years, the Delhi High Court relying upon the decision of the Honourable Supreme Court reported in 2005-ACJ-99-SC cited supra, awarded compensation to the parents by applying the notional income of Rs.15,000/-and multiplier of 15 as per the Second Schedule and further awarded Rs.50,000/-for the loss of company of the child as also pain and suffering suffered by them. In the instant case, the baby Hawwa Rajab was aged about 4 years. The age of the parents on the date of the accident was 29 and 23 years old respectively. Applying the multiplier of 15 as set out in the Second Schedule, which refers to the said multiplier, where the age of the victim is upto 15 years, the compensation determinable comes to Rs.15,000x15=Rs.2,25,000/-. 9. The Tribunal has awarded Rs.10,000/-towards loss of love and affection. In the case of R.K.Malik Vs. Kiran Pal (2007-ACJ-2010-Delhi) 22 children died in an accident of a school bus which fell in river Yamuna. The Delhi High Court held the Second Schedule to the Motor Vehicles Act, 1988 to be the appropriate method for computing the compensation. 9. The Tribunal has awarded Rs.10,000/-towards loss of love and affection. In the case of R.K.Malik Vs. Kiran Pal (2007-ACJ-2010-Delhi) 22 children died in an accident of a school bus which fell in river Yamuna. The Delhi High Court held the Second Schedule to the Motor Vehicles Act, 1988 to be the appropriate method for computing the compensation. With respect to the non pecuniary damages, the court observed that loss of dependency of life and pain and suffering on that account generally speaking is same and uniform to all regardless of status unless there is a specific case made out for deviation. The Delhi High Court awarded Rs.75,000/-towards non-pecuniary compensation. This case is squarely covered by the aforesaid decision of the Honourable Supreme Court and the Delhi High court. Therefore, a sum of Rs.75,000/-towards non-pecuniary damages for loss of love and affection and loss of company of the child and also pain and suffering, as a result of the untimely death of their daughter. In all, the claimants in MCOP.No.617/2004 are entitled to a sum of Rs.3,00,000/-as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization. 10. In so far as the claimant in MCOP.No.618/2004, as against which CMA.No.916/2008 has been filed, is concerned, she suffered fracture in left forehead and fracture of both bone and nerve injury in left forearm. She has been hospitalised from 6.12.2002 to 10.12.2002. PW.4 Doctor has assessed her disability to an extent of 45 per cent in Ex.P26. She is a house wife aged about 25 years old at the time of the accident. Looking at the injuries suffered by her and also the disability assessed by the Doctor, I am of the view that Rs.2000/-per percentage can be awarded. Thus, Rs.90,000/- is awarded towards the loss of future earnings due to the disability suffered by her. 11. The award of compensation of Rs.9,000/-towards the loss of income during the period of treatment for three months at the rate of Rs.3000/-per month awarded by the Tribunal shall stand unaltered. The award amount of Rs.60,781/- rounded off to Rs.61,000/- awarded by the Tribunal towards medical expenses, which is borne out by medical records Ex.P13, shall also stand unaltered. 11. The award of compensation of Rs.9,000/-towards the loss of income during the period of treatment for three months at the rate of Rs.3000/-per month awarded by the Tribunal shall stand unaltered. The award amount of Rs.60,781/- rounded off to Rs.61,000/- awarded by the Tribunal towards medical expenses, which is borne out by medical records Ex.P13, shall also stand unaltered. The Tribunal awarded only Rs.5000/- towards pain and suffering, which needs to be enhanced considering the nature of injuries suffered by her and accordingly, it is enhanced to Rs.20,000/-. The award of compensation of Rs.5000/-each towards transportation charges and extra nourishment respectively shall stand confirmed. Further, a sum of Rs.10,000/-towards attendant's charges and Rs.20,000/-towards loss of amenities are awarded. In all, the claimant in MCOP.No.618/2004 is entitled to a sum of Rs.2,20,000/- as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization. 12. In so far as the claimant in MCOP.No.619/2004, as against which CMA.No.917/2008 has been filed, is concerned, she has suffered deformity in right upper limb and laceration in parietal region which is evident from Ex.P15 and Ex.P16 discharge summary. She has been admitted in the Apollo Hospital from 6.10.2002 to 25.10.2002 and again from 9.11.2002 to 15.11.2002. During the treatment, K-Wiring for neck fracture has been done and implant was removed on 11.11.2002. She is a house wife. PW.4 Doctor has certified that she has suffered 60 per cent disability permanent and partial. Looking at the injuries suffered by her and also the disability assessed by the Doctor, I am of the view that Rs.2000/-per percentage can be awarded. Thus, Rs.1,20,000/- is awarded towards the loss of future earnings due to the disability suffered by her. 13. The award of compensation of Rs.9,000/-towards the loss of income during the period of treatment for three months at the rate of Rs.3000/-per month awarded by the Tribunal shall stand unaltered. The award amount of Rs.2,32,649.75/- rounded off to Rs.2,33,000/- awarded by the Tribunal towards medical expenses, which is borne out by medical records Ex.P17, shall also stand unaltered. The Tribunal awarded only Rs.5000/- towards pain and suffering, which needs to be enhanced considering the nature of injuries suffered by her and accordingly, it is enhanced to Rs.20,000/-. The award of compensation of Rs.5000/-each towards transportation charges and extra nourishment respectively shall stand confirmed. The Tribunal awarded only Rs.5000/- towards pain and suffering, which needs to be enhanced considering the nature of injuries suffered by her and accordingly, it is enhanced to Rs.20,000/-. The award of compensation of Rs.5000/-each towards transportation charges and extra nourishment respectively shall stand confirmed. Further, a sum of Rs.20,000/-towards attendant's charges and Rs.20,000/-towards loss of amenities are awarded. In all, the claimant in MCOP.No.619/2004 is entitled to a sum of Rs.4,32,000/- as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization. 14. In the result, these Civil Miscellaneous Appeals are allowed. The impugned award in MCOP.No.616/2004 is enhanced from Rs.2,84,000/- to Rs.4,04,000/-. The impugned award in MCOP.No.617/ 2004 is enhanced from Rs.1,62,000/- to Rs.3,00,000/-. The impugned award in MCOP.No.618/2004 is enhanced from Rs.1,30,000/-to Rs.2,20,000/-. The impugned award in MCOP.No.619/2004 is enhanced from Rs.3,17,000/- to Rs.4,32,000/-. 15. In all, the claimant in MCOP.No.616/2004 is entitled to a total compensation of Rs.4,04,000/- (Rupees four lakhs four thousand only) with interest 7.5% p.a. from the date of the claim petition till the date of realization as detailed below:- In all, the claimants in MCOP.No.617/2004 are entitled to a sum of Rs.3,00,000/-(Rupees three lakhs only) as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization as detailed below:- In all, the claimant in MCOP.No.618/2004 is entitled to a total compensation of Rs.2,20,000/- (Rupees two lakhs twenty thousand only) with interest 7.5% p.a. from the date of the claim petition till the date of realization as detailed below:- In all, the claimant in MCOP.No.619/2004 is entitled to a total compensation of Rs.4,32,000/- (Rupees four lakhs thirty two thousand only) with interest 7.5% p.a. from the date of the claim petition till the date of realization as detailed below:- The 2nd Respondent Insurance Company is directed to deposit the enhanced award amounts in all the claim petitions as stated above with interest at 7.5% p.a. from the date of the claim petition till the date of deposit within a period of eight weeks from the date of receipt of a copy of this order. On such deposit being made, the claimant in MCOP.No.616/2004 is entitled to with draw the entire amount with interest. The claimants 1 and 2 in MCOP.Nos.617/2004 are entitled to withdraw Rs.1,00,000/-and Rs.2,00,000/-respectively with proportionate interest. On such deposit being made, the claimant in MCOP.No.616/2004 is entitled to with draw the entire amount with interest. The claimants 1 and 2 in MCOP.Nos.617/2004 are entitled to withdraw Rs.1,00,000/-and Rs.2,00,000/-respectively with proportionate interest. The claimant in MCOP.No.618/2004 is entitled to with draw the entire amount with interest. The claimant in MCOP.No.619/2004 is entitled to with draw the entire amount with interest. No costs.