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2014 DIGILAW 4462 (MAD)

Venkatesan v. Janarthanan

2014-11-27

N.KIRUBAKARAN

body2014
JUDGMENT : N. Kirubakaran, J. 1. This Civil Miscellaneous Appeal is preferred by the Claimant questioning the quantum of the Compensation awarded by the Tribunal, to the tune of Rs. 3,01,500/-, as against the claim of Rs. 10 lakhs. On 1.4.2009, when minor Venkatesan, the Appellant herein, was riding his bicycle, he was hit by a Tanker Lorry belonging to the 1st Respondent and insured with the 2nd Respondent-Insurance Company, which was driven in a rash and negligent manner, resulting in sustaining of injuries by the Appellant. The Appellant, who was 16 years old and who was studying in X standard, took first aid at Government Hospital, Perambalur; then, he was admitted in KMC Hospital, Tiruchirapalli. Subsequently, he was referred to JIPMER Hospital, Pondicherry and then to Stanley Hospital, Chennai. His right leg upto thigh was amputated. Hence, the Claim Petition was filed. 2. On enquiry, the Tribunal found that the Tanker Lorry was driven in a rash and negligent manner and that it dashed against the bicycle of the Appellant from behind leading to the accident and rightly awarded Compensation to the Appellant. 3. Heard the learned Counsel for the Appellant. 4. The 1st Respondent owner remained ex parte even before the Tribunal. Even though the 2nd Respondent-Insurance Company has been served and name is printed in the cause list, neither the 2nd Respondent has appeared in person nor through Counsel. Hence, this Court decides to proceed with the matter and dispose of the same on merits. 5. Though the Claimant is the Appellant and no Appeal has been filed by the Insurance Company, either on the question of quantum or negligence, a perusal of the records would show that the Tribunal found that the Driver of the Tanker Lorry was negligent, taking note of the non-examination of the 1st Respondent's Driver and filing of Criminal case against the said Driver. That apart, the oral evidence of the Claimant/Appellant has not been rebutted by any contra evidence. Therefore, the finding with regard to negligence aspect, has attained finality, even though it is based on evidence. 6. The only point to be decided is whether the quantum of Compensation awarded by the Tribunal is just and adequate Compensation. 7. At the time of accident, the Appellant was 16 years old and he was studying in X standard. The medical records, Exs. 6. The only point to be decided is whether the quantum of Compensation awarded by the Tribunal is just and adequate Compensation. 7. At the time of accident, the Appellant was 16 years old and he was studying in X standard. The medical records, Exs. P2, P3, P5, P6 to P8, P10 & P11 would, undoubtedly, prove the fact that the Appellant sustained injuries; that he was admitted in various Hospitals and finally, his right leg was amputated. The said fact is fortified by the evidence of Doctor Saravanan, examined as PW2 and the disability sustained by the Appellant was rightly determined at 85% as per Ex. P10, Disability Certificate and the evidence of PW2, the Doctor. However, for Permanent Disability, the Tribunal had granted only a sum of Rs.1,27,500/-, which is on the lower side. The Honourable Apex Court, in the Judgment reported in Kishan Gopal and another v. Lata and others, 2013 (5) CTC 212 (SC) : 2013 ACJ 2594 , determined Rs. 3 0,000/- as annual Notional Income in respect of a 10 year old boy and therefore, this Court, following the said Judgment, fixes Rs. 30,000/- as annual Notional Income of the Appellant. As the age of the Appellant, at the time of accident, was 16 years, the appropriate multiplier would be 16. Hence, "Loss of Income" is calculated as follows: "Loss of Income: Rs. 30,000 x 16: Rs. 4,80,000/-" 8. The Tribunal, under the head "Pain and Suffering" has awarded a sum of Rs. 20,000/-, which is too low, considering the extent of Pain & Suffering, which the Appellant would have undergone, at the time of accident, and thereafter, during surgery and post-surgery period. Therefore, the amount awarded under the said head is enhanced to Rs. 50,000/-. The sum of Rs. 14,000/- awarded towards Medical Expenses is based on Medical Bills and therefore, there is no need to interfere with the same. As far as "Transportation Expenses" are concerned, the Appellant was initially given First Aid in Government Hospital, Perambalur; then he was admitted in KMC Hospital, Tiruchirapalli; subsequently, he was referred to JIPMER Hospital, Pondicherry and thereafter, to Stanley Hospital, Chennai. Hence, Rs. 20,000/- awarded under the said caption by the Tribunal is meagre and the same is enhanced to Rs. 30,000/-. Under the head "Extra-Nourishment", a sum of Rs. 20,000/- has been awarded by the Tribunal and the same is confirmed. 9. Hence, Rs. 20,000/- awarded under the said caption by the Tribunal is meagre and the same is enhanced to Rs. 30,000/-. Under the head "Extra-Nourishment", a sum of Rs. 20,000/- has been awarded by the Tribunal and the same is confirmed. 9. The Honourable Apex Court, in the judgment rendered in R.K. Malik and another v. Kiran Pal and others, 2006 (2) TN MAC 553 (Del.) : 2009 ACJ 1924 , considered the question of "Future Prospects" of minors and after taking note of its previous Judgments, held that even minors are entitled to "Future Prospects". In the said case, for children, a sum of Rs. 75,000/- was awarded for "Loss of Future Prospects". Therefore, the sum of Rs. 1 lakh awarded by the Tribunal to the Appellant towards "Loss of Future Prospects" is in consonance with the above said Judgment. Moreover, the accident, which was the subject matter of the aforecited Judgment had occurred on 18.11.1997 whereas in the instant case, the accident had occurred on 1.4.2009. Therefore, the sum of Rs. 1 lakh awarded by the Tribunal towards "Loss of Future Prospects" is justified and the same is confirmed. 10. One another important aspect was not taken into consideration by the Tribunal, i.e., "Loss of Marital Prospects". The Appellant has lost his right leg upto thigh. Therefore, it is improbable that any girl would come forward to marry a disabled person and his marital prospects have suffered a setback on account of the accident in question. Therefore, towards "Loss of Marital Prospects", this Court is inclined to award a sum of Rs. 1 lakh. 11. In the result, the Award of Rs. 3,01,500/- granted by the Tribunal is enhanced to Rs. 7,94,000/- rounded off to Rs. 8,00,000/-. The rate of interest awarded by the Tribunal at 7.5% per annum remains unaltered. The Civil Miscellaneous Appeal is allowed. No costs. Connected M.P. is closed. 12. The 2nd Respondent-Insurance Company shall deposit the entire award amount with interest and costs, before the Tribunal, within a period of four weeks from the date of receipt of a copy of this Order and on such deposit being made, the Appellant/Claimant is entitled to withdraw the same. No costs. Connected M.P. is closed. 12. The 2nd Respondent-Insurance Company shall deposit the entire award amount with interest and costs, before the Tribunal, within a period of four weeks from the date of receipt of a copy of this Order and on such deposit being made, the Appellant/Claimant is entitled to withdraw the same. In spite of the vehicle, which caused the accident, namely, Tanker Lorry, having been covered by the Policy and in spite of being informed about the accident, the 2nd Respondent-Insurance Company has failed to respond to the Court Notice. Though the 2nd Respondent is a Private Company discharging public function of covering people by insurance, it is duty bound to assist the Court in case of Insurance claims. The act of not responding to Court's Notice has to be condemned and deprecated, especially, in case of Motor Accident claims. Since there is a failure on the part of the 2nd Respondent-Insurance Company, namely, Reliance General Insurance Company Limited, a sum of Rs. 25,000/- (Rupees Twenty Five Thousand only) is awarded as Costs, to be paid by the Insurance Company to the Chief Justice Relief Fund, within a period of two weeks from the date of receipt of a copy of this Order.