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2019 DIGILAW 1370 (MAD)

M. Dinesh v. A. Vivek

2019-04-29

V.M.VELUMANI

body2019
JUDGMENT : V.M. Velumani, J. 1. This civil miscellaneous appeal has been filed against the award dated 28.4.2015 made in MCOP No. 939 of 2013 on the file of the Motor Accidents Claims Tribunal, Additional District Court, Namakkal. 2. The appellant is the claimant in MCOP No. 939 of 2013 on the file of the Motor Accidents Claims Tribunal, Additional District Court, Namakkal. He filed the above said claim petition, claiming a sum of Rs. 5,00,000 as compensation for the injuries sustained by him in the accident that took place on 27.7.2013. 3. The Tribunal, considering the pleadings and oral and documentary evidence, held that the accident occurred only due to rash and negligent driving by the driver of the lorry belonging to the respondent No. 1 and directed the respondent No. 1 to pay a sum of Rs. 1,91,500 as compensation to the appellant. 4. Challenging the portion of the award directing the respondent No. 1 to pay the compensation and for enhancement of compensation, appellant has come up with the present appeal. 5. The learned counsel appearing for the appellant contended that the Tribunal erred in directing the respondent No. 1 to pay the compensation when the insurance policy issued by the respondent No. 2, insurance company, was in force at the time of accident. The Tribunal erred in awarding compensation at the rate of Rs. 2,000 per percentage instead of Rs. 3,000 per percentage, as the accident occurred in the year 2013. The Tribunal failed to consider that appellant was a 4th year B.E. Mechanical Engineering student and due to the nature of injuries sustained by him, his earning capacity has been reduced and the Tribunal ought to have awarded compensation for loss of earning capacity. Appellant has taken treatment in the hospital as inpatient from 27.7.2013 to 7.8.2013 and the amounts awarded by the Tribunal for transportation, pain and suffering, extra nourishment, attendant charges and loss of amenities are meagre and prayed for setting aside the portion of the award directing the respondent No. 1 to pay the compensation and for enhancement of compensation directing the respondent No. 2, insurance company, to pay the compensation. 6. Per contra, Mr. T. Ravichandran, learned counsel appearing for the respondent No. 2, insurance company, contended that the appellant was a student and non-earning member. The Tribunal has rightly fixed a sum of Rs. 6. Per contra, Mr. T. Ravichandran, learned counsel appearing for the respondent No. 2, insurance company, contended that the appellant was a student and non-earning member. The Tribunal has rightly fixed a sum of Rs. 15,000/- as annual income of the appellant. The respondent No. 1 has not produced valid driving licence to drive the vehicle. In view of the same, the Tribunal rightly directed the respondent No. 1 to pay the compensation and amounts awarded by the Tribunal under different heads are not meagre and prayed for dismissal of the appeal. 7. I have heard the learned counsel appearing for the appellant as well as the respondent No. 2, insurance company, and perused the entire materials on record. 8. From the materials available on record, it is seen that the appellant contended that he is a 4th year B.E. Mechanical Engineering student. In the accident, he sustained grievous injuries and fracture. The second finger in the right leg was cut in the accident and due to the injuries, he was not able to do his work by using his right hand and right leg and lost earning, capacity. The Tribunal accepting the evidence of PW 2, doctor, and disability certificate, awarded compensation towards 30 per cent disability at the rate of Rs. 2,000 per percentage. The accident occurred in the year 2013. The appellant is entitled to compensation at the rate of Rs. 3,000 per percentage towards 30 per cent disability. The amount awarded by the Tribunal towards disability is modified to Rs. 90,000 (Rs. 3,000 x 30). The Tribunal has awarded a sum of Rs. 5,000 towards transportation, which is meagre and the same is hereby enhanced to Rs. 10,000. Due to the injuries and disability, the appellant would have experienced severe pain. Hence, a sum of Rs. 25,000 granted by the Tribunal towards pain and suffering is hereby enhanced to Rs. 50,000. A meagre sum of Rs. 5,000 awarded by the Tribunal for nourishment is hereby enhanced to Rs. 20,000. The appellant has taken treatment in the hospital as inpatient from 27.7.2013 to 7.8.2013 and the Tribunal has awarded a sum of Rs. 10,000 towards attendant charges and a sum of Rs. 25,000 towards loss of amenities, which are meagre and the same are hereby enhanced to Rs. 20,000 and Rs. 50,000 respectively. 20,000. The appellant has taken treatment in the hospital as inpatient from 27.7.2013 to 7.8.2013 and the Tribunal has awarded a sum of Rs. 10,000 towards attendant charges and a sum of Rs. 25,000 towards loss of amenities, which are meagre and the same are hereby enhanced to Rs. 20,000 and Rs. 50,000 respectively. The Tribunal has not awarded any amount towards loss of clothes, loss of income and for diminishing marital prospects. The appellant was 4th year B.E. Mechanical Engineering student and after completion of his studies, the prospects of getting good job with decent salary would be reduced and due to disability suffered by him, the appellant is entitled to compensation for future loss of income for 12 months. The monthly income of the appellant is fixed at Rs. 10,000. The appellant is entitled to a sum of Rs. 1,20,000 (Rs. 10,000 x 12) towards loss of income. The second finger in the right leg was cut and due to the same his marital prospects will be diminished. The appellant is entitled to a sum of Rs. 1,00,000 for diminishing marital prospects. A sum of Rs. 2,000 is granted by this court towards loss of clothes. The compensation granted by the Tribunal towards medical expenses is confirmed. The compensation awarded by the Tribunal is modified as follows: S. No Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted 1. Disability 60,000/- 90,000/- enhanced 2. Medical expenses 61,512/- 61,512/- confirmed 3. Transportation 5,000/- 10,000/- enhanced 4. Pain and sufferings 25,000/- 50,000/- enhanced 5. Extra nourishment 5,000/- 20,000/- enhanced 6. Attendant charges 10,000/- 20,000/- enhanced 7. Loss of amenities 25,000/- 50,000/- enhanced 8. Loss of income - 1,20,000/- granted 9. Marital prospects - 1,00,000/- granted 10. Loss of cloth - 2,000/- Granted Total Rs.1,91,512/- rounded off to Rs.1,91,500/- Rs.5,23,512/- rounded off to Rs.5,23,500/- enhanced by Rs.3,32,000/- 9. The Tribunal has directed the respondent No. 1 to pay the compensation on the ground that the respondent No. 1 possessed only light motor vehicle licence and drove the heavy goods vehicle. The said reasoning is erroneous. It is well settled that even if the driver of the offending vehicle did not possess driving licence, the insurance company cannot be totally exonerated. In such circumstances, pay and recover has to be ordered. The said reasoning is erroneous. It is well settled that even if the driver of the offending vehicle did not possess driving licence, the insurance company cannot be totally exonerated. In such circumstances, pay and recover has to be ordered. Courts have power to award more compensation than what is claimed by the appellant, if circumstances so required. Hence, the respondent No. 2, insurance company, is directed to pay the compensation at the first instance and recover the same from the respondent No. 1. 10. In the result, this civil miscellaneous appeal is allowed and the compensation awarded by the Tribunal at Rs. 1,91,500 is hereby enhanced to Rs. 5,23,500 together with interest at the rate of 7.5 per cent per annum from the date of petition till the date of deposit. The respondent No. 2, insurance company, is directed to deposit the enhanced award amount now determined by this court at the first instance and recover the same from the respondent No. 1, together 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 appellant is permitted to withdraw the enhanced award amount, along with interest and costs, less the amount, if any, already withdrawn by making necessary applications before the Tribunal. The appellant is directed to pay the court-fee, if any, for the enhanced award amount now determined by this court. The appellant is not entitled to any interest for the delay period on the amount of Rs. 3,32,000 now enhanced by this court. No costs.