IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 21/3/2017 C O R A M The Honourable Mr.JUSTICE S. MANIKUMAR and The Honourable Mr.JUSTICE M. GOVINDARAJ Civil Miscellaneous Appeal Nos.1369 and 1370 of 2015 M.P.Nos.1 and 1 of 2015 M/s. New India Assurance Co. Ltd., No.375, Anna Salai, Saidapet, Chennai-600 015. ... Appellant in both CMAs., Vs.
1. K. Karthik ... 1st Respondent in CMA.1369/15
2. Vijay Shekhawat ... 1st Respondent in CMA.1370/15
3. JVN Murthy ... 2nd Respondent in both CMAs., Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree passed by the Motor Accident Claims Tribunal (Small Causes Court - II Judge), Chennai in M.C.O.P.No.922 and 1168 of 2007 dated 15.10.2014.
For Appellant : Mr.J.Chandran For Respondents 1 & 2: Mr.G.Jayachandran J U D G M E N T (Judgment of the Court was made by S.Manikumar, J.) Accident has occurred on 17/5/2006, when respondents 1 and 2 herein were travelling in a motor cycle, bearing Registration No.TN21Q-3355, from Egmore to M.M.Nagar along Anna Salai, from North to South direction, the third respondent's Ambassador Car, bearing Registration No.TN01Y-2830, insured with the appellant- Insurance Company, came from opposite direction, in a rash and negligent manner and hit the motorcycle, thereby, both the respondents/claimants thrown out and sustained grievous injuries.
2. On evaluation of pleadings and evidence, the Tribunal, by fixing negligence on the driver of the third respondent's Ambassador Car, bearing Registration No.TN01Y-2830, insured with the appellant- Insurance Company, quantified the compensation in both the claim petitions, with interest at the rate of 7.5% per annum, from the date of claim, till deposit, as follows:
M.C.O.P.No.922 of 2007 Loss of earning : Rs. 9,88,200/- (Rs.18,300 x 12 x 18 x 25%) Loss of income for 9 months : Rs. 1,64,700/-
Total : Rs.20,36,900/-
Pain and suffering : Rs. 50,000/-
Disability : Rs. 1,00,000/-
Total : Rs.11,94,000/-
3. Challenging the quantum awarded by the Motor Accident Claims Tribunal (Small Causes Court - II Judge), Chennai, in M.C.O.P.Nos.922 and 1168 of 2007, dated 15/10/2014, the New India Assurance Company, Chennai, is on appeal.
4. In M.C.O.P.No.922 of 2007, upon perusal of Exs.P4 to P8 - Discharge Summaries, issued by Apollo Hospital, Chennai, the Tribunal has found that the injured suffered pubic symptysis disruption, open type II fracture tibia - fibula M/3, L/3 right, open type II fracture shaft femur M/3 right and took treatment for the period from 18.05.2006 to 31.10.2007. During treatment, he underwent surgery on 01.06.2006, whereby debridement and external fixator for fracture of right tibia and ORIF with broad DCP for fracture of right tibia, have been done. Thereafter, on 15.06.2006, open reduction and internal fixation of pubic diastasis with LC-DCP Plate and Realignment of external fixator have been done. On 27.07.2006, ORIF right fibula and realignment of external fixator and bone grafting in tibia and femur from right anterior iliac crest have been done. On 02.02.2007, plate removal and stabilization with interlocking nail and bone grafting have been done. Thereafter, on 29.10.2007, right inguinal hernia mesh repair has been done. Considering the seriousness of the injuries and the consequential effects, this Court is of the opinion that compensation awarded is just and reasonable. There is no scope for interference with the award in M.C.O.P.No.922 of 2007, passed by the Claims Tribunal.
5. In M.C.O.P.No.1168 of 2007, upon perusal of Ex.P5 - Discharge Summary, issued by Apollo Hospital, Chennai, the Claims Tribunal has found that the injured suffered fracture of right ulna closed, fracture of right tibia grade III A Open with no distal neuro vascular deficit and took treatment for nearly six days, from 18.05.2006 to 23.05.2006. On 19.05.2006, the injured underwent surgery and whereby, ORIF for ulna with 7 hone DCP, Debridement and interlocking nailing for tibia have been done.
6. In the present appeal, the only contention of the learned counsel for the appellant-Insurance Company is that the loss of income for 9 months is not supported by any evidence and therefore, it should be interfered with. Going through the impugned judgment, we are inclined to consider the argument of the learned counsel for the appellant, in so far as loss of income for nine months is concerned. Though there is no proof for non-employment for nine months, healing of a fracture in Tibia, takes atleast five months. Therefore, we fix the loss of income only for five months and reduce the compensation as Rs.75,000/-. Except the above, there is no other modification in the award made in M.C.O.P.No.1168 of 2007.
7. In view of the above, C.M.A.No.1369 of 2015 is dismissed and C.M.A.No.1370 of 2015 is partly allowed and Rs.75,000/- is reduced, from the award amount. No costs. Consequently, connected Miscellaneous Petition is also closed.
8. Learned counsel for the appellant-Insurance Company submitted that 75% of the award amount has already been deposited to the credit of M.C.O.P.No.922 and 1168 of 2007 respectively, on the file of Motor Accident Claims Tribunal (Small Causes Court - II Judge), Chennai. Out of the deposited amount, 50% has already been permitted to be withdrawn by the claimant. In both the appeals, the balance amount is directed to be deposited, with proportionate interest and costs, to the credit of M.C.O.P.No.922 and 1168 of 2007, on the file of Motor Accident Claims Tribunal (Small Causes Court - II Judge), Chennai, within a period of four weeks, from the date of receipt of a copy of this order. On such deposit, being made, the respondents/claimants are permitted to withdraw the amount lying in the deposit, after making necessary petitions before the Tribunal.
Index: yes/No Speaking/Non-Speaking mvs/skm To The II Judge, Court of Small Causes, Chennai.
(S.M.K.,J) (M.G.R.,J) 21st March 2017 S.MANIKUMAR, J.
a n d M. GOVINDARAJ, J.
skm/mvs C.M.A.Nos.1369 and 1370 of 2015 21/3/2017 http://www.judis.nic.in