1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13.06.2011 CORAM: THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI C.M.A(MD)No.476 of 2011 S.Sugapriyan, minor, represented through his father and next friend C.Sudalaimani. ... Appellant/Claimant Vs. 1. S.Alfred Paul 2. The Oriental Insurance Company Limited, No.6-A, North Cotton Road, Tuticorin. ... Respondents/Defendants PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1998 against the award dated 25.11.2010 made in M.C.O.P.No.67 of 2010, on the file of the Motor Accidents Claims Tribunal-cum-Chief Judicial Magistrate, Tuticorin. For Appellant : M/s.S.Subbiah For Respondent-2 : M/s.S.Murugan For Respondent-1 : No appearance JUDGMENT The appeal is filed by the minor claimant for enhancement of the compensation awarded by the Tribunal for the injuries sustained by the claimant in the accident occurred at 11.30 a.m. on 02.12.2009 just in front of the house of the claimant near Pramaiyapuram on Irulappapuram Salai. The only vehicle involved in the accident is the two-wheeler owned and ridden by the first respondent and insured with the second respondent. The date, time, place of the accident and manner of the accident as due to vehicle hit against the minor claimant, aged 2 1/2 years, nature of the injuries sustained by the claimant, nature and period of treatment as inpatient, quantum of medical expenses incurred by the parents for the treatment, factum of partial permanent disability sustained by the minor claimant and pain and suffering suffered by him are not seriously denied. The enhancement of compensation is sought for by the appellant on two grounds. (1) The tribunal has erred in fixing 50% of the liability upon the parents on the ground that parents are guilty of act of negligence in allowing the child to play on the road. 2. According to the learned counsel for the appellant, the Tribunal ought not to have fastened such liability upon the parents without any basis and ought to have considering the age of the https://hcservices.ecourts.gov.in/hcservices/ 2 claimant and considering the place of occurrence which is just in front of the house of the claimant abutting the main road ought to have fastened the entire liability upon the driver of the vehicle who ought to have exercised more caution while driving the vehicle on the road in such residential area. 3. Per contra, the learned counsel for the respondent/insurer would seek to defend the finding rendered by the trial court in this regard by contending that the parents are also equally to be held responsible for allowing the child to play unattended on the main road and thus the Tribunal is right in apportioning the liability between the driver of the vehicle and the parents of the minor claimant/injured. This Court is not inclined to accept such contention raised on the side of the insurer for the reasons given below: 4. It is not in dispute that the main road is situated at a distance of 5 ft from the house of the minor claimant/injured. The place of occurrence in the claim petition and as per the evidence of P.W.1 and P.W.2, who are the father and grand-mother of the minor claimant is in front of the house abutting the main road. This aspect is in nowhere denied in the counter affidavit filed by the insurer. The theory introduced in the counter is as if the child was playing in front of the house and suddenly entered the road for crossing the road and the driver of the vehicle coming on straight road hence could not avoid the accident and the parents by their act of negligence contributed to the cause of the accident. While the manner of the accident as stated in the claim petition is sought to be established through evidence of P.W.1 and P.W.2, the insurer has except putting vague suggestion to P.W.1 and P.W.2 in their cross examination, did not let in any positive evidence regarding the manner of the accident as stated in the counter affidavit. The suggestion so put to the witnesses P.W.1 and P.W.2 is also stoutly denied by them and P.W.1 and P.W.2 reiterated their stand that the child was playing in front of the house abutting the main road and the driver came rashly and negligently and hit against the minor claimant. On the failure of the insurer to adduce any positive evidence, the tribunal ought to have on the basis of the oral evidence of P.W.1 and P.W.2 accepted their theory and ought to have fastened the entire liability upon the driver of the vehicle for causing the accident. In my considered view, there is absolutely no basis for arriving at a different conclusion and the learned counsel for the insurer is not able to make out any ground in support of the finding rendered by the Tribunal and such finding is liable to be set aside. In that event, no liability can be fastened upon the parents of the minor child and the entire liability is hence fixed upon the driver of the vehicle and the insurer is hence liable to indemnify the owner of the offending vehicle by paying the compensation as fixed by this Court. https://hcservices.ecourts.gov.in/hcservices/ 3 5. Regarding the quantum of compensation, the tribunal has awarded compensation under the following heads: 1. pain and suffering - Rs. 2,000/- 2. grievous injuries - Rs. 50,000/- 3. medical expenses - Rs.1,59,000/- 4. attendant charges - Rs, 3,000/- 5. transport to hospital - Rs. 500/- 6. partial permanent disability - Rs. 20,000/- ---------------- TOTAL - Rs.2,34,500/- ----------------- (Wrongly mentioned as Rs.2,64,500/0 in the award of the Tribunal) 6. This Court is on the basis of the available records inclined to modify the compensation as follows: 1. medical expenses - Rs.1,59,000/- 2. transport to hospital and other charges - Rs. 5,000/- 3. extra nourishment - Rs. 5,000/- 4. pain and suffering - Rs. 10,000/- 5. partial permanent disability of 20% at Rs.1500/- per percentage - Rs. 30,000/- ---------------- total - Rs.2,09,000/- ---------------- the same is rounded off as Rs.2,10,000/- and the same is payable with interest at 7.5% from the date of petition till the date of payment. Excess court fee, if any, shall be refunded to the claimant. 7. In the result, the award, dated 25.11.2010 made in M.C.O.P.No.67 of 2010, on the file of the Motor Accidents Claims Tribunal-cum-Chief Judicial Magistrate, Tuticorin is modified by awarding compensation of Rs.2,10,000/- with interest at 7.5% pa. from the date of petition till date of payment, payable by the second respondent on behalf of the first respondent within two months from the date of receipt of the copy of this order. On such deposit of the amount into court, the guardian of the minor claimant is permitted to withdraw the entire interest and costs and 25% of the compensation awarded and the balance sum shall be deposited in any one of the nationalised banks in fixed deposit for three years till the minor claimant attains majority and the guardian is permitted to withdraw future interest accrued on the same once in three months directly from https://hcservices.ecourts.gov.in/hcservices/ 4 the bank. The Civil Miscellaneous Appeal is disposed of accordingly. No costs. Excess court fee, if any, shall be refunded to the claimant. Sd/- Assistant Registrar(CO) /TRUE COPY/ Sub Assistant Registrar To The Motor Accidents Claims Tribunal -cum-Chief Judicial Magistrate, Tuticorin. +1cc to Mr.S.Subbiah, Advocate SR.No.18578 +1cc to Mr.S.Murugan, Advocate SR.No.18093 C.M.A(MD)NO.476 of 2011 13.06.2011 vsn PA/28.06.2011/4P/4C https://hcservices.ecourts.gov.in/hcservices/