Madras High Court
A.Loganathan vs K.Arumugam on 12 March, 2010
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.03.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.388 of 2005
A.Loganathan .. Appellant
Vs
1.K.Arumugam
2.The United India Insurance Co., Ltd.,
Chennai-600 002 .. Respondents
(R1 called absent set exparte)
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 05.07.2004, made in M.C.O.P.No.2920 of 1998, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.IV, Chennai.
For appellant : Mr.J.Mahalingam
For respondent : Mr.S.Udayakumar for R2
J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellant/petitioner against the Award and Decree, dated 05.07.2004, made in M.C.O.P.No.2920 of 1998, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.IV, Chennai, awarding a compensation of Rs.91,000/- with 9% interest per annum, from the date of filing petition till the date of payment of compensation.
2.Aggrieved by the said Award and Decree, the appellant/petitioner has filed the above appeal praying for enhancement of compensation with interest.
3.The short facts of the case are as follows:
On 17.03.1996, at about 7.45 p.m. while the petitioner was travelling by cycle at Arcot road, from east to west on the southern side of the road, a lorry bearing registration No.TAB 9626 driven rashly and negligently by its driver in a manner endangering the public safety came at a dangerous speed from the opposite direction on the wrong side of the road and dashed against the petitioner. In the result, the petitioner sustained grievious injuries. Immediately, he was rushed to the Vijaya Hospital and subsequently for further medical treatment he was admitted as inpatient at Sri Ramachandra Hospital at Chennai from 18.03.1996. The claimant sustained Compound Grade-I fracture in both the bones of his right leg, communitted collis fracture of left wrist, injury over the right eye, facial injuries and other serious multiple injuries all over his body.
4.The claimant was aged about 23 years and he was a labourer5. He was earning a sum of Rs.100/- per day. The claimant claimed compensation of Rs.2,00,000, for sustaining his grievious injuries, under the peculiar damages and non peculiar damages.
5.Regarding the said accident, the Traffic Investigation Wing, Pondi Bazaar Police Station, Chennai registered a case, against the first respondent/driver of the offending vehicle, in Crime No.1118/1996 under Section 338(2) of I.P.C and 184 and 179 of Motor Vehicles Act. The said vehicle was insured with the second respondent/the United India Insurance Co., Ltd., as such, the second respondent is liable to pay the compensation to the injured claimant.
6.The second respondent, in their counter statement, resisted the claim petition. The second respondent denied that the accident had happened due to the rash and negligent driving by the driver. The accident had occurred due to the rider of the cycle ie.claimant. As such, the second respondent is not liable to pay any compensation to the claimant. The respondent further puts the claimant to stick to the proof of the injuries, period of treatment, alleged disability and the loss of income. In any event, the claim amount is highly excessive. The respondent denies the validity of the vehicle records, the driving licence of the driver and the insurance coverage at the time of accident. Further, the respondent prays to permit the respondent under Section 170(b) of the Motor Vehicles Act, to raise all defences that are available to the insured first respondent in case he remains exparte. Therefore, the respondent prayed to dismiss the claim petition with costs.
7.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Who is responsible for the accident?
(ii) Is the petitioner entitled to get compensation as claimed in his claim petition? If so, what is the quantum of compensation, which he is entitled to get?
8.On the petitioner's side, the petitioner was examined as PW1, Dr.Saichandran was examined as PW2 and one Amaladoss, Sub-inspector, who is attached to the Traffic Investigation Department was examined as PW3 and twelve documents were marked as Exs.P1 to P12 namely Ex.P1, Medical Bills; Exs.P2 and P3-Discharge Certificates; Exs.P4 and P10, X-ray; Ex.P5, O.P.Chit; Ex.P6, Medical Prescriptions; Exs.P7 and P8, Medical Bills; Ex.P9, Disability Certificate; Ex.P11, FIR and Ex.P12, Sketch. On the respondents' side no witness was examined and no documents were marked.
9.The PW1 had adduced in his evidence that on 17.03.1996, at about 7.45 p.m. he was a pillion rider travelling on the motorcycle from west to east on the Arcot Road at Kodambakkam. At that time, the first respondent's lorry bearing registration No.TAB 9626 driven by its driver in a rash and negligent manner and dashed against the pillion rider. As a result, he sustained grievious injuries. The PW3 adduced evidence stating that he had registered a criminal case against the driver of the lorry. The driver pleaded guilty before the Tribunal Court and paid a sum of Rs.1,000/- as fine. The Ex.P11, FIR and Ex.P12, Sketch were marked. On the strength of the PW1 and PW3's evidence and after perusing Exs.P11 and P12, the Tribunal has come to a conclusion that the accident had happened due to the rash and negligent driving of the lorry. The said lorry insured with the second respondent. Hence, the second respondent is liable to pay compensation to the claimant.
10.The PW1 had further adduced evidence stating that in his knee bone got fractured and right side head sustained injuries. For his fractured leg a steel rod was fixed by surgically. On his right side head surgery was conducted. Further, the PW1 underwent treatment at Vijaya Hospital, Chennai and Sri Ramachandra Medical College Hospital at Porur. Supporting his medical treatment and nature of injuries, he has marked Exs.P3, P4, P5, P6, P7 and P8. After the treatment, the claimant is unable to stand, unable to perform his normal routine work and getting bouts of giddiness due to the said accident.
11.The PW2, Dr.Saichandran, had adduced evidence stating that he examined the claimant and issued a 45% Disability Certificate sustained by the claimant. The claimant's right leg two bones were fractured and a steel rod was fixed in the operated portion. The leg movement was reduced by 20% only. He was marked two documents namely Ex.P9, the Disability Certificate and Ex.P10-X'ray.
12.Considering the nature of injuries, mode of medical treatment and medical expenses incurred by the claimant besides the age of the claimant, occupation and income, the Tribunal has awarded as follows:
1.For loss of earning during the treatment, a sum of Rs.500/-,
2.For transport expenses, a sum of Rs.500/-,
3.For nutrition, a sum of Rs.1,000/-,
4.For medical expenses, a sum of Rs.20,000/-,
5.For loss of earning, a sum of Rs.4,000/-,
6.For shock and loss of pleasure, a sum of Rs.7,000/-,
7.For pain and suffering, a sum of Rs.8,000/-,
8.For permanent disability, a sum of Rs.40,000/-,
9.For loss of earning power, a sum of Rs.10,000/-, In total, the Tribunal awarded a sum of Rs.91,000/- as compensation to the claimant, together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation. The interest excluding from the period of 17.07.2002 to 13.02.2003. Further, the Tribunal directed the second respondent to deposit the compensation amount with accrued interest within a period of eight weeks from the date of this Order. The Tribunal permitted the claimant to withdraw a sum of Rs.41,000/- with accrued interest. The Tribunal further ordered a sum of Rs.50,000/- to be deposited in Indian bank, Parrys Branch, for a period of three years. The Advocate fees fixed at the rate of Rs.4,700/-.
13.Aggreived by the said award and decree, the claimant has filed the above appeal for enhancement of compensation of Rs.1,09,000/- with interest. The learned counsel appearing for the appellant has argued that the award of Rs.91,000/- is on the lower side. Further, the claimant was admitted as inpatient at Ramachandra Hospital from 18.03.1996 to 08.04.1996. Again, he was at the same hospital from 25.04.1996 to 22.05.1996. During this period, the claimant lost his usual income. The Tribunal failed to apply a multiplier method for computing compensation. The Tribunal had not properly awarded a compensation under the head of pain and suffering, medical expenses, mental and physical shock, discomfort, expectation of life, extra nourishment and transport.
14.In support of his contention, the learned counsel appearing for the appellant cited a Judgment made in 2008 ACJ 9, Supreme Court of India, Sunil Kumar V. Ram Singh Gaud and others, the relevant head notes of which are as follows:
"Quantum Injury Leg Three fractures in leg including one at tibia Injured aged 29, truck driver, drawing Rs.4,000 p.m. suffered 45 per cent permanent disability and would not be able to drive Tribunal awarded Rs.45,000 for permanent disability, Rs.21,000 towards medical expenses, Rs.6,000 for physical pain and mental agony; total Rs.72,000 which was upheld by the High Court Apex Court assessed loss of earning capacity at Rs.1,200 p.m., adopted multiplier of 18 and allowed Rs.2,59,200 for loss of earning capacity Award of Rs.72,000 enhanced to Rs.3,31,200."
15.The learned counsel appearing for the second respondent argued that the Tribunal had awarded the compensation under the proper heads after considering the documentary evidence and oral evidence of the claimant and the Doctor's evidence. There is no error in the said award granted by the Tribunal, the award is reasonable and fair as such, the appeal is not maintainable.
16.Considering the facts and circumstances of the case, scrutiny of the findings of the Tribunal and arguments advanced by the learned counsel appearing on either side, this Court is of the view that the award of the Tribunal has to be enhanced as follows:
1.Rs.90,000/- awarded under the head of permanent disability and loss of income,
2.Rs.10,000/- awarded under the head of pain and suffering,
3.Rs.5,000/- awarded under the head of transport expenses,
4.Rs.5,000/- awarded under the head of nutrition,
5.Rs.20,000/- awarded under the head of medical expenses, In total, this Court awarded a compensation of Rs.1,30,000/-. After deducting the Tribunal award amount of Rs.91,000/-, this Court awards a sum of Rs.39,000/- as additional compensation. The additional compensation amount will carry interest at the rate of 7.5% from the date of filing the petition till the date of payment of compensation. The interest is excluded for a period of 17.07.2002 to 13.02.2003.
17.Therefore, this Court directs the second respondent/the United India Insurance Co., Ltd., to deposit the additional compensation amount of Rs.39,000/- together with interest at the rate of 7.5% for the period as observed above, within a period of four weeks from the date of receipt of the order, into the credit of the M.C.O.P.No.2920 of 1998, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.IV, Chennai. After such deposit made, it is open to the claimant to withdraw the additional award amount of compensation with accrued interest thereon after filing necessary payment out application in accordance with law.
18.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 05.07.2004, in M.C.O.P.No.2920 of 1998, passed by the Motor Accident Claims Tribunal, Small Causes Court No.IV, Chennai, is modified. There is no order as to costs.
12.03.2010 Index: Yes/No Internet: Yes/No krk To
1.Motor Vehicles Accident Claims Tribunal, Small Causes Court No.IV, Chennai.
2. The Section Officer, VR Section, High Court, Madras.
C.S.KARNAN, J.
krk Pre-delivery Order in C.M.A.No.388 of 2005 12.03.2010