Madras High Court
The Branch Manager vs Mariyappan .. 1St on 17 June, 2008
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17/06/2008 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.M.A.No.136 of 2004 The Branch Manager, National Insurance Company Limited, 1st Floor,New No.135/1, Rose Building, Main Road, Kovilpatti-628 501. .. Appellant/2nd Respondent Vs 1.Mariyappan .. 1st Respondent/Petitioner 2.A.Mani .. 2nd Respondent/1st Respondent Prayer Appeal filed under Section 173 of the Motor Vehicles Act, against the award dated 12.04.2004 made in M.C.O.P.No.100 of 2003 on the file of the Motor Accident Claims Tribunal, Additional Subordinate Court, Tenkasi. !For Appellant ... Mr.S.Ramachandran ^For Respondents... No appearance. :JUDGMENT
This Civil Miscellaneous Appeal is filed by the appellant/second respondent aggrieved against the award dated 12.04.2004 passed in M.C.O.P.No.100 of 2003 by the Motor Accident Claims Tribunal, Additional Subordinate Court, Tenkasi.
2. The first respondent/claimant has filed the claim petition before the Motor Accident Claims Tribunal, Additional Subordinate Court, Tenkasi, claiming a total compensation of Rs.11,56,500/- (Rupees Eleven Lakhs Fifty Six Thousand and Five Hundred only) and restricting the same to Rs.5,00,000/- (Rupees Five Lakhs only).
3. The short facts of the claim are as below:
On 07.11.2002 at about 06.15 hours in Achempatti main road, near Achempatti colony, the first respondent/claimant was driving T.V.S motor cycle bearing Registration No.TN-72-U-3063, observing the traffic rules from south to north and when he reached northern side of Achempatti colony, one vehicle Tata Sumo bearing Registration No.TN-37-R-0330, came from north to south, was driven by its driver with great speed and not following the traffic rules, directly hit the claimant's motor cycle, as a result of which the claimant was thrown away resulting in very serious fracture injuries all over the body. The first respondent/claimant was taken to Government Hospital, Kadayanallur and after receiving first aid, he was referred to Tenkasi Government Hospital and later, referred to T.V.M.C.Hospital, where he was admitted as an inpatient and taking intensive care treatment till 10.12.2002. The skin crafting and three operations were done to the first respondent/claimant and after that he was discharged and taking private clinic treatment. The first respondent/claimant spent a sum of Rs.25,000/- for nutritive meals and incurred a sum of Rs.25,000/- towards transportation charges from the accident place to Kadayanallur Government Hospital to T.V.M.C.Hospital, Tirunelveli etc. The accident occurred due to the carelessness of the second respondent/first respondent's (owner of the vehicle) driver. The driver was under the direct control of the second respondent/first respondent. The vehicle was insured with the appellant/second respondent Insurance Company. The vehicle had a full insurance policy certificate.
4. At the time of the accident, the first respondent/claimant was wearing clothes worth about Rs.1,000/- and wrist watch worth about Rs.1,500/- and a gold ring worth about Rs.3,000/- and a cash of Rs.1,000/-. Due to the accident, the motor cycle sustained damages to the tune of Rs.10,000/-. Thus the first respondent/claimant had suffered a damage of Rs.16,500/- in all, as a result of the accident. Hence, a claim made for a compensation of Rs.5,00,000/- (Rupees Five Lakhs only) together with interest at 12% p.a. from the date of accident till date of payment.
5. Before the Tribunal, the second respondent/first respondent (the owner of the vehicle Tata Sumo), has remained ex-parte.
6. The appellant/second respondent Insurance Company has filed a counter inter alia stating that the claimant is put to strict proof of the injuries sustained and the disability caused to him due to the accident and that no disability has been caused to the claimant, since the alleged injuries are simple in nature and in any event, the claim of Rs.5,00,000/- (Rupees Five Lakhs only) as compensation is excessive and arbitrary and therefore, prays for dismissal of the claim petition.
7. On the side of the first respondent/claimant, witnesses P.W.1 and P.W.2 were examined and Exs.A.1 to A.15 were marked and on the side of the respondents, no witness was marked and no documents were marked.
8. On appreciation of oral and documentary evidence, after contest, the Tribunal has awarded a sum of Rs.2,14,400/- (Rupees Two Lakhs Fourteen Thousand and Four Hundred only) to the first respondent/claimant together with interest at 9% p.a from the date of petition till date of payment along with proportionate costs payable by the respondents severally and jointly.
9. According to the learned Counsel for the second respondent/Insurance Company, the Tribunal has not taken into consideration of the fact whether the first respondent/claimant was disabled from any other activity on account of the disability suffered by him since he was reported to be a lottery ticket seller and that in the absence of any clear cut evidence, a minimum sum of Rs.5,000/- could have been adopted by the Tribunal and in any event, the loss of earning capacity would not exceed Rs.25,000/- and further that, the Tribunal has committed an error in considering the percentage of disability as constituting an equal percentage of loss of earning capacity.
10. To establish the issue of negligence, the claimant has examined himself as P.W.1 before the Tribunal. In his evidence, the claimant/P.W.1, Mariyappan has stated that on 07.11.2002, he was proceeding from Ayakudi to Kadayanallur riding T.V.S 50 motor cycle bearing Registration No.TN-72-U-3063 and near northern side of Achempatti colony, at that time, in the opposite direction, a Tata Sumo bearing Registration No.TN-37-R-0330 belonging to the second respondent/first respondent was driven by its driver negligently without observing the traffic rules in a high speed and dashed against his motor cycle as a result of which, the accident occurred.
11. The first respondent/claimant is the complainant, as seen from Ex.A.1, the certified copy of F.I.R. The driver of the Tata Sumo bearing Registration No.TN-37-R-0330 has been mentioned as an accused in Ex.A.1. On a perusal of Ex.A.1, F.I.R, it is clear that Kadayanallur Police has registered a case in Cr.No.269 of 2002 under Sections 279, 337 and 338 I.P.C on 07.11.2002 at 07.30 hours. In Ex.A.2, the certified copy of Accident Register in respect of the claimant, it is mentioned as 'alleged to have been hit by TN-37-R-0330 Tata Sumo while travelling TVS 50 near Achampatti in National Highways at about 6.15 A.M on 07.11.2002'. Further, in Ex.A.2, the accident register, it is mentioned that the claimant has suffered the following injuries: '1) A small wound 1 X . over the forehead. 2) ? # over the right thigh. 3) # over the right wrist joint. 4) A small abrasion over the lower lip.'. The claimant has been admitted in T.V.M.C.Hospital for further management and it is stated in Ex.A.2, the accident register that as per T.V.M.C.Hospital particulars, the injuries 2 and 3 are grievous and the injuries 1 and 4 are simple in nature.
12. In Ex.A.3, the Motor Vehicle Inspector's report pertaining to the Maxi Cab bearing Registration No.TN-37-R-0330 (M/s.Tata Sumo/1997/Saloon), the Motor Vehicle Inspector has opined that 'the accident was not due to any mechanical defect of this vehicle.'.
13. In Ex.A.7, the charge sheet filed by the Special Sub Inspector of Police, Kadayanallur Police Station, the accused Mahendrakumar, driver of Tata Sumo bearing Registration No.TN-37-R-0330, has been charge sheeted under Sections 279, 337 and 338 I.P.C before the learned Judicial Magistrate Court, Tenkasi.
14. In Ex.A.14, disability certificate issued by P.W.2, Dr.Vedamoorthy, the disability of the first respondent/claimant has been assessed at 60%. To discredit the evidence of P.W.1/claimant, in regard to the manner and happening of the occurrence, no one has been examined as witness on the side of the respondents before the Tribunal. Therefore, the evidence of P.W.1/claimant in regard to the manner and happening of the occurrence, is reliable, convincing and of credence and therefore, this Court accepts the same. Resultantly, this Court holds that the accident has taken place because of the negligent driving of the Tata Sumo bearing Registration No.TN-37-R-0330 by its driver in a high speed and that the driver of the said Tata Sumo vehicle is squarely responsible for causing the accident and answered accordingly.
15. In regard to the quantum of compensation, it is to be pointed out that the first respondent/claimant has claimed a compensation of Rs.11,56,500/- (Rupees Eleven Lakhs Fifty Six Thousand and Five Hundred only) and has restricted the same to a sum of Rs.5,00,000/- (Rupees Five Lakhs only) under various heads and the same is as follows:
Part - I
(a) Loss of earnings - ...
(b) Partial loss of earnings from 08.11.2002 to 7.11.2012 at the net Rate of Rs.4,500/-p.m for 10 years - Rs.5,40,000/-
(c) Transport to Hospital - Rs. 25,000/-
(d) Extra Nourishment - Rs. 25,000/-
(e) Damages to clothing and
articles - Rs. 16,500/-
(f) Others:Medical
Expenses - Rs. 50,000/-
1.Loss of dependency - Rs. -Nil-
2. Loss of Estate
(Funeral Expenses) - "
3.Pain and Suffering - "
4.Loss of Gratuitious
Service - "
5.Loss of Consortium - "
6.Mental Agony and shock - "
7.Love and Affection - "
Part - II
(h) Compensation for pain and
sufferings - Rs.1,00,000/-
(i) Compensation for continuing
permanent disability and
deformity - Rs.1,00,000/-
(j) Compensation for earning
power - Rs.2,00,000/-
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Total -Rs.11,56,500/-
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16. In the claim petition, the first respondent/claimant has mentioned his occupation as lottery ticket bulk agent and salesman and has given the address of his employer as 'Nisha Lottery agent, Kadayanallur', getting a monthly salary of Rs.4,500/- p.m. The Tribunal has come to the conclusion that the first respondent/claimant has not proved his monthly income of Rs.4,500/- p.m through proper documents and therefore, it has fixed his monthly salary as Rs.2,000/-
p.m. The first respondent/claimant has mentioned his age as 30 years in the claim petition. The Tribunal has fixed the disability of the first respondent/claimant at 45% and has arrived at a figure of Rs.1,94,400/- (Rupees One Lakh Ninety Four Thousand and Four Hundred only) {Rs.2,000/- X 12 X 18 X 45/100 = Rs.1,94,400/-} towards loss of income. Further, the Tribunal has awarded a sum of Rs.10,000/- towards transportation and medical expenses and towards pain and sufferings, it has granted a sum of Rs.5,000/- and towards nutrition expenses, it has awarded a sum of Rs.5,000/- and totally, it has awarded a sum of Rs.2,14,400/- (Rupees Two Lakhs Fourteen Thousand and Four Hundred only).
17. At this juncture, the learned Counsel for the appellant/Insurance Company cited the decision in United India Insurance Company Limited, Branch Officer, 146, N.Kumar Complex, Tiruchengode v. Veluchamy and another (2005 (1) CTC 38) wherein it is observed that 'Courts should approach issue of awarding damages on larger perspective of the justice, equity and good conscience and eschew technicalities in decision making, etc.'.
18. In Sangeeta v. Surender Kumar and others (2004 ACJ 817), it is observed that 'for loss of functions of left thigh by a 14 years injured girl student of Class IX, the award of Rs.70,000/- by the Tribunal has been increased to Rs.1,35,000/- in appeal.
19. In this connection, it is useful to refer to the evidence of P.W.2, Dr.Vedamoorthy, who has stated that he examined the first respondent/claimant and gave him Ex.A.14, disability certificate assessing the disability of the claimant at 60% and that the claimant has sustained fracture of right thigh bone etc., and that the claimant was operated on 18.11.2002 and K nail fixation was done on the claimant etc. and that the claimant's right knee movements, 90% had been reduced. It is to be pointed out that when P.W.2, Dr.Vedamoorthy has assessed the disability at 60%, the Tribunal has fixed the same at 45%. Ex.A.13 refers to the treatment particulars of the claimant. Admittedly, P.W.2 Dr.Vedamoorthy is a medical expert and assessed the disability at a reduced percentage of 45% brushing aside the claim of disability of 60% assessed by the medical expert namely P.W.2, Dr.Vedamoorthy. To put it differently, the evidence of P.W.2, Dr.Vedamoorthy in regard to the assessment of the disability at 60%, overrides the view taken by the Tribunal in fixing the disability at 45%. Further, the evidence of P.W.2, Dr.Vedamoorthy is unimpeachable.
20. In such circumstances, this Court accepts the evidence of P.W.2 Dr.Vedamoorthy in regard to the disability suffered by the claimant and holds that the claimant has suffered a disability of 60%. Taking note of the spiralling rise in prices of essential commodities, bearing in mind of the current trend of inflation scenario, taking note of the percentage of disability sustained by the first respondent/claimant and on over all assessment of the facts and circumstances of the present case, for 1% of disability, this Court is of the view that a sum of Rs.1,750/- can be awarded as a reasonable sum and accordingly, for 60% disability, this Court awards a sum of Rs.1,05,000/- (Rupees One Lakh and Five Thousand only) {Rs.1,750/- X 60 = Rs.1,05,000/-}. Towards transport expenses, this Court grants a sum of Rs.10,000/-. Towards pain and sufferings, this Court grants a sum of Rs.7,500/-. A sum of Rs.2,500/- is granted towards nutrition expenses. Though the first respondent/ claimant has claimed a sum of Rs.50,000/- towards medical expenses and has produced medical bills to an extent of Rs.777/- as per Ex.A.10, considering the disability suffered by the first respondent/ claimant, this Court grants a sum of Rs.10,000/- towards medical expenses and loss of happiness.
21. Thus, the first respondent/claimant is entitled to receive a sum of Rs.1,35,000/- (Rupees One Lakh and Thirty Five Thousand only) {Rs.1,05,000/- + Rs.10,000/- + Rs.7,500/- + Rs.2,500/- + Rs.10,000/- = Rs.1,35,000/-}, as total compensation together with interest at 9% p.a from the date of petition till date of payment payable by the appellant/second respondent/Insurance Company. Consequently, this Court comes to the conclusion that a sum of Rs.2,14,400/- awarded by the Tribunal is exorbitant on the facts and circumstances of the case. The lawyer's fee determined by this Court is Rs.4,688/- (Rupees Four Thousand Six Hundred and Eighty Eight only).
22. Earlier, in C.M.P.(MD)Nos.993 of 2004 and 2374 of 2005, this Court has inter alia permitted the first respondent/claimant to withdraw 50% of the award amount along with the entire accrued interest and has directed the balance amount to be kept in Fixed Deposit scheme in a Nationalised Bank for a period of two years and renewable thereafter pending appeal and further that, a permission has also been granted to the first respondent/claimant to withdraw the accrued interest quarterly and made the stay granted on 04.11.2004 as absolute. It is open to the first respondent/claimant to receive the balance amount from the Tribunal by projecting necessary application as per the Civil Rules of Practice. Equally, liberty is also given to the appellant/Insurance Company to receive the excess amount lying to the credit of M.C.O.P.No.100 of 2003 on the file of the Motor Accident Claims Tribunal, Additional Subordinate Court, Tenkasi, by filing a payment out application in the manner known to law as per the Civil Rules of Practice.
23. In the light of the foregoing discussions, the Civil Miscellaneous Appeal is allowed in part in above terms. Considering the facts and circumstances of the case, the parties are directed to bear their own costs in this appeal.
rsb To The Motor Accident Claims Tribunal, Additional Subordinate Court, Tenkasi.