Madras High Court
Mohanasundaram @ Kumaran vs K.Thirupathi on 25 October, 2017
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.10.2017
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.M.A.No.1079 of 2007
Mohanasundaram @ Kumaran ... Appellant/Petitioner
Vs.
1.K.Thirupathi
2.The National Insurance Company Limited,
Through it's Divisional Manager,
Tanjore, Tanjore District. ...Respondents/Respondents
PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and degree dated 07.10.2005 which is
passed in M.C.O.P.No.705 of 2003 on the file of the Motor Accident Claims
Tribunal [Additional District Judge], Fast Track Court No.1, Tanjore, Tanjore
District.
!For Appellant : Mr.P.Subbaraj
^For R-1 : No Appearance
For R-2 : Mr.J.S.Murali
:JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellant/claimant against the judgment and decree, dated 07.10.2005 made in M.C.O.P.No.705 of 2003 on the file of the Motor Accident Claims Tribunal [Additional District Judge], Fast Track Court No.1, Tanjore, Tanjore District, awarding a compensation of Rs.80,000/- with interest 7.5% per annum from the date of filing of the claim petition till the date of payment of compensation. Challenging the same, the present Civil Miscellaneous Appeal has been filed.
2. The facts of the case in brief are as follows:-
On 05.11.2002, at about 6.30 a.m, the appellant/claimant was travelling as a passenger in the bus bearing T.N.49.H.8730 belonging to the first respondent which was insured with the second respondent. When the bus was proceeding on Gandhiji Road and while nearing Anna statue, the driver of the said bus drove the bus in a rash and negligent manner at a high speed while negotiating a curve, the driver of the first respondent applied brake suddenly. Due to the said act of the driver of the first respondent's bus, the appellant/claimant was thrown out from the bus who was standing inside the bus. In the said accident, the appellant/claimant sustained multiple fracture in his left leg, left hand, hip and ribs and he was immediately taken to Tanjore Medical and Government Hospital, wherein, he was admitted as inpatient from 15.11.2002 to 16.11.2002. A Criminal complaint has also been filed in C.No.247 of 2002 before the Tanjavur Traffic Police Station with regard to the said accident. Thereafter, he was admitted in the Royal Private Hospital, Thanjavur and Rohini Hospital from 16.11.2002 to 05.12.2002 and 07.06.2003 to 18.06.2003 respectively. At the time of the accident, the appellant/claimant was aged about 21 years and he stated that he was working as a conductor and he possessed a driver-cum-conductor licence. Further, it was diagnosed that the claimant's diaphragm and his intestine coil affected and his lungs was not functioning and his left elbow, left side inferior ramus of pubic bone and pubic bone were fractured and there were injuries all over his body due to which he is not able to do his normal work and he was totally disabled. Therefore, the appellant/claimant seeks a compensation of Rs.15,00,000/- before the Tribunal.
3. The second respondent had filed a counter statement in which he opposed the claim petition stating that the alleged accident was occurred only due to the carelessness and negligence on the part of the appellant and not due to any rash and negligent driving by the driver of the first respondent's bus. The appellant/claimant had sustained only a simple injuries. Therefore, the second respondent is not liable to pay any compensation to the appellant/claimant. Hence, the second respondent prays for the dismissal of the claim petition.
4.Before the Tribunal, on the side of the appellant/claimant two witnesses were examined as, P.W-1 and P.W-2, namely claimant himself was examined as P.W-1 and Dr.Rathinasabapathi was examined as P.W-2 and fourteen documents were marked as Exs-P.1 to P-14 namely Ex.P-1 is the copy of FIR, dated 05.11.2002, Ex.P-2 is the discharge summary of Tanjavur Government Medical and Hospital, Tanjavur, Ex.P-3 is the discharge summary of Royal Hospital, Ex.P-4 is the discharge summary of Rohini Hospital, Ex.P-5 is the discharge summary of A.K.C Hospital, Ex.P-6 is the discharge summary of Anu Hospital, Ex.P-7 is the photo with negative of the claimant to show his disablement, Ex.P-8 is the Doctor's prescription, Ex.P-9 is the driving licence of the claimant, Ex.P-10 is the conductor licence of the claimant, Ex.P-11 is the Motor vehicle Inspector's report, Ex.P-12 is the Medical Expense Bills , Ex.P-13 is the Disability Certificate and Ex.P-14 is the two X'rays. On the side of the respondent no witnesses was examined and no documents were marked.
5. The claimant was examined as P.W.1. In his evidence, he adduced that on 05.11.2002 at about 6.30 A.M, while he was proceeding from Ammapettai towards Thanjavur as a passenger in the bus bearing T.N.49.H.8730 belonging to the first respondent. When the bus was proceeding on Gandhiji Road, nearing Anna statue, the driver of the said bus drove the bus rashly and negligently at a high speed and while negotiating a curve, the driver of the first respondent applied brake suddenly. Due to the said act, the he was thrown out from the bus who was standing inside the bus. The First Information Report with regard to the said accident is marked as Ex.P-1. In the said accident, the appellant/claimant sustained multiple fracture in his left leg, left hand, hip and ribs and he was immediately taken to Tanjore Medical and Government Hospital wherein he was admitted as inpatient on 05.11.2002 and discharged on 06.11.2002. The discharge summary is marked as Ex.P-2. Thereafter, he was admitted in several private hospitals namely Royal Private Hospital, Thanjavur, Rohini Hospital and A.K.C Hospital for getting treatment. Ex.P-3 to Ex.P-5 are the discharge summary issued by the above said hospitals. Ex.P-6, is the report of ailment in the heart of the claimant. Ex.P-7 is the photo of the claimant which shows his ailment due to the accident. Ex.P-8 is the Doctor's prescription issued in the above said hospitals. At the time of the accident, the claimant was aged about 21 years old and he stated that he was working as a conductor and he possessed a driver cum conductor licence which was marked as Exs.P-9 and P-10. He also produced a copy of the Motor Vehicle Inspector's report as Ex.P-11, which shows that there was no mechanical defects in the said bus to cause accident. The medical expenses incurred by the appellant/claimant was marked as Ex.P-
12. Further, it was diagnosed that the claimant's diaphragm and his intestine coil affected and his lungs was not functioning and his left elbow, left side inferior ramus of pubic bone and pubic bone was fractured and sustained injuries all over his body, due to which, he is not able to do his normal work and he was totally disabled. Therefore, the claimant seeks a compensation amount of Rs.15,00,000/-.
6.The said Dr.Rathinasabapathy, who had inspected the appellant/claimant was examined as P.W.2 before the Tribunal. He issued disability certificate for the appellant/claimant, which was marked as EX.P.13 and X-ray for the appellant/claimant is marked as Ex.P.14. P.W.2, in his evidence deposed that due to the accident, one of the left rib bone of the appellant/claimant was removed by way of surgery. He further deposed that there are several fracture all over his body, therefore, overall he marked the percentage of disability as 46% in the Disability Certificate.
7. The Tribunal, after considering the pleadings, oral and documentary evidence and the arguments advanced on either side and also appreciating the evidence on record, has come to the conclusion that the accident occurred only due to the rash and negligent driving of the driver of the bus belongs to the first respondent insured with the second respondent/insurance company. The Tribunal had also held that the Disability Certificate issued by the Doctor/P.W.2 is only on the motive to get excess compensation, and therefore, the said Certificate was not accepted. Therefore, the Tribunal awarded under the following heads as Rs.30,000/- for medical expenses and transportation charges, a sum of Rs.10,000/- for extra Nourishment and for attendant's charges, a sum of Rs.10,000/- for pain and sufferings and further sum of Rs.30,000/- for loss of income. The Tribunal awarded a total sum of Rs.80,000/- (Rupees Eighty Thousand only) as compensation and directed the second respondent to deposit the said amount.
8.Aggrieved over the same, the appellant/claimant filed the present Civil Miscellaneous Appeal, seeking enhancement of the quantum of compensation.
9.The learned counsel for the appellant/claimant submitted that the appellant/claimant was aged about 21 years and he was working as a conductor and he possessed driver cum conductor licence. On 05.11.2002, at about 6.30 a.m., he was travelling as a passenger in the bus belongs to the first respondent and due to rash and negligent driving of the bus driver, the appellant was thrown out from the bus and sustained multiple fractures and went on treatment in several hospitals and due to which he is not able to do his normal work and he was totally disabled. Without considering the above facts, the Tribunal awarded only a meagre sum in all heads and therefore, the compensation awarded by the Tribunal has to be enhanced.
10.The learned counsel for the second respondent/insurance company submitted that based on the evidence, the Tribunal awarded a just and reasonable compensation and therefore, the same does not warrants interference.
11.Heard the submissions made on either side and perused the entire materials available on record.
12. On the facts and circumstances of this case, it is seen that the accident took place only due to the rash and negligent driving of the bus driver and this has been proved by Ex.P-11, Motor Vehicle Inspector's report, which shows that there was no mechanical defects in the said bus. However, due to the accident, the appellant sustained multiple fracture all over his body and got treatment in various hospitals. Since, the Tribunal has not accepted the Disability Certificate of the appellant/claimant issued by P.W.2/Doctor in its entirety, the compensation was not awarded under the head of Disability.
13.Therefore, this Court is inclined to modify the award amount by enhancing the compensation, as under:-
S.No Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted
1.
Loss of Income due to grievous injuries 30,000 46,000 enhanced
2. For Medical expenses and transportation charges 30,000 50,000 enhanced
3. For Pain and suffering 10,000 10,000 confirmed
4. For extra Nourishment and for attendant's charges 10,000 10,000 confirmed Total Rs.80,000 Rs.1,16,000 Rs.1,16,000/- is awarded
14. Accordingly, the compensation awarded by the Tribunal is enhanced from Rs.80,000/- (Rupees Eighty Thousand Only) to a sum of Rs.1,16,000/- (Rupees one lakh sixteen Thousand Only) along with interest at the rate of 7.5% per annum and costs from the date of petition till the date of realization. The second respondent/ insurance company is directed to deposit the entire award amount of Rs.1,16,000/-(Rupees one lakh sixteen Thousand Only) with accrued interests and costs, less the amount already deposited, if any, within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit being made, the appellant/claimant is permitted to withdraw the entire amount with accrued interests and costs, by filing formal application before the Tribunal.
15. In the result, this Civil Miscellaneous Appeal is partly allowed and the award dated 07.10.2005 made in M.C.O.P.No.705 of 2003 passed by the Motor Accident Claims Tribunal [Additional District Court/Fast Track Court No.1], Tanjore District is modified to the extent indicated above. No Costs.
To
1.The Motor Accident Claims Tribunal [Additional District Judge] Fast Track Court No.1, Tanjore, Tanjore District.
2.The Section Officer, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
.