Madras High Court
National Insurance Company Limited vs R.Moorthy on 4 April, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.04.2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.No.3127 of 2008 & M.P.No.1 of 2008 National Insurance Company Limited, J.N.Street, Pondicherry. ... Appellant Vs. 1.R.Moorthy 2.P.Vijaya ... Respondents PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 11.04.2007 made in M.A.C.T.O.P.No.509 of 2004, on the file of the Motor Accidents Claims Tribunal, Tindivanam, (Fast Track Court No.II, M.C.O.P.No.76 of 2007) For Appellant : Mr.S.Vadivel For Respondents : Mr.A.K.Kumarasamy for R-1 R-2 (served) - - - J U D G M E N T
The appellant / second respondent has preferred the present appeal against the judgment and decree passed in M.A.C.T.O.P.No.509 of 2004, on the file of the Motor Accidents Claims Tribunal, Tindivanam, (Fast Track Court No.II, M.C.O.P.No.76 of 2007).
2. The short facts of the case are as follows:-
The petitioner has filed the claim, claiming compensation of a sum of Rs.14,00,000/- from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that on 08.02.2004, at about 9 p.m., when the petitioner was riding his motorcycle bearing registration No.PY-01-M-7290, on the ECR Road, near Komuttichavadi bus stop at Siruvadi Village, the first respondent's tata sumo car bearing registration No.PY-01-S-8829, coming on the same direction and driven in a rash and negligent manner, dashed behind the motorcycle and caused the accident. As a result, the petitioner sustained injuries on his left leg and his motorcycle was completely damaged. The petitioner was admitted at PIMS Hospital at Kalapet and received treatment from 08.02.2004 to 26.02.2004. Subsequently, he took further treatment at MIOT Hospital, Chennai from 26.02.2004 to 27.03.2004 and the petitioner's right leg was amputated above the knee level. At the time of accident, the petitioner was aged 47 years and was working as a mill employee in the weaving section of Anglo French Textiles, Pondy and earning Rs.7,533.65/- per month. Due to disability sustained in the accident, he is not able to do his work as before. Hence, the petitioner has filed the claim against the respondents 1 and 2, who are the owner and insurer of the tata sumo car.
3. The second respondent, in his counter had submitted that there was a delay of 9 days in lodging the F.I.R. It was submitted that the petitioner has to prove that the car was covered under a valid permit and R.C. to be plied on the road and also prove that he was holding a valid driving licence at the time of accident. It was also submitted that the claim was bad for non-joinder of the owner and insurer of the motorcycle as necessary parties. The averments in the claim regarding age, income, occupation, nature of injuries sustained, disability was also not admitted. It was submitted that the claim was excessive.
4. The Motor Accidents Claims Tribunal had framed three issues for consideration in the case, viz., "(i) Whether the accident was caused by the rash and negligent driving by the driver of the first respondent's car?
(ii) Whether the respondents are liable to pay compensation to the petitioner?
(iii) What is the quantum of compensation which the petitioner is entitled to get?"
5. On the petitioner's side, three witnesses were examined and 14 documents were marked as Exs.P1 to P14, viz., Ex.P1-copy of F.I.R. in Cr.No.119 of 2004 of Marakanam Police Station, Ex.P2-copy of Motor Vehicle Inspector's Report for motorcycle, Ex.P3-copy of Motor Vehicle Inspector's report for the car, Ex.P4-copy of injury report issued in the PIMS Hospital Pondy to the petitioner, Ex.P5-discharge summary issued in the PIMS Hospital, Pondy to the petitioner, Ex.P6-discharge summary issued in the MIOT Hospitals, Chennai to the petitioner, Ex.P7-insurance policy for the motorcycle, Ex.P8-letter from Anglo French Textiles Pondy to the petitioner's advocate, Ex.P9-copy of driving licence of the petitioner, Ex.P10-marriage invitation of one Murugan and Mahalakshmi, Ex.P11-certificate issued in the MIOT Hospital, Pondy to the petitioner, Ex.P12-medical bills in the name of the petitioner, Ex.P13-X-ray, Ex.P14-disability certificate issued to the petitioner by P.W.2. On the side of the respondents, no witness, no documents.
6. P.W.1, Moorthy, the petitioner had adduced evidence that on 08.02.2004, at about 9 p.m, when he was riding the Yamaha motorcycle bearing registration No.PY-01-M-7290 from Murukkeri to Pondy on the ECR Road, and when he was near Komuttisavadi bus stop, he had seen a bus parked on the opposite side of the road and at that time, the driver of the tata sumo car bearing registration No.PY-01-S-8829, driven by its driver on the same direction tried to overtake his vehicle and dashed it on the right side of his motorcycle and in support of his evidence, he had marked Exs.P1 to P4.
7. On scrutiny of Ex.P1, it is seen that the F.I.R. has been registered against the driver of the tata sumo car based on the complaint given by one Jothinathan, who is the brother of the injured petitioner. On scrutiny of Ex.P1, it is seen that the said Jothinathan had given the complaint, based on the information given by the petitioner and had lodged it on 17.02.2004. It has further been stated in the F.I.R. that as he had accompanied the petitioner to the hospital on 17.02.2004, he was able to lodge the complaint only on 17.02.2004.
8. P.W.2, Ramesh, the eyewitness of the accident had adduced evidence that on 08.02.2004, at about 9 p.m., when he was returning in the motorcycle from Murukkeri Siruvadi Village and proceeding towards Pommayapalayam, he had seen the petitioner riding ahead on his motorcycle and at that time, the tata sumo car bearing registration No.PY-01-S-8829, coming in the same direction and driven in a negligent manner and dashed against the motorcycle ridden by the petitioner. He deposed that the accident was caused only due to the negligence of the driver of the tata sumo car.
9. On scrutiny of Exs.P2 and P3, it is seen that the accident had not been caused due to any mechanism failure of the vehicles involved in the accident. On scrutiny of Ex.P9, it is seen that the petitioner had a valid driving licence to ride a motorcycle at the time of accident. Hence, the Tribunal, on scrutiny of evidence of P.W.1 and P.W.2 and on scrutiny of documentary exhibits held that the accident had been caused by the rash and negligent driving by the driver of the first respondent's tata sumo car and hence, held the first and second respondents being the owner and insurer of the car liable to pay compensation.
10. On scrutiny of Ex.P9, it is seen that the age of the petitioner was 47 years at the time of accident. P.W.1 had further stated that he was working as a mill employee at the weaving section of Anglo French Textiles, Pondy and earning Rs.7,500/- per month and in support of his evidence, he had marked Ex.P8. On scrutiny of Ex.P8, the Tribunal held that the monthly salary of the petitioner was Rs.6,100/-. P.W.1 further adduced evidence that due to the accident, he had sustained fracture of bone in his right leg and that his muscles had been torn and that he received treatment at PIMS Hospital, upto 26.02.2004 and subsequently received treatment at MIOT Hospital, Chennai from 26.02.2004 to 27.03.2004 as an inpatient and that his right leg was amputated at knee level. He further stated that he had purchased an artificial leg through JIMPER Hospital for Rs.87,000/- and that it had been fixed.
11. P.W.3, Dr.Sekar had adduced evidence that he had examined the petitioner on 29.03.2007 and also scrutinized his medical records. He deposed that the petitioner is walking with AK prosthesis and that an amputated stump was present above the knee which was conical in nature and had irregular thickening laterally. He further deposed that the length of the right thigh measured 32 cm in length and that of his left thigh was 47 cm and that there was pain over the amputated end. P.W.3 certified that the petitioner had sustained 85% disability and in support of his evidence, he had marked Ex.P14.
12. The Tribunal, on scrutiny of oral and documentary evidence, awarded a sum of Rs.20,000/- for pain and suffering; Rs.85,000/- was awarded for disability; Rs.10,000/- was awarded for loss of amenities; Rs.30,000/- was awarded for loss of income during medical treatment and convalescence period; Rs.10,000/- was awarded for transport expenses; Rs.10,000/- for nutrition and Rs.2,44,200/- was awarded for medical expenses as per medical bills marked as Ex.P12. In total, the Tribunal awarded a sum of Rs.4,09,200/- as compensation to the petitioner and directed the first and second respondents to jointly or severally pay the said sum together with interest at the rate of 7.5% per annum from the date of filing the claim till date of payment of compensation, with costs, within two months from the date of its order.
13. Aggrieved by the award passed by the Tribunal, the second respondent / National Insurance Company Limited, Pondicherry has preferred the present appeal.
14. The learned counsel for the appellant has contended in his appeal that the Tribunal ought not to have awarded a sum of Rs.30,000/- for loss of income as there was no evidence before the Tribunal to prove that the petitioner has lost his income. It was contended that the Tribunal, ought not to have relied on Ex.P1 on holding that the driver of the tata sumo car was negligent in causing the accident as the author of the F.I.R. was a close relative of the petitioner and he had admittedly not witnessed the accident. It was contended that the Tribunal failed to see that P.W.2, the alleged eyewitness of the accident did not lodge the F.I.R. and he was also not examined by the police and merely because no contra evidence had been let in on the side of the appellant, the Tribunal should not have arrived at a conclusion that the driver of the tata sumo car was negligent in causing the accident. It was contended that the Tribunal failed to see that the complaint regarding the accident was given after a delay and if at all, the involvement of the tata sumo car was true, the petitioner and his close associate would have lodged the F.I.R. immediately. It was contended that the appellant herein, after receiving the investigation report had given a complaint before the Deputy Inspector General of Police, CBCID, Chennai on 14.07.2008. Hence, it was prayed to set-aside the award passed by the Tribunal.
15. The highly competent counsel, Mr.A.K.Kumarasamy submits that the accident had been committed by the driver of the car and the same was insured with the insurance company. The claimant was on leave for about 1 1/2 years and he had undergone treatment at PMS Hospital and MIOT Hospital. His right leg had been amputated above knee level. As such, he had become a disabled person. The Tribunal had not granted an adequate compensation to the claimant for disability and for fixation of artificial leg. The medical expenses alone comes to Rs.2,44,200/-. Therefore, the quantum of compensation awarded is not on the higher side.
16. On considering the factual position of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence, liability and quantum of compensation. This Court is of the further view that the F.I.R. has been registered against the driver of the car and the same had been insured with the insurance company. As per medical evidence, it is seen that the claimant had sustained 85% disability and his right leg had been amputated above knee level. It is also seen that the claimant had spent about Rs.2,44,200/- towards medical expenses. As such, the impugned order is found to be suitable for execution.
17. This Court directed the appellant to deposit a sum of Rs.2,50,000/- with proportionate interest thereon. Now, this Court directs the appellant to deposit the balance compensation amount, with added interest thereon, as per Tribunal's findings, within a period of four weeks from the date of receipt of a copy of this order. After such deposit having been made, it is open to the claimant to withdraw the entire compensation amount, with accrued interest thereon, lying in the credit of M.A.C.T.O.P.No.509 of 2004, on the file of the Motor Accidents Claims Tribunal, Tindivanam, (Fast Track Court No.II, M.C.O.P.No.76 of 2007), after filing a Memo, along with a copy of this order.
18. In the result, the above appeal is dismissed. Consequently, the order and decree passed in M.A.C.T.O.P.No.509 of 2004, on the file of the Motor Accidents Claims Tribunal, Tindivanam, (Fast Track Court No.II, M.C.O.P.No.76 of 2007), dated 11.04.2007 is confirmed. There is no order as to costs. Consequently, connected miscellaneous petition is closed.
04.04.2013
Index : Yes.
Internet : Yes.
r n s
To
The Fast Track Court No.II,
Motor Accidents Claims Tribunal,
Tindivanam.
C.S.KARNAN, J.
r n s
C.M.A.No.3127 of 2008 &
M.P.No.1 of 2008
04.04.2013