Madras High Court
The Oriental Insurance Co vs Samad on 22 March, 2010
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.03.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2046 of 2005 and C.M.P.No.10823 of 2005 The Oriental Insurance Co., Ltd., Neyveli rep.by its Branch Manager .. Appellant Vs 1.Samad 2.Ponnusamy .. Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 23.11.2001, made in M.C.O.P.No.1584 of 1999, on the file of the Motor Accident Claims Tribunal (Principal Sub-Judge), Tindivanam. For appellant : Mr.S.J.Jagadev For respondents : Mr.P.Mani for R1 J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 23.11.2001, made in M.C.O.P.No.1584 of 1999, on the file of the Motor Accident Claims Tribunal (Principal Sub-Judge), Tindivanam, awarding a compensation of Rs.11,00,000/- 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/second respondent has filed the above appeal praying to set aside the award and decree passed by the Tribunal.
3.The short facts of the case are as follows:
The petitioner, Shamshath, was Fruit Merchant and aged about 21 years. On 19.02.1998, the petitioner was travelling in a van bearing registration No.TN32 Z3868, from Kallakurichi to Madras to receive her relative, who was coming from abroad. When the van had passed Tindivanam and when the van was proceeding on the GST road, 2 Kms. away from Tindivanam, the first respondent's lorry bearing registration No.TAY 2319, driven by its driver in a rash and negligent manner dashed against the van and caused the accident. In the impact, the petitioner as well as the other passengers in the van sustained severe injuries. The petitioner sustained grievious injuries on her head, arms and spinal cord. She has sustained paralysis of her legs and is not able to control the motion and urine. As she is bedridden, a nurse has been appointed, to whom a monthly salary of Rs.3,000/- is paid, to look after her. Rs.3,000/- is also being spent by the petitioner every month for medicines.
4.Before the accident, she was a fruit merchant and earning a sum of Rs.10,000/- per month. After the accident, she is unable to carry on her business. She is the mother of two minor children.
5.Hence, the first respondent, the owner of the said lorry and the second respondent its insurer are liable to pay compensation to the petitioner. The petitioner has claimed a compensation of Rs.18,00,000/- from the respondent under Section 166 of the Motor Vehicles Act.
6.Regarding the said accident, a criminal case has been registered by the Tindivanam Town Police Station in Crime No.116/1998, under Sections 279 and 337 of I.P.C. as against the driver of the said lorry involved in the said accident.
7.In the counter filed by the second respondent and adopted by the first respondent, it has been stated that the manner of the accident, as alleged in the claim, is not true. The second respondent has submitted that the driver of the lorry took his trip at Chennai and was proceeding towards Villupuram. The driver of the lorry drove the lorry slowly, carefully and adhering the traffic rules. When the lorry was nearing Tindivanam town limit, the driver of the lorry slowed down the speed as it was a dark night. At that time, a passenger van, driven by its driver in a rash and negligent manner, came in the opposite direction, with dazzling halogen lights. When the driver of the said van overtook a vehicle ahead of it by crossing the meridian line, the driver of the lorry slowed down the speed of the lorry and kept to the left side of the road. In spite of this, the van dashed against the lorry and caused the accident. As such, the second respondent has submitted that the accident had been caused only by the fault of the driver of the van.
8.Further, the second respondent has denied the averments in the claim regarding the age, income and occupation of the petitioner, the injuries sustained by her, medical treatment taken and permanent disability sustained by her. It has been submitted that the petitioner has not been paralysed as alleged in the claim and that she is attending her work normally as she was doing before the accident. The second respondent has also denied the averment in the claim regarding the medical expenses and has stated that the claim is excessive. The second respondent has also stated that the first respondent's lorry bearing registration No.TAY 2319 had not been insured with them at the time of accident. It has also been submitted that the driver of the lorry did not have a valid licence to drive the said lorry. The respondent has submitted that as the accident was due to the collision of two vehicles, the owner and insurer of the van, in which the petitioner had travelled should have been impleaded as necessary parties to decide the negligence issue. As such, the second respondent has submitted that the non-joinder of necessary parties in the instant case renders the petition not maintainable and so has sought dismissal of the claim petition.
9.Two other passengers in the van, who are relatives of the petitioner and who had also sustained injuries in the said accident, have filed M.C.O.P.No.1041 of 1999 and M.C.O.P.No.1421 of 1999, before the Tribunal. The Mumtaz, the petitioner in M.C.O.P.No.1041 of 1999 was examined as PW1; Shakila, the petitioner in M.C.O.P.No.1421 of 1999 was examined as PW2 and Mrs.Shamsath, the petitioner in M.C.O.P.No.1584 of 1999 was examined as PW3.
10.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Was the accident caused due to the negligence of the driver of the first respondent's lorry?
(ii)What is the quantum of compensation, which the petitioner is entitled to get?
11.On the petitioner's side four witnesses were examined as PW1 to PW4, PW4 is the Doctor, who had assessed the disability of the petitioner and 12 documents were marked as Exs.P1 to P12. On the respondents side no witness was examined and the insurance policy taken for the first respondent's lorry was marked as Ex.R1.
11.Ex.P1 is the copy of FIR registered at the Tindivanam Town Police Station. On scrutiny of the Ex.P1, it is seen that the complaint had been given by one Babu, the driver of the van involved in the accident. It has been stated in the complaint that the driver of the respondent's lorry, coming from Chennai had driven the lorry at a high speed and dashed the lorry against the van resulting in the overturning of the van. A minor girl Amrina, who had travelled in the van, was also injured in the accident. Her mother Shakila, PW2, had filed a claim petition in M.C.O.P.No.1192 of 1998. Another person, who had travelled in the van and who was also injured had filed a claim petition. In that case, as the respondents had remained absent, the case had been decided as against the respondents and the copy of the Criminal Court Judgment in that case has been marked as Ex.P2. From a scrutiny of Ex.R1, it is seen that the first respondent's lorry had been covered under a valid policy of insurance with the second respondent and was valid till 28.11.1998. As the accident happened on 19.02.1998, the Tribunal held that the first respondent's lorry had been insured with the second respondent at the time of accident.
12.Mumtaz, who was a passenger in the van was examined as PW1. The PW1 has travelled with his entire family in the said van from Thyagagurukkam in Kallakurichi Taluk of Villupuram District. She had deposed that 14 persons had travelled in the said van and that she was one among them; that when the van had proceeded beyond Tindivanam, the first respondent's lorry, coming in the opposite direction and which was driven at a high speed and in a rash and negligent manner by its driver, had dashed against the van and caused the accident.
13.The Tribunal, on considering the evidence of the PW1 and the FIR marked as Ex.P1 and also on scrutiny of the Ex.P2, the copy of the Judgment made in the M.C.O.P.No.1192 of 1998 and Ex.P4, the Wound Certificate issued to Amrina, the daughter of the Shakila at Tindivanam Government Hospital, as well as document Ex.R1 held that the accident had been caused only by the driver of the first respondent's lorry and hence rejected the contention made on the part of the respondents side that the accident had been caused by the rash and negligent driving by the driver of the van. As such, the Tribunal held that as the first respondent's lorry had been covered under a valid policy of insurance with the second respondent, the second respondent is liable to pay compensation to the petitioner.
14.The petitioner was examined as PW3 before the Tribunal. The PW3, in her evidence, deposed that she is a married woman and had a minor daughter aged about 5 years; that her husband had deserted her after the accident and had married some other woman; that she and her child are being looked after by her father; that she had sustained paralysis of the entire portion of her body below her hip and that this has been caused by the fracture of her bones in her spinal cord; that she is unable to walk, unable to stand and that she has no control over her bowel movements and excretion of urine; that she had sustained injuries in her hands, legs, and eyebrows and lips; that she had been admitted at Tindivanam Medical Hospital and subsequently had taken treatment at Government Hospital, Chennai; that she had been treated as inpatient at the hospital for a period of two months; that subsequent to this she had been taking treatment at the Government Hospital, at her native place of Thyagagurukkam and has been taking medicines prescribed at this hospital; that even after taking medicines and treatment for a period extending to three years, there has been no advancement in her physical condition. She has further deposed that the Doctors had expressed their opinion that there will not be a cure for her physical problem even after treatment. In support of her evidence, she has marked Ex.P5, the medical report issued at Government Hospital, Tindivanam; Ex.P7, the medical report issued at Government General hospital, Chennai; Ex.P7, the medical report given by the Orthopaedic Department at Government General Hospital; Ex.P8, the letter dated 05.05.1998 given by the Doctor at Orthopaedic Department of Government General Hospital, Chennai, to the Cuddalore District Health officer, wherein it has been recommended that a three wheeled vehicle should be given to the petitioner as she would be unable to walk. She had further deposed that in her existing state of physical condition, she would not be able to travel in the three wheeler also. She had further deposed that she had to spent a sum of Rs.100/- every day for medicines and that she had also employed an attendant to look after her and her child and that she was paying her Rs.1,000/- every month. She had further marked Ex.P9, the medical certificate issued by one Dr.Sriram, who had stated the nature of fractures and the other bodily problems failed by her.
15.The Dr.Ramanujam, who had assessed disability of the petitioner was examined as PW5. The PW5, in his evidence, has deposed that he had medically inspected the petitioner on 29.07.2001; that the petitioner had received serious head injuries and fractures and that both her legs had been paralysed and that even the other portions of her body below her hip had lost their functional ability; that the petitioner has pain in her neck and that she was aged about 26 years and married; that she would remain as a living corpse for the rest of her life as all her bodily parts below her hip had been affected; that she was not able to digest the food taken by her due to uncontrolled flow of urine; that she had lost her prospects of married life because of the injury and that this injury and disability could not be set right in the future also and in support of his evidence, he had marked Ex.P12, the disability certificate, wherein it was certified that the disability sustained by the petitioner was 100%.
16.The Tribunal on scrutiny of Exs.P5 to P9 and P12 were of the opinion that the petitioner had sustained a serious and uncurable malady and held that she should be compensated adequately.
17.The petitioner had stated that her age was 21 years but Dr.Ramanujam, who had inspected her, had stated the age of the petitioner was 26 years. It was also stated by the petitioner that she was earning a sum of Rs.3,000/- in milk business prior to the accident. But, the Tribunal were not inclined to accept this income in total and hence assessed the compensation payable to her as follows:
1.For loss of income incurred by the petitioner, during the period of hospitalisation, the Tribunal awarded a sum of Rs.50,000/- as compensation to the petitioner,
2.For nutrition, the Tribunal awarded a sum of Rs.50,000/- as compensation to the petitioner,
3.For medical expenses, the Tribunal awarded a sum of Rs.1,00,000/- as compensation to the petitioner,
4.For pain and suffering, the Tribunal awarded a sum of Rs.4,00,000/- as compensation to the petitioner,
5.For permanent disability of 100% sustained by the petitioner, the Tribunal awarded a sum of Rs.4,00,000/- as compensation to the claimant,
6.For future loss of income, the Tribunal awarded a sum of Rs.1,00,000/- as compensation to the claimant, In total, the Tribunal awarded a compensation of Rs.11,00,000/- to the petitioner and held that the second respondent is liable to pay the said award to the petitioner. It directed the second respondent to deposit the above said award amount of Rs.11,00,000/- together with interest at the rate of 9% per annum from the date of filing the petition till the date f payment of compensation, into the credit of the M.C.O.P.No.1584 of 1999, on the file of the Motor Accident Claims Tribunal (Principal Sub-Judge), Tindivanam. Further, after such deposit was made, the award was to be deposited in a nationalised bank, as fixed deposit, for a period of three years and the petitioner was permitted to receive the interest on such deposit, once in six months. The excess Court fee of Rs.7,000/- paid by the petitioner was to be refunded to her. The respondents were directed to pay the cost of Rs.28,408/- to the petitioner. The Advocate fees was fixed at Rs.18,000/-.
18.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal failed to see that no documentary evidence was placed by the injured claimant regarding medical expenses for award Rs.1,00,000/- under the said head. It was also contended that the Tribunal committed an error in awarding a sum of Rs.4,00,000/- for pain and suffering as it is highly excessive and that in similar cases, only an award of Rs.1,00,000/- had been awarded under the said head. It has also been contended that the award of Rs.4,00,000/- for 100% disability was excessive and that a reasonable compensation for 100% disability at Rs.1,000/- for 1% works out to Rs.1,00,000/- only. It was pointed out that the Tribunal failed to see that in a similar case reported in 1999 ACJ 1105 SC, the total compensation awarded was Rs.3,00,000/-. As such, it was contended that the Tribunal had awarded an excess compensation of Rs.4,75,000/- and hence it has been prayed to set aside the award and decree passed by the Tribunal.
19.The learned counsel appearing for the first respondent argued that at the time of accident, the deceased was 21 years old and was a fruit merchant. After the accident, due to the paralytic stroke, her legs have been affected and immobilised and as such she needs an attendant to attend to her physical needs. As such, she has sustained 100% disability due to the said accident and hence the compensation awarded by the Tribunal is reasonable. After the said accident, her husband had deserted her and married another woman. She also has no control over her bowel movements and excretion of urine. She had also undergone treatment, as inpatient, at Government General Hospital, Chennai. Further, the Doctor, who had attended to her, opined that the claimant's physical condition could not be set right in the future also. The learned counsel appearing for the first respondent further argued that the Tribunal had assessed the compensation as Rs.11,00,000/- after considering all the evidence on record and hence it is fair and equitable.
20.Considering the facts and circumstances of the case, arguments advanced by the learned counsel on either side, mode of compensation assessed by the Tribunal, this Court is of the view that the award granted by the Tribunal is on the higher side. Hence, the Court modifies the award as follows:
1.For permanent disability and loss of future income sustained by the petitioner as she has sustained 100% disability in the said accident and taking her notional income as Rs.2,000/- per month and multiplier of 15 (Rs.2,000/- X 12 X 15 = Rs.3,60,000/-), this Court awards a sum of Rs.3,60,000/-,
2.For pain and suffering, this Court grants an award of Rs.50,000/-,
3.For nutrition, this Court grants an award of Rs.10,000/-,
4.For loss of income during the period of hospitalisation, this Court grants an award of Rs.10,000/-,
5.For transport expenses, this Court grants an award of Rs.10,000/-,
6.For attendant charges, this Court grants an award of Rs.1,00,000/-,
7.This Court grants an award of Rs.50,000/- in spite of medical bills not being produced, considering the nature of injuries and duration of treatment of the petitioner, In total, this Court awards a compensation of Rs.5,90,000/- to the claimant together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.1584 of 1999, on the file of the Motor Accident Claims Tribunal (Principal Sub-Judge), Tindivanam.
21.This Court directs the appellant to deposit the entire compensation amount with accrued interest and costs, into the credit of the M.C.O.P.No.1584 of 1999, on the file of the Motor Accident Claims Tribunal (Principal Sub-Judge), Tindivanam, within a period of eight weeks from the date of this Order. Further, the Court had earlier permitted the claimant to withdraw 50% of the award amount.
22.As the accident happened in the year 1999, it is open to the claimant to withdraw the balance compensation amount, with proportionate interest, as per this Court Order, lying in the credit of the M.C.O.P.No.1584 of 1999, on the file of the Motor Accident Claims Tribunal (Principal Sub-Judge), Tindivanam, after filing necessary payment out application in accordance with law, subject to deduction of withdrawal, if any, made as per this Court Order.
23.The appellant/Insurance Company is at liberty to withdraw the excess compensation amount, with proportionate accrued interest therein, lying in the credit of the M.C.O.P.No.1584 of 1999, on the file of the Motor Accident Claims Tribunal (Principal Sub-Judge), Tindivanam, after observing necessary formalities.
24.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 23.11.2001, in M.C.O.P.No.1584 of 1999, on the file of the Principal Sub-Judge, Motor Accident Claims Tribunal, Tindivanam is modified. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.
krk To
1.The Principal Sub-Judge, Motor Accident Claims Tribunal, Tindivanam
2. The Section Officer, VR Section, High Court, Madras