Madras High Court
The Branch Manager vs S.Parameswaradas on 6 June, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/06/2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.(MD)No.532 of 2011 AND M.P.(MD)No.1 of 2011 The Branch Manager, The New India Assurance Company Limited, Neyyattinkarai and Post, Tiruvandrum District, Kerala State. ... Appellant Vs 1.S.Parameswaradas S/o.Sethumadavan, Rep. by his Wife Saritha, Nagercoil Village, Agastheeswaram Taluk, Kanyakumari District. Now residing at Ramanputhur Nagercoil Kalkulam Taluk, Villukuri Village, Ammankoil Street, Paraseri, Sunkankadai Post, Kanyakumari District. 2.N.Alphonsa 3.M.V.Raju ... Respondents PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, to set-aside or modify the order of the learned Tribunal in M.C.O.P.No.79 of 2007, dated 13.12.2010, on the file of the Motor Accidents Claims Tribunal, Principal Subordinate Court, Nagercoil. !For Appellant .. Mr.J.S.Murali ^For Respondents .. Mr.D.Meenakshi Sundaram For Mr.R.Murugesan (R-1) No appearance for R-2 and R-3 :JUDGMENT
The appellant / third respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.79 of 2007, on the file of the Motor Accidents Claims Tribunal, Principal Subordinate Court, Nagercoil.
2. The short facts of the case are as follows:-
The petitioner, represented by his wife Saritha, has filed the claim in M.C.O.P.No.79 of 2007, claiming compensation of a sum of Rs.20,00,000/-, from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that on 27.05.2006, when the petitioner was riding his 'Hero Honda' motorcycle bearing registration No.TN-74-Y-1434, on the extreme left of the road and at around 09.30 p.m, when he was proceeding on the road at a point about 200 feet further from the Thootiyodu junction, the first respondent's tempo bearing registration No.KL01-K-5551, coming from behind the motorcycle and driven by its driver, i.e, the second respondent at a high speed and in a rash and negligent manner dashed against the petitioner and caused the accident. As a result, the petitioner fell down and sustained injuries on his head, chest and thigh. The father-in-law of the petitioner and the petitioner's cousin, who witnessed the accident, immediately called an ambulance and admitted him at Krishnakumar Hospital, wherein he received treatment as an inpatient from 27.05.2006 to 09.10.2006. For further treatment, he was admitted at Tiruvananthapuram Anantapuri Hospital, wherein he received treatment from 09.10.2006 to 31.10.2006. Subsequently, he took treatment at Krishnakumar Hospital from 01.11.2006 onwards. Due to the injuries sustained by him in his brain, he remains in a state of coma for several months. At the time of accident, the petitioner was aged 31 years and was working as an agricultural supervisor and earning Rs.10,000/- per month. Due to the injuries sustained by him, he is in a state of coma and unable to do even his normal routine work.
Hence, the petitioner has filed the claim as against the first, second and third respondents, who are the owner, driver and insurer of the tempo bearing registration No.KL01-K-5551.
3. The third respondent, in his counter has submitted that the second respondent drove the tempo bearing registration No.KL01-K-5551 in a careful and cautious manner and that the accident was caused only due to the negligence of the petitioner, who had ridden his motorcycle in a rash manner and had failed to notice the oncoming tempo, while turning around a curve in the road and dashed his motorcycle on the front side of the tempo. It was submitted that the petitioner did not have a valid licence to ride the motorcycle at the time of accident. It was submitted that the second respondent did not have a valid licence to drive the tempo at the time of accident and as the conditions of policy of insurance had been violated, the third respondent is not liable to pay compensation to the petitioner. It was submitted that the insurer of the Hero Honda bearing registration No.TN-74-Y-1434 has to be added as a necessary party in the claim. It was submitted that the claim was excessive.
4. The Motor Accidents Claims Tribunal had framed three issues for determination in the case, viz., "(i) Due to whose negligence was the accident caused?
(ii) Is the third respondent liable to pay compensation?
(iii) What is the quantum of compensation which the petitioner is entitled to get?"
5. On the petitioner's side, five witnesses were examined and 43 documents were marked as Exs.P1 to P43, viz., Ex.P1-copy of F.I.R., dated 28.05.2006, Ex.P2-copy of Motor Vehicle Inspector's report of both the vehicles dated 30.05.2006, Ex.P3-copy of wound certificate, Ex.P4-copy of observation mahazar dated 28.05.2006, Ex.P5-copy rough sketch, Ex.P6-disability certificate dated 15.09.2006, Ex.P7-copy of charge sheet dated 20.09.2006, Ex.P8-certificate given to petitioner by Association, Ex.P9-school transfer certificate dated 07.01.1994, Exs.P10 and P11-discharge summary dated 31.10.2006, Ex.P2-test report dated 04.08.2006, Ex.P13-scan report (series), Ex.P14-trip sheet, Exs.P15 and P16-medical prescriptions, Ex.P17-X-ray and scan, Ex.P18-road transport certificate given to the petitioner dated 03.09.1996 Ex.P19 to Ex.P40-medical bills, Ex.P41-bills for scan, Ex.P42 & 43-bills showing purchase of blood. On the side of the respondents, two witnesses were examined and four documents were marked as Exs.R1 to R4, viz., Ex.R1-investigation report, Ex.R2-copy of policy, Ex.R3-power of attorney given to R.W.2 to adduce evidence, Ex.R4-driving licence particulars of the second respondent.
6. P.W.1, the wife of the petitioner had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident. She deposed that due to the accident, her husband had sustained grievous injuries in his brain and was admitted at Krishnakumar Hospital, wherein, he received treatment as an inpatient from 27.05.2006 to 09.10.2006 and that for further treatment he was admitted at Tiruvananthapuram Anantapuri Hospital, wherein he received treatment as an inpatient from 09.10.2006 to 30.10.2006 and thereafter, he had been receiving treatment as an inpatient. In support of her evidence, she had marked Exs.P1, P4, P5 and P7.
7. P.W.2, Easwaraprasad, the eyewitness of the accident had adduced evidence that on 27.05.2006, after he had completed his business and was waiting for a bus at Thootiyodu junction, he had seen the husband of P.W.1 riding his "Hero Honda Splendor" motorcycle and that the first respondent's tempo, coming on the same road and driven by the second respondent in a rash and negligent manner had dashed against the motorcycle and caused the accident.
8. R.W.1, Kolappan of the third respondent's firm had adduced evidence that the accident occurred only due to the negligence of the petitioner, who had ridden his motorcycle on the middle of the road and in support of his evidence, he had marked Ex.R1. The Tribunal observed that no eyewitness of the accident had been examined by the respondents and no documentary evidence had been produced to prove that the accident had occurred only due to the negligence of the petitioner. The Tribunal, on observing from the evidence of R.W.1., that the first respondent's tempo was proceeding behind the motorcycle observed that if the second respondent had not driven the tempo at a high speed and in a rash and negligent manner, he could have averted the accident. Hence, the Tribunal, on scrutiny of the oral and documentary evidence, held that the accident had been caused by the rash and negligent driving by the second respondent.
9. R.W.2, Sivadasan had adduced evidence that the first respondent's tempo had been registered as a commercial transport vehicle and that the second respondent did not have the requisite licence to drive such a vehicle at the time of accident and that he did not possess the requisite badge for the period from the year 2005 to 2008. He deposed that as the policy conditions of insurance had been violated, the third respondent is not liable to pay compensation. In support of his evidence, he had marked Ex.R2, driving licence.
10. However, the Tribunal, on scrutiny of Ex.R4, observed that the second respondent had a valid licence to drive the vehicle and that he did not possess the requisite badge at the time of accident. Hence, the Tribunal on observing that the second respondent had been driving such vehicles for a long period opined that only because the second respondent had not renewed his badge, it could not be viewed as breach of policy conditions of insurance and on relying on judgment reported in 2010 (2) CTC 423, held the first and third respondents liable to pay compensation to the petitioner.
11. The Tribunal, on considering that no documentary evidence had been produced on the petitioner's side to prove his income and on observing that he was an agricultural supervisor, held that the notional income of the petitioner could be taken as Rs.4,500/- per month.
12. P.W.3, doctor had adduced evidence that he had given treatment to the petitioner at his hospital for one month, as an inpatient and that one Dr.Muturathinam had given treatment for the head injuries and that for other injuries he had given treatment. In support of his evidence, he had marked Ex.P6, disability certificate.
13 P.W.4, Dr.Muthurathinam had adduced evidence that he had conducted a surgical operation in the left side brain of the petitioner's head in order to set-right the haemorrhage of blood and that due to this, the petitioner experiences difficulty in talking and walking. He deposed that the disability sustained by the petitioner is permanent and could not be set-right in future. He deposed that the petitioner had sustained 50% disability.
14. P.W.5, Orthopeadic Surgeon had adduced evidence that he had examined the petitioner and found that the right side body of the petitioner was dis-functional and that he has slurred speech and experiences difficulty in walking and passing urine. He deposed that after the petitioner was given physiotherapy treatment, he has recovered.
15. The Tribunal, on observing that there are good prospects of the petitioner recovering and on observing the evidence of doctors and other documentary evidence that the petitioner would sustain loss of income for five years. Hence, the Tribunal awarded a sum of Rs.2,70,000/- under the head of 'loss of income'; Rs.14,350/- was awarded for transport expenses as per Ex.P14; Rs.10,000/- was awarded for nutrition; Rs.1,500/- was awarded for damage to clothes and articles; Rs.4,55,150/- was awarded towards medical expenses; Rs.1,00,000/- was awarded for pain and suffering; Rs.1,00,000/- was awarded for disability of 50%. In total, the Tribunal awarded a sum of Rs.9,11,100/- to the petitioner and directed the first and third respondents to jointly or severally deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition till date of deposit, with costs, within one month from the date of its order.
16. Aggrieved by the award passed by the Tribunal, the third respondent / New India Assurance Company Limited, Kerala State has preferred the present appeal.
17. The learned counsel for the appellant has contended in his appeal that the learned Tribunal, after holding that the driver of the appellant insured vehicle did not possess a badge / endorsement to drive the commercial vehicle at the time of accident, erred in directing the appellant Insurance Company to pay the entire compensation to the claimant and failed to note that the appellant Insurance Company has no legal obligation to indemnify the owner of the vehicle. It was also contended that the Tribunal erred in not fixing any negligence on the part of the claimant, who had driven the motorcycle without valid driving licence and rode the motorcycle from branch road to National Highways Road, without noticing the moving vehicles and had dashed his motorcycle on the right side of the appellant insured vehicle and invited the accident. It was contended that the Tribunal grossly erred in not considering the evidence of R.W.1 and R.W.2 (R.T.O. official) and Exs.R1 to R4 in the proper perspective. It was contended that the Tribunal after awarding Rs.1,00,000/- for 50% disability had again awarded Rs.2,70,000/- towards loss of earning by applying multiplier method which is not sustainable under law. It was contended that the award of Rs.1,00,000/- granted for pain and suffering was on the higher side. Hence, it was prayed to set-aside the award passed by the Tribunal.
18. The learned counsel for the claimant has contended that the claimant had spent about Rs.5,00,000/- towards medical expenses and he had been hospitalized on three different periods as an inpatient. The doctor had assessed the disability at 50%. The claimant had undergone surgical operation on his skull. At the time of accident, he was aged 31 years. After the accident, he is in a state of coma. At the time of presenting the claim petitioner, the claimant's wife appeared and initiated the claim petition. After the accident, he is unable to do his normal routine work.
19. On considering the facts and circumstances 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 and liability. However, the Tribunal awarded a sum of Rs.2,70,000/- under the head of loss of income for five years by adopting a multiplier method and had also awarded Rs.1,00,000/- under the same head which is redundant. Besides, the Tribunal had awarded a sum of Rs.1,00,000/- for pain and suffering, which is also on the higher side. Therefore, this Court restructures the compensation as follows:-
Rs.5,00,000/- is awarded under the head of medical expenses; Rs.1,00,000/- is awarded for disability; Rs.50,000/- is awarded for pain and suffering; Rs.15,000/- is awarded towards transport; Rs.30,000/- is awarded for attender charges; Rs.20,000/- is awarded for nutrition; Rs.60,000/- is awarded for loss of earning during medical treatment period and Rs.1,00,000/- is awarded for loss of amenities and loss of comfort, since the claimant had sustained a head injury. In total, this Court awards a sum Rs.8,75,000/- as compensation to the claimant. The rate of interest fixed by the Tribunal remains unaltered. As per evidence of R.W.2, the driver of the offending vehicle did not possess a requisite badge / endorsement to drive the vehicle. Therefore, the appellant is at liberty to recover the said compensation amount from the owner of the vehicle.
20. As per Court records, it is seen that this Court imposed a condition on the appellant to deposit the entire compensation amount with interest. Now, it is open to the claimant to withdraw the modified compensation, as per this Court's findings, of a sum of Rs.8,75,000/- with interest thereon, lying in the credit of M.C.O.P.No.79 of 2007, on the file of the Motor Accidents Claims Tribunal, Principal Subordinate Court, Nagercoil, after filing a Memo, along with a copy of this order, subject to deduction of withdrawals made, if any, as per this Court's earlier order. Likewise, the appellant is at liberty to withdraw the excess compensation amount with interest thereon, after filing a Memo.
21. In the result, the above appeal is partly allowed.
Consequently, the ordered passed in M.C.O.P.No.79 of 2007, on the file of the Motor Accidents Claims Tribunal, Principal Subordinate Court, Nagercoil, dated 13.12.2010, is modified. There is no order as to costs. Connected miscellaneous petition is closed.
rns To The Principal Subordinate Court, Motor Accidents Claims Tribunal, Nagercoil.
Pre-delivery Judgment made in C.M.A.(MD)No.532 of 2011 AND .P.(MD)No.1 of 2011 To The Hon'ble MR.JUSTICE C.S.KARNAN Most respectfully submitted, R.Narender, P.A. to the Hon'ble Judges