Madras High Court
M/S.New India Assurance vs B.Manimaran on 5 February, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.02.2013
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
C.M.A.No.930 of 2006 &
C.M.P.No.3655 of 2006
M/s.New India Assurance
Company Limited,
490-A, 1st Floor,
Avinashi Road, (near
Nava India) Peelamedu,
Kovai. ... Appellant
Vs.
1.B.Manimaran
2.M/s.Saravana Construction,
No.15/157, Palakkadu Main Road,
Marappalam,
Madukkarai, Kovai.
(Ex-parte in the lower Court) ... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 08.04.2005 made in M.C.O.P.No.180 of 2004, on the file of the Motor Accidents Claims Tribunal, Additional District Judge, (Fast Track Court No.III), at Namakkal.
For Appellant : Mr.K.S.Narasimhan
For Respondents : Mr.S.Parthasarathy for R-1
R2 NDW
- - -
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.C.O.P.No.180 of 2004, on the file of the Motor Accidents Claims Tribunal, Additional District Judge, (Fast Track Court No.III), at Namakkal.
2. The short facts of the case are as follows:-
The petitioner, viz., B.Manimaran, has filed the claim in M.C.O.P.No.180 of 2004, 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 14.08.2003, at about 4.30 p.m., when the petitioner was proceeding in the maruthi car bearing registration No.TN30-B-7774, along with others, from Salem to Chennai, and when the car was near Uluppakkam near Maduranthagam, the lorry bearing registration No.TNV-2634, driven in a rash and negligent manner, dashed against the car. As a result, the petitioner sustained fracture of bone in his hip and other injuries over his body. He was admitted at MIOT Hospital, Chennai, wherein he received treatment. At the time of accident, the petitioner was aged 39 years. Due to the disability sustained in the accident, he is not able to do his work as before. Hence, the petitioner has filed the claim against the first and second respondents, who are the owner and insurer of the lorry bearing registration No.TNV-2634.
3. The second respondent, in his counter has denied the averments in the claim that the driver of the first respondent's tipper lorry had driven it in a rash and negligent manner and caused the accident. It was submitted that the petitioners have to prove that the driver of the maruthi car had a valid driving licence. It was also submitted that the owner and insurer of the maruthi car have to be impleaded as necessary parties. The averments in the claim regarding age, income and occupation of the petitioner was also not admitted. It was submitted that the claim was excessive.
4. In the same accident, other claims had been filed by the injured petitioners in M.C.O.P.Nos.177 of 2004, 178 of 2004, 179 of 2004 and 181 of 2004, claiming compensation from the same respondents for the injuries sustained by them. Hence, a joint trial was conducted and common evidence was recorded and common judgment was passed.
5. The learned Motor Accidents Claims Tribunal, had framed four issues for consideration in the case, viz., "(i) Was the accident caused by the rash and negligent driving of the driver of the first respondent's lorry?
(ii) Are the respondents liable to pay compensation to the petitioner?
(iii) Is the petitioner entitled to get compensation? If so, what is the quantum?
(iv) To what relief is the petitioner entitled to?"
6. On the petitioner's side, six witnesses were examined and 35 documents were marked as Exs.P1 to P35, viz., Ex.P1-F.I.R., Ex.P2-Motor Vehicle Inspector's Report, Ex.P3-Motor Vehicle Inspector's Report, Ex.P4-wound certificate, Ex.P5-R.C.Book, Ex.P6-driving licence, Ex.P7-discharge summary, Ex.P8-medical bills, Ex.P9-copy of policy, Ex.P10-driving licence, Ex.P11-X-ray, Ex.P12-scan report (2), Ex.P13-salary certificate, Ex.P14-wound certificate, Ex.P15-X-ray, Ex.P16-wound certificate, Ex.P17-discharge summary, Ex.P18-medical receipts, Ex.P19-wound certificate, Ex.P20-discharge summary, Ex.P21-hospital receipts, Ex.P22-ECG report, Ex.P23-X-ray, Ex.P24-C.T.scan, Ex.P25-wound certificate, Ex.P26-discharge summary, Ex.P27-hospital receipts, Ex.P28-X-ray, Ex.P29-CT scan, Ex.P30-disability certificate, Ex.P31-X-rays, Ex.P32-disability certificate, Ex.P33-X-rays, Ex.P34-disability certificate and Ex.P35-X-rays. On the respondent's side, no witness, no documents.
7. P.W.1, Manimaran, the petitioner in M.C.O.P.No.180 of 2004 had adduced evidence that on 14.08.2003, when he and the petitioners in M.C.O.P.Nos.177 of 2004, 178 of 2004, 179 of 2004, 181 of 2004, were proceeding in the maruti car bearing registration No.TN-30-B-7774, from Salem to Chennai and at about 4.30 p.m., when the car was near Ozupakkam near Maduranthagam, the respondent's tipper lorry bearing registration No.TNV-2634, coming in the opposite direction and driven in a rash and negligent manner, dashed against the car. The petitioners in the other claims, viz., P.W.2 to P.W.5 had also adduced evidence on similar lines to that of P.W.1 regarding manner of accident and in support of their evidence, they had marked Exs.P1 to P35. On scrutiny of Ex.P1, it is seen that the F.I.R. had been registered against the driver of the first respondent's tipper lorry. 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. Hence, the Tribunal, on scrutiny of evidence of P.W.1 to P.W.5 and documentary exhibits marked by them and on considering that no oral or documentary evidence had been let in on the side of the respondents to rebut the claims of P.W.1 to P.W.5 regarding manner of accident, held that the accident had been caused by the rash and negligent driving by the first respondent's lorry driver and hence, held the first and second respondents, being the owner and insurer of the lorry liable to pay compensation to the petitioners.
8. P.W.1, petitioner had further adduced evidence that due to the accident, he had sustained fracture of bone in his hip and that he was admitted at MIOT Hospital, chennai, wherein he received treatment as an inpatient from 14.08.2003 to 23.10.2003. He deposed that he was aged 38 years and was working as the Inspector of Chittod Police Station and earning Rs.12,715/- per month and that due to the accident and because of the surgical operations performed by him, he was unable to attend work for one year. He deposed that he had spent a sum of Rs.2,00,000/- for medical expenses.
9. P.W.6, doctor had adduced evidence that he had examined the petitioner on 16.03.2005 and that on scrutiny of medical records, he had observed that the petitioner's right hip joint had been displaced due to the accident and due to this the nerves of his right leg and sole had been affected. He deposed that the movements of the petitioner's right hip had become restricted and that the petitioner would be able to walk only with the support of a crutch. He certified that the petitioner had sustained 45% disability due to the accident and in support of his evidence, he had marked Exs.P30 and P31. The Tribunal, on observing that the petitioner was aged 39 years as per Ex.P4 and he was earning Rs.12,250/- per month, as per Ex.P13, adopted a multiplier of 16 and assessed the compensation payable for disability, loss of income and loss of earning capacity as Rs.11,01,240/- (Rs.12,715 x 12 x 16 x 45/100); However, the Tribunal on observing that the petitioner had admitted that he was receiving his salary even during the period of medical treatment, awarded only a sum of Rs.4,50,000/- as compensation for disability and loss of earning capacity; Rs.50,000/- was awarded for pain and suffering; Rs.1,56,000/- was awarded for medical expenses as per medical bills marked as Ex.P8; Rs.20,000/- towards transport and nutrition; Rs.25,000/- for loss of comfort. In total, the Tribunal awarded a sum of Rs.7,01,000/- as compensation to the petitioner and directed the first and second respondents to jointly and severally pay the said sum together with interest at the rate of 9% per annum from the date of filing the petition till date of payment of compensation, with costs, within two months from the date of its order.
10. Aggrieved by the award passed by the Tribunal, the second respondent / New India Assurance Company Limited, Kovai has preferred the present appeal.
11. The learned counsel for the appellant has contended in his appeal that the Tribunal failed to consider that the petitioner had not established his occupation and alleged earnings by producing acceptable evidence. It was also contended that the Tribunal failed to see that the multiplier method cannot be adopted mechanically without properly appreciating the facts and circumstances of each case and failed to see that the alleged disability was not established in accordance with schedule I of Workmen's Compensation Act. Hence, it was prayed to scale down the award.
12. The learned counsel for the claimant submits that the claimant was examined as P.W.1 and he had adduced evidence that he was hospitalized for about two months, as an inpatient and he was working as Inspector of Police Attached to the Tamil Nadu Police Department and after the accident, he was unable to join duty for about one year. The doctor had assessed the disability at 45%. The claimant is doing uniformed service and as his physical condition has been affected, his promotion prospects are also affected. Further, the F.I.R. has been registered against the offending vehicle driver and the said lorry had been insured with the insurance company. The quantum of compensation is not on the higher side.
13. On considering the facts and circumstance 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 quantum of compensation awarded by the Tribunal is slightly on the higher side. Further, the Tribunal had adopted multiplier method to assess compensation which is not proper in the instant case. Therefore, this Court reassesses the compensation as follows:-
1,56,000/- is awarded for medical expenses; Rs.90,000/- toward disability; Rs.15,000/- towards pain and suffering; Rs.15,000/- towards transport; Rs.15,000/- towards nutrition; Rs.15,000/- towards attender charges; Rs.75,000/- towards loss of earning during medical treatment period and Rs.2,00,000/- under the head of loss of amenities and loss of comfort, since the claimant had undergone surgical operation and is doing uniformed service and his physical condition had been affected. In total, this Court awards Rs.5,81,000/- as compensation. As such, this Court scales down the compensation from Rs.7,01,000/- to Rs.5,81,000/-. The rate of interest fixed by the Tribunal remains unaltered. As per records, it is seen that the entire compensation had been deposited with interest. Now, the claimant is at liberty to withdraw the compensation amount as per this Court's modified order, lying in the credit of M.C.O.P.No.180 of 2004, on the file of the Motor Accidents Claims Tribunal, Additional District Judge, (Fast Track Court No.III), Namakkal, after filing a Memo, along with a copy of this order, subject to deduction of withdrawals made, as per this Court's earlier order. Likewise, the appellant / Insurance Company is at liberty to withdraw the excess compensation amount, after filing a Memo.
14. In the result, the above appeal is partly allowed. Consequently, the judgment and decree passed in M.C.O.P.No.180 of 2004, on the file of the Motor Accidents Claims Tribunal, Additional District Judge, (Fast Track Court No.III), Namakkal, dated 08.04.2005 is modified. There is no order as to costs. Consequently, connected miscellaneous petition is closed.
05.02.2013
(2/3)
Index : Yes.
Internet : Yes.
r n s
To
The Additional District Judge, (Fast Track Court No.III),
Motor Accidents Claims Tribunal,
Namakkal,
C.S.KARNAN, J.
r n s
C.M.A.No.930 of 2006 &
C.M.P.No.3655 of 2006
05.02.2013
(2/3)