Madras High Court
Gopal vs Saravanan on 11 November, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.11.2013
CORAM
THE HON'BLE MR.JUSTICE C.S.KARNAN
C.M.A.No.813 of 2006
1.Gopal, Lost Speech, (Deceased)
Rep. by Guardian and wife
Tmt.Sumathi
2.Sumathi
3.Minor. Prasanth
4.Minor. Preetha
(Minors 3 and 4 are rep. by mother,
natural guardian the 2nd appellant
Tmt.Sumathi)
5.Visathal .. Appellants
(5th appellant brought on record as legal
representative of deceased 1st appellant
vide order of the Court dated 4.10.2010
made in CMP.No.1381 of 2010)
vs
1.Saravanan
2.M/s.Sathyamangalam People's
Association,
No.366A, Opposite to Taluk office,
Sathyamangalam, Erode Dt.
3.The New India Assurance Company Ltd.,
Divisional office, Sathyamangalam.
4.Kumarasamy
5.The New India Assurance Company Ltd.,
490-A, 1st Floor, Avinashi road,
Peelamedu, Coimbatore. .. Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the Common Order and Decree in M.A.C.T.O.P.No.734 of 2003, before the Motor Accidents Claims Tribunal (Additional District Court, Fast Track Court No.I, Coimbatore) dated 29.06.2005, in so far as it is against the appellant concerned.
For Appellants : Mr.A.Sivaji
For Respondents: Mr.N.Vijayaraghavan (for R3 & R5)
R1, R2 & R4 - Served
JUDGMENT
The appellants / claimants have preferred the present appeal in C.M.A.No.813 of 2006, against the Common Order and Decree passed in M.C.O.P.No.734 of 2003, on the file of the Motor Accidents Claims Tribunal / Additional District Court, Fast Track Court No.I, Coimbatore.
2.The short facts of the case are as follows:-
The petitioners, who are the wife and children of Gopal, who is dumb have filed the claim in M.C.O.P.No.734 of 2003, claiming compensation of a sum of Rs.13,00,000/- from the respondents for the injuries sustained by the said Gopal in a Motor Vehicle Accident. It was submitted that on 14.01.2002, at around 10.30 a.m., when Gopal, the 1st petitioner in M.C.O.P.No.734 of 2003, was riding the Bullet Motorcycle bearing Registration No.MDB-2550, along with one Muthu @ Muthusamy as the pillion rider, on the Kovilpalayam-Kovai Sathi road, towards west and when the vehicle was near Aravindan Hospital diversion, the 1st respondent drove the Maruthi Ambulance Van bearing Registration No.TN-36-Z-6963, in a rash and negligent manner and dashed it against the motorcycle. As a result, both the rider and pillion rider of the motorcycle sustained injuries. The injured pillion rider, namely Muthu @ Muthusamy succumbed to his injuries while being taken to Coimbatore Government Hospital. The injured Gopal was admitted at Coimbatore Ramakrishna Hospital, wherein he was treated as an inpatient till 22.02.2002. Subsequently, he was admitted at Kovai Government Medical College Hospital, wherein treatment was given till 01.05.2002. At the time of accident, the said Gopal was aged 37 years and was working as a Commission agent as well as an agriculturist and earning Rs.3,500/- per month. As he had lost his speech and he is also not able to eat and walk, he is unable to do any work. Hence, the petitioners have filed the claim against the respondents 1 to 6. The respondents 1 to 3 are the driver, owner and insurer of the Ambulance van bearing Registration No.TN-36-Z-6963. The respondents 4, 5 and 6 are the owner, driver and insurer of the motorcycle bearing Registration No.MDB-2550.
3.The 1st respondent in his counter has submitted that the accident had not been caused due to any negligence on his part and that it was caused only due to the rash and negligent driving of the motorcyclist, who had lost his control and dashed the motorcycle against the Van, while was coming near the turning near the main road. It was submitted that the Van had capsized in the accident and that he had also sustained injuries in the accident. It was submitted that the police, after investigation had filed the charge sheet against the motorcyclist for rash and negligent driving. It was submitted that the claim was excessive.
4.The 3rd and 5th respondents in their counter had submitted that the accident had not been caused due to rash and negligent driving of the Ambulance Van by its driver. It was submitted that the name of the driver of the Van was not Murugesan, as alleged in the claim. It was submitted that only the 1st petitioner is entitled to file the claim and that the 2nd, 3rd and 4th petitioners are not necessary parties in the claim. It was submitted that as the accident was caused only due to the negligence of the 1st petitioner and as the criminal case and charge sheet had been filed against him, he is not entitled to claim compensation. The averments in the claim that the 1st petitioner had lost his speech and ability to write and walk and that he had sustained disability was also not admitted. The averments in the claim regarding age, income and occupation of the 1st petitioner was also not admitted. It was submitted that the claim was excessive.
5.In the same accident, another claim has been filed by legal heirs of the pillion rider of the motorcycle namely Muthu @ Muthusamy, who had died due to injuries sustained, in M.C.O.P.No.968 of 2002. On the request made by the learned counsels for their respective petitioners in the claims, through a joint memo, a joint trial was conducted and common evidence was recorded in M.C.O.P.No.968 of 2002. On the petitioners' side, 6 witnesses were examined and 20 documents were marked as Exhibits P1 to P20 namely Ex.P1-Copy of F.I.R.; Ex.P2-Copy of postmortem report; Ex.P3 and Ex.P4-Copy of Motor Vehicle Inspector's report; Ex.P5-Copy of charge sheet; Ex.P6-Observation mahazar; Ex.P7-Death Certificate; Ex.P8-Legal heir certificate; Ex.P9-Medical treatment records; Ex.P10 and Ex.P11-Copy of medical treatment records; Ex.P12-Driving licence; Ex.P13-Scan report; Ex.14-Medical bills (series); Ex.P15-X-rays; Ex.P16-Scan; Ex.P17-Copy of I.D. of Natarajan; Ex.P18 and Ex.P19-Certificate showing receipt of commission; and Ex.P20-Wound and Disability Certificate. On the respondents' side, one witness was examined and 3 documents were marked as Exhibits R1 to R3 namely Ex.R1-Copy of rough sketch; Ex.R2-Copy of charge sheet; and Ex.R3-Policy.
6.The Motor Accidents Claims Tribunal framed three issues for consideration in the case namely (1) Who is liable to pay compensation? (2) Are the petitioners entitled to get compensation? and (3) What is the quantum of compensation which the petitioners are entitled to get?
7.PW1, Rangasamy, the father of the deceased Muthu and the 1st petitioner in M.C.O.P.No.968 of 2002 and PW2, the wife of Gopal and the 2nd petitioner in M.C.O.P.No.734 of 2003 had adduced evidence, which is corroborative of the statements made in the claim regarding manner of accident and in support of their claim they had marked Exhibits P1 to P20. PW3, Natarajan the eyewitness of the accident had adduced evidence that the accident had been caused by the rash and negligent driving of the Ambulance Van driver. He had further stated that there are speed breakers on the road, on which the motorcyclist had proceeded and that this road leads to the main road.
8.RW1, Saravanan, the driver of the Ambulance Van had adduced evidence that on the day of occurrence of accident, he was driving the Van on the main road in a careful and cautious manner and that the accident was caused due to the rash and negligent riding of the motorcycle by its rider, who had suddenly turned his motorcycle while coming out from the diversion road to the main road, without noticing the oncoming vehicle and dashed the motorcycle against the Van. He further deposed that there were no speed breakers in the diversion road, on which the motorcycle had proceeded.
9.The Tribunal, on scrutiny of Ex.P1, observed that the F.I.R. had been filed against the driver of the motorcycle i.e. the 1st petitioner. The Tribunal, on scrutiny of Ex.P3 and Ex.P4 and after observing the damages caused to the motorcycle and Van involved in the accident and on scrutiny of Ex.R1-Rough sketch, observed that the accident had been mainly caused due to the negligence of the motorcyclist, who after proceeding on his motorcycle on the diversion road, had suddenly turned his vehicle on the main road and dashed it against the Van. The Tribunal further observed that the 1st respondent had also stated that he was carrying a patient in the Ambulance Van and that he had put on the lights on his vehicle while proceeding on the main road. Hence, the Tribunal on scrutiny of Ex.R1-Rough sketch, Ex.P6-Observation mahazar and on scrutiny of evidence of PW3 and RW1 held that the accident had been caused by the contributory negligence of both the motorcyclist and van driver and apportioned the negligence in the ratio 70% : 30% amongst them respectively. However, the Tribunal on considering that the 1st petitioner had contributed 70% negligence in causing the accident, held that the 1st petitioner is entitled to get 30% of the compensation assessed and that this is payable by the respondents 1 to 3. The Tribunal, on considering that the claim had been filed by the injured 1st petitioner, for the injuries sustained by him in the accident, held that the 2nd, 3rd and 4th petitioners are not entitled to get any compensation.
10.PW5, Shanmugam, had adduced evidence that he had not paid any fixed monthly salary to the 1st petitioner and that no individual account had been maintained in the name of the 1st petitioner in their shop. Hence, the Tribunal was not inclined to rely on Ex.P19-Certificate showing receipt of commission, which had been marked, showing monthly salary of the 1st petitioner as Rs.4,000/- per month. However, the Tribunal, on observing that the 1st petitioner was an agriculturist and a commission agent, held that the notional income of the 1st petitioner could be taken as only Rs.3,750/- per month.
11.PW6, Dr.Krishnaraj had adduced evidence that he had examined the 1st petitioner and that after scrutiny of his medical records marked as Ex.P9 to Ex.P16, he had observed that the 1st petitioner had loss his speech and not able to do his normal work without help of others. He certified that the 1st petitioner had sustained 75% disability in the accident and in support of his evidence, he had marked Ex.P20-Wound Certificate and Disability Certificate. The Tribunal, on scrutiny of oral and documentary evidence awarded a sum of Rs.2,00,000/- for medical expenses as per medical bills marked as Ex.P9, P11 and P14; Rs.15,000/- was awarded for pain and suffering; Rs.5,000/- was awarded for transport; Rs.70,000/- was awarded for disability. The Tribunal, on observing that the 2nd, 3rd and 4th petitioners were dependent on his income, adopted a multiplier of 15 and awarded a sum of Rs.4,50,000/- (2,500X12X15) as compensation under the head of loss of earning capacity by holding his loss of income at Rs.2,500/- per month for disability of 75%. In total, the Tribunal assessed the compensation payable to the 1st petitioner who had contributed 70% negligence for the occurrence of accident, directed the respondents 1 to 3 to pay 30% of the compensation assessed to the 1st petitioner, 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 a period of one month from the date of its order. The claim of the petitioners 2 to 4 were dismissed.
12.Not being satisfied by the award passed by the Tribunal, the petitioners have filed the above appeal. The learned counsel for the appellant has contended in his appeal that the Tribunal erred in holding that the accident had been caused by the rash and negligent driving of the two wheeler belonging to the 4th respondent and driven by the appellant herein. It was contended that the Tribunal failed to see that the independent witness and eyewitness has spoken about the manner in which the accident occurred and that the Tribunal failed to consider his evidence. It was contended that the Maruthi Van was carrying a patient from Gobichettipalayam for urgent treatment at Coimbatore. In the normal circumstances, it can be taken judicial notice of the fact that such a vehicle will not run in a normal speed in view of the urgency. It was pointed out that on account of the fact that the van was running on the highway, coupled with the urgency, RW1 would not have driven the Van in a normal speed. It was contended that the Tribunal failed to see that the Van was thrown to a distance of 40 feet and that this indicates the speed at which the Van was proceeding in a busy area. It was contended that the Tribunal erred in fixing 70% liability on the two wheeler driver. It was contended that on account of the insurance covering the vehicles, the forum below could have awarded the liability against the company alone and not against the 1st appellant also. It was contended that the 1st claimant has become immobile, unable to move, speak and attend to his normal duties and on account of this, he has to depend upon his wife during night time and a servant during day time and as such the Tribunal failed to consider the expenses incurred on this count. It was also contended that the Tribunal failed to grant compensation for loss of income for 19 months i.e. from the date of accident to the date of filing the petition. It was contended that the award granted under the head of transport expenses, medical expenses, pain and suffering and disability was on the lower side. It was also contended that the Tribunal failed to grant award for future medical expenses. Hence, it was prayed for grant of additional compensation.
13.The highly competent counsel for the Insurance Company argued that the accident had been committed by the rider of the motorcycle and hence criminal case has been levelled against him. The same was proved before the trial Court and as such the entire negligence lies only on the part of the rider of motorcycle. However, the trial Court had apportioned the negligence as 70% : 30% amongst the rider of motorcycle and driver of the Van respectively and granted compensation. Further, the Doctor did not disclose the nature of injuries, mode of treatment and disability. The only disability is loss of speech. The learned counsel for the respondents 1, 2 and 4 submits that the trial Court had decided all issues on the basis of relevant documentary evidence and oral evidence. Further, the negligence had been attributed on the basis of Rough sketch, Charge sheet and F.I.R.
14.On considering the facts and circumstances of the case and arguments advanced by the learned counsel 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 contributory negligence, liability and quantum of compensation. Further, while the C.M.A. is pending before this Court, the original injured claimant Gopal had expired. Therefore, the legal heirs of the deceased Gopal are at liberty to receive the said compensation amount, with interest, after production of legal heir certificate before the trial Court, along with a copy of this order. The Tribunal is at liberty to apportion the compensation amount amongst the legal heirs on the basis of legal heir certificate.
15.In the result, the above Civil Miscellaneous Appeal is dismissed. Consequently, the Order and Decree, passed in M.C.O.P.No.734 of 2003, dated 29.06.2005, on the file of the Motor Accidents Claims Tribunal (Additional District Court, Fast Track Court No.I, Coimbatore), is confirmed. No costs.
11.11.2013 vs Index : Yes / No Internet: Yes / No To
1.The Motor Accidents Claims Tribunal, Additional District Court, Fast Track Court No.I, Coimbatore.
2.The Section Officer, VR Section, High Court, Madras.
C.S.KARNAN.J vs PRE-DELIVERY ORDER IN C.M.A.No.813 of 2006 11.11.2013 (1/2)