Madras High Court
United India Insurance Company Limited vs Megalai on 5 October, 2017
Bench: K.Kalyanasundaram, V.Bhavani Subbaroyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.10.2017
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.M.A(MD)Nos.907 of 2008 & 908 of 2008
1.C.M.A(MD)No.907 of 2008:-
United India Insurance Company Limited,
406, Periyakulam Road,
Theni Post,
Theni District. .. Appellant/Respondent No.2
Vs.
1.Megalai
2.Krithika
3.Rohini
4.Ponraman .. Respondents 1 to 4/
Petitioners
5.D.Selvam
6.Ezhilmathi
7.Minor Karthikeyan .. Respondents 5 to 7/
Respondents 1, 3 & 4
Prayer:- Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988 against the Judgment and Decree dated 23.01.2006 passed in
M.C.O.P.No.306 of 2003 by the Motor Accident Claims Tribunal, Third
Additional Subordinate Court, Tiruchirappalli.
!For Appellant : Mr.G.Prabhu Rajadurai
^For RR 1 & 3 : Mr.N.Sudhagar Nagaraj
For RR 4 & 5 : No appearance
For RR 6 & 7 : M/s.J.Maria Roseline
2.C.M.A(MD)No.908 of 2008:-
United India Insurance Company Limited,
406, Periyakulam Road,
Theni Post,
Theni District. .. Appellant/Respondent No.2
Vs.
1.Srinivasan .. Respondent No.1/
Petitioner
2.D.Selvam
3.Megalai
4.Krithika
5.Rohini .. Respondents 2 to 5/
Respondents 1, 3 to 5
6.United India Insurance Company Limited,
78, Kamaraja Salai,
Kaveri Nagar, Kulithalai. .. Respondent No.6/
Respondent No.6
Prayer:- Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988 against the Judgment and Decree dated 23.01.2006 passed in
M.C.O.P.No.242 of 2003 by the Motor Accident Claims Tribunal, Third
Additional Subordinate Court, Tiruchirappalli.
For Appellant : Mr.G.Prabhu Rajadurai
For RR 1 & 3 : Mr.N.Sudhagar Nagaraj
For RR 6 & 7 : M/s.J.Maria Roseline
For RR 4 & 5 : No appearance
:COMMON JUDGMENT
(Judgment of the Court was made by V.BHAVANI SUBBAROYAN,J.) These Civil Miscellaneous Appeal have been filed by the appellant/United India Insurance Company against the fair and decreetal order, dated 23.01.2006 made in M.C.O.P.Nos.306 and 242 of 2003 on the file of the Motor Accident Claims Tribunal, Third Additional Subordinate Court, Tiruchirappalli.
2.The brief facts of the case are as follows:
It is a case of death and injury caused in an accident which took place on 29.12.2001 at about 19.00 hours, when the deceased-Jayaraman in M.C.O.P.No.306 of 2003 and his brother Srinivasan-the claimant in M.C.O.P.No.242 of 2003 were travelling in a car bearing Registration No.TN- 45-D-0819, when the car was nearing Trichy-Dindigul Main Road, a lorry bearing Registration No.TN-60-B-0599 belonging to the first respondent and insured with the second respondent, came in a rash and negligent manner from his opposite side and dashed against the deceased-Jayaraman and Srinivasan.
(ii) Due to the said impact, the deceased Jayaraman in M.C.O.P.No.306 of 2003 sustained grievous injuries all over the body. Immediately, he was taken to Kauveri Medical Centre, Trichy and took treatment for four days and thereafter, he was referred to Appollo Hospital, Chennai, however, after 29 days, he succumbed to injuries. At the time of accident, the deceased-
Jayaraman was aged about 50 years and he was a Doctor by profession and earning a sum of Rs.60,000/- per month. Hence the claimants, who are legal heirs of the deceased-Jayaraman, filed a claim petition in M.C.O.P.No.306 of 2003, on the file of the Motor Accident Claims Tribunal, Third Additional Subordinate Court, Tiruchirappalli, claiming a sum of Rs.60,00,000/- as compensation.
(iii) The claimant in M.C.O.P.No.242 of 2003 sustained grievous injuries all over the body. At the time of accident, the injured was aged about 35 years and he was a Pharmacist by profession and earning a sum of Rs.7,000/- per month. Hence the claimant filed a claim petition in M.C.O.P.No.242 of 2003, on the file of the Motor Accident Claims Tribunal, Third Additional Subordinate Court, Tiruchirappalli, claiming a sum of Rs.6,00,000/- as compensation.
3.The second respondent-United India Insurance Company in the claim petitions filed counter-affidavits and denied the allegations made in the claim petitions.
4.Before the Tribunal, on the side of the claimants, three witnesses viz., P.W.1 to P.W.3 were examined and twenty six documents viz., Exs.P.1 to P.26 were marked. On the side of the respondents, neither any witness was examined nor any document was marked, to prove their contentions.
5.The Tribunal, after considering the pleadings, oral and documentary evidence and arguments of the counsel appearing on either side and also appreciating the evidence available on record, held that the accident had occurred only due to the rash and negligent driving of the driver of the offending vehicle and directed the appellant/Insurance Company to pay a sum of Rs.32,64,895/- to the claimants and fourth respondent in M.C.O.P.No.306 of 2003 and a sum of Rs.4,17,126/- to the injured claimant in M.C.O.P.No.242 of 2003, as compensation.
6.Heard the learned counsels on either side and perused the records.
7.Now, it is to be seen that what are the ground raised by the appellant/United India Insurance Company in the light of the Judgment of the Tribunal.
8.In C.M.A(MD)No.907 of 2008, the learned counsel appearing for the appellant/United India Insurance Company submitted that adoption of '13' multiplier, assessed at by the Tribunal, is not correct and the income arrived at by the Tribunal is on the higher side and no tax was deducted and the Tribunal has not deducted one-third of the income for personal expenses and a sum of Rs.6,00,000/- awarded towards medical expenses is exorbitant and highly inflated.
9.In C.M.A(MD)No.908 of 2008, the learned counsel appearing for the appellant/United India Insurance Company submitted that the Tribunal has erred in assessing the disability at 60% and awarded a sum of Rs.90,000/- towards permanent disability and a sum of Rs.25,000/- awarded towards pain and sufferings is excessive and the medical bills have been inflated and awarding of Rs.30,000/- towards future medical expenses without any supporting evidence and awarding interest for the said sum of Rs.5,000/- for transportation and Rs.10,000/- for loss of income and awarding of interest is on the higher side and the same has to be rejected in toto.
10.This Court, after considering the pleadings, both oral and documentary evidence and the arguments of the counsel appearing on either side and also appreciating the evidence available on record, has held that the lorry driver was not examined as a witness and the brother of the deceased-one of the claimant/Srinivasan was examined as P.W.2. The appellant/Insurance Company has not produced any evidence for rebutting the said averments made in the claim petitions and no document was filed. On perusal of the F.I.R, it is seen that one Ramesh Kumar, who is the eye- witness, was examined and he sails with the claimants' case. On referring Ex.P.1 and Ex.P.2, it is found that Ramesh Kumar has driven the Car and Doctor-Jeyaraman was sitting next to him and all the persons, who travelled in the Car sustained injuries and had taken treatment.
11.In M.C.O.P.No.306 of 2003, it is seen that as per the evidence of P.W.1, the deceased-Jeyaraman was earning a sum of Rs.60,000/- per month and he was aged about 49 years and his Income Tax returns have been filed, which shows that he was earning a sum of Rs.2,00,000/- per year. The Tribunal has adopted multiplier '13' to calculate loss of dependency and arrived at Rs.26,00,000/-, a sum of Rs.10,000/- towards loss of consortium to the first claimant, a sum of Rs.10,000/- towards loss and affection, a sum of Rs.76,955/- under Ex.P.3-medical bills, a sum of Rs.45,550/- under Ex.P.5, a sum of Rs.4,48,395/- under Ex.P.4, a sum of Rs.3,000/- under Ex.P.6, a sum of Rs.21,910/- under Ex.P.7, a sum of Rs.44,085/- under Ex.P.8 and a sum of Rs.5,000/- for funeral expenses and awarded a total sum of Rs.32,64,895/- as compensation.
12.In M.C.O.P.No.242 of 2003, the claimant-Srinivasan, who travelled along with his brother had sustained grievous injuries in his legs and foot, which is evident from P.W.2 and Ex.P.24-photographs. He was admitted in hospital as an in-patient for 47 days, which is evident from Ex.P.14 and discharge summary also would reveal the surgeries underwent by the said claimant-Srinivasan and various measures by fixing rod and other procedures have been adopted to enable the person to come to the normal position, but inspite of all his efforts, there was disability caused due to the fractures and disability was fixed at 72% by the Doctor concerned The Doctor's evidence is that if he takes some physiotherapy treatment, disability may reduce from 2 to 3%, which is also accepted and the Tribunal has fixed the permanent disability at 60% and awarded a sum of Rs.90,000/- towards permanent disability, a sum of Rs.25,000/- towards pain and sufferings, a sum of Rs.39,025/- under Ex.P.22-medical bills, a sum of Rs.1,92,121/- under Ex.P.15-medical bills, a sum of Rs.6,400/- under Ex.P.17-medical bills, a sum of Rs.7,715/- under Ex.P.18, a sum of Rs.5,875/- under Ex.P.19, a sum of Rs.910/- under Ex.P.20, a sum of Rs.10,000/- towards of income, a sum of Rs.5,000/- towards transportation charges, a sum of Rs.30,000/- for removing the rod fixed and a sum of Rs.5,000/- towards extra nourishment and totally awarded a sum of Rs.4,17,126/- as compensation.
13.It is seen from the records that the Tribunal has gone into the issues in detail and found that the lorry driver was at mistake and he has driven the vehicle rashly and negligently and dashed against the car where the claimants husband and the brother of the claimant was travelling and the same was narrated and evidences were produced by the claimants and they were examined by the Tribunal which substantiate the averments made by the claimants.
14.Per contra, it is seen from the records that no witnesses were examined nor any documents were produced to rebut the evidence adduced by the claimants. As per the evidence given by the claimants, the Tribunal has rightly come to the conclusion that the accident had occurred only due to the negligent act on the part of the lorry driver and on perusing the documents produced by the claimants, regarding the claimant-Srinivasan, it is seen from the records that he had multiple injuries all over the body including fracture in right thigh, rod fixed on the right leg elbow, two knee fractures and rod fixed and he has taken treatment for 47 days in hospital and he was not able to his work as usual. The documents would speak about the ordeal underwent by the injured Srinivasan and we feel that the finding of the Tribunal that even though Doctor has assessed 72% disability and taking into account 2 to 3% of disability may be reduced, if he undergone physiotherapy treatment, the Tribunal has rightly fixed the disability at 60% and awarded compensation.
15.Further, it is seen from the records that in M.C.O.P.No.306 of 2003, the Doctor was running a clinic in the name and style of ?Krithika clinic? and in the hospital, he used to earn a sum of Rs.60,000/- per month and his income assessed and he sustained multiple injuries and due to which, he was admitted in KMC hospital and Appollo Hospital, Chennai, but unfortunately died due to injuries sustained on 29.12.2001.
16.The contention of the appellant/United India Insurance Company is that the income of the deceased, age and occupation are not correct and cannot be accepted and the treatment taken is being brushed aside and the deceased fallen thereon cannot be accepted and it was the medical bills and post mortem and discharge summary would speak about the injuries sustained by the deceased and due to which, the person died and also regarding the injuries sustained by Srinivasan also, the verbatim has been reproduced. The appellant/United India Insurance Company denied all the allegations, but did not produce any evidence in contra to substantiate their contentions.
17.We are of the considered view that the grounds vested in the Civil Miscellaneous Appeals filed by the appellant/Insurance Company cannot be sustained since there was no efforts taken by the appellant/United India Insurance Company to the contradictory of the evidence and the same are liable to be dismissed.
18.In view of the above findings, these Civil Miscellaneous Appeals are dismissed.
(i) In C.M.A(MD)No.907 of 2008, the appellant-United India Insurance Company is directed to deposit the entire award amount along with interest at the rate of 7.5% per annum from the date of claim petition till the date of realisation and also proportionate costs, if not deposited earlier, to the credit of M.C.O.P.No.306 of 2003, on the file of the Motor Accident Claims Tribunal, Third Additional Subordinate Court, Tiruchirappalli., within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the major claimants are permitted to withdraw their share in the award amount as per the ratio of apportionment made by the Tribunal by filing necessary application before the Tribunal. The share of the minor claimant-seventh respondent is directed to be deposited in any one of the nationalised bank, in fixed deposit, initially for a period of three years renewable thereafter till they attain majority. The sixth respondent, who is the mother and guardian of the minor claimant, is permitted to withdraw the accrued interest once in three months directly from the Bank and utilise the same for the welfare of the minor.
(ii) In C.M.A(MD)No.908 of 2008, the appellant-United India Insurance Company is directed to deposit the entire award amount along with interest at the rate of 7.5% per annum from the date of claim petition till the date of realisation and also proportionate costs, if not deposited earlier, to the credit of M.C.O.P.No.242 of 2003, on the file of the Motor Accident Claims Tribunal, Third Additional Subordinate Court, Tiruchirappalli, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant/injured is permitted to withdraw the entire award amount by filing necessary application before the Tribunal. No costs.
To
1.The Motor Accident Claims Tribunal, Third Additional Subordinate Court, Tiruchirappalli.
2.The Section Officer, V.R Section, Madurai Bench of Madras High Court, Madurai.
.