Madras High Court
N.K.Ponnaian vs Kannagi on 6 July, 2011
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 06 / 07 /2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.2894 of 2010 & M.P.No.1 of 2011 N.K.Ponnaian ... Appellant Versus 1.Kannagi 2.Shamugha Sundaram 3.United India Insurance Company Limited, A.R.Complex, 2nd Floor, No.1090, Poonamallee High Road, Chennai 600 084. ... Respondents Prayer: The above appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decree made in M.C.O.P.No.3519 of 2006, dated 27.03.2010 on the file of Motor Accidents Claims Tribunal, V Judge of Small Causes Court, Chennai. For Appellant : Mr.M.S.Subramaniam For Respondents : Mr.D.Bhaskaran (R-3) - - - J U D G M E N T
The above appeal has been filed by the appellant / claimant against the award and decree made in M.C.O.P.No.3519 of 2006, dated 27.03.2010 on the file of Motor Accidents Claims Tribunal, V Judge of Small Causes Court, Chennai.
2.The short facts of the case are as follows:-
On 21.02.2005, at 3.00 p.m., when the petitioner was proceeding on his motorcycle bearing Registration No.TN20-T-0183, with his father as pillion rider, from Pattumadaiyur Kuppam to Vanagaram near the old Collector's office in Tiruvallur, the tata sumo bearing Registration No.TN31-B-9300, which was driven by its driver in a rash and negligent manner, dashed against the petitioner's vehicle. The petitioner was thrown out and sustained multiple fractures in the right leg, injuries on the head and face. He was initially admitted in Government Hospital, Tiruvallur and subsequently received treatment at Sundaram Clinic, Poonamalle and Soundarapandian Bone and Joint Clinic. During treatment his leg was amputated and grafting was done on the left leg. He is not able to attend work. Hence, the petitioner has claimed a compensation of Rs.20,00,000/- from the respondents. The first respondent is the owner, the second respondent is the driver and the third respondent is the insurer of the Tata sumo vehicle bearing Registration No.TN31-B-9300.
3.The third respondent, United India Insurance Company Limited in his counter has denied the averments in the claim regarding age, income and occupation of the petitioner as well as the place, date and time of accident, nature of injuries sustained and permanent disability sustained by the petitioner. It was stated that the petitioner has to prove that the said Tata sumo was insured with them at the time of accident. It was also stated that the claim was excessive.
4.On the averments of both parties, the Tribunal had framed four issues for consideration, namely;
(i)Whether the accident had happened due to the rash and negligent driving of the driver of the tata sumo bearing Registration No.TN31-B-9300?
(ii)Whether the respondents are liable to pay the compensation?
(iii)Whether the petitioner is entitled for compensation? If so, what is the quantum of compensation he is entitled to get?
(iv)To what relief is the petitioner entitled to get?
5.On behalf of the petitioner, three witnesses were examined and Exs.P1 to P6 were marked. On the respondents side, no witness, no document.
6.PW3, the eyewitness and father of the injured petitioner had adduced evidence that the petitioner was proceeding on his motorcycle bearing Registration No.TN20-T-0183 from Pattumadaiyur Kuppam to Vanaggaram, he was coming behind him in another vehicle driven by Hari Krishnan and when the petitioner's vehicle was near old Collector's Office, in Tiruvallur, the Tata Sumo bearing Registration No.TN31-B-9300, driven by its driver in a rash and negligent manner and coming in the opposite direction, had overtaken a container lorry and went to the wrong side of the road and dashed against the petitioner's vehicle.
7.PW1 had also adduced evidence which was in consonance with the averments made in the claim regarding manner of accident. In support of his claim, he had marked Ex.P4, First Information Report. No contra evidence had been let in on the respondents' side to disprove the contentions of the petitioner. As such, the Tribunal after scrutiny of Ex.P4 and oral evidence of PW1 and PW3 held that the accident had been caused by the rash and negligent driving of the driver of the tata sumo bearing Registration No.TN31-B-9300. As the first respondent's vehicle had been covered with a valid policy of insurance with the third respondent, the Tribunal held the third respondent liable to pay compensation and dismissed the claim as against the second respondent.
8.According to the petitioner, he has suffered fracture of right leg, knee and thigh, nose and head (7 places) in the said accident. Ex.P1 is the O.P. Chit issued by Government Head Quarters Hospital, Tiruvallur. Ex.P2 is the Accident Register. Ex.P3 is the medical record issued by Sundar Hospital, Chennai. Ex.P5 Discharge summary issued by Soundarapandiyan Bone and Joint Hospital and Research Institute Pvt.Ltd., Chennai shows that the petitioner has suffered laceration over the inferior aspect of the mandible in the mid line, left lateral aspect of the forehead, laceration over the right parietal region of the scalp and Grade III fracture of shaft of femur right with segmental bone loss, fracture of patella right and grade II fracture shaft of tibia right and was treated as inpatient from 21.02.2005 to 01.04.2005. He had undergone surgery on 22.02.2005 and wound debridement and external fixation of right tibia and external fixation of right femur, tension and wiring right patella was done. On 17.03.2005 again he had undergone surgery for segmental loss of femur right and LCP plate fixation and vascularised fibular graft with illiac crest bone graft right femur and SSG to raw area right tibia was done. Ex.P6 is the Doctor's Certificate. Exs.P1 to P3, P5 and P6 proves that the petitioner had sustained grievous injuries in the said accident and therefore the petitioner is entitled to receive compensation for the same.
9.PW2, the doctor who had examined the petitioner adduced evidence that the disability sustained by the petitioner is partial permanent and assessed the disability as 65%. But the Tribunal, on considering that the assessment of disability was on the higher side, held that the disability could be taken as 60% only. Based on the oral and documentary evidence, the Tribunal awarded a compensation of Rs.6,06,100/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of deposit. The breakup of compensation is as follows:-
Loss of earnings for a period of 10 months i.e., medical treatment and convalescent period .. Rs.45,000/-
(taking into consideration that the notional income of petitioner was Rs.4,500/- per month) For medical expenses .. Rs.3,21,100/- For pain and suffering .. Rs.60,000/- For disability of 60% (Rs.2000 per 1%) .. Rs.1,20,000/- For loss of earning power .. RS.60,000/-
The Tribunal directed the third respondent to deposit the award with interest within two months from the date of its order.
10.Not being satisfied with the said award passed by the Tribunal, the appellant / petitioner has filed the present appeal to grant additional compensation of Rs.13,93,900/-.
11.The learned counsel for the appellant / claimant has argued in his appeal that the Tribunal had ignored Ex.P10 and has arbitrarily fixed the income of petitioner at Rs.4,500/- per month. The Tribunal had awarded only a sum of Rs.60,000/- as compensation for loss of earning power without properly taking into consideration that the appellant disability was 65% and that the nature of his job involves working in the lathe and that he has been invalidated from working on the lathe machine. As such, it was prayed that additional compensation of Rs.13,93,900/- should be awarded to the appellant. The learned counsel for the claimant further argued that the claimant's right thigh bone had been broken into pieces for which surgical operation was conducted and bone grafting was also conducted. The medical expenses alone comes to a sum of Rs.4,50,000/-. But, the Tribunal had awarded only a sum of RS.3,21,100/-. The claimant's right leg was shortened by 1. He walks only with the support of a stick. A second operation is required to remove the steel plate from the operated area.
12.In view of the facts and circumstances of the case and arguments advanced by the learned counsel for the claimant and on perusing the impugned award of the Tribunal, this Court is of the considered opinion that the medical expenses alone amounts to a sum of Rs.3,21,100/-. After deducting this amount, the balance compensation awarded is only a sum of RS.2,85,000/-, which is not adequate to the claimant, as his age is 26 years and he is an unmarried young man and earning member; his right thigh bone has been broken into pieces, for which a surgical operation was conducted and bone grafting had also been conducted and the disability sustained by him was 65%. Hence, this Court grants an additional compensation of a sum of Rs.75,000/- under the head of 'loss of amenities and comfort' as his leg has been shortened by 1 and as he has suffered loss of comfort and also his marriage prospects has been reduced, as it is found to be fair and justifiable in the instant case. This additional amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. Therefore, this Court directs the United India Insurance Company Limited to comply with this Court order within a period of six weeks from the date of receipt of a copy of this order. After compliance, it is open to the claimant to withdraw the additional compensation amount lying in the credit of M.C.O.P.No.3519 of 2006, on the file of Motor Accidents Claims Tribunal, V Judge of Small Causes Court, Chennai, after filing a Memo along with this order.
13.Resultantly, the above Civil Miscellaneous Appeal is partly allowed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal in M.C.O.P.No.3519 of 2006, dated 27.03.2010 on the file of Motor Vehicles Accidents Claims Tribunal, V Judge of Small Causes Court, Chennai is modified. There is no order as to costs. Consequently, connected miscellaneous petition is closed.
r n s To The V Judge of Small Causes Court, Motor Accidents Claims Tribunal, Chennai