Madras High Court
The Oriental Insurance Company Ltd vs Nallathai Ammal ...1St on 12 December, 2008
Author: P.Murgesen
Bench: P.Murgesen
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 12/12/2008 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN C.M.A.(MD)No.1695 of 2008 and M.P.(MD) No.2 of 2008 The Oriental Insurance Company Ltd., Rep. by its Divisional Manager, S.N.High Road, Tirunelveli-627 001. ... Appellant/ 2nd Respondent Vs 1.Nallathai Ammal ...1st Respondent/ Petitioner 2.Veni Bus Company, Rep.by its Proprietor, No.30, Ameer Square Building, Kailasapuram North Street, Tirunelveli-627 001. ... 2nd Respondent/1st Petitioner Prayer Appeal filed under Section 173 of the Motor Vehicles Act 1988, against the judgment and decree dated 01.02.2008, passed in M.C.O.P.No.608 of 2005 by the Motor Accident Claims Tribunal (Fast Track Court No.II), Tirunelveli. !For Appellant ... Mr.P.Ramani ^For 1st Respondent ... Mr.T.Selvakumaran For 2nd Respondent ... Exparte before Tribunal * * * * * :JUDGMENT
This Civil Miscellaneous Appeal is directed against the judgment and decree dated 01.02.2008, passed in M.C.O.P.No.608 of 2005 by the Motor Accident Claims Tribunal (Fast Track Court No.II), Tirunelveli.
2. The appellant is the second respondent, the first respondent is the petitioner and the second respondent is the 1st respondent, before the Tribunal.
3. The brief case of the claimant in the petition is as follows:
On the fateful day i.e. on 30.05.2002 at about 8.30 A.M., the petitioner was travelling in the first respondent's share auto bearing Registration No.TN-72-H- 6378 as a passenger from Thatchanallur to Thirunelveli Junction. When the said auto was reaching near Vanavil Marriage Hall, the same was driven by its driver in a rash and negligent manner due to which the said auto was capsized. Due to that impact, he fell down and sustained injuries, which resulted in permanent disability. A criminal case was registered by the Thatchanallur police against the driver of the first respondent under Sections 279 and 338 of I.P.C. in Crime No.112 of 2002. At the time of the accident the petitioner was working as a collie and was earning a sum of Rs.2,000/- per month. Due to the accident he lost his income. So, he filed this petition claiming a compensation of Rs.2,00,000/- before the Tribunal.
5. The 2nd respondent insurance company before the tribunal filed counter wherein it was contended that the accident occurred only due to the over load of passengers in the share auto, hence, this respondent is not liable to pay any compensation to the petitioner; the petitioner has to prove his age, nature of injuries, medical expenses etc.; the claim of Rs.2,00,000/- is highly excessive and is without any basis and hence, the petition is liable to be dismissed.
6. Before the Tribunal, on the side of the claimant, P.W.1 and P.W.2 were examined and Exs.P.1 to Exs.P.8 were marked and on the side of the respondent R.W.1 was examined and Exs.R1 and R2 were marked.
7. On consideration of the evidence on both sides, the Tribunal fixed the compensation at Rs.1,20,000/- (Rupees One Lakh and Twenty Thousand only) with interest at 7.5% p.a. from the date of petition till the date of deposit under the following heads:
1)For 45% Disability and loss of income :Rs. 90,000.00
2)Nourishment and Transport Expenses :Rs. 10,000.00
3)Medical Expenses :Rs. 10,000.00
4)Pain & Suffering :Rs. 10,000.00 =============== Total :Rs.1,20,000.00 ===============
8. Challenging the said award passed by the Tribunal, this appeal has been filed. At the outset the learned counsel for the appellant fairly conceded that he is not disputing the rash and negligence of the driver of the 2nd respondent herein and he is disputing only the quantum. So, the rash and negligence of the driver of the 2nd respondent is confirmed. Now, we have to consider only about the quantum of compensation awarded by the Tribunal.
9. The point for determination in this appeal is:
(i) What is the just compensation?
10. Point : The Tribunal awarded a sum of Rs.90,000/- (Rupees Ninety Thousand only) towards permanent disability and loss of income, Rs.10,000/- towards pain and sufferings, Rs.10,000/- towards medical expenses and Rs.10,000/- towards transport expenses and extra nourishment. P.W.2 Dr.Ramaguru examined the petitioner and found that the petitioner sustained 45% permanent disability. He deposed that the petitioner sustained fracture in his left Alna. Considering the 45% permanent disability sustained by the claimant, it is just and proper to award a sum of Rs.45,000/- (Rupees Forty Five Thousand only) towards permanent disability. Regarding loss of income another sum of Rs.45,000/- was awarded by the Tribunal. This was disputed by both the parties. The learned counsel for the appellant submitted that the victim was aged 68 years at the time of accident, so awarding a sum of Rs.45,000/- towards loss of income is excessive. The learned counsel for the 1st respondent submitted that it cannot be held that 68 years old agricultural coolie worker could not work. The doctor has not stated that due to the permanent disability, she is unfit to work. So far as the village people are concerned they will work till they are unable to move. Considering the nature of the fracture sustained by the petitioner and the age of the petitioner a sum of Rs.30,000/- (Rupees Thirty Thousand only) is awarded towards loss of income. The tribunal also awarded a sum of Rs.10,000/- towards pain and sufferings, Rs.10,000/- towards medical expenses, Rs.10,000/- towards transport expenses and extra nourishment, which are not excessive, hence, they are confirmed. Accordingly, the compensation fixed by the Tribunal is reassessed as under:
1)For Permanent Disability :Rs. 45,000.00
2)Nourishment and Transport Expenses :Rs. 10,000.00
3)Medical Expenses :Rs. 10,000.00
4)Pain & Suffering :Rs. 10,000.00
5)For Loss of Income :Rs. 30,000.00 =============== Total :Rs.1,05,000.00 ===============
11. In the result, the Civil Miscellaneous Appeal is partly allowed the total compensation awarded by the Tribunal is reduced from Rs.1,20,000/- (Rupees One Lakh and Twenty Thousand only) to Rs.1,05,000/- (Rupees One Lakh and Five Thousand only). In other aspects the award of the Tribunal is sustained. No costs. Consequently, connected M.P.(MD)No.2 of 2008 is closed.
sj To:
The Motor Accident Claims Tribunal, (Fast Track Court No.II), Tirunelveli.