Madras High Court
The Branch Manager vs C.Pravin Kumar on 11 June, 2019
Equivalent citations: AIRONLINE 2019 MAD 234
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
[RESERVED ON : 11.02.2019]
[PRONOUNCED ON : 11.06.2019]
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
C.M.A.No.827 of 2011
and
M.P.No.1 of 2011
The Branch Manager,
M/s. National Insurance Co. Ltd.,
Ooty Branch,
Ooty. ... Appellant
.. Vs ..
1. C.Pravin Kumar
2. S.Venkateswaran ... Respondents
PRAYER: Appeal is filed under Section 173 of the Motor Vehicles Act,
1988 against the Judgment and Decree dated 16.08.2010 made in
M.C.O.P.No.875 of 2006 on the file of the Motor Accidents Claims
Tribunal-cum-Principal Subordinate Court, Thirupur.
For Appellant : Mr.S.Vadivel
For R-1 : Mr.Pa.P.Thangavel
For R-2 : Not ready in notice
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http://www.judis.nic.in
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JUDGMENT
The Insurance Company is the appellant herein.
2. The first respondent herein/claimant has filed a claim petition in M.C.O.P.No.875 of 2006 before the Motor Accidents Claims Tribunal-cum-Principal Subordinate Court, Thirupur, alleging that on 20.03.2005 at 10.45 a.m., he was leaving from his company and he was going to see his friend and he proceeding his vehicle viz., TVS 50 Motor Cycle bearing Registration No.TN-45-J-4621 on the Palladam to Tirupur main road from North to South on the left side of the said road nearing the Tamil Nadu Theater in the above said road and at that time, a lorry bearing Registration No.TSC 2777 was driven by one M.Subramani, in a rash and negligent manner and dashed the backside of the claimant. As a result of which, the claimant was thrown out from the vehicle and he sustained grievous injuries and fracture to his right leg, injury to right hand, blood injuries to his right elbow and also blood injury to all over the body. The driver of the Ashok Leyland lorry has been charged for the offences under Sections 279 and 337 of IPC by the Tirupur Rural police station in Crime No.345 of 2005. The http://www.judis.nic.in 3 first respondent before the Tribunal is the owner and the second respondent is the insurer of the Ashok Leyland lorry bearing Registration No.TSC 2777. Therefore, the respondents 1 and 2 before the Tribunal are jointly, severally and vicariously liable to pay compensation of Rs.5,00,000/- to the claimant.
3. The appellant herein/insurance company has filed a counter statement before the Tribunal disputing the rash and negligent driving on the part of the offending vehicle and also the quantum of compensation.
4. Before the Tribunal, the injured examined himself as P.W.1, Dr.Senthilkumar, who had issued the disability certificate was examined as P.W.2 and one Mr.Ayyappan, who is the Manager of Eswari Creation was examined as P.W.3 and documents Exs.P.1 to P.10 were marked on the side of the claimant. No witness was examined and no document was marked on the side of the respondents before the Tribunal.
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5. The Tribunal, after considering both oral and documentary evidence adduced on behalf of the claimant, has come to the conclusion that the accident has taken place due to the rash and negligent driving of the driver of the offending lorry and accordingly, held that both the owner of the lorry and the insurance company are jointly and severally liable to pay compensation to the claimant and on re-appreciation of the evidence, the same is hereby confirmed. On the point of quantum, both the parties were heard.
6. Learned counsel appearing for the appellant/insurance company would contend that the Tribunal ought not to have applied multiplier method and ought not to have fixed the notional income of the claimant as Rs.3,500/- per month. It is further contended that no surgery was conducted on the claimant and he has taken treatment only for a period of 6 days and the appellant has taken it as a specific ground No.4 in the memorandum of grounds of appeal.
7. Learned counsel appearing for the first respondent/claimant would contend that the submission made by the insurance company http://www.judis.nic.in 5 that no surgery was conducted on the claimant as per ground No.4 of the memorandum of grounds of appeal is factually not correct and he relied upon the documents filed before the Tribunal.
8. After going through the document Ex.P.6-Medical Report issued by Sri Kumaran hospital, it is seen that the injured was 20 years old at the time of the accident and he was admitted in the hospital on 20.03.2005 and discharged on 26.03.2006 and at the time of the admission, local examination was held as follows:-
" (R) HAND :
Lacerated of uina 10 x 5 cm (+) in 1st web space deformity of finger (+).
Movements painful/restricted. No distal NVD.
(R) ELBOW :
Swelling (+). Abrasion (+) in (R) elbow. Movements painful restricted.
(R) LEG :
Laceration lateral aspect (R) leg 5 x 3 cm tendon cut? peroneal Deformity (+). Abnormal mobility (+). Movements of knee / ankle painful / restricted. No distal NVD."
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9. During the period of treatment, surgery notes under spinal anesthesia and tibial nailing done. In Ex.P.6, Course in hospital is mentioned as follows:-
"COURSE IN HOSPITAL : This 20 years young gentleman was admitted with alleged history of RTA and following complaints of pain in (R) leg, (R) hand and elbow. X-ray shows tibia M/3rd of the (R) leg. Patient underwent tibial nailing."
10. P.W.2-Dr.Senthilkumar, who had examined the injured, has categorically stated in his evidence as follows:-
"mtUf;F tyJ fhypy; ogPah vYk;g[
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cs;s';ifapy; bgUtpuy; K:l;L tpyfpa[k;. tyJ
bgUtpuy; gFjp rijfs; ghjpf;fg;gl;L
,Ue;Js;sJ/ mjw;F rpfpr;ir
mspf;fg;gl;Ls;sJ/ mthpd; tyJ fhy; gFjpapy; mWit rpfpr;ir jGk;g[ fhzg;gLfpwJ/ tyJ fhy; cauk; (38 br/kP) ,lJ fhy; cauj;ij (39 br/kP) tpl 1 br/kP/ Fiwthf cs;sJ/ tyJ fhy; Ez;fjph; glj;jpy; ogpah vYk;g[ ,aw;ifahd mikg;g[ khwp cs;sJ/ gpoyh khwp http://www.judis.nic.in 7 Toa[ss ; J/ tyJ fhypYs;s mirt[j;jd;ik Fiwt[f;F 9% CdKk; epiyg;g[j;jd;ik Fiwt[f;F 20% CdKk; Tl;L ghh;Kyhgo 27% CdKk;. mtUf;F ,lJ ifapy; cs;s mirt[ kw;Wk; rf;jp Fiwt[f;F 13% CdKk;;. nfh Mh;ondl; bray; ,Hg;gpw;F 13% CdKk;. Tl;L ghh;Kyhggo 24.12% CdKk;/ ,lJ if. tyJ fhYf;F nrh;jJ ; Tl;L ghh;Kyhg;go 43.8% CdKk; bkhj;jkhf kDjhuUf;F Vw;gl;Ls;s gFjp epue;ju Cdk; 43.8% vd;W rhd;wspf;fpd;nwd;/ kDjhuUf;F epue;ju Cdr;rhd;W (k/rh/8) kw;Wk; ehd; vLj;j Ez;fjph; glk; (k/rh/9) Mfpwtw;iw jhf;fy; bra;fpnwd;/"
11. As could be seen from the oral and documentary evidence adduced before the Tribunal, this Court finds that the injured/claimant underwent surgery and at the initial point of time, he was inpatient for seven days and there were injuries and there was a compound fracture of tibia and also on the right leg, right hand and elbow.
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12. Taking into consideration the entirety of circumstances and also the answer elicited in the cross examination of medical witness P.W.2, the Tribunal has rightly come to the conclusion that due to the injuries sustained by the claimant, his tibia bone was malunited and to do the regular work as before the accident is not possible and accordingly, fixed the permanent disability at 35%. However, after going through the evidence of P.W.2-Doctor and also the permanent disability, I find that the disability suffered by the claimant is reduced to 30% and as the disability is consisting of the nature of avocation, nature of the injury and the age of the claimant being 20 years, multiplier method adopted by the Tribunal is proper. However, the assessment of pecuniary loss is re-assessed at Rs.3,500/- x 12 x 18 x 30/100 = Rs.2,26,800/-.
13. The Tribunal has awarded a sum of Rs.15,000/- to the claimant under the head of pain and sufferings and this Court is of the view that it is just and necessary to award a sum of Rs.20,000/- under the said head. Under the head of extra nourishment, the Tribunal has awarded a sum of Rs.2,000/- and the same is enhanced to http://www.judis.nic.in 9 Rs.10,000/-. The Tribunal has awarded a sum of Rs.1,000/- towards transportation charges and the same is enhanced to Rs.5,000/-. Under the head of loss of amenitites, the Tribunal has awarded a sum of Rs.5,000/- and the same is enhanced to Rs.10,000/- under the said head. The Tribunal has awarded a sum of Rs.51,500/- towards medical expenses and the same is confirmed. In all, the first respondent herein/claimant is entitled to a sum of Rs.3,23,300/- as total compensation.
14. Accordingly, the award of the Tribunal stands reduced as follows:-
Sl. Head Amount Amount
No. awarded by granted by
the Tribunal this Court
1. Loss of income Rs. 2,57,040/- Rs. 2,26,800/-
2. Pain and Sufferings Rs. 15,000/- Rs. 20,000/-
3. Extra Nourishment Rs. 2,000/- Rs. 10,000/-
4. Transportation charges Rs. 1,000/- Rs. 5,000/-
5. Loss of amenitites Rs. 5,000/- Rs. 10,000/-
6. Medical expenses Rs. 51,500/- Rs. 51,500/-
Total Rs. 3,31,540/- Rs. 3,23,300/-
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15. In the result,
I. This Civil Miscellaneous Appeal is partly allowed reducing the compensation from Rs.3,31,540/- to Rs.3,23,300/-.
II. The interest granted by the Tribunal at 7.5% stands confirmed.
III. The appellant-Insurance Company is directed to deposit the modified amount within a period of eight weeks from the date of receipt of a copy of this judgment, less the amount already deposited, if any. IV. On such deposit being made, the first respondent herein/claimant is permitted to withdraw the modified award amount along with interest and costs, less the amount already withdrawn, if any. V. As this Court has reduced the compensation amount from Rs.3,31,540/- to Rs.3,23,300/-, the appellant/insurance company is permitted to withdraw the excess amount, lying in the credit of M.C.O.P.No.875 of 2006.
http://www.judis.nic.in 11 VI. No order as to costs. The connected miscellaneous petition is closed.
11.06.2019
Index : Yes / No
Internet : Yes
Jrl
To
1. The Principal Subordinate Judge,
Motor Accidents Claims Tribunal,
Thirupur.
2. The Section Officer,
V.R. Section, High Court,
Madras.
http://www.judis.nic.in
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RMT.TEEKAA RAMAN, J.
JRL
Judgment
in C.M.A.No.827 of 2011
11.06.2019
http://www.judis.nic.in