Madras High Court
Jaganathan vs Arun on 26 November, 2009
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.11.2009 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1283 of 2007 Jaganathan .. Appellant Vs 1.Arun 2.United India Insurance Co., Ltd., No.38, Mount Road, Chennai-600 002 .. Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Award and Decree, dated 18.12.2006, made in M.A.C.T.O.P.No.5451 of 1999, on the file of the IV Small Causes Court (Motor Accidents Claims Tribunal), Chennai. For appellant : Mr.N.Muthurajan For respondents : Mr.G.Kathirvelu J U D G M E N T
The above civil miscellaneous appeal has been filed by the appellant/claimant against the Award and Decree, dated 18.12.2006, made in M.A.C.T.O.P.No.5451 of 1999, on the file of the IV Small Causes Court (Motor Accidents Claims Tribunal), Chennai, awarding a compensation of Rs.1,21,500/- with 7.5% interest from 12.08.1999 till the date of deposit of the compensation.
2.Aggrieved by the said Order, the appellant/claimant has filed this appeal for enhancement of the compensation of Rs.7,00,000/-.
3.The short facts of the case are as follows:
The petitioner/Jagannathan, aged about 24 years is a delivery boy in Sansor Couriers, Chennai-6 and earning a monthly salary of Rs.1,500/- per month. On 30.07.1998, at about 5.15 P.M. when the petitioner was going by cycle from South to North on the Barnaby Road, Kilpauk, Chennai-10, on the extreme left side, a Kinetic Honda Scooter bearing registration No.KA 03 L 564, driven rashly and negligently by its rider dashed on the back of the left hand side of the petitioner's body. The petitioner fell down from the cycle and sustained injuries and the cycle was also damaged. He was taken to ESI Hospital at Ayanavaram, Chennai-23 and was given treatment, as inpatient for two months. Both bones in his left leg were fractured. Due to this, the petitioner is not able to walk and frequently gets pain in left leg and hence the petitioner is not able to go to work. As the accident has been caused by the rash and negligence driving of the driver/owner of the vehicle, the first respondent herein and as the said motorcycle has been insured with the second respondent, both the respondents on jointly and severally liable to pay the compensation to the petitioner. The petitioner has initially claimed Rs.51,000/- for injuries sustained but had claimed compensation of Rs.7,00,000/- under various heads from the respondents with interest and costs under Section 166 of the Motor Vehicles Act and Rule of M.A.C.T.Rules.
4.The G-3 Police Station, Kilpauk Traffic Investigation Wing has registered a criminal case in Crime No.11/P3/99 on the said accident.
5.The second respondent/United India Insurance Company Ltd., in its counter has resisted the claim denying the manner of the accident, injuries sustained by the petitioner, the petitioner's age, income and occupation. Further, the allegation in the claim that the petitioner had taken treatment in the hospital for two months was not admitted. It is submitted by the second respondent that on 30.07.1998 at 05.15 P.M. the rider of the Kinetic Honda bearing registration No.KA 03 L 564 rode the vehicle with moderate speed according to traffic rules and regulations and that it was the petitioner, who was riding the cycle on the road in a Zig Zag manner, without observing the oncoming traffic and without following any rules and regulations, who had dashed against the Kinetic Honda on his own accord and therefore, the petitioner himself was the root cause for the accident. Hence, it has been alleged that the accident took place due to the negligent act of the petitioner. Further, it was submitted that the compensation claimed in the petition was very high and had prayed for dismissal of the above petition with costs.
6.The first respondent remained absent, in spite of the notice sent to him and was set exparte.
7.The Motor Accident Claims Tribunal framed two issues for the consideration namely
(i) Who was responsible for the accident?
(ii) Is the petitioner entitled to get compensation and if so, what is the quantum of the compensation?
8.On the petitioner's side, two witnesses were examined and seven documents were marked as Exs.P1 to P7. On the respondent's side, no witnesses were examined and no documents were marked. Both the petitioner and the respondent had admitted that the alleged accident took place on 30.07.1998 at 05.15 P.M., on Barnaby Road, Chennai-10. It was also admitted by the both parties that the petitioner was riding his cycle and the first respondent was riding his Kinetic Honda bearing registration No.KA03 L 564 and that the said Kinetic Honda has been insured with the second respondent herein. The petitioner, on being examined as PW1 has deposed in his evidence that while he was riding his cycle on Barnaby Road, the first respondent had dashed his Kinetic Honda Motorcycle on the back of the petitioner and that it was only the rash and negligent driving of the first respondent, which had caused the accident. Further, on being cross-examined, he has not admitted that he travelled in the middle of the road. Further, the petitioner on being asked whether there was a yellow line on the road had answered in the negative. PW1 stated that the accident happened in front of the junction of three roads. Further, on being asked whether there was a traffic signal at the place of the accident, PW1 answered in the negative. Further, PW1 had refused the allegation that he had colluded with the Police in filing this claim case.
9.The second respondent herein it its counter had only alleged that the petitioner had ridden his cycle in a zig zag maner and caused the accident and it was not stated in the counter that the petitioner had colluded with the Police in framing this false claim petition. Though the accident had happened on 30.07.1998, the F.I.R. had been registered after a delay ie.only on 06.01.1999. On examination of Ex.P3, the F.I.R. it was established that the cause for the accident was only due to the rash and negligent riding of the motorcycle by the first respondent and that a criminal case has been registered against him. On examining P5, it is the rough sketch of the accident, it is evident that only the Kinetic Honda Motorcycle had dashed against the back of the petitioner. On scrutiny of the Ex.P1, the Discharge Summary, it is the clear that the petitioner had been admitted in the Hospital on the date of the accident itself ie. On 30.07.1998. But, in the above Ex.P1, it has not been mentioned that the petitioner was admitted for injuries sustained in the said accident. As there was no rebuttal oral or documentary evidence advanced from the respondents side and as the driver of the Kinetic Honda motorcycle, the first respondent has not been examined to prove that it was not his negligence that had caused the accident or that his vehicle was not involved in the said accident and as it was not proved by the second respondent that the petitioner had hoisted a false claim case, the Tribunal came to the conclusion, based on available evidence and documentary proof that the accident had been caused only by the rash and negligent riding by the rider ie.the first respondent.
10.Further, the respondents have not alleged or proved that the accident happened due to mechanical defects in the motorcycle. Though the second respondent had contended that the fact that the vehicle had been covered under valid Insurance Policy and that the rider of the motorcycle had a valid driving licence the time of the accident has to be proved by the petitioner only, the second respondent had not pointedly refused the same. The second respondent has also not proved that there has been any violation of the policy conditions. Hence, the Tribunal came to the conclusion that the first respondent had not breached any policy conditions or rules of Insurance Company and that he had a valid driving licence at the time of the accident.
11.The PW1 in his evidence had submitted that he had sustained injuries in the said accident. The respondents have also not rebutted this claim. Further, on scrutiny of the Exs.P1, P2, P3 and P4, it is evident that the petitioner had sustained injuries in the said accident. Therefore, the Tribunal decided that the compensation for the petitioner had to be paid by the first respondent and as the first respondent's vehicle had been insured with the second respondent, the second respondent was held liable to pay the compensation on behalf of the first respondent.
12.The PW1, in his evidence has submitted that in the accident, he has sustained fracture in two of his left leg Knee joint and other scratch injuries and that he was taken to ESI Hospital, wherein, he had taken treatment, as inpatient for 30 days (ie.from 30.07.1998 to 29.09.1998). In proof of this, Ex.P1, the Discharge Summary was shown. Subsequently, he had taken treatment as out patient for six months and to back this claim he had marked Ex.P2, the outpatient slips. After this, he had taken treatment at Puthur. In spite of this, PW1 has stated in his evidence that after the accident, he has not been able to bend his Knee and that he has pain, while walking, and that he is not able to ride a cycle and he has difficulty in sitting or squatting. PW2, Dr.Mathiazhagan in his evidence has submitted that two bones in the lower knee joint has been broken in the accident and that the petitioner was treated for setting the bones and that presently the bones have not joined properly and due to this, the petitioner's legs are bent and the movements in the lower left leg have reduced by 20 Degree. Further, it has been submitted that the petitioner will not be able to work in the Courier Company and that he has sustained a permanent disability of 45% and has marked, Ex.P4, Disability Certificate and Ex.P7, X-Ray in support of this. Though, from the first and second respondents side had alleged that only simple injuries were caused to the petitioner in the accident, they have not refuted the permanent disability sustained by the petitioner. Further, the PW2, the Doctor has stated in his evidence that there may be a difference of 5% from assessed disability.
13.Accordingly, taking into account of the nature of the injuries suffered by the petitioner in the said accident, and subsequent reduction in height of his leg, and also on scrutiny of the Ex.P1, the Discharge Summary, the Tribunal concluded that the permanent disability suffered by the petitioner in the accident is 40%. Though, the petitioner has stated that he was working in a Courier Company and was earning Rs.2,000/- per month, he has not furnished proof of occupation and income. The petitioner had contended that if he had worked as a Delivery Boy, he could have earned Rs.6,000/- per month and that because of the disability suffered by him in the accident, he was not able to ride a cycle and as a consequent, his earning ability has been reduced. The Tribunal, considering that the petitioner had been getting an income of Rs.1,500/- per month in the previous Courier Company and that due to the disability sustained by him, his earning capacity has been reduced and that during the three months when he was hospitalised, he had sustained a loss of income, calculated the compensation as under.
1.Loss of income incurred by the petitioner for three months during hospitalisation : Rs.4,500/-
2.For transport expenses to hospital : Rs.1,000/-
3.For nutrition, during hospitalisation : Rs.1,000/-
14.Though, the petitioner has claimed damaged to cloths and articles, as there was no oral or documentary evidence put into support of this claim, the Tribunal did not award any compensation for this. Further, as the petitioner had taken treatment in ESI Hospital and has not produced any evidence to prove that he had taken treatment in a private hospital, the Tribunal decided not to award any compensation for the medical expenses incurred by the petitioner. Though, the petitioner has submitted that he had incurred attendant charges during hospitalisation, as he had not mentioned who the attender was and how much expenses he had spent for attender, the Tribunal did not award any compensation for this also.
15.For pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. For loss of earning capacity and permanent disability, the Tribunal awarded a lump sum of Rs.1,00,000/- In total a sum of Rs.1,21,500/- was granted by the Tribunal as compensation and directed the second respondent to deposit the above award with 7.5% interest from the date of claim petition till the date of deposit, within two months as fixed deposit in a Nationalised Bank for a period of three years. The excess Court fee paid was ordered to be returned to the petitioner. The advocate fees was fixed as Rs.5,430/-.
16.The learned counsel appearing for the appellant has argued in his appeal that the appellant suffered very serious injuries in motor accident on 30.07.1998. He suffered compound and communitted fracture in both bones left leg. He was treated as inpatient at ESI Hospital, K.K.Nagar, Chennai-78 for 60 days ie.from 30.07.1998 to 29.09.1998. The learned Tribunal erroneously calculated the inpatient days at 30 days. Further, he continued to take treatment as out patient for seven months. Without considering these aspects, the learned Tribunal awarded only three months salary as loss of earning during the course of treatment.
17.Further, the appellant had claimed a sum of Rs.1,00,000/- for pain and suffering as he was under treatment as inpatient and outpatient for nine months. His left leg has been shortened by two inches. Further more, his left leg is deformed. The appellant was aged about 24 years at the time of the accident. However, the learned Trial Court had awarded only Rs.15,000/- under than head. Taking into consideration, the prolonged treatment, the Tribunal should have awarded the compensation as prayed for under that head.
18.Further, the Tribunal erred in clubbing compensation under the heads of permanent disability and loss of earning power and awarding only a compensation of Rs.1,00,000/- when the petitioner had claimed a compensation of Rs.2,00,000/- for permanent disability and Rs.1,90,500/- for loss of earning power. Further, the loss of earning power has been given as a lump sum by the Tribunal, when it should have calculated the loss of earning power under multiplier theory.
19.Further, the appellant is in a state of mental agony as his left leg has been shortened by two inches and it is bent. The appellant specifically made a claim of Rs.1,00,000/- under that head. However, the Tribunal has erred in not even considering that head. Further, the rate of interest fixed by the Tribunal at 7.5% is not correct and higher rate of interest ought to have been fixed.
20.Hence, the learned counsel appearing for the appellant had prayed for enhancement of the compensation from Rs.1,21,500/- awarded by the Tribunal to Rs.7,00,000/-. The learned counsel appearing for the respondents argued that there is no error in the award passed by the Tribunal. The Motor Accident Claims Tribunal, after well considering the oral evidence and documentary evidence had passed the award, which is fair and reasonable. The claimant had not established that he was a delivery boy in Sansor Couriers and earning a sum of Rs.2,000/- per month as salary. Further, the learned counsel submitted that the claimant himself had admitted that he was in the hospital for one month as inpatient. But, he had claimed loss of income for three months. Even then, the Tribunal had awarded Rs.4,500/- for loss of earnings. So, the award is a well considered one. As such, the appeal is not maintainable for enhancement of compensation.
21.For the foregoing reasons and on consideration of the facts and circumstances of the case and after hearing of the arguments of the learned counsels of the respective parties and award of the Tribunal, this Court is of the view that the claimant was admitted at the ESI Hospital, as inpatient from 30.07.1998 to 29.09.1998. This was not disputed. To prove the nature of injuries and mode of treatment, one Dr.Mathiazhagan was examined as PW2. In his evidence, he had stated that two bones in the region below his left leg knee had been fractured and even after it was set had joined improperly and so the petitioner's left leg has been deformed. The petitioner's left leg had also been shortened by two inches and is in a bent shape. Considering the nature of this injury, this Court is of the opinion that there is no scope for future improvement in the leg and for getting the normal strength, which he used to have before the accident. As such, this injury would always be a source of distress to the petitioner throughout his life.
22.So, this Court decides to enhance the compensation as follows:
(i)The Tribunal awarded Rs.4,500/- for loss of income for three months. This is being enhanced by this Court to Rs.6,000/-.
(ii)For transport, the Tribunal awarded a sum of Rs.1,000/- and this Court enhances the award under this head to Rs.6,000/-.
(iii)For extra nourishment, the Tribunal has awarded Rs.1,000/-, but this Court awards Rs.6,000/- towards the same.
(iv)For damage to clothes, the Tribunal has not awarded any compensation. But, this Court awards a compensation of Rs.500/-
(v)For compensation for attendants, the Tribunal had not given any award. But, this Court awards a sum of Rs.6,000/-.
(vi)For pain and suffering, the Tribunal had awarded Rs.15,000/-. This awards a sum of Rs.40,000/- under this head.
23.The Tribunal's award amount of Rs.1,00,000/- granted towards permanent disability to the petitioner is correct. Loss of earnings due to the permanent disability and loss of future earnings have been clubbed by the Tribunal under one head and this Court confirms the same.
24.In total, the claimant is entitled to get an enhanced compensation of Rs.1,64,500/-. Hence, this Court awards an additional compensation of Rs.43,000/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment, which is equitable and fact. This amount is payable by the second respondent/Insurance Company.
25.This Court directs the second respondent / Insurance Company to deposit the additional compensation amount of Rs.43,000/- with interest as mentioned above within a period of six weeks from the date of receipt of this Order.
26.It is open to the appellant/claimant to receive the balance amount, after such deposit has been made by the second respondent to the credit of M.C.O.P.No.5451 of 1999, on the file of the Motor Accident Claims Tribunal, IV Small Causes Court, Chennai, by filing necessary payment out application in accordance with law.
27.In the result, the civil miscellaneous appeal is partly allowed in the above terms and consequently the award passed by the Motor Accident Claims Tribunal, IV Small Causes Court, Chennai in M.C.O.P.No.5451 of 1999 is modified. No costs.
26.11.2009 Index: Yes/No Internet: Yes/No krk To
1.IV Small Causes Court (Motor Accidents Claims Tribunal), Chennai.
2. The Section Officer, VR Section, High Court, Madras.
C.S.KARNAN, J.
krk Pre-deliver Order in C.M.A.No.1283 of 2007 26.11.2009