BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22/10/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A(MD).No.1136 of 2007 and M.P(MD)No.1 of 2007 and Caveat No.773 of 2006 The Branch Manager, United India Insurance Co. Ltd., 254, Goods Shed Street, Madurai-1. ... Appellant Vs 1.Sivamani 2.Subbiah ... Respondents Prayer Appeal filed under Section 173 of the Motor Vehicles Act, to set aside the award passed in M.A.C.O.P.No.163 of 2004 dated 21.10.2005 by the Motor Accident Claims Tribunal (Fast Track Court), Dindigul. !For Appellant ... Mr.S.Natarajan ^For Respondent ... Mr.A.Saravanan for R.1 No representation for R.2 :JUDGMENT
The unsuccessful second respondent, the United Insurance Company Limited
appeals.
2. This Civil Miscellaneous Appeal is focussed to get set aside the award
passed in M.A.C.O.P.No.163 of 2004 dated 21.10.2005 by the Motor Accident Claims
Tribunal (Fast Track Court), Dindigul.
3. At the stage of admission itself, after hearing both sides, this appeal
is being disposed of by the following order.
4. The facts giving rise to the filing of this Civil Miscellaneous Appeal
would run thus:
The United India Insurance Co. Ltd., is the appellant herein, who filed
the appeal being aggrieved by the judgment of the Motor Accident Claims Tribunal
(Fast Track Court), Dindigul, in awarding compensation to the tune of
Rs.1,05,858/- (Rupees One Lakh Five Thousand Eight Hundred and Fifty Eight only)
under the following sub-heads:
(i) For Pain and Sufferings – Rs.10,000.00
(ii) For Medicines as per Ex.P.4 – Rs.15,477.00
(iii) For Medicines as per Ex.P.5 – Rs. 2,781.00
(iv) For Permanent Disability – Rs.57,600.00
(v) For Transport Charges – Rs. 2,000.00
(vi)For Nutritious Food – Rs. 4,000.00
(vii)For Loss of Incomes – Rs. 9,000.00
(viii) For Future Medical Treatment – Rs. 5,000.00
————–
Rs.1,05,858.00
————–
5. The grounds of appeal inter alia would run thus:
(i) The accident occurred due to the fault of the injured and not due to
the driver of the vehicle belonged to first respondent in M.C.O.P, the owner of
the taxi.
(ii) The compensation was not quantified in accordance with the dicta laid
down by the Honourable Apex Court.
(iii) The Tribunal simply assumed that the injured was earning a sum of
Rs.3,000/-.
(iv) Accordingly, the appellant prayed for setting aside the award of
compensation.
6. Per contra, the learned Counsel for the claimant/first respondent
herein, would contend that the amount awarded is very moderate and in fact, if
strict standards are applied, he would be entitled to more compensation also as
he sustained grievous injuries and plate was fixed in his fractured part of the
leg.
7. The points for determination in this appeal are:
(i) Whether the accident occurred due to the rash and negligent act of the
driver of the first respondent in M.C.O.P or due to the rash and negligent act
of the injured claimant?
(ii) Whether the compensation is on the higher side?
Point No:(i)
8. The quint-essence of the case of the claimant is that while he was
driving his two wheeler along the Dindigul-Trichy main road from south to north,
the taxi belonging to the first respondent came in a rash and negligent manner
and took a turn and dashed as against the claimant and thereby caused grievous
injury to him. Relating to the fracture of the left leg sustained by the
claimant, he took treatment in the hospital between 21.12.2003 and 04.01.2004.
9. The police also registered a case. The grievance of the appellant
Insurance Company is that the trial Court without appreciating the evidence,
simply fixed the responsibility on the driver of the taxi.
10. Perused the order of the Tribunal which relied upon the deposition of
the injured himself who drove the two wheeler at the time of the accident and
placed reliance on the fact that the driver of the taxi was not examined so as
to torpedo the evidence of the injured and accordingly awarded the compensation.
Such an approach appears to be correct for the reason that if at all, the
Insurance Company had any challenge relating to the fixation of responsibility
on the driver of the taxi, he ought to have taken steps to get the injured
summoned and examined before the Court. Without even raising its little finger
in taking such steps before the Tribunal, the Insurance Company at the appellate
stage, is not justified in finding fault with the finding given by the Tribunal.
It is a trite proposition of law that in matters of awarding compensation, the
Tribunal is not expected to approach the evidence of the injured with draconian
eye, even though the driver of the taxi was not examined. The Tribunal adverted
to the fact that while the injured was riding his two wheeler from south to
north along Dindigul – Trichy main road, the offending vehicle namely the taxi
which stood in stationary position in front of the hospital, was suddenly
started by its driver and he took a right turn without showing signal resulting
in causing the accident. It is common knowledge that the driver of the taxi, who
is taking such a turn, should be cautious in doing so, so as to avoid any
possible accident. But, in this case, no such precaution has been taken by the
driver of the taxi. Hence, in such a case, I cannot find fault with the finding
of the Tribunal. Accordingly, Point No.(i) is decided.
Point No:(ii)
11. The learned Counsel for the appellant would develop his argument to
the effect that without any basis simply the Tribunal fixed the quantum of
income as Rs.3,000/-. I am of the considered opinion that even a coolie now a
days, is earning a sum not less than Rs.100/- per day and as such the Tribunal
took the monthly income as Rs.3,000/-. Here, in this case, the claimant happens
to be a person who is fabricating iron boxes. In my opinion, no one would
engage in the trade of fabricating iron boxes without even getting an income of
Rs.100/- per day. This sort of common sense approach is absolutely required on
the part of the Tribunal and the Tribunal also correctly adhered to such
approach.
12. However, I could see considerable force in the submission made by the
learned Counsel for the Insurance Company that without any basis a sum of
Rs.5,000/- (Rupees Five Thousand only) was awarded towards further medical
expenses for removing the plate. In page No.7 of the certified copy of the
judgment, the Tribunal simply assessed the quantum at Rs.5,000/- for future
medical treatment. In my opinion, for that there is no plausible medical
certificate. I recollect that as per the cantena of decisions of the Honourable
Apex Court, in awarding the compensation for future medical treatment, there
should be clear evidence and in the absence of it, it should not be awarded
blindly. In fact, in Government Hospitals, if he wants to get the plate
removed, then I am of the considered opinion that he need not incur an
expenditure of Rs.5,000/-. Keeping this in view, I would like to delete the
assessment of compensation of Rs.5,000/- under the head ‘future medical
expenses’ from the total compensation and in respect of other sub-heads, there
is no reason to interfere.
13. In the result, this Civil Miscellaneous Appeal is disposed of with the
above finding. Consequently, connected M.P(MD)No.1 of 2007 and Caveat No.773 of
2006 are also closed.
rsb
To
1.The Commissioner,
The Corporation of Madurai,
Alagar Koil Road,
Madurai – 625 002.
2.The III Additional Subordinate Judge, Madurai.
3.The Principal District Munsif, Madurai.