IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.04.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.2566 of 2005
The New India Assurance Co., Ltd.,
R.S.Puram, Coimbatore .. Appellant
Vs
1.M.Kumar
2.N.Ramesh Kumar .. Respondents
(R2 remained exparte before the
lower court and hence notice
dispensed with form him the
above appeal)
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 13.08.2004, made in M.C.O.P.No.1159 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur.
For appellant : Mr.M.Krishnamoorthy
For respondents : Mr.Veerakathiravan for R1
J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 13.08.2004, made in M.C.O.P.No.1159 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur, awarding a compensation of Rs.2,23,088/- together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation.
2.Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to scale down the compensation amount granted by the Tribunal.
3.The short facts of the case are as follows:
On 09.04.2002, at about 4.30 p.m. the petitioner was walking near Radharani Theatre, Singanallur at Trichy road. At that time, a person, who is the employee of the first respondent was coming in the first respondent’s motorcycle bearing registration No.TN37 U7007, at Trichy road, Coimbatore, west to east, without observing the traffic rules, at a high speed and without giving horn, dashed against the petitioner. In the result, the petitioner had sustained grievous injuries on the right and left forehands, on head, right side of the forehead, eye and on both knees. Immediately, the petitioner was rushed to Richmond Hospital. At the time of the accident, the petitioner was aged about 18 years and he was a student. Due to the said accident, the petitioner is unable to concentrate on his study as before the said accident. The petitioner further stated that he was ranking first in his class. The said accident had happened only due to the rash and negligent driving of the driver of the first respondent. The first respondent is the owner of the vehicle and the second respondent is the insurer of the vehicle. Hence, the respondents are jointly and severally liable to pay a compensation of Rs.5,00,000/- to the petitioner.
4.Regarding the said accident a case was registered by the TIW (East) Police Station, Coimbatore in Crime No.93/2002.
5.The second respondent has filed a counter statement and resisted the claim of the petitioner. The second respondent denied that the accident had happened on 09.04.2002, at about 04.30 p.m. near Radha Rani Theatre, Singanallur at Trichy Road. The second respondent did not admitted the age, nature of injuries sustained by the petitioner, period of treatment undergone. Further, the petitioner has alleged that he was a student at the time of the said accident, for which he has to produce sufficient documents. At the time of accident, the petitioner was not an earning person. The petitioner claimed a sum of Rs.2,00,000/- for loss of income, Rs.25,000/- for partial loss of income, Rs.10,000/- for treatment, Rs.50,000/- for pain and suffering, Rs.1,000/- for transport expenses, Rs.10,000/- for extra nourishment and Rs.1,00,000/- for permanent disability are all not pertinent under the above mentioned heads. Hence, he prayed to dismiss the claim petition, which is not maintainable.
6.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Who is responsible for the said accident? Whether, the petitioner is entitled to get compensation? If so, by whom the compensation amount has to be paid?
(ii) What is the quantum of compensation?
7.The second respondent has filed a petition under Section 170 of Motor Vehicles Act and sought a permission to defend the case on behalf of the owner of the motorcycle bearing registration No.TN37 U7007. The said application in I.A.No.96 of 2004 was allowed on 30.01.2004. As such, the second respondent contested the case on behalf of the owner of the motorcycle bearing registration No.TN37 U7007.
8.On the petitioner’s side two witnesses were examined as PW1 and PW2 and ten documents were marked as Ex.P1 to P10. On the side of the respondents no witness was examined and no documents were marked.
9.The petitioner was examined as PW1. The PW1, in his evidence, had adduced evidence stating that on 09.04.2004, at about 04.30 p.m. he went to Singanallur for his own business. Then, he returned back and proceeded northern side to get to the bus stop. At that time, from west to east, the first respondent came in his motor cycle bearing registration No.TN37 U7007, with high speed in a rash and negligent manner and dashed against the petitioner. As a result, the petitioner had sustained grievous injuries. Further, the petitioner had adduced evidence that the first respondent ie.the rider of the motorcycle, is solely responsible for the said accident. The said case was registered by the concerned Police Officer. The FIR was marked as Ex.P1. As per the Ex.P1, the case was registered against the first respondent. The Motor Vehicle Inspector inspected the motor cycle and submitted his report, which was Ex.P2. In the said criminal case, a Charge Sheet was also issued to the first respondent, which was marked as Ex.P6. The Investigation Officer prepared a rough sketch of the accident, which was marked as Ex.P7.
10.The PW1 further adduced evidence that the first respondent is the cause for the said accident. For the said accident, FIR was also registered against the first respondent. The Motor Vehicle Inspector’s Report is against the first respondent as per Exs.P1 and P2. The same was not opposed by the respondents side. The first respondent was set ex-parte in the said claim petition. Further, the Tribunal has come to the conclusion that at the time of accident, the first respondent was holding valid driving licence and hence the first and second respondents are jointly and severally liable to pay compensation to the claimant.
11.PW1 further adduced evidence that at the time of accident, he was a student and was aged about 18 years. Ex.P1 also reveals that the petitioner was a student. The same was not opposed by the respondents. As such, the Tribunal has come to the conclusion that the petitioner was a student at the time of accident. Ex.P3, Wound Certificate, which was issued by the Richmond Hospital, Coimbatore. It reveals that the petitioner was aged about 17 years at the time of accident. Ex.P4, Discharge Summary, which mentioned the age of the petitioner as 16 years. The learned Tribunal, after considering the evidence adduced by the petitioner, has come to the conclusion that the petitioner’s age was 18 at the time of accident and the Tribunal adopted a multiplier method as 16.
12.The PW1 further adduced evidence that due to the said accident, he sustained bone fracture on his left forearm and injuries on his left hand, right hand, left shoulder backside and all over his body. Immediately, he was rushed to Richmond Hospital, Coimbatore by Auto. Thereby he was admitted as inpatient from 09.04.2002 to 22.04.2002. To prove the same, Exs.P3 and P4, Wound Certificate and Discharge Summary were marked. The Exs.P3 and P4, Wound Certificate and Discharge Summary disclosed the nature of injuries and mode of treatment as follows:
X-RAY FINDINGS : (LT Leg : Closed, comminuted fracture shaft of both tibia and fibula (LT) Leg-mid third, LIST OF INJURY : 1.Closed, comminutetd fracture shaft of (LT) tibia and fibula proximal third NATURE OF INJURY: In my opinion injury 1 is grievous in nature, DIAGONOSIS : Closed, Comminuted fracture shaft of (LT) TIBIA and Fibula proximal third TREATMENT : Closed Reduction and internal fixation with static locked tibial nail under 'c' arm control.
13.One Dr.K.Periasamy was examined as PW2. The PW2 in his evidence had adduced that he was the Orthopaedic Doctor attached to Tiruppur Government Hospital. He examined the petitioner and he has stated that the petitioner sustained Tibia Fibula bone fracture on his left leg. Further, the PW2 had adduced evidence that at the time of accident the petitioner was a student. After the said accident he is unable to participate in sports and games. After examining the petitioner, the PW2 issued a Disability Certificate stating that the petitioner sustained 32% permanent disability. The Disability Certificate and X’ray had been marked before the Tribunal through the PW2. The PW2 further adduced evidence that due to the bone fracture on his leg, a steel plate was also fixed. As such, the petitioner is unable to participate in the sports and games.
14.After considering the evidence of the PW1 and PW2 and documentary evidence, the Tribunal awarded a compensation as follows:
1.For loss of income and permanent disability, a sum of Rs.1,53,600/- was awarded,
2.For disability, a sum of Rs.32,000/- was awarded,
3.For pain and suffering, a sum of Rs.5,000/- was awarded,
4.For nutrition, a sum of Rs.2,000/- was awarded,
5.For medical expenses, as per Ex.P5, a sum of Rs.30,488/-, was awarded,
In total, the Tribunal awarded a sum of Rs.2,23,088/- as compensation to the petitioner, together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation. Further, the Tribunal directed the respondents to deposit the said compensation amount within a period of one month. In turn, the said compensation amount to be deposited in any one of the nationalised bank for a period of three years, under a fixed deposit scheme. Further, the Tribunal permitted the petitioner to withdraw the interest once in six months for the said compensation.
15.Having not been satisfied with the said Award and Decree, dated 13.08.2004, in M.C.O.P.No.1159 of 2002, passed by the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur, the appellant/second respondent has filed the above appeal praying to scale down the compensation amount, awarded by the Tribunal.
16.Learned counsel appearing for the appellant argued that the disability of 32% issued by the PW2 is on higher side, since the claimant underwent treatment as inpatient only for a period of 14 days; the Tribunal erred in fixing the monthly income of the claimant at the excessive rate of Rs.2,500/- for a student aged about 16 years; the Second Schedule of the Motor Vehicles Act, 1988 for the loss of earning due to the disability, applied by the Tribunal, is not applicable to the instant case and the Tribunal awarded a sum of Rs.1,53,600/- for loss of earning due to the disability assessed at the excessive rate of 32%, for the same head, a sum of Rs.32,000/- also awarded by the Tribunal, which is not pertinent.
17.Learned counsel appearing for the first respondent argued that the claimant is a student at the time of accident. He was an active boy and participated in all sports and games and he was also a brilliant student in the school. After the said accident he is unable to walk, run and participate in sports and games. The learned counsel further argued that immediately after the said accident he was rushed to the Richmond Hospital, Coimbatore, wherein he was admitted as inpatient for a period of 13 days and he had undergone surgical operation also. In the said operated region, a steel plate was also fixed. The same was confirmed by the evidence of the PW2. The learned counsel further argued that the compensation amount awarded by the Tribunal is fair and equitable. As such, the award and decree passed by the Tribunal is a well-considered and reasonable one.
18.Considering the facts and circumstances of the case, scrutiny of the findings of the Tribunal and the arguments advanced by the Tribunal, this Court is of the view that the compensation amount of Rs.2,23,088/- together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation is slightly on the higher side. Hence, this Court grants a compensation as follows:
1.For permanent disability and loss of income, this Court grants a sum of Rs.64,000/-, since the claimant sustained 32% disability,
2.For pain and suffering, this Court grants a sum of Rs.15,000/-,
3.For nutrition, this Court grants a sum of Rs.5,000/-,
4.For medical expenses (as per Ex.P5), this Court grants a sum of Rs.30,488/-,
5.For loss of pleasure and discomfort, this Court grants a sum of Rs.50,000/-,
In total, this Court grants a sum of Rs.1,64,488/- as compensation to the claimant, together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation, which is found to be fair and equitable.
19.On 24.08.2005, this Court imposed a condition on the appellant to deposit a sum of Rs.1,00,000/- with proportionate interest, into the credit of the M.C.O.P.No.1159 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur.
20.Now, this Court directs the appellant to deposit the balance compensation amount of Rs.64,488/- together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.1159 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur, within a period of four weeks from the date of receipt of a copy of this Order.
21.As the accident had happened in the year 2002, it is open to the claimant to withdraw the entire compensation amount, together with interest, lying in the credit of the M.C.O.P.No.1159 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur, after filing necessary payment out application in accordance with law, subject to the deduction of withdrawal, if any.
22.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 13.08.2004, in M.C.O.P.No.1159 of 2002, passed by the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Coimbatore at Tiruppur, is modified. There shall be no order as to costs.
05.04.2010
Index: Yes/No
Internet: Yes/No
krk
To
1.The Motor Accident Claims Tribunal,
Additional District Court,
Fast Track Court No.V, Coimbatore at Tiruppur.
2. The Section Officer,
VR Section, High Court, Madras.
C.S.KARNAN, J.
krk
Pre-delivery Order in
C.M.A.No.2566 of 2005
05.04.2010