IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.04.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.2393 OF 2010 & M.P.No.1 of 2010 M/s.United India Insurance Co. Ltd., Old No.1028, New No.768, Avinashi Road, 1st Floor, United India Building, Coimbatore 18. ... Appellant Vs. 1.Arumugam 2.Thangavel ... Respondents Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and Decree made in M.C.O.P.No.682 of 2005, dated 11.12.2008, on the file of the Motor Accidents Claims Tribunal, Additional District Court, Fast Track Court No.4, Coimbatore at Tiruppur. For Appellant : Mr.M.B.Gopalan For Respondents : Mr.A.P.Thangavel (R-1) - - - J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellant/United India Insurance Company Limited against the Judgment and Decree made in M.C.O.P.No.682 of 2005, dated 11.12.2008, on the file of the Motor Accidents Claims Tribunal, Additional District Court, Fast Track Court No.4, Coimbatore at Tiruppur, awarding a compensation a sum of Rs.1,79,495/- with interest at the rate of 7.5% per annum.
2.The brief facts of the case are as follows:-
The respondent/claimant was traveling in the first respondent’s Van bearing Registration No.TN-39A-7398 as Loadman from Palladam to Tirupur Main Road and at that time, the driver had driven the vehicle in a rash and negligent manner and as a consequence, the vehicle overturned with the goods and he had sustained grievous injuries. Hence, the claim petition in M.C.O.P.No.682 of 2005 filed against the appellant/respondents for compensation a sum of Rs.5,00,000/- with interest.
3.The said claim case was resisted by the Appellant/Insurance Company by way of a counter statement. The Insurance Company denied the liability stating that there was no valid insurance policy for the vehicle to have been involved on the date of the accident. The driver was not possessing valid driving license, the age, income, occupation, date, time and place of the accident are denied besides the claim amount is excessive.
4.On the plea of both parties, the learned Motor Accidents Claims Tribunal had framed two issues for consideration, namely;
(i)Who was responsible for the accident?
(ii)Whether the claimant is entitled to receive compensation, if so, what is the quantum of compensation?
5.The claimant was examined as PW1 and the Doctor was examined as PW2. The claimant had marked a FIR, Discharge Medical Summary, Medical Bill series, Disability Certificate and X-ray respectively. PW1 had adduced evidence stating that he was traveling in the first respondent’s van bearing Registration NO.TN-39A-7398 from Palladam to Tirupur, at that time the driver had driven the vehicle in a reckless and as a consequence, the vehicle had turned hostile. As the result, he had sustained grievous injuries including bone fracture. PW1 further adduced evidence stating that immediately, after the accident, he was taken to the Government Hospital, Palladam, for preliminary treatment. Thereafter, he was referred to Richmond Hospital, Coimbatore, wherein he had undergone treatment as inpatient for a lengthy period. During the medical treatment period, he had undergone surgical operation on his left leg. The bone had shattered into pieces and the muscles had been crushed. He was an Agricultural Coolie, earning of Rs.5,000/- and his age was 54 years. PW2, Doctor had adduced evidence stating that he has examined the claimant and verified the medical records and assessed the disability as 35.83%. The claimant had undergone surgical operation and a steel rod with screw was fixed on the operated area, the fractured bone was ununited.
6.RW1was examined and a copy of the Insurance policy was marked. RW1 stated that she is an administrative Officer attached to the Insurance Company. As per policy conditions, the van was a goods vehicle and at the time of the accident, nine persons had been
traveling in the van including the claimant, as such the policy condition is violated, therefore, the Insurance company is not liable to pay compensation.
7.On considering the evidence of the witnesses and documentary evidence, the learned Motor Accidents Claims Tribunal had decided the two issues in favour of the claimant and partly, allowed the claim petition and awarded the compensation a sum of Rs.1,79,495/- together with interest at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of compensation. As such the Tribunal directs the Insurance Company to pay the compensation to the claimant, the compensation comprises as follows. Rs.1,18,800, Rs.5000/-, Rs.5000/-, Rs.200/-, Rs.1800 and Rs.48,695/- towards loss of income due to disability, for pain and suffering, against nutrition, for damage to clothe, for transport and medical expenses respectively.
8.Aggrieved the said Award and Decree, the Insurance company has filed the above appeal to set aside the Award. The learned counsel for the appellant argued that the claimant was an agriculturist and not a Load man or the owner of the goods as such the policy condition is not covered of reaching compensation to the claimant. At the time of the accident, nine persons had been traveling in the goods vehicle. As per the policy conditions, nine persons are not allowed to travel. The Doctor had assessed the disability as around 36%, which is on the higher side considering the nature of injuries and documentary evidence. The Tribunal had adopted the multiplier method and awarded the compensation a sum of Rs.1,18,800/- under the head of loss of income due to disability, which is not appropriate in the instant case since the claimant’s avocation was not at all affected.
9.The learned counsel for the claimant argued that the claimant was involved in the agricultural operation and his left leg bone had been shattered into pieces and a surgical operation was conducted and a steel plate with screw were fixed in the operated area. After some time, the steel rod has to be removed from the body. Therefore, future medical expenses is required and this was not considered by the Tribunal besides the Tribunal has not considered compensation under the heads of attendant charges, loss of income during the treatment period and loss of amenities including loss of earning power. The learned counsel further argued that the claimant is an agricultural coolie and he was engaged in an agricultural operation, after the accident he is unable to do his agricultural work as a coolie, since his left leg bone had been fractured into pieces. All the aspects, in the claim case, the Tribunal had perfectly offered the compensation. The learned counsel further submits that the claimant had been travelling along with his goods in the van at that time the accident took place.
10.On considering the facts and circumstances of the case and arguments submitted by the learned counsels on either side and on perusing the impugned award, this Court is of the considered opinion that the learned Tribunal’s decision requires slight modification by way of setting aside the Award under the head of loss of income due to disability. The amount is granted after adopting the multiplier method, which is not appropriate since the claimant’s movement is absolutely normal. Therefore, this Court restructure the compensation as follows: Rs.72,000/-, Rs.15,000/-, Rs.5,000/-, Rs.5,000/-, Rs.5,000/-, Rs.48,685/- and Rs.15,000/- granted towards disability, pain and suffering, attendant charges, Nutrition, transport, future medical expenses and loss of income during the medical and convalescent period and towards discomfort respectfully.
11.On 24.09.2010, this Court imposed a condition on the Insurance Company to deposit 50% of the Award amount together with interest and costs. Now, this Court directs the Insurance company to comply with this Court order by way of depositing the compensation a sum of Rs.1,65,685/- together with interest at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of compensation subject to on earlier deposit, which is fair and justifiable in the instant case. Therefore, this Court scales down the compensation from Rs.1,79,495/- to Rs.1,65,685/-.
12.After such a deposit being made, it is open to the claimant to withdraw the entire compensation to the credit of the M.C.O.P.No.682 of 2005 on the file of the Motor Accidents Claims Tribunal, Additional District Court, Fast Track Court NO.IV, Coimbatore, after filing memo along with the copy of the order. If any delay is encounted to release the compensation to the claimant, it is open to the learned counsel for the claimant to mention in the same.
Resultantly, the above Civil Miscellaneous Appeal is partly allowed. Consequently, the Award and Decree passed by the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court NO.IV, Coimbatore made in M.C.O.P.No.682 of 2005, dated 11.12.2008 is modified. There is no order as to costs. Consequently, connected miscellaneous petition is closed.
11.04.2011
Index : Yes / No.
Internet: Yes / No.
mps
To
The Additional District Judge,
Fast Track Court No.4,
Motor Accidents Claims Tribunal,
Tiruppur.
Coimbatore.
C.S.KARNAN, J.
mps
C.M.A.No. 2393 OF 2010
11.04.2011