IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.01.2011
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.2561 of 2006
Oriental Insurance Company Ltd.,
No.6, Raja Street,
Pudupalayam, Gobi. .. Appellant
Vs
1. Refideen @ Ravideen
2. M.Selvam
3. V. Ganesan .. Respondents
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the decree and judgment dated 27.12.2005 made in M.C.O.P.No.435 of 2003 on the file of Motor Accident Claims Tribunal, II Additional Sub Court, Gobichettipalayam.
For Appellant : Mr.S.Manohar
For Respondents : Mr.A.V.Arun (R-1)
- - -
J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellant / Oriental Insurance Company Limited, against the Award and Decree, passed in M.C.O.P.No.435 of 2003, on the file of the Motor Accident Claims Tribunal, II Additional Sub Court, Gobichettipalayam on awarding a compensation of Rs.2,02,280/- together with interest at the rate 9% per annum, from the date of filing the claim petition till the date of payment of compensation.
2.The short facts of the case are as follows:
On 01.08.2002, at about 09.15 a.m., while the petitioner was travelling by the bus bearing Registration No.TN-36-O-6290 towards west to east, the driver of the bus drove the bus in a rash and negligent manner and suddenly applied the brake. Due to the sudden brake, the bus inverted on the right side of the road near Ayyampalayam. Due to the impact, the petitioner fell down from the bus and sustained injury on the back on his head, fracture in right shoulder, contusion in left shoulder and sustained injury on his right knee. Hence, the petitioner has filed the claim petition against the respondents seeking compensation of Rs.5,00,000/-. The first respondent is the driver of the bus, the second respondent is owner of the bus and the third respondent is its insurer.
3.The third respondent / Oriental Insurance Company Limited, in his counter has resisted the claim denying the averments in the claim regarding manner of accident. It was stated that the driver of the bus had not been negligent in his driving and that he was forced to apply the brake in order to avoid collision against a TVS 50 moped, which was driven by its rider in a rash and negligent manner. The respondent has also denied the age, income and occupation of the petitioner as well as nature of injuries sustained by him. It was also stated that the petitioner had joined duty within one month of the accident and hence he had not suffered any income loss in this regard and he is getting salary as before. The claim was excessive and without any basis.
4.After hearing the averments of both parties, the Tribunal had framed two issues for consideration, namely;
(i)On whose negligence, did the accident happen?
(ii)Is the petitioner entitled to get compensation? If so, what is the quantum of compensation?
5.On the side of the claimant two witnesses were examined and eleven documents were marked as Exs.P1 to P11, viz., F.I.R., Motor Vehicle Inspector’s Report, Rough Sketch, Charge Sheet, Judgment of Criminal Court, Wound Certificate, Summon, Salary Certificate, Medical Bills, Disability Certificate and X-rays respectively.
On the side of the respondent no witnesses, no documents were examined.
6.The petitioner was examined as PW1, he adduced evidence regarding the manner of accident, which was in consonance with the version of accident as stated in the claim. Though the third respondent has stated that the accident happened only because of the version that the first respondent had applied brakes only in order to avoid collision against a TVS 50 Moped, coming on the opposite side, which was ridden in a rash and negligent manner by its rider, the Tribunal was not inclined to consider it as even in the cross examination of PW1, he has stuck to his stand that no vehicle had come in the opposite direction of the bus, at the time of accident. Further, it was seen that the Kavindapadi Police had registered a case against the first respondent and he had admitted the same before the Hon’ble Judicial Magistrate No.II, Gobichettipalaym in S.T.C.No.186 of 2003. Hence, the Tribunal after perusal of documentary evidence viz., Ex.P1, the F.I.R., Ex.P4, the charge sheet, Ex.P5, judgment copy, held that the accident was caused only due to rash and negligent driving by the driver of the bus.
7.PW1, in his evidence adduced that due to the accident he sustained injuries on the back side of his head, grievous injury on his right shoulder and simple injuries on his right heel, forearm, index finger, that he was initially treated at Gobichettipalayam Government Hospital and subsequently received treatment, as an inpatient at Seethalakshmi Medical Hospital. On scrutiny of Ex.P6, the wound certificate issued at Seethalakshmi Hospital, it is seen that the injury on the right shoulder was a grievous one. On scrutiny of Ex.P8, salary certificate issued by the Agriculture Department, it is seen that the petitioner was a lorry driver and earning a sum of Rs.6,719/- hence the Tribunal held that the salary drawn by the petitioner was Rs.6,700/- per month.
8.The doctor, who assessed the disability of petitioner was examined as PW2. PW2, in his evidence adduced that after inspection of X-rays taken on the petitioner, he has found the disability sustained by the petitioner as 23% and in support thereof had marked Ex.P11, the disability certificate. However, the Tribunal held that the disability sustained by the petitioner could be taken as 15% only.
9.On scrutiny of other documentary evidence, the Tribunal awarded a compensation of Rs.2,02,280/- 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. The breakup of compensation is as follows:-
Rs.1,67,580/- towards loss of income due to disability, which was awarded after adopting multiplier method;
Rs.24,700/- towards medical expenses;
Rs.5,000/- for pain and suffering;
Rs.5,000/- against nutrition.
10.Aggrieved by the said award, the third respondent / Oriental Insurance Company Limited has filed the present appeal to set-aside the decree and judgment made in M.C.O.P.No.435 of 2003 on the file of Motor Accident Claims Tribunal, II Additional Sub Court, Gobichettipalayam.
11.The learned counsel for the appellant argued that the Tribunal had failed to appreciate that the claimant who was working as a driver in the agriculture department, had rejoined duty after he was certified to be completely fit for duty as a driver. It was also argued that the claimant did not suffer any loss of earning power and that he is continuing in his avocation without any reduction in rank or income. Hence, the loss of earnings assessed by the Tribunal at Rs.1,67,580/- as per Schedule II was erroneous. It was also pointed out that the claimant had sustained simple injuries only and therefore the award granted by the Tribunal under the other heads of medical expenses, pain and suffering and extra nourishment was erroneous.
12.The learned counsel for the claimant argued that the Tribunal had not awarded adequate compensation under the head of ‘pain and suffering’. Further, the Tribunal had not considered compensation under the heads of transport, attender charges and loss of earning during medical treatment period. The learned counsel further argued that the claimant is a lorry driver and he had sustained injuries on his right leg knee joint. As such, he is unable to drive the heavy vehicle. Hence, the Tribunal had adopted multiplier method and awarded the compensation which is pertinent in this case.
13.On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the considered opinion that the Tribunal’s adoption of multiplier method and awarding compensation is not proper, since the claimant has rejoined duty in the Agriculture Department and doing his normal work. Therefore, this Court restructures the compensation as follows:-
Rs.46,000/-, Rs.24,700/-, Rs.15,000/-, Rs.5,000/-, Rs.5,000/-, Rs.10,000/- and Rs.20,000/- are granted towards loss of income due to disability, medical expenses, pain and suffering, extra nourishment, transport, attender charges and loss of income during medical treatment and convalescent period.
In total, this Court awards Rs.1,25,700/- together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, as it is found to be fair and justifiable in the instant case. Therefore, this Court scales down the compensation from Rs.2,02,280/- to Rs.1,25,700/-.
14.On 30.08.2006, this Court imposed a condition on the appellant / Oriental Insurance Company Limited to deposit 50% of the award amount to the credit of M.C.O.P.No.435 of 2003 on the file of Motor Accident Claims Tribunal, II Additional Sub Court, Gobichettipalayam. Therefore, this Court directs the appellant / Oriental Insurance Company Limited to deposit the balance compensation as per this Court’s finding mentioned above, within a period of six weeks from the date of receipt of this order. After such deposit has been made, it is open to the claimant to withdraw the modified compensation amount with accrued interest as fixed by this court lying in the credit of M.C.O.P.No.435 of 2003 on the file of Motor Accident Claims Tribunal, II Additional Sub Court, Gobichettipalayam, after filing a Memo along with a copy of this order, subject to the earlier withdrawals if any.
15.Resultantly, this Civil Miscellaneous Appeal is partly allowed. Consequently, the Award and Decree, passed by the Motor Accident Claims Tribunal, II Additional Sub-Court, Gobichettipalayam made in M.C.O.P.No.435 of 2003, dated 27.12.2005 is modified. There is no order as to costs.
25.01.2011
Index : Yes.
Internet: Yes.
r n s
C.S.KARNAN, J.
r n s
To
The II Additional Sub-Court,
Motor Accident Claims Tribunal,
Gobichettipalayam.
C.M.A.No.2561 of 2006
25.01.2011