IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.03.2010
Coram:
THE HONOURABLE MR. JUSTICE C.S.KARNAN
C.M.A. No. 1542 of 2004
M.Raja .. Appellant
vs.
1.S.Jawahar Ali
2.M/S.United India Insurance Company Ltd.
C/o.Motor Third Party Claims Offices
No.38, Annasalai, Chennai-2.
(R1-Exparte) ..Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, against the award and decree in M.C.O.P. No. 3974 of 1999, dated 13.03.2003 on the file of the Motor Accidents Claims Tribunal, Small Causes Court No.V, Chennai.
------
For Appellant : Mr. T.G. Balachandran
For Respondent : Mr. S. Balajanaki for R2
-------
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 passed in M.C.O.P. No. 3974 of 1999, dated 13.03.2003, by the Motor Accident Claims Tribunal, Small Causes Court No.V, Chennai, awarding a compensation of Rs.1,60,300/- with interest at the rate of 9% per annum from the date of filing of claim petition till the date of payment of compensation.
2. Having not been satisfied with the award and decree dated 13.03.2003, in M.C.O.P. No. 3974 of 1999, passed by the Motor Accident Claims Tribunal, Small Causes Court No.V, Chennai, the appellant/claimant has filed this appeal praying for granting of additional compensation of Rs.2,39,700/- together with interest.
3.The short facts of the case are as follows:
The petitioner has filed M.C.O.P.No.3974 of 1999, claiming a compensation of Rs.4,00,000/-. Further the petitioner had stated in his claim petition that on 28.07.1999, he was driving his Auto rickshaw bearing No. TN-02-8380, at G.S.T. Road near D.G.O.A Complex from south to north direction. At the time, a lorry bearing Registration No.TNE-1296 was coming in the opposite direction at high speed and in a rash and negligent manner, dashed against the auto rickshaw. In the said accident, himself and the occupant had sustained grievous injuries. Immediately, he was rushed to the Government Hospital, Chennai, wherein he underwent treatment for 90 days as inpatient. The petitioner further submitted that he was 26 years old at the time of the accident and was an auto driver by profession, as such he was earning a sum of Rs.4,000/- per month.
4. The said accident was registered by the Traffic Investigation Wing, Meenambakkam Police Station, in Crime No. 233 of 1999, under Sections 338 of I.P.C. against the driver of the said lorry. The first information report registered against the driver of the said lorry. The first respondent is the owner of the lorry and he insured the lorry with the second respondent, as such the first and second respondents are jointly and severally liable to pay the compensation to the claimant. Hence, the claimant has filed the claim petition against the respondents and claimed a compensation of Rs.4,00,000/- with interest.
5. The second respondent/Insurance Company filed a counter statement and opposed the claim petition filed by the petitioner stating that the owner of the auto and the insurer had answered already in the said claim petition. But they were not included in the said claim petition, hence it is not maintainable. Further, the second respondent insurance company denied the age, income and occupation of the claimant. Further, the second respondent also opposed the claim amount, which is excessive.
6. The Motor Accident Claims Tribunal has framed two issues for consideration namely:
1. Who was responsible for the said accident?
2. If the claimant is entitled to get compensation, if
so what is the quantum of compensation?
7. On the side of the petitioner, three witnesses were examined as P.W.1 to P.W.3. P.W.1 the claimant herein, P.W.2 is an eye witness, and P.W.3 is a Doctor, and eighteen documents were marked as EXs.P1 to P18 namely: Ex.P1 the discharge summary, Ex.P2 medical bills, Ex.P3 first information report, Ex.P4 copy of the charge sheet, Ex.P5 copy of the Judgment, Ex.P6 driving license, Ex.P7 photo with negative, Exs.P8 and P9 appellant’s discharge summary, Ex.P10 hospital bills , Ex.P11 prescription, Ex.P12 medical receipt, Ex.P13 O.P. Chit, Exs.P14 and P16 disability certificate, Exs.P15 and P17 X-ray, Ex.P18 discharge certificate.
8. The P.W.1 had adduced his evidence stating that on 28.07.1999, at about 4.45 p.m., he was driving the said auto on the G.S.T. Road near D.G.O.A. Complex. At the time, a lorry bearing Registration No.TNE-1296 came at high speed and in a rash and negligent manner, dashed behind the auto. As a result the claimant and the occupant, both had sustained grievous injuries. The first information report registered against the driver of the lorry which was marked as Ex.P3. His Driving licence was marked as Ex.P6. The driver of the lorry was handed over before the Judicial Magistrate, Alanthur, the Judgment of the Criminal Court was marked as Ex.P5.
9. The P.W.1 further adduced evidence that he sustained injuries on his thigh, right leg, foot, teeth and after the said accident, he was unable to perform his occupation. At the time of the accident, he was earning a sum of Rs.4,000/- per month through his occupation as a auto driver.
10. The P.W.3 Dr. Thiagarajan adduced evidence stating that he examined the P.W.1 and assessed the disability as 85% in total. He further adduced evidence that the claimant had undergone surgical operation. After the said accident, his thigh bone got deformed and fixed a steel plate on the operative region and another operation is also required for removing the steel plate. The doctor P.W.3 further adduced his evidence stating that after the accident, he was unable to do his work.
11. After considering the evidence of P.Ws.1 and 3 and documentary evidence marked by P.W.1, the Motor Accident Claims Tribunal had granted a sum of Rs. 20,000/- for loss of income, Rs.5,000/- for transport expenses, Rs.5,000/- for nutrition, Rs.300/- for damage to the clothes, Rs.6,000/- for medical expenses, again Rs.5,000/- for medical expenses, Rs.10,000/- for pain and suffering, Rs.75,000/- for disability and Rs.34,000/- for loss of earning power. In total, the Tribunal granted a sum of Rs.1,60,300/- as compensation to the petitioner together with interest at the rate of 9% per annum from the date of filing of claim petition till the date of payment of compensation.
12. Having not been satisfied with the award and decree dated 13.03.2003, in M.C.O.P. No. 3974 of 1999, passed by the Motor Accident Claims Tribunal, Small Causes Court No.V, Chennai, the claimant has filed the above appeal for getting additional compensation.
13. Learned counsel appearing for the appellant has argued that the appellant/claimant was an auto driver. At the time of the accident, he was earning a sum of Rs.4,000/- per month. After the said accident, he is unable to perform his occupation. The learned counsel further argued that after the said accident, he was admitted at Government Hospital, Chennai, wherein he was inpatient for 99 days. During the period of treatment, he had also undergone surgical operation. He further argued that the P.W.3 Doctor had adduced evidence stating that a steel plate was fixed on the operative region and another operation was also required for removing the steel plate. He further argued that this is a fit case for adopting multiplier method as the claimant is seeking more compensation for the said accident.
14. Learned counsel appearing for the second respondent has argued that the award amount granted by the Motor Accident Claims Tribunal is fair and equitable. After considering the evidence of the P.W.3 Doctor, who had erroneously issued disability as 85%, which is on higher side. The learned counsel further argued that the claimant had undergone treatment at Government Hospital, the said medical expenses will not be required in this case. He further argued that the award and decree passed by the Motor Accident Claims Tribunal is a well considered one and there is no error in the said award. He further argued that there was no income proof stating that the claimant was earning a sum of Rs.4,000/- at the time of accident. The claimant cannot get any compensation before this Court, without income proof. Hence, the civil miscellaneous appeal is not maintainable besides the award passed by the Tribunal has to be confirmed.
15. Considering the facts and circumstances of the case, the scrutiny of the findings of the learned Motor Accident Claims Tribunal and arguments advanced by both learned counsels, this Court is of the view that the claimant had undergone treatment in the Government Hospital for more than 90 days. At the time of treatment, he had undergone surgical operation and thereafter, he was unable to carry out his profession. Hence, this Court is decided to give additional compensation to the claimant.
16. Accordingly, this Court granted the compensation as follows: Rs.1,90,000/- for permanent disability, Rs.5,000/- for pain and suffering, Rs.5,000/- for transport expenses, Rs.5,000/- for nutrition, Rs.300/- for damage to the clothes, Rs.6,000/- for medical expenses. In total, this Court has granted a sum of Rs.2,11,300/-, which is found to be fair and equitable. The Tribunal already awarded Rs.1,60,300/-. Now this Court granted the additional compensation of Rs.51,000/- with interest at the rate of 7.5% from the date of filing of the claim petition till the date of payment of compensation.
17. Therefore, this Court hereby directed the second respondent Insurance Company to deposit the additional compensation of Rs.51,000/- together with accrued interest as observed above within a period of four weeks from the date of receipt of a copy of this order.
18. As the accident happened in the year 1999, it is open to the appellant/claimant to withdraw the entire additional compensation with accrued interest after such deposit made by the second respondent insurance company, lying to the credit of M.C.O.P.No.3974 of 1999, on the file of Motor Accident Claims Tribunal, Small Causes Court No.V, Chennai, by filing necessary payment out application, in accordance with law.
19. In the result, the civil miscellaneous appeal is partly allowed. Consequently, the award and decree passed by the Motor Accident Claims Tribunal, Small Causes Court No.V, Chennai, in M.C. O.P. No. 3974 of 1999, dated 13.03.2003, is modified. There is no order as to costs.
kj
To
1.The Motor Accident Claims Tribunal
Small Causes Court No.V
Chennai.
2.M/S.United India Insurance Company Ltd.
C/o.Motor Third Party Claims Offices
No.38, Annasalai, Chennai-2.
3.The Section Officer
V.R. Section
High Court,
Madras