IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.02.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.530 of 2002
M/s.United India Insurance Co., Ltd.,
Attinkal, Kerala .. Appellant
Vs
1.Raj Prakasham @ Raj Prakash
2.A.Mohamed Rasheed .. Respondents
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 10.04.2001, made in M.C.O.P.No.727 of 1999, on the file of the Motor Accident Claims Tribunal (First Additional District Judge-cum-Chief Judicial Magistrate), Salem.
For appellant : Mrs.N.Mala
For respondents : Mr.P.Jagadeesan, 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 10.04.2001, made in M.C.O.P.No.727 of 1999, on the file of the Motor Accident Claims Tribunal (First Additional District Judge-cum-Chief Judicial Magistrate), Salem, awarding a compensation of Rs.1,00,400/- with 9% interest per annum, from the date of filing petition till the date of payment of compensation.
2.Aggrieved by the said Award and Decree, the appellant/second respondent, the United India Insurance Co., Ltd., has filed the above appeal to set aside the award and decree passed by the Tribunal.
3.The short facts of the case are as follows:
The petitioner took a lift in a Bullet motor bike bearing registration No.KBV 2102 coming from Omalur to Salem. While the Bullet motor bike driven by one Syril Thomas. The said motor bike was nearing Salem nearing KurunguchavadiShandhi at about 8.45 p.m. the driver of the said motor bike was driven in a rash and negligent manner by Syril Thomas and dashed against another motor bike, coming in the opposite direction, bearing registration No.TN27 F0125, due to the said accident, the petitioner sustained multiple fractures on his right leg itself. Immediately, he was admitted in Gokulam Hospital for treatment as an inpatient. After the said accident, he is unable to walk to attend his normal duties. The petitioner running a Printing Press and employing four workmen in his Press. Besides the petitioner is running a fortnight magazine called ‘ADD POST’ and also doing Screen Printing jobs. As such, the petitioner is earning a total sum of Rs.13,000/- per month.
4.The said accident was registered by Traffic Investigation Wing, Sooramangalam Police Station, as Crime No.74/1999 under Sections 279 and 338 of I.P.C.
5.The second respondent filed a Counter and resisted the claim of the petitioner. The respondent stated that the accident was not due to any rash and negligent driving of the respondent’s driver. Actually, Suresh Babu came on the motorcycle bearing registration No.TN27 F0125 on the wrong side rashly and negligently and dashed against the respondent’s vehicle. The petitioner’s claim is only against the rider of TVS Suzuki bearing registration No.TN27 F0125, Suresh Babu. The petitioner should add Suresh Babu and the Insurance Company as necessary party to this claim petition. But, without adducing them in the claim petition is not maintainable. The first respondent has taken only act policy with this respondent/The United India Insurance Co., Ltd., As per act policy there is no coverage for pillion rider. Hence, this respondent is not liable to pay compensation. Further, the first respondent did not possess a valid licence to drive the motorcycle, hence the respondent is not liable to pay compensation. It is a violation of policy condition, as such, the respondent is not liable to pay compensation as claimed by the petitioner. The claimant did not suffer any injury in the said accident. Further, it is not true that the petitioner suffered fracture of leg. There is no proof that the earnings of the petitioner is Rs.13,000/-.
6.The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Did the first respondent driver ride the vehicle in a rash and negligent manner and caused accident in which, the petitioner sustained injuries?
(ii) What is the quantum of compensation to be awarded to the petitioner?
7.The petitioner was examined as PW1 and he adduced evidence before the Tribunal that on 09.02.1999, at about 8.45 p.m. he was waiting for boarding a bus to go to Salem, when the first respondent rode his two wheeler and while he was crossing him, the petitioner had requested a lift from him in order to go to Salem. The first respondent also obliged him with a lift and the petitioner came with him as a pillion rider. While both travelling on the bike, the first respondent had driven his vehicle in a rash and negligent manner and dashed against the TVS Suzuki motorcycle bearing registration No.TN27 F0125, the said vehicle coming in the opposite direction, ie.Salem Omalur main road.
8.In the said accident, the petitioner sustained fracture on is right leg. Due to the rash and negligent driving of the first respondent’s vehicle namely Bullet Motorcycle bearing registration No.KBV 2102, a criminal case was registered against the offending vehicle. The FIR marked as Ex.P1, which revealed that a criminal case in Crime No.74/1999 against the driver of the vehicle an offence alleged under Sections 279 and 338 of I.P.C. The petitioner has also marked the below mentioned documents namely Ex.P2, the copy of Accident Report; Ex.P3, the Wound Certificate; Exs.P4 and P5, copies of Motor Vehicle Inspector’s Report; Ex.P6, the copy of Charge Sheet; Ex.P7, copy of Judgement in C.C.No.204 of 1999; Ex.P8, copy of Rough Sketch; Ex.P9, copy of the School Transfer Certificate; Ex.P10, Printing Technology Course Certificate; Ex.P11, Affidavit form; Ex.P12, Order of District Collector; Ex.P13, Business corresponding letter; Ex.P14, Magazine; Ex.P15, Medical Bill series; Ex.P16, Disability Certificate and Ex.P17, X’ray.
9.After recording the evidence of the petitioner and perusal of the FIR, Accident Report, Wound Certificate, Motor Vehicle Inspector’s Report, Charge Sheet against the offending vehicle, Judgment against the offending vehicle and Site Plan, the Tribunal come to the conclusion stating that the first respondent’s vehicle is the cause of the said accident. As such, the Tribunal fastened the negligence on the part of the first respondent’s vehicle. The first respondent insured with the second respondent namely the United India Insurance Co., Ltd., Hence, the Tribunal fastened the liability on both the respondents to pay compensation to the petitioner.
10.On the basis of the above findings on the liability, the Tribunal had decided to grant compensation to the claimant. For assessing the quantum of compensation the Tribunal considered the evidence of the petitioner and doctor’s evidence as PW2. The petitioner stated in his evidence that he is running a printing press and also running an advertisement magazine. The printing company also a registered only, the petitioner qualified for a Diplomo in Printing Technology. To prove the same he marked Ex.P10. To prove his occupation, he also marked Exs.P13 and 14, which are letter pad and advertisement magazine. Further, the petitioner stated that he sustained injury on his face and on the left hand besides left joint and right leg fracture. Regarding mode of treatment and the nature of injuries of the petitioner, one Dr.Elangovan was examined as PW2. He stated in his evidence that he had examined the petitioner on 23.08.1999 after he took an X’ray of the petitioner’s right leg, the Doctor certified that the petitioner’s bone was bent and deformed. In the particular area, there is a scar measuring 6 Cms. length by 4 Cms. breath. The petitioner’s 5th toe on his foot was severed and lost. A portion of his right thigh, where the skin was removed for skin grafting in the severed toe. The movement of his right joint leg reduced by 10 Degrees and also a reduction of 25 Degrees movement on his right leg below the knee. On the affected area, there is a reduction of 3 Cms. in length. In total, the compound fracture sustained the petition. Therefore, the Doctor certified that the petitioner sustained 40% disability. The Disability Certificate and X’ray have been marked as Exs.P16 and 17.
11.The petitioner further stated in his evidence that he was admitted at Gokulam Private Hospital, wherein he underwent treatment as an inpatient. The medical expenses alone amounted to Rs.47,400/-. To prove the same, the petitioner marked Ex.P15, Medical Bills series.
12.On the side of the respondent, one Muralidaran was examined him and through him Ex.R1, copy of Insurance Policy was marked.
13.After considering the evidence of the petitioner, PW2 Doctor, the respondents’ and documentary evidence of Exs.P1 to P17 and the respondents evidence of Ex.R1, the Tribunal awarded a compensation as below:
1.Under the head of disability for 40%, the Tribunal awarded a sum of Rs.40,000/-. On the basis of Ex.P16, Disability Certificate.
2.For medical expenses, the Tribunal awarded a sum of Rs.47,400/-.
3.For pain and suffering, the Tribunal awarded a sum of Rs.5,000/-.
4.For loss of marriage, the Tribunal awarded a sum of Rs.7,000/-.
5.For nutrition, the Tribunal awarded a sum of Rs.1,000/-.
In total, the Tribunal awarded a compensation of Rs.1,00,400/- to the petitioner, together with interest at the rate of 9% per annum, from the date of filing the petition till the date of payment of compensation.
14.The learned counsel appearing for the appellant argued that the Insurance Policy was an act policy, as such, the appellant is not liable to pay compensation to the claimant. It was further pointed out by the learned counsel that the rider of the offending vehicle was not in possession of valid licence. The non-jointer of the owner and the insurer of the vehicle namely TVS Suzuki bearing registration No.TN27 F0125 and as such the claim petition is not maintainable. The award of Rs.1,00,400/- awarded to the petitioner is not sustainable.
15.The learned counsel appearing for the first respondent argued that the petitioner was admitted in the private hospital for treatment, wherein he underwent treatment for 20 days, for which medical expenses incurred a sum of Rs.47,400/-. Supporting this claim the petitioner produced the medical bill series, which was marked as Ex.P15. It was further argued by the first respondent counsel that the rest of the award granted under the heads of pain and suffering is Rs.5,000/-, loss of marriage expectation is Rs.7,000/-, towards nutrition Rs.1,000/- and towards disability a sum of Rs.40,000/- was granted as 40% disability. These are all of the lower side. Further, the learned counsel appearing for the first respondent has vehementally pointed out that the Tribunal had not awarded for transport expenses and loss of income.
16.Considering the facts and circumstances of the case, arguments advanced by both side learned counsels and the findings of the Tribunal, this Court is of the view that the medical expenses of Rs.47,400/- was granted on the strength of medical bills, rest of the claim amount for pain and suffering, for disability, for loss of marriage expectation, the Tribunal granted a sum of Rs.5,000/-, Rs.40,000/- and Rs.7,000/- respectively. These are reasonable and fair, since the petitioner underwent skin grafting, severing of 5th toe of his foot deformation and bend of the right thigh bone, which are a never ending displeasure for his life. As such, this Court does not find any error of the award and decree passed by the Motor Accident Claims Tribunal (First Additional District Judge-cum-Chief Judicial Magistrate), Salem, in M.C.O.P.No.727 of 1999, a sum of Rs.1,00,400/- 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 fair and equitable.
17.At the time of admission, this Court directed the appellant to deposit the entire compensation amount with interest to the credit of the M.C.O.P.No.727 of 1999, on the file of the Motor Accident Claims Tribunal (First Additional District Judge-cum-Chief Judicial Magistrate), Salem. After such deposit the first respondent/claimant is permitted to withdraw a sum of Rs.50,000/-.
18.As the accident happened in the year 1999, it is open to the claimant to withdraw the balance compensation amount with accrued interest, lying to the credit of the M.C.O.P.No.727 of 1999, on the file of the Motor Accident Claims Tribunal (First Additional District Judge-cum-Chief Judicial Magistrate), Salem, after filing necessary payment out application in accordance with law, subject to deduction of the withdrawal, if any.
19.In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 10.04.2001, in M.C.O.P.No.727 of 1999, passed by the Motor Accident Claims Tribunal (First Additional District Judge-cum-Chief Judicial Magistrate), Salem, is confirmed. Consequently, connected miscellaneous petition is closed. No costs.
krk
To
1.Motor Vehicles Accident Claims Tribunal,
First Additional District Judge-cum-
Chief Judicial Magistrate, Salem.
2. The Section Officer,
VR Section, High Court,
Madras