IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:18.09.2009 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.NO.787 OF 2005 The United India Insurance Company Limited., Third party claims Office, 38, Anna Salai, Chennai-600 002. . . Appellant Vs. 1.Thangapandian 2.C.Suresh .. Respondents Prayer:The civil miscellaneous appeal is filed against the judgment and decree of the Motor Accidents Claims Tribunal, Ponneri, dated 11.06.2004 and made in M.C.O.P.No.207 of 2002 and prays to set aside the same. For Appellant :Mr.T.D.Vasu For Respondents:Mr.R.Aravind for R1 JUDGMENT
This appeal has been filed by the appellant/second respondent against the judgment and decree passed by the Motor Accidents Claims Tribunal passed in M.C.O.P.No.207 of 2002, awarding a total compensation of Rs.2,42,000/- 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.
2. The aggrieved second respondent/appellant/United India Insurance Company Limited has filed the above appeal and challenged the award passed by the Motor Accidents Claims Tribunal.
3. The short facts of the case are as follows;-
The petitioner/claimant was working as a loadman in the vehicle lorry bearing registration number MDH4559, owned by the first respondent. On 06.07.2002, the first respondent’s driver has driven the vehicle at 100feet road, Annanagar West, New 18th Main Road, in a rash and negligent manner and so the said lorry was upset, in the result, the petitioner was caught under the load of bags carrying goods. Hence, he sustained grievous injuries. The said vehicle was owned by the first respondent and it was insured with the second respondent, the United India Insurance Company Limited. As such, both the respondents are jointly, severally and vigorously liable to pay compensation. The compensation claimed by the petitioner was Rs.3,00,000/-. Regarding the said accident, the traffic investigation wing attached to the V-5 Police Station registered a criminal case in Crime No.96/TMZ/02 against the said vehicle lorry driver.
4. The petitioner has claimed compensation under the following heads;-
Loss of earning
Transport to hospital
Compensation for continuing disability
Compensation for pain and suffering
Compensation for loss of earning power
In total a compensation of Rs.6,00,000/- was claimed. However, the claimant restricted his claim to Rs.3,00,000/-
5. The second respondent/United India Insurance Company has filed counter statement and opposed the claim of the petitioner. The second respondent denied the said accident which had occurred on 06.07.2002, and further denied that the accident happened due to the rash and negligent driving of the first respondent’s driver. The second respondent does not admit the claimants age, date and time of accident and also stated that the compensation claimed is highly excessive. The first respondent/owner of the vehicle did not inform the insurance company about the said accident. The Insurance Policy and driving licence of the driver has not been produced.
6. On the side of the respondent/claimant, two witnesses were examined namely PW1, the claimant herein and PW2, one doctor, Thyagarajan. On the side of the claimants, six exhibits were marked as Ex.P1 to Ex.P6, namely 1) First Information Report 2) Copy of the accident report 3) Medical discharge proceedings, 4) report of the Motor inspector 5) disability certificate and 6)X-ray.
7. The learned Motor Accidents Tribunal has framed two issued in the said claim case namely;
1) Due to whose negligence, the accident was caused? and
2) If the claimant is entitled to get compensation, and if so, what is the quantum of compensation?
8. In order to prove the negligence PW1 i.e. the claimant Thangapandian was examined and he tendered oral evidence before the Tribunal that on 06.07.2002 at about 04.45 a.m. the first respondent driver namely Gunasekaran had driven the vehicle lorry in a rash and negligent manner in the 100 feet road, Annanagar West, Near 18th Main Road Junction, when the lorry overturned, in the result, the claimant, who was the loadman in the said lorry, sustained injuries. Supporting his case, the claimant marked first information report as Ex.P1 and accident register as Ex.P2, discharge certificate as Ex.P3, Motor Vehicles Inspector’s report as Ex.P4.
9. After considering the evidence of the claimant and Ex.P1 to Ex.P4, the Motor Accidents Claims Tribunal has come to a conclusion that the accident had happened due to negligence of the driver, Gunasekaran. After coming to this conclusion, the Motor Accidents Claims Tribunal decided the quantum of compensation to be awarded in the following manner. The claimants wound certificate, i.e. Ex.P2 and accident report, X-ray were examined, and it was found that the injuries were sustained on right arm joint and chest of the claimant. This was further confirmed on the basis of X-rays. On the basis of discharge summary, the claimant underwent treatment at Stanley Government Hospital. On the strength of Motor Vehicle Inspector’s Report, it was proved that the vehicle belongs to the first respondent, one Mr.C.Suresh and the same was driven by his driver Gunasekaran that the said lorry has been insured with the second respondent, the United India Insurance Company Limited.
10. The learned counsel for the insurance company cited three cases reported in 1) 2002 AIR (1935) 2) 2003(3) CTC (380) and 3) 2001(1) TNMLJ (9) (68). As per these cases, the insurance company need not pay the said claim.
11. The Motor Accidents Claims Tribunal, after considering the above said judgments, has come to the conclusion, that the cases cited are not applicable to the instant case, since the claimant was a lorry loadman and had travelled in the said lorry. Hence, the claimant is entitled to get compensation from the respondents. The Tribunal has come to conclusion, on the strength of Ex.P2, Accident Register that the age of the claimant was 45 years. Regarding the income of the claimant, as no proof was available, the Tribunal decided that the claimant income was Rs.80/- per day. Further, the claimant underwent treatment at Stanley Government Hospital, as inpatient for 12 days and thereafter underwent treatment as out patient. For further treatment, the claimant had gone to hospital at Putthur. Supporting this mode of treatment, Ex.P2 and Ex.P3 were marked. One Dr.Thyagarajan, PW2, was examined on 07.03.2004 and he tendered evidence and stated that there were deep injury marks found on the left leg palms and also near the toe joint. Further, it was found that the movement of the joint was only 50, and hence the claimant can walk only with a limp. As such, 35% disability happened to the claimant. Further, his spinal cord has broken and been compressed and as a result he will not be able to do any hard work like bending and sitting as usual. Due to pain on his back side, he is wearing a belt. For this body condition, the disability was fixed at another 35%. In total, 70% disability was found on the claimants body due to the injuries suffered in the said accident. The said doctor’s disability certificate has been marked as Ex.P5, but the learned Tribunal has come to a conclusion that the disability is only 50%.
12. Taking this into the account, the quantum of compensation was fixed as under;-
28,800 X 15 = 4,32,000/- as per schedule 163 (A) of the Motor Vehicles Act. This works out to a sum of Rs.4,32,000/-, but the Tribunal, considering the disability at 50% calculated compensation for loss of income as
4,32,000 X 50/100 = 2,16,000/-. For pain and suffering, Rs.10,000/- was awarded; for nutrition Rs.10,000/- was awarded; for transport Rs.5,000/-; for damage of clothes Rs.1000/- was awarded; in total a sum of Rs.2,42,000/- was awarded by the Tribunal.
13. The first and second respondents are liable to pay the said award amount together with 9% interest, from the date of filing the claim petition till the date of payment of compensation within a month to the claimant. The Tribunal further directed that the said compensation amount was to be deposited in a nationalised bank for three years as fixed deposit. The claimant was permitted to withdraw the interest from the said deposit once in six months period. The Tribunal further directed that the extra court fee paid by the claimant has to be returned to him.
14. Challenging the findings of the Motor Accidents Claims Tribunal, the learned Counsel for the appellant/second respondent Insurance Company, filed the above appeal and prayed for setting aside the judgment and decree on the following grounds;
1) The claimant has not proved that he was a loadman in the said lorry, which was involved in the accident;
2) The claimant had travelled in the lorry only as a passenger, which is contrary to the Rule 240 of the Tamil Nadu Motor Vehicle Rules, 1989;
3) The claimant has not produced any documentary evidence that he was a loadman; further the owner of the lorry was not summoned to the Court to prove the same;
4) Further, there is no statutory liability on the appellant’s side to pay the compensation; and
5) Compensation also is on the higher side;
15. Per contra, the learned counsel for the respondent stated that after the said accident, the claimant lost his normal strength and was unable to walk and sit and could not carry out any physical work. He has sustained 70% disability all over the body. The same was confirmed through a Doctor, who is a competent person to give medical opinion, but the doctor’s medical opinion of 70% disability was not considered wholly by the Tribunal and the Tribunal has considered only 50% disability. Further, the learned counsel for the respondent pointed out that there is no error in the judgment and decree passed by the Motor Accidents Claims Tribunal in M.C.O.P.No.207 of 2002.
16. For the foregoing reasons and on consideration of the facts and circumstances of the case, this Court opines that the award passed by the Tribunal, on the basis of the income, age, occupation, nature of injuries, have been done on the basis of oral and documentary evidence. For calculating loss of income, the Tribunal considered only 50% disability instead of 70% disability, which was certified by a competent doctor. For pain and suffering Rs.10,000/- was awarded. There is no doubt that the claimant has suffered grievous injury and as such this award amount of Rs.10,000 for pain and suffering is reasonable under this head. Rs.10,000/- awarded under the head of nutrition is also reasonable. Rs.5,000/- awarded under the head of Transport expenses is also reasonable. Rs.1,000/- awarded under the head of damages of clothes is also fair. The judgment and decree passed by the Motor Accidents Claims Tribunal in M.C.O.P.No.207 of 2002 dated 11.06.2004 is fair and equitable. Hence, this Court is not warranted to interfere with the award passed and as such this Court confirms the judgment and decree of the Motor Accidents Claims Tribunal. This Court hereby directs the appellant/second respondent to deposit the balance award amount, within a period of six weeks, into the credit of M.C.O.P.No.207 of 2002 with 9% interest from the date of filing the claim petition till date of payment as compensation. It is open to the respondent/claimant to receive the compensation amount lying to the credit of M.C.O.P.No.207 of 2002 on the file of the Motor Accidents Claims Tribunal, Ponneri, since the Accident happened in the year 2002. Resultantly, the civil miscellaneous appeal has to be dismissed and accordingly it is dismissed and this Court confirms the judgment and decree passed in M.C.O.P.No.207 of 2002 on the file of Motor Accidents Claims Tribunal, Ponneri. The parties are directed to bear their own costs.
The Motor Accidents Claims Tribunal,