{"id":257739,"date":"2010-10-08T00:00:00","date_gmt":"2010-10-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/venkatavarada-reddiar-vs-a-anthonisamy-on-8-october-2010"},"modified":"2018-09-17T10:42:43","modified_gmt":"2018-09-17T05:12:43","slug":"venkatavarada-reddiar-vs-a-anthonisamy-on-8-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/venkatavarada-reddiar-vs-a-anthonisamy-on-8-october-2010","title":{"rendered":"Venkatavarada Reddiar vs A.Anthonisamy on 8 October, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Venkatavarada Reddiar vs A.Anthonisamy on 8 October, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\t\t\nDATED: 08.10.2010\n\nCoram:\n\t\t\t\nTHE HONOURABLE MR. JUSTICE C.S.KARNAN\n\nC.M.A. No. 1659 of 2006\n\n\n\n\n1.Venkatavarada Reddiar\n\n2.The Divisional Manager,\n   M\/s.National Insurance Co.,Ltd.,\n   Pondicherry.\t\t                               .. Appellants\n\n\nvs.\n\n\nA.Anthonisamy                                          ...Respondent\n\n\n\t\t\t\nPrayer: Civil Miscellaneous Appeal filed under Section 173<\/a> of Motor Vehicles Act, 1988 against the award and decree in M.C.O.P.No.766 of 2002, dated 30.07.2002, on the file of the Motor Accident Claims Tribunal, (II Additional District Judge) Pondicherry.\n \t\t\t\t\t\t\n\t\tFor Appellants          :   Mr.S.Vadivel\n\n\t\tFor Respondent          :   Mr.R.Natarajan\n     \n\nJ U D G M E N T\n<\/pre>\n
\tThe above Civil Miscellaneous Appeal has been filed by the appellants\/respondents against the award and decree passed in M.A.C.T.O.P.No.766 of 2002, dated 30.07.2002, passed by the Motor Accident Claims Tribunal, (II Additional District Judge), Pondicherry awarding a compensation of Rs.3,78,800\/- with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation.\n<\/p>\n
\t2.Aggrieved by the said award and decree, the appellants have filed the above appeal praying to  scale down the compensation passed by the Tribunal.\n<\/p>\n
\t3.The short facts of the case are as follows:\n<\/p>\n
\tOn 18.06.2001 at about 11.45 p.m., the petitioner was standing on the extreme left side of the Pondicherry-Villupuram Main Road in Reddiarpalayam  near Pondy Roadways Bus Shed.  At that time, the stage carriage bus bearing Registration No.PY\/01-D-8323 belonging to the first respondent, insured with the second respondent came from Villupuram towards  Pondicherry i.e., from South to North in a rash and negligent manner, and dashed against the petitioner.  Due to the impact, the petitioner was thrown out on  the left side of the road and he fell down and lying on the  road side unconciously. Some  of the persons who got down  from the bus questioned and went away without any help.  On 19.06.2001, at about 7.00 A.M. one Moorthy son of Arumugam saw the injured petitioner and he admitted him in Government General Hospital, Pondicherry for treatment.  Because of the accident, the petitioner sustained the following injuries.\n<\/p>\n
\ti)Trochenteric fracture of left femur.\n<\/p>\n
\tii)Fracture of lower 1\/3rd of femur right\n<\/p>\n
\tiii)Fracture of scapular right\n<\/p>\n
\tiv)Fracture of right side ribs 1,2,3,4 & 5\n<\/p>\n
\tv)Right Haemothoray.\n<\/p>\n
The petitioner was 40 years old, experienced bus driver working in Pondicherry  Roadways Bus Service, Pondicherry for about 13 years.  He was hale and  healthy before the accident.  He was getting Rs.250\/-per day as his daily batta apart from his salary.  His average  monthly income was Rs.7,000\/- The petitioner got married  and he has a 19 years old son and 11 years old daughter. His son is studying in I.T.I.  and his daughter is studying 6th standard in the school for Deaf and Dumb students at Pondicherry.  All the members of his family were depending upon the  only income  of the petitioner.  The accident had happened only due to the rash and negligent driving of the driver of the first respondent’s bus.  As such, the petitioner claimed a compensation of Rs.7,00,000\/- with interest before the Tribunal.\n<\/p>\n
\t4. The second respondent\/National Insurance Company resisted the claim petition, which reads as follows:\n<\/p>\n
\t\ta)The petitioner is put to strict proof  of the accident itself as the F.I.R.  has been fabricated and the same is false.  As per the petition, the accident has  taken place on 18.06.2001 and the complaint has been lodged  to S.H.O. Reddiarpalayam on 21.6.2001 therefore it is absolutely a false and a fabricated F.I.R.\n<\/p>\n
\t\tb)If there is an accident as alleged by the petitioner, the matter would have immediately been  intimated to the S.H.O. Reddiarpalayam or to the outpost  present in the G.H. itself. Moreover, in the F.I.R. itself it has been clearly mentioned that at the time of accident,  the petitioner seems to have consumed ALCOHOL and lying in the road.  Moreover, the petitioner has been taken to the Hospital by his wife  and one Moorthy.  There was no intimation filed by the petitioner issued by G.H.  to the S.H.O.Reddiarpalayam, along with  the petition.\n<\/p>\n
\t\tc)As per the wound certificate also the Medical Officer who is in-charge, examined the petitioner on 19.6.2001 at 7.40 a.m.  whereas the accident had occurred  on 18.6.2001, has clearly  mentioned  that the petitioner was under the influence  of ALCOHOL  at the time of treatment.\n<\/p>\n
\tAs such, the second respondent prayed for dismissal of the petition.\n<\/p>\n
\t5.After considering  the plea  of the claimant and counter statement of the 2nd respondent, the Motor Accidents Claim Tribunal  had framed the following three issues for consideration and passed order as follows:-\n<\/p>\n
\t\ti)Whether the accident had occurred due to the rash and negligent  driving of the bus bearing Regn.No.PY-01\/D-8323 belonging  1st respondent by its driver?\n<\/p>\n
\t\tii)Whether the driver of 1st respondent’s bus was having valid licence to drive the same and whether the said bus was covered by proper documents as contemplated under the Motor Vehicles Act<\/a>  at the time of accident?\n<\/p>\n
\t\tiii) What was the nature of injury sustained by the petitioner and what should be the quantum of compensation and by whom  is it  payable?\n<\/p>\n
\t6.On the side of the petitioner, the petitioner was examined as PW1 and one eye-witness G.Karthikeyan was examined as PW2 and eleven documents were marked namely\tEx.A1Photo copy of F.I.R.135\/01 of Reddiarpalayam P.S.,Pondicherry, marked through PW1, Ex.A2-Photo copy of Insurance Certificate, issued by R2 relating to 1st respondent’s vehicle,  marked through PW1,Ex.A3 – Photo copy of driving licence of the petitioner, marked through PW1,Ex.A4- Photo copy of driving licence of 1st respondent’s driver, marked through PW1,\tEx.A5-Photo copy of R.C. relating to 1st respondent’s vehicle, marked through PW1,Ex.A6-Photo copy  of Wound certificate  of petitioner,  issued by G.H., Pondicherry, marked through PW1,Ex.A7 -Two numbers  of discharge slip issued to the petitioner, marked through PW1,Ex.A8- Salary  Certificate of the petitioner, issued by his  employer marked through PW1,Ex.A9-   Copy of charge sheet filed in FIR No.135\/01, marked through PW1,Ex.A10-Photo copy  of receipt  for the payment of fine by the petitioner, marked through PW1 and Ex.A11-Disability Certificate, issued by G.H., Pondicherry, marked through PW1.  On the respondents side no witnesses were examined  and no documents were marked.\n<\/p>\n
\t7.The petitioner has stated in his petition that on 18.06.2001 when he was standing near Raman Roadways  Bus shed in Reddiarpalayam on Pondicherry  Villupuram Main Road, the bus belonging to 1st respondent driven by its driver in a rash and negligent manner and dashed against him and as a result of which he was thrown out and became unconscious.  On the next day,  one Moorthy took him to Government General Hospital, Pondicherry for treatment.  He reiterated the same facts in his evidence before this Tribunal.  The said Moorthy lodged the complaint  with Reddiarpalayam P.S. and on that basis, F.I.R. was registered against the driver of the bus belonging to 1st respondent.  The registration of F.I.R.  against the driver of 1st respondent’s bus shows prima facie negligence on the part of  driver  of 1st respondent.  PW2 is an eye-witness to the occurrence and he corroborated the evidence of PW1.  The driver of 1st respondent’s bus was not examined  so as to torpedo the evidence of PW1.  Without examining the driver of 1st respondent’s bus, the insurer cannot take in the defence that there was no  negligence on his part.   The driver of 1st respondent’s bus has admitted the offence before the  criminal court and has paid fine also.   In the absence of any evidence to the contrary, the evidence of PW1 remains unchallenged and unshattered.  Hence, this point is decided in favour of the petitioner to the effect that the accident occurred due to the rash and negligent driving of the bus belonging to 1st respondent by its driver.\n<\/p>\n
\t8.It is a trite proposition of law that R2, the insurer of 1st respondent’s vehicle should prove that the driver of 1st respondent’s vehicle was not having valid driving licence and that the  said vehicle was not covered by proper documents as contemplated under the M.V.Act at the time of accident.  Ex.A4-the photo copy of driving licence of 1st respondent’s driver, Ex.A5- the photo copy of driving licence of 1st respondent’s driver, Ex.A5- the photo copy  of R.C.book of 1st respondent’s bus, Ex.A2-the photo copy of Insurance Certificate issued by R2 in favour of 1st respondent’s bus, would all go to show that  the driver of 1st respondent’s bus was  having  valid  driving licence and  that the said bus was covered by valid and proper documents, as contemplated under the Motor Vehicles Act<\/a> at the time  of accident.  The point is decided accordingly.\n<\/p>\n
\t9.The petitioner has claimed a compensation of Rs.7,00,000\/- for the injuries sustained  in the accident.  Ex.A6 is the photo copy of wound certificate issued by Government General Hospital, Pondicherry wherein, the doctor has stated that the injuries are grievous in nature.  Ex.A7 is the discharge slip issued by the Government General Hospital, Pondicherry wherein it is mentioned that the petitioner was admitted on 19.06.2001 and was discharged on 07.08.2001 and again from 22.08.2001 to 29.09.2001.  Ex.A11 is the Permanent Disability Certificate, issued  by the Department of Orthopaedics, Government General Hospital, Pondicherry, wherein it is stated that the petitioner suffered from 60%  permanent disability.  The above  percentage of disability has been arrived at by taking into account the following:1) Post traumatic sequelae of both lower limbs and right shoulder, 2) old fracture of trochanter with shortening of two inches left side, 3) old fracture of shaft of right side, 4) restriction of right shoulder movements.  Apparently, there is nothing to doubt the disability arrived at by the Department of Orthopaedic, Government General Hospital, Pondicherry.\n<\/p>\n
\t10.  To prove the income, the petitioner has filed Ex.A8, wherein it is stated that the petitioner was drawing a monthly income of Rs.1,000\/- and a daily batta of Rs.250\/- for twenty days.  In all, the petitioner was earning a sum of Rs.6,000\/-p.m.  The author of Ex.A8 was not examined to substantiate the same.  The driver working in a private transport company might have got a salary of not less than Rs.3,000\/- At the time of accident, the petitioner was aged about 37 and hence,  multiplier ’16’ is adopted to assess the loss of income.   As such, the loss of income due to the disability  sustained by the petitioner due to the accident, is assessed at (36,000X60X16) Rs.3,45,600\/- Due to the grievous  injuries sustained in the accident, the petitioner  might have suffered  pain and sufferings  and hence under that count, a sum of Rs.5,000\/- is awarded  as compensation.  The petitioner took treatment in the Government General Hospital, Pondicherry for about 82 days.  For those 82 days, a sum of Rs.8,200\/-@ Rs.3,000\/- is awarded as compensation towards loss of income.  Due to the injuries and the consequent permanent disability, the petitioner might have suffered mental agony and hence a sum of Rs.10,000\/- is awarded as compensation under that counter.  The petitioner might have taken rich and nutritious food for  recuperation  of his health and hence,  a sum of Rs.10,000\/- is awarded under that count.  In all, the petitioner is entitled to a compensation of Rs.3,78,800\/-  The amount  of compensation is just and reasonable and it would  meet the ends of justice.\n<\/p>\n
\t11.In the result, this petition is allowed with cost.  An award of Rs.3,78,800\/- (Rupees Three Lakhs Seventy Eight Thousand  and Eight Hundred Only)  is passed by this Tribunal with interest at 9%p.a. from the date of petition, viz.06.08.2002 till the date of deposit. The entire award amount shall be deposited in the State Bank of India,  Agricultural Development Branch, Pondicherry for a period of three years with liberty  to the petitioner to draw quarterly interest. Accordingly ordered.\n<\/p>\n
\t12. Aggrieved by the said award and decree passed by the Motor Accident Claims Tribunal, the appellants\/respondents have filed the present Civil Miscellaneous Appeal to  scale down the compensation amount, awarded by the Tribunal.\n<\/p>\n
\t13. The learned counsel for the appellants\/respondents vehemently argued that the claimant consumed alcohol at the time of accident.  The same was narrated to the Investigation Police Officer.  The same was confirmed through FIR, Ex.P1 as  such the claimant had committed negligence on his side. The learned counsel further argued that the compensation amount under the various heads are excessive and exorbitant.\n<\/p>\n
\t14.The learned counsel further argued that the Tribunal awarded a compensation  of Rs.3,45,600\/- under the head of loss of income for 60% disability.  The same was awarded after adopting multiplier method.  In the instant case,  the multiplier  method will not be applicable.   The learned counsel further argued that Doctor was not examined in this case.  As such, the disability assessed by the doctor  as 60% is not sustainable under Law. The learned counsel  specifically argued that the accident  had happened on 18.06.2001, but the FIR was lodged on 21.06.2001.  Further the  claimant was admitted in hospital as in-patient  on 19.06.2001. The learned counsel further argued that in the absence of proper  income proof  and in the absence of doctor’s evidence,  the multiplier method was adopted by the Tribunal and awarded the compensation under the head of loss of income for disability is not pertinent in the instant case. Rs.10,000\/- had been  awarded by the Tribunal  under the  head of  mental agony  which is not pertinent.  In support  of his contention, the learned counsel produced  the following judgments  reported in (2007) 13 SCC 625, Andhra Pradesh State Road Transport Corporation represented by its Chief Law Officer Vs. M.Pentaiah Chary; the relevant head notes of which are as follows:\n<\/p>\n
“Motor Vehicles Act<\/a>, 1988   – Ss.168-A, 166 and SchII  Compensation  Multiplier  Deviation from Scheduled multiplier  If  and when permissible  Claimant  aged 38 years, working as a carpenter, monthly salary of Rs.4,500  Dependants  included parents, wife, two daughters, one son- claimant was permanently disabled in a motor vehicle accident- Tribunal awarding Rs.85,000\/- as damages along with  12% interest- High Court, in appeal, granting  further amount of Rs.1,62,000\/- -Question arising whether the multiplier of 15 was correctly  applied- Appellant  claiming that multiplier  of 12 should  be applied- if  warranted  Held, the accident  took place on 26.01.1995- Parliament  inserted S.163-A of the Act by Act 54 of 1994  with effect from 14.11.1994  The said provision contains a non obstante clause in terms whereof inter alia the owner of the motor vehicle  is made liable  to pay, in the case of death or  permanent disablement, compensation, as indicated in the Second Schedule  appended to the Act- In view of the fact that the claimant being deprived of a reasonable  amount of  compensation and the fact that he has permanently lost his capacity to earn, remaining dependent on others  besides physical sufferance of such  magnitude,  multiplier suggested by Parliament  should be accepted  There is no intention to lay down a general law  However, the minimum compensation payable in a case of this nature should be considered from the suffering of disability undergone by the victim –  It is not suggested that in certain  situations the multiplier  specified in the Second Schedule cannot and should not be altered but there must exist  strong circumstances _ Appellant shall bear the costs of the respondent- Constitution of India  Art.136-<\/a> Interference  Scope of.”\n<\/p>\n
2003(1) CTC 389, Mrs.Sasikala Ramalingam and another Vs. Sami Jyhia Nattar and 7 others, the relevant head notes of which are as follows:\n<\/p>\n
\t\t\t\tMotor Vehicle Act<\/a>, 1988, Sections 147<\/a>,149<\/a> (2) & 173- Maintainability of appeal by Insurer independently or jointly with insured on quantum of  compensation  Insurer  had benefit  of challenging  award only  on any one or all grounds available  under section 149<\/a> (2)  Quantum of compensation is not ground mentioned  in section 149<\/a> (2)- Insurer  cannot file  appeal against award of compensation on ground of quantum  of compensation-Insurance company cannot maintain  joint appeal  along with  Insured  as Insurance Company  cannot seek any relief  indirectly  which it cannot seek  directly- Joint appeals at instance  of parties having  common cause can be filed when there is entitlement  to challenge  impugned order by both appellants  or several appellants-Joint  appellants  should show  common cause  as well as their entitlements to challenge orders under appeal- If joint appellants espouse different causes  they have to  file separate  appeals-  Entitlement to file appeal  should also be common- When entitlement to challenge  compensations is not common to Insurance Company and Insured, joint appeal is not maintainable.\n<\/p>\n
\t Therefore, the learned counsel prays before this Court to  scale down the compensation  amount awarded by the Tribunal.\n<\/p>\n
\t15.The learned counsel for the respondent  argued that it is an admitted fact that the 1st respondent  bus dashed against the claimant  in a rash and negligent manner as such the claimant sustained grievous bone fracture  injury.  The same was informed to the son-in-law on 19.06.2001.  Immediately he was rushed  to the occurrence place and he had taken  the claimant  to the hospital,  wherein he was admitted as in-patient.  Subsequently, he lodged the complaint to the investigation police officer there is no malafide  statement on the side of the complainant. The learned counsel  further  argued that the injured person is the driver. After the accident, he is unable to perform his normal duty  as driver.  As such his avocation  of duty is affected.  Hence the Tribunal awarded a  compensation   after adopting the multiplier method which is proper.  The learned counsel further  argued that the Tribunal had not granted any compensation under the head of transport expenses.\n<\/p>\n
\t16. Considering the facts and circumstances of this case,  scrutiny of the findings of the learned Motor Accident Claims Tribunal and arguments advanced by the learned counsel appearing  on either side, this Court is of the view that the  award passed by the Tribunal is not appropriate, hence, this Court modifies the award as follows :\n<\/p>\n
\ti)  Rs.1,20,000\/- under the head of  loss of income for 60% disability.\n<\/p>\n
\tii)Rs.15,000\/- under the head of pain and sufferings\n<\/p>\n
\tiii)Rs.10,000\/- under the head of extra nourishment\n<\/p>\n
\tiv)Rs.10,000\/- under the head of transport expenses\n<\/p>\n
\tv)Rs.9,000\/- under the head of attendant charges\n<\/p>\n
\tvi)Rs.18,000\/- under the head of  loss of income during  the medical treatment period  and subsequent period\n<\/p>\n
\tvii) this court awards a sum of Rs.1,00,000\/- under the head of loss of earning capacity  since the claimant is a driver. In total, this Court awarded a sum of Rs.2,82,000\/- with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation.   As such this Court scales down the said award from Rs.3,78,800\/- to Rs.2,82,000\/- which is found to be fair and equitable.\n<\/p>\n
\t17. This Court imposed a condition, on 14.06.2006, on the appellant  to deposit 75% of the award  amount  with interest and cost, into the credit of M.C.O.P.No.766 of 2002, on the file of the Motor Accident Claims Tribunal \/ II Additional District and Sessions Judge, Pondicherry on 26.09.2006.  Further, this court permitted the claimant  to withdraw  25% of the deposit amount lying in the credit of the MCOP.No.766 of 2002 on the file of the  Motor Accidents Claims Tribunal, Addl District Judge, Pondicherry. This Court directed the Tribunal to deposit the balance compensation amount in a nationalised bank for a period of three years under the FD scheme.\n<\/p>\n
\t 18.Now, it is open to the claimant to withdraw the balance compensation amount with accrued interest  thereon lying in the credit  of the MCOP.No.766 of 2002, on the file of the  Motor Accident Claims Tribunal, Additional District Judge, Pondicherry, after filing necessary  payment out application  in accordance with law subject to the deduction of withdrawal if any made, as per this Court order.  Likewise, the  appellant\/Insurance Company is at liberty to withdraw the excess compensation, after  observing the formalities of the Court.\n<\/p>\n
\t19. In the result, the above civil miscellaneous appeal is partly allowed and the award and decree dated 30.07.2004 passed by the  Motor Accident Claims Tribunal, II Additional District Judge, Pondicherry  in M.C.O.P.No.766 of 2002 is modified.\n<\/p>\n
\tConsequently, the connected Miscellaneous petition is closed.  No costs.\n<\/p>\n
gv<\/p>\n
To<\/p>\n
1.\tThe Motor Accidents Claims Tribunal,
\n \t(II Additional District Judge) Pondicherry.\n<\/p>\n
2.\tThe Section Officer
\n   \tV.R. Section
\n   \tHigh<\/a> Court,
\n\tMadras<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Venkatavarada Reddiar vs A.Anthonisamy on 8 October, 2010 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.10.2010 Coram: THE HONOURABLE MR. JUSTICE C.S.KARNAN C.M.A. No. 1659 of 2006 1.Venkatavarada Reddiar 2.The Divisional Manager, M\/s.National Insurance Co.,Ltd., Pondicherry. .. Appellants vs. A.Anthonisamy …Respondent Prayer: Civil Miscellaneous Appeal filed under Section 173 of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-257739","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nVenkatavarada Reddiar vs A.Anthonisamy on 8 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/venkatavarada-reddiar-vs-a-anthonisamy-on-8-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Venkatavarada Reddiar vs A.Anthonisamy on 8 October, 2010 - 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