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2003 DIGILAW 344 (MAD)

M. Virudhagiri & Another v. Elangovan

2003-03-04

D.MURUGESAN, S.JAGADEESAN

body2003
Judgment :- D. MURUGESAN, J. Heard both the learned counsel for the appellants and the respondents. 2. The appeal is filed by the owner of the vehicle and the Insurance company challenging the award of Additional Motor Accidents Claims Tribunal (Sub Court, Virudachalam) dated 13.6.2001 made in M.C.O.P.NO.227/1999. 3. The respondent filed the said Original Petition seeking for a compensation of a sum of Rs.1,00,000/- for the injuries sustained by him in the Motor Accident, wherein the bus, belonging to the first appellant, insured with the second appellant, was involved. On considering both oral and documentary evidence, the Tribunal awarded a sum of Rs.76,000/- towards permanent disability by taking into consideration 38% disability certified by P.W.2. The disability Certificate is also marked as Ex.A.1. 4. In the appeal, the Insurance Company has questioned the quantum of compensation awarded towards permanent disability on the ground that though the permanent disability is assessed by the doctor only at 38%, the Tribunal awarded a sum of Rs.76,000/- instead of 38%. We have heard the learned counsel for the respondent. 5. In our judgment reported in 2003 (1) CTC 389 (Sasikala Ramalingam vs Sam Lyhia Nattar), we have held that joint appeal by Insurance Company and the owner of the vehicle involved in the accident is not maintainable by placing reliance on the judgment of the Apex Court reported in 2000 (4) SCC 130 (Chinnama George and others vs N.K. Raju and another). However, the learned counsel for the appellant brought to our notice the judgment of the Apex Court reported in Maqbool Pasha & Anr vs Irfan Ahammed & Anr.(JT 2002 (5) SC 118, wherein the Apex Court has held that though joint appeal at the instance of the Insurance Company and the owner of the vehicle is not maintainable, that would not be a ground for dismissal of the appeal. In such circumstances, the proper course to be adopted by the Courts is to delete the appellant from the cause title and decide the appeal on merits. 6. In view of the said Judgment of the Apex Court, we direct the deletion of the second appellant viz., the Insurance Company from the appeal and proceed to decide the case on merits. 7. As per the evidence of P.W.2, the doctor, the permanent disability has been assessed only as 38 %. 6. In view of the said Judgment of the Apex Court, we direct the deletion of the second appellant viz., the Insurance Company from the appeal and proceed to decide the case on merits. 7. As per the evidence of P.W.2, the doctor, the permanent disability has been assessed only as 38 %. In the normal course, the Tribunal ought to have awarded the compensation towards permanent disability only for a sum of Rs.38,000/- instead of Rs.76,000/-. There is absolutely no material to show that on what basis, the Tribunal awarded a compensation of Rs.76,000/- presuming the permanent disability is 76%. Such award of compensation, in our considered view cannot be sustained, as the same is excessive. The respondent is entitled to only a sum of Rs.38,000/- towards permanent disability. We also do not find any amount of compensation awarded to the respondent towards loss of earning capacity, taking into consideration of the nature of injuries on head, nose, chest, on both leg joints as well as on teeth and the further fact that the respondent is unable to perform his duties, as he was doing prior to the date of accident, we award a sum of Rs.5,000/- towards the loss of earning capacity. That apart, it is the evidence of the respondent, who examined himself as P.W.1 that he was earning a sum of Rs.60/- per day working as Coolie and he is unable to perform the said duty because of the injuries sustained by him. No separate amount of compensation is awarded towards loss of income of the respondent. Hence we award a sum of Rs.3,000/- towards this head. 8. Accordingly, we modify the award of the Tribunal entitling the respondent/claimant for a sum of Rs.38,000/- towards permanent disability; a sum of Rs.3,000/- towards nutritious meals; a sum of Rs.5,000/- towards pain and sufferings; a sum of Rs.5,000/- towards loss of earning capacity and a further sum of Rs.3,000/- towards loss of income; in all a sum of Rs.54,000/- which amount would carry an interest of 9% from the date of the petition till the date of deposit. We find that the Tribunal had already permitted the respondent to withdraw Rs.42,000/- representing 50% of the amount of compensation. 9. We find that the Tribunal had already permitted the respondent to withdraw Rs.42,000/- representing 50% of the amount of compensation. 9. In view of our modified award, the respondent/claimant is entitled to only a sum of Rs.12,000/- together with interest at 9% per annum from the date of petition till the date of deposit to be paid by the first appellant. With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs. Consequently, the connected C.M.P is closed.