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2007 DIGILAW 1433 (MAD)

Gopalan v. S. M. Saminathan & Others

2007-04-23

P.R.SHIVAKUMAR

body2007
Judgment :- This Civil Miscellaneous Appeal is directed against the Judgment and award dated 04.04.2000 passed in M.C.O.P.No.194 of 1997 by the Motor Accidents Claims Tribunal (Subordinate Judge), Kumbakonam, so far as the disallowed portion of the claim is concerned. 2. Aggrieved by the insufficiency of the compensation awarded by the Tribunal by its award-dated 04.04.2000 made in M.C.O.P.No.194 of 1997, the injured/claimant has preferred this Civil Miscellaneous Appeal seeking enhancement of compensation. 3. The appellant/claimant had filed the above said M.C.O.P. under Sections 140,141,142 and 166 of the Motor Vehicles Act on the file of the Motor Accidents Claims Tribunal (Subordinate Judge), Kumbakonam, containing the following allegations: On the date of accident, namely, 04.04.1995, the appellant/claimant was driving the said town bus No.23 belonging to the first respondent at normal speed, carefully and cautiously, keeping the left side of the road and observing the rules of road. At about 03.45 p.m., when the said bus was proceeding towards Uppiliyappan Kovil from Kumbakonam, the lorry bearing Registration No.TAO-6795, of which the second respondent Munirajan was the owner, came in the opposite direction i.e. from east to west driven by its driver rashly and negligently and dashed against the above said town bus of the first respondent at a place near Seetha Lakshmi Ice Factory. The third respondent (Oriental Insurance Company) happened to be the insurer of both the vehicles as on the relevant date. Since the accident was the result of the rash and negligent driving of the other vehicle, viz., lorry belonging to the second respondent, the second and third respondents, as the owner and insurer of the offending vehicle, were liable to pay compensation to the appellant/claimant, as he sustained multiple injuries all over the body in the above said accident. The injuries sustained by the appellant/claimant have led to mental shock and permanent disability. The appellant/claimant and his family members, due to the above said accident, were on the brink of starvation and hence an award should be passed directing the respondents to pay a sum of Rs.5,00,000/- as compensation to the appellant/claimant together with future interest and costs. In support of his claim, the claimant has examined himself as P.W.1 and relied on seven documents, marked as Exs.A.1 to A.7. 4. In support of his claim, the claimant has examined himself as P.W.1 and relied on seven documents, marked as Exs.A.1 to A.7. 4. The first respondent remained exparte and the second and third respondents contested the claim by filing separate counter statements containing similar allegations, denying the liability to pay compensation and disputing the correctness of the averments made in the claim petition regarding the nature of accident and the negligence aspect. In addition to the specific denial of the petition allegations, the said respondents have also contended that all the injuries sustained by the appellant/claimant in the accident were simple in nature and that the allegations regarding permanent disability were made as a result of the invention made by the appellant/claimant for the purpose of making an enhanced claim of compensation. It was the further contention of the third respondent that since the appellant/claimant happened to be the employee of the first respondent, he could make a claim for compensation only under the Workmens Compensation Act and could not make any claim against the third respondent, as he was not a third party to the vehicle involved in the accident. 5. With the above said counter allegations made in the counter statements, the respondents had prayed for the dismissal of M.C.O.P. with costs. In support of the defence case of the respondents, no witness was examined and no document was marked. 6. The Tribunal, after completion of recording evidence, heard the arguments advanced on both sides, framed the necessary questions for determination, considered the records brought forth and upon such consideration, came to the conclusion that the driver of the lorry belonging to the second respondent was at fault. Holding further that though the claimant was successful in establishing his case that he sustained injuries due to the above said accident, the Tribunal held that the injuries were only simple in nature and did not result in permanent disability. Holding further that though the claimant was successful in establishing his case that he sustained injuries due to the above said accident, the Tribunal held that the injuries were only simple in nature and did not result in permanent disability. In line with the said finding that the injuries sustained by the claimant in the accident were simple in nature and based on the fact that the appellant/claimant had not produced any document to prove that he spent any amount towards medical expenses, the Tribunal awarded a total sum of Rs.6,500/- as compensation which consists of Rs.1,500/-for medical expenses and Rs.5,000/- for pain and suffering and directed the respondents 2 and 3 to pay the above said amount with an interest at the rate of 12% per annum from the date of claim petition till realisation. The period between 16.09.1998 to 23.01.2000 during which M.C.O.P. stood dismissed for default was directed to be excluded for calculation of interest. 7. Attacking the Judgment of the Tribunal, so far as the disallowed portion of the claim is concerned, this appeal has been brought forth at the instance of the appellant/claimant. The respondents have not chosen to file either an appeal or cross-objection, challenging the award passed by the Tribunal holding them jointly and severally liable to pay compensation to the claimant. Therefore, it is unnecessary to traverse the evidence regarding the nature of accident and the question of negligence which has, since become a closed chapter. The only question that arises for consideration in this civil miscellaneous appeal is whether the compensation awarded by the Tribunal is low and hence it requires upward revision. 8. This Court heard the arguments advanced on behalf of the appellant and the second and third respondents and paid its anxious considerations to the same. 9. The only question that arises for consideration in this civil miscellaneous appeal is whether the compensation awarded by the Tribunal is low and hence it requires upward revision. 8. This Court heard the arguments advanced on behalf of the appellant and the second and third respondents and paid its anxious considerations to the same. 9. Mr.V.K.Vijaya Raghavan, learned counsel, advancing arguments on behalf of the appellant/claimant, would contend that the Tribunal has committed an error in not accepting the case of the appellant/claimant that he suffered permanent disability due to the injuries sustained by him in the accident; that the Tribunal ought to have awarded a substantial amount as compensation for permanent disability; that the award of a sum of Rs.1,500/- alone towards medical expenses is erroneous and the same deserves to be substantially enhanced; that the Tribunal has awarded only a paltry sum of Rs.6,500/-as compensation for the injuries sustained by the appellant/claimant as against the claim of Rs.5,00,000/-; that the Tribunal has not properly appreciated the pleading and evidence and came to a wrong conclusion that the claimant suffered only simple injuries; that based on the erroneous finding regarding nature of injuries, the Tribunal has awarded a meagre sum of Rs.6,500/- as compensation and that hence the compensation awarded by the Tribunal should be enhanced to Rs.1,00,000/-. 10. Per contra, the learned counsel for the second and third respondents would contend that the Tribunal has rightly rejected the contention of the appellant/claimant that he sustained grievous injuries which resulted in permanent disability; that the award of a sum of Rs.6,500/- for the simple injury sustained by the appellant/claimant is quite reasonable; that there is no scope for interference with the same in this appeal and that hence the appeal should be dismissed with costs. 11. The appellant/claimant chose to examine himself as the sole witness on his side. The relevant documents regarding the nature of injuries sustained by him are Exs.A.1 ¬Copy of the First Information Report, Ex.A.2-Copy of the Accident Register, Ex.A.4 ¬Discharge Summary and Ex.A.7 series - Medical Bills. A case was registered in Crime No.177 of 1995 on the file of the Natchiarkovil Police Station against the driver of the lorry bearing Registration No.TAO-6795 belonging to the second respondent in connection with the accident concerned in this case. A case was registered in Crime No.177 of 1995 on the file of the Natchiarkovil Police Station against the driver of the lorry bearing Registration No.TAO-6795 belonging to the second respondent in connection with the accident concerned in this case. From Ex.A.1, it is seen that the said criminal case was registered for offences punishable under Sections 279 IPC (Rash driving or riding on a public way) and Section 337 IPC (Causing hurt by act endangering life or personal safety of others). From Exs.A.2 and A.4, it is obvious that the claimant was admitted in the Government Hospital on 04.04.1995 and discharged on 05.04.1995. The following were the injuries noted in the accident register: .(i) A lacerated wound measuring 1" x ½" x ½" over the right front parietal region; and .(ii) A linear abrasion over both the knees with flesh bleeding. There is no proof that there was bone - fracture or joint dislocation. Opinion of the doctor regarding the nature of injury is absent. The appellant/claimant has not chosen to produce the wound certificate which alone would contain the opinion of the Medical Officer regarding the nature of injuries. The failure to produce such a document will attract adverse inference against the appellant/claimant. The nature of injuries noted in Ex.A.2, in the absence of any bone - fracture or joint dislocation cannot be termed grievous in nature. The fact that the appellant/claimant was discharged on the very next day of his admission with an advice that he would consult any doctor if there was any problem subsequent to the discharge, will show that the injuries sustained by the appellant/claimant in the accident were only simple in nature. They are, two in number as evidenced by Ex.A.2 – Accident Register. For pain and suffering, due to the above said two simple injuries, the Tribunal has rightly awarded a sum of Rs.5,000/- as compensation which amount cannot be termed unreasonably low. 12. Though the accident took place on 04.04.1995 and after a brief treatment for one day, the appellant/claimant was discharged from the Kumbakonam Government Hospital, the appellant/claimant has chosen to produce a number of medical bills in Ex.A.7 series belonging to years 1997 and 1998. The documents found therein would give an indication that the claimant might have taken treatment at Sacred Heart Leprosy Centre, Kumbakonam not for the injury sustained in the accident, but for some other ailment. The documents found therein would give an indication that the claimant might have taken treatment at Sacred Heart Leprosy Centre, Kumbakonam not for the injury sustained in the accident, but for some other ailment. In spite of the fact that medical bills submitted in Ex.A.7 series pertained to a period not relevant to the period of treatment for the injuries sustained in the accident, the Tribunal was lenient enough to take them into consideration and award a sum of Rs.1,500/- towards compensation for medical expenses. As such, this Court is of the considered opinion that the award of Rs.1,500/-towards medical expenses in this case, by no stretch of imagination, could be termed unreasonably low or insufficient. 13. This Court, after having an independent assessment, of its own, of all the evidence brought on record before the Tribunal, comes to a conclusion that the Tribunal correctly assessed the compensation. This Court does not notice any error or infirmity in the award passed by the Tribunal. Thus the arguments advanced on behalf of the appellant, challenging the award of the Tribunal, so far as the disallowed portion of the claim is concerned, cannot be countenanced and the same deserves to be rejected as untenable. 14. For all the reasons stated above, this Court comes to a further conclusion that the Tribunal has correctly assessed the compensation to which the appellant/claimant was entitled at Rs.6,500/-; that the same cannot be termed either low or unreasonable; that the appellant has miserably failed in his attempt to make out a case for interference in this appeal with the award of the Tribunal; that the appellant has not made out a case for enhancement of compensation and that the appeal must fail with the result that the award passed by the Tribunal shall stand confirmed. Taking into consideration the facts and circumstances under which the appellant has come forward with this appeal, though the appeal deserves to be dismissed, this Court is of the view that the appellant need not be burdened with the liability of paying costs to the respondents. 15. In the result, the award of the Tribunal is hereby confirmed and this Civil Miscellaneous Appeal shall stand dismissed. There shall be no order as to payment of costs.