National Insurance Co. Ltd. , v. Perumal & Another
2008-02-22
R.BANUMATHI
body2008
DigiLaw.ai
Judgment :- Being aggrieved by the award of compensation of Rs.2,70,000/- for the injuries sustained by the first respondent, Insurance Company has preferred this appeal. 2.Relevant facts which are necessary for disposal of these appeals are as follows:- On the morning of 23.09.1998, claimant travelled in the bus bearing Registration No.TN 28 U 0646 to go to Erode. At about 6.45 p.m., when the bus was proceeding near Kichipalayam, the lorry came in the opposite direction. To prevent collision with the lorry, the bus driver severed the vehicle towards the left and in that course, the bus hit against the right side tamarind tree, due to which, the claimant sustained injuries on his left shoulder, left leg and he sustained fracture in the left clavicle and left tibia. After the accident, the claimant was admitted in a private hospital in Erode and he had taken treatment as in-patient for 1½ months. Alleging that the accident was due to negligent driving of the bus driver and his lack of care, claimant has filed Petition under Section 166 of M.V.Act, claiming compensation of Rs.5,00,000/-. 3.Opposing the claim, Insurance Company has filed counter stating that the bus was driven carefully and therefore, Insurance Company is not liable to pay compensation. Insurance Company has also disputed age, income of the deceased and nature of injuries suffered by the claimant, duration of treatment and nature of permanent disability, alleged to be suffered by him. 4.Before the Tribunal, claimant examined himself as PW-1. Dr.Kathiravan was examined as PW-2. Exs.A-1 to A-10 were marked. Upon consideration of oral and documentary evidence, Tribunal held that the accident was due to rash and negligent driving of the bus driver. 5.On the basis of evidence of P.W.s 1 and 2, Tribunal has assessed the permanent disability at 50% and taking claimants monthly income at Rs.2,500/-. Tribunal has awarded Rs.2,70,000/-for permanent disability, loss of earning power and pain and suffering. The Tribunal has awarded Rs.6,173/- for medical expenses and has awarded total compensation of Rs.2,91,173/- as compensation. 6.Challenging the quantum of compensation, the learned Counsel for the Insurance Company has submitted that the Tribunal has mechanically awarded a huge sum of Rs.2,70,000/- towards permanent disablement/loss of earning power and has not chosen to itemize the award.
The Tribunal has awarded Rs.6,173/- for medical expenses and has awarded total compensation of Rs.2,91,173/- as compensation. 6.Challenging the quantum of compensation, the learned Counsel for the Insurance Company has submitted that the Tribunal has mechanically awarded a huge sum of Rs.2,70,000/- towards permanent disablement/loss of earning power and has not chosen to itemize the award. It was further submitted that the Tribunal erred in assessing the permanent disability at 50% as was stated by PW-2 and the quantum of compensation awarded by the Tribunal is excessive and the same is to be considerably reduced. 7.Supporting the findings of Tribunal and quantum of compensation, the learned Counsel for the respondent/claimant submitted that the quantum of compensation awarded by the Tribunal is just and reasonable and the same cannot be interfered with. 8.It is not necessary to narrate the entire facts as to how the accident has occurred, who was responsible and who was rash and negligent in driving the vehicle. It is for the reason that the Tribunal has recorded the findings on the above aspects in favour of the claimant. Secondly, those findings of the Tribunal are not under challenge. 9.Admittedly, claimant travelled in the bus. Due to the hitting of the bus against the tamarind tree, claimant sustained injuries over his left knee tarso, dorso lumber spine, left clavicle and over the nose and right leg. Immediately after the accident, the claimant was admitted in LKM Hospital, Erode. X-Ray disclosed fracture in left knee lateral condyle of left tibia; fracture of body of D-12 Vertelura; left clavicle. 10.In his evidence, PW-1 has stated that he had taken treatment in the hospital as in¬patient for more than 1½ months. Claimant had produced Ex.A-7 Medical Bills for Rs.6,1775. Ten X-rays were taken and they were marked as Ex.A-8 series. 11.PW-2 Dr.Kathiravan had examined the claimant on 23.03.2002 and had noticed mal¬union of fracture in clavicle and fracture tibia/condyle and union of fracture D-12 in a compressed position. Tenderness was present on the knee and back. Claimant was having restriction of movement on the left shoulder, left knee and the spine. Stating that the claimant could not walk long distance and could not stand or bend for long time and could not lift any weight and finds it difficult to carry on any manual work, PW-2 has issued Ex.A-9 – disability certificate assessing the percentage of disability at 55%.
Stating that the claimant could not walk long distance and could not stand or bend for long time and could not lift any weight and finds it difficult to carry on any manual work, PW-2 has issued Ex.A-9 – disability certificate assessing the percentage of disability at 55%. 12.In his evidence, PW-1 has stated that even after the accident, he has difficulty in walking and carrying on his normal avocation. At the time of accident, claimant was working as hiring men for sand lorry. PW-1 has stated that after the accident, he is not in a position to travel and carry on his avocation. Having regard to the evidence of P.W.s 1 and 2 and the nature of injuries, Tribunal has taken the percentage of disability as 50%. Tribunal has awarded Rs.2,70,000/- for permanent disability and loss of earning power. 13.The Tribunal has awarded Rs.10,000/- for pain and suffering and Rs.5,000/- for extra nourishment. Claimant had sustained nearly three fracture injuries. Because of fracture D-12, claimant finds it difficult to walk and carry on his normal avocation. Having regard to the nature of injuries, in my considered view, the quantum of compensation awarded by the Tribunal cannot be said to be excessive or on the higher side, warranting interference. The appellant Insurance Company has not made out any substantial ground warranting interference in the quantum of compensation. 14.In the result, the order of the Judgment and Decree dated 03.05.2002 passed in M.C.O.P.No.305/2000 on the file of the Motor Accident Claims Tribunal, Subordinate Court, Namakkal is confirmed and this appeal is dismissed. No costs. It is stated that the claimant had already withdrawn part of the compensation. Claimant is permitted to withdraw the balance compensation amount along with accrued interest.