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2009 DIGILAW 1638 (MAD)

P. Govindasamy v. P. Suresh & Others

2009-06-09

P.P.S.JANARTHANA RAJA

body2009
Judgment :- 1. The appeal is preferred by the claimant against the Judgment and Decree dated 19.04.2002 made in MCOP No.142 of 2002 on the file of the Motor Accident Claims Tribunal, Additional District Judge-Fast Track Court IV Erode at Bhavani. 2. Background facts in nutshell are as follows: The appellant/claimant met with motor vehicle accident on 010. 2000 at about 8.30 a.m. While the injured was proceeding on his motor cycle bearing registration No.T.N 36/B 8981 from Appakudal to Kavundapady on left side of the road, a lorry bearing Registration No.TNN – 6390 belonging to the second respondent and insured with the third respondent came in the opposite direction in a rash and negligent manner and hit against the appellant/injured. Due to that impact, the injured sustained grievous injury on his right leg, right hand and all over the body. Immediately after the accident, he was admitted in private hospital for treatment. He claimed a sum of Rs.7,00,000/- as compensation. The third respondent/Insurance Company resisted the claim. On pleadings the Tribunal framed the following issues:- "1.Whether the accident had occurred due to the rash and negligent driving of the first respondent-lorry driver or not? 2. Whether or not the injured/claimant is entitled to any compensation? 3. If so, to what amount and from whom? 4. To what relief?" After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the driver of the lorry and awarded a compensation of Rs.50,000/- with interest at 9% per annum from the date of petition and the details of the same are as under:- Permanent Disability Rs. 38,400/- Transport and medical expenses Rs. 10,000/- Extra nourishment Rs. 600/- Pain and suffering Rs. 1,000/- Total... Rs. 50,000/- Aggrieved by that award, the claimant has filed the present appeal for enhancement. 3. The learned counsel appearing for the appellant-claimant submitted that the Tribunal ought to have awarded compensation as claimed by the claimant and the amount awarded under various heads is very low and the Tribunal has not followed the principles of assessment before passing the award. Therefore, the order passed by the Tribunal is not in accordance with law and it is a fit case for enhancement. 4. Therefore, the order passed by the Tribunal is not in accordance with law and it is a fit case for enhancement. 4. The learned counsel appearing for the third respondent/Insurance Company submitted that the Tribunal had considered all the relevant materials and evidence on record and came to the right conclusion and awarded a just, fair and reasonable compensation. Hence the order of the Tribunal is in accordance with law and the same has to be confirmed. 5. Heard the learned counsel on either side and perused the materials available on record. On the side of the claimant, P.Ws.1 and 2 were examined and documents Exs.P1 to P19 were marked. On the side of the respondents, no one was examined and Ex.R1 – Policy alone was marked. P.W.1 is the claimant. PW2 is Dr.R.Rajamanickam. Ex.P1 is the First Information Report. Ex.P2 is the observation Mahazar. Ex.P3 is the Rough sketch. Ex.P4 is the charge sheet. Ex.P5 is the Copy of Accident Register. Ex.P6 is the Report of Motor Vehicle Inspector. Ex.P7 is the copy of Judgment of Criminal Proceedings. Ex.P8 is Driving licence of injured. Ex.P9 is the Lab Bills. Ex.P10 is Medical Bills. Ex.P11 is the Doctor Bills. Ex.P12 is the Scan Report. Ex.P13 is the medical prescriptions. Ex.P14 is the Salary Slip. Ex.P15 is the X-Ray film and C.T. Scan. Ex.A16 is the Policy copy of Lorry. Ex.A.17 is the Policy copy of Motor cycle. Ex.A.18 is the disability certificate. Ex.A19 is the X-ray Film. After considering the above oral and documentary evidence, the Tribunal had given a categorical finding that the accident had occurred only due to the rash and negligent driving of the driver of the lorry belonging to the second respondent and thereby caused injuries to the claimant and hence, he is entitled to a compensation. The finding is based on valid materials and evidence. 6. At the time of the accident, the claimant was aged about 38 years. He was working as an Assistant in T.S.T.C., Erode and also an agriculturist and was earning about Rs.7,000/- p.m. P.W.1, in his evidence, has stated that the accident had occurred only due to the rash and negligent driving of the first respondent driver of the lorry who admitted his guilt under Sections 279 and 338 IPC. Due to the accident, the injured sustained injuries on his head, right leg and right wrist. Due to the accident, the injured sustained injuries on his head, right leg and right wrist. P.W2 is a doctor who examined the claimant has given Ex.P18 is the disability certificate determining the disability at 40%. The Tribunal without considering the oral and documentary evidence adduced by the claimant, has fixed the disability at 5% and fixed the monthly income of the injured at Rs.4,000/- and determined the annual income at Rs.48,000/- (Rs.4,000 x 12). The Tribunal considering the age of the injured 38 years at the time accident, adopted the multiplier of "16" and the calculated the disability as follows: Rs.48,000 x 16 x 5/100 = Rs.38,400/- 7. The learned counsel appearing for the claimant vehemently contended that no reason was given by the Tribunal in respect of reducing the disability to 5% from 40% and the Tribunal ought to have accepted the evidence adduced by the claimant regarding the disability. After considering the oral and documentary evidence and also the nature of injuries sustained, it is reasonable to fix the disability at 40% as per the evidence of P.W.2-Doctor and Ex.P18 disability certificate. Usually the Courts award Rs.1,000/- to R.2,000/- for each percentage of the disability. In the instant case, after considering the nature of the injury, it is reasonable to award Rs.1,000/- for each percentage of disability. Therefore, the loss of income is worked out to Rs.40,000/-(Rs.1,000/- x 40%) as against Rs.38,400/-awarded by the Tribunal. The Tribunal awarded a consolidated sum of Rs.10,000/-towards Transport and Medical expenses. The injured was admitted in a private hospital and took treat as inpatient for more than 1 1/2 month, due to which he incurred medical expenses. Exs.P9 to P13 are series of medical bills, which is an actual expenditure incurred by the claimant. But the Tribunal has not considered the same. Hence, taking into consideration of this fact, I feel that it is reasonable to award a sum of Rs.10,000/-towards Transport charges and another sum of Rs.10,000/- towards medical expenses as against the consolidated sum of Rs.10,000/- awarded by the Tribunal. The Tribunal awarded only a sum of Rs.600/-towards extra nourishment which is very low and meagre. Considering the period of treatment, I feel that it is reasonable to award a sum of Rs.10,000/- towards extra nourishment. The injured was hospitalised for more than 1 1/2 month. The Tribunal awarded only a sum of Rs.600/-towards extra nourishment which is very low and meagre. Considering the period of treatment, I feel that it is reasonable to award a sum of Rs.10,000/- towards extra nourishment. The injured was hospitalised for more than 1 1/2 month. The Tribunal awarded only a sum of Rs.1,000/-towards pain and suffering which is very low and meagre. Considering the nature of injuries sustained, it would be reasonable to award a sum of Rs.10,000/- under this head. The Tribunal has not awarded any amount towards loss of income during treatment period. The injured was admitted in private hospital and took treatment for more than 1 1/2 month and later he took rest for the period of six months. The Tribunal, did not award any sum under this head. Even the claimant claimed Rs.2,00,000/-, no amount was awarded under this head. Considering the above, it would be appropriate to award a sum of Rs.20,000/-towards loss of income. The details of the modified compensation is are under: Disability at 40% Rs. 40,000/- Transport to hospital Rs. 10,000/- Extra nourishment Rs. 10,000/- Medical expenses Rs. 10,000/- Pain and sufferings Rs. 10,000/- Loss of income(3 months) Rs. 20,000/- Total... Rs.1,00,000/-Less: Already awarded amount Rs. 50,000/- Enhanced amount Rs. 50,000/- Therefore, the claimant is entitled to the enhanced compensation of Rs.50,000/-with interest at 7.5% p.a. from the date of petition. 8. The third respondent-Insurance Company is directed to deposit the enhanced compensation of Rs.50,000/- with interest at 7.5% from the date of petition within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the appellant-claimant is permitted to withdraw the same on making proper application. 9. With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs. 1. The Motor Accident Claims Tribunal, Additional District Judge (Fast Track Court IV) Erode, Bhavani. 2. The Section Officer, VR Section, High Court, Madras.