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2009 DIGILAW 3395 (MAD)

The Divisional Manager, National Insurance Company Limited, Pondicherry v. Panneerselvam & Another

2009-08-27

P.P.S.JANARTHANA RAJA

body2009
Judgment :- The appeal is preferred by the appellant-Insurance Company against the award dated 18.01.2006 made in MCOP No.54 of 2005 on the file of the Motor Accident Claims Tribunal, (Sub Judge), Chidambaram. 2. Background facts in a nutshell are as follows: On 110. 2004 at about 23.30 hours, the first respondent/ claimant was walking along the extreme mud portion near Pachiyappa’s School, Chidambaram. At that time, a Maxi cab vehicle bearing registration No.TN-51-U-0056 belonging to the second respondent, which was insured with the appellant-Insurance company, driven by its driver in a rash and negligent manner and dashed against claimant. Due to which, the claimant had sustained fracture and grievous injuries all over the body. The claimant was immediately admitted in R.M.M.C. Hospital, Annamalainagar as in-patient. He claimed a sum of Rs.4,35,000/- but restricted his claim to Rs.4,00,000/- as compensation. The appellant-Insurance company resisted the claim. On pleadings the Tribunal framed the following issues:- "1.Whether the claimant sustained injuries due to the negligence of the second respondent’s driver? 2. Whether the appellant is liable to pay damages? 3. Whether the claimant is entitled to the compensation as claimed. 4. To what relief the claimant is entitled? 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 appellant-Insurance Company and awarded a compensation of Rs.1,60,400/- with interest at 8% per annum from the date of petition and the details of the same are as under: Loss of income Rs.1,40,400/- Pain and suffering Rs. 20,000/- Total Rs.1,60,400/- Aggrieved by that award, the appellant-Insurance company has filed the present appeal. 3. Learned counsel appearing for the appellant-Insurance company questioned only quantum of compensation awarded by the Tribunal and contended that the Tribunal erred in adopting the multiplier method for calculating loss of income in the case of injuries. He further submitted that the amount awarded by the Tribunal is excessive, exorbitant, without basis and justification and that therefore, the award passed by the Tribunal is not in accordance with law and same has to be set aside. 4. Learned counsel appearing for the first respondent/claimant 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. 4. Learned counsel appearing for the first respondent/claimant 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 counsel. On the side of the claimant, P.Ws.1 and 2 were examined and documents Exs.P1 to P18 were marked. On the side of the appellant-Insurance company no witness was examined and no document was marked to support their claim. P.W.1 is the claimant. PW2 is the Doctor Balamurugavel. Ex.P1 is the xerox copy of the First Information Report. Ex.P2 is the xerox copy of the Motor Vehicle Inspector’s Report. Ex.P3 is the xerox copy of the the Accident Register. Ex.P4 is the treatment certificate. Ex.P5 is the discharge summary. Ex.P6 is the scan report. Ex.P7 is the medical prescriptions. Ex.P8 is the drug prescriptions. Ex.P9 is the microbiological investigation reports. Ex.P10 is the Lab report. Ex.P11 is the report of electro ardiogram. Ex.P12 is the series of medical bills. Exs.P13 and P14 are the X-rays. Exs.P15 and P16 are extract of adangals. Ex.P17 is disability certificate. Ex.P18 is X-ray. After considering the 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 second respondent’s vehicle and the finding is based on valid materials and evidence. 6. At the time of accident, the claimant was aged about 47 years. He is a farmer and owns six acres of land. He also doing contract work. He is the Congress party President for Keeralapalayam Union. He claimed that he was earning Rs.8000/- per month. PW1claimant has deposed that while he was walking along the extreme mud portion near Pahciyappa’s School, Chidambaram, a Maxi cab vehicle bearing registration No.TN-51-U-0056 belonging to the second respondent, which was insured with the appellant-Insurance company, driven by its driver in a rash and negligent manner and dashed against the claimant and due to which, the claimant had sustained following injuries. 1. Type-III, acromic clavicular disruption fracture. 2. Right side scapula bone fracture; 3. Large deep laceration on the right knee, wound sutured; 4. Large abrasion with swelling on right ankle; 5. Heavy injury over the chest with swelling; and 6. 1. Type-III, acromic clavicular disruption fracture. 2. Right side scapula bone fracture; 3. Large deep laceration on the right knee, wound sutured; 4. Large abrasion with swelling on right ankle; 5. Heavy injury over the chest with swelling; and 6. Injury over the right side small finger. The claimant was immediately admitted in R.M.M.C. Hospital, Annamalainagar as inpatient. PW2 is an Orthopedist attached to Raja Muthia Hospital. He examined the claimant and assessed the disability to the extent of 36% and issued Ex.P17 disability certificate. PW-2 deposed in his evidence that during examination he found thickening of acromial process and the movement of the shoulder was fully restricted. Considering the above oral and documentary evidence, the Tribunal has fixed the salary of the claimant at Rs.2,500/- and the annual income works out to Rs.30,000/-. After taking into consideration the age of the claimant as 48 years, the Tribunal has adopted the multiplier of 13 and also considering the disability at 36%, the Tribunal arrived at the loss of income at Rs.1,40,400/-(Rs.30,000 x 13x36/100). The learned counsel appearing for the appellant –Insurance company submitted that the Tribunal ought not to have adopted the multiplier method for arriving at the loss of income and the Tribunal should have fixed Rs.2000/- for 1% disability and should have awarded only a sum of Rs.72,000/- for 36% disability. Normally the Courts award Rs.1,000/- to Rs.2,000/- per percentage of disability. Considering the facts and circumstances of the case, I feel it is just and proper to award Rs.2,000/- for 1% disability and the award towards loss of income would be Rs.72,000/-(2000x36), which is rounded off to Rs.75,000/- as against the award amount of Rs.1,40,400/-. The Tribunal has awarded a sum of Rs.20,000/-towards pain and suffering, which I feel is very high. Considering the nature of injuries suffered, I feel that it would be appropriate to award Rs.15,000/-under this head instead of Rs.20,000/-. The Tribunal has not awarded any amount towards medical bills. Taking into consideration Ex.P12 series of medical bills, which is an actual expenditure incurred by the claimant, it would be appropriate to award a sum of Rs.15,000/- towards medical expenses. The Tribunal has not awarded any sum towards transport charges. The claimant was admitted in R.M.C. Hospital. After taking into consideration of the same, it would be reasonable to award a sum of Rs.5000/-towards transport charges. The Tribunal has not awarded any sum towards transport charges. The claimant was admitted in R.M.C. Hospital. After taking into consideration of the same, it would be reasonable to award a sum of Rs.5000/-towards transport charges. The Tribunal has also not awarded any amount towards extra nourishment. Considering the treatment period, it would be appropriate to award a sum of Rs.5,000/- towards extra nourishment. The Tribunal has not awarded any amount towards loss of amenities and future medical expenditure. Considering the dislocation of the shoulder and fracture in the scapula bone, it would be appropriate to award a sum of Rs.5,000/- towards loss of amenities and Rs.5,000/- towards future medical expenses. The details of the modified compensation as per the above discussion are as under:- Permanent disability Rs. 75,000/- Pain and suffering Rs. 15,000/- Medical expenses Rs. 15,000/- Transport charges Rs. 5,000/- Extra nourishment Rs. 5,000/- Loss of amenities Rs. 5,000/- Future medical expenses Rs. 5,000/- Total Rs.1,25,000/- Therefore, the claimant is entitled to the modified compensation of Rs.1,25,000-as against the compensation of Rs.1,60,400/-awarded by the Tribunal. The Tribunal has fixed the rate of interest at 8% p.a from the date of petition, which I feel is very high. The accident has occurred on 110. 2004. During the said period, the prevailing rate of interest is at 7.5%. Hence, the rate of interest is modified to 7.5% instead of 8%. 7. The learned counsel appearing for the appellant-Insurance company has submitted that already entire award amount has been deposited. The claimant is permitted to withdraw the modified award amount of Rs.1,25,000/-with interest at 7.5% p.a. from the date of petition after adjusting the amount, if any, already withdrawn. The appellant- Insurance company is also permitted to withdraw the balance amount on making proper application. 8. With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs. Consequently, M.P.No.1 of 2006 is closed.