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2009 DIGILAW 3829 (MAD)

Sugunammal v. M. Nehru & Another

2009-09-17

C.S.KARNAN

body2009
Judgment :- This appeal has been preferred by the appellant/petitioner against the judgment and decree passed by the Motor Accidents Claims Tribunal (Sub Court), Arni in M.C.O.P.No.234 of 2002 dated 010. 2004 awarding a compensation of Rs.34,000/-as compensation against the total claim of Rs.1,70,000/-, together with interest at the rate of 9% per annum, from the date of filing the claim petition till the date of payment of compensation. 2. Not satisfied with the award passed by the Motor Accidents Claims Tribunal, Arani, the appellant/petitioner has filed this appeal. 3. The facts of the case are to be looked into before dealing with this appeal; The petitioner has stated that on 07.05.2002, at 09.00 a.m. he was carrying vegetables in New Vikram Auto Goods Vehicle in Vellore Officers lane, near mosque. The petitioner was accompanying the goods, for loading and unloading purpose. The vehicle is owned by the first respondent, Mr.M.Nehru and the said vehicle was insured with the second respondent namely the New India Assurance Company Limited, Arni. The said vehicle was driven by the first respondent in a rash and negligent manner and with high speed. Due to this, the first respondent lost control of the vehicle and the vehicle capsized. In the result, the petitioner fell down and sustained injuries and the vegetables were damaged. 4. The petitioner submitted that the said accident happened due to the rash and negligent driving of the first respondent. The second respondent, being the insurer of the vehicle owned by the first respondent, is vigorously liable to pay compensation to the petitioner. Hence, the petitioner has claimed compensation under the following heads; Loss of earning Rs.60000 Partial loss of earning Rs.30000 Transport to Hospital Rs.3000 Extra nourishment Rs.3000` Damages to clothing & Articles Rs.2500 Others Rs.11500 Compensation for pain and suffering Rs.20000 Compensation for loss of earning power Rs.20000 Compensation for continuing permanent disability Rs.20000 Total Rs.170000 In total Rs.170000/- has been claimed by the claimant against the second respondent/New India Assurance Company Limited. 5. Regarding the said accident, the North Police Station, Vellore registered a criminal case in Cr.No.279 of 2002 on an alleged offence under Section 279 and 338 of I.P.C. against the first respondent/driver cum owner of the vehicle. The injured petitioner was admitted in the Christian Medical College and Hospital, Vellore as inpatient from 07.05.2002 to 20.03.2002. Subsequently, he took treatment as outpatient with a private doctor. The injured petitioner was admitted in the Christian Medical College and Hospital, Vellore as inpatient from 07.05.2002 to 20.03.2002. Subsequently, he took treatment as outpatient with a private doctor. 6. The second respondent insurance company filed a counter statement and opposed the petitioners claim petition. The insurance company does not admit the petitioners earning, place of accident and manner of the alleged accident. Further, the petitioner has not furnished the correct particulars of policy, driving licence particulars and also denied the "sustained multiple injuries" in the said accident and also the subsequent treatment in a hospital. The insurance company further submitted that the driver of the said vehicle had driven the vehicle without valid driving licence. Further, the said vehicle was not insured with the insurance company and as such, the second respondent is not liable to pay the compensation amount claimed by the petitioner. The petitioner is also not entitled to claim the interest at 12% per annum for the compensation amount claimed. 7. The Motor Accidents Claims Tribunal, Arani, after perusal of the claim petition and counter statement of the second respondent, framed two issues namely, Who is responsible for the said accident and 2) Whether the claimant is entitled to get compensation? 8. On the side of the appellant/claimant, four documents were marked and two witnesses were examined. The documents namely Exhibits P1 to P4 i.e. 1) the first information report 2) wound certificate 3) vegetable goods purchase bill and 4) Disability certificate, were marked before the Motor Accidents Claim Tribunal. The petitioner was examined as PW1 and doctor, one R.Shanmugasundaram was examined as PW2. On the side of the respondent, neither any documents were marked nor any witnesses were examined. 9. The petitioner i.e. PW1 tendered oral evidence before the Motor accidents Claims Tribunal stating that the first respondents own vehicle was driven by the first respondent in a rash and negligent manner. Hence, the vehicle capsized and as a result, she fell down and sustained injuries. Supporting this contention, she marked first information report as Ex.P1. The first information report disclosed that a criminal case in Crime No.279 of 2002 was registered against the first respondent on an alleged offence under Sections 279 and 338 of I.P.C. The particulars about the make of the vehicle was also mentioned in the first information report. Supporting this contention, she marked first information report as Ex.P1. The first information report disclosed that a criminal case in Crime No.279 of 2002 was registered against the first respondent on an alleged offence under Sections 279 and 338 of I.P.C. The particulars about the make of the vehicle was also mentioned in the first information report. The said oral and documentary evidence of the petitioner was not resisted by the first and second respondents either orally or by furnishing documentary evidence. Hence, the Motor Vehicles Tribunal has come to a conclusion that the accident happened due to the negligence of the first respondent; so the first issue which was framed by the Tribunal was resolved in favour of the petitioner. 10. So, on the basis of the conclusion arrived at in the first issue, the Motor Accidents Claims Tribunal has granted compensation on the basis of the wound certificate i.e. marked as Ex.P2. As per wound certificate, the claimant had sustained three injuries, out of which one injury was grievous and two injuries were of simple nature. For the two simple injuries, Rs.4000/- was awarded and for the grievous injury Rs.5000/-was awarded. PW2, the doctor was examined and he issued a disability certificate as Ex.P4, wherein the disability was given as 30%, but the Motor accidents Claim Tribunal treated the disability at 20% instead of 30% and awarded a sum of Rs.20,000/-as compensation. Further, the Tribunal awarded Rs.3000/-for pain and suffering and Rs.2000/- for nutrition, in total a sum of Rs.34,000/-was awarded by the Tribunal with 9% interest per annum. 11. The learned counsel for the appellant argued in his appeal that the percentage of disability which has been reduced to 20% from 30% is an error committed by the Tribunal. The Tribunal also has not properly considered the wound certificate, for loss of earning, the Tribunal ought to have awarded Rs.90,000/-. In any event, the compensation awarded by the Tribunal is very low. The learned counsel for the appellant further argued that disallowing the compensation of Rs.1,36,000/-is unreasonable and the claimant is entitled to get the same for sustaining multiple injuries in the said accident. 12. The learned Counsel for the second respondent insurance company argued that there was no proof of earning and the number of the said vehicle involved in the accident was not furnished. Further, the Policy and license particulars were not produced. 12. The learned Counsel for the second respondent insurance company argued that there was no proof of earning and the number of the said vehicle involved in the accident was not furnished. Further, the Policy and license particulars were not produced. Without furnishing adequate particulars, the appellants claim of compensation is not correct. Further, the learned counsel for the insurance company argued that the award amount given by the Tribunal is reasonable and as such the appeal is not maintainable. 13. After considering the claim petition, counter statement of the second respondent, conclusion arrived at by the Motor Accidents Claims Tribunal on the two issues framed by him and award amount granted by the Tribunal i.e. Rs.34,000/-. This Court is of the view that the disability mentioned in the doctor certificate is 30% and the doctor is the competent authority to issue disability certificate. Without assigning any reason, the learned Tribunal, suo moto reduced the disability percentage to 20% which is erroneous. So, this Court decides to give compensation of Rs.45,000/- for 30% disability. Each percent disability carries Rs.1500/-in this case. The compensation for injuries sustained are modified as under;- Compensation for 30% disability Rs.45000 For one grievous injury Rs.7000 For two simple injuries Rs.6000 For pain and suffering Rs.10000 Transport to hospital Rs.3000 Damage to vegetables Rs.2000 Total Rs.73000 In total a sum of Rs.73,000/- (Rupees seventy three thousand only) is awarded by this Court as compensation, which this Court feels is equitable, fair and proper. When the said appeal came before this Court on 31.03.2006, the Court permitted the appellant/claimant to withdraw the entire award amount of Rs.34,000/- with accrued interest. Now, this Court directs the second respondent/Insurance Company to deposit Rs.39,000/- (Rupees thirty nine thousand only) being the enhanced/additional compensation awarded to the credit of M.C.O.P.No.234 of 2002 on the file of Motor Accidents Claims Tribunal/Sub Court, Arani, within a period of six weeks from the date of receipt of this order. This additional compensation will carry interest at the rate of 7.5% per annum from the date of filing of the claim petition till payment of additional compensation. After payment of additional payment by the insurance company, It is open to the appellant/claimant to receive the same by filing necessary payment out application in accordance with law. Resultantly, the civil miscellaneous appeal No.705 of 2005 is allowed in part, with the above conclusion. After payment of additional payment by the insurance company, It is open to the appellant/claimant to receive the same by filing necessary payment out application in accordance with law. Resultantly, the civil miscellaneous appeal No.705 of 2005 is allowed in part, with the above conclusion. Consequently, the award passed by the Motor Accidents Claims Tribunal/Sub Court, Arani in M.C.O.P.No.234 of 2002 is modified. Parties are directed to bear their own cost in this appeal.