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2010 DIGILAW 1645 (MAD)

N. Elango v. R. Rajendran

2010-04-07

C.S.KARNAN

body2010
Judgment :- 1. The above Civil Miscellaneous Appeal has been filed by the appellant/petitioner against the Award and Decree, dated 21.01.2003, made in M.C.O.P.No. 2302 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.II, Chennai, awarding a compensation of Rs.4,21,000/- together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation. 2. Having not been satisfied with the said Award and Decree, the appellant/petitioner, N. Elango, has filed the above appeal praying for additional compensation amount of Rs.3,79,000/- together with interest. 3. The short facts of the case are as follows: On 05.08.1998, at about 20.50 hours, the petitioner was an occupant in a van bearing registration No.TSL6474, which was proceeding rashly and negligently on the Bangalore High Road, near Mambakkam from west to east and dashed against a TNGTC Bus bearing registration No.TN23 N0999 and thereby the petitioner sustained multiple grievous injuries. Immediately, he was rushed to SRMC Hospital at Porur for treatment and he was taken treatment as inpatient from 05.06.1998. Regarding the said accident, a case was registered by the C1 Sriperumbudur Police Station, in Crime No.343/1998. Hence, the petitioner has claimed a compensation of Rs.8,00,000/-together with interest. 4. The second respondent had filed a counter statement and resisted the claim petition. The respondent denied the age, occupation and monthly income of the petitioner. The place, date and time of accident are not admitted by the respondent. Further, the respondent has not admitted the period of treatment, medical expenses and disability of the petitioner. The claim amount is also excessive. The second respondent further stated that the accident occurred only due to the reckless act of the petitioner. The respondent does not admit that there was a valid insurance policy for the vehicle bearing registration No.TSL6474 on the date of the said accident or that there was a valid permit or whether the driver was duly licenced on the day of the said accident. Hence, this respondent is not liable to indemnify on the first respondent, if there was any such accident, the question is bad for non-joinder of vehicle bearing registration No.TN23 N0999, which alone is responsible for the accident. Hence, this respondent is not liable to indemnify on the first respondent, if there was any such accident, the question is bad for non-joinder of vehicle bearing registration No.TN23 N0999, which alone is responsible for the accident. The second respondent further stated that the craves leave to contest the claim on all grounds that may be available to the first respondent under Section 170 of the Motor Vehicles Act, 1988. Hence, the second respondent prays to dismiss the claim petition. 5. The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Who is responsible for the accident? (ii)Who is responsible for paying compensation? If so, what is the quantum of compensation? 6. On the petitioners side five witnesses were examined as PW1 to PW5 as common evidence in the connected claim cases also and 27 documents were marked as Exs.P1 to P27. On the respondents side no witness was examined and no documents were marked. 7. One Kamarajan was examined as PW1.The PW1, in his evidence, has stated that on 05.06.1998 at about 20.50 hours, the petitioner and other occupants were travelling in TNGTC Bus bearing registration No.TN23 N0999 on the Bangalore high road from east to west and when the bus was nearing Mambakkam, the first respondents van bearing registration No. TSL 6474, driven by its driver at high speed in a rash and negligent manner and dashed against the bus, in which the petitioner and two others, who were travelling in the van, had sustained injuries. Immediately, they were rushed to Government Hospital at Sriperumbuthur for preliminary treatment. The petitioner was referred to SRMC Hospital at Porur for further treatment, wherein he was admitted as an inpatient.The said accident case was registered against the driver of the offending van by the C1 Sriperumbutur Police Station in Crime No.343 of 1998 under Section 279, 337, 338 and 304(A) of I.P.C. The FIR was marked as Ex.P6. After recording the evidence of the PW1, other four witnesses and perused the FIR had, the Tribunal had come to the conclusion that the accident had happened due to the rash and negligent driving by the driver of the van. As such, the Tribunal had fastened the liability on the respondents. The first respondents vehicle is insured with the second respondent. 8. The petitioner was a self-employed person in doing lungi business. As such, the Tribunal had fastened the liability on the respondents. The first respondents vehicle is insured with the second respondent. 8. The petitioner was a self-employed person in doing lungi business. By this occupation he was earning a sum of Rs.3,500/-per month. After the said accident, the petitioner is unable to carry his lungi materials on his head. Supporting this case, one Doctor adduced evidence stating that the petitioner sustained grievous injuries, after examining him thoroughly he assessed the disability that the petitioner sustained 75% disability. The claimant has also produced medical bill series, which were marked as Ex.P17.After considering the evidence of the claimant and Doctor, the Tribunal awarded a sum of Rs.2,000/- under the head of transport expenses; Rs.3,000/- awarded under the head of nutrition expenses; Rs.2,000/-awarded under the head of damages to lungies; Rs.2,74,000/- awarded under the head of medical expenses; Rs.10,000/-awarded under the head of loss of income; Rs.15,000/-awarded under the head of pain and suffering; Rs.1,00,000/- awarded under the head of permanent disability and Rs.15,000/- awarded under the head of loss of earning power. In total, the Tribunal awarded a sum of Rs.4,21,000/-as compensation to the petitioner, together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation. The Tribunal directed the second respondent to deposit the said compensation amount within a period of two months from the date of its Order.In turn, the said compensation has to be deposited in Union Bank of India, Ashok Nagar, Chennai-83, under the fixed deposit scheme, for a period of three years. The Advocate fees fixed at Rs.11,210/-. 9. Having not been satisfied with the said award and decree, the appellant/claimant has filed the above appeal praying for additional compensation amount of Rs.3,79,000/-together with interest. 10. Learned counsel appearing for the appellant argued that the claimant claimed a compensation of Rs.15,000/- under the head of transport expenses and another Rs.15,000/- under the head of extra nourishment. But, the Tribunal awarded Rs.2,000/-and Rs.3,000/- respectively under these two heads. 10. Learned counsel appearing for the appellant argued that the claimant claimed a compensation of Rs.15,000/- under the head of transport expenses and another Rs.15,000/- under the head of extra nourishment. But, the Tribunal awarded Rs.2,000/-and Rs.3,000/- respectively under these two heads. The Tribunal awarded a sum of Rs.15,000/- under the head of pain and suffering, but the claim amount is Rs.50,000/-.The Tribunal awarded a sum of Rs.15,000/-under the head of loss of earning power, but the claim amount is Rs.4,00,000/-.Further, the Tribunal awarded a sum of Rs.1,00,000/- under the head of permanent disability, since the claimant had sustained 75% disability, but the claimant claimed Rs.2,00,000/- under the head. The learned counsel vehemently argued that the claimant had sustained grievous injuries on his left thigh, right foot, left leg both bones, right leg knee cap and bone and on his head. Considering the nature of serious injuries the Doctor assessed the disability as 75%. The claimant had spent a sum of Rs.2,74,000/- towards medical expenses alone. As such, the learned Tribunal had not properly considered the assessment of the compensation. Further, the learned counsel, in support of his contentions, has cited a Judgement made in 2009(1) TN MAC 352 (SC), Supreme Court of India, D.Shanmukha Sundaramma V. D.Suneeetha and Others, the relevant head notes of which are as follows: "MOTOR ACCIDENT CLAIM – Compensation – Award of – Apportionment- Claimants : Widow and mother of deceased – Tribunal awarded Rs.3,40,068 with 12% interest & costs to be paid equally to Widow of deceased/Claimant and Mother of deceased/Appellant – Insurer totally deposited Rs.4,22,438 : High Court in Appeal, taking into consideration age of Claimant/Widow i.e. 20 years, directed to pay Rs.50,000 to Appellant/Mother and balance to Claimant/Widow – Appellants stand that she was solely dependant on earning of her son – Stand of Respondent/Claimant widow that she had no one to depend upon – Considering peculiar facts of case, age of Widow/Claimant and that of Appellant/Mother, held, it would be appropriate to grant Rs.1,25,000 to Appellant/Mother and balance to Claimant. INTEREST – Rate of interest – Accident took place on 13.11.1998 – Tribunal passed award on 21.08.2000 with 12% p.a. interest – Held to be much higher than what normally awarded – However, in absence of any Appeal by Insurer, there is no scope for interfering with award of interest in Appeal filed by Claimant questioning apportionment – Had there been any Appeal by Insurer, there would be certainly scope for interference." 11. Learned counsel appearing for the second respondent argued that the compensation granted by the Tribunal is a well considered one. After examining the medical records and evidence of the Doctor and claimant, the Tribunal awarded the compensation amount. The Disability Certificate indicating higher percentage. There is an error in the assessment of the disability. The compensation amount granted by the Tribunal under various grounds are all pertinent in the instant case. In this appeal, there is no valid grounds to challenge the award granted by the Tribunal. The claimant has not produced any documents supporting his income and occupation. As such, the claimant is not entitled to get any further compensation against the Insurance Company. As such, the appeal is not maintainable. Hence, the learned counsel prays for the dismissal of the appeal. 12. Considering the facts and circumstance of the case, scrutiny of the findings of the Tribunal and the arguments advanced by the learned counsel appearing on either side, this Court is of the view that there is slight discrepancy in the said award. Hence, this Court decides to grant further more compensation to the claimant as follows: 1. Under the head of transport expenses, the Tribunal awarded a sum of Rs.2,000/-, this Court enhances the amount to Rs.5,000/-, 2. Under the head of nutrition expenses, the Tribunal awarded a sum of Rs.3,000/-, this Court enhances the amount to Rs.5,000/-, 3. Under the head of damage to clothes and textile material, the Tribunal awarded a sum of Rs.2,000/-, this Court confirm the same under this head, 4. Under the head of medical expenses, the Tribunal awarded a sum of Rs.2,74,000/-, this Court confirm the same under this head, 5. Under the head of loss of income, the Tribunal awarded a sum of Rs.10,000/-, this Court enhances the amount to Rs.25,000/-, 6. Under the head of pain and suffering, the Tribunal awarded a sum of Rs.15,000/-, this Court enhances the amount to Rs.30,000/-, 7. Under the head of loss of income, the Tribunal awarded a sum of Rs.10,000/-, this Court enhances the amount to Rs.25,000/-, 6. Under the head of pain and suffering, the Tribunal awarded a sum of Rs.15,000/-, this Court enhances the amount to Rs.30,000/-, 7. Under the head of loss of earning capacity, the Tribunal awarded a sum of Rs.15,000/-, this Court confirms the same under this head, 8. Under the head of permanent disability, the Tribunal awarded a sum of Rs.75,000/-, this Court enhances the amount to Rs.1,50,000/-, 9. Under the head of loss of amenities, this Court awards a sum of Rs.10,000/-, 10. Under the head of attendant charges, this Court awards a sum of Rs.15,000/-, In total, this Court awarded a sum of Rs.5,31,000/-as compensation to the claimant. After deducting the original award amount of Rs.4,21,000/-, the appellant is entitled to get an additional compensation amount of Rs.1,10,000/-.This additional amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, into the credit of the M.C.O.P.No.2302 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.II, Chennai. Therefore, this Court hereby directs the second respondent to deposit the additional award amount of Rs.1,10,000/- together with interest as observed above, into the credit of the M.C.O.P.No.2302 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.II, Chennai, within a period of four weeks from the date of receipt of a copy of this Order. 13. After such deposit is made, the appellant is at liberty to withdraw the entire compensation amount, lying in the credit of the M.C.O.P.No.2302 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.II, Chennai, after filing necessary payment out application in accordance with law. 14. In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 21.01.2003, in M.C.O.P.No. 2302 of 1999, passed by the Motor Accident Claims Tribunal, Small Causes Court No.II, Chennai, is modified. There shall be no order as to costs.