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2010 DIGILAW 2440 (MAD)

R. Muthu v. Selvaraj

2010-06-17

P.P.S.JANARTHANA RAJA

body2010
Judgment :- 1. C.M.A.Nos1409 of 2002 and 2175 of 2003 are filed by claimant and the Insurance company respectively against the award dated 07.03.2002 made in MCOP No.656 of 1999 by the Motor Accident Claims Tribunal (II Additional Sub Court) Erode. 2. Since these appeals arise out of the same order, they are taken up together and disposed of by this common judgment. 3. Background facts in a nutshell are as follows: The claimant-Muthu met with motor vehicle accident that took place on 26.06.1998 at about 4.45 p.m. While the claimant was travelling in the cabin of a van bearing registration No.TN-37-B 3305, in which he was taking beans from Sathy to Mettupalayam, the driver of the said van, the first respondent in C.M.A.No.1409/2002 and the second respondent in CMA.No.2175/2003, drove the same in a rash and negligent manner and hit against the backside of the lorry bearing registration No.TDI 8584, which has been parked on the left side of the road. Due to the impact of the same, the claimant sustained injuries. He claimed a compensation of Rs.7,00,000/-before the Tribunal. The appellant-Insurance Company resisted the claim. On pleadings, the Tribunal framed the following issues:- "1. Whether the accident occurred due to the rash and negligent driving of the first respondent? 2. Whether the claimant is entitled to any compensation ? If so, how much? " After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to rash and negligent driving of the van driver-the first respondent in C.M.A.No.1409/2002 and second respondent in CMA.No.2175/2003 and awarded a compensation of Rs.1,40,000/-with interest at 9% per annum from the date of petition and the details of the same are as under:- Medical expenses Rs. 75,000/-45% Disability Rs. 45,000/- Nutrition Rs. 10,000/- Pain and suffering Rs. 10,000/- Total... Rs.1,40,000/- Aggrieved by that award, the claimant as well as Insurance company have filed the present appeals. 4. The learned counsel appearing for the claimant submitted that the compensation awarded by the Tribunal is very low and meagre and the Tribunal ought to have awarded compensation as claimed by the claimants and the Tribunal has not followed the principles of assessment before passing the award and seeks to enhance the compensation. 5. 4. The learned counsel appearing for the claimant submitted that the compensation awarded by the Tribunal is very low and meagre and the Tribunal ought to have awarded compensation as claimed by the claimants and the Tribunal has not followed the principles of assessment before passing the award and seeks to enhance the compensation. 5. The learned counsel appearing for the Insurance company submitted that the Insurance company is not liable to pay compensation as no extra premium is paid for the person travelling along with goods and therefore, they are not liable to pay compensation and the Tribunal is erred in fastening the liability on the appellant. He also relied on the decision of the Apex Court in the case of NATIONAL INSURANCE CO. LTD. VS. CHOLLETI BHARATAMMA & ORS. reported in AIR 2008 Supreme Court 484 and in the case of NEW INDIA ASSURANCE CO. LTD., VS. VEDWATI & ORS. reported in 2007 (2) TLNJ 83 (Civil) in support of his case. With regard to quantum, he further contended 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 the same has to be set aside. 6. Heard the learned counsel for the parties. On the side of the claimant, P.Ws.1 and 2 were examined and documents Exs.P1 to P13 were marked. On the side of the Insurance Company, RW.1- Ramprasad, who is an Assistant Administrative Officer, was examined and Ex.R1-copy of the policy was marked to support their claim. He deposed that the person, who is travelling along with the goods, is not entitled to any compensation. P.W.1 is the claimant. PW2 is Dr.Sachithanandam. Ex.P1 is the First Information Report. Ex.P2 is the series of medical bills. Ex.P3 is the series of hospital bills. Ex.P4 is the series of receipts. Exs.P5 to P7 are the series of bills. Exs.P8 is the discharge summary Ex.P9 is the discharge summary record. Ex.P10 is the series of receipts. Ex.P11 is the identity card. Ex.P12 is the disability certificate. Ex.P13 is the x-ray. Ex.P2 is the series of medical bills. Ex.P3 is the series of hospital bills. Ex.P4 is the series of receipts. Exs.P5 to P7 are the series of bills. Exs.P8 is the discharge summary Ex.P9 is the discharge summary record. Ex.P10 is the series of receipts. Ex.P11 is the identity card. Ex.P12 is the disability certificate. Ex.P13 is the x-ray. After considering the oral and documentary evidence, the Tribunal had given a categorical finding that the accident occurred only due to the rash and negligent driving of the van driver-the first respondent in C.M.A.No.1409/2002 and second respondent in CMA.No.2175/2003 and the finding is based on valid materials and evidence. 7. In respect of CMA.No.2175 of 2003, the only point raised by the learned counsel appearing for the appellant-Insurance company is that they are not liable to pay compensation and only the owner alone is liable to pay the compensation. After going through the record, it is seen that the appellant-Insurance company has not taken any steps to serve on the owner of the vehicle though the appeal was preferred on 17.07.2002. Hence the matter is being adjourned from time to time. On 26.06.1998, the appeal against the second respondent, the owner of the vehicle, has been dismissed. In these circumstances, as no steps were taken by the appellant-Insurance Company to serve notice on the second respondent, who is the owner and also necessary contesting party in the appeal, the appeal is not maintainable and the same is dismissed. No costs. 8. In so far as C.M.A.No.1409 of 2002 is concerned, at the time of the accident, the claimant was aged about 23 years studying L.L.B.. PW1-the claimant deposed in his evidence that while he was travelling in the cabin of a van, in which, he was taking beans from Sathy to Mettupalayam, the driver-first respondent in C.M.A.No.1409/2002 and second respondent in CMA.No.2175/2003 drove the same in a rash and negligent manner and hit against the back side of the parked lorry and due to which, he sustained injuries. He further deposed that immediately after the accident, he took treatment at Government Hospital, Mettupalayam and later at Kovai Medical Centre for a period of one month, where he had undergone surgery twice. Even 10 months after the accident, he went to Kovai Medical Centre and undergone a surgery. He further deposed that immediately after the accident, he took treatment at Government Hospital, Mettupalayam and later at Kovai Medical Centre for a period of one month, where he had undergone surgery twice. Even 10 months after the accident, he went to Kovai Medical Centre and undergone a surgery. Later in the year 2000, he took treatment at Vedanayagam Hospital for the period of 10 days and, due to the accident he cannot sit, walk and drive the vehicle. PW2-Dr.Sachithanandam deposed that he examined the claimant and given Ex.P12-disability certificate to the extent of 45%. The claimant claimed a sum of Rs.1,51,901.17 towards medical expenses and marked Exs.P2 to P7 in support of his claim. Considering the oral and documentary evidence, the Tribunal found that there is no signature by the concerned authority for receiving the said amount from the claimant and hence, awarded a sum of Rs.75,000/-under this head. Considering the reason given by the Tribunal, I am of the view that the Tribunal is correct in fixing the award amount towards medical expenses and the same is confirmed. The Tribunal has awarded a sum of Rs.45,000/-towards permanent disability of 45%. In this case, the Tribunal has awarded Rs.1000/-for each percentage of disability, which I feel is very reasonable and the same is confirmed. The Tribunal has awarded a sum of Rs.10,000/- towards extra nourishment and Rs.10,000/- towards pain and suffering. The claimant took treatment in Government Hospital, Mettuplayam, Kovai Medical Centre and Vedanayagam Hospital. Considering the period of treatment and nature of injuries sustained, I feel that the amount awarded under this head is very reasonable and the same is confirmed. The Tribunal has awarded interest at 9% per annum. The date of the accident is 26.06.1998. Keeping in view the prevailing rate of interest during that period, the interest awarded by the Tribunal is very reasonable and the same is confirmed. The finding given by the Tribunal is based on valid material and evidence. I do not find any error or illegality in the order passed by the Tribunal warranting interference. The order passed by the Tribunal is in accordance with law and the same has to be confirmed. Accordingly the appeal filed by the claimants (C.M.A.No.1409 of 2002) is devoid of merits and the same is dismissed. No costs. 9. I do not find any error or illegality in the order passed by the Tribunal warranting interference. The order passed by the Tribunal is in accordance with law and the same has to be confirmed. Accordingly the appeal filed by the claimants (C.M.A.No.1409 of 2002) is devoid of merits and the same is dismissed. No costs. 9. The learned counsel appearing for the appellant-Insurance Company submitted that already the entire award amount with accrued interest thereon, has been deposited by order of this Court dated 29.08.2003 and the claimant was also permitted to withdraw 50% of the deposited amount by order dated 08.12.2003. In such circumstance, the claimant is permitted to withdraw the balance amount, after adjusting the amount already withdrawn, on making proper application. In the result, both the appeals were dismissed. No costs.