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2010 DIGILAW 2690 (MAD)

The Oriental Insurance Company Limited v. Mallika

2010-07-02

P.P.S.JANARTHANA RAJA

body2010
Judgment :- 1. The appeal is preferred by the appellant-Insurance company as well as the owner of the vehicle against the award dated 12.12.2001 made in MCOP No.176 of 1999 by the Motor Accident Claims Tribunal (Additional Subordinate Judge), Cuddalore. 2. Background facts in a nutshell are as follows: The injured-Mallika met with a motor vehicle accident that took place on 25.06.1998 at about 4.45p.m. While the said injured was travelling in the second appellants bus bearing registration No.PY-01-J-2709, which was insured with the first appellant-Insurance company, from Cuddalore to Pondicherry, the driver driven the same in a rash and negligent manner, due to which, the bus was capsized at Chinnakanganankuppam, Pondy-Cuddalore Main Road. Due to the said impact, the respondent-claimant sustained grievous injuries. The claimant was immediately admitted in Ashoka Nursing Home, Pondicherry. She claimed a sum of Rs.10,00,000/-as compensation before the Tribunal. The first appellant-Insurance company resisted the claim. On pleadings the Tribunal framed the following issues:- 1. In whose negligence the accident had occurred? 2. Whether the respondent/claimant is entitled to compensation? If so, how much compensation? After considering the oral and documentary evidence, the Tribunal held that the accident had occurred due to the rash and negligent driving of the driver of the second appellants bus, which was insured with the first appellant-Insurance company and awarded a compensation of Rs.3,85,430/- with interest at 9% per annum from the date of petition and the details of the same are as under:- Permanent disability Rs.2,91,170/- `Travelling expenses(taxi) Rs. 43,975/- Medical bills Rs. 40,284/- Pain and sufferings Rs. 5,000/- Extra nourishment Rs. 5,000/- Total...Rs.3,85,429/- Rounded off to Rs.3,85,430/- Aggrieved by that award, the appellant-Insurance company as well as the owner of the bus have filed the present appeal. 3. The learned counsel appearing for the first appellant-Insurance company questioned only the quantum of compensation awarded by the Tribunal and contended that the amount awarded by the Tribunal is excessive, exorbitant, without basis and justification. He further submitted that the Tribunal is wrong in adopting the multiplier method for computing permanent disability and, therefore, the award passed by the Tribunal is not in accordance with law and the same has to be set aside. 4. The learned counsel appearing for the 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. The learned counsel appearing for the 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 learned counsel appearing for the appellant and perused the materials available on record. On the side of the claimant, P.Ws.1 to 5 were examined and documents Exs.P1 to P59 were marked. On the side of the first appellant-Insurance company, no one was examined and no document was marked to support their claim. P.W.1 is the claimant. PW2 is the Doctor Venugopal. PW3-Arul is the driver of the taxi. PW4-Kannan @ Vadamalai and PW5-Sangeetha are examined to prove the income of the claimant. Ex.P1 is the xerox copy of the First Information Report. Ex.P2 is the copy of the motor vehicle Inspectors report. Ex.P3 is the wound certificate. Ex.P4 is the discharge summary. Exs.P5 and P6 are the discharge notices. Ex.P7 is the Electro Cardiogram Report. Exs.P8 to P12 and P22 to P41 are the medical receipts. Exs.P13 to 21 are medical bills. Ex.P42 is the daily report. Ex.P43 is the salary certificate. Ex.P44 is the certificate of registration relating to the bus. Ex.P45 is the copy of the Insurance certificate. Ex.P46 is the copy of the driving licence. Exs.P47 to 56 are the X-rays. Ex.57 is the disability certificate. Ex.P58 is the X-ray. Ex.P59 is the Taxi receipts. After considering the oral and documentary evidence, the Tribunal had given a categorical finding that the accident had occurred due to the rash and negligent driving of the driver of the second appellants bus, which was insured with the first appellant-Insurance company and the first appellant-Insurance company is liable to pay compensation to the respondent/claimant and the finding is based on valid materials and evidence. 6. At the time of accident, the claimant was aged about 30 years. She was working as a Teacher in the Government School and was earning Rs.10,000/- per month. PW1-the claimant, in her evidence, has stated that, while she was travelling in the second appellants bus bearing registration No.PY-01-J-2709 from Cuddalore to Pondicherry, the driver driven the same in a rash and negligent manner, due to which, the bus was capsized. She was working as a Teacher in the Government School and was earning Rs.10,000/- per month. PW1-the claimant, in her evidence, has stated that, while she was travelling in the second appellants bus bearing registration No.PY-01-J-2709 from Cuddalore to Pondicherry, the driver driven the same in a rash and negligent manner, due to which, the bus was capsized. She further deposed that due to the said accident, she had sustained fracture in her right shoulder and nose and multiple injuries all over the body and she took treatment at Government Hospital, Pondicherry for four days and later at Government General Hospital, Chennai as inpatient for one week and as outpatient for three months. Ex.P4 to 6 are the discharge summaries given by Government General Hospital, Chennai. She further deposed that she was earning Rs.4,000/-by taking tuition and to prove the said income, on her side, PW4-Kannan @ Vadamalai and PW5-Sangeetha were examined. PW2-Dr. Venugopal, who treated the claimant, has deposed that due to the injuries sustained, the claimant suffered with restricted movement in her right shoulder and she cannot lift heavy articles by using her right hand and there was malunion of bones in the nose and therefore, fixed the disability of nose at 18%, right shoulder at 30% and partial permanent disability at 40% and issued Ex.P57-disability certificate. But, the Tribunal considering the oral and documentary evidence, has taken the disability at 25% and fixed the monthly income at Rs.6,065/-and determined the annual income at Rs.72,780/-. The Tribunal has adopted the multiplier of "16" and determined the loss of income at Rs.2,91,120/- (72,780/-x16x25/100). There is an error in calculating the loss of income at Rs.2,91,170/- by the Tribunal. Hence, Rs.2,91,120/-is taken. The learned counsel appearing for the appellant-Insurance company vehemently contended that the Tribunal ought not to have adopted the multiplier method in the case of injury. In the present case, the disability of 25% determined by the Tribunal would have affected the earning capacity of the claimant. Therefore, the correct method to be adopted in the present case is percentage method for awarding compensation under the head permanent disability. Normally the Courts award Rs.1,000/- to 2000/- per percentage of disability. Considering the fracture sustained by the claimant, the disability is fixed at 40%. Therefore, the correct method to be adopted in the present case is percentage method for awarding compensation under the head permanent disability. Normally the Courts award Rs.1,000/- to 2000/- per percentage of disability. Considering the fracture sustained by the claimant, the disability is fixed at 40%. If Rs.2000/-is awarded per percentage of disability, the award amount works out to Rs.80,000/- (Rs.2000/- x 40%) under this head as against Rs.2,91,120/- awarded by the Tribunal. The Tribunal has awarded a sum of Rs.43,975/- towards medical expenses and Rs.40.284/- towards travelling expenses (Taxi), which are the actual expenditure incurred by the claimant. Exs.P8 to P41 medical bills and medical receipts and Ex.P59-taxi receipts are marked in support the claim. Hence, the amounts awarded under these heads are very reasonable and the same are confirmed. The Tribunal has awarded a sum of Rs.5,000/- towards pain and suffering. After taking into consideration the nature of injuries sustained, I feel that the amount awarded under this head is very low and it would be appropriate to award a sum of Rs.10,000/- as against Rs.5000/-awarded by the Tribunal. The Tribunal has awarded Rs.5,000/- towards extra nourishment. The claimant took treatment at Government Hospital, Pondicherry and Government General Hospital, Chennai. Hence it would be reasonable to award Rs.10,000/- under this head as against Rs.5,000/-awarded by the Tribunal. The Tribunal has not awarded any amount towards loss of amenities. Taking into consideration the facts and circumstances of the case, I am of the view that it would be reasonable to award a sum of Rs.15,000/- towards loss of amenities. The Tribunal has not awarded any amount towards attendant charges and therefore it would be reasonable to award a sum of Rs.5,000/-under this head. The Tribunal has awarded interest at 9% p.a. The date of accident was 25.06.1998. Taking into consideration the prevailing rate of interest during that period, the interest awarded by the Tribunal is very reasonable and the same is confirmed. The details of modified compensation as per the above discussion are as under:- Permanent disability Rs. 80,000/- Medical expenses Rs. 40,284/- Travelling expenses Rs. 43,975/- Pain and sufferings Rs. 10,000/- Extra nourishment Rs. 10,000/- Loss of amenities Rs. 15,000/- Attendant charges Rs. 5,000/-Total...Rs.2,04,259/- Rounded off to Rs.2,05,000/-. Therefore, the claimant is entitled to the modified compensation of Rs.2,05,000/-as against the compensation of Rs.3,85,430/- awarded by the Tribunal. 7. 80,000/- Medical expenses Rs. 40,284/- Travelling expenses Rs. 43,975/- Pain and sufferings Rs. 10,000/- Extra nourishment Rs. 10,000/- Loss of amenities Rs. 15,000/- Attendant charges Rs. 5,000/-Total...Rs.2,04,259/- Rounded off to Rs.2,05,000/-. Therefore, the claimant is entitled to the modified compensation of Rs.2,05,000/-as against the compensation of Rs.3,85,430/- awarded by the Tribunal. 7. The learned counsel appearing for the appellant-Insurance company has submitted that already 50% of the award amount has been deposited as per the order of this Court dated 10.11.2003 and the claimant was also permitted to withdraw 50% of the deposited amount by order dated 29.04.2004. The respondent/claimant is permitted to withdraw the modified award amount of Rs.2,05,000/-with interest at 9% p.a. from the date of petition, less the amount already withdrawn, on making proper application. 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.