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2010 DIGILAW 2867 (MAD)

The Divisional Manager v. Ramamurthy

2010-07-14

P.P.S.JANARTHANA RAJA

body2010
Judgment :- 1. The appeal is preferred by the appellant-Insurance company against the award dated 29.01.2004, made in MCOP No.751 of 2002 by the Motor Accident Claims Tribunal (Second Additional District Judge), Pondicherry. 2. Background facts in a nutshell are as follows: The first respondent/claimant met with motor vehicle accident that took place on 25.01.2002 at about 03.30 p.m. The first respondent/claimant was walking along with his father on the extreme left side of the road at 100 feet road from south to north direction. At that time, the Ambassador car bearing registration No.PY01 F8029, belonging to the second respondent herein and insured with the appellant-Insurance Company, proceeding from the opposite direction, came in a rash and negligent manner and also at high speed and hit against the injured. Due to which, the claimant had sustained grievous injuries. The claimant was immediately admitted in Government General Hospital, Pondicherry. He claimed a sum of Rs.3,00,000/- as compensation. The appellant Insurance Company resisted the claim. On pleadings the Tribunal framed the following issues:- "1. Whether the accident had occurred due to the rash and negligent driving of the Ambassador car bearing registration No.PY01 F8029 by its driver? 2. Whether the driver of the Ambassador car having proper driving licence at the time of accident and whether the vehicle was covered with proper documents as contemplated under the M.V.Act? 3. Whether the petitioner is entitled to any compensation and if so, what is the quantum and who is liable to pay the same?" 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 ambassador car and awarded a compensation of Rs.1,65,453/-with interest at 9% per annum from the date of petition and the details of the same are as under:- Pain and suffering Rs. 5,000/- Medical expenses Rs. 43,100/- 40% disability, loss of income Rs. 96,000/- Loss of income during the treatment period Rs. 1,353/- Medical expenses, mental agony and also extra-nourishment Rs. 20,000/- Total... Rs.1,65,453/- Aggrieved by that award, the Insurance company has filed the present appeal. 3. 5,000/- Medical expenses Rs. 43,100/- 40% disability, loss of income Rs. 96,000/- Loss of income during the treatment period Rs. 1,353/- Medical expenses, mental agony and also extra-nourishment Rs. 20,000/- Total... Rs.1,65,453/- Aggrieved by that award, the Insurance company has filed the present appeal. 3. The learned counsel appearing for the appellant/Insurance company questioned only quantum of compensation awarded by the Tribunal and contended that the amount awarded by the Tribunal is excessive, exorbitant, without basis and justification and the Tribunal after awarding a sum of Rs.43,100/-towards medical expenses, another a sum of Rs.20,000/- also awarded under the same head. Therefore, the award passed by the Tribunal is not in accordance with law and the 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. 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 to 3 were examined and documents Exs.A1 to A9 were marked. On the side of the appellant-Insurance company no witness was examined and no documents were marked to support their claim. P.W.1 is the claimant. PW2 is Doctor Ramanujam. P.W.3 is Doctor Rajaram. Ex.A1 is the photo copy of the First Information Report. Ex.A2 is the xerox copy of the AIR. Ex.A3 is the photo copy of the Insurance Certificate. Ex.A4 is the Discharge slip. Exs.A5 is the Medical Certificate, Ex.A6 is Medical Bill/receipt, Ex.A7 is Prescription of Doctor (2 Nos.), Ex.A8 is the Disability Certificate and Ex.A9 is X-ray film of the claimant. 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 Ambassador car and the finding is based on valid materials and evidence. 6. At the time of the accident, the claimant was aged about 38 years old. He is an agriculturist. P.W1-the claimant, in his evidence, has stated that the accident was occurred only due to the rash and negligent driving of the driver of the Ambassador car. The Car driver was also charge sheeted by Station House Officer, Traffic Police Station, Pondicherry in Crime No.57 of 2002. He is an agriculturist. P.W1-the claimant, in his evidence, has stated that the accident was occurred only due to the rash and negligent driving of the driver of the Ambassador car. The Car driver was also charge sheeted by Station House Officer, Traffic Police Station, Pondicherry in Crime No.57 of 2002. Due to the said accident he sustained head injury, facial injury and also loss of tooth and he was admitted in Government General Hospital, Pondicherry as in-patient till 27.01.2002. Ex.A5 medical certificate and Ex.A6 medical bill shows that the claimant took treatent as in-patient for more than 33 days. Considering the same, the Tribunal awarded a sum of Rs.5,000/- towards pain and suffering. After taking into consideration the injuries sustained, it would be reasonable to award a sum of Rs.10,000/- as against Rs.5,000/-awarded by the Tribunal under this head. The Tribunal awarded a sum of Rs.43,100/-towards medical expenses. Ex.A6 is the medical bill/receipt. It is an actual expenditure incurred by the claimant. Hence, the amount awarded under this head is very reasonable and the same is confirmed. P.W.2 Dr.Ramanujam, who examined the injured has issued Ex.A8 Disability Certificate, in which, he assessed the disability to the extent of 40%. The Tribunal held that even though the claimant was working as agriculturist and claimed that he was earning Rs.5,000/- per month, no proof has been produced for the same. Therefore, the Tribunal fixed the notional income of Rs.15,000/-. Taking into consideration the age of the claimant is 37 years, the Tribunal adopted a multiplier of 16 and determined the loss of income due to 40% disability, at Rs.96,000/- (Rs.15,000/-X 16 X 40/100). The learned counsel appearing for the appellant Insurance Company submitted that the Tribunal ought not to have adopted multiplier method in the case of injury. In the present case, there is no evidence by the Doctor that 40% disability affects the earning capacity of the claimant. Hence, the correct method should be adopted is percentage method. Normally, the Courts award Rs.1,000/- to Rs.2,000/-per percentage of disability. After taking into consideration the oral and documentary evidence, it is reasonable to award Rs.1,500/- for each percentage. . Accordingly, loss of income due to disability works out to Rs.60,000/- as against Rs.96,000/-awarded by the Tribunal. The Tribunal awarded a sum of Rs.1,353/- towards loss of income during the treatment period. He was admitted in Government and private hospitals for 33 days. . Accordingly, loss of income due to disability works out to Rs.60,000/- as against Rs.96,000/-awarded by the Tribunal. The Tribunal awarded a sum of Rs.1,353/- towards loss of income during the treatment period. He was admitted in Government and private hospitals for 33 days. There is no dispute regarding the same. Ex.A5 is medical certificate, Ex.A6 is medical bill/receipt and Ex.A7 prescription of doctor. Considering the same, it is reasonable to award a sum of Rs.10,000/-under this head. Further, the Tribunal awarded a sum of Rs.20,000/- towards medical expenses, mental agony and extra nourishment. It is seen that already a sum of Rs.43,100/- awarded towards medical expenses. Therefore, it is wrong that the Tribunal has awarded once again under the said head and the same is unwarranted. After taking into consideration of the same, it is reasonable to award Rs.5,000/- towards extra nourishment and Rs.5,000/- towards transport charges. The Tribunal has fixed the rate of interest at 9% p.a from the date of petition. The accident occurred on 25.01.2002. Keeping in view the prevailing rate of interest during that period is 9% the same is confirmed. The details of modified compensation as per the above discussion are as under:- 40% disability loss of income Rs. 60,000/- Pain and suffering Rs. 10,000/- Extra nourishment Rs. 5,000/- Transport Rs. 5,000/- Medical expenses Rs. 43,100/- Loss of income during treatment period Rs. 10,000/- Total... Rs. 1,33,100/- Rounded off to Rs.1,33,000/-. Therefore, the claimant is entitled to the modified compensation of Rs.1,33,000/-with interest at 9% p.a as against the compensation of Rs.1,65,453/- awarded by the Tribunal. 7. The learned counsel appearing for the appellant-Insurance company has submitted that already entire award amount has been deposited. Therefore, the claimant is permitted to withdraw the modified award amount of Rs.1,33,000/- with interest at 9% p.a. from the date of petition after adjusting the amount if any, 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.