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2010 DIGILAW 3136 (MAD)

United India Insurance Co. Ltd v. Subramaniam

2010-07-28

P.P.S.JANARTHANA RAJA

body2010
Judgment :- 1. The appeal is preferred by the appellant-Insurance Company against the award and decree dated 25.02.2003 made in M.C.O.P.No.624 of 1999 on the file of the Motor Accidents Claims Tribunal, Sub- Judge, Thirupur. 2. Background facts in a nutshell are as follows: The injured Subramaniam met with motor vehicle accident on 11.04.1999 at about 14.30 hours. The said injured was travelling in his moped from Kangeyam road to Thiruppur. At that time a car bearing registration no.TDY 9394 belonging to the second respondent and insured with the appellant-Insurance Company, came in a rash and negligent manner and dashed against the moped, due to which, the injured sustained grievous injuries. Immediately, the injured was taken to the Government hospital, Thirupur. The injured claimed a sum of Rs.7,00,000/-as compensation, before the Tribunal. The 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 claimant is entitled to the 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 driver of the car, which was insured with the appellant-Insurance Company and awarded a compensation of Rs.6,00,000/- with interest at 9% per annum from the date of the claim petition. The details of the compensation are as under: for loss of income due to 50% disability=Rs.4,32,000/- for pain and sufferings=Rs. 5,000/- for Medical Bill (series)=Rs.1,77,293.73 Totally=Rs.6,14,293.73 which was rounded of to Rs.6,00,000/- Aggrieved by that award, the appellant-Insurance Company has filed the present appeal. 3.The learned counsel appearing for the appellant-Appellant Insurance Company questioned only the quantum of the award passed by the Tribunal and contended that the Tribunal has awarded an excess and exorbitant amount as compensation and the Tribunal has wrongly adopted the multiplier method in the case of injury and awarded the compensation. 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 respondent 1/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. 4. Learned counsel appearing for the respondent 1/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 and perused the documents available on record. On the side of the claimants P.Ws.1 to 3, were examined and documents Exhibits P1 to P8 were marked. P.W.1 is the first respondent/claimant. P.W.2, Balasubramanium, is a contractor and P.W.3 is the Dr.Gnanaprakasam. Ex.P.1 is the Xerox copy of the First Information Report, Ex.P.2 is the Wound Certificate, Ex.P.3 is the Medical Certificate issued to the injured. Ex.P.4 is the Discharge Summary of the deceased, Ex.P.5 is the Medical Certificate of the injured, Ex.P.6 is the Medical Bill series, Ex.P.7 is the Disability Certificate, Ex.P.8 is the X-Ray. On the side of the appellant-Insurance Company, no one was examined and no documents were marked to substantiate their claim. Considering the above 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 car insured with the appellant-Insurance Company and the finding is based on valid materials and evidence. 6. At the time of the accident, the injured claimant was 36 years old. In his evidence it is stated that he is running a printing press and also claimed that he was earning Rs.5,000/- per month. Further, in his evidence, he has stated that the driver of the car caused the accident and a case has been registered in Crime No.189/99 of Tirupur Rural Police Station. The claimant/ injured further submitted that, due to the accident he sustained fracture in the left leg and other multiple injuries all over the body and he was also admitted in various hospitals for treatment. P.W.3 is the Doctor, who is an Orthopedician in Coimbatore Medical College Hospital. P.W.3 examined the injured and determined the disability at 50%. Further in his evidence, it is stated that due to the injury the claimant is unable to stand, sit or walk for a long time and also he cannot do his normal work as before. Ex.P.7. Is the disability certificate. Ex.P.20 is the wound certificate. P.W.3 examined the injured and determined the disability at 50%. Further in his evidence, it is stated that due to the injury the claimant is unable to stand, sit or walk for a long time and also he cannot do his normal work as before. Ex.P.7. Is the disability certificate. Ex.P.20 is the wound certificate. After considering the above oral and documentary evidence, the Tribunal accepted the disability at 50%. In respect of loss of monthly income, except the oral evidence of P.W.2 no documents were produced. Hence, the Tribunal fixed the monthly income at Rs.4,500/- on the ground that he was running a printing press. After taking into consideration the age of the claimant at 36 and nature of the injury and other evidence, the Tribunal adopted the multiplier of 16 and computed the loss of income as follows: Rs.4,500/- X 12 X 16 X 50/100 = Rs.4,32,000/- The counsel for the appellant-Insurance Company vehemently contended that it is not a fit case to adopt the multiplier method since there is no concrete evidence show that 50% disability affects the earning capacity of the claimant. Hence the correct method to be adopted is the percentage method. Normally the Courts award Rs.1000/-to Rs.2000/- for each percentage of disability. After taking into consideration the facts and circumstances of the case, it is reasonable to award Rs.2,000/-for each percentage of disability. Therefore, for 50% of disability, the loss of income works out to Rs.1,00,000/-. The claimant is entitled to get Rs.1,00,000/-for loss of income due to 50% disability as against the sum of Rs.4,32,000/-awarded by the Tribunal. The Tribunal has awarded a sum of Rs.1,77,293.73 towards medical bill (series) which is based on Ex.P.6. It is an actual expenditure incurred by the claimant and hence, the amount awarded under this head is reasonable. and, the same is confirmed. The Tribunal has not awarded any amount towards loss of income during treatment period. The injured claimant was taking treatment for nearly 18 months in various Hospitals viz.,D.S.K. Hospital, Thirupur, Richmond Hospital, Coimbatore, KMCH, Coimbatore, and Kumaran Hospital, Coimbatore. Ex.P.4 is the Discharge Summary given by the hospital and Ex.P5 is the Discharge Summary given by Kumaran Polyclinic Pathological Laboratory. There is no dispute that he took treatment in various hospitals. Therefore, he would not have gone to work at that time and, he would have not earned any income. Ex.P.4 is the Discharge Summary given by the hospital and Ex.P5 is the Discharge Summary given by Kumaran Polyclinic Pathological Laboratory. There is no dispute that he took treatment in various hospitals. Therefore, he would not have gone to work at that time and, he would have not earned any income. Therefore, it would be reasonable to award a sum of Rs.70,000/-towards loss of income during treatment period. The Tribunal has not awarded any amount towards transportation charges. There is no dispute that the injured claimant has taken treatment in various hospitals. Hence, the injured claimant would have incurred expenditure for that. Therefore, it would be reasonable to award a sum of Rs.15,000/-towards transport charges. The Tribunal has not awarded any amount towards extra nourishment. Therefore, after taking into consideration that the injured claimant had taken treatment in various hospitals, a sum of Rs.10,000/- is awarded towards extra nourishment. The Tribunal has also not awarded any sum towards loss of amenities. Taking into consideration the nature of the injuries, it is reasonable to award Rs.15,000/-towards loss of amenities. The Tribunal has awarded a sum of Rs.5,000/-towards pain and sufferings which is very low. Considering the injuries sustained, a sum of Rs.15,000/- is awarded towards pain and sufferings as against the sum of Rs.5,000/-awarded by the Tribunal. The Tribunal awarded the interest at 9% p.a. The date of accident is 11.04.1999. Taking into consideration the prevailing rate of interest at the time of the accident, the interest awarded by the Tribunal is confirmed. The details of the compensation amount are as given under: loss of income at 50% disability: Rs.1,00,000/- for medical bill (series): Rs.1,77,293.73 loss of income during the treatment period: Rs. 70,000/- transportation charges: Rs. 15,000/- for loss of amenities: Rs. 15,000/- for pain and sufferings: Rs. 15,000/- for extra nourishment: Rs. 10,000/-Total amount: Rs.4,02,293.73 Rounded off to: Rs.4,03,000/-Therefore the claimant is entitled to the modified compensation of Rs.4,03,000/- (Rupees Four Lakhs and Three Thousand Only) with interest at 9% p.a. as against the sum of Rs.6,00,000/- awarded by the Tribunal. 7. It is submitted by the learned counsel for the appellant-Insurance Company that they have deposited 50% of the balance amount of the compensation including interest pursuant to the order of this Court dated 10.12.2004. 7. It is submitted by the learned counsel for the appellant-Insurance Company that they have deposited 50% of the balance amount of the compensation including interest pursuant to the order of this Court dated 10.12.2004. After depositing 50% of the balance amount (less the Rs.25,000/-already deposited at the time of filing), the claimant was permitted to withdraw a consolidated sum of Rs.3,00,000/- by an order dated 17.03.2005. Under these circumstances, the injured claimant is permitted to withdraw the modified compensation amount of Rs.4,03,000/-with interest at 9% 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.