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2010 DIGILAW 3573 (MAD)

Sumathi v. Manikandan

2010-08-17

P.P.S.JANARTHANA RAJA

body2010
Judgment :- 1. The appeal is preferred by the insurance company against the award dated 19.05.2005 made in M.C.O.P No.1134 of 2003 by the Motor Accident Claims Tribunal, Additional District Court, (Fast Track Court No.5), Tirupur. 2. Background facts in a nutshell are as follows: One injured Manikandan met with motor traffic accident on 07.10.2003 at about 19.00 hrs. The injured was riding in two wheeler bearing registration No.TN 39 V 4125 on the extreme side of the road from Avinashi to Annur. While he was nearing Aataiyampalayam, a mini door auto bearing registration No.TN 38 U 2445 came in the opposite direction in a rash and negligent manner with high speed and hit the two wheeler. Due to the impact, the injured was thrown away and sustained grievous injuries all over the body. He claimed a sum of Rs.5,00,000/- as compensation. The said mini door auto was insured with the appellant insurance company who resisted the claim. On pleadings, the Tribunal framed the following issues:- "1. Why is responsible for the accident? 2. What is the compensation, the claimant is entitled to?” 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 mini door auto and awarded compensation of Rs.3,50,800/- with interest @ 9% per annum from the date of claim and the details of the same are as under:- Loss of income=Rs.2,59,200/- Medical expenses=Rs. 81,600 /- Pain and suffering=Rs. 5,000 /- Nourishment=Rs. 5,000/- Total=Rs.3,50,800/- Aggrieved by that award, the appellant insurance company has filed the present appeal. 3. The learned counsel appearing for the appellant insurance company questioned only the quantum of the award and vehemently contented that the award passed by the Tribunal is excessive, exorbitant and also without any basis and justification. Further, the Tribunal ought not to have adopted multiplier method in injury case. Therefore, the award passed by the Tribunal is not in accordance with law and the same should be set aside. 4. The Learned counsel appearing for the claimant submitted that the Tribunal has considered all the facts and circumstances of the case and awarded a just, fair and reasonable compensation is based on valid materials and evidence. It is a question of fact and it is not a perverse order. 4. The Learned counsel appearing for the claimant submitted that the Tribunal has considered all the facts and circumstances of the case and awarded a just, fair and reasonable compensation is based on valid materials and evidence. It is a question of fact and it is not a perverse order. Therefore, the award passed by the Tribunal is in accordance with law and the same should be confirmed. 5. Heard the counsel. On the side of the claimants, P.Ws.1 and 3 were examined and documents Exs.P1 to P8 were marked. On the side of the appellant insurance company no one was examined and no document was marked to substantiate their claim. P.W.1 is the claimant. P.W.2 is one Manikandan, who is the co-employee of the injured. P.W.3 is Dr.SenthilKumar. Ex.P1 dated 07.10.2003 is the copy of the First Information Report. Ex.P2 dated 09.10.2003 motor vehicle inspector’s report for two-wheeler, Ex.P3 dated 09.10.2003 motor vehicle inspector’s report for mini door auto, Ex.P4 is the copy of the wound certificate, Ex.P5 is the discharge summary, Ex.P6 is the medical bills, Ex.P7 dated 02.03.2005 disability certificate, Ex.P8 is X-ray were marked. After considering the above oral and documentary evidence, the Tribunal has given a categorical finding that the accident had occurred only due to the rash and negligent driving of the driver of the mini door auto and awarded compensation. It is a question of fact. The finding is based on valid materials and evidence and therefore, the same is confirmed. 6. At the time of the accident, the claimant was aged about 28 years. P.W.1 in his evidence has stated that he is doing power loom and electrical works and claimed that he was earning Rs.5,000/- per month. In his evidence, it is further stated that only the driver of the mini door auto caused the accident and the driver was also charge sheeted in Cr.No.608/2003 on the file of Avinashi Police Station. P.W.3 Dr.Senthilkumar who examined the claimant. In his evidence, it is further stated that due to the accident, he sustained fractures in the right femur patella and tibia and multiple abrasions all over the body and that there is a stiffness and restricted movement of leg. He determined the disability at 49.94%. Ex.P7 is the disability certificate. After taking into consideration of the above, the Tribunal fixed the disability at 49.94%. He determined the disability at 49.94%. Ex.P7 is the disability certificate. After taking into consideration of the above, the Tribunal fixed the disability at 49.94%. The claimant claimed that he was earning Rs.5,000/- per month. P.W.2 is one Manikandan who is the co-employee stated that the claimant was earning Rs.100/- per day. After considering the above statement of P.W.2, the Tribunal fixed the monthly income of the claimant at Rs.3,000/-and arrived at the loss of income at Rs.2,59,200/-(3000x12x18x40/100). The counsel appearing for the appellant insurance company vehemently contended that the Tribunal ought not to have adopted multiplier method in injury case and there is no finding of the Tribunal that 49.94% disability affects the earning capacity. Therefore, the correct method to be adopted in the present case is only percentage method. Normally Courts award Rs.1000/- to Rs.2,000/- per percentage of disability. In this case, after taking into consideration of the nature of injuries and the evidence of doctor, it is reasonable to award a sum of Rs.2,000/- per percentage of disability. The disability percentage of 49.94 is rounded off to 50% and the loss due to 50% is works out to Rs.1,00,000 (Rs.2,000/x50). Therefore, the claimant is entitled to Rs.1,00,000/- towards loss due to 50% disability as against Rs.2,59,200/-awarded by the Tribunal. Further, the Tribunal awarded Rs.81,600/- towards medical expenses. Ex.P6 is the medical bills. The claimant was admitted three times in Rex Hospital, Coimbatore, totally, he was taking treatment in the hospital for 20 days as inpatient. It is an actual expenditure. Therefore, the Tribunal correctly awarded Rs.81,600/-for medical expenses which is rounded off to Rs.82,000/-. The Tribunal awarded a sum of Rs.5,000/-towards pain and suffering which is very low and meagre. After taking into consideration of the nature of injury, period of treatment, it is reasonable to award a sum of Rs.20,000/- as against Rs.5,000/- awarded by the Tribunal. The Tribunal also awarded another sum of Rs.5,000/- towards nourishment. The injured was in the hospital for 20 days for taking treatment. After taking into consideration of the above, it is reasonable to award a sum of Rs.10,000/- towards nourishment as against Rs.5,000/-awarded by the Tribunal. Further, the Tribunal has not awarded any sum towards transportation. He was taken treatment as inpatient and after discharge also, he was taking treatment as outpatient. Taking into consideration of the same, it is reasonable to award Rs.10,000/-towards transportation. Further, the Tribunal has not awarded any sum towards transportation. He was taken treatment as inpatient and after discharge also, he was taking treatment as outpatient. Taking into consideration of the same, it is reasonable to award Rs.10,000/-towards transportation. However, the Tribunal has not awarded any sum towards loss of amenities and loss of income during treatment period. After taking into consideration of the nature of injuries available on record, it is reasonable to award a sum of Rs.20,000/-towards loss of amenities and the claimant was in the hospital for 20 days and after discharge also, he was taking treatment as outpatient, totally, he was taking treatment for six months. After taking into consideration of the same, it is reasonable to award Rs.18,000/-(Rs.3,000x6) towards loss of income during treatment period. The interest rate awarded by the Tribunal is 9% per annum. After taking into consideration of the date of accident, date of award and the prevailing rate of interest during that period, the rate of interest awarded by the Tribunal is reasonable and the same is confirmed. The modified amount of the compensation are as under: Loss due to 50% disability= Rs.1,00,000/- Medical expenses= Rs. 82,000/- Pain and suffering= Rs. 20,000/- Transport charges= Rs. 10,000/- Extra nourishment= Rs. 10,000/- Loss of amenities= Rs. 20,000/- Loss of income during treatment period= Rs. 18,000/ Total= Rs.2,60,000 /- 7. In the result, the claimant is entitled to modified compensation of Rs.2,60,000/-with interest @ 9% per annum from the date of claim as against Rs.3,50,800/- awarded by the Tribunal. It is stated by the learned counsel for the appellant that a sum of Rs.90,000/- has already been deposited by the Court order dated 29.08.2005. The claimant also permitted to withdraw same. Under these circumstances, the appellant insurance company is directed to deposit the modified compensation of Rs.2,60,000/-with interest @ 9% per annum, less the amount already deposited, within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the claimant is entitled to withdraw the same, less the amount already withdrawn, on making proper application. 8. With the above modification, the appeal is disposed of. No costs.