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2010 DIGILAW 4173 (MAD)

National Insurance Co. Ltd. , v. R. Prakash

2010-09-16

C.S.KARNAN

body2010
Judgment :- 1. The above appeal has been filed by the appellant/National Insurance Company against the award and decree passed by the learned Motor Accident Claims Tribunal, Additional District Court, Fast Track Court II, Salem, in MCOP No.1667 of 2001, dated 31.03.2004 awarding a compensation of Rs.1,18,400/- with interest at the rate of 9% per annum, from the date of filing the claim petition till the date of payment of compensation. 2. Aggrieved by the said award and decree, the appellants-National Insurance Company and Rev.Samuel D.Stephen have filed this appeal to scale down the said compensation amount passed by the Tribunal. 3. The brief facts of the case are as follows: On 20.09.2001, at about 12.00 p.m., the petitioner was travelling on his scooter bearing registration No.TAN 837 from Kannankurichi to Hasthampatty. In front of the petitioner a tempo van bearing registration No.TN 27 J 2964, belonging to the first respondent and insured with the second respondent, was proceeding. When they were proceeding near Hasthampatty roundana, in front of Uma Medicals, suddenly, the driver of the van without any caution stopped the van, due to which, the petitioner also tried to stop his scooter, but went out of his control, dashed against the van on the left back side of the van. Due to the accident, he sustained multiple grievous injuries all over his body and his scooter was also completely damaged. Immediately, after the accident, he was admitted in Appusamy Hospital for treatment. The driver of the van filed a complaint before the Traffic Investigation Wing against the claimant only on 25.09.2001 nearly five days after the accident. Due to the injuries he was not able to return to his work and lost his entire income. As such he claimed a compensation of Rs.2,00,000/- with interest. 4. The first respondent herein National Insurance Company resisted the claim petition by filing the counter statement on the following grounds. "3. On 20.9.2001 the tempo traveler van TN 27 3 2964 was parked at Hasthampatty circle and waiting for traffic signal at that time the petitioner came from behind in a bajaj scooter TAM 837 in a high speed and hit on the backside of the tempo, ie against the parked vehicle. The accident took place due to the sole neglignece of the petitioner and hence there is no actionable claim. The accident took place due to the sole neglignece of the petitioner and hence there is no actionable claim. It is false to say that the petitioner is aged 35 years running a Xerox shop at Salem town and earning Rs.5,000 p.m. It is false to say that the petitioner sustained multiple grievous injuries all over the body and fracture over both wrist. This respondent understands that the petitioner is perfectly alright, the injuries are simple in nature and there is no permanent disability at all. The traffic investigation police have registered a case only against the driver of the van. The concerned petitioner scooter driver prakash was forward fault u/s 279, 337 IPC. 4. The consolidated claim of Rs.2,00,000 is excessive and without any basis. The petitioner is not entitled to any compensation much less as claimed. The petition deserves to be dismissed. This respondent reserves the right to file additional counter and craves the leave of this Honourable court to take all defences open to the 1st respondent and contest the case on behalf of the 1st respondent as provided under the Motor Vehicles Act. 5. Therefore this respondent humbly prays that this Honble court may be pleased to dismiss the petitioner with costs and thus render justice." 5. The learned Motor Accident Claims Tribunal after considering the plea of the claimant and the counter statement of the first respondent had framed three issues, viz., (i) Was the accident caused by the driver of the tempo due to rash and negligent manner? (ii) Whether the claimant is entitled to get compensation? (iii) What other relief? 6. On the side of the claimant two witnesses were examined, namely, P.W.1-claimant and P.W.2 Dr.Shreedharan and eight documents were marked, namely, Ex.P.1-First Information Report, Ex.P.2-Wound Certificate, Ex.P.3-Accident Registrar, Ex.P.4-Judgment copy of the Criminal Court Ex.P.5-Mode of treatment particulars, Ex.P.6-Medical series, Ex.P.7-Disability Certificate and Ex.P.8-X-Ray. On the side of the respondents no witness was examined and no document was marked. 7. P.W.1, the claimant, had adduced evidence stating that on 20.09.2001 at about 12.00 p.m., he was proceeding on his scooter from Kannankurichi to Hasthampatti. While he was nearing Hasthampatti Roundana, the first respondents tempo van bearing registration No.TN 27 J 2964 was proceeding in front of the scooter. All of a sudden the driver of the tempo applied its brake without any caution. Hence the scooter dashed against the tempo. While he was nearing Hasthampatti Roundana, the first respondents tempo van bearing registration No.TN 27 J 2964 was proceeding in front of the scooter. All of a sudden the driver of the tempo applied its brake without any caution. Hence the scooter dashed against the tempo. As such the accident had happened. In the result, P.W.1 sustained grievous injuries. Immediately, he was taken to the Appusamy Hospital, wherein he was in-patient for one day. P.W.1 further adduced evidence stating that after the accident he was unable to carry out his normal work and he was in rest for a period of one year. He had adduced evidence stating that his earning was Rs.6,000/-per month through his xerox centre business. He further stated that he spent a sum of Rs.8,427/-towards medical expenses for which he has marked Ex.P.6 series. 8. P.W.2 Dr.Shreedharan had adduced evidence stating that after verifying the medical records he assessed the disability of the claimant that he had sustained 40% disability and he also marked Ex.P7 Disability Certificate and Ex.P8 X-Ray. 9. After considering the evidence of P.W.1. and P.W.2, and the documents marked as exhibits, the learned Motor Accident Claims Tribunal had awarded the compensation as follows: (i) Rs.30,000/- under the head of pain and sufferings, transport charges and loss of income during the treatment period (ii) Rs.80,000/- under the head of disability (iii) Rs.8,400/- under the head of medical expenses In total, the Tribunal awarded a sum of Rs.1,18,400/-with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment compensation. The Tribunal further directed the appellant-National Insurance Company to deposit the said amount with accrued interest thereon, within a period of one month from the date of its order. In turn the said amount to be deposited in a Nationalised Bank for a period of three years in the Fixed Deposit Scheme and the claimant was permitted to withdraw the interest once in six months from the said deposited amount directly from the Bank. Accordingly ordered. 10. Aggrieved by the said award and decree passed by the Motor Accident Claims Tribunal, in MCOP No.1667 of 2001, dated 31.03.2004, the appellants-National Insurance Company and Rev.Samuel D.Stephen have filed the appeal to scale down the compensation amount passed by the Tribunal. 11. Accordingly ordered. 10. Aggrieved by the said award and decree passed by the Motor Accident Claims Tribunal, in MCOP No.1667 of 2001, dated 31.03.2004, the appellants-National Insurance Company and Rev.Samuel D.Stephen have filed the appeal to scale down the compensation amount passed by the Tribunal. 11. The learned counsel for the appellants vehemently argued that the award passed by the learned Motor Accident Claims Tribunal is on the higher side and in an arbitrary manner. The Tribunal awarded a sum of Rs.80,000/-under the head of permanent disability, since the claimant was an in-patient in Appusamy hospital. The Tribunal further awarded a sum of Rs.30,000 under the head pain and sufferings, transport charges and loss of income during the treatment period which are not proper. The learned counsel specifically argued that the Doctor P.W.2 assessed the disability at 40%, which is erroneous considering the nature of injuries and mode of treatment. The claimant sustained only simple injury. As such, the quantum of compensation is on higher side. Hence, he prays this Court to scale down the compensation. 12. The learned counsel for the respondent/claimant argued that the claimant sustained bone fracture injuries and he was admitted at Appusamy private hospital, wherein he was in-patient. Thereafter, he had undergone treatment as out-patient. The counsel further pointed out that the P.W.2 is the competent Doctor, who is an Ortho specialist. He verified the entire medical records and examined the claimant and given Disability Certificate stating that the claimant sustained 40% disability in the said accident. The compensation awarded by the learned Motor Accident Claims Tribunal is also on the lower side considering the nature of injuries and income of the claimant. Hence, he prays this Court to dismiss the above appeal. 13. Considering the facts and circumstances of the case and the arguments advanced on either side learned counsel, and the award and decree passed by the Motor Accident Claims Tribunal, in MCOP No.1667 of 2001, dated 31.03.2004, this Court is of the view that the award amount of Rs.1,18,400/-is on higher side. Hence, this Court decides to restructure the same as follows: (i) For loss of income due to 40% permanent disability, this Court awards a sum of Rs.60,000/- (Rs.1,500/- per each percent of disability). (ii)For pain and sufferings, this Court awards a sum of Rs.10,000/-. (iii)For transport charges, this Court awards a sum of Rs.5,000/-. Hence, this Court decides to restructure the same as follows: (i) For loss of income due to 40% permanent disability, this Court awards a sum of Rs.60,000/- (Rs.1,500/- per each percent of disability). (ii)For pain and sufferings, this Court awards a sum of Rs.10,000/-. (iii)For transport charges, this Court awards a sum of Rs.5,000/-. (iv)For nutrition, this Court awards a sum of Rs.6,600/-. (v)For medical expenses Tribunal awarded a sum of Rs.8,400/-, this Court confirms the same as it is pertinent. In total this Court awards a sum of Rs.90,000/-with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation which is equitable and fair. Therefore, this Court scaled down the compensation amount from Rs.1,18,400/- to Rs.90,000/-with interest as observed above. 14. This Court imposed a condition on the first appellant-National Insurance Company, on 19.07.2005, to deposit the entire compensation amount together with accrued interest and cost, into the credit of the MCOP No.1667 of 2001, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court II, Salem. 15. It is open to the claimant to withdraw the compensation amount fixed by this Court i.e., a sum of Rs.90,000/- with accrued interest thereon, lying in the credit of the MCOP No.1667 of 2001, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court II, Salem, after filing necessary payment out application in accordance with law, subject to deductions of withdrawals if any. Likewise, the first appellant-National Insurance Company is at liberty to withdraw the excess compensation amount of a sum of Rs.28,400/-with accrued interest thereon, after observing necessary formalities of the Court below. 16. In the result, the Civil Miscellaneous Appeal is partly allowed and the award and decree passed by the Motor Accident Claims Tribunal, in MCOP No.1667 of 2001, dated 31.03.2004, is modified. No costs.