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2010 DIGILAW 4450 (MAD)

Vijaya Baskar v. Jyotheswaran & Another

2010-10-03

A.ARUMUGHASWAMY

body2010
Judgment :- The claimant has filed the present appeal against the order of the Tribunal dated 25.9.2003 passed in M.C.O.P.No.83 of 2001. 2. The facts leading to the filing of the claim petition before the Tribunal was that on 5.5.2001 at 10 a.m. at Ponnai to Tiruvalam Road, near Jayar Farm, while the claimant was proceeding as a rider in Hero Honda Motor Cycle Reg.No.AP-03-D-7004 from Ponnai to Tiruvalam direction at that time the lorry bearing Registration No.TN-23-D-7515 belonging to the first respondent which was being driven by its driver in a rash and negligent manner endangering public safety in an uncontrollable speed was coming in the opposite direction hit and dashed against the motor cycle in which the claimant was proceeding and thus in the said impact, the petitioner has sustained instantaneous multiple grievous injuries and two other occupants of the motor cycle succumbed to in the accident. The claimant, the appellant herein filed the claim petition for compensation of Rs.5,00,000. 3. Before the Tribunal, the claimant examined himself as PW1 and Dr. Gopalan as PW2. Exs.P1 to P9 were marked by the claimant. On behalf of the respondents, RW1 was examined and no document was marked. The Tribunal, after appreciating the oral and documentary evidence on record has awarded a sum of Rs.68,691.50/- as compensation by applying the theory of contributory negligence. Not satisfied with the quantum of compensation, the claimant has filed the present appeal for enhancement. 4. The learned counsel appearing for the claimant, the appellant herein contended that the Tribunal has erred in applying the principle of contributory negligence on the part of the claimant and reducing the compensation to 50%. The learned counsel appearing for the Insurance Company contended that the injured is the tortfeaser. Hence the award made by the Tribunal is correct. 5. The injured while he was proceeding in his motor cycle from Ponnai to Tiruvalam the driver of the lorry belonging to the first respondent came in a rash and negligent manner and dashed against the motor cycle as a result of which the rider of the motor cycle was thrown out and he sustained injuries. 6. The vehement contention of the Insurance Company is two fold. The first contention is that the rider of the motor cycle was not having driving licence to drive the vehicle in question. 6. The vehement contention of the Insurance Company is two fold. The first contention is that the rider of the motor cycle was not having driving licence to drive the vehicle in question. Further apart from the rider, two other persons had also traveled on the vehicle is pillion riders. Therefore, the learned counsel appearing for the second respondent Insurance Company described the claimant as tort-feaser. 7. As per the oral evidence and the F.I.R. it is seen that the injured was proceeding on the vehicle with two other persons. The contention of the appellant is that the driver of offending vehicle is has admitted his guilt before the criminal court and paid the fine amount and hence there is no question of contributory negligence on the part of the appellant. Hence the claim is maintainable in law. 8. From the evidence as well as from the criminal court records it is seen that the respondents have not examined any witness. The driver of the lorry also ultimately admitted his guilt and imposed fine of Rs.7,750 as evidenced from Ex.P5, the judgment of the criminal court. Ex.P4 is the charge sheet. There is no contra evidence for the insurance company to speak about the manner of the accident. 9. The learned counsel appearing for the appellant further contended that merely because the appellant had taken two more persons as pillion riders it cannot be a ground to come to the conclusion that the petitioner has committed contributory negligence. In support of his contention the learned counsel appearing for the appellant relied on the decision in Kattabomman Transport Corporation Ltd., vs. Vellai Duraichi and Others (2004 ACJ 1510). In the said case there was a collision between three persons riding on a motor cycle and a bus coming in the opposite direction on the wrong side of the road resulting in accident thereby two of them died for which the legal representatives of the deceased claimed compensation. The Tribunal awarded a sum of Rs.16,500 and Rs.1,50,000 respectively with interest. Aggrieved by the said award, the Management of Kattabomman Transport Corporation Ltd., filed appeals before this court. The Division Bench dismissed the appeals by holding that the motor cyclists is not liable for contributory negligence merely because there were two pillion riders. 10. The Tribunal awarded a sum of Rs.16,500 and Rs.1,50,000 respectively with interest. Aggrieved by the said award, the Management of Kattabomman Transport Corporation Ltd., filed appeals before this court. The Division Bench dismissed the appeals by holding that the motor cyclists is not liable for contributory negligence merely because there were two pillion riders. 10. In this case as already pointed out the driver of the lorry voluntarily admitted his guilt and paid the fine. Relying on the Division Bench judgment in Kattabomman Transport Corporation Ltd., Vs. Vellai Duraichi and Others (2004 ACJ 1510), it cannot be concluded that merely because the injured had taken two more persons as pillion rider, it will not be a ground to deny the claim. The Tribunal has without properly appreciating the oral and documentary evidence has jumped to the conclusion that the claimant has committed contributory negligence. Therefore, the reasoning given by the Tribunal in this regard has to be set aside by holding that due to rash and negligent driving of the driver of the lorry alone the accident had occurred and the point is concluded thus. 11. The next contention argued by the appellant is that the compensation awarded by the tribunal is very meager and hence it has to be enhanced. The learned counsel appearing for the respondents opposed the said contention. According to the evidence of the claimant, he sustained injuries on the right leg and head injury and there is a laceration of 6 c.m. above the right eyebrow and the Doctor who was examined as P.W.2 has assessed the disability of the claimant as 60%. P.W.1. the claimant in his evidence would state that he was a radiologist and was earning Rs.4000/- at the time of the accident. He produced Ex.A8 the technical education certificate issued by Institute of Medical Technology, Calcutta. The Tribunal relying on the said certificate has fixed the monthly salary of the claimant as Rs.2,000/-. As the petitioner was taking treatment for six months the loss of income for the said period was arrived at Rs.12,000/-. Ultimately the Tribunal has arrived at a sum of Rs.1,37,383/-towards the injuries sustained by the claimant, mental agony, medical expenses, permanent disability and loss of income. The Tribunal by attributing contributory negligence on the part of the claimant reduced the compensation to 50%. 12. Ultimately the Tribunal has arrived at a sum of Rs.1,37,383/-towards the injuries sustained by the claimant, mental agony, medical expenses, permanent disability and loss of income. The Tribunal by attributing contributory negligence on the part of the claimant reduced the compensation to 50%. 12. Regarding the loss of income, it is to be pointed out that the injured person was aged about 23 years. He sustained injuries on the head, right leg, right eyebrow which are permanent in nature. He was in patient and he spent Rs.68,000 towards medical expenses. Considering the income of the claimant as Rs.2,000 per month, the loss of income can be fixed at Rs.1,000 per month and Rs.12,000 per year. If multiplier of 10 is adopted, the loss of income can be safely arrived at Rs.1,20,000/-. A sum of Rs.12,000 is awarded for the loss of income during the period of treatment and Rs.5,000/-is awarded for pain and suffering. Altogether a sum of Rs.1,37,000/- is awarded as compensation as against the compensation of Rs.68,691/-awarded by the Tribunal. The order of the tribunal is modified as indicated above and the appeal is allowed. No costs.