Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 4921 (MAD)

Eswaran v. S. Thirumalai Rajan & Another

2010-11-03

C.S.KARNAN

body2010
Judgment :- 1. The above Civil Miscellaneous Appeal has been filed by the appellant/petitioner against the Award and Decree, dated 06.10.2004, made in M.C.O.P.No.516 of 2003 of 2002, on the file of the Motor Accident Claims Tribunal, Additional Subordinate Court, Erode, awarding a compensation of Rs.1,08,500/- together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation. 2. Aggrieved by the said Award and Decree, the appellant/petitioner has filed the above appeal for additional compensation amount with interest. 3. The short facts of the case are as follows: On 01.01.2003 at about 00.55 a.m. the petitioner Eswaran was riding a TVS50 motorcycle bearing registration No.TN37 E3908 slowly, carefully and observing all the traffic rules on the left side of the east west Gobi Sathy road. One Tamilselvan was travelling as a pillion rider. At that time one Venkatesh @ Venkatachalam was riding a Yamaha Motorcycle bearing registration No.TN04 B5944 came in the opposite direction in a rash and negligent and careless manner and with high speed on the wrong side of the road from west to east and dashed against the TVS50 motorcycle bearing registration No.TN37 E3908. Hence, the said accident had happened. Immediately after the said accident, the petitioner was taken to Government Hospital, Gobi for preliminary treatment. Thereafter, for better treatment he was referred to Government Hospital, Erode. The pillion rider also sustained injury and he was also admitted at Government Hospital, Erode. Both of them underwent treatment in the said hospital. The petitioner and the pillion rider were discharged from the Erode Government Hospital and admitted in Saveetha Hospital, Erode, as inpatient for further treatment. The petitioner sustained head injuries and fracture of lateral wall of left orbit, right petrous temporal bone and the frontal bone with comminution and depression in midline and bilasteral extending from orbital roof higher up with involvement of frontal and ethomidal sinus, pneumocephalus, brain stem edema and diffused cerebral edema and closed fracture of right humerus and fracture distal and of radious and fracture mandible symphysis with fracture lefort III and nasal bone fracture. At the time of accident, the petitioner was aged about 27 years and was a hale and healthy man. He was a driver in Ambulance vehicles and earning a sum of Rs.3,000/- per month, besides a sum of Rs.5,000/-as yearly bonus. At the time of accident, the petitioner was aged about 27 years and was a hale and healthy man. He was a driver in Ambulance vehicles and earning a sum of Rs.3,000/- per month, besides a sum of Rs.5,000/-as yearly bonus. Due to the said accident, he is unable to do his work as usual. 4. Regarding the said accident, the Gobi Police have registered a criminal case against the first respondent in Crime No.1/2003 under Sections 279, 338 and 304(A) of I.P.C. 5. The first respondent filed a counter statement and opposed the claim of the petitioner stating that he has not committed any negligent driving of the rider of the said motorcycle. Further, the first respondent is having valid driving licence and the motorcycle was insured with the second respondent/National Insurance Co., Ltd., and the first respondent alleged that the age and the income of the petitioner as false. 6. The second respondent also filed a counter statement and resisted the claim petition on various grounds. The second respondent has not admitted the said accident, age, income, nature of injuries and mode of treatment etc., The second respondent further alleged that the said accident had happened due to the rash and negligent driving of the claimant. As such, the petitioner has committed the offence for the said accident. The second respondent further alleged that the owner of the motorcycle bearing registration No.TN04 B5944 has violated the specified conditions of the policy. As such, the Insurance Company is not liable to pay compensation as claimed by the petitioner in the claim petition. Further he alleged that the first respondent has to prove that his vehicle is insured with the second respondent herein. 7. The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Whether the first respondents vehicle bearing registration No.TN04 B5944 driven by the first respondent in a rash and negligent manner? (ii) Whether the claimant is entitled to get compensation? If so, what is the quantum of compensation? 8. 7. The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Whether the first respondents vehicle bearing registration No.TN04 B5944 driven by the first respondent in a rash and negligent manner? (ii) Whether the claimant is entitled to get compensation? If so, what is the quantum of compensation? 8. On the petitioners side four witnesses were examined as PW1 to PW4 and 31 documents were marked as Exs.P1 to P31 namely Ex.P1-FIR, Ex.P2-Motor Vehicle Inspectors Report, Ex.P3-Wound Certificate, Ex.P4-Charge Sheet, Ex.P5-Criminal Proceedings of the Criminal Court, Ex.P6-Discharge Summary, Ex.P7-Medical Bills, Ex.P8-Hospital Bills, Ex.P9-Medicine Chits, Ex.P10-Medicine Bills, Ex.P11-Xray receipts and Scan Bills, Ex.P12-Bill for purchasing of blood, Ex.P13-Xray series, Ex.P14-Scan, Ex.P15-Scan Report, Ex.P16-Traffic Departments Letter, Ex.P17-Wound Certificate, Ex.P18-Discharge Summary, Ex.P19-Doctor Bill, Ex.P20-Hospital Bill, Ex.P21-Medicine Bill series, Ex.P22-Xray Bill series and Scan Bill series, Ex.P23-Bill for purchasing of blood, Ex.P24-Xray series, Ex.P25-copy of Driving Licence, Ex.P26-Disability Certificate, Ex.P27-Xray, Ex.P28-Disability Certificate, Ex.P29-Xray, Ex.P30-Disability Certificate and Ex.P31-Xray. On the respondents side no witness was examined and no documents were marked. 9. The pillion rider, Tamilselvan was examined as PW1. In his evidence he stated that on 01.01.2003 at 0.55 a.m. while he was travelling as a pillion rider on a motorcycle bearing registration No.TN37 E3908 driven by the petitioner, Eswaran on the Gobi-Sathi east west road, on the southern side towards western side, in slow and careful manner, on the opposite side one Venkatesh @ Venkatachalam was riding a Yamaha Motorcycle bearing registration No.TN04 B5944 came in a rash and negligent and careless manner and with high speed on the wrong side of the road from west to east and dashed against the TVS50 motorcycle bearing registration No.TN37 E3908. In the result, himself and the petitioner were thrown out and sustained injuries. Immediately after the said accident, they were rushed to Gobi Government Hospital and then rushed to Erode Government Hospital for treatment. 10. The petitioner was examined as PW2. In his evidence stating that when he was driving a motorcycle bearing registration No.TN37 E3908, along with pillion rider, from Gobi towards Sathi on the side of the east to west, one Venkatesh @ Venkatachalam driving a vehicle in the opposite direction and dashed against his vehicle and sustained injury in the said accident. Immediately, he was taken to Gobi Government Hospital, wherein both of them were admitted as inpatients. Thereafter rushed to Erode Government Hospital for better treatment. Immediately, he was taken to Gobi Government Hospital, wherein both of them were admitted as inpatients. Thereafter rushed to Erode Government Hospital for better treatment. For further treatment both of them were admitted at Saveetha Hospital at Erode. In the said accident, the claimant sustained grievous injuries on his head and his right and left hands bones were fractured. The wrist had dis-located and sustained injuries all over his body. Supporting the nature of injury and mode of treatment two Doctors were examined as PW3 and PW4. They have also adduced evidence which corroborated with PW1s evidence. After considering the facts and circumstances of the case, the Tribunal held that the accident had happened due to the rash and negligent driving of the Venkatesh @ Venkatachalam and granted a compensation to the petitioner as follows: 1. For loss of income during the period of treatment, a sum of Rs.5,000/-, 2. For transport expenses, a sum of Rs.1,000/-, 3. For nutrition, a sum of Rs.2,500/-, 4. For medical expenses, a sum of Rs.45,000/-, 5. For pain and suffering, a sum of Rs.5,000/-, 6. For permanent disability, on the basis of Medical Certificate issued by PW3 stating that the claimant sustained 25% disability, a sum of Rs.25,000/- 7. For loss of earning power, a sum of Rs.25,000/-, In total, the Tribunal awarded a compensation of Rs.1,08,500/-as compensation to the petitioner, together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.516 of 2003 of 2002, on the file of the Motor Accident Claims Tribunal, Additional Subordinate Court, Erode. 11. Aggrieved by the said Award and Decree, dated 06.10.2004, in M.C.O.P.No.516 of 2003 of 2002, passed by the Motor Accident Claims Tribunal, Additional Subordinate Court, Erode, the claimant has filed this Civil Miscellaneous Appeal additional compensation amount with interest. 12. Learned counsel appearing for the second respondent has argued that the Tribunal after considering the income of the claimant, occupation, nature of injuries and also Doctors evidence, the Tribunal assessed the compensation as Rs.1,08,500/-with interest is reasonable and fair. Further, the learned counsel submitted that the claimant underwent treatment at two Government Hospitals. 12. Learned counsel appearing for the second respondent has argued that the Tribunal after considering the income of the claimant, occupation, nature of injuries and also Doctors evidence, the Tribunal assessed the compensation as Rs.1,08,500/-with interest is reasonable and fair. Further, the learned counsel submitted that the claimant underwent treatment at two Government Hospitals. Further, the counsel pointed out that the compensation awarded by the Tribunal under the head of loss of income during the period of treatment, for loss of earning power and disability are all on the higher side and also not pertinent in the instant case. 13. Learned counsel appearing for the appellant argued that at the time of accident, the claimant was aged about 27 years. Further, he was a driver by profession. After the said accident, he is unable to do his duty and his profession totally spoiled. The petitioner is the only breadwinner of his family. The learned counsel pointed out that due to the said accident, the claimant sustained grievous injuries as such he sustained 20% disability. The Tribunal has not properly considered the evidence of the Doctor and PW2. The compensation amount granted by the Tribunal is on the lower side. Hence, he prays the Court for additional compensation amount. 14. After considering the arguments advanced by the learned counsel appearing on either side and facts and circumstances of the case, this Court is of the view that the compensation granted by the Tribunal is on the lower side. Hence, this Court decided to enhance the compensation amount as follows: 1. For medical expenses, on the basis of medical bills marked by the claimant at the time of adducing evidence, this Court awards a sum of Rs.48,000/-, 2. For facial disfiguration, for which concerned Doctor certified that 10% sustained by claimant, this Court awards a sum of Rs.10,000/-, 3. For visual disability, eye specialist Doctor issued a Certificate stating that the claimant sustained 10% disability, for which this Court awards a sum of Rs.10,000/-, 4. For pain and suffering, the Tribunal awarded a sum of Rs.5,000/-, this Court enhances the compensation to Rs.7,000/-, 5. For transport expenses, the Tribunal awarded a sum of Rs.1,000/-, this Court enhances the compensation to Rs.2,000/-, 6. For pain and suffering, the Tribunal awarded a sum of Rs.5,000/-, this Court enhances the compensation to Rs.7,000/-, 5. For transport expenses, the Tribunal awarded a sum of Rs.1,000/-, this Court enhances the compensation to Rs.2,000/-, 6. For nutrition, the Tribunal awarded a sum of Rs.2,500/-this Court enhances the compensation to Rs.3,000/-, As such, this Court grants a sum of Rs.80,000/-as additional compensation to the claimant, together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.516 of 2003 of 2002, on the file of the Motor Accident Claims Tribunal, Additional Subordinate Court, Erode. 15. The learned counsel appearing for the second respondent submitted that the compensation amount of Rs.1,08,500/-together with interest at the rate of 9% per annum, has already been deposited into the credit of the M.C.O.P.No.516 of 2003 of 2002, on the file of the Motor Accident Claims Tribunal, Additional Subordinate Court, Erode. 16. Now, this Court directs the second respondent to deposit the additional compensation amount of Rs.80,000/-together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.516 of 2003 of 2002, on the file of the Motor Accident Claims Tribunal, Additional Subordinate Court, Erode, within a period of four weeks from the date of receipt of a copy of this Order. 17. After such deposit has been made by the second respondent, into the credit of the M.C.O.P.No.516 of 2003 of 2002, on the file of the Motor Accident Claims Tribunal, Additional Subordinate Court, Erode, the claimant is open to withdraw the entire compensation amount with accrued interest thereon, subject to the earlier withdrawal if any, by making proper application in accordance with law. 18. In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 06.10.2004, in M.C.O.P.No.516 of 2003 of 2002, passed by the Motor Accident Claims Tribunal, Additional Subordinate Court, Erode, is modified. There shall be no order as to costs.