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2012 DIGILAW 2277 (MAD)

National Insurance Co. Ltd. v. Srinivasan

2012-06-06

R.KARUPPIAH

body2012
Judgment :- 1. The above Civil Miscellaneous Appeal has been filed by the Insurance Company, who is the second respondent before the Tribunal, as against the quantum of compensation awarded by the Motor Accident Claims Tribunal, Additional District Judge, FTC-5, Tiruppur, in MCOP No.1043 of 2003, dated 30.12.2004. 2. The first respondent has filed the above said petition for compensation of Rs.5,00,000/- for the injuries sustained by him in the accident, dated 02.01.2000. 3. The brief facts, which are necessary for the disposal of the above appeal, are as follows:- On 02.01.2000, at about 12.30 hrs, the claimant was going by a scooter bearing Registration No.TN41 Z 8342 from east to west in the East West NH-47 road near Samraipalayam Pirivu and turned towards south keeping left side of the road and at that time, a car, bearing Registration No.TN57 8888, driven by the its driver, in a rash and negligent manner, dashed against the claimant and due to the said accident, the claimant has sustained grievous injuries at right pedax, left hand, nose, left knee, left leg and injuries all over the body and he was taken to Arun Hospital, Erode, and admitted as inpatient and taken treatment for two months till the date of filing of the petition. At the time of accident, the age of the claimant was 25 years and he was employed with M/s. Jothi Priya Auto Print, Kumaran Road, Tiruppur, and earning Rs.4,200/- per month and in spite of taking treatment, he is unable to do any work and therefore, claimed a compensation of Rs.5,00,000/- from the respondents, who are the owner and insurer of the vehicle i.e., car. 4. The owner of the vehicle / car remained exparte before the Tribunal. On the side of the Insurance Company, it is contended before the Tribunal that the claimant should prove that the accident has occurred, as alleged by the claimant in the claim petition, and the claimant should prove all the other averments made in the claim petition. It is further contended that the amount of compensation claimed is excessive. 5. Before the Tribunal, on the side of the claimant, besides examining himself as P.W.1, the claimant has examined two other witnesses as P.Ws.2 and 3 and marked seven documents, namely, Ex.P-1 to P-7, but on the side of the Insurance Company, the Insurance Company has not examined any witnesses or marked any documents. 5. Before the Tribunal, on the side of the claimant, besides examining himself as P.W.1, the claimant has examined two other witnesses as P.Ws.2 and 3 and marked seven documents, namely, Ex.P-1 to P-7, but on the side of the Insurance Company, the Insurance Company has not examined any witnesses or marked any documents. 6. Considering the oral and documentary evidence adduced, the Tribunal has held that the accident has occurred only due to the rash and negligent driving of the first respondent's car, driven by its driver, and therefore, the second respondent is liable to pay compensation and the Tribunal has passed the award on various heads as under:- 7. Learned counsel for the appellant / Insurance Company submitted that the appellant is only questioning the quantum of compensation awarded by the Tribunal. 8. Learned counsel for the claimant / first respondent submitted that with regard to the negligence aspect, on the side of the claimant, the claimant himself has deposed as P.W.1 and also marked Ex.P-1-First Information Report. He further submitted that on a perusal of the oral evidence of P.W.1 and Ex.P-1 reveal that the accident has occurred only due to the rash and negligent driving of the first respondent's car, driven by its driver, as held by the Tribunal. 9. With regard to the quantum of compensation awarded by the Tribunal is concerned, the learned counsel for the appellant contended that the Tribunal has erroneously fixed the income of the injured at Rs.4,200/-per month and also contended that the Tribunal has wrongly awarded the compensation towards the loss of earning power, following the multiplier method, as provided under Section 163 (A) of the Motor Vehicles Act and the Tribunal has failed to consider that no documentary evidence has been produced by the claimant to prove the income of the injured and therefore the award of compensation awarded by the Tribunal is excessive. 10. On the contrary, the learned counsel for the claimant / first respondent contended that the Tribunal has correctly discussed-in-detail all the materials available on record and awarded the compensation and there is no reason to reduce any compensation from the above said award. 11. I have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record. 12. 11. I have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record. 12. As already stated, the learned counsel for the appellant has mainly contended that the income of the injured / claimant is highly excessive and the claimant has not produced any document to prove the income of the claimant. As rightly submitted by the learned counsel for the appellant, the injured / claimant has not produced any document to prove his income and therefore, this Court is constrained to fix a just and reasonable monthly salary of the claimant. Considering the age, period of accident and the other factors, this Court is of the considered view that the income of the claimant may be fixed as Rs.4,000/- per month as just and reasonable. 13. With regard to the age of the claimant, Ex.P-5-driving licence of the claimant has been produced in which the date of birth of the claimant is mentioned as 23.05.1996 and the date of accident is 02.01.2000 and therefore, the age of the claimant, at the time of accident, is 23, as fixed by the Tribunal and no interference is called for in the above said finding. 14. With regard to the disability is concerned, on the side of the claimant, the claimant has examined P.W.3-Doctor and marked Ex.P-6-Disability Certificate in which the disability was assessed by the Doctor as 45%. The arguments advanced by the learned counsel on either side reveal that 5% disability may be varied from one Doctor to another. Learned counsel for the appellant contended that the above said percentage of disability fixed by the Doctor is highly excessive considering the nature of disability. 15. From a perusal of the above said oral and documentary evidence adduced, this Court is of the view that the disability may be fixed at 40% instead of 45%. Further, the learned counsel for the appellant has mainly contended that the Tribunal has wrongly awarded another sum of Rs.45,000/-under the head of Disability separately. Learned counsel for the claimant fairly accepted that the above said amount was wrongly awarded by the Tribunal and therefore the sum of Rs.45,000/-awarded separately towards 45% disability to the injured' is to be reduced and accordingly the same is reduced. 16. Learned counsel for the claimant fairly accepted that the above said amount was wrongly awarded by the Tribunal and therefore the sum of Rs.45,000/-awarded separately towards 45% disability to the injured' is to be reduced and accordingly the same is reduced. 16. With regard to the compensation awarded under the headings 'Pain and suffering' and 'disability' the Tribunal has awarded the sums of Rs.7,000/- and Rs.3,000/-separately. Learned counsel for the appellant contended that the award under the above said headings also wrongly awarded by the Tribunal. Considering the nature of injuries and other factors, Rs.10,000/-may be awarded for pain and suffering and Rs.3,000/- need not be separately awarded for disability again. 17. With regard to multiplier, admittedly the age of the claimant at the time of accident is 23 years. As per the decision of the Apex Court reported in (2009) 6 Supreme Court Cases 121 (SARLA VERMA v. DELHI TRANSPORT CORPORATION AND ANOTHER) the multiplier to be adopted, in this case, should be 18', but the Tribunal has wrongly taken the same as 17' and therefore, the multiplier for fixing the compensation is fixed at 18'. 18. With regard to the medical expenses is concerned, the Tribunal has awarded a sum of Rs.9,450/-. Considering the nature of injuries and the duration of treatment period undergone by the claimant, this Court is of the view that the above said award amount may be rounded off and the same is fixed at Rs.10,000/-. Therefore, the total compensation amount awarded is modified and reads as follows:- Since the accident is of the year 2000, the interest awarded by the Tribunal at 9% is confirmed. 19. In the result, the Civil Miscellaneous Appeal is partly allowed and the total award amount is reduced from Rs.4,50,010/- to Rs.3,65,000/-with 9% interest. No costs. Consequently the connected CMP is closed. 29. Learned counsel for the appellant contended that 50% of the award amount with accrued interest has already been deposited as directed by the Tribunal and therefore, the appellant shall deposit the remaining award amount with interest at 9% per annum from the date of petition, within four weeks from the date of receipt of a copy of this judgment and on such deposit being made, the claimant is permitted to withdraw the same.