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2012 DIGILAW 4726 (MAD)

United India Insurance Co. Ltd. v. Jahir Hussain

2012-11-19

C.S.KARNAN

body2012
JUDGMENT 1. The appellant/2nd respondent has preferred the present appeal in CMA No.90 of 2007, against the judgment and decree passed in M.C.O.P.No.2203 of 2001, on the file of the Motor Accident Claims Tribunal, III Additional Subordinate Judge, Trichy. 2. The Short facts of the case are as follows:- On 17.05.2001, at about 03.00 p.m., in the afternoon, the petitioner was travelling as a passenger in the Tamil Nadu State Transport Corporation Bus, bearing registration No.TN-55N-0109/3rd respondent, from Trichy to Chennai and the bus was driven in a careful manner by its driver. When the bus was nearing "Balaji Croshers", the 1st respondents vehicle namely "Mahendra Van" bearing registration No.TN-67C-4304, which was driven by its driver in a rash and negligent manner and at high speed, dashed against the bus. In the result, the petitioner sustained fracture and crush injuries in his right arm and was admitted to the Perambalur Government Hospital. Subsequently, the petitioner received treatment at Trichy Government Hospital and later at John Subbaiah Medical Hospital, Tillainagar. At the time of accident, the petitioner was aged 32 years and he was running a computer centre and earning Rs.7,000/-per month. Hence, the petitioner has filed a claim in M.C.O.P.No.2203 of 2001, on the file of the III Additional Subordinate Judge, Trichy, claiming a compensation of Rs.4,00,000/-against the respondents for the injuries sustained by him in the accident. 3. The 2nd respondent, in his counter has denied the allegations regarding manner of accident. It was contended that the petitioner had rested his right hand on the grill near window of the bus and that as the 3rd respondent's bus driver had driven the bus very near to the van, without giving any space, the 3rd respondents bus dashed against the right side of the van and caused the accident. It was contended that if the bus driver had given sufficient room, while overtaking the van, the accident would not have occurred. The allegations in the claim regarding age, income, occupation, permanent disability and medical expenses were also not admitted. It was submitted that the claim was excessive. 4. It was contended that if the bus driver had given sufficient room, while overtaking the van, the accident would not have occurred. The allegations in the claim regarding age, income, occupation, permanent disability and medical expenses were also not admitted. It was submitted that the claim was excessive. 4. The 3rd respondent, in his counter had stated that the driver of the bus drove the bus in a careful manner and that when he saw the 1st respondents van bearing registration No.TN-67C-4304, coming in the opposite direction at a high speed and driven by its driver in a rash and negligent manner, he had taken the bus to the extreme left of the road and that in spite of this van had dashed against the right side of the bus. It was submitted that the accident occurred only due to the rash driving of the 1st respondent's driver. It was submitted that a case had been registered by the Police only as against the 1st respondents driver. The allegations regarding the age, income, occupation, permanent disability and medical expenses were not admitted. It was submitted that the claim was excessive. 5. The Motor Accident Claims Tribunal framed two issues for consideration namely; (1) Was the accident caused by the negligence of the 1st respondent's driver or was it caused by the negligence of the 3rd respondent's bus driver?; (2) Is the petitioner entitled to get compensation? If so, what is the quantum? 6. On the petitioners side, three witnesses were examined and eleven documents were marked as Exs.P1 to P11, namely, Ex.P1-copy of the F.I.R dated 17.05.2001; Ex.P2-medical bills; Ex.P3-medical report; Ex.P4-Bills; Ex.P5-discharge summary dated 20.09.2003; Ex.P6-Case sheet; Ex.P7-Bills; Ex.P8-discharge summary dated 04.06.2001; Ex.P9-case sheet; Ex.P10-permanent disability certificate dated 28.02.2005; Ex.P11-X rays. On the side of the respondent, one witness was examined and no document was marked. 7. On the side of the respondent, one witness was examined and no document was marked. 7. PW1, had adduced evidence that on 17.05.2001, at about 03.00 p.m., in the afternoon, when he was travelling as a passenger in the TNSTC bus bearing registration No.TN-55N-0109 from Trichy to Chennai and while it was driven by its driver in a careful and cautious manner, on the left side of the road, the respondents van bearing registration No.67C-4303, coming in the opposite direction and driven by its driver at a high speed and in a rash and negligent manner had dashed against the right side of the bus and that in the result, he had sustained fractures in his right arm. PW.1, deposed that three other passengers travelling along with him had also sustained injuries. 8. RW.1, the 3rd respondent's bus driver had adduced evidence that he had driven the bus in a careful and cautious manner and that on seeing the van coming on the opposite side driven by its driver at a high speed and in a rash and negligent manner, he had sounded his horn and switched the red light on and off to alert the van driver but in spite of this, the van had dashed against the right side of the bus. He deposed. 9. The learned Judge, on observing that the 1st respondents van driver had not been examined and on scrutiny of evidence of PW.1 and Ex.P1 held that the accident had been caused by the rash and negligent driving of the 1st respondent's van driver and hence dismissed the claim as against the 3rd respondent. 10. PW.2, Dr.John Karuppiah in his evidence deposed that the petitioner was an inpatient in the hospital from 17.05.2001 to 04.06.2001 and that the discharge summary had been marked as Ex.P9. On scrutiny of Ex.P6, it is seen that the petitioner has been an inpatient at the hospital from 26.09.2003 to 07.10.2003 and that a surgery was conducted on 27.09.2003. It seen that the movements of the humorous bone in the right arm of the petitioner has been affected. PW.3, Dr.Ravi, had adduced evidence that due to the injuries sustained by the petitioner, he would not be able to eat, dress or do any work with his right hand and that the disability sustained by him was 64%. In support of his evidence, he had marked as Ex.P10, disability certificate. PW.3, Dr.Ravi, had adduced evidence that due to the injuries sustained by the petitioner, he would not be able to eat, dress or do any work with his right hand and that the disability sustained by him was 64%. In support of his evidence, he had marked as Ex.P10, disability certificate. 11. Hence, the learned Judge, considering the oral and documentary evidence awarded a sum of Rs.1,00,000/- under the head of permanent disability, Rs.20,000/- under the head of pain and suffering; Rs.10,000/-under the head of loss of income doing medical treatment period; Rs.53,151/- for medical expenses; Rs.1,50,000/- for future medical expenses as surgery has to be done for removing screws fixed; Rs.5,000/-towards nutrition. In total, the Tribunal awarded a sum of Rs.3,38,151/-as compensation to the petitioner and directed the 1st and 2nd respondents to pay the said compensation together with interest at the rate of 7.5% per annum from the date of filing the petition till date of payment of compensation and directed the respondents to deposit it within a period of two months. On deposit being made, the said compensation along with interest was to be deposited in a Nationalized Bank, as fixed deposit for three years and the petitioner was permitted to receive the interest on such deposit once in three months. 12. Aggrieved by the award passed by the Tribunal, the 2nd respondent has preferred the present appeal. The learned counsel for the appellant has contended that the Tribunal failed to consider that the accident took place in the high way and here was enough room for both the vehicles to move to the left side and avoid a collusion. It was submitted that it was only the right side of both the vehicles that hit each other and the point of collusion was in the middle of the road, indicating that both the drivers of the vehicles were negligent. It was pointed out the Tribunal erred in awarding a sum of Rs.1,00,000/- against permanent disability of 64% after having awarded separate sum of Rs.10,000/- towards loss of income. It was pointed out that the Tribunal erred in awarding a sum of Rs.1,50,000/-towards further medical expenses on a mere assumption as to the expenses involved. It was also contended that the Tribunal erred in awarding a sum of Rs.53,151/-towards medical expenses without checking the truthfulness of the bills produced. 13. It was pointed out that the Tribunal erred in awarding a sum of Rs.1,50,000/-towards further medical expenses on a mere assumption as to the expenses involved. It was also contended that the Tribunal erred in awarding a sum of Rs.53,151/-towards medical expenses without checking the truthfulness of the bills produced. 13. The learned counsel for the claimant submitted that the claimant had sustained bone fracture injuries and he underwent medical treatment as inpatient for a lengthy period. As per doctor's evidence and certificate, the claimant held sustained 64% disability. While the claimant had undergone treatment as inpatient, he had undergone surgical operations and steel plate with screw were fixed in the operated area. The same has to be removed by way of re-operation. The learned counsel further submits that the Tribunal had not awarded compensation under the head of loss of earnings during medical treatment period and convalescence period. The Tribunal had not awarded adequate compensation under the head of nutrition and transport, since the claimant had undergone treatment as an inpatient for a period of two months. Further, the claimant is entitled to receive compensation under the head of attender charges. The medical expenses of Rs.4,00,000/-had been spent by the claimant, but the Tribunal had awarded only a sum of Rs.53,151/-alone. The learned counsel further submits that the claimant is entitled to receive adequate compensation under the head of disability but the Tribunal had awarded only Rs.1,00,000/-. 14. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the view that the Tribunal's awarded a sum of Rs.1,50,000/-under the head of future medical expenses is not appropriate in the instant case, since no medical certificate had been produced from the concerned surgeon. Therefore, this Court restructures the compensation as follows: This Court awards Rs.1,28,000/- under the head of disability of 64%; Rs.53,151/-awarded by the Tribunal towards medical expenses is confirmed. This Court awards Rs.20,000/- under the head of pain and suffering; Rs.30,000/-under the head of transport, nutrition and attender charges (Rs.10,000/- under each head); Rs.30,000/-under the head of loss of earning during medical treatment period and convalescence period; Rs.30,000/- under the head of future medical expenses and Rs.20,000/-under the head of loss of amenities and loss of comfort. In total, this Court awards Rs.3,11,151/- as compensation. In total, this Court awards Rs.3,11,151/- as compensation. Therefore, the compensation has been scaled down from Rs.3,38,151/- to 3,11,151/- as it is found to be appropriate in the instant case. The rate of interest of 7.5% fixed by the Tribunal is unaltered. This Court directed the appellant to deposit a sum of Rs.2,50,000/-with accrued interest and costs on 20.01.2007. Subsequently, this Court permitted the claimant to withdraw a sum ofRs.2,00,000/- with proportionate interests and costs. Now, this Court directs the appellant/United India Insurance Company to deposit the balance compensation, as per this Court findings, within a period of six weeks from the date of receipt of this order, after deducting earlier payments made by the appellant before the Trial Court. 15. After such deposit being made, it is open to the claimant to withdraw the compensation amount lying in the credit of M.C.O.P.No.2203 of 2001, on the file of the Motor Accident Claims Tribunal, III Additional Subordinate Judge, Trichy, after filing a memo, along with a copy of this order, subject to withdrawals made if any, already as per this Court's directions. 16. In the result, the above appeal is partly allowed. Consequently, the award and decree passed in M.C.O.P.No.2203 of 2001, on the file of the Motor Accident Claims Tribunal, III Additional Subordinate Judge, Trichy, dated 21.06.2006, is modified.