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2013 DIGILAW 3199 (MAD)

C. Shanmugam v. S. Senthilkumar

2013-09-05

C.S.KARNAN

body2013
JUDGMENT 1. The appellant/petitioner has preferred the present appeal in CMA No.1374 of 2005, against the award and decree passed in MCOP No.2193 of 1999, on the file of the Motor Accident Claims Tribunal, V Judge, Court of Small Causes, Chennai. 2. The short facts of the cases are as follows:- The petitioner has filed the claim in MCOP No.2193 of 1999, claiming compensation of a sum of Rs.3,00,000/- from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that on 23.12.1998, at about 3.00 a.m., when the petitioner was travelling in the first respondents TATA Sumo car bearing Registration No. TN-02-T-5551, and the when the car was proceeding on the H.S.T. Road, near Othakadai, Madurai, the driver of the car drove it at a high speed and in a rash and negligent manner, due to which, he lost control of the vehicle and dashed it against a banyan tree on the side of the road. As a result, the petitioner sustained grievous injuries. Hence, he has filed the claim petition against the first and second respondents, who are the owner and insurer of the vehicle bearing registration No. TN 02 T 5551. 3. The second respondent in his counter has submitted that the petitioner has colluded with the first respondent and filed a false claim. It was submitted that the petitioner should prove his age, income, occupation, nature of injuries sustained and also prove that the driver of the first respondent's vehicle had a valid driving license and that the vehicle had been insured with the second respondent and that it was covered under a valid R.C., F.C. and permit at the time of accident. It was submitted that the claim was excessive. In his additional counter, it was submitted that as the first respondent's cheque, given as premium for insurance coverage of the vehicle, had been dishonoured, and as notice regarding the same had been sent to the first respondent, the contract of insurance between the first and second respondents did not exist and as such, the second respondent is not liable to pay any compensation. 4. The Motor Accidents Claims Tribunal framed two issues for consideration in the case, namely:- (1) Due to whose negligence was the accident caused? (2) Is the petitioner entitled to get compensation? 4. The Motor Accidents Claims Tribunal framed two issues for consideration in the case, namely:- (1) Due to whose negligence was the accident caused? (2) Is the petitioner entitled to get compensation? If so, what is the quantum of compensation, which he is entitled to get? 5. On the petitioner's side, three witnesses were examined as P.W.1 to P.W.3 and 18 documents were marked as Exs.P.1 to P.18, namely, Ex.P.1 Discharge summary; Ex.P.2, Prescription; Ex.P.3, Scan report; Ex.P.4,Scan bill, Ex.P.5, Discharge summary; Ex.P.6 Scan report, Ex.P.7 to Ex.P.9 Medical bills (series); Ex.P.10, O.P. chit; Ex.P.11, Medical report; Ex.P.12, Hospital bills; Ex.P.13, Salary certificate; Ex.14, Inauguration invitation ; Ex.P.15, Studio Bill Book; Ex.P.16, Disability Certificate; Ex.P.17, X' rays and Ex.P.18, Disability Certificate. On the side of the respondents, one witness was examined as R.W.1 and four documents were marked as Exs.R1 to R4, namely, Ex.R.1, returned cheque and memo (series); Ex.R.2, receipt for issuance of cheque; Ex.R3, Copy of the policy and Ex.R.4, returned cover. 6. P.W.1, the petitioner had adduced evidence which is corroboration of the statements made by him in the claim regarding manner of accident and in support of his evidence, he had marked Ex.P.1 to Ex.P.10. 7. R.W.1, B.Narendran, official of the second respondents firm had adduced evidence that the first respondent had issued a cheque dated 27.08.1998 for premium towards insurance of his car and that it was returned dishonoured on 28.08.1998 due to insufficiency of funds. He deposed that the second respondent had issued a receipt for issuance of cheque to the first respondent on 27.08.1998 and that the policy was issued on the same day and in support of his evidence, he had marked Ex.R.1 to R3. 8. Hence, the Tribunal on scrutiny of oral and documentary evidence held that the accident had been caused by the rash and negligent driving by the driver of the first respondent's car. The Tribunal, on considering that no documentary evidence had been let in on the side of the respondents to prove that the accident had been caused by mechanism fault of the car and that the driver of the first respondent's car did not have a valid license, held that the driver of the car had a valid license to drive the vehicle at the time of accident. The Tribunal, on observing that the return of cheque for premium and cancellation of policy of insurance had been intimated to the first respondent by the second respondent on 01.09.1998 itself and that even after such notice had been sent, the first respondent did not pay any premium and that as the accident had occurred on 23.12.1998, held that the second respondent is not liable to pay any compensation to the petitioner as no contract of insurance for the vehicle existed at the time of accident. Hence, the Tribunal held that only the first respondent is liable to pay compensation to the petitioner. 9. P.W.1 had adduced evidence that due to the injuries sustained by him in his head, 39 stitches were sutured and that he had also sustained fracture of two of his bones in his neck and that he is not able to stand for long periods of time, and not able to sit or bend his body. He deposed that he had sustained loss of memory and not able to do any work. P.W.2, Doctor had adduced evidence that the C5, C6 bones in the petitioner's neck had been displaced and that steel plates had been fixed in these regions and due to this the movements of the petitioner's neck had been reduced by 30°. He deposed that the petitioner had sustained 35% disability on this count. P.W.3, Doctor had adduced evidence that due to injuries sustained by the petitioner in his head, there is accumulation of water in his head and due to this, he experiences headache and giddiness and tremor in his left arm and slurring in speech. He deposed that the disability sustained by petitioner on this count was 30%. 10. The Tribunal, on opining that the disability discussed by the Doctor was slightly on the higher side held that the disability sustained by petitioner was 50%. The Tribunal, on scrutiny of Ex.P.13, observed that the petitioner was working as a proof reader in "Arumbu" magazine and earning Rs.5,000/- p.m. and that after the accident, he is not able to continue in his work. The Tribunal, on scrutiny of Ex.P.13, observed that the petitioner was working as a proof reader in "Arumbu" magazine and earning Rs.5,000/- p.m. and that after the accident, he is not able to continue in his work. The Tribunal, on scrutiny of oral and documentary evidence, awarded a sum of Rs.21,000/- for loss of income during medical treatment and convalescence period, Rs.5,000/- was awarded for transport expenses; Rs.5,000/-was awarded for nutrition; Rs.35,000/- was awarded for medical expenses as per medical bills marked as Ex.P.4, Ex.P.7, Ex.P.9 , Ex.P.10 and Ex.P.12, Rs.25,000/- was awarded for pain and suffering and Rs.50,000/- was awarded for disability of 50%; Rs.25,000/- was awarded under the head of loss of earning capacity; in total, the Tribunal awarded a sum of Rs.1,66,000/- as compensation to the petitioner and directed the first respondent, to deposit the said sum together with interest at the rate of 9% per annum from the date of filing of the claim petition till date of payment of compensation, with costs. The claim against the second respondent was dismissed. 11. Not being satisfied by the award passed by the Tribunal, the petitioner has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Tribunal erred in fastening the liability on the owner of the vehicle, and failed to note that once a policy is issued, the Insurance Company is liable to pay any third party claims and has the remedy to recover the same from the owner/insurer of the vehicle. It was contended that the Tribunal failed to note that as per evidence of P.W.2, Dr.N.Saichandran, an Orthopaedic Surgeon, the appellant herein had sustained fracture of C5 and C6 in his spinal cord and due to this, he finds it difficult to move his neck and assessed the disability at 35%. It was also contended that P.W.3, Dr.J.R.R.Thiagarajan, a General Surgeon had assessed the disability of the appellant, due to head injury as 30% and as such, the Tribunal ought to have awarded Rs.2,00,000/- under the head of "compensation for continued permanent disability". It was also contended that the award passed under loss of earning power and pain and suffering had chosen the lower side. Hence, it was prayed for grant of additional compensation of a sum of Rs.1,34,000/-. 12. It was also contended that the award passed under loss of earning power and pain and suffering had chosen the lower side. Hence, it was prayed for grant of additional compensation of a sum of Rs.1,34,000/-. 12. The highly competent counsel for the Insurance Company submitted that adequate compensation had been awarded by the Tribunal. Further, the Tribunal had awarded a sum of Rs.21,000/- under the head of loss of future income and besides this, the Tribunal had awarded a sum of Rs.50,000/-for disability. The Tribunal had again awarded a sum of Rs.25,000/- for loss of earning capacity. The learned counsel further submits that the Tribunal had awarded adequate compensation under the relevant heads. Hence, the learned counsel entreats the Court to dismiss the above appeal. 13. On considering the facts and circumstances of the case and arguments advanced by the learned counsel on either side, and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusion arrived at regarding negligence and liability. However, the quantum of compensation awarded is on the lower side since the claimant had sustained 65% disability, as per Doctor's evidence and his C5 an dC6 neck bones had been displaced, and he had sustained head injuries, measuring an extent of 20 x 2 cms and he had spent a sum of Rs.35,000/-for medical expenses. Hence, this Court is inclined to grant additional compensation as follows. 14. Rs.97,500/- is awarded towards disability; Rs.15,000/-for pain and suffering; Rs.5,000/- for transportation; Rs.5,000/- for nutrition; Rs.10,000/-for attender charges; Rs.15,000/- towards loss of earning during medical treatment period and Rs.15,000/-towards loss of amenities and loss of comfort, and Rs.35,000/-for medical expenses. In total, this Court awards Rs.1,97,500/-as compensation to the claimant as it is found to be appropriate in the instant case. After deducting initial compensation of a sum of Rs.1,66,000/- this Court awards Rs.31,500/-as additional compensation. This additional compensation will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of compensation. This court directs the second respondent herein to comply with this Court's order, within a period four weeks by way of deposit before the Tribunal. 15. This additional compensation will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of compensation. This court directs the second respondent herein to comply with this Court's order, within a period four weeks by way of deposit before the Tribunal. 15. After such a deposit having been made, it is open to the claimant to withdraw the entire compensation amount with interest lying in the credit of MCOP No.2193 of 1999, on the file of the Motor Accidents Claims Tribunal, V Judge, Court of Small Causes, Chennai. 16. In the result, this Civil Miscellaneous Appeal is partly allowed. Consequently, the Award and Decree, passed in MCOP No.2193 of 1999, on the file of the Motor Accidents Claims Tribunal, V Judge, Court of Small Causes, Chennai dated 16.12.2004 is modified. No costs.