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2013 DIGILAW 3217 (MAD)

National Insurance Company Ltd. v. B. Chandran

2013-09-06

C.S.KARNAN

body2013
Judgment : 1. The appellant/2nd respondent has preferred the present appeal in CMA (MD).No.1819 of 2007, against the judgment and decree passed in MCOP No.3335 of 2001 dated 23.11.2006 on the file of the Motor Accidents Claims Tribunal/V Court of Small Causes at Chennai. 2. The short facts of the case are as follows:- The petitioner has filed the claim petition in MCOP No.3335 of 2001, 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 28.04.2001, at about 10.15 hours, when the petitioner was proceeding in the TVS Suzuki motorcycle bearing registration No. TN 04 E 4102, on the 100 feet road, Velachery from south to north and when it was near Yerikarai Kala Waste Paper, Door No.18 B, the first respondent tanker lorry bearing registration No. TN 23 W 0564, coming in the opposite direction and driven by its driver in a rash and negligent manner, dashed against the motorcycle. As a result, the petitioner sustained multiple grievous injuries and was admitted at Athipathi hospital, Velachery, Chennai on 28.04.2001 and thereafter, he took private treatment. At the time of accident, the petitioner was aged 34 years and was employed as a centring worker and earning Rs.4,000/- per month. Due to the injuries sustained in the accident, the petitioner could not stand and walk. Hence, he has filed the claim against the first and second respondents, who are the owner and insurer of the tanker lorry bearing registration No. TN 23 W 0564. 3. The first respondent, in his counter, has denied the averments in the claim regarding age, occupation, nature of employment, monthly income, nature of injuries, medical treatment taken and disability. It was submitted that the accident was caused only due to the rash and negligent driving of the motorcycle by the petitioner and not due to any negligence on the part of the driver of the first respondent's tanker lorry. It was submitted that as the first respondent's vehicle was covered under a policy of insurance with the second respondent, only the second respondent is liable to pay compensation, if so decided by the tribunal. 4. It was submitted that as the first respondent's vehicle was covered under a policy of insurance with the second respondent, only the second respondent is liable to pay compensation, if so decided by the tribunal. 4. The second respondent, in his counter has submitted that the petitioner should prove his age, occupation, income, place, date and time of accident, name and address of the driver, owner and insurer of the tanker lorry and nature of injuries, medical treatment and disability. It was submitted that the petitioner should prove that the first respondent's tanker driver had a valid driving license and that the lorry was insured with the second respondent through documentary evidence. It was submitted that as per the private investigation report furnished to the second respondent, it is seen that one N.Munikrishnan was the driver of the tanker lorry and as such, the name and address of the driver of the tanker lorry bearing Registration No. TN 23 W 0564 as mentioned in Col.No.16(a) of the petition needs to be amended. It was submitted that the claim was excessive. 5. The Motor Accident Claims Tribunal framed four issues for consideration in the case, namely, (1) whether the accident was caused by the negligent driving of the driver of the tanker lorry bearing registration No. TN 23 W 0564? (2) Whether the respondents are liable to pay compensation? (3) Whether the petitioner is entitled to get compensation? (4) To what other relief is he entitled to get? 6. On the petitioner's side, two witnesses were examined and 15 documents were marked as Exs.P.1 to P.15, namely, copy of the First Information Report, Copy of Rough Sketch, Discharge Summary, Hospital bills, Puthur O.P. Chit, Discharge Summary from St.Isbel's Hospital, Prescriptions, Pharmacy bills, Doctor Bill, Copy of Charge Sheet, Lab bills, Transport Bills, Copy of Driving licence, Disability Certificate and X-rays. On the respondent's, no witness was examined and no document was marked. 7. P.W.1, the petitioner had adduced evidence, which is corroborative 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, Ex.P.2, Exs.P.10 and 13. On scrutiny of Ex.P.2, rough sketch, it is seen that the tanker lorry had crossed the middle line and come on to the wrong side of the road and dashed against the petitioner's motorcycle, which was going on the right path. On scrutiny of Ex.P.2, rough sketch, it is seen that the tanker lorry had crossed the middle line and come on to the wrong side of the road and dashed against the petitioner's motorcycle, which was going on the right path. The Tribunal, on scrutiny of evidence of P.W.1 and on scrutiny of Ex.P.2 and on observing that no oral or documentary evidence had been let in to rebut the claim of the petitioner regarding manner of accident, held that the accident had been caused by the rash and negligent driving of the driver of the first respondents lorry bearing registration No. TN 23 W 0564 and hence held the first and second respondents jointly and severally liable to pay compensation to the petitioner. 8. P.W.1 had further adduced evidence that due to the accident, he sustained fracture of bone in his right leg and that he had taken treatment at Athipathi hospital and that subsequently he had treatment at puthur. He deposed that as he had subsequently felt severe pain in his hip, he was admitted at escbel hospital and received treatment as an inpatient from 26.05.2001 to 11.06.2001 and that a surgery was done and steel plate was fixed. He deposed that prior to the accident, he was employed as a centring worker and earning Rs.150/- per day and subsequent to the accident, he is not able to do that work and in support of his evidence he had marked Ex.P.3 to Ex.P.11. 9. P.W.2, Dr.J.R.R.Thiagarajan had adduced evidence that he examined the petitioner on 23.08.2006 and found that the petitioner had sustained fracture of right femur joint and that a surgery was performed and two plates were fixed. He deposed that the movement of the petitioner's hip and right knee has been reduced to 60 degrees and 80 degrees respectively and that the length of the right leg is reduced by 1-1/2 inches. He deposed that the petitioner walks with a limp and cannot work as a centring worker. He certified that the partial permanent disability sustained by petitioner was 55% and in support of his evidence, he had marked Ex.P.14 and disability certificate and Ex.P.15, X' rays. 10. The Tribunal, on observing that no documents had been marked to prove the income of the petitioner held that the notional income of the petitioner was Rs.3,000/-per month. He certified that the partial permanent disability sustained by petitioner was 55% and in support of his evidence, he had marked Ex.P.14 and disability certificate and Ex.P.15, X' rays. 10. The Tribunal, on observing that no documents had been marked to prove the income of the petitioner held that the notional income of the petitioner was Rs.3,000/-per month. The Tribunal on scrutiny of oral and documentary evidence awarded a sum of Rs.18,000/- for loss of income for 6 six months during medical treatment and convalescence period; Rs.1500/-was awarded for nourishment and Rs.1874 was awarded for travel expenses as per bills marked Ex.P.12; Rs.500/- was awarded for damage to cloths; Rs.42,382.50 was awarded for medical expenses as per medical bills marked as Ex.P.4 Ex.P.8, Ex.P.9 and Ex.P.11; Rs.10,000/-was awarded for pain and suffering; Rs.50,000/- was awarded for partial permanent disability and Rs.75,000/-was awarded for loss of future earning power. In total, the Tribunal awarded a sum of Rs.2,00,000/- as compensation to the petitioner and directed the respondents to jointly and severally pay the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition till date of deposit, with costs, within two months from the date of its order. 11. Aggrieved by the award passed by the Tribunal, the second respondent/National Insurance Company Ltd., Chennai -2, has preferred the present appeal. The counsel for the appellant has contended in his appeal that the tribunal failed to see that P.W.2, the Doctor had never treated the petitioner and the assessment of percentage of disability by him was excessive and hence, the Tribunal ought not to have awarded relief on percentage of disability assessed by P.W.2 and allowed a sum of Rs.50,000/-under the head of partial permanent disability. It was contended that the Tribunal, after having awarded Rs.50,000/- for disability ought not to have awarded a sum of Rs.75,000/- under the head of future loss of earning as it is redundant. It was contended that the award of Rs.10,000/- for pain and suffering was erroneous and that the Tribunal also erred in fixing the income of the petitioner at Rs.3,000/-per month, as no evidence had been produced to show his occupation and income and as such the award of Rs.18,000/- for loss of income for six months during medical treatment period is also erroneous. Hence, it was prayed to set aside the award passed by the Tribunal. 12. The highly competent counsel for the claimant argued that the First Information Report has been registered against the offending vehicle driver since he had committed the said accident. The Doctor had assessed the disability at 55% and the claimants right leg had been reduced by 1-1/2 inches. A surgical operation was conducted at a private hospital and as such he had spent about Rs.50,000/-on medical expenses. On considering the nature of injuries, mode of treatment, and surgical operation, the compensation had been assessed in an appropriate manner. 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 conclusions arrived at regarding negligence, liability and quantum of compensation. However, the Tribunal after having awarded Rs.50,000/- for partial permanent disability and again granted Rs.75,000/-towards loss of future earning which is redundant. Therefore, this Court restructures the compensation as follows:- Rs.82,500 is awarded for disability; Rs.42,500/-is awarded for medical expenses; Rs.15,000/- towards pain and suffering; Rs.10,000/-towards attender charges; Rs.10,000/- towards nutrition; Rs.10,000/- towards transport expenses; Rs.15,000/-towards loss of income during medical treatment period and convalescence period and Rs.15,000/- towards loss of amenities and loss of comfort. As such, the quantum of compensation awarded by the Tribunal is confirmed. This Court is of the further view that the criminal case has been levelled against the offending vehicle's driver and the vehicle has been insured with the appellant herein. As such, negligence and liability has been decided in an appropriate manner. The doctor had assessed the disability at 55% and it is seen that the claimant had spent a sum of Rs.42,382 towards medical expenses as per medical bills marked. 14. This Court directed the appellant to deposit Rs.1,50,000/-with proportionate interest thereon. Now, this Court directs the appellants to deposit the balance compensation amount, with accrued interest thereon, within a period of four weeks and execute the award, which has been granted in an appropriate manner. After such a deposit having been made, it is open to the claimant to withdraw the entire compensation amount lying in the credit of MCOP No.3335 of 2001 on the file of the Motor Accident Claims Tribunal, Chennai (in the V Court of Small Causes, Chennai). 15. After such a deposit having been made, it is open to the claimant to withdraw the entire compensation amount lying in the credit of MCOP No.3335 of 2001 on the file of the Motor Accident Claims Tribunal, Chennai (in the V Court of Small Causes, Chennai). 15. In the result, this Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree passed in MCOP No.3335 of 2001 dated 23.11.2006 on the file of the Motor Accident Claims Tribunal, Chennai (in the V Court of Small Causes, Chennai) is confirmed. Consequently, connected miscellaneous petition is closed. No costs.