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2013 DIGILAW 3891 (MAD)

P. Manikandan v. M. Ramesh

2013-11-12

P.R.SHIVAKUMAR

body2013
Judgment : 1. The injured claimant is the appellant in the Civil Miscellaneous Appeal. He made a claim for Rs.6,00,000/- as compensation against the respondents 1 and 2 as owner and insurer respectively of the offending vehicle, namely a car bearing Regn. No.TN-05 V0533. The claim was made on the basis of his contention that the accident took place solely due to the rash and negligent driving of the said vehicle by its driver and that he sustained grievous injuries including fractures. 2. The first respondent/owner of the vehicle did not contest the case and he remained ex-parte before the Tribunal. The second respondent/insurer of the offending vehicle alone contested the case before the Tribunal, not only on the grounds available to the insurer under Section 149 of the Motor Vehicles Act, 1998, but also on all other grounds available to the insured, after getting the leave of the Tribunal under Section 170 of the Motor Vehicles Act, 1988. 3. In the trial, two witnesses were examined as PWs.1 and 2 and 12 documents were marked as Exs.P1 to P12 on the side of the appellant herein/claimant. No witness was examined and no document was marked on the side of the respondents herein. The Tribunal considered the evidence in the light of the arguments advanced on both sides and upon such consideration rendered a finding that the accident took place solely due to the rash and negligent driving of the car belonging to the first respondent, which stood insured with the second respondent. 4. Based on the evidence of PWs.1 and 2 and also the documents including medical bills evidencing the treatment given to the appellant/claimant and also relying on Ex.P11-disability certificate, the Tribunal found the appellant/claimant to have suffered permanent disability to the tune of 65%. However, in view of the admission made by the appellant/claimant that he was working as an Assistant in a private concern and he did not lose his job, the Tribunal chose to award a lumpsum amount as compensation for the disability. It awarded a sum of Rs.1,30,000/-for the permanent disability. A sum of Rs.2,16,250/- was awarded as compensation for the medical expenses. Another sum of Rs.36,000/- was awarded towards loss of earning for eight months during the period he underwent treatment. It awarded a sum of Rs.1,30,000/-for the permanent disability. A sum of Rs.2,16,250/- was awarded as compensation for the medical expenses. Another sum of Rs.36,000/- was awarded towards loss of earning for eight months during the period he underwent treatment. Adding some amounts towards pain and suffering, transportation expenses, extra nourishment and expenses on medical attendants, the Tribunal arrived at the figure of Rs.4,49,750 as the amount that could be reasonably fixed as compensation, to which the appellant/claimant would be entitled. Accordingly, the Tribunal passed an award directing the respondents 1 and 2 to pay the above said amount along with an interest at the rate of 7.5% per annum from the date of filing of the MCOP till deposit and also cost. 5. Not satisfied with the amount awarded as compensation by the Tribunal and contending that the amount awarded by the Tribunal as compensation is inadequate, the appellant/claimant has come forward with the present civil miscellaneous appeal on various grounds set out in the Memorandum of Civil Miscellaneous Appeal. 6. The point that arises for consideration in the appeal is: "whether the amount awarded by the Tribunal is inadequate requiring upward revision?" 7. The arguments advanced by Mr.C.Munuswamy, learned counsel appearing for the appellant and by Mr.V.Kabirdas, learned counsel appearing for the second respondent are heard. (First respondent is a non-contesting party and notice to him has been dispensed with by an order dated 12.11.2013 made in M.P.No.1 of 2013). The judgment of the Tribunal, evidence adduced before the Tribunal and other materials available in the form of records are also taken into consideration. 8. It is not in dispute that while the appellant/claimant was riding his TVS XL Super Moped bearing Regn. No.TN-10 M-4312 along Rajiv Gandhi Salai from north to south and was turning towards west at PTC quarters signal point, a car bearing Regn. No.TN-05 V-0533 belonging to the first respondent, which stood insured with the second respondent, came in the opposite direction, namely south to north, and dashed against the moped in which the appellant/claimant was proceeding. The finding of the Tribunal that the driver of the above said car was at fault and it was solely due to his rash and negligent driving the accident took place is not challenged by the respondents. Even the amount awarded as compensation by the Tribunal is not challenged by the respondents as excessive or exorbitant. The finding of the Tribunal that the driver of the above said car was at fault and it was solely due to his rash and negligent driving the accident took place is not challenged by the respondents. Even the amount awarded as compensation by the Tribunal is not challenged by the respondents as excessive or exorbitant. On the other hand, the appellant/claimant alone has approached this court expressing dissatisfaction stating that the amount awarded by the Tribunal is insufficient. 9. Though the Tribunal, based on evidence has accepted the contention of the appellant/claimant that he was working as an Assistant in a private concern, since no salary certificate was produced and no one from the said private concern was examined to prove his monthly salary, the Tribunal took his salary to be Rs.4,500/- per month. The said decision arrived at by the Tribunal cannot be said to be either infirm or defective. Based on the finding that the appellant/injured claimant was drawing a salary of Rs.4,500/- per month and accepting the contention of the appellant/injured claimant that he was on loss of pay for about eight months after the accident, the Tribunal chose to award a sum of Rs.36,000/- as loss of income caused to him during the period of his treatment and the period during which he would have needed complete rest. The same also cannot be found fault with. 10. From the evidence, it is obvious that the appellant/injured claimant sustained fractures of both bones on the left leg below the knee and also a fracture of the pelvis bone. The evidence shows that though he was conventionally treated initially at Puttur, subsequently he took proper treatment for the fractures and the fractured bones were joined fixing plates and nails. It is obvious from the evidence of PW.2 and also the documents produced by the appellant as Exs.P2 to P5, P7, P11 and P12 that despite proper treatment, he has suffered permanent disability, which was assessed by the Medical Officer to be at 65%. Neither the appellant nor the contesting respondent disputes the correctness of the assessment of permanent disability. On the other hand, the learned counsel for the appellant would submit that since the appellant/claimant was found to be with 65% permanent disability, award of a sum of Rs.1,30,000/-alone towards permanent disability cannot be justified and more amount should have been awarded. 11. Neither the appellant nor the contesting respondent disputes the correctness of the assessment of permanent disability. On the other hand, the learned counsel for the appellant would submit that since the appellant/claimant was found to be with 65% permanent disability, award of a sum of Rs.1,30,000/-alone towards permanent disability cannot be justified and more amount should have been awarded. 11. In this regard, the learned counsel for the second respondent would contend that since there is no evidence to show that the appellant/claimant lost his job and on the other hand, it is admitted that he continues in the very same job, the adoption of a lumpsum method for permanent disability alone shall be proper and that the Tribunal rightly adopted the lumpsum method and liberally awarded a sum of Rs.1,30,000/-at the rate of Rs.2,000/- per percentage of disability for the permanent disability. As such, as rightly contended by the learned counsel for the 2nd respondent, the same can be taken as compensation for the functional disability with which the appellant/claimant has to live for the rest of the life and also the loss of comforts due to the above said disability. 12. The learned counsel for the appellant would submit that the Tribunal failed to note the fact that the appellant/claimant was an unmarried person and his marital prospects had diminished and that therefore a decent amount should have been awarded towards the same. Accepting the above said contention of the learned counsel for the appellant, this court fixes a sum of Rs.25,000/-as compensation for the diminution of the marital prospects. The Tribunal has awarded a sum of Rs.25,000/-towards pain and suffering. If at all the pain and suffering already undergone alone is taken into account, the said amount can be justified as a reasonable amount. In this case, it is the contention of the learned counsel for the appellant that in future also the appellant/claimant has to undergo treatment and in fact, when the appellant was referred by this court to a specialist in Orthopaedics, he has opined that the petitioner has been advised to undergo a further surgery for the removal of the plates and nails at a cost of Rs.55,000/-. If the same shall be taken into account, it shall be just and reasonable to increase the amount awarded towards pain and suffering from Rs.25,000/- to Rs.40,000/-. 13. If the same shall be taken into account, it shall be just and reasonable to increase the amount awarded towards pain and suffering from Rs.25,000/- to Rs.40,000/-. 13. Admittedly, the Tribunal has awarded the entire amount covered by the medical bills submitted by the appellant/claimant towards medical expenses. The amount thus awarded towards medical expenditure is Rs.2,16,250/-. Since it has been now brought to the notice of the court that the appellant/claimant has been advised to undergo surgery for the removal of the plates and nails, which will cost Rs.55,000/-, the said amount has to be added to the above said amount towards medical expenses, thus increasing the compensation towards medical expenses to Rs.2,71,250/-. The counsel appearing for the parties admit that the amount awarded towards transportation and damage to clothes are reasonable and no revision of the same need be made. For extra nourishment, the Tribunal has awarded a sum of Rs.10,000/-which also does not need any interference. A sum of Rs.10,000/-was awarded towards expenses on medical attendants, and the same also does not require any interference. If such adjustments are made, we will arrive at the figure Rs.5,44,750/-as the amount that could be reasonably fixed as compensation, to which the appellant/claimant would be entitled. The Tribunal has fixed the rate of interest at the rate of 7.5% per annum. The same needs confirmation. 14. At the cost of repetition, the break-up particulars are furnished hereunder: 14. For all the reasons stated above, it is hereby held that the appellant /claimant shall be entitled to a sum of Rs.5,44,750/- as total compensation as against Rs.4,49,750/-awarded by the Tribunal. Hence the point for determination is answered holding that the appellant is entitled to enhancement to the extent indicated above. In the result, the appeal is allowed in part and the award of the Tribunal is modified by enhancing the compensation from Rs.4,49,750/- to Rs.5,44,750/-. In all other respects, including the rate of interest, the award of the Tribunal shall stand confirmed. However, there shall be no order as to cost in the appeal. The balance award amount as per the award of the Tribunal, if any and the enhanced compensation awarded as per this judgment, shall be deposited within four weeks from today.