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2013 DIGILAW 467 (MAD)

National Insurance Company Limited v. Maheswaran

2013-01-22

C.S.KARNAN

body2013
JUDGMENT 1. The 1st respondent/claimant was travelling as a pillion rider on the TVS-50 bearing registration No.TN-45J-4402, on 21.03.1999 at about 05.00 a.m., when the vehicle was nearing Thuvakudi Auto Stand and at that point of time a lorry bearing registration No.NO-02A-5792 which was coming from west to east direction on the Trichy to Tanjavoor high road and which was driven by its driver in a rash and negligent manner and dashed against the TVS-50 vehicle, in the result the claimant had sustained multiple injuries. Hence, the claim petition has been filed against the respondents. 2. The 2nd respondent/National Insurance Company had filed a counter statement and refuted the claim petition. The respondent stated that at the time of accident, the vehicle was not insured with this respondent. The age, income, occupation and medical expenses all also denied. Actually, the 1st respondent's vehicle was proceeding from west to east direction on the left side and at that point of time the 3rd respondent's vehicle had been driven by its rider in a rash and negligent manner and dashed against the 1st respondent's vehicle. 3. The 4th respondent/United India Insurance Company had filed a counter statement and resisted the claim petition. The respondent stated that the 1st respondent's lorry bearing registration No.NL-02A-5792 came from west to east direction in a rash and negligent manner and dashed against the 3rd respondent's two wheeler. A criminal case has been registered against the driver of the 1st respondent, the respondent denied age, income and nature of injuries, besides the claim amount is excessive. 4. After verifying the averments of the parties the motor accident Claims tribunal had framed two issued namely: (1) Whether the accident had happened due to the rash and negligent driving by the driver of the 1st respondent for 3rd respondent's driver or both?; (2) Whether the petitioner is entitled to claim any compensation? If, so what is the quantum of compensation? 5. If, so what is the quantum of compensation? 5. On the side of the claimants two witnesses had been examined namely: Claimant and doctor as PW.1 and PW.2 respectively and had marked twenty documents as exhibits A1 to A20 namely: Ex.A1-F.I.R; Ex.A2-wound certificate issued to the petitioner; Ex.A3-discharge summary issued to the petitioner by Sea-horse hospitals Limited; Ex.A4-Radiology report of the petitioner; Ex.A5-discharge summary issued to the petitioner by Indira Seahadri Nursing Home, Trichy; Ex.A6-medical certificate issued to the petitioner; Ex.A7-medical prescription issued to the petitioner by BHEL hospitals; Ex.A8-discharge summary issued to the petitioner by G.Viswanathan Hospitals; Ex.A9-medical certificate issued to the petitioner by Dr. N.Chandrasekaran; Ex.A10-medical bills submitted by the petitioner; Ex.A11-pay slip issued to the petitioner; Ex.A12-01.11.2004 certificate issued to the petitioner by Shri.Nataraj Ceramic and Chemicals Limited, Dalmiapuram; Ex.A13-disability certificate issued to the petitioner; Ex.A.14-discharge summary issued to the petitioner by Sea-horse Hospitals Limited; Ex.A.15-Echo Cardiography screening report of the petitioner; Ex.A16-Ultra sound abdomen and Pelvis report of the petitioner; Ex.A17-Bacteriological culture sensivity report of the petitioner; Ex.A18-Vasan Medical Centre lab report issued to the petitioner; Ex.A19-Medical bills submitted by the petitioner; Ex.A20-Copy of insurance policy issued in the name of the first respondent. On the side of the respondent, one witness was examined as RW.1 and four documents were marked viz., B1 and B2-Commercial vehicle package policies; Ex.P3 and P4-ledger produced by the 2nd respondent. 6. PW.1, had adduced evidence stating that he was travelling on the "TVS-50" bearing registration No.TN-45J-4402 as a pillion rider. When the rider of the motor cycle ridden the motor cycle in a cautious manner and when the vehicle was nearing Thurakudi Auto Stand and at that point of time the 1st respondent's vehicle bearing registration No.NL-02A-5792 which was coming from west to east direction on the Trichy to Tanjavoor main road in a rash and negligent manner and dashed against the TVS-50. PW.1, further stated that a criminal case has been registered against the 1st respondent's lorry. PW.1, further stated that he had sustained bone fracture injuries on his right leg and spinal cord. He underwent treatment at BHEL hospital as inpatient for a certain period and thereafter he underwent as inpatient at the Sea-Horse Hospital as inpatient for a period on one month, during the period of treatment his right leg had been amputated upto knee level. He underwent treatment at BHEL hospital as inpatient for a certain period and thereafter he underwent as inpatient at the Sea-Horse Hospital as inpatient for a period on one month, during the period of treatment his right leg had been amputated upto knee level. Thereafter, he also underwent medical treatment again at BHEL Hospital as an inpatient for a period of two months, subsequently, he had undergone medical treatment as outpatient. PW.1, further stated that he undergone difficulty in attending natural calls and also suffering from Urinary problems for which he had undergone one more surgical operation and a tube was attached for passing urine. 7. PW.2, Doctor had adduced evidence stating that he had treated as PW.1 and he was admitted as an inpatient for about 34 days. He had also sustained bone fracture injuries on his spinal cord and due to the nature of these injuries he lost his sexual capability. PW.2, after verifying the entire medical records and also after examining the claimant assessed the disability as 50%, which had been sustained by the claimant due to the accident. 8. RW.3, had adduced evidence stating that he is working as an Assistant Administrating Office in the 2nd respondent's Insurance Company. The 1st respondent's lorry insured by his company from 08.02.1998 to 07.02.1999 and thereafter renewed from 18.06.1999 to 17.06.2000. At the time of accident, the Insurance Policy was not in force. To substantiate his evidence he had marked the above mentioned documents as B1 to B4. 9. After, considering the oral evidence of the parties and on scrutinizing the documentary evidence, the learned tribunal had come to the conclusion that the driver of both vehicles are responsible for the accident due to their rash and negligent driving, further, the tribunal had awarded compensation a sum of Rs.4,05,000/- with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. The tribunal had directed the 1st and 2nd respondents to pay 60% of the compensation amount and had also directed the 3rd and 4th respondents to pay 40% of the compensation amount. 10. Aggrieved by the said award and decree the 2nd respondent/appellant has filed the above appeal. The tribunal had directed the 1st and 2nd respondents to pay 60% of the compensation amount and had also directed the 3rd and 4th respondents to pay 40% of the compensation amount. 10. Aggrieved by the said award and decree the 2nd respondent/appellant has filed the above appeal. The learned counsel for the appellant vehemently argued that there was no contract for insurance policy was not in forced at the time of accident, then the Insurance Company is not liable to pay compensation, since there was breach of contract. The learned counsel further submitted that the quantum of compensation awarded by the tribunal is not appropriate. The Tribunal had awarded a sum of Rs.50,000/- under the head of pain and suffering which is on the higher side, further the tribunal had awarded a sum of Rs.25,000/- and Rs.75,000/-towards transport and loss of income respectively, these amounts are also on the higher side and also arranged in an arbitrary manner. 11. The learned counsel for the claimant vehemently argued that the claimant's right leg had been amputated upto knee level, hence, a major surgical operation was conducted besides one more major surgical operation was conducted on his abdomen, since the claimant's urinary system was affected. For passing urine a tube was attached, as such the claimant's total avocation is affected and also lost his comfort abilities. Further, the claimant had sustained further disability in the said accident. 12. On considering the facts and circumstances of the case and the arguments advanced by the learned counsels on either side and on perusing the impugned award of the tribunal, this Court does not find in the conclusion arrived at regarding liability quantum of compensation, since the claimant's right leg had been amputated up to knee level and also his urinary system had been affected and he had sustained bone fracture besides the rupture of the spinal cord. As per the doctor's evidence the claimant lost his sexual potential which, is most essential in the human right cycle. Therefore, the quantum of compensation for the relevant heads namely; disability, disfigurement, loss of mobility; loss of sexual potentiality, pain and suffering, transport, at tender charges, loss of earning during medical treatment, medical expenses and loss of comfort and also loss of earning capacity in the instant case. Hence, this Court declines to interfere with the quantum of compensation to the claimant. Hence, this Court declines to interfere with the quantum of compensation to the claimant. As per this Court records, it is seen that this Court had directed the appellant to comply with the impugned order, further this Court had permitted the claimant to withdraw 50% of the deposited amount. Now, this Court directs the appellant to deposit the entire compensation amount as per the tribunal order within a period of four weeks from the date of receipt of this order, subject to deduction if already deposited. 13. The claimant is at liberty to withdraw the entire compensation amount that had been deposited by the appellant lying in the credit of M.C.O.P.No.2705 of 1999, on the file of the Motor Accident Claims Tribunal, 1st Additional District Court, Trichy, after filing a memo along with a copy of this order, subject to withdrawals if any. 14. In the result, the above appeal is dismissed. Consequently, the judgment and decree passed in M.C.O.P.No.2705 of 1999, on the file of the Motor Accident Claims Tribunal, I Additional District Court, Trichy, dated 19.12.2005, is confirmed. No costs.