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2014 DIGILAW 2973 (MAD)

Oriental Insurance Company Limited v. Vellaichamy

2014-08-28

R.KARUPPIAH

body2014
Judgment : 1. The appellant/Insurance Company preferred this appeal against the award passed in M.C.O.P.No.30 of 2012, dated 30.08.2013, on the file of the Motor Accident Claims Tribunal-cum-Chief Judicial Magistrate, Virudhunagar District at Srivilliputhur. 2. Heard the learned counsel for the appellant as well as the learned counsel for the first respondent and perused the materials available on record. 3. For the sake of convenience, the Petitioner/claimant in the main M.C.O.P is referred as first respondent, first respondent in the main O.P is referred as second respondent and the second respondent/Insurance Company in the main O.P is referred as appellant/Insurance Company hereafter. 4. The first respondent has filed a claim petition for compensation of Rs.5 lakhs in which it is stated that on 9.3.2012 at about 7.45 hours, the first respondent riding his Hero Honda Splendour Plus Motor Cycle bearing Registration No. TNAQ 0420, with one Jayapandi as a Pillion rider, in a careful manner on the left side of the road from Srivilliputhur to Madurai Main Road south to north. At that time, the second respondent's vehicle TN 67 AZ 3544 was driven by its driver in a rash and negligent manner from opposite direction and dashed against the claimant's vehicle. In the above said accident, the first respondent sustained grievous injuries and he was admitted in Government Hospital, Srivilliputhur and then admitted in Devadhas Multi-Speciality Hospital, Madurai and taking treatment from 9.3.2012 to 30.3.2012 as inpatient. At the time of accident, the age of the first respondent was 28 years and he is an Advocate by profession and earned Rs.15,000/-p.m and therefore claimed compensation of Rs.5 lakhs on various heads. 5. Both the owner of the vehicle and appellant/Insurance filed a detailed counter and contended that the accident was not occurred due to the rash and negligent driving of the second respondent's vehicle driver as contended by the first respondent, but only due to rash and negligent driving of the first respondent and therefore the owner and Insurance Company are not liable to pay compensation. Further it is stated that the first respondent should prove all the particulars given in the claim petition about the age, income, nature of injuries etc. Further it is stated that the first respondent should prove all the particulars given in the claim petition about the age, income, nature of injuries etc. The Insurance company has also stated in the counter that the driver of the second respondent's vehicle having no driving licence at the time of accident and therefore it is violation of policy condition and on that ground also the appellant/Insurance Company is not liable to pay compensation. 6. Before the Tribunal, on the side of the first respondent/claimant examined two witnesses as P.W.1 and P.w.2 and also marked 12 documents from Ex.P1 to Ex.P12. On the side of the appellant two witnesses were examined as R.W.1 and R.W.2 and marked two documents as Ex.R1 and Ex.R2. The Tribunal after considering the above said oral and documentary evidence adduced on either side and finally held that the accident was occurred only due to the rash and negligent driving of the second respondent's vehicle driver and therefore the second respondent is liable to pay compensation. The Tribunal further held that since the above said vehicle was duly insured with the appellant/Insurance Company, but the owner of the vehicle not produced the driving licence of the driver of the vehicle and therefore the tribunal directed the appellant/Insurance Company to pay the compensation at the first instance to the first respondent and then to recover the same from the second respondent/owner of the vehicle later. 7. With regard to the quantum of compensation, the Tribunal has fixed the age of the injured as 28 years and monthly income of the injured was fixed as 5000/-and the Tribunal has adopted multiplier system and calculated the compensation for loss of income as Rs.5000/- x 17 x 12 x 50 =Rs.5,10,000/-. Apart from that for extra nourishment Rs.15,000/-, for loss of income Rs.15,000/-, transportation Rs.10,000/-, medical expenses as per Ex.P7 Rs.2,33,562/, for pain and sufferings Rs.20,000/- and totally a sum of Rs.8,03,562/-awarded as compensation to the first respondent/claimant. 8. The learned counsel for the appellant mainly contended that the quantum of compensation awarded by the Tribunal for permanent disability is highly exorbitant and therefore prayed for to reduce the compensation. 9. 8. The learned counsel for the appellant mainly contended that the quantum of compensation awarded by the Tribunal for permanent disability is highly exorbitant and therefore prayed for to reduce the compensation. 9. Per contra, the learned counsel for the first respondent submitted that the tribunal has correctly awarded compensation on considering the age, income and avocation and other factors, there is no need to interfere with the above said finding of the tribunal. 10. With regard to the negligence aspect, on the side of the first respondent he himself deposed as P.W.1 and marked Ex.P1-copy of the First Information Report, Ex.P2-Copy of the charge-sheet, Ex.P3 and Ex.P4-Motor Vehicle Inspector's report of both vehicles. From the above said oral and documentary evidence, revealed that the accident was occurred only due to rash and negligent driving of the second respondent vehicle driver. Per contra, on the side of the second respondent and appellant/Insurance Company, has not examined any eye-witness to the occurrence to prove the negligence aspect. Therefore the Tribunal has correctly discussed and held that the accident was occurred only due to the rash and negligent driving of the second respondent's vehicle driver. The tribunal also rightly held that the Insurance Company has to pay the compensation on behalf of the second respondent/owner of the vehicle since on the date of the accident, the vehicle was insured with the appellant/Insurance Company, but the second respondent has not produced the valid driving licence of his driver before the tribunal. Therefore the tribunal has correctly ordered to pay and recovery. From the above said discussion, this Court is of the view that there is no need to interfere with the above said finding of the Tribunal. 11. With regard to the quantum of compensation, the Tribunal has adopted multiplier method. The learned counsel for the appellant submitted that even after the accident, the first respondent earned income by practicing as an Advocate and therefore the Tribunal has wrongly fixed the loss of income by adopting multiplier method. On a perusal of the oral and documentary evidence revealed that the first respondent has not produced any reliable document to prove that after the accident, he is not practicing as an Advocate and not earned any income due to the injuries sustained in the accident. On a perusal of the oral and documentary evidence revealed that the first respondent has not produced any reliable document to prove that after the accident, he is not practicing as an Advocate and not earned any income due to the injuries sustained in the accident. Therefore the multiplier method adopted by the tribunal for calculating permanent disability is not correct as rightly contended by the learned counsel for the appellant. 12. In the claim petition, the first respondent has stated that the monthly income of the claimant was Rs.15,000/-p.m. But the Tribunal has fixed only Rs.5000/-p.m. at the time of accident. On perusal of oral and documentary evidence, this Court is of the view that the monthly income fixed by the tribunal is not a reasonable amount considering the fact that the first respondent is a practicing Advocate. Therefore this Court is of the view that the monthly income is to be enhanced from Rs.5000/- to Rs.10,000/-. This Court is of the view that the claimant is entitled for Rs.1 lakh for 50% of permanent disability taken as Rs.2000/-per percentage of disability. Therefore, the award passed by the Tribunal under the head of permanent disability is to be reduced from Rs.5,10,000/- to Rs.1 lakh. With regard to the award under the head of pain and sufferings, Rs.20,000/- alone awarded by the Tribunal. On perusal of the records reveal that the claimant has sustained grievous injuries and taking treatment from 9.3.2012 to 30.3.2012 and also medical bills produced for Rs.2,33,562/-. Considering the above said nature of injuries, period of taking treatment and 50% of permanent disability sustained in the accident, this Court is of the view that the above said amount awarded for pain and sufferings has to be enhanced from Rs.20,000/- to Rs.50,000/-. With regard to other heads, the tribunal has correctly awarded compensation and there is no need to interfere with the same. Therefore the award passed by the Tribunal is modified and refixed as follows: 1. for permanent disability Rs.1,00,000/- 2. for pain and sufferings Rs.50,000/- 3. for extra nourishment Rs.15,000/- 4. for loss of income during treatment period Rs.15,000/- 5. for transportation Rs.10,000/- 6. for medical expenses Rs.2,33,562/- total Rs.4,23,562/- which is round of to Rs.4,24,000/-. 13. In the result the award passed by the Tribunal is modified and reduced from Rs.8,03,562/-to Rs.4,24,000/- with same interest and costs and the Civil Miscellaneous Appeal is allowed accordingly. for extra nourishment Rs.15,000/- 4. for loss of income during treatment period Rs.15,000/- 5. for transportation Rs.10,000/- 6. for medical expenses Rs.2,33,562/- total Rs.4,23,562/- which is round of to Rs.4,24,000/-. 13. In the result the award passed by the Tribunal is modified and reduced from Rs.8,03,562/-to Rs.4,24,000/- with same interest and costs and the Civil Miscellaneous Appeal is allowed accordingly. The appellant/Insurance Company is directed to pay the balance award amount within four weeks from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is closed. No costs.