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2019 DIGILAW 1045 (MAD)

Elangovan v. C. Anbalagan

2019-04-10

RMT.TEEKA RAMAN

body2019
JUDGMENT : 1. The appellant is the claimant in MCOP No. 78 of 2009, on the file of the learned Chief Judicial Magistrate, Motor Accidents Claims Tribunal, Nagapattinam. He has filed the above claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation of Rs. 5,00,000/- for the injuries sustained by him in a road accident that took place on 12.08.2007. 2. The brief case of the appellant/claimant is as follows: (i) The appellant/claimant was aged about 40 years on the date of the accident. He was working as a coolie, earning a sum of Rs. 3,000/- per month. (ii) On 12.08.2007, at about 12.00 noon, the appellant/ claimant was proceeding to Nagore, after completing his work. At about 01.00 pm, while, he was reaching near water tank, north Palpannaichery, an Ambassador car bearing Registration No. TN 31 B 6458 driven by its driver in a rash and negligent manner came behind and dashed against the appellant/claimant. Therefore, he sustained injuries on his head, forehead, back portion of the head, left hand wrist, right ankle, left leg, left hand thumb, left hand index finger. Left leg and right leg were also got fractured. Immediately, after the occurrence of the accident, the appellant/claimant was admitted in Nagapattinam Government Hospital for treatment. Subsequently, he was referred to Thanjavur Medical College Hospital for further treatment. (iii) According to the appellant/claimant, the rash and negligent driving of the driver of the Ambassador car bearing Registration No. TN 31 B 6458 was the cause of the accident and that since, the said car was insured with the United India Insurance Company Limited, the owner and the insurer are jointly and severally liable to pay compensation to him. 3. The owner of the said car was absent before the Tribunal and therefore, he was set ex-parte. The United India Insurance Company Limited contested the claim petition. Before the Tribunal, on the side of the appellant/claimant, PW-1 and PW-2 were examined and exhibits P1 to P17 were marked. On the side of the Insurance Company no documentary or oral evidences were adduced. 4. The learned Chief Judicial Magistrate after analysing all the evidences on record, awarded a compensation of Rs. 72,603/- together with interest at the rate of 7.5% per annum to the appellant/claimant. On the side of the Insurance Company no documentary or oral evidences were adduced. 4. The learned Chief Judicial Magistrate after analysing all the evidences on record, awarded a compensation of Rs. 72,603/- together with interest at the rate of 7.5% per annum to the appellant/claimant. Not satisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant has filed the present appeal under Section 173 of the Motor Vehicles Act, 1988. 5. The rash and negligence fixed on the part of the driver of the Ambassador car bearing Registration No. TN 31 B 6458 and the offending vehicle which was insured with the Insurance Company are not disputed by both the parties. According to the appellant/claimant, after the accident, he suffered injuries on both legs and was not able to do work as he used to do earlier and to substantiate the injuries sustained by him, he has examined Dr. Angathakumar (PW-2) who had issued disability certificate (Ex.P16). 6. The learned counsel appearing for the appellant/claimant would contend that the Tribunal has committed error in not applying multiplier method for arriving at pecuniary loss sustained by the appellant/claimant due to the accidental injuries and the Tribunal has not even discussed the annual notional income, when the appellant/ claimant was working as a coolie and earning a sum of Rs. 3,000/- per month. He would further contend that the appellant/claimant has undergone surgery for the injuries sustained by him and therefore, seeks for enhancement of compensation. 7. Per Contra, the learned counsel appearing for the Insurance Company would contend that as per the pleadings in the claim petition, the appellant/claimant suffered injuries only on the left leg and admittedly, there is a fracture, but, neither in the pleadings nor in the evidence, PW-1 has stated anything regarding the surgery. He contended that assessment of surgery by PW-2 is found to be in contradiction with the discharge summaries (Exs.P4 & P9) and the amount as such granted as compensation for the relevant point of time itself is excessive and therefore, prayed for dismissal of this appeal. 8. Head both the parties on the point of quantum of compensation and gone through the evidence of PW-2, who had deposed that the claimant has suffered 65% disability. However, in the cross examination, he has stated as follows: “TAMIL” 9. 8. Head both the parties on the point of quantum of compensation and gone through the evidence of PW-2, who had deposed that the claimant has suffered 65% disability. However, in the cross examination, he has stated as follows: “TAMIL” 9. It is seen from the discharge summaries (Ex.P4 & P9) that there is a fracture on both legs. However, after going through the pleadings and evidences of the injured PW-1 and the evidence of PW-2, there is nothing on record to show that the appellant/claimant has lost his earning capacity due to the accidental injuries and therefore, the Tribunal has rightly not adopted multiplier method. Based upon the accident register (Ex.P2) and discharge summaries (Exs.P4 & P9) the Tribunal fixed disability at 50% and accordingly, awarded a sum of Rs. 50,000/- towards ‘permanent disability’. 10. Furthermore, it remains to be stated by the appellant/claimant that he was originally admitted in Nagapattinam Government Hospital for treatment between 12th August and 15th August. Subsequently, he was admitted in Thanjavur Medical College Hospital as inpatient between 16th August and 18th August and thereafter, he was discharged. However, after perusing the discharge summary issued by Nagapattinam Government Hospital (Ex.P4) and the discharge summary issued by Thanjavur Medical College Hospital (Ex.P9), it appears that there was no surgery undergone by the appellant/ claimant for the injuries sustained by him and that, he has sustained only fracture in the left leg. 11. It is seen that the appellant/claimant has undergone only a conservative line of orthopedic treatment and as such there is no surgery undergone by him. In the absence of any positive evidence on the side of the appellant/claimant to prove the surgery, the Tribunal has not applied multiplier method and hence the contention of the learned counsel appearing for the appellant/claimant that multiplier method should be adopted in this case does not arise on the factual position of this case. Consequently, the assessment of annual notional income does not arise. 12. After perusing the award passed by the Tribunal, I am of the considered view that the Tribunal has awarded excessive compensation under the conventional heads for the relevant point of time. Taking into consideration, the passage of long time, I am not inclined to disturb the award passed by the Tribunal. In this view of the matter, the award passed by the Tribunal is hereby confirmed. 13. Taking into consideration, the passage of long time, I am not inclined to disturb the award passed by the Tribunal. In this view of the matter, the award passed by the Tribunal is hereby confirmed. 13. In the result: (i) The Civil Miscellaneous Appeal is dismissed. No costs. (ii) The order passed by the Tribunal is hereby confirmed. The quantum of compensation awarded by the Tribunal is also hereby confirmed. (iii) The second respondent herein/United India Insurance Company Limited is directed to deposit the entire compensation awarded by the Tribunal i.e. Rs. 72,603/- (if not already deposited) together with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit to the credit of MCOP No. 78 of 2009, dated 22.02.2010, on the file of the learned Chief Judicial Magistrate, Motor Accidents Claims Tribunal, Nagapattinam within a period of eight weeks from the date of receipt of a copy of this order. (iv) On such deposit being made, the appellant/claimant is permitted to withdraw the entire amount after following the due process of law.