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2022 DIGILAW 3223 (MAD)

NATIONAL INSURANCE CO, LTD. v. K. MANI (DIED)

2022-09-09

P.T.ASHA

body2022
JUDGMENT (Prayer: Appeal Filed Under Section 173 Of The Motor Vehicle Act, 1988, Against The Award And Decree Dated 05.11.2012 Made In O.P.No.822 Of 2010 On The File Of The Motor Accidents Claims Tribunal (Second Additional District Judge), Salem. Appeal Filed Under Section 173 Of The Motor Vehicle Act, 1988, Against The Award And Decree Dated 05.11.2012 Made In O.P.No.823 Of 2010 On The File Of The Motor Accidents Claims Tribunal (Second Additional District Judge), Salem. Appeal Filed Under Section 173 Of The Motor Vehicle Act, 1988, Challenging The Inadequacy Of Award And Decree Granted On 05.11.2012 Made In M.C.O.P.No.823 Of 2010 On The File Of The Motor Accidents Claims Tribunal (II Additional District Judge), Salem. Appeal Filed Under Section 173 Of The Motor Vehicle Act, 1988, Challenging The Inadequacy Of Award And Decree Granted On 05.11.2012 Made In M.C.O.P.No.822 Of 2010 On The File Of The Motor Accidents Claims Tribunal (II Additional District Judge), Salem.) Common Judgement 1. The four appeals arise in respect of two claim petitions i.e; OP No.822 of 2010 and OP No.823 of 2010 on the file of the MACT II Additional District Judge Salem. Two appeals have been filed by the 2nd respondent/Insurance Company and two appeals have been filed by the respective claimants. 2. C.M.A. No.1487 of 2013 is filed by the 2nd respondent against the award in O.P.No.822 of 2010 and the petitioner K.Mani has filed C.M.A.No.2000 of 2014 seeking an enhancement of the award. 3. C.M.A.No.1488 of 2013 is filed by the 2nd respondent/insurance company against the award in O.P.No.823 of 2016 and the petitioner S.Pachiappan has filed C.M.A.No.1535 of 2013 seeking an enhancement. 4. The primary objection of the 2nd respondent/insurance company is that despite the fact that the FIR was filed against the deceased S.Pachiappan and the scene of accident as shown in Ex.X.1, Sketch would show that the accident had occurred only on account of the rash and negligent driving of the said S.Pachiappan, the entire liability has been fastened on the 1st respondent and consequently, the 2nd respondent as the insurer has been directed to pay the compensation. 5. 5. Mr.D.Bhaskaran, learned counsel appearing on behalf of the 2nd respondent/ insurance company would submit in order to get over Ex.P.1 FIR, a counter complaint in Ex.P.2 has been given by the father of S.Pachiappan in which it has been stated that the accident was only on account of the rash and negligent driving by the 1st respondent. He would further submit that on the basis of a final report which has not been filed into Court, the Tribunal below had arrived at a conclusion that the accident had been caused only on account of the negligence of the 1st respondent. He would further submit that the Tribunal has totally overlooked the evidence of R.W.2 and Ex.X.1, Sketch which would clearly show that it was S.Pachiappan who has caused the accident. 6. Per contra, Mr.Micheal Visuvasam, learned counsel appearing on behalf of the 3rd respondent/insurance company which is the company in which the Motor Cycle belonging to S.Pachiappan had been insured would submit that the claimant has not chosen to implead S.Pachiappan but has only impladed the insurance company, without impleading the owner of the vehicle the liability cannot be fastened on the insurance company. He would further submit that the sketch would indicate that there was some road widening work taking place and therefore the contents of the sketch would not prove negligence on the said S.Pachiappan. 7. Mr.D.Shivakumar, learned counsel appearing on behalf of the claimants would fairly concede that there has been an oversight in not impleading S.Pachiappan, the owner of the motor cycle. However, he would submit that the Tribunal has only taken a notional income of Rs. 4,000/- for calculating the compensation on account of the loss of income. He would submit that if a sum of Rs.4,000/- is taken as the monthly income then the daily wages of a Loadman would be only a sum of Rs.100/-. Whereas considering the year of the accident the daily wages would be anything between Rs.200/- and Rs.300/-. Therefore, the Tribunal ought to have adopted a notional income of Rs.6,000/-. He would also submit that the amounts under the head of disability, pain and sufferings, extra nourishment, transportation etc are very inadequate. With reference to the claimant in MCOP No.823 of 2010, he would submit that he is a JCB Mechanic who would have definitely earned not less than Rs.10,000/- per month. He would also submit that the amounts under the head of disability, pain and sufferings, extra nourishment, transportation etc are very inadequate. With reference to the claimant in MCOP No.823 of 2010, he would submit that he is a JCB Mechanic who would have definitely earned not less than Rs.10,000/- per month. Therefore, even the amounts granted under the head of loss of income, disability etc; has been inadequately granted and therefore require to be enhanced. 8. Heard the counsels and perused the records. 9. A perusal of the FIRs Ex.P.1 and Ex.P.2, the evidence of the claim petitioners, R.W.2 and X.1 would clearly lead to the conclusion that both the drivers have contributed to the accident with the primary negligence being on the 1st respondent. Therefore, the negligence is apportioned as 75% on the 1st respondent and 25% on S.Pachiappan, the petitioner in O.P.No.823 of 2010. However since Pachiappan has not been made a party to the proceedings no amounts can be claimed from the 3rd respondent/Insurance company. 10. With reference to the compensation granted in MCOP No.822 of 2010, the notional income is enhanced to a sum of Rs.6,000/- and therefore, the amount under the head of loss of income for 3 months would stand enhanced to a sum of Rs.18,000/-. Likewise, the amounts under the head of transportation charges and extra nourishment is enhanced to a sum of Rs.10,000/-each. The amount under the head of pain and sufferings is enhanced to a sum of Rs.60,000/- from Rs.50,000/-. Under the head of loss of amenities a sum of Rs.19,000/- is granted. The award is therefore modified to the aforesaid extent as tabulated herein below:- 11. With reference to the compensation granted in MCOP No.823 of 2010, the notional income is enhanced to a sum of Rs.6,000/- and therefore, the amount under the head of loss of income for 3 months would stand enhanced to a sum of Rs.18,000/-. Likewise, the amounts under the head of transportation charges and extra nourishment is enhanced to a sum of Rs.10,000/- each. The amount under the head of pain and sufferings is enhanced to a sum of Rs.30,000/- from Rs.25,000/-. Under the head of loss of amenities a sum of Rs.24,000/- is granted. Likewise, the amounts under the head of transportation charges and extra nourishment is enhanced to a sum of Rs.10,000/- each. The amount under the head of pain and sufferings is enhanced to a sum of Rs.30,000/- from Rs.25,000/-. Under the head of loss of amenities a sum of Rs.24,000/- is granted. The award in both the MCOPs are therefore modified to the aforesaid extent as tabulated herein below: [M.C.O.P.No.822 of 2012] S.No Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted or reduced 1. Loss of income 12,000/- 18,000/- Enhanced 2. Transportation Expenses 2,000/- 10,000/- Enhanced 3. Extra Nourishment 3,000/- 10,000/- Enhanced 4. Damages to clothing and Articles 1,000/- 1,000/- Confirmed 5. Medical Expenses 1,01,152/- 1,01,152/- Confirmed 6. Plain and sufferings 50,000/- 60,000/- Enhanced 7. Permanent Disability 1,00,000/- 1,00,000/- Confirmed 8. loss of amenities -- 19,000/- Granted TOTAL 2,69,152/- rounded of to 2,69,200/- 3,19,152/- rounded of to 3,19,200/- enhanced by Rs.50,000/- [M.C.O.P.No.823 of 2012] S.No Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted or reduced 1. Loss of income 12,000/- 18,000/- Enhanced 2. Transportation Expenses 2,000/- 10,000/- Enhanced 3. Extra Nourishment 3,000/- 10,000/- Enhanced 4. Damages to clothing and Articles 1,000/- 1,000/- Confirmed 5. Medical Expenses 72,004.30/- 72,004.30/- Confirmed 6. Plain and sufferings 25,000/- 30,000/- Enhanced 7. Permanent Disability 80,000/- 80,000/- Confirmed 8. loss of amenities -- 24,000/- Granted TOTAL 1,95,004.30/- rounded of to 1,95,000/- 2,45,004.30/- rounded of to 2,45,000/- Enhanced by Rs.50,000/- 12. Therefore, the above Civil Miscellaneous Appeals are partly allowed and the award of the Tribunal be and hereby is enhanced to a sum of Rs.3,19,200 /- from Rs.2,69,200 /- [M.C.O.P.No.822 of 2010] and to a sum of Rs.2,45,000/- from Rs. 1,95,000/- [M.C.O.P.No.823 of 2010] together with interest @ 7.5 % per annum from the date of petition till the date of deposit. In all other respects the award of the Tribunal is confirmed. The 2nd respondent/insurance company [in MCOP.Nos.822 & 823 of 2010] is directed to deposit the said amount (Rs. 1,95,000/- [M.C.O.P.No.823 of 2010] together with interest @ 7.5 % per annum from the date of petition till the date of deposit. In all other respects the award of the Tribunal is confirmed. The 2nd respondent/insurance company [in MCOP.Nos.822 & 823 of 2010] is directed to deposit the said amount (Rs. 3,19,200/-) & (Rs.1,83,750/-) to the credit of MCOP Nos.822 of 2012 & 823 of 2010 respectively on the file of the Motor Accidents Claims Tribunal (Second Additional District Judge), Salem together with interest @ 7.5% per annum from the date of claim petition till the date of deposit and costs as awarded by the Tribunal, less, the amount, if any already deposited, within a period of six weeks from the date of receipt of a copy of this Judgement. The petitioner [in MCOP.No.823 of 2010] shall forfeit the remaining 25% of the award amount due to his own contributory negligence On such deposit being made, the petitioner in (MCOP No.823 of 2010) is permitted to withdraw the award amount now determined by this Court along with interest and costs, after adjusting the amount if any already withdrawn as apportioned by the Tribunal. In CMA.No.2000 of 2014, the petitioners 2 to 4 are permitted to withdraw the award amount now determined by this Court in equal proportion i.e. out of a total sum of Rs.3,19,200/-, petitioners 2 to 4 are entitled to Rs.1,06,400/- each. The petitioners/appellants in both the MCOPs shall pay the Court fee for the enhanced amount, if payable. The Tribunal shall not disburse of the amount till such time as the certified copy showing proof of entire payment of Court fee has been produced. No costs. Consequently, the connected Miscellaneous Petition is closed.