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Judgment
P.P.S. Janarthana Raja, J.—The Civil Miscellaneous Appeals are filed by the claimants against the Judgment and Decree dated 17.02.2006
made in MACT. OP Nos. 2463 of 2003 and 2466 of 2003 on the file of the Chief Judge, Motor Accidents Claims Tribunal (Small Causes
Court), Chennai.
Background facts in a nutshell are as follows:
The claimants are injured in a motor accident on 04.06.2003 at 8.30 hours. The claimants were travelling in the auto-rickshaw bearing Registration
No. TN-09-K-7248 along the Anna Salai from north to south direction. When the auto-rickshaw was nearing Thadandar Nagar junction, the
driver drove the auto-rickshaw in a rash and negligent manner without following the traffic rules and regulations and applied the brake suddenly. In
view of the sudden brake, the auto-rickshaw turned turtle. Due to the accident, the claimants sustained grievous injuries. The claimants claimed a
compensation of Rs. 3,00,000/- each in MACT. OP No. 2463 of 2003 (CMA No. 790 of 2007) and MACT. OP No. 2466 of 2003 (CMA
No. 791 of 2007) respectively. The second respondent/Insurance Company resisted the claims. On pleadings, the Tribunal framed the following
issues:
a) Whether the accident occurred due to the rash and negligent driving of the auto-rickshaw driver or not?
b) Whether the claimants are entitled to get any compensation or not? If so, what is the amount and from whom?
After considering the oral and documentary evidence, the Tribunal was of the view that the accident had occurred only due to the rash and
negligent driving of the auto-rickshaw driver and awarded a compensation of Rs. 21,000/- with interest at 7.5% p.a. from the date of petition in
respect of MACT. OP No. 2463 of 2003 (CMA No. 790 of 2007) and Rs. 38,830/- with interest at 7.5% p.a. from the date of petition in
MACT. OP No. 2466 of 2003 (CMA No. 791 of 2007) Aggrieved by the awards, the claimants have filed the present appeals.
Learned Counsel appearing for the appellants/claimants submitted that the Tribunal ought to have awarded the compensation as claimed by the
claimants and that the Tribunal is wrong in awarding lesser compensation, without basis and justification. It is therefore submitted that the common
order passed by the Tribunal is not in accordance with law and the same has to be set aside.
Learned Counsel appearing for the second respondent/Insurance Company submitted that the Tribunal had considered all the relevant materials
and evidence on record and came to the correct conclusion and awarded a just, fair and reasonable compensation in both these appeals. Hence
the common order passed by the Tribunal is in accordance with law.
Heard the counsel. On the side of the claimants, witnesses P.W. 1 to P.W. 3 were examined and documents Ex. P1 to Ex. P11 were marked.
On the side of the Insurance Company, no witnesses were examined and and no documents were marked. P.W. 1 is the claimant in CMA No.
790/2007. P.W. 2 is the claimant in CMA No. 791/2007. P.W. 3 is the Doctor. The following is the list of exhibits:
Ex. P1-Copy of F.I.R.
Ex. P2-Copy of sketch
Ex. P3-Discharge summary for Valli
Ex. P4-E.S.I. Hospital out-patient book for Valli
Ex. P5-Discharge summary for Chandra
Ex. P6-Termination letter for Chandra
Ex. P7-Series of medical bills
Ex. P8-Disability Certificate for the injured Valli
Ex. P9-X-ray for the injured Valli
Ex. P10-Disability Certificate for the injured Chandra
Ex. P11-X-ray for injured Chandra
P.W. 1, the claimant in CMA No. 790/2007, deposed that on 4.6.2003 at about 8.30 a.m., P.W. 1 and 3 others were travelling in the auto-
rickshaw bearing Registration No. TN-09-K-7248 from Jafferkhanpet. When the auto-rickshaw was proceeding along the Anna Salai from north
to south direction, the driver applied the brake suddenly. In view of the sudden brake, the auto-rickshaw capsized. P.W. 2, the claimant in CMA
No. 791/2007, deposed that at the time of accident, the driver of the auto-rickshaw suddenly applied the brake and the auto capsized. She also
deposed that the driver of the auto-rickshaw was responsible for the rash and negligent driving. Ex. P1-F.I.R., also states that the driver of the
auto-rickshaw drove the vehicle in a rash and negligent manner and suddenly applied the brake due to which the auto capsized. Also, as per Ex.
P2, sketch, it is evident that the accident occurred in Anna Salai and the auto-rickshaw was proceeding from north to south direction and near
centre median, the auto-rickshaw driver suddenly applied the brake, and the auto-rickshaw could not control the speed and capsized. There is
also no contra evidence to disbelieve the evidence of P.W. 1 and P.W. 2. After considering the above, the Tribunal had given a categorical finding
that the accident had occurred only due to the rash and negligent driving of the auto-rickshaw driver and awarded a compensation of Rs. 21,000/-
with interest at 7.5% p.a. from the date of petition in respect of MACT.OP No. 2463 of 2003 (CMA No. 790 of 2007) and Rs. 38,830/- with
interest at 7.5% p.a. from the date of petition in MACT. OP No. 2466 of 2003 (CMA No. 791 of 2007). The details of the compensation are as
under:
MACT. OP No. 2463 of 2003 (CMA No. 790 of 2007):
Rupees
Loss of earning during the
treatment period 1,500/-
Transport expenses 1,000/-
Extra nourishment 3,000/-
Damage to clothing 500/-
Pain and suffering 10,000/-
Loss of amenities 5,000/-
--------
Total.... 21,000/-
========
MACT. OP No. 2466 of 2003 (CMA No. 791 of 2007):
Rupees
Loss of earning during the
treatment period 4,000/-
Transport expenses 1,000/-
Extra nourishment 2,000/-
Damage to clothing 500/-
Medical expenses 530/-
Pain and suffering 10,000/-
Loss of amenities 10,000/-
Loss of earning power 10,800/-
--------
Total.... 38,830/-
========
MACT. OP No. 2463 of 2003 (CMA No. 790 of 2007):
The claimant was 42 years at the time of accident. She is working in M/s. Gupta Garments, Chennai and was earning a sum of Rs. 3,500/- per
month. Due to the accident, she sustained the following injuries:
a) Skull fracture.
b) Fracture over neck.
c) Fracture over right thigh.
d) Multiple injuries all over the body.
After the accident, she was admitted in the Government Royapettah Hospital and also admitted in the ESI Hospital for a period of four months.
Ex. P3 is the Discharge summary and Ex. P4 is the E.S.I. Hospital out-patient book. The Doctor assessed the disability at 30% and disability
certificate was marked which is Ex. P8. Ex. P9 is the X-ray. The claimant has given oral evidence that she was treated as in-patient for four
months. After considering these evidence, the Tribunal has awarded only a sum of Rs. 1,500/- towards loss of earning during the treatment period.
The Tribunal stated that the claimant was earning Rs. 3,500/- per month. If the monthly income is taken as Rs. 3,500/-, the loss of earning during
the treatment period of four months comes to Rs. 14,000/- (Rs. 3,500/- x 4), whereas the Tribunal has awarded only Rs. 1,500/-, without
considering the actual monthly salary of the claimant. Hence the amount awarded towards loss of earning during the treatment period is modified
from Rs. 1,500/- to Rs. 14,000/-. The Tribunal has awarded a sum of Rs. 1,000/- towards transport, Rs. 3,000/- towards extra nourishment and
Rs. 500/- towards damage to clothing, which are very reasonable and hence they are confirmed. The Tribunal has awarded a sum of Rs. 10,000/-
towards pain and suffering. After taking into consideration the nature of injuries as stated above, it would be appropriate and reasonable to award
a sum of Rs. 5,000/- more towards this head. Accordingly the amount awarded by the Tribunal at Rs. 10,000/- is modified to Rs. 15,000/- in
respect of pain and suffering. The Tribunal has awarded a sum of Rs. 5,000/- towards loss of amenities. After taking into consideration the nature
of injuries and the facts and circumstances of the case, I feel that the amount awarded towards loss of amenities is very reasonable and hence it is
confirmed. The Tribunal has not awarded any amount towards permanent disability as against the claim of Rs. 80,000/- by the claimant. P.W. 3,
the General Surgeon, in his evidence, stated that there is 30% disability. Ex. P8 is the disability certificate. Ex. P9 is the x-ray. Taking into
consideration of the 30% disability, I feel that the Tribunal ought to have awarded some amount towards this head. After taking into consideration
of the exhibits, it would be appropriate and reasonable to award a sum of Rs. 25,000/- towards permanent disability. The details of the modified
compensation are as under:
Rupees
Loss of earning during the
treatment period 14,000/-
Transport expenses 1,000/-
Extra nourishment 3,000/-
Damage to clothing 500/-
Pain and suffering 15,000/-
Loss of amenities 5,000/-
Permanent disability 25,000/-
--------
Total.... 63,500/-
========
Therefore, the claimant is entitled to the modified compensation of Rs. 63,500/- as against the compensation of Rs. 21,000/- awarded by the
Tribunal. Therefore the claimant is entitled to the enhanced sum of Rs. 42,500/- with interest at 7.5% p.a. from the date of petition.
MACT. OP No. 2466 of 2003 (CMA No. 791 of 2007):
The claimant was 35 years at the time of accident. She is a table worker/tailor working in M/s.The ISIS Exports Pvt. Ltd., Chennai and was
earning a sum of Rs. 3,000/- per month plus perks. Due to the accident, she sustained the following injuries:
a) Fracture over left ankle and foot.
b) Fracture over right shoulder.
c) Contusion over right elbow.
d) Multiple injuries all over the body.
After the accident, she was admitted in the Government Royapettah Hospital and taken treatment. Due to the accident, she is unable to do any
work as before. She was admitted treated as in-patient for a period of 37 days and also treated as out-patient for nearly 4 months. She claimed
that she was earning about Rs. 3,000/- to Rs. 4,000/- per month and due to the injuries as well as the long treatment period, she was terminated
from the employment. Hence I feel that it would be appropriate and reasonable to fix the monthly income at Rs. 3,500/-. If the monthly income is
taken as Rs. 3,500/-, the loss of earning during the treatment period of four months works out to Rs. 14,000/- (Rs. 3,500/- x 4). But the Tribunal
has awarded only Rs. 4,000/- without any basis. There is no dispute regarding the salary as well as the treatment period. Hence the amount
awarded towards loss of earning during the treatment period is modified from Rs. 4,000/- to Rs. 14,000/-. P.W. 2, the claimant in her evidence
stated that that she suffered fracture in the right leg and there is mal-union of bones. Also the movement of the left toe is restricted to 10 degree and
movement of the left knee is restricted to 80 degree. Ex. P10 is the Disability Certificate given by the Doctor, wherein the disability of the claimant
is stated as 50% and the same was not disputed. But the Tribunal has not awarded any amount towards permanent disability. After taking into
consideration the facts and circumstances of the case, and the disability of 50%, it would be appropriate and reasonable to award a sum of Rs.
50,000/- towards permanent disability. The Tribunal has awarded a sum of Rs. 1,000/- towards transport, Rs. 500/- towards damage to clothing
and Rs. 530/- towards medical expenses, which are very reasonable and hence they are confirmed. The Tribunal has awarded a sum of Rs.
2,000/- towards extra nourishment which is very meagre. Hence, it would be appropriate and reasonable to award a sum of Rs. 5,000/- towards
extra nourishment instead of Rs. 2,000/- awarded by the Tribunal. The Tribunal has awarded a sum of Rs. 10,000/- towards pain and suffering.
After taking into consideration the nature of injuries as stated above, it would be appropriate and reasonable to award a sum of Rs. 10,000/- more
towards this head. Accordingly the amount awarded by the Tribunal at Rs. 10,000/- is modified to Rs. 20,000/- in respect of pain and suffering.
The Tribunal has awarded a sum of Rs. 10,000/- towards loss of amenities. After taking into consideration the age of the claimant and also the
nature of injuries and the facts and circumstances of the case, I feel that it would be appropriate and reasonable to award a sum of Rs. 9,000/-
more towards this head. Accordingly the amount awarded by the Tribunal at Rs. 10,000/- is modified to Rs. 19,000/- in respect of loss of
amenities. The Tribunal has awarded a sum of Rs. 10,800/- towards loss of earning power. It is to be noted that the Tribunal had already awarded
amounts towards pecuniary damages under various heads as stated above. Also a sum of Rs. 50,000/- is now awarded towards permanent
disability. In view of the same, amount awarded towards loss of earning power at Rs. 10,800/- is unwarranted and accordingly the same is set
aside. The details of the modified compensation are as under:
Rupees
Loss of earning during the
treatment period 14,000/-
Permanent Disability 50,000/-
Transport expenses 1,000/-
Extra nourishment 5,000/-
Damage to clothing 500/-
Medical expenses 530/-
Pain and suffering 20,000/-
Loss of amenities 19,000/-
--------------
Total.... 1,10,030/-
==============
Therefore, the claimant is entitled to the modified compensation of Rs. 1,10,030/- as against the compensation of Rs. 38,830/- awarded by the
Tribunal. Therefore the claimant is entitled to the enhanced sum of Rs. 71,200/- with interest at 7.5% p.a. from the date of petition.
The second respondent/Insurance Company is directed to deposit the enhanced amounts of Rs. 42,500/- in CMA No. 790 of 2007 and Rs.
71,200/- in CMA No. 791 of 2007, with 7.5% interest p.a. from the date of petition, within a period of six weeks from the date of receipt of a
copy of this order. On such deposit, the claimants are permitted to withdraw the same.
The Civil Miscellaneous Appeals are disposed of with the above modification. No costs.