Oriental Insurance Company vs Rahamatullah and K. Aliyar

C.S. Karnan, J.—The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree,

dated 12.11.2003, made in M.C.O.P. No. 235 of 2003, on the file of the Motor Accident Claims Tribunal-cum-Chief Judicial Magistrate,

Coimbatore, awarding a compensation of Rs. 86,000/- with 9% interest per annum, from the date of filing petition till the date of payment of

compensation.

Aggrieved by the said Award and Decree, the appellant/second respondent M/s. Oriental Insurance Company has filed the above appeal

praying to set aside the award and decree passed by the Tribunal.

The short facts of the case are as follows:

On 16.02.2002, when the petitioner was walking on the Teachers Colony Road, when he was nearing N.G.O. Junction, the TVS-50, bearing

registration No. TN38 A6832, coming in the opposite direction from south to north and driven by its rider at a high speed and in a rash and

negligent manner dashed against the petitioner. In the result, the petitioner fell down and sustained grievous injuries on his head and several other

parts of his body. The petitioner was admitted in the Ganga Hospital at Coimbatore at took treatment in the Intensive Care Unit, as inpatient,

wherein, X''rays and Scan were taken. It was found that there were fractures of bones in his forehead and nose. He had spent a sum of Rs.

75,000/- for medical expenses. The accident happened only due to the rash and negligent driving by the driver of the said TVS-50. A Criminal

case has been filed by Thudiyalur Police Station, as Crime No. 167 of 2000, under Sections 279 and 338 of I.P.C. The first respondent is the

owner and the driver of the said TVS50 and the second respondent is the insurer of the said TVS50. Due to the injuries sustained by the

petitioner, the petitioner, frequently suffers from giddiness and has sustained permanent disability. As such, the petitioner has claimed a

compensation of Rs. 2,50,000/- from both the respondents u/s 166(1) of the Motor Vehicles Act.

The first respondent did not enter appearance in spite of summons issued to him and was set-exparte.

The second respondent, in his Counter has resisted the claim, denying the place, date, time and the manner of the accident as alleged in the

petition. Further, the age, income and occupation of the petitioner has to be proved. The second respondent has also not admitted the nature of

injuries, treatment taken and expenditure incurred by the petitioner. It was also submitted that the reference to the criminal case in the petition has

no relevancy as the owner of the alleged vehicle involved in the accident has so far not furnished the details of the accident, RC Book and driving

licence particulars. As such, the petitioner has to prove rashness and negligence, independently, before this forum. The claim is highly speculative

and devoid of merits and hence, it was prayed by the second respondent to dismiss the petition with costs.

The Motor Accident Claims Tribunal framed three issues for the consideration namely:

(i) Was the accident caused due to the negligence of the first respondent?

(ii) Is the petitioner entitled to get compensation as prayed for in his petition? If So, what is the quantum of compensation, which is entitled to get?

(iii)To what other relief is the petitioner entitled to receive?

On the petitioner''s side one witness was examined as PW1 and 15 documents were marked as Exs.P1 to P15. On the respondents'' side no

witnesses were examined and no documents were marked.

The petitioner in his petition and evidence deposed before the Tribunal had stated that the first respondent had driven his TVS50 and dashed it

against him, and in support of this contention had marked Ex.P1-FIR; Ex.P5-copy of Charge Sheet filed by the Police and Ex.P6-copy of

Judgment given by the Criminal Court. In cross-examination, the petitioner has not admitted that the accident had been caused by him. On

examination of FIR, it is seen that the complaint has been given by the first respondent. On scrutiny of this FIR, it is seen that the first respondent

had dashed his vehicle against the petitioner and he had admitted him in the hospital and had remained with him at the hospital as he was seriously

injured. From a scrutiny of FIR, the Tribunal was of the opinion that the delay in filing of the FIR by the petitioner was caused only due to his

hospitalisation and the serious injuries sustained by him in the accident. On examination of Ex.P5-Charge Sheet and Ex.P6-copy of Judgment, it is

seen that a criminal case was registered against the first respondent and that he was punished. As such, the Tribunal held that even though there

was a delay in filing of FIR by the petitioner, on scrutiny of the oral evidence and documentary evidence let it, it was clear that the accident had

been caused only by the rash and negligent driving of the first respondent.

Though the petitioner has stated that he was aged about 19 years at the time of the accident, no documentary evidence has been let in by the

petitioner to prove his age and income. Further, the petitioner has not filed documents Ex.P5, the Charge Sheet and Ex.P12, the Discharge

Summary. As the petitioner has claimed that he was engaged in cloth business and earning a sum of Rs. 150/- per day, the Tribunal took the

notional income of the petitioner as Rs. 1,250/- per month. The petitioner has deposed in his evidence that he had sustained injuries on his

forehead and eyebrows and taken treatment, as inpatient, at Ganga Hospital, for two days and surgical operation was carried out in his head and

that subsequently after a year time, due to a block in his nose, there had been a watery emission from his eyes and he had taken treatment as BSG

Hospital for four days and taken treatment at Arvind Eye Hospital. But, the petitioner has not examined any Doctor to prove the same and hence

the Tribunal scrutinised the medical documents filed by the petitioner to find out the nature of injuries sustained by him. Ex.P4 is the Wound

Certificate issued by the Doctor at Ganga Hospital. From a study of this, it is evident that the petitioner had sustained four grievous injuries and one

simple injury and that one of the grievous injury has been sustained by the petitioner in his head. From an examination of Ex.P11, it is clear that the

petitioner had received treatment at the Ganga Hospital from 16.02.2000 to 08.03.2000. It is seen from scrutiny of this document, that the

petitioner had sustained a grievous injury in his head. From a scrutiny of Ex.P12, the Discharge Summary issued by BSG Hospital, it is established

that the petitioner had received medical treatment from 10.10.2001 to 13.10.2001. From Ex.P12, it is seen that the petitioner had received

treatment at BSG Hospital after a period of 20 months from the date of accident. But, the petitioner has not examined any Doctor at Ganga

Hospital as witnesses to prove his case. Ex.P7 is the Medical Bills issued by Ganga Hospital, wherein the medical expenses have been shown as

Rs. 30,000/-. Ex.P9 is the medical bills issued at BSG Hospital, wherein the medical expenses paid have been shown as Rs. 1,975/-. But, the

Tribunal were not inclined to treat these bills as authentic as the said bills have not been marked by the concerned Doctors, who had treated the

petitioner. In spite of this, the Tribunal was of the opinion that the medical treatment was given to the petitioner for 20 days at Ganga Hospital. The

Tribunal was also of the opinion that in spite of receiving treatment here, the petitioner had been continually experiencing various ailments and that

he has been receiving treatment for such ailments. The Tribunal was of the opinion that in spite of delayed filing of FIR and non-examination of

Doctors by the petitioners to prove the nature of injuries sustained by him, the claim of the petitioner cannot be ignored. It was opined by the

Tribunal that the petitioner had sustained grievous injuries in the accident. The Tribunal held that the petitioner has a surgical operation done on his

head as evidenced by the Scar in his forehead.

Even though, no documentary evidence has been let in by the petitioner to establish the percentage of disability suffered by the petitioner in the

accident, the Tribunal, on consideration of the petitioners age of 21 years and his monthly income as Rs. 1,250/- decided to grant him Rs. 2,000/-

for transport expenses and Rs. 2,000/- for nutrition. Though medical bills have been filed by the petitioners, as the same was not marked by the

concerned Doctor, the Tribunal was not inclined to grant a sum of Rs. 50,000/- as claimed by the petitioner. But, the Tribunal, on seeing that the

petitioner had received treatment at the hospital for 20 days and that he has received medical treatment here awarded a compensation of Rs.

30,000/- under the head of medical expenses. The Tribunal awarded a sum of Rs. 2,000/- to the petitioner as compensation for mental agony

undergone by him and a sum of Rs. 10,000/- under the head of pain and suffering. The Tribunal on considering that the injury sustained by the

petitioner, in his head, is a grievous one and permanent one granted a compensation of Rs. 20,000/- to the petitioner under the head of permanent

disability. The Tribunal on considering that the petitioner was engaged in cloth business and that because of the injuries sustained in the accident, he

had suffered a loss of income, granted an award of Rs. 20,000/- under the head of loss of income. In total, the Tribunal awarded a sum of Rs.

86,000/- as compensation to the petitioner and directed the respondents to jointly and severally deposit the said award with interest at the rate of

9% per annum from the date of filing the petition till the date of payment of compensation, within a period of 60 days from the date of receipt of its

Order, into the credit of the M.C.O.P. No. 235 of 2003, on the file of the Motor Accident Claims Tribunal-cum-Chief Judicial Magistrate,

Coimbatore. Further, after such deposit was made, the award with accrued interest has to be invested in a nationalised Bank for a period of three

years and the petitioner was permitted to receive interest on such deposit, once in six months, directly from the Bank. The petitioner was directed

to pay the Court fees due on the award amount within a period of 15 days from the date of its Order. The advocate fees was fixed at Rs. 2,500/-

and the respondents were directed to pay a cost of Rs. 2,819/- to the petitioner.

The learned Counsel for the appellant has contended that the accident had occurred only due to the negligent act of the victim and at any event,

the Tribunal ought to have come to the conclusion that there was a contributory negligence on the part of the deceased also and on that score, the

Tribunal ought to have reduced the award amount. As such, it has been contended that the award of Rs. 86,000/- passed by the Tribunal is

excessive, arbitrary and without any basis. Further, it has been contended that the Tribunal has erred in awarding a sum of Rs. 30,000/- towards

medical expenses, that too after coming to the conclusion that the expense incurred by the victim towards medical treatment was not proved

through proper evidence.

It has also been contended that the Tribunal after awarding a sum of Rs. 20,000/- for loss of income had awarded another amount under the

head of loss of future income and as such the award under the head of loss of future income is erroneous.

It was also contended that the Tribunal had erred in fixing the disability at 20% in the absence of any medical evidence and as such the amount

of Rs. 20,000/- awarded for disability is liable to be set aside.

As such, it was contended that the award of Rs. 86,000/- granted by the Tribunal is not based on sound facts and as such the same is liable to

be set aside.

The learned Counsel for the appellant in support of his appeal has cited a case in Rajesh Kumar @ Raju Vs. Yudhvir Singh and Another, ,

Supreme Court of India, New Delhi, Rajesh Kumar v. Yudhvir Singh and Anr., the relevant head notes of which are as follows:

Motor Vehicles Act, 1988, Section 166 and Workmens Compensation Act, 1923, Section 4(1)(c) - Claim application - Whether the injured

claimant can invoke the provisions of Workmen''s Compensation Act for assessment of compensation for permanent disablement in his application

u/s 166 - Held: no; reference to Workmen''s Compensation Act by incorporation was only for the purpose of Section 163A of the Motor Vehicles

Act; further the contention cannot be allowed to be raised in Apex Court of the first time.

Evidence - Medical certificate - Doctor who issued medical certificate was not examined - Whether the certificate is admissible in evidence - Held:

No.

Quantum - Injury - Leg - Amputation of one-third of lower limb - Injured aged 34, a mechanic, earning Rs. 4,500 p.m. - Injured produced a

certificate issued by civil surgeon stating that injured has suffered 60 percent disability - Tribunal assessed income of injured at Rs. 3,000 p.m., loss

of earning capacity due to disability at 30 per cent and awarded Rs. 1,68,941 - Appellate court taking into consideration future prospects

assessed average income at Rs. 4,500 p.m. and enhanced the award by Rs. 64,800 under loss of earning capacity plus Rs. 20,000 under other

heads - Apex Court observed that certificate was obtained after 2 years and it is not known whether the civil surgeon who issued the certificate

had treated the injured and whether the civil surgeon was competent to issue it; further the certificate was not admissible in evidence as its author

had not been examined - Apex Court upheld the award of Rs. 2,53,741.

Quantum - Interest - Allowed at the rate of 7 per cent per annum.

The learned Counsel for the respondents argued that regarding the accident, FIR was registered as against the rider of the vehicle and the same

has been marked before the Tribunal. The connected document ie. Rough Sketch has also been marked. On the basis of the claimant''s evidence,

the Tribunal had come to a conclusion that the rider of the two wheeler was at fault and has caused the accident. The learned Counsel for the

respondent further argued that the claimant was 19 years old and had sustained grievous injuries and had undergone treatment in two private

hospitals as inpatient for a period of 20 days. Hence, the award of Rs. 86,000/- granted by the Tribunal together with interest at the rate of 9% per

annum against the claim of Rs. 3,00,000/- made by the petitioner, is meagre.

Considering the facts and circumstances of the case and arguments advanced by the learned Counsel on either side and perusal of the records

and after scrutiny of evidence given by the petitioner''s side, this Court is of the view that the Tribunal had come to a fair conclusion on the two

issues framed by him namely on the issues of negligence and quantum of compensation. Even though the Tribunal had awarded a sum of Rs.

20,000/- for disability, without the Doctor giving a Disability Certificate, this Court, on considering the nature of injuries sustained by the claimant

ie. Is of the view that the compensation granted under this head is on the lower side, but in spite of this error, the total award granted by the

Tribunal is reasonable and fair. The Court views that the award granted under some heads are not pertinent and hence the Court restructures the

award granted by the Tribunal as follows:

For transport expenses, the Tribunal awarded a sum of Rs. 2,000/-. This Court awards a sum of Rs. 3,000/- under this head.

For nutrition, the Tribunal awarded a sum of Rs. 2,000/-. This Court awards a sum of Rs. 3,000/- under this head.

As per Exs.P7, P8, P9 and P10, the Tribunal had awarded a sum of Rs. 30,000/- for medical expenses and the Court confirms the same.

For mental agony, the Tribunal had awarded a sum of Rs. 2,000/-. The Court sets aside the award under this head as it considers it not

pertinent.

The Tribunal had awarded a sum of Rs. 10,000/- under the head of pain and suffering. But, this Court awards a sum of Rs. 15,000/- under the

said head.

The Tribunal had awarded a sum of Rs. 20,000/- under the head of disability. But, this Court awards a sum of Rs. 35,000/- under the said

head, considering that the petitioner has nasal block and watery emission from his eyes and also had a surgical operation in his forehead, on his

evident from scrutiny of Exs.P11 to P15, the medical records of the claimant.

The Tribunal awarded a sum of Rs. 20,000/- under the head of loss of income. But, this Court sets aside the award granted by the Tribunal as it

is not pertinent as no income proof has been produced.

As such, this Court confirms the award granted by the Tribunal of Rs. 86,000/-, together with interest at the rate of 9% per annum from the

date of filing the claim petition till the date of payment of compensation.

The Hon''ble Court by its Order dated 24.02.2005, directed the appellant to deposit the entire compensation amount with interest and costs to

the credit of the M.C.O.P. No. 235 of 2003, on the file of the Motor Accident Claims Tribunal-cum-Chief Judicial Magistrate, Coimbatore.

Further, this Court permitted the claimant to withdraw 50% of the award amount.

As the accident happened in the year 2000, it is open to the claimant/respondent to withdraw the balance compensation amount with accrued

interest and costs, lying in the credit of the M.C.O.P. No. 235 of 2003, on the file of the Motor Accident Claims Tribunal-cum-Chief Judicial

Magistrate, Coimbatore, after filing necessary payment out application in accordance with law.

In the result, the above Civil Miscellaneous Appeal is dismissed and consequently, the award and decree passed by the Motor Accident

Claims Tribunal-cum-Chief Judicial Magistrate, Coimbatore, in M.C.O.P. No. 235 of 2003, is confirmed. No costs.