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Judgment
C.S. Karnan, J.—The appellant/second respondent has preferred the present appeal against the judgment and decree dated 26.04.2005,
made in M.C.O.P. No. 351 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Bhavani. The short facts of the case are as
follows:-
The claimant had filed a claim petition in M.C.O.P. No. 351 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Bhavani,
claiming a sum of Rs. 3,00,000/- as compensation, from the respondents, for the injuries sustained by him in a motor vehicle accident.
It was submitted that on 20.08.2003, at about 07.30 p.m., when he was proceeding on his bicycle, on Bhavani Main Road, the first
respondent''s TVS XL Moped bearing registration No. TN33 AA5970, ridden by it''s rider in a rash and negligent manner, in the same direction,
dashed against the bicycle. As a result, the cyclist had sustained injuries. Hence, the claimant had filed the claim petition against the respondents,
who are the owner-cum-driver and insurer of the TVS XL Moped bearing registration No. TN33 AA5970.
The second respondent Insurance Company, in their counter affidavit, had submitted that the claimant had committed the accident in a negligent
manner and as such contributory negligence has to be attributed to the claimant. The rider of the motorcycle did not possess valid driving licence at
the time of accident. Further, the second respondent Insurance Company had denied the averments made in the claim petition regarding age,
income and nature of injuries.
On considering the averments of both sides, the Tribunal had framed two issues namely:
i. Whether the accident occurred due to the rash and negligent driving by the first respondent? and
ii. Whether the claimant is entitled to receive compensation? If so, what is the quantum of compensation?
On the claimant''s side, the claimant was examined as P.W. 1 and one Dr. Thamburaj was examined as P.W. 2 and eleven documents were
marked as Exs. P1 to P11 namely copy of FIR, copy of rough sketch, copy of observation mahazar, copy of M.V.I''s report, copies of accident
registers, copy of charge sheet, medical bill, scan report, disability certificate and C.T. Scan. On the respondents'' side no witness was examined
and no document was marked.
P.W. 1 had adduced evidence that on 20.08.2003, at about 07.30 p.m., when he was proceeding on his bicycle, on Bhavani Main Road, the
first respondent''s TVS XL Moped bearing registration No. TN33 AA5970, ridden by it''s rider in a rash and negligent manner, in the same
direction, dashed against him. Further, he had adduced evidence that he was working as a Handloom Weaver and earning Rs. 4,000/- and that his
skull bone had been fractured in the said accident and that he had sustained injuries on his upper eyebrow and knee. He deposed that he had
undergone treatment at Erode Lotus Hospital as an inpatient.
P.W. 2 Dr. Thamburaj had adduced evidence that the claimant had sustained 27% disability and he had spoken on the same line of P.W. 1
regarding nature of injuries and mode of treatment.
On considering the evidence of the witnesses and on perusing the documents marked by the claimant, the Tribunal had awarded a sum of Rs.
1,83,765/- as compensation, 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, with costs, within a period of one month from the date of it''s order.
Aggrieved by the award passed by the Tribunal, the second respondent Insurance Company has preferred the present civil miscellaneous
appeal.
The learned counsel appearing for the appellant has contended in the appeal that the Tribunal had awarded compensation of a sum of Rs.
1,55,520/- under the head of loss of income, after adopting multiplier method, which is not pertinent in the instant case. Further, the claimant had
committed the said accident in a negligent manner and therefore contributory negligence has to be fastened on the side of the claimant. The claimant
had sustained simple injuries but the Doctor had assessed the disability at 27%, which is on the higher side.
The very competent counsel for the claimant has argued that FIR had been registered against the rider of the motorcycle and as such the entire
negligence had been fixed on the side of the rider of the motorcycle. The offending vehicle had been registered with the insurance company and
therefore the insurance company is liable to pay compensation. The claimant had sustained skull injuries and as such his brain power had been
affected and his hearing capacity has been impaired. The claimant had sustained injuries on both his eyes, right hand joint and shoulder and he had
been hospitalized for a long time as inpatient. After the accident, he is unable to do his avocation as a weaver. Therefore, multiplier method had
been adopted by the Tribunal, which is appropriate in the instant case.
On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the
impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence and liability. However,
the Tribunal had adopted multiplier method to assess loss of income, which is not pertinent in the instant case. Therefore, this Court modifies the
compensation as follows:
In total, this Court awards a sum of Rs. 1,41,245/- as compensation to the claimant, as it is found to be appropriate in the instant case. This Court
is of the view that FIR and charge sheet had been levelled against the rider of the offending vehicle and the Insurance Company had not refused the
averments that the vehicle had been insured with them. Therefore, negligence and liability had been decided in an appropriate manner. The rate of
interest fixed by the Tribunal at the rate of 9% per annum is on the higher side and therefore, this Court modifies it to 7.5% per annum.
This Court has already directed the appellant Insurance Company to deposit the entire award amount together with interest at the rate of 7.5%
per annum, to the credit of M.C.O.P. No. 351 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Bhavani and permitted the
claimant to withdraw 50% of the compensation amount with accrued interest thereon.
Now, the claimant is permitted to withdraw the remaining compensation amount, with proportionate interest thereon, lying in the credit of
M.C.O.P. No. 351 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Bhavani, after filing a memo along with a copy of this
Judgment. Likewise, the appellant Insurance Company is at liberty to withdraw the excess compensation amount with proportionate interest
thereon, after filing a memo. In the result, this civil miscellaneous appeal is partly allowed and the Judgment and decree dated 26.04.2005, made in
M.C.O.P. No. 351 of 2003, on the file of the Motor Accident Claims Tribunal, Sub Court, Bhavani, is modified. No costs.