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Judgment
P.P.S. Janarthana Raja, J.—This appeal is preferred by the Appellant-Insurance Company against the judgment and decree dated 05.03.2003 made in M.A.C.T.O.P. No. 487 of 2002 on the file of the Motor Accidents Claims Tribunal(2nd Additional Sub-Judge), Tirunelveli.
Background facts in a nutshell are as follows:
The injured-Veldurai met with motor vehicle accident that took place on 24.01.2002 at about 07.30 p.m. The said injured was travelling in his TVS-50 moped bearing Registration No. TN-72-3749 from West to East Direction. When he was nearing Medical College Men''s Hostel, Tirunelveli, a Bajaj motorcycle bearing Registration No. TN-72-C-4802, came from the opposite direction in a rash and negligent manner and hit the TVS-50. Due to the same, the claimant sustained fracture and multiple injuries all over the body. The claimant claimed a sum of Rs. 3,00,000/-as compensation. The said Bajaj motorcycle was insured with the Appellant-Insurance Company, who resisted the claim. On pleadings, the Tribunal framed the following issues:
Whether the accident had occurred only due to therash and negligent driving of the rider of the Bajajmotorcycle?
Whether the claimant is entitled to claim anycompensation?
To what other reliefs the claimant is entitled to?
After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the rider of the Bajaj motorcycle and awarded a compensation of Rs. 2,58,000/-with interest at 9% per annum from the date of petition. The details of the compensation are as under:
Loss due to 40% disability Rs. 40,000/- Loss of amenities Rs. 30,000/- Mental agony Rs. 20,000/- Medical expenses Rs. 40,000/- Loss of income Rs. 1,08,000/- Extra nourishment Rs. 5,000/- Pain and suffering Rs.15,000/- ---------- Total... Rs. 2,58,000/- ----------
Aggrieved by that award, the Appellant-Insurance Company has filed the present appeal.
Learned Counsel appearing for the Appellant-Insurance Company has questioned only the quantum of compensation awarded by the Tribunal and vehemently contended that the amount awarded by the Tribunal is excessive, exorbitant and also without any basis and justification. Further, it is stated that the Tribunal, after awarding a sum of Rs. 1,08,000/-towards loss of income, ought not to have awarded a sum of Rs. 40,000/-towards loss due to 40% disability. Further, he was contended that the Tribunal after awarding a sum of Rs. 15,000/-towards pain and suffering, ought not to have awarded a sum of Rs. 20,000/-and Rs. 30,000/-towards mental agony and loss of amenities receptively. Therefore, the award passed by the Tribunal is not in accordance with law and hence the same has to be set aside.
Learned Counsel appearing for the first Respondent-claimant has submitted that the Tribunal had considered all the relevant materials and evidence on record and came to the right conclusion and awarded a just, fair and reasonable compensation. Hence the order of the Tribunal is in accordance with law and the same has to be confirmed.
Heard the counsel and perused the materials available on record. On the side of the first Respondent-claimant, P. Ws.1 and 2 were examined and documents Exs.P1 to P11 were marked. On the side of the Appellant-Insurance Company no one was examined and no document was marked to substantiate their claim. P.W.1 is the claimant. P.W.2 is Dr. Ramaguru. Ex.P1 is the xerox copy of the First Information Report. Ex.P2 is the xerox copy of the Charge-sheet. Ex.P3 is the xerox copy of the Accident Register. Ex.P4 and P5 are the xerox copies of the Motor Vehicle Inspection Reports. ExP6 is the xerox copy of the Observation Mahazar. Ex.P7 is the xerox copy of the Rough sketch. Ex.P8 is the certified copy of the judgment. Ex.P9 are the series of Medical Bills. Ex.P10 is the X-ray film. Ex.P.11 is the Disability Certificate. After considering the above oral and documentary evidence, the Tribunal had given a categorical finding that the accident had occurred only due to the rash and negligent driving of the rider of the Bajaj motorcycle. The finding given by the Tribunal is based on valid materials and evidence and it is a question of fact. Hence the same is confirmed.
At the time of the accident, the claimant was aged about 40 years. He was working as an Electrician and also doing plumbing works. He was earning a sum of Rs. 6,000/-per month. P.W.1, the claimant in his evidence, has stated that the accident had occurred only due to the rash and negligent driving of the rider of the Bajaj motorcycle and the driver was also charge-sheeted by Palayamkottai Police Station in Crime No. 69/2002 under Sections 279 and 337 I.P.C. Due to the accident, he sustained fracture and multiple injuries all over the body. Ex.P3 is the Accident Register, in which also it is stated that there is a fracture of the right leg of the claimant and also there are grievous injuries all over the body. Immediately, after the accident he was admitted in the Tirunelveli Medical College Hospital, and he was treated as in-patient from 24.01.2002 to 25.02.2002. Later he took treatment in the Velayutham Hospital, Tirunelveli as in-patient. PW.2, the Doctor, in his evidence has stated that there is a fracture of right leg of the claimant and also surgery was done and screws and plates were also fixed. Due to the restricted movement of the right leg, he determined the disability of the claimant at 40% and issued Ex.P11-Disability certificate to that effect. Even though, the claimant stated that he was earning Rs. 6,000/-per month, there is no evidence available on record to prove the same. After taking into consideration of the same, the Tribunal adopted the multiplier method and fixed the monthly income of the claimant at Rs. 1,500/-and determined the annul income at Rs. 18,000/-(Rs. 1,500X12). After taking into consideration of the age of the injured, the Tribunal adopted the multiplier of ''15'' and determined the loss of income at Rs. 2,70,000/-(Rs. 18,000X15). After taking into consideration of the disability at 40%, the Tribunal determined the loss of income at Rs. 1,08,000/-(Rs. 2,70,000X40/100). After taking into consideration of the nature of the injuries, oral and documentary evidence and the specific finding given by the Doctor, the Tribunal was of the view that due to 40% disability, the claimant cannot do his work as before. The amount awarded towards loss of income is also very reasonable and hence the same is confirmed. The Tribunal has also awarded a sum of Rs. 40,000/-towards loss due to 40% disability. Learned Counsel appearing for the Appellant-Insurance Company vehemently contended that once the Tribunal awarded a sum of Rs. 1,08,000/-towards loss of income, the Tribunal ought not to have awarded further a sum of Rs. 40,000/-towards loss due to 40% disability and also he relied on a Supreme Court judgment in the case of Cholan Roadways Corporation Ltd. Vs. Ahmed Thambi and Others, . After considering the principles enunciated in the judgment, this Court is of the view that the Tribunal ought not to have awarded a sum of Rs. 40,000/-towards loss due to 40% disability. Therefore, the amount awarded under this head is unwarranted and hence the same is deleted. The Tribunal has awarded a sum of Rs. 40,000/-towards medical expenses. Learned Counsel appearing for the first Respondent-claimant vehemently contended that the claimant has incurred a sum of Rs. 44,730/-towards medical expenditure, but the Tribunal has awarded only a sum of Rs. 40,000/-towards medical expenses. Ex.P.9 are the series of medical bills. After taking into consideration of the same, I am of the view that the claimant is entitled to a sum of Rs. 44,730/-towards medical expenses on the basis of Ex.P.9. Therefore, the award amount modified to Rs,44,730/-towards medical expenses as against Rs. 40,000/-awarded by the Tribunal. The Tribunal has awarded a sum of Rs. 15,000/-towards pain and suffering. After taking into consideration of the nature of the injuries stated above and the fact that the claimant was in the hospital as in-patient from 24.01.2002 to 25.02.2002, I am of the view that it would be reasonable to award a sum of Rs. 25,000/-as against Rs. 15,000/-awarded by the Tribunal. The Tribunal has awarded a sum of Rs. 20,000/-towards mental agony. Learned Counsel appearing for the Appellant-Insurance Company vehemently contended that after awarding a sum towards pain and suffering, the Tribunal ought not to have awarded a sum towards mental agony. After taking into consideration of the same, I am of the view that the amount awarded towards mental agony at Rs. 20,000/-is unwarranted and hence the same is deleted. The Tribunal has awarded a sum of Rs. 30,000/-towards loss of amenities. Learned Counsel appearing for the Appellant-Insurance Company vehemently contended that the amount awarded towards this head is excessive. After taking into consideration of the facts and circumstances of the case, it would be reasonable to award a sum of Rs. 7,500/-towards loss of amenities as against Rs. 30,000/-awarded by the Tribunal. The Tribunal has awarded a sum of Rs. 5,000/-towards extra nourishment, which is very reasonable and hence the same is confirmed. The Tribunal has not awarded any amount towards transport charges and attendant charges. After considering the facts and circumstances of the case, it would be reasonable to award a sum of Rs. 5,000/-towards transport charges and another sum of Rs. 5,000/-towards attendant charges. The Tribunal has fixed the interest rate at 9% per annum. After taking into consideration of the date of accident, date of award and the prevailing rate of interest during that time, the interest fixed by the Tribunal is reasonable and hence the same is confirmed. The details of the modified compensation as per the above discussion are as under:
Loss of income Rs.1,08,000/- Medical expenses Rs. 44,730/- Pain and suffering Rs. 25,000/- Extra nourishment Rs. 5,000/- Loss of amenities Rs. 7,500/- Transport charges Rs. 5,000/- Attendant charges Rs. 5,000/- ------------ Total... Rs.2,00,230/- ------------ (Rounded off to Rs.2,00,000/-)
Therefore, the claimant is entitled to the modified compensation of Rs. 2,00,000/-with interest at 9% p.a from the date of petition.
Learned Counsel appearing for the Appellant-Insurance Company has submitted that the entire award amount has already been deposited by order of this Court dated 13.11.2003 and the claimant was permitted to withdraw a sum of Rs. 1,00,000/-. Under the circumstances, the claimant is permitted to withdraw the modified compensation of Rs. 2,00,000/-with interest at 9% p.a from the date of petition, less the amount already withdrawn, on making proper application. The Appellant-Insurance Company is also permitted to withdraw the balance amount on making proper application.
With the above modifications, the Civil Miscellaneous Appeal is disposed of. No costs.