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Judgment
P.P.S. Janarthana Raja, J.—The Civil Miscellaneous Appeal is filed by the Insurance Company against the Judgment and Decree dated
17.04.2007 made in MCOP No. 1049 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge (IV-FTC) of
Tiruppur.
.
Background facts in a nutshell are as under:
The first respondent / claimant was injured in a road traffic accident on 19.01.2003. On 19.01.2003 at about 13.30 hours, the claimant was going
in a bicycle from west to east direction in the Tirupur to Kangeyam Road, Kasipalayam Pirivu, Tirupur, keeping left side of the road. At that time,
a car bearing registration No.TNT-9394, driven by its driver, in the regular course of employment under the second respondent, was coming from
west to east direction in a rash and negligent manner, without following traffic rules and dashed against the claimant. Due to the accident, the
claimant sustained grievous injuries and fracture at the right shoulder neck, left leg, right elbow and injuries all over the body. Immediately, the
claimant was taken to the Government Hospital, Tiruppur and later taken to CMC Hospital, Coimbatore and admitted as in-patient and the
claimant underwent treatment for one month. The claimant spent huge amount towards medical treatment. The claimant claimed a compensation of
Rs. 5,00,000/- before the Tribunal. The said car was insured with the appellant / Insurance Company, who resisted the claim. On pleading, the
following issues were framed by the Tribunal:
a) Whether the accident had occurred due to the rash and negligent driving of the car driver or not?
b) Whether the claimant is entitled for any compensation or not? If so, what is the amount and from whom?
After considering the oral and documentary evidence available on record, the Tribunal awarded a compensation of Rs. 3,46,000/- with interest at
7.5% per annum from the date of petition. Aggrieved by the award, the Insurance Company has filed the present appeal.
Learned Counsel appearing for the Insurance Company has submitted that the Tribunal is wrong in holding that the accident had occurred due
to the rash and negligent driving of the car driver. It is also submitted that the Tribunal had awarded excessive and exorbitant compensation,
without basis and justification. It is also submitted that there is a contributory negligence on the part of the claimant. Hence the order passed by the
Tribunal is not in accordance with law and the same should be set aside.
Learned Counsel appearing for the first respondent/claimant has submitted that the Tribunal had considered all the relevant materials and
evidence available on record and came to the correct conclusion and awarded a just, fair and reasonable compensation. Hence the order passed
by the Tribunal is in accordance with law.
Heard the counsel. On the side of the claimant, witnesses P.W. 1 to P.W. 3 were examined and documents Ex.P1 to Ex.P6 were marked. On
the side of the Insurance Company, no witnesses were examined and no documents were marked. P.W. 1 is the claimant himself. P.W. 2 is Dr.
Senthilkumar. P.W. 3 is one Sridhar. Ex.P1 is copy of First Information Report. Ex.P2 is the copy of wound certificate. Ex.P3 and Ex.P4 are the
details of treatment. Ex.P5 is the Disability Certificate. Ex.P6 is the X-ray. After considering these oral and documentary evidence, the Tribunal
awarded a compensation of Rs. 3,46,000/- with interest at 7.5% per annum from the date of petition. The details of the compensation are as
under:
Rs.
Loss of income 3,24,000/-
Pain and suffering 1,000/-
Transport expenses 1,000/-
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Total 3,26,000/-
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The total amount comes to Rs. 3,26,000/-, but the Tribunal has awarded 3,46,000/- which is an error in computation. Counsel appearing on both
the sides have also agreed that there is an error in computation and the correct award amount should be Rs. 3,26,000/- instead of Rs. 3,46,000/-
stated by the Tribunal. There is no dispute regarding the same.
P.W. 1 is the claimant himself. He has given evidence that when he was going in a bicycle from west to east direction in the Tirupur to
Kangeyam Road, keeping left side of the road, a car bearing registration No.TNT-9394, driven by its driver in a rash and negligent manner,
without following the traffic rules, dashed against the claimant and due to the accident, the he sustained grievous injuries all over the body. Ex.P1 is
the F.I.R., in which it was stated that only the driver of the car drove the vehicle in a rash and negligent manner. Relying on the oral evidence of
P.W. 1 corroborated by Ex.P1-F.I.R., the Tribunal had given a categorical finding that the accident had occurred only due to the rash and
negligent driving of the car driver.
P.W. 2 is an Orthopaedician, who has given evidence that he examined the claimant and that the claimant suffered the following injuries:
Fracture at right shoulder neck, left leg, right elbow and injuries all over the body.
Due to the injuries the claimant is unable to do any work. Further, P.W. 2 has given evidence that there is a shortage of 2.5 inches in the left leg
and also there is a fracture of ribs and in view of the same, he has given a certificate that there is 57% disability, which is Ex.P5. Ex.P6 is the X-
ray. The claimant was a dhobi and he was earning Rs. 4,000/- per month. The age of the claimant was 28 years at the time of accident. The
Tribunal fixed the monthly income of the claimant at Rs. 3,000/- and taking into consideration the age of the claimant, i.e. 28 years and the
disability of 50%, adopted the multiplier of 18 and determined the loss of income at Rs. 3,24,000/- (Rs. 3,000/- x 12 x 18 x 50/100). Counsel
appearing for the Insurance Company vehemently contended that the Tribunal is wrong in holding that there was a disability of 50% and there is no
enough evidence on record. It is also submitted that the Tribunal is wrong in adopting 18 multiplier and the correct multiplier that should be
adopted is 12. Taking into consideration the facts and circumstances of the case, I feel that the disability can be fixed at 45%. Also, I feel that the
multiplier that should be adopted by the Tribunal is 12. Accordingly, the loss of income is worked out as under:
Rs. 3,000/- x 12 x 12 x 45/100
= Rs. 1,94,400/-
Therefore the claimant is entitled to Rs. 1,94,400/- as against the sum of Rs. 3,24,000/- awarded by the Tribunal in respect of loss of income. The
Tribunal has awarded a sum of Rs. 1,000/- towards pain and suffering, Rs. 1000/- towards transport expenses, which are very low. Further, no
amount also has been awarded towards extra nourishment. Therefore, it would be appropriate and reasonable to award a sum of Rs. 7,500/-
towards pain and suffering, Rs. 7,500/- towards transport expenses and Rs. 5,000/- towards extra nourishment. The details of the modified
compensation are as under:
Rs.
Loss of income 1,94,400/-
Pain and suffering 7,500/-
Transport expenses 7,500/-
Extra nourishment 5,000/-
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Total 2,14,400/-
============
Therefore the claimant is entitled to the total compensation of Rs. 2,14,400/- as against the compensation of Rs. 3,26,000/- awarded by the
Tribunal. The interest rate awarded by the Tribunal at 7.5% p.a. from the date of petition is reasonable and hence the same is confirmed.
It is stated that the Insurance Company has already deposited the entire compensation awarded by the Tribunal. Hence the claimant is permitted
to withdraw a sum of Rs. 2,14,400/- with 7.5% interest p.a. from the date of petition, from the deposit, after adjusting the amount if any, already
withdrawn. The Insurance Company is permitted to withdraw the balance amount available in the deposit, on making proper application.
The Civil Miscellaneous Appeal is disposed of with the above modification. Consequently, M.P. No. 1 of 2007 is closed. No costs.