The National Insurance Co. Ltd. vs Subbulakshmi and Krishnamurthy

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

dated 18.01.2005, made in M.C.O.P. No. 634 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track

Court No. 5, Coimbatore at Tiruppur, awarding a compensation of Rs. 4,39,901/- together with interest at the rate of 9% per annum from the

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

Aggrieved by the said Award and Decree, the appellant/second respondent, The National Insurance Co., Ltd., Tiruppur has filed the above

appeal praying to scale down the compensation amount granted by the Tribunal.

The short facts of the case are as follows:

On 18.05.2003, at about 17.30 hours, the petitioner was travelling on a TVS50 motorcycle bearing registration No. TN39 Q9735. At that time,

one Yamaha motorcycle bearing registration No. TN39 M8327, came at a high speed and in a rash and negligent manner, dashed against the

petitioner, as a resulting of which the petitioner was thrown down on the ground and she sustained grievous injuries. Immediately, she was taken to

the Palladam Private Hospital for preliminary treatment, thereafter she was rushed to the Ganga Hospital, Coimbatore. The petitioner further stated

that the said accident was registered by the Palladam Police Station in Crime No. 265/2003. At the time of the said accident she was 24 years she

was pursuing the profession of a tailor. Her earning was Rs. 5,000/- per month. She further stated that the accident had happened due to the rash

and negligent riding by the motorcyclist. As such, the owner of the motorcycle and the Insurance Company are jointly liable to pay a sum of Rs.

5,00,000/- with interest and costs, which was claimed by the claimant.

The second respondent has filed a counter statement stating that no information about the accident, had been furnished by the first respondent.

Therefore, the second respondent is not liable to pay any compensation to the petitioner. The respondent further submitted that the accident had

happened due to the rash and negligent driving of the petitioner, and not due to negligence by the first respondent''s vehicle rider. As such, the

respondent is not liable to pay compensation. The owner of the vehicle bearing registration No. TN39 Q9735 and its insurer are necessary parties

in the claim petition. But, they were not included as necessary parties in the claim case. As such, the claim case is not maintainable. The respondent

denies the petitioner''s occupation, age and income. Further, the petitioner has to prove that the rider of the yamaha motorcycle was in possession

of a valid driving licence, at the time of the said accident. Therefore, the respondent prays to dismiss the claim petition.

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

(i) Who is responsible for the accident? Whether the petitioner is entitled to get compensation? If so, from whom the compensation has to be

given?

(ii) What is the quantum of compensation?

On the petitioner''s side three witnesses were examined as PW1, PW2 and PW3 and six documents were marked as Exs. P1 to P6. On the

respondents'' side no witnesses were examined and no documents were marked.

The petitioner was examined as PW1. The PW1, in her evidence, had adduced evidence stating that on 18.05.2003, at about 5.30 p.m. she

was riding as a pillion rider, while her brother was driving the TVS50 motorcycle, on the Trichy main road. At that time, the respondent yamaha

motorcycle bearing registration No. TN39 M8327 came in the opposite direction at a high speed and in a rash and negligent manner and dashed

against the petitioner''s vehicle on which she was the pillion rider. Regarding the said accident a criminal case was registered against the rider of the

Yamaha Motorcycle, supporting this Ex.P1-FIR was marked. The learned Tribunal, after considering the evidence of the PW1 and the counter

statement of the second respondent and on the strength of the information of the FIR i.e. Ex.P1, had come to the conclusion that the accident had

happened due to the rash and negligent riding of the motorcyclist. As such, the owner of the offending vehicle and the second respondent under

whom the vehicle was insured are jointly and severally liable to pay the compensation to the claimant.

The PW1 further adduced evidence stating that immediately after the said accident she was rushed to the Palladam Balaji Hospital for

preliminary treatment. Thereafter, she had undergone surgical operation and the Doctor fixed a steel plate with screws on the operated region of

the leg. Towards this treatment, she spent a sum of Rs. 27,701/-. After the accident she is unable to walk, stand and squat and is unable to pursue

her normal avocation. She further stated that she was earning a sum of Rs. 5,000/- before the accident took place. The PW2, one Sudha had

adduced evidence stating that she was a co-employee at Tubeknit Fashion Company. She stated that the petitioner''s salary was Rs. 5,000/- per

month. After the said accident, the petitioner had discontinued her job. On the side of the respondent, no cross-examination was done. As such,

the Tribunal had come to the conclusion that the petitioner was a tailor and her earning was Rs. 5,000/- per month.

One Dr. Senthil Kumar was examined as PW3. The PW3, in his evidence had adduced evidence that he had examined the petitioner and

verified her medical records, which indicated that the petitioner had undergone medical treatment at Ganga Hospital. Further, the Doctor by using

medical equipment had assessed the disability as 31%. Further, the Doctor adduced evidence stating that the petitioner''s right leg tibia bone had

fractured and this was surgically set right by insertion of steel plate and screws. After, considering the evidence of the PW1, PW2 and PW3, the

Tribunal had come to the conclusion in favour of the petitioner and awarded a compensation as follows:

Rs.3,16,200/- awarded under the head of loss of income,

Rs.31,000/- awarded under the head of disability,

Rs.25,000/- awarded under the head of grievous injuries,

Rs.7,000/- awarded under the head of pain and suffering,

Rs.3,000/- awarded under the head of nutrition,

Rs.30,000/- awarded under the head of loss of marriage prospects,

Rs.27,701/- awarded under the head of medical expenses,

In total, the Tribunal awarded a sum of Rs. 4,39,901/- as compensation to the petitioner, together with interest at the rate of 9% per annum.

The Tribunal further directed the respondents to deposit the said compensation amount, into the credit of the M.C.O.P. No. 634 of 2003, on

the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No. 5, Coimbatore at Tiruppur, within a period of one

month. In turn, the said amount was to be deposited in any one of the nationalised bank for a period of three years, under the head of fixed deposit

scheme. The claimant is permitted to withdraw the interest on the said deposit amount once in six months.

Learned Counsel appearing for the appellant has argued that the Tribunal awarded a sum of Rs. 31,000/- under the head of permanent

disability and Rs. 7,000/- under the head of pain and suffering, which are gross errors made by the Tribunal. The Tribunal also awarded a sum of

Rs. 3,16,200/- under the head of loss of earning power, which is not pertinent. The Tribunal awarded a sum of Rs. 25,000/- and Rs. 30,000/-

under the head of injuries and under the loss of marital prospects respectively. The learned Counsel further argued that the award amount of Rs.

4,39,401/- is on the higher side. Further, the learned Counsel submitted that the award granted by the Tribunal is a well considered one but it is an

improper award, without proper documentary evidence. Hence, the learned Counsel prays for a reduction in the compensation.

Learned Counsel appearing for the first respondent argued that the Tribunal awarded the compensation on the basis of income, age and

avocation of the injured person. The injured person had undergone surgical operation and a steel plate with screws was fixed on the operated

region of the injured person. Due to this accident, she is unable to pursue her regular occupation. It proves that she is permanently disabled.

Hence, her marital prospects has also been diminished. The Tribunal had failed to grant an award under the head of transport. The learned Counsel

further argued that the Tribunal awarded the compensation after considering the evidence of the PW1, PW2 and PW3 and after perusing the

documentary evidence. As such, the compensation assessed by the Tribunal and the award passed is a well considered one. Hence, the learned

Counsel prays to dismiss the case and confirm the award.

After considering the facts and circumstances of the case, scrutiny of the findings of the Tribunal and arguments advanced by the learned

Counsel appearing on either side, this Court is of the view that there is a discrepancy in the said award. Hence, this Court decides the award as

follows:

There is no proof that the claimant was drawing a sum of Rs. 5,000/- at the time of the said accident, stating that she was a tailor in a textile

company. No documentary proof besides no evidence from her employer''s side. As such, this Court fixes the income of the injured person as Rs.

3,000/- per month and adopted a multiplier method and has assessed the compensation as ie. Rs. 3,000/- X 17 X 31/100 X 12 = Rs. 1,89,720/-,

which is awarded for loss of income due to the permanent disability,

The Tribunal awarded a sum of Rs. 27,701/- under the head of medical expenses. This Court confirms the same,

The Tribunal awarded a sum of Rs. 7,000/- under the head of pain and suffering, this Court enhances it to Rs. 10,000/-,

The Tribunal awarded a sum of Rs. 25,000/- under the head of grievous injury and Rs. 31,000/- under the head of disability, which are not

pertinent, hence, this Court sets aside the same,

The Tribunal awarded a sum of Rs. 3,000/- under the head of nutrition, this Court enhances it to Rs. 5,000/-,

The Tribunal awarded a sum of Rs. 30,000/- under the head of loss of marital prospects, this Court confirms the same,

In total, this Court awards a sum of Rs. 2,62,421/- as compensation to the petitioner, together with interest at the rate of 7.5% per annum from the

date of filing the claim petition till the date of payment of compensation. The original compensation amount i.e. a sum of Rs. 4,39,901/- has been

scaled down to Rs. 2,62,421/- with interest as observed above, which is found to be fair and equitable.

On 20.07.2005, this Court imposed a condition on the appellant to deposit a sum of Rs. 1,50,000/- into the credit of the M.C.O.P. No. 634

of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No. 5, Coimbatore at Tiruppur. Further,

this Court permitted the claimant to withdraw the said amount after such deposit was made.

Now, this Court directs the appellant to deposit the balance compensation amount with accrued interest thereon as per the above observation,

into the credit of the M.C.O.P. No. 634 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court

No. 5, Coimbatore at Tiruppur, within a period of four weeks from the date of receipt of a copy of this Order.

As the accident had happened in the year 2003, it is open to the claimant to withdraw the balance compensation amount, with accrued interest

and costs, after such deposit is made, lying in the credit of the M.C.O.P. No. 634 of 2003, on the file of the Motor Accident Claims Tribunal,

Additional District Court, Fast Track Court No. 5, Coimbatore at Tiruppur, after filing necessary payment out application in accordance with law,

subject to deduction of withdrawals if made as per this Court''s earlier order.

In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 18.01.2005, in M.C.O.P. No. 634 of

2003, passed by the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No. 5, Coimbatore at Tiruppur, is modified.

There shall be no order as to costs.