The New India Assurance Co. Ltd. vs Fazhamalai and Arumugam

C.S. Karnan, J.—The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent, The New India Assurance

Co., Ltd., Divisional Office, Cuddalore, against the Award and Decree, dated 06.09.2005, made in M.C.O.P. No. 59 of 2005, on the file of the

Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No. 3, Virudhachalam, awarding a compensation amount of Rs.

2,01,200/- with 7.5% interest per annum, from the date of filing petition till the date of payment of compensation.

Aggrieved by the said Award and Decree passed by the Motor Accident Claims Tribunal, the appellant/second respondent, The New India

Assurance Co. Ltd., Divisional Office, Cuddalore 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 25.09.2004, at about 07.30 hours at Orangeer near water tank, while the petitioner was driving his two wheeler bearing registration No.

TN50 B6166 towards south, just in the opposite direction the first respondent''s mini Tempo van bearing registration No. TN30 W3183 driven by

its driver in a very rash and negligent manner, dashed against the petitioner and caused damage to the vehicle and further caused fracture injuries to

his left leg and multiple injuries caused all over the body. Immediately, after the said accident, the petitioner was admitted in Trichy Vijayaragavan

Hospital. Regarding the said case, a case was registered by the SHO Ramanathan Police, in Crime No. 249/2004, under Sections 279 and 338 of

I.P.C. At the time of the said accident, the petitioner was aged about 42 years and he was an Electrician by occupation. The petitioner further

submitted that the said accident case was registered against the driver of the mini Tempo van. As such, the owner and the insurer of the van are

jointly and severally liable to pay compensation to the claimants. Hence, the petitioner claimed a sum of Rs. 4,00,000/- with interest and costs

against the respondents.

The second respondent has filed a counter statement stating that the respondent does not admit that the mini Tempo van bearing registration No.

TN30 W3183 involved in the accident is insured with this respondent. It is equally denied that the driver of the said vehicle had valid driving

licence to drive the vehicle at the relevant time. It is also put to strict proof regarding the validity of FC, RC, Permit etc., of the vehicle involved in

the said accident. Further, the respondent stated that it is incorrect to contend that on 25.09.2004, at about 07.30 hours when the petitioner was

proceeding on his two wheeler bearing registration No. TN50 B6166, the mini Tempo van van bearing registration No. TN30 W3183, which was

driven rashly and negligently dashed against the petitioner and in the said accident the two wheeler was damaged and the petitioner sustained

fracture injuries and he had treatment at Trichy Vijayaraghavan Hospital and still he is undergoing treatment. The respondent further denied that in

the said accident, the mini Tempo van was not involved in the said accident. Further, the claim amount is excessive. Hence, the respondent prays

to dismiss the claim petition.

The Motor Accident Claims Tribunal had framed two issues for consideration namely;

(i) Whether the petitioner is entitled to get a compensation of Rs. 4,00,000/- against the respondent?

(ii) Whether the accident had happened due to the rash and negligent driving of the driver of the mini Tempo van?

On the side of the petitioner two witnesses were examined as PW1 and PW2 and ten documents were marked as Ex.P1 to Ex.P10. On the

side of the respondents one witness was examined as RW1 and two documents were marked as Exs.R1 and R2.

The petitioner was examined as PW1. PW1 had adduced evidence stating that he was an Electrician at the time of the said accident. He was

earning a sum of Rs. 6,000/- per month. On 25.09.2004, at about 07.00 a.m. the petitioner was proceeding from V. Puttur to Tittakudi on his

motorcycle. At the time, a minidor van came at high speed in a rash and negligent manner and dashed against him. In the result, he sustained

fracture in the left leg and in the right leg knee. Immediately, he was taken to the Trichy Vijayaraghavan Hospital for treatment and received

treatment as inpatient. Further, the PW1 adduced evidence stating that the minidor van bearing registration No. TN30 W3183 was the cause for

the said accident. Supporting his claim, he has marked Exs.P1 to P8. The PW1 had marked Ex.P1, FIR, which was registered against the driver

of the minidor van. After considering the PW1 evidence and FIR, the learned Tribunal had come to the conclusion that the accident had happened

due to the rash and negligent driving of the driver of the van. As such, the respondents are jointly and severally liable to pay compensation to the

petitioner.

Motor Vehicle Inspector''s Report was marked as Ex.P8. It reveals that the first respondent''s Mahindra van was inspected by the Motor

Vehicle Inspector and he certified that at the time of the said accident there was no mechanical failure. Further, the driver possessed valid driving

licence. The vehicle also insured with the second respondent/Insurance Company. The learned Tribunal, after considering the Motor Vehicle

Inspector''s Report and evidence of the RW1 and RW2 had come to the conclusion that the respondents are liable to pay compensation.

One Dr. Palani was examined as PW2. PW2 had adduced evidence stating that on 23.08.2005, he examined the petitioner and perused his

medical documents and assessed the disability that the claimant sustained 54% disability. Further, the Doctor adduced evidence stating that the

petitioner''s right leg bone was fractured and he had undergone surgical operation, on the operated region a steel plate was also fixed. The PW2

further adduced evidence stating that the claimant''s left leg amputed by one inch. The movement of the leg also reduced from 120 Degrees to 70

Degrees. The PW2 further adduced evidence stating that one more operation is required to remove the steel plates from the operated region. As

such, the PW2 suggested that for re-operation a sum of Rs. 20,000/- is required. After considering the evidence of the PW2, the Tribunal

awarded a compensation as follows:

Rs. 1,62,000/- under the head of loss of income and permanent disability,

Rs. 34,200/- under the head of transport and medical expenses,

Rs. 5,000/- under the head of pain and suffering,

In total, the Tribunal awarded a sum of Rs. 2,01,200/- 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. Further, the Tribunal directed the second respondent to deposit the

entire compensation amount with accrued interest and costs within a period of three months, into the credit of the M.C.O.P. No. 59 of 2005, on

the file of the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No. 3, Virudhachalam. In turn, the said amount to be

deposited in a nationalised bank for a period of three years under the fixed deposit scheme. The Advocate fees fixed at Rs. 7,024/-.

Aggrieved by the said Award and Decree passed by the Motor Accident Claims Tribunal, the appellant/second respondent, The New India

Assurance Co. Ltd., Divisional Office, Cuddalore has filed the above appeal praying to set aside the award and decree passed by the Tribunal.

The learned Counsel appearing for the appellant argued that the multiplier method adopted by the Tribunal is erroneous, since the Tribunal

fixed the disability as 30%. The learned Counsel vehemently argued that the percentage assessed by the Doctor is an erroneous one. There is no

crystal clear documents regarding the mode of treatment and period of treatment as inpatient in the said hospital. The learned Counsel further

argued that there is no income proof for the said claimant. The claimant had driven his vehicle in a rash and negligent manner and dashed against

the respondent''s van. As such, compound negligence is also involved in this case. Further, the award amount of Rs. 2,01,200/- passed by the

Tribunal is an excessive one. Hence, the learned Counsel prays to set aside the award passed by the Tribunal.

Learned Counsel appearing for the second respondent argued that the claimant is an Electrician. At the time of the said accident, he was aged

about 42 years. Further, he was the only breadwinner of his family. After the said accident, the claimant''s normal life is totally affected. He is

unable to perform his normal occupation. Further, the learned Counsel argued that the claimant had undergone surgical operation at private hospital

at Trichy and steel plate was fixed in the operated region. As per the Doctor''s opinion the steel plate has to be removed from the operated region.

For which, another operation is required in the said case. The learned Counsel further argued that the Tribunal failed to consider the future medical

expenses as per the Doctor''s evidence. As such, the claimant is entitled to get more compensation and the award amount of Rs. 5,000/-, granted

under the head of pain and suffering, is on the lower side. Further, the learned Counsel argued that there is no error in the said award and decree

passed by the Tribunal and it is a well considered one.

Considering the facts and circumstances of the case, scrutiny of findings of the Tribunal and the arguments advanced by the learned Counsel

appearing on either side, this Court is of the view that as per the medical record and the evidence of the Doctor, the claimant having undergone

surgical operation and also steel plate was fixed on the operated region. Further, the claimant is an Electrician. After the said accident, he is unable

to continue his profession as Electrician. As such, the award amount of Rs. 2,01,200/- 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, granted by the Tribunal, is fair and equitable. This Court does not find

any error in the award and decree passed by the Tribunal, which is found to be fair and equitable.

On 14.03.2007, this Court directs the appellant to deposit 60% of the award amount with accrued interest, into the credit of the M.C.O.P.

No. 59 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No. 3, Virudhachalam and on

21.06.2007, this Court directed the claimant to withdraw 50% of the award amount, lying in the credit of the M.C.O.P. No. 59 of 2005, on the

file of the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No. 3, Virudhachalam.

Now, this Court hereby directed the appellant to deposit the balance compensation amount together with accrued interest at the rate of 7.5%

per annum, into the credit of the M.C.O.P. No. 59 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Fast Track

Court No. 3, Virudhachalam, within a period of four weeks from the date of receipt of a copy of this Order.

After such deposit is made, it is open to the claimant to withdraw the entire compensation amount with accrued interest therein, lying in the

credit of the M.C.O.P. No. 59 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No. 3,

Virudhachalam, by making proper payment out application in accordance with law, subject to deduction of earlier withdrawal if any made.

In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 06.09.2005, made in M.C.O.P. No. 59 of

2005, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No. 3, Virudhachalam, is confirmed. There

shall be no order as to the costs.