The New India Assurance Co. Ltd. vs I. Kalaikumar and Others

P.P.S. Janarthana Raja, J.—This appeal is preferred by the Appellant-Insurance Company against the judgment and decree dated 29.07.2005 made in M.C.O.P. No. 4 of 2004 on the file of I Additional Motor Accidents Claims Tribunal, Nagercoil.

Background facts in a nutshell are as follows:

The injured-Kalaikumar met with motor vehicle accident that took place on 03.06.2002 at about 7.20 p.m. The said injured was travelling in a tempo bearing Registration No. TN-74-1225 as a Salesman of Vangal milk, Sungankadai. The said tempo was carrying milk from Sungankadai to Kanyakumari and the same was driven by its driver in a rash and negligent manner. When the tempo was nearing Padmanabanputhoor near Valukumparai, it hit a cargo lorry bearing Registration No. TN-74-E-5172, which was parked on the road. Due to the same, the injured sustained grievous injuries all over the body. The injured-claimant claimed a sum of Rs. 3,00,000/-as compensation. The said tempo 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 the rash and negligent driving of the driver of the tempo or not?

Whether the Respondents are liable to pay the compensation?

To what amount 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 driver of the tempo and awarded a consolidated sum of Rs. 2,04,000/-towards loss of income as compensation with interest at 7.5% per annum from the date of petition. Aggrieved by that award, the Appellant-Insurance Company has filed the present appeal.

Learned Counsel appearing for the Appellant-Insurance Company vehemently contended that the compensation awarded by the Tribunal is excessive, exorbitant and also without any basis and justification. Further, he contended that the Tribunal ought not to have adopted the multiplier method in the case of injury. 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 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 P12 were marked. Further the claimant also marked material objects 1 and 2, which are the X-rays. 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. Thiraviyam. Ex.P1 is the copy of the First Information Report. Ex.P2 is the copy of the Wound Certificate. Ex.P3 is the Motor Vehicle Inspector''s Report. Ex.P4 is the copy of the Rough Sketch. Ex.P5 is the copy of the Charge-Sheet. Ex.P6 is the copy of the judgment in S.T.C. No. 2144/2002. Ex.P7 is the Medical Bill. Ex.P8 are the Receipts for purchase of blood from Blood Bank. Ex.P9 are the Trip Sheets. Ex.P10 are the Photos and Negatives. Ex.P11 are the Medical Bills. Ex.P12 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 driver of the tempo. 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 23 years. He is a Salesman in Vangal Milk, Sungankadai. He was earning a sum of Rs. 3,000/-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 driver of the tempo and the driver was also Charge-Sheeted by Suchindrum Police Station in Crime No. 434/2002 under Sections 279, 337 and 338 IPC. Due to the accident, he sustained the following injuries:

Multiple linear lacerated would left cheek chin, preauricular region and zygomatic region.

1X2 cm linear laceration left parietal emlbences.

Multiple abrasion left arm, elbow, forearm and wrist.

3X2 cm laceration right anterior middle 1/3rd of right leg. 5. Clinically fracture left femur.

Radiologically fracture peiris

Immediately, after the accident he was admitted in Dr. Thiraviyam Hospital, Nagercoil. PW.2, the doctor, examined the claimant and determined the disability at 40% and issued Ex.P-12 Disability Certificate. In the evidence of the Doctor, he has stated that due to the above said injuries, the claimant is unable to do his work as before. After considering the above oral and documentary evidence, the Tribunal adopted the multiplier method. The Tribunal fixed the monthly income of the claimant at Rs. 1,500/-and out of the said sum, 1/3rd of the amount i.e., Rs. 500/-was deducted towards personal expenses of the injured and the balance sum of Rs. 1,000/-was taken as the monthly contribution of the claimant to the family and determined the annual income at Rs. 12,000/-. After taking into consideration of the age of the deceased, the Tribunal adopted the multiplier of ''17'' and determined the loss of income due to disability at Rs. 2,04,000/-(Rs. 12,000X17). Learned Counsel appearing for the Appellant-Insurance Company vehemently contended that the Tribunal ought not to have adopted the multiplier method in the case of injury. Therefore, taking into consideration of the facts and circumstances of the case, I am of the view that only the percentage method has to be adopted in the present case. Normally, the Courts award a sum of Rs. 1,000 /-to 2,000/-per percentage of disability. In the present case, it is reasonable to award a sum of Rs. 1,000/-per percentage of disability. If Rs. 1,000/-is awarded per percentage of disability, the loss of income due to 40% disability works out to Rs. 40,000/-(Rs. 1,000X40) as against Rs. 2,04,000/-awarded by the Tribunal. The Tribunal has not awarded any sum towards medical expenses. Exs.P7, P8 and P11 are the series of medical bills and the medical expenditure works out to Rs. 91,920/-. It is an actual expenditure. There is no dispute that he was admitted in the Dr. Thiraviyam Hospital, Nargercoil for a period of 27 days. Therefore, the claimant is entitled to a sum of Rs. 91,920/-towards medical expenses. The Tribunal has not awarded any sum towards transport charges. After considering the facts and circumstances of the case, it would be reasonable to award a sum of Rs. 1,200/-towards transport charges as claimed in the claim petition. The Tribunal has not awarded any sum towards pain and suffering. After taking into consideration of the nature of the injuries stated above, it would be reasonable to award a sum of Rs. 15,000/-towards pain and suffering. The claimant was in the hospital as in-patient for a period of 27 days and during that period certainly he would have taken nutritious and healthy food for speedy recovery. After taking into consideration of the same, it would be reasonable to award a sum of Rs. 7,500/-towards extra nourishment. The Tribunal has not awarded any sum towards attendant charges and loss of income during the treatment period. After taking into consideration of the facts and circumstances of the case, it would be reasonable to award a sum of Rs. 5,000/-towards attendant charges and another sum of Rs. 10,000/-towards loss of income during the treatment period. The Tribunal has fixed the interest rate at 7.5% 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 at 7.5% per annum from the date of petition is reasonable and hence the same is confirmed. The details of the modified compensation as per the above discussion are as under:

Heads Amount Loss of due 40% disability Rs. 40,000/- Medical expenses Rs. 91,290/- Transport charges Rs. 1,200/- Pain and suffering Rs. 15,000/- Extra nourishment Rs. 7,500/- Attendant charges Rs. 5,000/- Loss of income during the treatment period Rs. 10,000/- ----------- Total... Rs.1,69,990/- ----------- (Rounded off to Rs.1,70,000/-)

Therefore, the claimant is entitled to the modified compensation of Rs. 1,70,000/-with interest at7.5% p.a from the date of petition.

Learned Counsel for the Appellant-Insurance Company has submitted that only a sum of Rs. 1,50,000/-has been deposited and the claimant was also permitted to withdraw a sum of Rs. 75,000/-from the deposited amount. Under the circumstances, the Appellant-Insurance Company is directed to deposit the modified compensation of Rs. 1,70,000/-with interest at 7.5% p.a from the date of petition, less the amount already deposited, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the claimant is permitted to withdraw the entire amount from the deposit on making proper application.

With the above modifications, the Civil Miscellaneous Appeal is disposed of. No costs.