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Judgment
C.S. Karnan, J.—The appellant/claimant has preferred the appeal in C.M.A. No. 584 of 2006 and the appellant/The New India Assurance
Co., Ltd., has preferred the appeal in C.M.A. No. 2717 of 2005, against the Judgment and decree dated 28.02.2005, made in M.C.O.P. No.
465 of 2002, on the file of the Additional District Judge, Motor Accident Claims Tribunal, Fast Track Court-IV, Poonamallee. The short facts of
the case are as follows:-
The claimant has filed the claim petition in M.C.O.P. No. 465 of 2002, before the Motor Accident Claims Tribunal, Additional District Court, Fast
Track Court-IV, Poonamallee, claiming compensation of a sum of Rs. 12,00,000/- from the respondents for the injuries sustained by him in a
motor vehicle accident. It was submitted that on 06.07.2000, at about 05.45 p.m., when the petitioner was travelling as a pillion rider in a
motorcycle bearing registration No. TN22 M0552, ridden by one Saravanan and when the vehicle was proceeding from Irunkattukottai towards
Chennai, on the Bangalore National Highway and when it was near Irunkattukottai Hyundai Car Company, the rider of the motorcycle drove it in a
high speed and dashed against a lorry coming in the opposite direction. As a result, the claimant sustained fracture of bone in his left shoulder, right
thigh and also sustained fracture of Tibia bone in his right leg. He was admitted at Ramachandra Hospital, wherein he received treatment as an
inpatient for four months and a surgical operation was conducted and his right leg joint was removed. Hence, the claimant was filed the claim
petition against the respondents 1 and 2, who are the owner and insurer of the motorcycle bearing registration No. TN22 M0552.
The second respondent Insurance Company in his counter affidavit has submitted that the accident was caused only by the rash and negligent
driving of the unidentified lorry by it''s driver and that it was not caused due to any negligence on the part of the first respondent''s motorcycle rider.
It was submitted that a criminal case has been lodged only against the driver of the unidentified lorry and as such the petitioner has to claim
compensation only from the owner and insurer of the said lorry. It was submitted that the petitioner should prove that the rider of the first
respondent''s motorcycle had a valid driving licence to ride the motorcycle and that it was caused under a policy of insurance through documentary
evidence. It was submitted that the claim was excessive. It was submitted that the complaint regarding the accident had been given only after seven
days from the date of occurrence.
On considering the averments of both sides, the Tribunal had framed three issues namely:
i. Was the accident caused by the rash and negligent driving by the rider of the first respondent''s motorcycle bearing registration No. TN22
M0552 or was it caused by the rash and negligent driving by the driver of the unidentified lorry?
ii. Are the respondents liable to pay compensation to the petitioner? and
iii. What is the quantum of compensation, which the petitioner is entitled to get?
On the claimant''s side four witnesses were examined as P.Ws.1 to 4 and nine documents were marked as Exs. P1 to P9 namely Ex. P1-Copy
of FIR, Ex. P2-Discharge Summary, Ex. P3-Photo with negative, Exs. P4 to P6 Medical Bills series, Ex. P7-Disability Certificate, Ex. P8-X''rays
and Ex. P9-X''ray Report. On the respondent''s side, four witnesses were examined as R.Ws.1 to 4 and three documents were marked as Exs.
R1 to R3 namely Ex. R1-Copy of accident register, Ex. R2-Report dated 14.04.2003 and Ex. R3-Copy of date of case.
P.W.1 the claimant had adduced evidence that on 06.07.2000, at about 05.45 p.m., when he was travelling as the pillion rider in the motorcycle
bearing registration No. TN 22 M0552, ridden by one Raja and when the motorcycle was proceeding from Sriperumbudur towards Chennai and
near Hyundai Company, Irunkattukottai, the lorry coming in the opposite direction had dashed against the motorcycle resulting in his fall from the
vehicle. However, P.W.1 on being summoned for the second time had stated in his chief-examination that one Saravanan had driven the
motorcycle at the time of accident. He deposed that the accident had been caused by the negligence of the said Saravanan, who had talked
continuously to him, while driving the motorcycle and that the lorry had also dashed against one Raja, who was walking on the left side of the road.
He deposed that the lorry did not stop after collusion with the motorcycle and in support of his evidence, he had marked Exs. P1 to P9.
On scrutiny of Ex. P1, it is seen that one Saravanan, the rider of the motorcycle had given the complaint regarding the accident at the Police
Station on 14.07.2000 at 15.00 hours. R.W.1 Dr. Kiresh had adduced evidence that on 06.07.2000, at about 06.40 p.m., when he was working
in the intensive care unit of Ramachandra Medical Hospital, the said Bhaskar and Raja had been admitted by one Babu for treatment. He deposed
that the said Baskar had stated that he had ridden the motorcycle and that Raja was the pillion rider. He deposed that he had given first aid to
Baskar and Raja and in support of his evidence he had marked Exs. R1 copy of the accident register.
R.W.2 Murali, Assistant in the second respondent''s firm had adduced evidence that as per the first information report filed in C.C. No. 377 of
2000, the complainant''s name has been mentioned as Saravanan and that as per the investigation carried out by them only it was found that the
said Saravanan had ridden the motorcycle at the time of accident and in support of his evidence he had marked Ex. R2 the investigation report.
R.W.3 Sugumar, the investigator of the second respondent''s firm had adduced evidence that in the criminal case filed in C.C. No. 377 of 2000,
before the Sriperumbudur Police Station, regarding the accident the lorry involved in the accident had not yet been traced and hence the CD file
was closed and in support of his evidence, he had marked Ex. R3. He deposed that as the lorry involved in the accident had not yet been traced,
the petitioner cannot claim compensation from the respondents.
R.W.4 Muthu, Head Constable at Sriperumbudur Police Station had adduced evidence that on 14.07.2000, one Saravanan had come to the
Station and given the complaint regarding the accident and that the said case was registered as C.C. No. 376 of 2000 under Sections 279 and
338 of I.P.C., and that as the lorry involved in the accident had not been traced, they were unable to file the charge sheet and that it was closed as
R.C. No. 10 of 2000.
P.W.3, Babu, the eye witness of the accident had adduced evidence that on 06.07.2000, at about 05.30 p.m., when he was working near the
main gate of Hyundai Car Company, he had seen two persons on a TVS Suzuki motorcycle coming from Kanchipuram and that the lorry coming
from Chennai had colluded with the motorcycle. He deposed that the petitioner Bhaskar was thrown out of the motorcycle and that one of the
pedestrians walking on the side of the road had also sustained injuries. He deposed that the said Bhaskar became unconscious and both Bhaskar
and the rider of the motorcycle were admitted at Ramachandra Hospital. He deposed that the said Bhaskar had not ridden the motorcycle.
P.W.4 Saravanan had adduced evidence that on 06.07.2000, at about 05.40 p.m., when he was riding the motorcycle bearing registration
No. TN22 M0552 from Sriperumbudur towards Chennai along with Bhaskar as the pillion rider and when the vehicle was near Hyundai
Company, the lorry coming in the opposite direction and driven at a high speed had dashed against the motorcycle due to which the said Bhaskar
was thrown off the vehicle. He deposed that the lorry did not stop after hitting the motorcycle and had also dashed against a pedestrian Ragu, who
was standing at the corner of the road. He further deposed that the Police did not conduct any enquiry with him and he had deposed that due to
fear, he had stated wrongly that the accident had been caused by the lorry driver and admitted that the accident had been caused by his rash and
negligent driving.
The Tribunal, on scrutiny of evidence of P.W.1, P.W.3 and P.W.4 and on scrutiny of evidence of R.W.1 to R.W.4 and on scrutiny of Ex. P1
FIR and on relying on the case reported in Karnataka State Road Transport Corporation Vs. Arun alias Aravind, and on relying on Judgments
reported in New India Assurance Co. and Others Vs. Kheta Ram and Others, and Om Wati and Others Vs. Mohd. Din and Others, held that the
accident had been caused by the rash and negligent driving of the rider of the motorcycle and hence the respondents are liable to pay
compensation to the petitioner.
On scrutiny of Ex. P2 discharge summary, it is seen that the petitioner had received treatment at Ramachandra Hospital from 06.07.2000 to
06.10.2000 for treatment of fracture sustained in his right femur bone, tibia bone and pattulla bone in his right leg and clavicle bone in his left leg
and that a surgical operation was conducted and steel plates with screws were fixed in the fractured area.
P.W.2 Dr. Surendra Kumar had adduced evidence that he had examined the petitioner on 27.11.2003 and also scrutinized his medical
records and on taking X''rays had observed that the petitioner had sustained injuries in the accident on 06.07.2000 and that he had been admitted
at Ramachandra Hospital. He deposed that a second surgical operation was done on the petitioner right leg on 17.10.2000 and that he had
received treatment as an inpatient for two months till 22.12.2000.
He deposed that the fractured bones in his right leg joint and right leg had malunited and that there is no movement on the petitioner''s right leg
joint and that his right leg had been shortened by one inch. He deposed that the disability sustained in the petitioner''s right leg was 80% and that in
his left shoulder was 10%. He deposed that the total disability sustained by the petitioner was 90% and in support of his evidence, he had marked
Exs. P7 and P8.
The Tribunal, on scrutiny of oral and documentary evidence, awarded a sum of Rs. 90,000/- towards disability, Rs. 40,000/- for pain and
suffering, Rs. 67,153/- for medical expenses as per medical bills marked as Exs. P4 to P6. The Tribunal on taking the notional income of the
petitioner as Rs. 3,000/- and on observing that the petitioner would not be able to do any work due to removal of his joint of right leg, adopted a
multiplier of 10 and awarded a compensation of a sum of Rs. 2,40,000/- for loss of income due to disability. R.5,000/- was awarded for nutrition
and transport expenses. In total, the Tribunal awarded a sum of Rs. 4,42,153/- as compensation to the petitioner and directed the second
respondent Insurance Company being the insurer of the first respondent motorcycle to pay a sum of Rs. 4,42,150/- as compensation, to the
petitioner, together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation with costs,
within a period of two months from the date of it''s order.
Not being satisfied with the Award passed by the Tribunal, the claimant has preferred the appeal in C.M.A. No. 584 of 2006.
The learned counsel appearing for the claimant/appellant has contended that the Tribunal failed to consider the evidence of P.Ws.1 and 2 and
failed to note that the claimant had received treatment at Ramachandra Hospital from 06.07.2000 to 06.10.2000 and again taken treatment from
17.10.2000 to 22.12.2000.
It was contended that the Tribunal failed to consider that the claimant was working as a Mason and earning a sum of Rs. 200/- per day, which
he has been completely deprived of due to the injuries sustained in the accident. It was contended that P.W.2 Orthopaedic Surgeon had clearly
deposed that the claimant''s right patella was removed and hence there is no movement of right knee and that due to shortening of right leg and
fracture of left clavicle, the claimant is unable to do any work with his left hand.
It was contended that the award of Rs. 90,000/- towards disability was low and instead of compensation of Rs. 3,00,000/- ought to have
been granted under this head. It was contended that the income of the claimant should have been taken as Rs. 200/- per day instead of Rs. 100/-
and that a multiplier of 16 should have been adopted instead of 10 and an award of Rs. 10,36,800/- should have been passed under the head of
loss of earning power instead of Rs. 2,40,000/- granted by the Tribunal. It was contended that the Tribunal failed to grant an award for loss of
amenities and loss of comfort. It was also contended that the award granted under the head of pain and suffering was on the lower side. Hence, it
was prayed for grant of additional compensation of Rs. 7,57,850/-.
Aggrieved by the Award passed by the Tribunal, the second respondent/Insurance Company has preferred the appeal in C.M.A. No. 2717 of
2005.
The learned counsel appearing for the Insurance Company has contended in his appeal that the Tribunal ought to have dismissed the claim
petition as the impugned accident occurred due to an unknown lorry even as per the complaint given by one Saravanan that was treated as FIR,
marked as Ex. P1 and the police authorities closed the investigation as the lorry could not be traced out. Thus, the claim against the owner and
insurer of the motorcycle ought to have been rejected, as the same was not maintainable due to mis-joinder.
It was contended that in any event, the claimant himself was riding the two wheeler as per the entries in the accident register, the earliest
document issued at Sri Ramachandra Hospital, where the claimant was admitted on the date of impugned accident. As the claimant himself was the
tort feaser, the Tribunal ought to have rejected the claim petition as not maintainable. It was contended that the Tribunal ought to have rejected the
evidence of P.W.3 and P.W.4 as the same was against the statement given to the hospital authorities and to the Police at the earliest point of time.
It was contended that the Tribunal erred in not properly appreciating the evidence of R.W.1 to R.W.4. It was contended that the assessment of
disability at 90% by P.W.2 was excessive considering the nature of injuries sustained by the claimant. It was contended that the award granted
under the head of disability, pain and suffering and loss of earning capacity was excessive and hence it was prayed to set aside the award.
On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the
impugned order of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence, liability and quantum of
compensation. Regarding negligence, it is seen that the rider of motorcycle had admitted in his evidence that he had committed the said accident.
Regarding liability, it is seen that the offending vehicle had been insured with the Insurance Company. The quantum of company compensation is
also reasonable since as per the evidence of the claimant and Doctor, the claimant had undergone treatment for four months at Ramachandra
Hospital, Porur, wherein a surgical operation was conducted and a steel plate was fixed. Besides this, a bone had been removed from his right hip.
Further, it is evident that one more operation has to be performed to remove the steel rod.
As per the Doctor''s evidence, the claimant''s right leg had been shortened by one inch and the Doctor had assessed the disability at 90%.
Therefore, the compensation granted by the Tribunal is an adequate one. However, the multiplier method adopted by the Tribunal for assessment
of loss of earning is improper. Therefore, this Court restructures the compensation as follows:
For disability: Rs. 1,80,000/-
For pain and suffering: Rs. 15,000/-
For nutrition: Rs. 10,000/-
For transport: Rs. 10,000/-
For attender charges: Rs. 10,000/-
For loss of earning during medical treatment period Rs. 15,000/-
For future medical expenses : Rs. 25,000/-
For medical expenses: Rs. 68,000/-
For loss of amenities and loss of comfort: Rs. 1,09,150/-
Accordingly, the quantum of compensation granted by the Tribunal is confirmed.
This Court directs the New India Assurance Company to deposit the entire compensation amount, with interest, within a period of four weeks
from the date of receipt of a copy of this Order, subject to the earlier deposits, if any made by the Insurance Company.
After such deposit has been made, it is open to the claimant to withdraw the entire compensation amount with interest, lying in the credit of
M.C.O.P. No. 465 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court-IV, Poonamallee,
after filing a memo along with a copy of this Order. In the result, the above appeals in C.M.A. No. 584 of 2006 filed by the claimant and C.M.A.
No. 2717 of 2005 filed by the Insurance Company are dismissed and the Judgment and decree dated 28.02.2005, made in M.C.O.P. No. 465 of
2002, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court-IV, Poonamallee is confirmed.
Consequently, connected miscellaneous petitions are closed. There is no order as to costs.