AI Structured Summary
Not yet generated for this judgment
Judgment
P.P.S. Janarthana Raja, J.—These appeals are preferred by the Insurance Company against the judgment and decree made in MCOP Nos. 332 and 333 of 2004 dated 25.11.2005 on the file of the Motor Accidents Claims Tribunal-cumPrincipal Sub Court, Thenkasi.
Background facts in a nutshell are as follows:
Both the claimants, namely Thangavelu and Nagarajan, are injured in a motor traffic accident that took place on 13.06.2004 at about 10.55 p.m. The claimant in CMA No. 590 of 2007 is the rider and the claimant in CMA No. 1458 of 2007 is the pillion rider of the moped bearing Registration No. TN-76-0669. Both of them are father and son. The vehicle was driven in the Tenkasi-Courtallam Main Road. At that time, an auto-rickshaw bearing Registration No. TN-72-X-5955 came from behind in a rash and negligent manner and hit the moped. Due to the said impact, both the claimants sustained grievous injuries all over the body and they were admitted in the hospital. Both the claimants claimed a sum of Rs. 5,00,000/- each, before the Tribunal. The second Respondent in both these appeals, is the owner of the said auto-rickshaw. The auto-rickshaw was insured with the Appellant / Insurance Company, who resisted the claim. On pleadings, the Tribunal framed the following issues:
"1. Whether the accident had occurred due to the rash and negligent driving of the driver of the autorickshaw?
Whether the claimants are entitled to compensation? If so to what amount?"
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 auto-rickshaw and awarded a sum of Rs. 2,00,000/- as compensation in CMA No. 590 of 2007 (MCOP No. 332 of 2004) and a sum of Rs. 2,20,000/- as compensation in CMA No. 1458 of 2007 (MCOP No. 333 of 2007), with interest at 9% p.a. from the date of petition. The details of the compensation are as under:
CMA No. 590 of 2007:
Rupees Loss of income 10,000/- Transport expenses 500/- Extra nourishment 4,500/- Medical bills 3,000/- Loss due to 60% disability 1,20,000/- Pain and suffering 12,000/- Loss of earning power 50,000/- Total... 2,00,000/- CMA No. 1458 of 2007:
Rupees Transport to hospital 500/- Extra nourishment 8,500/ Medical bills 50,000/- Pain and suffering 41,000/- Loss due to 60% disability 1,20,000/- Total... 2,20,000/-
Aggrieved by that award, the Appellant / Insurance Company has filed the present appeals.
Learned Counsel for the Appellant / Insurance Company questioned only the quantum of compensation awarded by the Tribunal and submitted that the compensation awarded by the Tribunal is excessive, exorbitant and without any basis and justification. Hence the order passed by the Tribunal is not in accordance with law and the same has to be set aside.
Learned Counsel for the first Respondent in both these appeals / claimants has submitted that the Tribunal had considered all the materials and evidence available on record and awarded the compensation which is just, fair and reasonable and it is also based on valid materials and evidence. Hence the order passed by 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 claimants, P.W.1 to P.W.3 were examined and documents Exs.P1 to P13 were marked. On the side of the Insurance Company, R.W.1 was examined and documents Ex.R1 was marked.P.W.1 is the claimant in CMA 590/2007. P.W.2 is the claimant in CMA 1458/2007. P.W.3 is the Doctor. R.W.1 is the official of the Insurance Company. Ex.P1 is the copy of F.I.R. Ex.P2 is the copy of Wound Certificate. Ex.P3 is the copy of Motor Vehicle Inspection Report. Ex.P4 is the Medical Certificate. Ex.P5 is the receipt for having taken treatment. Exs.P6, P7, P9 and P10 are the medical bills. Ex.P8 is the copy of Wound Certificate. Ex.P11 is the Discharge Summary. Exs.P12 and P13 are the Disability Certificates. Ex.R1 is the Insurance Policy. 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 auto-rickshaw. 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.
CMA No. 590 of 2007:
The claimant in CMA 590/07 was 63 years at the time of accident. He was examined as P.W.1. In his evidence, he stated that he was doing business and he was earning a sum of Rs. 10,000/- per month. He further stated that only the driver of the auto-rickshaw caused the accident and the driver was also charge-sheeted by Courtallam Police Station in Crime No. 281 of 2004. Due to the accident he sustained the following injuries:
6 A) A fracture in the left hand
D) Lacerated injury over left eye brow 3 x 2
After the accident, he was immediately taken to the Government Headquarters Hospital, Tenkasi and later he was transferred to TVMC Hospital, Palayamkottai and admitted as in-patient there. P.W.3,the Doctor examined the claimant and assessed the disability at 60%. Ex.P12 is the Disability Certificate. Further it is stated that there is a fracture on his left wrist and also there is dislocation of the shoulder and hence, he is unable to do the work as before. Ex.P4 is the Medical Certificate and Ex.P5 is the receipt for having taken treatment. Exs.P6 and P7 are the series of medical bills. After considering the above, the Tribunal has awarded Rs. 500/- towards transport expenses, Rs. 4,500/- towards extra nourishment and another Rs. 3,000/- towards medical bills. After considering the facts and circumstances of the case and the evidence on record, the amounts awarded by the Tribunal at Rs. 500/- towards transport expenses and Rs. 3,000/- towards medical bills are confirmed, and the amount awarded towards extra nourishment is modified to Rs. 6,500/- as against Rs. 4,500/- awarded by the Tribunal. The Tribunal has awarded Rs. 12,000/- towards pain and suffering. After considering the evidence on record, it would be reasonable to award Rs. 15,000/- towards pain and suffering as against Rs. 12,000/- awarded by the Tribunal. The Tribunal has awarded Rs. 10,000/- towards loss of income, Rs. 50,000/- towards loss of earning power and another sum of Rs. 1,20,000/- towards loss due to 60% disability. Learned Counsel for the Appellant vehemently contended that the Tribunal after awarding a sum towards disability, it ought not to have awarded a sum towards loss of earning power. It is also pertinent to note that the disability assessed by P.W.3-the Doctor, was not the Doctor who treated the claimant. There was only a fracture in the left hand and dislocation of shoulder and there is no specific finding given by the Tribunal that 60% disability would affect the earning capacity of the claimant. Normally the Courts award Rs. 1000/- to Rs. 2000/- per percentage of disability. After taking into consideration the oral and documentary evidence, it is reasonable to award Rs. 1500/- per percentage of disability. If Rs. 1500/- is awarded per percentage of disability, the loss due to 60% disability works out to Rs. 90,000/-. Hence the loss due to 60% disability stands modified to Rs. 90,000/-. In view of awarding a sum towards loss due to disability, the amounts awarded towards loss of income at Rs. 10,000/- and towards loss of earning power at Rs. 50,000/- are unwarranted and accordingly the same are deleted. The Tribunal has awarded interest rate at 9% p.a., from the date of petition. Taking into consideration the date of accident, date of award and also the prevailing rate of interest during the relevant time, the rate of interest fixed by the Tribunal at 9% p.a. is very reasonable and hence the same is confirmed. The details of the modified compensation are as under:
Rupees Transport expenses 500/- Extra nourishment 6,500/- Medical bills 3,000/- Loss due to 60% disability 90,000/- Pain and suffering 15,000/- Total... 1,15,000/-
The claimant is entitled to the modified compensation of Rs. 1,15,000/- with interest at 9% p.a. from the date of petition.
It is stated that the Insurance Company has already deposited the entire compensation awarded by the Tribunal. Therefore, the claimant is permitted to withdraw the modified compensation of Rs. 1,15,000/- with interest at 9% p.a. from the date of petition, less the amount if any, already withdrawn, on making proper application. The Insurance Company is also permitted to withdraw the balance amount on making proper application.
CMA No. 1458 of 2007:
The claimant in CMA 1458/07 was 32 years at the time of accident. He was examined as P.W.2. In his evidence, he stated that he was a Pharmacist
and he was earning a sum of Rs. 9,000/- per month. He further stated that only the driver of the auto-rickshaw caused the accident and the driver was charge-sheeted by Courtallam Police Station in Crime No. 281 of 2004. Due to the accident he sustained the following injuries:
A) Multiple fracture in left leg
After the accident, he was immediately taken to the Government Headquarters Hospital, Tenkasi and later he was transferred to TVMC Hospital, Palayamkottai and admitted as in-patient there. P.W.3,the Doctor, in his evidence has stated that the claimant sustained multiple fracture in the left leg, lacerated injuries on both leg knees and also multiple injuries all over the body. He examined the claimant and assessed the disability at 60%. Exs.P9 and P10 are the series of medical bills. After considering the above, the Tribunal has awarded Rs. 50,000/- towards medical bills. It is an actual expenditure and hence the same is confirmed. The Tribunal has awarded Rs. 500/- towards transport to hospital, Rs. 8,500/- towards extra nourishment and another Rs. 41,000/- towards pain and suffering. It would be reasonable to award Rs. 1,500/- towards transport to hospital. The amount awarded towards extra nourishment at Rs. 8,500/- is very reasonable and hence it is confirmed. With regard to the amount awarded towards pain and suffering at Rs. 41,000/-, the learned Counsel for the Appellant, vehemently contended that the amount awarded towards this head is excessive. There is no dispute that the claimant sustained fractures and he was in the hospital and took treatment as in-patient. After considering the same, it would be reasonable to award Rs. 25,000/- towards this head. The Tribunal has also awarded Rs. 1,20,000/- towards loss due to 60% disability. The Tribunal has awarded Rs. 2,000/- per percentage of disability. Normally the Courts award Rs. 1000/- to Rs. 2000/- per percentage of disability. After taking into consideration the oral and documentary evidence, it is reasonable to award Rs. 1500/- per percentage of disability. If Rs. 1500/- is awarded per percentage of disability, the loss due to 60% disability works out to Rs. 90,000/-. Hence the loss due to 60% disability stands modified to Rs. 90,000/-. The Tribunal has awarded interest rate at 9% p.a., from the date of petition. Taking into consideration the date of accident, date of award and also the prevailing rate of interest during the relevant time, the rate of interest fixed by the Tribunal at 9% p.a. is very reasonable and hence the same is confirmed. The details of the modified compensation are as under:
Rupees Transport expenses 1,500/- Extra nourishment 8,500/- Medical bills 50,000/- Pain and suffering 25,000/- Loss due to 60% disability 90,000/- Total... 1,75,000/-
The claimant is entitled to the modified compensation of Rs. 1,75,000/- with interest at 9% p.a. from the date of petition.
It is stated that the Insurance Company has already deposited the entire compensation awarded by the Tribunal. Therefore, the claimant is permitted to withdraw the modified compensation of Rs. 1,75,000/- with interest at 9% p.a. from the date of petition, less the amount if any, already withdrawn, on making proper application. The Insurance Company is also permitted to withdraw the balance amount on making proper application.
With the above modifications, the Civil Miscellaneous Appeals are disposed of. No costs.