The Oriental Insurance Company Limited vs Kuppusami and Singaravelu

P.P.S. Janarthana Raja, J.—The appeal is preferred by the Appellant-Insurance Company against the judgment and decree dated 18.09.2003 made in M.C.O.P. No. 3015 of 1999 on the file of the Motor Accidents Claim Tribunal, Fast Track Court No. II, Additional District Judge, Trichy.

Background facts in a nutshell are as follows:

The injured Kuppusami met with motor traffic accident on 03.12.1998 at about 1.15p.m. The said injured was working as a loadman and travelled along with others in a lorry bearing Registration No. TNT 73 belonging to one Singaravelu, who is the second Respondent herein. The said injured was standing at the backside left overtop of the said lorry. The said lorry was proceeding from South to North direction in the Muthuramalingam Thevar Salai in a rash and negligent manner and also at high speed. Due to the impact, the injured lost his balance and fell down. Due to the same, he sustained fractures and also grievous injuries all over the body. He claimed a sum of Rs. 2,00,000/- as compensation. The said lorry was insured with the Appellant Insurance Company who resisted the claim. On pleadings, the Tribunal framed the following issues:

Who is responsible for the accident occurred on 03.12.1998?

Whether the claimant is entitled for compensation? If so, what is the amount and from whom?

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 lorry and awarded a compensation of Rs. 1,30,000/- with interest at 9% per annum from the date of petition. The details of the compensation are as under:

For loss due to 50% disability and for loss of income Rs. 1,00,000/- For pain and suffering Rs. 20,000/- For treatment and transport charges Rs. 5,000/- For extra nourishment Rs. 5,000/- --------------------- Total Rs. 1,30,000/- ---------------------

Aggrieved by that award, the Appellant-Insurance Company has filed the present appeal.

Learned Counsel appearing for the Appellant-Insurance Company questioned only the quantum of compensation awarded by the Tribunal and contended that the amount awarded by the Tribunal is excessive, exorbitant and also without any basis and justification. He further contended that a sum of Rs. 1,00,000/- towards loss due to disability and for loss of income is excessive. Therefore, the award passed by the Tribunal is not in accordance with law and the same has to be set aside. There is no dispute regarding the amounts awarded towards other heads.

Learned Counsel appearing for the first 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. It is a question of fact and also it is based on valid materials and evidence. Hence the order of the Tribunal is in accordance with law and the same has to be confirmed.

Heard the counsel on either side and perused the materials available on record. On the side of the Respondent-claimant, P.W.1 and P.W.2 were examined and documents Exs.P.1 to P.8 were marked. P.W.1 is the the injured claimant. P.W.2 is Dr. Ilangovan. Ex.P.1 is the Wound Certificate. Ex.P.2 is the notice issued to the second Respondent herein regarding the details of the accident. Ex.P.3 is the reply notice given by the second Respondent. Ex.P.4 is the Insurance Policy. Ex.P.5 is the Driving Licence of the driver of the lorry belonging to the second Respondent. Ex.P.6 is the Disability Certificate. Ex.P.7 is the X-ray. Ex.P.8 are the photographs and negatives. On the side of the Appellant-Insurance Company, R.W.1, Kumaranantham, Senior Assistant in the Insurance Company was examined and documents Exs.R.1 and R.4 were marked. Ex.R.1 is the copy of the Insurance Policy. Ex.R.2 is the letter written to the second Respondent to submit the claim forms. Ex.R.3 is the Acknowledgement Card for the receipt of notice by the second Respondent. Ex.R.4 is the Investigation Report. After considering the 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 lorry. It is a question of fact and also it is based on valid materials and evidence. Hence, the same is confirmed.

The injured claimant was 32 years old at the time of accident. He was working as a loadman in the lorry. In the evidence of P.W.1, it is stated that it was only the driver of the lorry who caused the accident and the driver was charge-sheeted by the Thuvakudi Police Station, Trichyl Immediately after the accident, the injured claimant was admitted in the Government Headquarters Hospital, Trichirappalli. He was treated in the hospital as in-patient from 03.12.1998 to 18.12.1998. Due to the accident, he sustained multiple grievous injuries on the right forehead, left thigh and the femur bone and also the left leg bones, tibia and fibula were fractured and the left leg knee joints were dislocated. P.W.2, the doctor, examined the claimant and determined the disability at 50%. Ex.P.6 is the Disability Certificate. Ex.P.1 is the Wound Certificate. Ex.P.7 is the X-ray. Ex.P.8 are the photographs and negatives. Further in the evidence of the doctor, it is stated that due to the injuries and the shortening of the left leg by 3cm, the injured claimant cannot bend his left leg and also he cannot stand and walk. There is no dispute that the movement of both the legs has also been restricted. After considering the oral and documentary evidence, the Tribunal has awarded a sum of Rs. 1,00,000/- towards loss due to 50% disability and for loss of income. Normally the Courts award a sum of Rs. 1,000/- to Rs. 2,000/- per percentage of disability. After considering the facts and circumstances of the case, it is reasonable to award a sum of Rs. 1,700/- per percentage of disability. If a sum of Rs. 1,700/- is awarded for a percentage of disability, it works out to Rs. 85,000/-(Rs.1,700x50) towards loss due to 50% disability and for loss of income. Therefore, the injured claimant is entitled to a sum of Rs. 85,000/- towards loss due to 50% disability and for loss of income as against a sum of Rs. 1,00,000/- awarded by the Tribunal. The Tribunal has awarded a sum of Rs. 20,000/- towards pain and sufferings, a sum of Rs. 5,000/- towards treatment and transport charges and a sum of Rs. 5,000/-towards extra nourishment. Considering the fact that the injured claimant was in the hospital as in-patient for a period of fifteen days and also considering the nature of injuries, I am of the view that the amounts awarded by the Tribunal towards these heads are very reasonable and hence, the same are confirmed. The Tribunal has also awarded an interest of 9% p.a. from the date of petition. After taking note of the date of accident, and the date of award and also the prevailing rate of interest during the relevant period, the interest rate fixed by the Tribunal as 9%p.a. from the date of petition is very reasonable and hence, the same is confirmed.

The details of the modified compensation as per the above discussion are as under:

For loss due to 50% disability and for loss of income Rs. 85,000/- For pain and suffering Rs. 20,000/- For treatment and transport charges Rs. 5,000/- For extra nourishment Rs. 5,000/- ---------------------- Total Rs. 1,15,000/- ----------------------

The claimant is entitled to the modified compensation of Rs. 1,15,000/- with interest at 9% per annum from the date of petition.

It is stated that the Insurance Company has deposited the entire award amount, as per the order of this Court dated 29.04.2004 and the claimant has also withdrawn 50% of the award amount. Under these circumstances, the claimant is permitted to withdraw the modified compensation of Rs. 1,15,000/- with 9%p.a. interest from the date of petition, less the amount already withdrawn, on making proper application. The Insurance Company is also permitted to withdraw the balance amount on making proper application.

With the above modification, the Civil Miscellaneous Appeal is disposed of. Consequently, connected Miscellaneous Petition is closed. No costs.