United India Insurance Co. Ltd. vs Ayyanar and G. Subramaniyan

C.S. Karnan, J.—The appellant/second respondent has preferred the present appeal against the judgment and decree dated 30.12.2005,

made in M.A.C.T.O.P. No. 212 of 2003, on the file of the Motor Accident Claims Tribunal, Principal Subordinate Court, Villupuram. The short

facts of the case are as follows:- The claimant, had filed a claim petition in M.A.C.T.O.P. No. 212 of 2003, on the file of the Motor Accident

Claims Tribunal, Principal Subordinate Court, Villupuram, claiming compensation of a sum of Rs. 2,00,000/- from the respondents for the injuries

sustained by him in a motor vehicle accident.

It was submitted that on 26.10.2002, at about 05.00 a.m., when the claimant was travelling in the first respondent''s lorry bearing registration

No. TN31 Y4244, as cleaner and when the vehicle was proceeding on Chennai Main Road and near Rajapalayam Cross Road, the driver of the

lorry drove it in a rash and negligent manner and dashed it against a stationary lorry parked on the side of the road. As a result, the claimant

sustained fracture on his left humerus as well as fracture on his 2nd to 5th ribs on his left side. He was initially admitted at Government Hospital

Jipmer and then referred to Government Hospital, Pondicherry. Hence, the claimant had filed the claim petition against the respondents, who are

the owner and insurer of the lorry bearing registration No. TN31 Y4244.

The second respondent Insurance Company, in their counter affidavit, had submitted that the claimant had to prove that the driver of the first

respondent''s lorry had a valid licence and that the lorry was covered under a valid policy of insurance with the second respondent at the time of

accident and also prove that the claimant was employed as a cleaner of the first respondent''s lorry at the time of accident. The averments made in

the claim petition that the accident was caused due to the rash and negligent driving by the first respondent''s lorry driver was also not admitted. It

was also submitted that the claimant had travelled as a gratuitous passenger and as such they were not entitled to pay compensation.

On considering the averments of both sides, the Tribunal had framed three issues for consideration namely:

i. Whether the accident had happened due to the rash and negligent driving by the driver of the first respondent''s lorry bearing registration No.

TN31 Y4244?

ii. Whether the claimant is entitled to get compensation? and

iii. To what other relief is the claimant entitled to get?

On the claimant''s side, two witnesses were examined as P.Ws.1 and 2 and seven documents were marked as Exs.A1 to A7 namely copy of

FIR, copy of M.V.I. report, copy of wound certificate, O.P. Record, copy of insurance policy, permanent disability certificate and X-ray. On the

respondents'' side, no witness was let in and no document was marked.

P.W.1 claimant had adduced evidence which is corroborative of the statements made in the claim petition regarding manner of accident and in

support of his evidence, he had marked Exs.A1 to A5. On scrutiny of Ex.A2, it is seen that the accident was not caused due to any mechanism

failure of the lorry and that the particulars regarding owner, driver and insurer of the lorry had also been confirmed. On scrutiny of Ex.A5, it is seen

that the lorry had been insured with the second respondent Insurance Company at the time of accident.

On scrutiny of Ex.A1, it is seen that the complaint regarding the accident had been filed by the driver of the lorry. The Tribunal, on scrutiny of

evidence of P.W.1 and the other documentary evidence and on observing that no rebuttal evidence had been let in on the respondents'' side to

rebut the claim of P.W.1 regarding the accident, held that the respondents, being the owner and insurer of the lorry, liable to pay compensation to

the claimant.

On scrutiny of Ex.A3 wound certificate, issued at Panruti Government Hospital, it is seen that the claimant had sustained five injuries and that the

1st, 4th and 5th injuries are grievous in nature and the other two injuries are simple in nature. Ex.A4 is the discharge summary issued by Jipmer

Hospital, wherein he had taken follow up treatment.

P.W.2 Dr. Ravindran had adduced evidence that he had examined the claimant and scrutinized his medical records. He certified that the

claimant had sustained 45% disability and in support of his evidence, he had marked Exs.A6 and A7.

As no documentary evidence had been filed to prove the income of the claimant, the Tribunal held that the notional income of the claimant

could only be taken as Rs. 1,600/- per month. The Tribunal, on adopting a multiplier of 17, as was relevant to the age of the claimant, awarded a

sum of Rs. 1,46,880/- as compensation under the head of loss of income due to the disability (1,600 X 12 X 17 X 45/100), Rs. 17,000/- was

granted under the head of pain and suffering due to three grievous injuries and two simple injuries sustained by him. In total, the Tribunal had

awarded a sum of Rs. 1,63,880/- as compensation to the claimant and directed the respondents to pay the award amount, jointly or severally,

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, with costs,

within a period of two months from the date of it''s order.

Aggrieved by the said Award, the second respondent Insurance Company has preferred the present civil miscellaneous appeal.

The learned counsel appearing for the appellant Insurance Company has contended in the appeal that the Tribunal had failed to decide the

issue in respect of alleged rashness and negligence against the driver of the second respondent herein and as such neither the second respondent

nor the appellant Insurance Company is liable to pay compensation. It is also contended that the Tribunal, after having found that the first

respondent herein had not established that he was a cleaner at the time of accident, ought to have treated the said victim as a passenger travelling in

a goods vehicle and as such found that the appellant is not liable to pay compensation.

Further, it is contended that the Tribunal ought to have seen after scrutiny of Ex.A5 that no additional premium was collected from the insured

for covering the risk of the victim i.e., the fist respondent herein and as such the award of compensation against the appellant herein is un-

sustainable in law. It is contended further that the Tribunal ought not to have relied on Ex.A1, lodged by the driver of the lorry, in the absence of

any independent evidence available on record, much less any oral evidence of the driver of the lorry, owned by the second respondent herein.

Further, it is contended that the Tribunal, after having found that the claimant had not produced any documentary evidence to establish his income

ought not to have fixed the income of the claimant at Rs. 1,600/- per month and ought not to have adopted multiplier theory and fixed multiplier of

17 for assessment of compensation. It is also contended that the Tribunal ought to have equated the disability of 45%, certified by P.W.2 with loss

of earning power and as such the award of Rs. 1,46,880/- granted under the head of loss of earning power is not sustainable. It is also contended

that the grant of compensation of Rs. 15,000/- and Rs. 2,000/- by the Tribunal for three grievous injuries and two simple injuries respectively were

erroneous. Hence, it is prayed to set aside or modify the award passed by the Tribunal.

On considering the factual position of the case and arguments advanced by the learned counsel appearing for the appellant and on perusing the

impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence, liability and quantum

of compensation. However, the Tribunal had adopted multiplier method and awarded compensation under the head of disability, which is not

proper in the instant case. Therefore, this Court restructures the compensation as follows:

i. Rs. 90,000/- is awarded towards disability,

ii. Rs. 15,000/- is awarded towards pain and suffering,

iii. Rs. 10,000/- is awarded towards transport expenses,

iv. Rs. 10,000/- is awarded towards attender charges,

v. Rs. 10,000/- is awarded towards nutrition,

vi. Rs. 15,000/- is awarded towards loss of earning during medical treatment period,

vii. Rs. 3,880/- is awarded towards medical expenses, and

viii. Rs. 10,000/- is awarded towards loss of amenities and loss of comfort, since the claimant had sustained fracture of his rib bones, as per

Doctor''s evidence due to two surgical operations conducted by his hand and due to skin grafting performed.

As such, this Court confirms the quantum of compensation awarded by the Tribunal, as it is found to be appropriate in the instant case. The rate of

interest remains unaltered.

This Court has already directed the appellant Insurance Company to deposit a sum of Rs. 1,00,000/- to the credit of M.A.C.T.O.P. No. 212

of 2003, on the file of the Motor Accident Claims Tribunal, Principal Subordinate Court, Villupuram.

Now, this Court directs the appellant Insurance Company to deposit the balance compensation amount, as per this Court''s findings, with

proportionate interest thereon, to the credit of M.A.C.T.O.P. No. 212 of 2003, on the file of the Motor Accident Claims Tribunal, Principal

Subordinate Court, Villupuram, within a period of four weeks from the date of receipt of a copy of this Judgment.

After such a deposit having been made, it is open to the claimant to withdraw the entire award, with proportionate interest thereon, lying in the

credit of M.A.C.T.O.P. No. 212 of 2003, on the file of the Motor Accident Claims Tribunal, Principal Subordinate Court, Villupuram, after filing

a memo along with a copy of this Judgment. In the result, this civil miscellaneous appeal is dismissed and the Judgment and decree dated

30.12.2005, made in M.A.C.T.O.P. No. 212 of 2003, on the file of the Motor Accident Claims Tribunal, Principal Subordinate Court,

Villupuram, is confirmed. Consequently, connected miscellaneous petition is closed. No costs.