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Judgment
P.P.S. Janarthana Raja, J.—The Civil Miscellaneous Appeals are filed by the Insurance Company against the Award and Decree made in
MCOP Nos.670 of 2004 and 687 of 2004 dated 13.07.2006 on the file of the Motor Accidents Claims Tribunal (ADJ) at Dharmapuri.
Background facts in a nutshell are as follows:
On 01.11.2003 at about 3.00 p.m., one Chinnaraj was riding the TVS-50 moped, along with one Ganesan, who was the pillion rider, in the
Papparapatty to Palacode Main Road. When the moped was nearing Thottalampatty, a bus bearing Registration No. TN-29-H-4455, belonging
to one Veeramani, the second respondent herein, came from the opposite direction at great speed in a rash and negligent manner, dashed against
the moped. Due to the accident, both the rider as well as the pillion rider fell down and sustained grievous injuries. Both of them were admitted in
the Government Headquarters Hospital, Dharmapuri. The claimants claimed a compensation of Rs. 13,20,000/- each but restricted their claim to
Rs. 7,00,000/- each in MCOP No. 670 of 2004 (CMA No. 3139 of 2007) and MCOP No. 687 of 2004 (CMA No. 3140 of 2007)
respectively. The appellant / Insurance Company resisted the claims. On pleadings, the Tribunal framed the following issues:
a) Whether the accident had occurred due to the rash and negligent driving of the bus driver or not?
b) Whether the claimants are entitled to get any compensation or not? 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 bus driver and awarded a compensation of Rs. 1,65,000/- with interest at 7.5% p.a. from the date of petition in respect of MCOP No. 670 of
2004 (CMA No. 3139 of 2007) and Rs. 1,33,000/- with interest at 7.5% p.a. from the date of petition in MCOP No. 687 of 2004 (CMA No.
3140 of 2007). The details of the compensation awarded by the Tribunal in both these appeals are as under:
MCOP No. 670 of 2004 (CMA No. 3139 of 2007):
Rupees
Transport expenses 5,000/-
Nourishment 5,000/-
Pain and suffering 20,000/-
Disability 45,000/-
Loss of future income 70,000/-
Medical expenses 20,000/-
----------
Total.... 1,65,000/-
==========
MCOP No. 687 of 2004 (CMA No. 3140 of 2007):
Rupees
Transport expenses 1,000/-
Nourishment 2,000/-
Pain and suffering 20,000/-
Disability 40,000/-
Loss of future income 70,000/-
----------
Total.... 1,33,000/-
==========
Aggrieved by the awards, the Insurance Company has filed the present appeals.
Learned Counsel appearing for the appellant / Insurance Company questioned only the quantum of compensation awarded by the Tribunal and
stated that it is excessive and exorbitant, without basis and justification, and that therefore, the common order passed by the Tribunal is not in
accordance with law and the same has to be set aside.
Learned Counsel appearing for the claimants submitted that the Tribunal had considered all the relevant materials and evidence on record and
came to the correct conclusion and awarded a just, fair and reasonable compensation in both these appeals. Hence the common order passed by
the Tribunal is in accordance with law.
Heard the counsel. On the side of the claimants, witnesses P.W.1 to P.W.3 were examined and documents Ex.P1 to Ex.P12 were marked. On
the side of the Insurance Company, one witness were examined as R.W.1, who is the owner of the bus and no documents were marked. P.W.1 is
the claimant in CMA No. 3139 of 2007. P.W.2 is the claimant in CMA No. 3140 of 2007. P.W.3 is the Doctor. The following are the details of
exhibits marked on behalf of the claimants:
Ex.P1-Copy of F.I.R.
Ex.P2-Wound Certificate given to Chinnaraj
Ex.P3-Copy of Insurance Policy
Ex.P4-Series of medical bills
Ex.P5-Medical prescriptions given by St.John''s Hospital to Chinnaraj
Ex.P6-Discharge Summary given by St.John''s Hospital to Chinnaraj
Ex.P7-Physiotherapy bills
Ex.P8-Wound Certificate given to Ganesan
Ex.P9-Disability Certificate given to Chinnaraj
Ex.P10-X-ray
Ex.P11-Disability Certificate given to Ganesan
Ex.P12-X-ray
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 bus driver and awarded a compensation of Rs. 1,65,000/- with interest at 7.5% p.a. from the date of petition
in respect of MCOP No. 670 of 2004 (CMA No. 3139 of 2007) and Rs. 1,33,000/- with interest at 7.5% p.a. from the date of petition in
MCOP No. 687 of 2004 (CMA No. 3140 of 2007). The findings of the Tribunal are based on valid materials and evidence.
MCOP No. 670 of 2004 (CMA No. 3139 of 2007):
The claimant was 40 years old at the time of accident. He is a building mason. He claimed that he was earning Rs. 6,000/- per month. Due to the
accident, he sustained the following injuries:
a) Fracture of right leg femur and fracture of both bones of the right leg.
b) Injury to right leg knee.
c) Injury to right leg foot.
d) Multiple injuries all over the body.
After the accident, he took treatment in the Government Headquarters Hospital, Dharmapuri as in-patient from 01.11.2003 to 17.11.2003 and
later he was treated at St.John''s Medical College / Hospital, Bangalore as out-patient. The Tribunal has awarded a sum of Rs. 5,000/- towards
transport expenses and Rs. 5,000/- towards extra nourishment. After taking into consideration the facts and circumstances of the case, I feel that
the amounts awarded by the Tribunal under these heads are reasonable and hence they are confirmed. The Tribunal has awarded a sum of Rs.
20,000/- towards pain and suffering. P.W.3 is the Doctor, who examined the claimant and has given Wound Certificate-Ex.P2. Ex.P6 is the
Discharge Summary given by St.John''s Hospital to the claimant. After taking into consideration of these evidence, the Tribunal has correctly
awarded a sum of Rs. 20,000/- towards pain and suffering and also it is very reasonable. Hence it is confirmed. The Tribunal has awarded a sum
of Rs. 45,000/- towards disability. Ex.P9 is the Disability Certificate given by the Doctor, P.W.3. He also certified that the claimant suffers 45%
disability. But the Tribunal has awarded only a sum of Rs. 45,000/- towards disability. After taking into consideration the nature of injuries stated
above and also Ex.P9-Disability Certificate, I feel that it would be appropriate and reasonable to award Rs. 2,000/- per percentage of disability.
Accordingly, the amount towards 45% disability works out to Rs. 90,000/-. Hence the amount awarded by the Tribunal towards disability at Rs.
45,000/- is modified to Rs. 90,000/-. The Tribunal has awarded a sum of Rs. 70,000/- towards loss of future income. A Full Bench decision of
this Court in the case of Cholan Roadways Corporation Ltd. Vs. Ahmed Thambi and Others, , held as follows:
In the non-pecuniary losses the tribunal shall consider a) pain and suffering, b) loss of amenity, c) loss of expectation of life, hardship, mental stress,
etc (d) loss of prospect of marriage and under the head pecuniary losses, the tribunal shall consider loss of earning capacity and loss of future
earnings as one component apart from medical and other expenses and loss of earning, if any from the date of accident till the date of trial. When
loss of earning capacity is compensated as also the non-pecuniary losses under (a) to (d), permanent disability need not be separately itemised.
In view of the enhancement now made towards disability and also in view of the Full Bench decision of this Court, cited supra, the amount
awarded towards loss of future income is unwarranted. Accordingly, the amount awarded by the Tribunal at Rs. 70,000/- towards loss of future
income is set aside. The Tribunal has awarded a sum of Rs. 20,000/- towards medical expenses. It is argued by the counsel appearing for the
Insurance Company that the amount awarded by the Tribunal at Rs. 20,000/- towards medical expenses is without basis and the same is very
excessive. Out of the total amount of Rs. 20,000/- towards medical expenses, Rs. 13,000/- is based on Ex.P7-Physiotherapy Bills. The Tribunal
has not discussed anything about the balance amount of Rs. 7,000/- and also there is no materials or evidence available on record for the same.
After taking into consideration the series of medical bills marked as Ex.P4, I feel that it would be appropriate to award Rs. 4,500/- towards
medical bills. Accordingly, the amount towards medical expenses work out to Rs. 17,500/- (Rs.13,000/- + Rs. 4,500/-). Accordingly the amount
awarded by the Tribunal towards medical expenses at Rs. 20,000/- is modified to Rs. 17,500/-. The details of the modified compensation are as
under:
Rupees
Transport expenses 5,000/-
Nourishment 5,000/-
Pain and suffering 20,000/-
Disability 90,000/-
Medical expenses 17,500/-
----------
Total.... 1,37,500/-
==========
Therefore, the claimant is entitled to the modified compensation of Rs. 1,37,500/- as against the compensation of Rs. 1,65,000/- awarded by the
Tribunal. The interest rate awarded by the Tribunal at 7.5% p.a. from the date of petition is very reasonable and hence it is confirmed.
MCOP No. 687 of 2004 (CMA No. 3140 of 2007):
The claimant was 19 years old at the time of accident. He is a building mason. He claimed that he was earning Rs. 6,000/- per month. Due to the
accident, he sustained the following injuries:
a) Fracture of right leg thigh.
b) Fracture of right leg both bones below knee.
c) Grievous injury to hip.
d) Injury to right shoulder.
e) Injury to head.
f) Multiple injuries all over the body.
After the accident, he took treatment in the Government Headquarters Hospital, Dharmapuri as in-patient from 01.11.2003 to 15.11.2003 and
later he was treated at a private hospital in Dharmapuri and at Bangalore. The Tribunal has awarded a sum of Rs. 1,000/- towards transport
expenses and Rs. 2,000/- towards nourishment, which are very low and meagre. It would be appropriate to award a sum of Rs. 3,000/- towards
transport expenses and Rs. 5,000/- towards nourishment. Accordingly the amounts awarded by the Tribunal at Rs. 1,000/- and Rs. 2,000/-
towards transport expenses nourishment are modified to Rs. 3,000/- and Rs. 5,000/- respectively. The Tribunal has awarded a sum of Rs.
20,000/- towards pain and suffering. P.W.3 is the Doctor, who examined the claimant and has given Wound Certificate-Ex.P8. After taking into
consideration of the same, the Tribunal has correctly awarded a sum of Rs. 20,000/- towards pain and suffering and also it is very reasonable.
Hence it is confirmed. The Tribunal has awarded a sum of Rs. 40,000/- towards disability. Ex.P11 is the Disability Certificate given by the Doctor,
P.W.3. He also certified that the claimant suffers 40% disability. But the Tribunal has awarded only a sum of Rs. 40,000/- towards disability. After
taking into consideration the nature of injuries stated above and also Ex.P11-Disability Certificate, I feel that it would be appropriate and
reasonable to award Rs. 2,000/- per percentage of disability. Accordingly, the amount towards 40% disability works out to Rs. 80,000/-. Hence
the amount awarded by the Tribunal towards disability at Rs. 40,000/- is modified to Rs. 80,000/-. The Tribunal has awarded a sum of Rs.
70,000/- towards loss of future income. In view of the enhancement now made towards disability and also in view of the Full Bench decision of
this Court, cited supra, the amount awarded towards loss of future income is unwarranted. Accordingly, the amount awarded by the Tribunal at
Rs. 70,000/- towards loss of future income is set aside. The details of the modified compensation are as under:
Rupees
Transport expenses 3,000/-
Nourishment 5,000/-
Pain and suffering 20,000/-
Disability 80,000/-
----------
Total.... 1,08,000/-
==========
Therefore, the claimant is entitled to the modified compensation of Rs. 1,08,000/- as against the compensation of Rs. 1,33,000/- awarded by the
Tribunal. The interest rate awarded by the Tribunal at 7.5% p.a. from the date of petition is very reasonable and hence it is confirmed.
In respect of MCOP No. 670 of 2004 (CMA No. 3139 of 2007), it is stated that the Insurance Company has already deposited the entire
amount awarded by the Tribunal. Hence the claimant in CMA No. 3139 of 2007 is permitted to withdraw a sum of Rs. 1,37,500/- with interest at
7.5% p.a. from the date of petition. The Insurance Company is also permitted to withdraw the balance amount, on making proper application.
In respect of MCOP No. 687 of 2004 (CMA No. 3140 of 2007), it is stated that the Insurance Company has deposited only Rs. 25,000/-.
Hence the Insurance Company is directed to deposit the modified amount of Rs. 1,08,000/- with 7.5% interest p.a. from the date of petition, after
adjusting the amount already deposited, within a period of six weeks from the date of receipt of a copy of this order. On such deposit, the claimant
in CMA No. 3140 of 2007 is permitted to withdraw the same.
The Civil Miscellaneous Appeals are disposed of with the above modification. Consequently, M.P. Nos.2 of 2007 and 2 of 2007 in CMA
Nos.3139 of 2007 and 3140 of 2007 are closed. No costs.