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Judgment
P.P.S. Janarthana Raja, J.—The appeal is preferred by the Appellant-Insurance company against the award dated 25.10.2006 made in MCOP No. 177 of 2004 by the Motor Accident Claims Tribunal (Principal Subordinate Court), Mayiladuthurai.
Background facts in a nutshell are as follows:
The first Respondent/claimant met with motor vehicle accident that took place on 24.07.2004 at about 11.30 hours. While the said injured was proceeding in his Suzuki motor cycle towards Kuthalam-Mathimangalam Main Road, a Fiat car bearing registration No. TCK 6319 belonging to the second Respondent, came in a rash and negligent manner and hit against the first Respondent/claimant. Due to the said impact, he sustained grievous injuries. The claimant was immediately given first aid by Dr. A.K.D. Sundaram, Kuthalam and admitted in Arunpriya Hospital, Mayiladuthurai as in patient. He claimed a sum of Rs. 2,00,000/-as compensation before the Tribunal. The Appellant-Insurance company resisted the claim. On pleadings the Tribunal framed the following issues:
In whose negligence, the accident occurred?
Whether the claimant is entitled to any compensation? If so, from whom?
Whether the Appellant-Insurance company is not liable to pay compensation?
After considering the oral and documentary evidence, the Tribunal held that the accident occurred due to rash and negligent driving of the driver of the car, the second respondent herein, and awarded a compensation of Rs. 3,32,000/- with interest at 7.5% per annum and the details of the same are as under:
Pain and sufferings Rs. 50,000/- Loss due to 40% disability Rs. 40,000/- Medical expenses Rs. 1,17,000/- Loss of income Rs. 1,00,000/- Loss of future income Rs. 25,000/- Total... Rs. 3,32,000/-
Aggrieved by that award, the Appellant-Insurance company has filed the present appeal.
The learned Counsel appearing for the Appellant-Insurance company submitted that the Appellant is not liable to pay compensation since the offending vehicle does not hold the fitness certificate. He further contended that the amount awarded by the Tribunal is excessive, exorbitant, without basis and justification. He also submitted that when the Tribunal has awarded a sum of Rs. 40,000/-towards loss due to disability, it ought not to have awarded further sum of Rs. 1,00,000/-towards loss of income and Rs. 25,000/-towards loss of future income and hence, the same has to be set aside. Therefore, the award passed by the Tribunal is not in accordance with law and the same has to be set aside.
The learned Counsel appearing for the claimants submitted that the Tribunal has considered all the relevant materials and evidence on record and awarded a just, fair and reasonable compensation, which is based on valid evidence. Hence the order of the Tribunal is in accordance with law and the same has to be confirmed.
Heard the learned Counsel on either side and perused the materials available on record. On the side of the claimant, P. Ws.1 and 2 were examined and documents Exs.P1 to P23 were marked. On the side of the Appellant-Insurance company Rws.1 and 2 were examined and Exs.R1 and R2 were marked to support their claim. P.W.1 is the claimant. PW2 is the Doctor Rajasekaran. Ex.P1 is the certified copy of the First Information Report. Ex.P2 is the copy of the Motor Vehicle Inspector''s Report relating to fiat car. Ex.P3 is the copy of the charge sheet. Ex.P4 is the copy of the wound certificate issued by Arun Priya Hospital. Ex.P5 is the judgment made in STC No. 3800 of 2004 on the file of Judicial Magistrate No. I, Mayiladuthurai. Ex.P6 is the copy of the Insurance policy. Ex.P7 is the copy of the driving licence. Exs.P8 to P11 are the Discharge summaries issued by the AKN Nursing Home, Chennai. Ex.P12 are the chits relating to blood test and other tests. Ex.P13 are the medical bills. Exs.P14 to P20 are the X-rays. Ex.P21 is the disability certificate. Ex.P22 is the xerox copy of the identity card relating to the payment of income tax by the claimant. Ex.P23 is the filled form u/s 12(1)(b)(3) showing income of the claimant for the assessment year 2002-2003. One Thiagarajan was examined as RW1 and one Sivakumar was examined as RW2. Ex.R1 is the Inspection report relating to the fiat car. Ex.R2 is the xerox copy of the Motor Vehicle Inspector''s Report relating to TVS Suzuki. After considering the oral and documentary evidence, the Tribunal had given a categorical finding that the accident occurred only due to rash and negligent driving of the driver of the fiat car, the second Respondent herein. No condition has been imposed in the statute that merely on the ground that the offending vehicle does not possess or holding fitness certificate, the Insurance company is not liable to pay compensation. It is also not brought to the notice of this Court the relevant statutory provision or any other material evidence to show that the Insurance company can take the defence that they are not liable to pay compensation and hence, the Tribunal is correct in coming to the conclusion that the Appellant-Insurance company alone is liable to pay compensation to the claimant. It is a question of fact and the finding is based on valid materials and the same is confirmed.
At the time of accident, the claimant was aged about 52 years. He is an Electrical Contractor and he claimed that he was earning Rs. 8000/-per month. PW1, the claimant, deposed in his evidence that the accident occurred due to rash and negligent driving of the driver of the fiat car, the second Respondent herein, and he was also charged sheeted by Kutralam Police Station in Crime No. 379 of 2004 under Sections 279 and 337 IPC. He further stated that due to the accident he had sustained fracture in his right leg and thigh and also sustained injuries in his face, right hand and nose. Immediately he was admitted in AKD Sundaram Hospital for first aid treatment and later he was admitted as inpatient in Arunpriya Hospital, Mayiladuthurai from 24.07.2004 to 09.08.2004. He undergone surgery on 24.07.2004 and rod has been fixed. He further deposed that again he took treatment at Isabel Hospital, Chennai for a period of four days and later at AKN Hospital from 21.02.2005 to 05.03.2005. PW2, Dr. Rajasekaran, who examined the claimant, has deposed that he examined the claimant and as there was malunion of bones in his right leg, he recommended him to take treatment at Chennai, where he undergone five surgeries and he cannot walk without stick and he cannot fold his right leg and while comparing with the left leg, there was shortage of 2 1/2 c.m and assessed the disability at 50% and issued Ex.P21-disability certificate. He further deposed that due to the injuries, he cannot sit on the floor conveniently. Though he issued disability certificate, determining the disability at 50%, from that 10% was determined towards pain and suffering and remaining 40% towards permanent disability. Therefore, the Tribunal awarded a sum of Rs. 40,000/-towards permanent disability. Normally the Courts award Rs. 1,000/-to Rs. 2000/-per percentage of disability. In the present case, there was a fracture on his right thigh and due to which, the claimant was unable to do his work as before and the disability affects his earning capacity. Considering the injuries sustained by the claimant, it would be reasonable to award Rs. 2000/-per percentage of disability. If Rs. 2000/-is awarded per percentage, for 40% the award works out to Rs. 80,000/-under this head as against Rs. 40,000/-awarded by the Tribunal. Further the Tribunal has awarded Rs. 1,00,000/-towards loss of income due to disability and Rs. 25,000/-towards loss of earning power. The learned Counsel appearing for the Appellant-Insurance company submitted that when the Tribunal awarded compensation towards permanent disability, it ought not to have awarded further sum of Rs. 1,00,000/-towards loss of income and Rs. 25,000/-towards loss of earning power. A Full Bench of this Court in the case of Cholan Roadways v. Ahmed Thambi, 2006 (4) CTC 433, held that whenever compensation towards permanent disability is awarded, further amount towards loss of earning power should not be awarded. Applying the principles enunciated in the above Full Bench decision of this Court, the amount of Rs. 1,00,000/-awarded by the Tribunal towards loss of income and Rs. 25,000/-towards loss of earning power are not in accordance with law and therefore, they are set aside. The Tribunal has not awarded any sum towards loss of income during treatment period. There is no dispute that the claimant after taking treatment from various hospitals, took rest. Therefore, it would be reasonable to award Rs. 20,000/-towards loss of income during treatment period. The Tribunal has awarded Rs. 50,000/-towards pain and suffering. Considering the injuries sustained and fracture in his right thigh and the claimant took treatment in various hospitals, the amount awarded by the Tribunal under this head is very reasonable and the same is confirmed. The Tribunal has awarded a sum of Rs. 1,17,000/-towards medical expenses. It is an actual expenditure incurred by the claimant. Hence, the amount awarded by the Tribunal under this head is very reasonable and the same is confirmed. The Tribunal has not awarded any amount towards transport charges and loss of amenities. As the claimant sustained fracture in his right thigh, he would have incurred expenditure towards transport. Therefore, it would be reasonable to award a sum of Rs. 8000/-towards transport expenses and loss of amenities. The Tribunal has awarded interest at 7.5% p.a from the date of petition. The accident occurred on 24.07.2004. Keeping in view the prevailing rate of interest at the relevant time and the date of award, the rate of interest awarded by the Tribunal is confirmed. The details of modified compensation as per the above discussion are as under:
40% Permanent disability Rs. 80,000/- Pain and sufferings Rs. 50,000/- Transport charges and Loss of amenities Rs. 8,000/- Loss of income during treatment period Rs. 20,000/- Medical expenses Rs. 1,17,000/- Total... Rs. 2,75,000/-
Therefore, the claimant is entitled to the modified compensation of Rs. 2,75,000/-as against the compensation of Rs. 3,32,000/-awarded by the Tribunal.
The learned Counsel appearing for the Appellant-Insurance company has submitted that already entire award amount with interest has been deposited as per the order of this Court dated 01.10.2009 and the claimant was also permitted to withdraw 50% of the deposited amount. In such circumstance, the claimant is permitted to withdraw the modified award amount of Rs. 2,75,000/-with interest at 7.5% p.a. from the date of petition, less the amount already withdrawn, on making proper application. The Appellant-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. No costs. Consequently, connected miscellaneous petition is closed.