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Judgment
P.P.S. Janarthana Raja, J.—The Civil Miscellaneous Appeal is filed against the judgment and decree in M.C.O.P. No. 859 of 2001, dated 15.11.2002 on the file of the Motor Accidents claims Tribunal, II Additional Subordinate Judge, Tirunelveli.
Background facts in a nutshell are as follows:
The claimant was injured in a motor traffic accident. On 08.01.2001, at about 11.00 a.m., the claimant and her friend one Chellammal were standing on the left side of the bus stop after purchased beedi leaves from Melakarumpuliyoothu. They were waiting for the bus to go to native place Pudur. At that time the van belonging to the second respondent bearing Registration No. TN 69 Z 4507 came from West to East on Tenkasi - Tirunelveli road, in a rash and negligent manner and dashed against the claimant. Due to the impact, the claimant/injured sustained multiple injuries. She was taken to the High Ground Hospital at Tirunelveli. She was treated as inpatient there from 31.05.2002 to 29.06.2002.
The claimant claimed a sum of Rs. 3,00,000/- as compensation. The said van was insured with the appellant-Insurance Company, who resisted the claim. On pleading, the Tribunal framed the following issues:
i) Whether the accident had occurred due to the rash and negligent driving of the van driver of the second respondent?
ii) 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 given categorical finding that the accident was occurred only due to the rash and negligent driving of the van driver and awarded a compensation of Rs. 2,22,000/- with interest at the rate of 9% per annum from the date of the claim petition. The details of the compensation amount are as hereunder.
Pain and suffering: Rs. 20,000/- Transport and Nourishment: Rs. 5,000/- Loss of Income: Rs. 1,02,000/- Loss of Happiness of life, Hardship and Mental agony: Rs. 20,000/- Disability of 50%: Rs. 75,000/- --------------- Total: Rs. 2,22,000/- ---------------
Aggrieved by that order, the appellant Insurance Company filed this present appeal.
The learned Counsel appearing for the appellant-Insurance Company questioned only the quantum of the award passed by the Tribunal and vehemently contended that the Award amount passed by the Tribunal is excessive and exorbitant, without basis and justice. Therefore, the award amount passed by the Tribunal is not in accordance with law and the same has to be set aside.
Learned Counsel appearing for the claimant submitted that the Tribunal has considered all the facts and circumstances of the case and also awarded a compensation, which is just fair and reasonable. Therefore, the order passed by the Tribunal is in accordance with law and the same has to be confirmed.
Heard the counsel. The claimant herself was examined. She is P.W.1. P.W.2 is Thiru.Ramaguru, who is Doctor. The claimant marked Exhibits 1 to 10. Ex.1, Copy of First Information Report. Ex.2, Motor Vehicle Inspector''s Report, Ex.3, Wound Certificate of the Claimant, Ex.4, Copy of Rough Sketch, Ex.5, Copy of Observation Mahazer, Ex.6, Judgment Copy, Ex.7, Passbook of the Claimant, Ex.8, Discharge Report, Ex.9, X-ray Report. On behalf of the appellant Insurance Company, no one was examined and no document was marked. After considering the above oral and documentary evidence, the Tribunal has given a categorical finding that the accident had occurred only due to rash and negligent driving of the driver of the van of the second respondent and awarded a compensation. Findings are based on valid materials.
The age of the claimant was 25 years at the time of accident. She was engaged rolling of the beedi leaves for the Beedi manufactures. The claimant P.W.1 in her evidence stated that while she was standing on the left side of the bus stop, the van came from East to West on Tenkasi - Tirunelveli Road, in a rash and negligent manner and dashed against her. Due to the impact of the accident, she sustained multiple injuries. They are as follows:
Contusion punctured would 1/2 x 1/2 cm abrasion 2 cm x 2 cm.
Lacerated wound 10 x 6 cm left arched laterally
Contusion 20 x 15 cm left thigh middle.
Abrasion 5 cm x 4 cm near right earlobile.
Lacerations 8 x 4 cm right.
Abrasion 2 x 2 cm fact right nose.
Abrasion 1/2 x 1/2 cm phillrum.
Abrasion 5 x 4 cm right shoulder.
Abrasion 2 x 1 cm right scepradraincular area.
Abrasion 2 Nos 2 x 1 cm each Right hand dorsum and multiple abrasion in the right hand dorsum.
A Abrasion 2 Nos. 2 x 1 each left dorsum of the head.
Abrasion 2 x 2 cm left forearm inner 3rd right multiple origin abrasion both ankle.
Abrasion 2 cm x 1 cm forehead left.
Abrasion 8 x 6 cm lateral aspect of right thigh.
Fracture upper femur 1/3.
The claimant claimed that she was earning Rs. 300/- per week, but no evidence was produced to substantiate the claim. After the accident, she was admitted in the High Ground Hospital, Tirunelveli and treated as inpatient from 31.05.2002 to 29.06.2002. P.W.2, is Doctor Ramaguru, who examined the claimant/injured. He stated in his evidence that is a fracture of left femur and also the plate was fixed and due to those injuries stated above, her hip movement also very much restricted. Due to the injuries, she is unable to sit, stand, lift and do her work as before. The Doctor assessed the disability at 50%, Ex.3 is the Wound Certificate, Ex.9 is the disability certificate and Ex.10 is the X-ray report. After considering the nature of injuries, the Tribunal correctly awarded a sum of Rs. 20,000/- towards pain and suffering, which is reasonable and therefore the same is confirmed. The Tribunal further awarded a sum of Rs. 5,000/- towards transport and nourishment, which is also reasonable and the same is also confirmed. The claimant is a widow and having two children. Because of the injuries, she is unable to to work and support her family. Her family is depending only on her income. She is unable to sit, stand, lift and do work as before. She produced her pass book also which is marked as Ex.P.7. It also reflects the earning of income from rolling beedi leaves. The Tribunal after considering the facts and circumstances of the case, fixed her monthly income as Rs. 1,000/- and determined the loss of income as follows:
1000 X 17 X 12 = Rs. 2,04,000/- Rs. 2,04,000 X 50/100 = Rs. 1,02,000/=
The Tribunal correctly awarded a sum of Rs. 1,02,000/- towards future earning income. There is no serious dispute regarding the same and hence the same is also confirmed. The Tribunal has also awarded a sum of Rs. 20,000/- toward loss of happiness life, hardship and mental agony. The same is also not disputed by the appellant insurance company and the same is also confirmed.
Further, the Tribunal has also awarded a sum of Rs. 75,000/- towards 50% disability. The learned Counsel appearing for the appellant insurance company vehemently contended that the Tribunal ought not to have awarded the sum of Rs. 75,000/- towards 50% disability, when the Tribunal already awarded a sum of Rs. 1,02,000/- toward future loss of income. He relied on a Full Bench decision of this Court in Cholan Roadways Corporation Limited Rep. by its Managing Director, Kumbaknam - 612 001 v. Ahmed thambi and 6 Ors. (Minors 3 to 6 are represented by their Mother and natural Guardian Mrs. Mohaideen Fathima second respondent herein) reported in 2006-3 L.W.1025, wherein it was held as follows in paragraph No. 19.
In order to avoid any future confusion and to bring more clarity and transparency in the award of damages, it is necessary that the tribunal, while awarding damages, should itemise the award under each of the head namely, pecuniary losses and non-pecuniary losses. 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. The reference is answered accordingly. C.M.A. No. 231/94 be placed before the Single Judge for final disposal in the light of out answer to the reference.
In view of the above judgment, the Tribunal ought not to have awarded a sum of Rs. 75,000/- towards 50% disability when the Tribunal already awarded Rs. 1,02,000/- towards loss of earning capacity and also other pecuniary benefits. Hence, I delete the award of s sum of Rs. 75,000/- towards 50% disability. The modified compensation is as under:
Pain and suffering: Rs. 20,000/- Transport and Nourishment: Rs. 5,000/- Loss of Income: Rs. 1,02,000/- Loss of Happiness of life, Hardship and Mental agony: Rs. 20,000/- -------------- Total: Rs. 1,47,000/- --------------
The Tribunal also awarded interest of 9% per annum which is very reasonable. Taking into consideration of the fact and circumstances of the case prevailing the rate of interest at the time of accident and inflation, the award of 9% interest is reasonable. The claimant is entitled to the modified compensation of Rs. 1,47,000-/- with 9% per annum from the date of the claim petition.
It is also stated by the learned Counsel for the appellant insurance corporation that the appellant insurance corporation had deposited the entire award amount as per this Court order dated 02.07.2003 and the claimant also had withdrawn a sum of Rs. 50,000/- from the deposited amount. Hence, now the claimant is entitled to the modified amount of Rs. 1,47,000/- with the interest of 9% per annum less the amount already withdrawn and he is permitted to withdraw the same 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.