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Judgment
C.S. Karnan, J.—The appellant/second respondent has preferred the present appeal against the judgment and decree dated 27.08.2008,
made in M.C.O.P. No. 2702 of 2006, on the file of the Motor Accident Claims Tribunal, Small Causes Court No. V, Chennai. The short facts of
the case are as follows:-
The claimant, had filed a claim petition in M.C.O.P. No. 2702 of 2006, on the file of the Motor Accident Claims Tribunal, Small Causes Court
No. V, Chennai, claiming compensation of a sum of Rs. 4,00,000/- from the respondents for the injuries sustained by her in a motor vehicle
accident.
It was submitted that on 08.06.2006, at about 15.30 hours, when the claimant and her minor son namely S. Magesh, were proceeding in a
private Auto bearing registration No. TN09 D8332, on Anna Main Road, K.K. Nagar, from west to east and when the Auto was near ESI
Hospital, the driver of the Auto drove it in a rash and negligent manner and dashed it against a Van bearing registration No. TN02 C9709, which
was coming in the opposite direction and turned towards north at Kamarajar Salai. As a result, both the claimant and her minor son sustained
grievous injuries and were admitted at Government General Hospital. Hence, the claimant had filed the claim petition against the respondents, who
are the owner and insurer of the Auto bearing registration No. TN09 D8332.
The second respondent Insurance Company, in their counter affidavit, had submitted that the driver of the Auto drove it along the Anna Main
Road in a slow and cautious manner and that the Van bearing registration No. TN02 C9709, coming in the opposite direction, was suddenly
turned towards the right side and came in the way of the auto. On seeing the same, the driver of the Auto suddenly applied brakes, but inspite of it,
the Van had dashed against the Auto and in the process, the passengers of the Auto sustained injuries. Further, it was submitted that the accident
was caused only by the negligence of the van driver. It was also submitted that the claim was bad for non-joinder of the owner and insurer of the
Van as necessary parties. The averments made in the claim petition regarding age, occupation, income, nature of injuries, period of treatment and
disability were also not admitted. The averments made in the claim petition that the offending vehicle was insured with their Company and that the
driver had availed driving licence at the time of accident were also not admitted. Further, it was submitted that the claim was excessive.
On considering the averments of both sides, the Tribunal had framed four issues for consideration namely:
i. Whether the accident had happened due to the rash and negligent driving of the driver of the private Auto rickshaw bearing registration No.
TN02 J3975?
ii. Whether the respondents are liable to pay the compensation?
iii. Whether the claimant is entitled to get compensation? and
iv. To what other reliefs?
In the same accident, another claim petition had been filed by the minor S. Magesh, in M.C.O.P. No. 2703 of 2006, claiming compensation
from the same respondents for the injuries sustained by him. Based on a memo filed by the counsels for their respective claimants, a joint trial was
conducted and a common evidence was recorded. The claimants in M.C.O.P. Nos. 2702 & 2703 of 2006 were examined as P.Ws. 1 and 2
respectively and one Dr. Thiagarajan was examined as P.W. 3 and sixteen documents were marked as Exs. P1 to P16 namely discharge
summaries, CT scan reports, OP chits, prescriptions, medical bills, copy of FIR, copy of rough sketch, treatment slip, disability certificates and
X''rays. On the respondents'' side, no witness was let in and no document was marked.
P.W. 1 had adduced evidence which is corroborative of the statements made by her in the claim petition regarding manner of accident and in
support of her evidence, she had marked Exs. P1 to P16. P.W. 2 had also adduced evidence, which is on similar lines to the evidence of P.W. 1
regarding manner of accident. The Tribunal, on scrutiny of evidence of P.Ws. 1 and 2 and on scrutiny of Exs. P8 and P9 namely FIR and rough
sketch respectively and on observing that the respondents had not let in any evidence to rebut the claim of P.Ws. 1 and 2 regarding manner of
accident, held that the accident had been caused by the rash and negligent driving on the part of the driver of the Auto and hence held that the
respondent, being the owner and insurer, jointly and severally liable to pay compensation to the claimants.
P.W. 1 had further adduced evidence that due to the accident, she had sustained fracture of right mandible, fracture of intra orbital bone, para
symphysis and fracture of right zygoma and in support of her evidence, she had marked Exs. P1, P2, P5 and P6. On scrutiny of Ex. P1, it is seen
that the claimant had taken treatment at Government General Hospital from 08.06.2006 to 27.06.2006. On scrutiny of Ex. P2, it is seen that she
had again taken treatment at the above hospital from 21.08.2006 to 28.08.2006. As no documentary evidence had been marked to show that the
claimant was a Cloth Merchant and earning Rs. 6,000/- per month, the Tribunal held that the notional income of the claimant could only be taken
as Rs. 4,000/- per month.
P.W. 3 Doctor had spoken on similar lines as per P.W. 1 regarding injuries sustained and treatment taken. He certified that the claimant had
sustained 51% disability due to the accident. The Tribunal, on scrutiny of oral and documentary evidence, awarded a sum of Rs. 40,000/- under
the head of loss of income for ten months during medical treatment and convalescence period, Rs. 5,000/- was awarded for transport expenses,
Rs. 20,000/- was awarded for nutrition, Rs. 1,000/- was awarded for damage to cloths and articles, Rs. 10,000/- was awarded for attender
charges, Rs. 3,000/- was awarded for medical expenses as per medical bills marked as Ex. P7, Rs. 25,000/- was awarded under the head of
mental strain, Rs. 25,000/- was awarded to her family members under the head of mental strain and loss of their income while attending the
claimant, Rs. 30,000/- was awarded for pain and suffering and Rs. 51,000/- was awarded under the head of disability. In total, the Tribunal had
awarded a sum of Rs. 2,10,000/- 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 one month 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 failed to note that the
insured vehicle in question is a Private Vehicle and that the policy did not cover liability to gratuitous passengers. Further, it is contended that the
Tribunal failed to note that the owner of the vehicle remained ex parte in the proceedings despite summons served through Court and ought to have
drawn adverse inference as against the second respondent/owner of the Auto. It is also contended that the Tribunal failed to note that no additional
premium had been paid to cover the risk of gratuitous passengers and as such the injured cannot be made answerable. It is contended further that
the assessment of disability of P.W. 3 Doctor was excessive and as such the grant of Rs. 51,000/- towards disability was excessive. Further, it is
contended that the award of Rs. 40,000/- granted for loss of income and for nutritional and transport and pain and suffering were excessive and
without any basis. It is also contended that the Tribunal, after granting Rs. 30,000/- for pain and suffering, erred in granting Rs. 25,000/- towards
mental stress. It is contended further that the award of Rs. 25,000/- granted to family members of claimant under the head of mental stress is also
not sustainable. Further, it is contended that as the claimant was an authorised passenger, the Tribunal should have fixed the liability on the owner
of the vehicle/second respondent herein and exonerated the appellant herein from any liability. It is also contended that the award was excessive
and hence it is prayed to set aside the award passed by the Tribunal.
The learned counsel appearing for the claimant has submitted that the claimant had sustained multiple bone fracture injuries on her right
mandible and right zygoma. The Doctor had certified that she had sustained 51% disability and she had been hospitalized for about 20 days as an
inpatient. Further, the FIR had been registered against the driver of the auto. Therefore, the Tribunal had decided the quantum of compensation,
negligence and liability in an appropriate manner.
On considering the factual position of the case and arguments advanced by the learned counsels on either side and on perusing the impugned
award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence and liability. However, the
quantum of compensation is on the higher side. Therefore, this Court reassesses the compensation as follows:
i. Rs. 51,000/- 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. 10,000/- is awarded towards loss of earning during medical treatment period,
vii. Rs. 3,000/- is awarded towards medical expenses, and
viii. Rs. 42,000/- is awarded towards loss of amenities, loss of comfort.
In total, this Court awards a sum of Rs. 1,51,000/- as compensation to the claimant, 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 the entire award amount with interest thereon, to the credit of
M.C.O.P. No. 2702 of 2006, on the file of the Motor Accident Claims Tribunal, Small Causes Court No. V, Chennai.
Now, it is open to the claimant to withdraw the modified compensation amount, as per this Court''s findings, with proportionate interest
thereon, lying in the credit of M.C.O.P. No. 2702 of 2006, on the file of the Motor Accident Claims Tribunal, Small Causes Court No. V,
Chennai, subject to the deduction of earlier withdrawals made as per this Court''s order, after filing a memo along with a copy of this Judgment.
Likewise, the appellant Insurance Company is at liberty to withdraw the excess compensation amount, with proportionate interest thereon,
after filing a memo along with a copy of this Judgment. In the result, this civil miscellaneous appeal is partly allowed and the Judgment and decree
dated 27.08.2008, made in M.C.O.P. No. 2702 of 2006, on the file of the Motor Accident Claims Tribunal, Small Causes Court No. V,
Chennai, is modified. Consequently, connected miscellaneous petitions are closed. No costs.