United India Insurance Company Limited V. Karunaharan

[MADRAS HIGH COURT]

United India Insurance Company Limited, Paramakudi
v
(1) Karunaharan; (2) C.Sethuraman

M. VENUGOPAL

25 Jun 2008
BENCH
M. VENUGOPAL

CASES REFERRED TO
Cholan Roadways Corporation Limited, Rep. By Its Managing Director, Kumbakonam-612 001 v Ahmed Thambi and Others 2006 MAD 1159
United India Insurance Company Limited v. R.Chinnaraj and others [2008 (1) TNMAC 8]
The Managing Director, Tamil Nadu State Transport Corporation, (Kumbakonam Division II), Ltd. Trichy, v. S.Kannappan [2007 (2) TNMAC 1]

ACTS REFERRED
Indian Penal Code, 1860[s. 279, s. 337, s. 338]
CASE NO
C.M.A.(Md)No.333 of 2004 and C.M.P.(Md)No.2404 of 2004


The Order of the Court was as follows :

1. This Civil Miscellaneous Appeal is preferred against the award dated 03.08.2004 passed in M.C.O.P.No.42 of 2003 by the Motor Accident Claims Tribunal - Subordinate Court, Paramakudi.

2. The first respondent/claimant has filed the claim petition claiming a sum of Rs.3, 40, 000/- (Rupees Three Lakhs and Forty Thousand only) and restricting the same to a sum of Rs.3, 00, 000/- (Rupees Three Lakhs only) for the injury sustained by him in a road accident.

3. The Motor Accident Claims Tribunal - Subordinate Judge, Paramakudi, has passed an award on 03.08.2004 awarding a total compensation of Rs.1, 09, 000/- (Rupees One Lakh and Nine Thousand only) together with interest at 9% p.a. from the date of filing of the petition till date of payment.

4. The short facts of the claim are as follows:

On 26.05.2002 at about 02.15 p.m, in the afternoon, the first respondent/claimant was riding Hero Honda motorcycle bearing Registration No.TN- 65-A-0382 belonging to his friend one Jeyapandi of Subramanian Street, Paramakudi and while he was proceeding from Nithya Car Driving School (where he was working as driver) to Paramakudi Mani Nagar in Madurai - Rameswaram National Highways, in order to collect his due amount when he came opposite to M.L.A's office on the left side of the road, at that time, a Matador Van bearing Registration No.TN-65-3832 proceeding from Paramakudi to Madurai, came behind him in the direction of east to west, driven by its driver in a high speed, negligently and without sounding horn, dashed against him, as a result of which he sustained fracture of left collar bone, bleeding injury, fracture in his left leg, grievous injuries in his left ankle, injuries on his left head and abrasions throughout the left leg including the knee and immediately, he was admitted to Paramakudi Government Hospital for treatment and later, he was referred to Madurai for receiving further treatment. A case under Sections 279 and 337 Indian Penal Code, 1860 has been registered in Paramakudi Town Police Station in Cr.No.221 of 2002 against the van driver by police and later, a charge sheet has been laid under Sections 279, 337 and 338 Indian Penal Code, 1860 The first respondent/claimant took treatment at the Madurai Rajaji Government Hospital for thirteen days as an inpatient and later, he took treatment continuously with Dr.Ramadoss at Paramakudi. He has spent a sum of Rs.30, 000/- (Rupees Thirty Thousand only) as medical expenses and a sum of Rs.10, 000/- for attendants who attended on him. At the time of the accident, the first respondent/claimant was working as Driving Teacher in Nithya Driving School at Paramakudi and was receiving a sum of Rs.5, 000/- p.m. The driver who drove the van bearing Registration No.TN-65- 3832 in a high speed, negligently and without sounding horn, was responsible for causing the accident.

5. The second respondent/first respondent as the owner of the said van and the appellant/second respondent being the insurer of the said vehicle, are liable to pay compensation of Rs.3, 00, 000/- (Rupees Three Lakhs only) to the first respondent/claimant with interest at 12% p.a from the date of petition till date of payment.

6. The second respondent/first respondent (owner of the said van) has remained ex-parte before the Tribunal.

7. The appellant/second respondent Insurance Company has filed a counter stating that the first respondent/claimant has to prove that the accident involving the said vehicle occurred in the manner alleged in the claim petition and that the same was only due to the rash and negligent act of the driver of the vehicle and that the first respondent/claimant without minding the coming vehicle suddenly crossed the road and dashed against the insured vehicle and that the accident took place only because of the negligence of the claimant and as such, the Insurance Company was not liable to pay any compensation to the first respondent/claimant.

8. Before the Tribunal, on the side of the first respondent/claimant, witnesses P.W.1 and P.W.2 were examined and Exs.P.1 to P.12 were marked and on the side of the respondents, no witness was examined and no documents were marked.

9. Dissatisfied with the award passed by the Motor Accident Claims Tribunal - Subordinate Court, Paramakudi, the appellant/second respondent Insurance Company has filed the present Civil Miscellaneous Appeal.

10. To prove the issue of negligence, the first respondent/claimant has got himself examined as P.W.1 and has deposed that on 26.05.2002 at about 02.15 p.m, in the afternoon, he was riding a Hero Honda motorcycle belonging to his friend, Pandivel and he was proceeding from his office at Ootapalam to Maninagar and while he was proceeding slowly on the left side of the road opposite to Paramakudi M.L.A's Office, from east to west and at that time, the van bearing Registration No.TN-65-3832 came from behind in the east to west direction without sounding horn in a high speed and dashed against him, as a result of which he sustained fracture of left collar bone and that he suffered fracture below knee on the left side and fracture on the left side knee, sustained injury on the left side of the head, abrasions throughout his legs and that he was taken to Paramakudi Government Hospital and later, taken to Madurai Government Rajaji Hospital where X-rays were taken and he was admitted as an inpatient for thirteen days and later got discharged and took treatment with Dr.Ramadoss of Paramakudi and that he has incurred expenses of Rs.30, 000/- for taking treatment outside the Government Hospital and that after the accident, he is without a job and that the driver of the van is responsible for the accident.

11. In Ex.P.1, xerox copy of F.I.R, the name of the complainant is mentioned as Karunaharan who is the first respondent/claimant/P.W.1 in the case. A perusal of Ex.P.1, F.I.R, indicates that a case under Sections 279 and 337 Indian Penal Code, 1860 has been registered in Cr.No.221 of 2002 by the Paramakudi Town Police on 26.05.2002 at 16.15 hours. In Ex.P.2, (wrongly mentioned as Ex.P.3 in the Exhibit list before the Tribunal in the award.), the charge sheet dated 27.06.2002 filed before the learned Judicial Magistrate, Paramakudi, it is seen that the driver of the said van, Bose has been charged under Sections 279, 337 and 338 Indian Penal Code, 1860 by the Sub Inspector of Police of Paramakudi Town Police Station. In Ex.P.3, (wrongly mentioned as Ex.P.2 in the Exhibit list before the Tribunal in the award.), certified copy of the accident register, dated 26.05.2002, it is inter alia stated by the first respondent/claimant that 'said to have been hit by a van while riding on a motorcycle at 02.15 p.m on 26.05.2002 near Ootapalam'. Further, in Ex.P.3, it is mentioned that the first respondent/claimant has sustained five injuries in all and that suspected fracture (? #) of collar bone and that the injury is said to be a grievous one.

12. In Ex.P.7, the Motor Vehicle Inspector's report, dated 27.05.2002 in respect of the vehicle bearing Registration No.TN-65-3832, the Motor Vehicle Inspector has opined that 'the accident was not due to any mechanical defect of the vehicle.'.

13. As far as the present case is concerned, the first respondent/claimant as P.W.1 has clearly spoken about the manner and happening of occurrence, namely the driver of the van is responsible for causing the accident by his high speed and negligent driving in his evidence in categorical terms and his evidence in this regard has not been discredited by the respondents. Therefore, this Court accepts the evidence of P.W.1/claimant in regard to the manner and happening of accident and accordingly, holds that the driver of the said van, Bose is responsible for causing the accident and that the accident has occurred due to the high speed and negligent driving of the said driver and the point is answered accordingly.

14. In regard to the quantum of compensation, it is to be pointed out that the Tribunal has awarded a total compensation of Rs.1, 09, 000/- (Rupees One Lakh and Nine Thousand only). Towards 28% disability suffered by the first respondent/claimant, the Tribunal has granted Rs.28, 000/-. It has awarded a sum of Rs.2, 000/- towards transport expenses. For nourishment expenses, it has awarded Rs.5, 000/-. Towards purchase of medicines and injections, Doctor's fees and amount spent towards medical attendants, a sum of Rs.20, 000/- has been awarded by the Tribunal. In regard to the loss of income for twenty six months, at the rate of Rs.1, 000/- p.m, a sum of Rs.26, 000/- has been awarded by the Tribunal. Again, the Tribunal has granted a sum of Rs.3, 000/- towards expenses incurred for medical attendants. A sum of Rs.25, 000/- has been awarded by the Tribunal for pain and sufferings on account of permanent disability resulting in loss of earning capacity.

15. According to the learned Counsel for the appellant/Insurance Company, the Tribunal has committed error in granting a sum of Rs.20, 000/- towards medical expenses without any documentary evidence and that it has also not appreciated the fact that the claimant has taken treatment in Madurai Government Rajaji Hospital only for a period of thirteen days as an inpatient and has held wrongly that the claimant was entitled to a sum of Rs.26, 000/- towards loss of earning by calculating Rs.1, 000/- p.m which is illegal and further that, the award of Rs.25, 000/- towards pain and sufferings and loss of earning capacity is incorrect and therefore, prays for allowing the appeal to prevent miscarriage of justice.

16. It is relevant to point out that P.W.2 Dr.Ramadoss in his evidence has deposed that he examined the first respondent/claimant on 12.04.2002 at about 02.30 p.m, in the afternoon and that the claimant has suffered (i) a left collar bone fracture, (ii) two bones fracture on left leg (bone fracture below tibia and fracture below fibula bone) and that the bone point of left collar bone has been malunited and that the left ankle bone and fibula bone point have malunited and that he has assessed the total disability at 28% as per Ex.P.11 disability certificate.

17. The learned Counsel for the first respondent/claimant relies on the decision of this Court in United India Insurance Company Limited v. R.Chinnaraj and others 2008 (1) TNMAC 8, wherein it is observed that 'an award towards permanent disability has been enhanced in appeal from Rs.1, 000/- per percentage to Rs.2, 000/- per percentage in view of the nature of the injuries and disability suffered and in view of the Full Bench decision in Cholan Roadways v. Ahmed Thambi 2006 MAD 1159 and enhancement towards permanent disability and amount awarded by the Tribunal towards loss of future income has been held unwarranted and therefore, set aside.

18. He also cites the decision in The Managing Director, Tamil Nadu State Transport Corporation, (Kumbakonam Division II), Ltd. Trichy, v. S.Kannappan 2007 (2) TNMAC 1, at page 2, whereunder it is observed that the application of maximum rate of Rs.2, 000/- per 1% disability to the injured/respondent aged 27 years, has been held absolutely justifiable.

19. Considering the nature of the injury sustained and 28% partial and permanent disability suffered by the first respondent/claimant, this Court for 1% disability determines the fair and reasonable sum of Rs.1, 750/- and accordingly, for 28% disability, the same works out to Rs.49, 000/- (Rs.1, 750/- X 28 = Rs.49, 000/-) (Rupees Forty Nine Thousand only) and accordingly, grants the same. A sum of Rs.2, 000/- awarded by the Tribunal towards transport expenses, is quite reasonable and the same is not interfered with by this Court. Though the first respondent/claimant has claimed a sum of Rs.13, 000/- towards nourishment expenses, the Tribunal has granted a sum of Rs.5, 000/- in this regard. In fact, in his evidence as P.W.1 has not spoken anything about the nourishment expenses. Inasmuch as, the proceedings before the Tribunal are summary in nature and since no strict proof of rules of evidence are required and taking note of the fact that the first respondent/claimant has suffered the injuries and resultant 28% partial and permanent disability, this Court awards a sum of Rs.5, 000/- towards nourishment expenses to meet the ends of justice.

20. For taking three X-rays, Ex.P.12, this Court grants a sum of Rs.500/-. Even though there are no documentary evidence in regard to (i) purchase of medicines and tablets, (ii) towards payment of Doctor's fees and (iii) for expenses incurred for employing medical attendants and though the Tribunal has granted a sum of Rs.20, 000/-, this Court under these heads grants only a sum of Rs.10, 000/- to prevent aberration of justice. Though the first respondent/claimant has claimed a sum of Rs.35, 000/- towards loss of income for twenty six months, as seen from the claim petition, in the absence of satisfactory proof by way of relevant documentary evidence, this Court grants only a sum of Rs.6, 500/- taking into account of the injury sustained and the partial and permanent disability of 28% suffered by the claimant and therefore, the award of Rs.26, 000/- by the Tribunal towards loss of income without any material is incorrect, illegal and not sustainable in the absence of legal evidence # .

Apart from the above amounts, a conventional sum of Rs.5, 000/- is granted towards pain and sufferings to the first respondent/claimant.

21. Thus, in all, the first respondent/claimant is entitled to receive a total sum of Rs.78, 000/- (Rupees Seventy Eight Thousand only) {Rs.49, 000/- + Rs.2, 000/- + Rs.5, 000/- + Rs.500/- + Rs.10, 000/- + Rs.6, 500/- + Rs.5, 000/- = Rs.78, 000/-) as compensation payable by the appellant/second respondent Insurance Company along with interest at 9% p.a from the date of petition till date of payment with proportionate costs. Consequently, the sum of Rs.1, 09, 000/- awarded by the Tribunal is on the higher side on the facts and circumstances of the present case, in the considered opinion of this Court. Since, the Tribunal has not fixed the lawyer's fee as required, this Court perforces to determine the same at Rs.3, 625/- (Rupees Three Thousand Six Hundred and Twenty Five only) payable by the appellant/second respondent Insurance Company.

22. It is not out of place to point out that this Court in C.M.P.(MD)No.2404 of 2004 on 04.07.2005, has permitted the first respondent/claimant to withdraw 50% of the award amount along with entire accrued interest and that the balance amount has been ordered to be deposed in any one of the Nationalised Bank for a period of two years.

23. Liberty is given to the first respondent/claimant to receive the balance amount from the Tribunal by filing necessary application as per Civil Rules of Practice. Likewise, the appellant/second respondent Insurance Company is also given liberty to receive the excess amount lying to the credit of M.C.O.P.No.42 of 2003 on the file of the Motor Accident Claims Tribunal - Subordinate Court, Paramakudi, by filing necessary application as per Civil Rules of Practice.

24. For the foregoing reasons, the Civil Miscellaneous Appeal is allowed in part to promote the substantial cause of justice. Consequently, the connected Miscellaneous Petition is closed. Considering the facts and circumstances of the case, the respective parties are directed to bear their own costs in this appeal.