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Judgment
C.S. Karnan, J.—The appellant/second respondent has preferred the present appeal against the judgment and decree dated 03.12.2007,
made in M.C.O.P. No. 81 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Court, Hosur. The short facts of the case are as
follows:-The claimant, had filed a claim petition in M.C.O.P. No. 81 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Court,
Hosur, claiming compensation of a sum of Rs. 5,00,000/- from the respondents for the injuries sustained by her in a motor vehicle accident.
It was submitted that on 17.02.2004, at about 16.30 hours, when the claimant was walking on the extreme left of the road, near Navathi Lake
in Mathigiri Village, the first respondent''s Tractor bearing registration TN29 W0891, driven in a rash and negligent manner, dashed behind the
claimant. As a result of which, the claimant fell down and the rear wheel of the tractor ran over the left hip of the claimant. The claimant sustained
grievous injuries and was admitted at Government Hospital, Hosur, wherein she received treatment as an inpatient for ten days. At the time of
accident, the claimant was working as a Coolie and earning Rs. 4,000/- per month. Due to the disability sustained by her, she is not able to do her
work as before Hence, the claimant had filed the claim petition against the respondents, who are the owner and insurer of the Tractor bearing
registration TN29 W0891.
The second respondent Insurance Company, in their counter affidavit, had submitted that FIR was registered against the driver of the tractor,
only after a delay of two days. Further, it was submitted that the driver of the tractor had not been rash and negligent in driving the tractor and that
the accident had occurred due to unauthorized occupation of the left side of the mudguard of the said tractor by the claimant and her sister-in-law
Muthu, who had lost their control when the tractor was moving on the Navathi Lake Bund. It was also submitted that even as per the wound
certificate furnished by the claimant, it was evident that she was travelling in the tractor and had fallen down and sustained injuries. It was submitted
further that as the claimant was an unauthorized passenger, the policy conditions of insurance had been violated and as such the second respondent
is not liable to pay compensation. Further, it was submitted that the owner of the tractor had colluded with his driver and the claimant and foisted
the false claim. The averments made in the claim petition regarding age, income and profession of the injured were also not admitted. It was also
submitted that the claim was excessive.
On considering the averments of both sides, the Tribunal had framed two issues for consideration namely:
i. Was the accident caused by the rash and negligent driving by the driver of the Tractor bearing registration TN29 W0891? and
ii. Whether the claimant is entitled to get compensation? If so, what is the quantum of compensation, which the claimant is entitled to get?
On the claimant''s side, three witnesses were examined as P.Ws.1 to 3 and seven documents were marked as Exs.P1 to P7 namely copy of
FIR, copy of wound certificate, copy of policy, copy of M.V.I''s report, disability certificate, X-rays and X-ray receipt. On the respondents'' side,
one witness was examined as R.W.1 and three documents were marked as Exs.R1 to R3 namely policy, copy of accident register and
investigation report.
P.W.1 claimant 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 P4.
P.W.2 Muthu, eye-witness of the accident, had also adduced evidence that the accident had been caused by the rash and negligent driving of
the driver of the tractor and that he had dashed the tractor against the pedestrian i.e., the claimant. On scrutiny of Ex.P1, it is seen that the FIR had
been registered against the driver of the first respondent''s tractor.
R.W.1 Administrative Officer of the second respondent''s firm had also admitted that the FIR had been registered against the first respondent''s
tractor driver and that it had been mentioned that the driver of the tractor had driven it rashly and dashed it against the pedestrian namely the
claimant. He had also admitted that the tractor had been insured with the second respondent. Further, he had adduced that no witness had been
examined in the investigation carried out by their investigation officer and that Ex.R3 report had been prepared by the officer appointed to
investigate the case. The Tribunal observed that the respondent had neither examined the tractor driver nor any other witness to prove their
contention that the claimant had travelled in the tractor. Though it had been mentioned in Ex.P2 that the claimant had fallen down from the tractor
and sustained injuries, the Tribunal observed that the complainant of the said accident namely Muthu, who was alleged to have accompanied the
claimant, was not examined by the second respondent to prove the contentions that the claimant had travelled in the tractor and fallen down.
Hence, the Tribunal, on scrutiny of oral and documentary evidence, held that the accident had been caused due to the rash and negligent driving
by the driver of the first respondent''s tractor and that he had dashed it against the claimant, who was walking.
On scrutiny of Ex.P2, it is seen that the claimant had sustained fracture of the top and bottom ''fubic ramus'' bone in her hip and that she had
been initially admitted at Hosur Government Hospital and subsequently referred to a private hospital.
P.W.2 Doctor had adduced evidence that he had examined the claimant on 26.07.2007 and that on taking X-rays he had observed that the
fubic ramus bone of the claimant''s hip had been fractured and that the fractured right fubic ramus bone had been malunited. Further, he deposed
that the claimant would not be able to walk long distances, or stand, or sit cross legged or squat as before. He certified that the claimant had
sustained 40% disability in the accident. However, the Tribunal on considering that the assessment is on the higher side held that the disability
sustained by the claimant was 30%.
The Tribunal, on considering that no documentary evidence had been marked to prove the income of the claimant, held that the notional
income of the claimant could only be taken as Rs. 3,000/- per month. The Tribunal, on observing that the claimant was aged 21 years and on
adopting a multiplier of 17, awarded a sum of Rs. 1,83,600/- as compensation under the head of disability of 30% (3,000 X 12 X 30/100 X 17),
Rs. 10,000/- was awarded for pain and suffering and Rs. 5,000/- was awarded for transport and nutrition. In total, the Tribunal awarded a sum of
Rs. 1,98,600/- as compensation to the claimant and directed the respondents to deposit the said sum, together with interest at the rate of 9% per
annum from the date of filing the claim petition till the date of payment of compensation, with costs, within a period of two months 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 ought not to have rejected
the contents of Ex.R2 accident register, which was the first available document prepared immediately after the occurrence of accident and erred in
relying on the interested testimony of P.W.1 and P.W.2 to hold that the accident occurred while she was walking on the road. Further, it is
contended that the tribunal failed to note that the second respondent had violated the policy conditions by permitting a passenger to travel on the
tractor and failed to note that the respondents herein have not filed any documentary evidence to prove that the first respondent was authorised to
travel on the tractor at the time of accident. It is also contended that the Tribunal failed to see that the appellant cannot be made liable to pay
compensation, without any additional premium, being paid by the second respondent for such a passenger. It is also contended that the assessment
of disability of P.W.3 was excessive and as such the Tribunal erred in adopting a multiplier of 17 and in granting a sum of Rs. 1,98,600/- as
compensation. Hence, it is prayed to set aside the award passed by the Tribunal.
The very competent counsel appearing for the Insurance company has vehemently argued that the FIR had been registered by the competent
Police Officer, which is a vital document in the instant case. It clearly reveals that the driver of the tractor had dashed against the claimant, while
she was walking on the road. Further, the claimant had sustained 40% disability due to multiple bone fracture injuries as deposed by the Doctor.
The claimant had sustained bone fracture injuries on her left hip, both her legs and knees. The Tribunal had not granted compensation under the
other relevant heads.
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 as multiplier method had been adopted, which is not appropriate in the instant case. Therefore, this
Court reassesses the compensation as follows:
i. Rs. 80,000/- 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. 15,000/- is awarded towards loss of earning during medical treatment period, and
vii. Rs. 10,000/- is awarded towards loss of amenities and loss of comfort since the claimant''s fractured bone had been malunited as per Doctor''s
evidence.
In total, this Court awards a sum of Rs. 1,50,000/- as compensation to the claimant, as it is found to be appropriate in the instant case. The rate of
interest remains unaltered.
Therefore, this Court directs the appellant Insurance Company to deposit the compensation amount, as per this Court''s findings, with
proportionate interest thereon, to the credit of M.C.O.P. No. 81 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Court, Hosur,
within a period of four weeks from the date of receipt of a copy of this Judgment.
After such a deposit having been made, 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. 81 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Court,
Hosur, 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 03.12.2007, made in M.C.O.P. No. 81 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Court, Hosur, is modified.
Consequently, connected civil miscellaneous petition is closed. No costs.