D. Thangalingam and Others vs M. Iyyappan and Others

D. Hari Paranthaman, J.—By consent of the learned counsel on both sides, the main Civil Miscellaneous Appeals are taken up for final disposal. Since these appeals arise out of a same accident, a common judgment is passed.

The facts leading to the filing of these appeals are as under:

The appellants / claimants were working as loadmen. On 11.10.2008 at about 7.00 p.m., after unloading the fish at Erukkanthurai, they were returning back in the van bearing Registration No. TN-74-B-3402. The said van belongs to the first and second respondents herein. The van was driven by one Mahalingam. The van was nearing Perumal Diversion Road. At that time, the driver drove the van in a rash and negligent manner due to which the driver lost control over the van, and the van capsized. Due to the said impact, the appellants / claimants sustained multiple injuries. Hence, they filed claim petitions before the Tribunal. The Tribunal has awarded a compensation of Rs. 73,034/- in respect of MCOP No. 267 of 2008 (C.M.A.(MD)No. 373 of 2015), a sum of Rs. 57,570/- in respect of MCOP No. 15 of 2009 (C.M.A.(MD)No. 374 of 2015), a sum of Rs. 10,000/- in respect of MCOP No. 16 of 2009 (C.M.A.(MD)No. 375 of 2015) and a sum of Rs. 2,23,436/- in respect of MCOP No. 17 of 2009 (C.M.A.(MD)No. 376 of 2015). The interest rate fixed by the Tribunal was 6% p.a., which was directed to be paid from the date of petition. Challenging the compensation awarded, the appellants / claimants have come up with the present Civil Miscellaneous Appeals. 3. The submission made by the learned counsel for the appellants / claimants is that the Tribunal has fixed the percentage of disability only at Rs. 2,000/- and Rs. 1,500/- while calculating the compensation awarded towards disability and it should be enhanced, and accordingly the awards should be modified. The learned counsel also submitted that the Tribunal ought to have ordered pay and recovery when the Tribunal found that the driver did not possess the valid driving license.

The learned counsel for the third respondent Insurance Company has submitted that the Tribunal had considered all the materials and evidence available on record and awarded the compensation which is just, fair and reasonable and it is also based on valid materials and evidence and therefore, the order of the Tribunal is in accordance with law and the same has to be confirmed. There is no serious objection as to pay and recovery.

Heard the learned counsel for the appellants as well as the Insurance Company and perused the materials available on record.

The Tribunal has awarded a compensation of Rs. 73,034/- in respect of MCOP No. 267 of 2008 (C.M.A.(MD)No. 373 of 2015), under the following heads:

The Tribunal has awarded a compensation of Rs. 57,570/- in respect of MCOP No. 15 of 2009 (C.M.A.(MD)No. 374 of 2015), under the following heads:

The Tribunal has awarded a compensation of Rs. 10,000/- as lump sum towards simple injury including medical expenses, in respect of MCOP No. 16 of 2009 (C.M.A.(MD)No. 375 of 2015).

The Tribunal has awarded a compensation of Rs. 2,23,436/- in respect of MCOP No. 17 of 2009 (C.M.A.(MD)No. 376 of 2015), under the following heads:

MCOP No. 267 of 2008 (C.M.A.(MD)No. 373 of 2015):

The Doctor was examined as P.W.5. The claimant- Thangalingam in MCOP No. 267 of 2008 has suffered comminuted fracture of supermedial aspect of body of right scapula and linear undisplaced fracture of spine of right scapula. He examined the claimant and assessed the disability at 15%, for which the Tribunal has awarded Rs. 2,000/- per percentage of disability. The learned counsel for the appellant/claimant has submitted that instead of awarding Rs. 2,000/- per percentage of disability, it should be awarded Rs. 3,000/- as per the judgment of this Court in National Insurance Company Limited Vs G.Ramesh, reported in 2013 (2) TN MAC 583. The learned counsel for the insurance company has not seriously objected. Hence, the compensation for permanent disability is fixed as Rs. 45,000/- (Rs.3,000X15), and accordingly, the total compensation works out to Rs. 88,034/-. The details of the modified compensation are as under:

MCOP No. 15 of 2009 (C.M.A.(MD)No. 374 of 2015):

Here, the claimant was examined by the Doctor, who has deposed that there was dislocation of the left shoulder joint and there is restriction of movements of the left shoulder joint. He assessed the disability at 15%, for which the Tribunal has awarded Rs. 1,500/- per percentage of disability. As per the judgment of this Court, stated supra, this Court is of the view that fixing a sum of Rs. 3,000/- per percentage of disability would be appropriate. Accordingly, the amount awarded towards permanent disability stands modified to Rs. 45,000/- and accordingly, the total compensation works out to Rs. 80,070/-. The details of the modified compensation are as under:

MCOP No. 16 of 2009 (C.M.A.(MD)No. 375 of 2015):

Here the claimant was awarded a total compensation of Rs. 10,000/- for the simple injuries sustained. Due to the accident, the claimant sustained multiple injuries all over the body. Ex.P27 is the wound certificate. Considering the nature of injuries sustained, this Court is of the view that it would be appropriate and reasonable to award a sum of Rs. 20,000/-. Accordingly, the compensation awarded by the Tribunal stands modified to Rs. 20,000/-. 13. MCOP No. 17 of 2009 (C.M.A.(MD)No. 376 of 2015):

Here, the claimant was examined by the Doctor, who has deposed that the claimant sustained fracture of the left side skull bone of the head and there was haemorrhage in the brain. The doctor further stated that due to the head injury, the claimant would get headache, neck pain and also giddiness, and that his memory was also affected to a certain level. Therefore, he assessed the disability at 35%, for which the Tribunal has awarded Rs. 1,500/- per percentage of disability. As per the judgment of this Court, stated supra, this Court is of the view that fixing a sum of Rs. 3,000/- per percentage of disability would be appropriate. Accordingly, the amount awarded towards permanent disability stands modified to Rs. 1,05,000/- and accordingly, the total compensation works out to Rs. 2,75,936/-. The details of the modified compensation are as under:

The Tribunal has fixed the interest rate at 6% p.a., from the date of petition. The accident occurred in the year 2008 and hence it would be appropriate to fix the interest rate at 7.5% p.a. from the date of petition, as it was the rate of interest prevailing at that time.

In the result,

i) In respect of C.M.A.(MD)No. 373 of 2015, the compensation awarded by the Tribunal stands modified to Rs. 88,034/- with interest at 7.5% p.a., from the date of petition;

ii) In respect of C.M.A.(MD)No. 374 of 2015, the compensation awarded by the Tribunal stands modified to Rs. 80,070/- with interest at 7.5% p.a., from the date of petition;

iii) In respect of C.M.A.(MD)No. 375 of 2015, the compensation awarded by the Tribunal stands modified to Rs. 20,000/- with interest at 7.5% p.a., from the date of petition; and

iv) In respect of C.M.A.(MD)No. 376 of 2015, the compensation awarded by the Tribunal stands modified to Rs. 2,75,936/- with interest at 7.5% p.a., from the date of petition;

With regard to liability to pay the compensation by the Insurance Company, the liability was fastened upon the owners of the vehicle on the ground that the driver did not possess the valid driving license. Under the circumstances, this Court is of the view that it would be appropriate to direct the Insurance Company to pay the entire compensation to the claimants and thereafter recover from the owner of the vehicle. Accordingly, the Insurance Company is directed to pay the entire compensation to the claimants and thereafter recover the same from the owner of the vehicle.

The learned counsel for the appellant-Insurance Company is directed to deposit the modified amount of compensation, less the amount if any already deposited, to the credit of the respective MCOPs, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit being made, the claimants are permitted to withdraw the entire amount from the respective MCOPs.

With the above modifications, the Civil Miscellaneous Appeals are disposed of. No costs.