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Judgment
C.S. Karnan, J.—The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree,
dated 11.12.2003, made in M.C.O.P. No. 1025 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Judge (Fast
Track Court No. II), Cuddalore, awarding a compensation of Rs. 2,97,450/- with 9% interest per annum, from the date of filing petition till the
date of payment of compensation.
Aggrieved by the said Award and Decree, the appellant/second respondent, the New India Assurance Company Ltd., Cuddalore, has filed the
above appeal praying to set aside the said award and decree.
The short facts of the case are as follows:
The petitioner, aged about 22 years, was an agricultural coolie and a mason and earning a monthly income of Rs. 3,000/-. On 10.07.2001, at
about 1.30 a.m. when the petitioner was riding his TVS motorcycle, bearing registration No. TN27 T953, with his friend, one Velu as the pillion
rider, from Kottai to Thiagadurgam, on the national highways road and when he was nearing Thimmalai bus stop, an Ambassador car bearing
registration No. TN38 L2509, driven by its driver in a rash and negligent manner and at a high speed, without following the traffic rules and
regulations, dashed against the said TVS50 vehicle and caused the accident. In the said accident, the petitioner sustained multiple fracture injuries
and was immediately taken to Jipmer Hospital, Pondicherry, wherein he took treatment for two months. Skin grafting was done on his left leg and
six steel plates were fixed on his left leg. He has difficulty in doing his normal duties, due to the multiple fracture injuries sustained by him.
The accident was caused due to the rash and negligent driving by the driver of the car bearing registration No. TN38 L2509 and as such the
first respondent, the owner of the said car and the second respondent, its insurer, are vicariously liable to pay compensation to the petitioner. The
petitioner has claimed a compensation of Rs. 6,61,000/- with interest and costs u/s 166(1) of the Motor Vehicles Act.
Regarding the said accident, a criminal case has been registered at Thiagadurgam Police Station as Crime No. 226/2001.
The first respondent did not enter appearance and so he was set exparte by the Tribunal.
The second respondent, in his Counter, has resisted the claim stating that the petitioner has to prove that the first respondent''s car had been
insured with the second respondent; that the driver of the car had a valid driving licence; that the vehicle had been operated with the necessary
permit, FC and RC. Further, it was submitted that the age, income, occupation, nature of injuries, treatment taken, permanent disability, medical
expenses and loss of income incurred, should be proved by the petitioner. It was also submitted that the accident was not caused by the negligence
of the first respondent and that the accident had been caused by the negligence of the petitioner and hence the second respondent cannot be held
liable to pay compensation to the petitioner. It was also submitted that the claim was excessive and has to be dismissed with costs.
The Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Whose negligence had caused the accident?
(ii) Is the petitioner entitled to get compensation? If so, what is the quantum of compensation, he is entitled to get?
On the petitioner''s side, two witnesses were examined as PW1 and PW2 and nine documents were marked as Exs.P1 to P9. On the
respondents'' side, no witnesses were examined and no documents were marked.
The petitioner, Sakthivel, was examined as PW1 before the Tribunal. The PW1, in his evidence had deposed that on 10.07.2001, at 1.00 a.m.
in the night, he had been riding his TVS50 motorcycle, along with his friend Velu as the pillion rider, and that while they were travelling from Kottai
to Thiagadurgam, the driver of the respondent''s car bearing registration No. TN38 L2509, coming from the opposite direction, had driven the car
at a high speed and in a rash and negligent manner and dashed against him. On a scrutiny of Ex.P1, the copy of FIR, it is seen that the complaint
has been given by the driver of the car bearing registration No. TN38 L2509, wherein it has been stated that the accident had been caused by the
negligence of the rider of the TVS50 motorcycle ie. the petitioner herein. But, it is seen from the FIR, that the driver of the car has been marked as
the offending party in spite of the fact that the driver of the car had given the complaint. It is seen on scrutiny of Ex.P9, the certified copy of the
Judgment passed by the Additional District Judge, Fast Track Court No. II, Cuddalore, in M.C.O.P. No. 199 of 2003, which was filed by the
injured petitioner herein, the first respondent, ie. the driver of the car has been negligent and that he has caused the said accident. As such, the
Tribunal were of the view that the arguments advanced by the petitioner''s side that the first respondent''s negligence had resulted in the accident,
could be accepted. It is seen from Ex.P2, the Motor Vehicle Inspector''s Report that the accident had not occurred due to any mechanical fault in
the first respondent''s car bearing registration No. TN38 L2509. Further, the Tribunal on considering that the contention of the second respondent,
that the accident had been caused by the negligence of the rider of the TVS50, has not been proved either through contra evidence or through
examination of witnesses, were not inclined to accept the version of the accident as alleged by the second respondent. The Tribunal, on considering
the documentary and oral evidence, held that the accident had been caused only due to the negligence of the driver of the car ie., the first
respondent herein.
The Tribunal on scrutiny of Ex.P5, the copy of Insurance Policy held that the first respondent''s car bearing registration No. TN38 L2509 had
been covered by a valid policy of insurance, at the time of accident, with the second respondent/insurance company and hence held that the first
and second respondents are jointly and severally liable to pay compensation to the petitioner.
The PW1, in his evidence had deposed that immediately after the accident, he had taken treatment at Jipmer Hospital, Pondicherry, for the
fractures sustained by him, in his third, fourth and fifth fingers of his left hand, left leg bones and left thigh bones. He had further deposed that steel
plates had been fixed in his legs; that he was an agricultural coolie earning a sum of Rs. 100/- to Rs. 150/- per day; that after the accident he has
not been able to work as before; that he had incurred loss of income; that he had claimed a compensation of Rs. 6,61,000/-. From a scrutiny of
Ex.P1, it is seen that the petitioner was aged about 22 years at the time of accident. But, on scrutiny of Ex.P4, the Discharge Summary issued by
Jipmer Hospital, Pondicherry, it is seen that the petitioner''s age has been give as 20 years. As such, the Tribunal, on finding that there were no
other documents furnished to establish the age of the petitioner, decided to accept the age of the petitioner as 20, on the basis of the Ex.P4; at the
time of accident. Further, on examination of Ex.P4, it is seen that the petitioner had sustained fracture of his left leg bone and fracture of his second,
third, fourth and fifth fingers bones of his left hand in the accident and that surgical treatment was given to the petitioner to set this right and that he
had taken treatment as an inpatient in the said hospital from 10.07.2001 to 07.09.2001 ie. for a period of two months.
The Doctor, who had treated the petitioner, Dr. Nandha Kumar, was examined as PW2. The PW2 is the Assistant Doctor, working in the
bone fracture treatment section of Cuddalore Government Hospital. The PW2, in his evidence has deposed that he had inspected the petitioner on
02.04.2003, for the assessment of his disability sustained due to the road accident, which happened on 10.07.2001; that the petitioner had taken
treatment for the fractures sustained by him, in the fifth metacorpal bone in his left hand and the bones in his second, third, fourth and fifth fingers on
his left hand; that the petitioner has been given treatment for the fractures in two of the bones of his left leg and for fractures of two bones in his
right leg. The Doctor had deposed that the due to the above injuries, the petitioner''s left leg has been shortened by 2 Cms. and hence he has
certified that the disability sustained by the petitioner as 78% and in support of this, he has marked Ex.P7, the Disability Certificate and Ex.P8, the
X''ray. But, on cross-examination, the Doctor had admitted that the disability percentage fixed by him was approximate. Hence, the Tribunal,
deciding that the percentage of the disability assessed was on the higher side held that the disability sustained by the petitioner could be taken only
as 60% and awarded a compensation of Rs. 60,000/- to the petitioner under the head of permanent disability.
Though the PW1 had said in his petition and evidence that he was working as a mason and earning a sum of Rs. 3,000/- per month, no
documentary evidence had been given in support of this evidence. But, the Tribunal, on considering that they cannot expect such a document from
a person employed as a mason, were also not inclined to disregard the evidence of the PW1, on this count. The Tribunal were of the opinion that it
was also not possible for the petitioner, as a mason, to get employment for all the 30 days in a month. As such, the Tribunal held that he could have
worked for two days a month and took the income earned by him as Rs. 100/- per day and concluded that the income earned by the petitioner
was Rs. 2,000/- per month. The Tribunal were of the view that due to the 60% disability sustained by the petitioner, contention of the petitioner,
that he could not work as before and do the work of a mason, could be accepted. As such, the Tribunal on considering that the petitioner could
have sustained a loss of income of Rs. 1,000/- per month, held that the annual loss of income sustained by the petitioner in the accident was Rs.
12,000/-. As such, the Tribunal adopting a multiplier of 16, as was relevant to the petitioner''s age and income as per the second schedule of
Section 163A of the Motor Vehicles Act assessed his loss of future income as Rs. 12,000/- X 16 = Rs. 1,92,000/- and awarded the said sum as
compensation to the petitioner under the head of loss of income.
It is seen from the evidence of the PW1 that he had received free medical treatment at Jipmer Hospital, Pondicherry. As such, the Tribunal
held that no compensation could be awarded under the head of medical expenses. From a scrutiny of Ex.P6, medical bill, that the petitioner has
paid Rs. 440/- to Dr. Nandakumar for the medical treatment and X-rays taken by him. So, the Tribunal awarded a sum of Rs. 450/- to the
petitioner under the head of medical expenses. Further, the Tribunal on considering that the petitioner had taken treatment at Jipmer Hospital,
Pondicherry for a period of two months, awarded a compensation of Rs. 5,000/- to the petitioner under the head of nutrition expenses. The
Tribunal further granted an award of Rs. 40,000/- to the petitioner under the head of pain and suffering, mental agony, undergone by him. In total,
the Tribunal awarded a sum of Rs. 2,97,450/- as compensation to the petitioner and directed the respondents to deposit the above said award
together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation and costs, into the
credit of the M.C.O.P. No. 1025 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Judge (Fast Track Court No. II),
Cuddalore, within a period of one month from the date of its Order. The petitioner was directed to pay Court fees due on the award granted to
him. Further, after such deposit was made by the respondents, the award amount with accrued interest was to be invested in a nationalised bank,
for a period of three years and the petitioner was permitted to receive interest on such deposit, once in three months, directly from the bank. The
Advocate fees was fixed as Rs. 8,950/-. The respondents were directed to pay the costs of Rs. 11,308.50 to the petitioner.
The learned Counsel appearing for the appellant has contended in his appeal that the learned Judge of the Tribunal ought to have seen that the
first respondent had not followed traffic rules and regulations as he had suddenly crossed the national highway, at midnight 1.30 a.m. in his TVS50
motorcycle. As such, it has been contended that the first respondent/petitioner was careless and reckless and had crossed the road and hence
courted the accident. As such, it was contended that the Trial Court had grossly erred in placing the entire negligence on the part of the driver of
the second respondent''s car; and that the learned Judge should at least have placed maximum contributory negligence on the part of the injured
claimant/petitioner. It was also pointed out that the injury sustained by the first respondent/petitioner was not so severe as to warrant to
compensation of Rs. 2,97,450/- awarded by the Tribunal. It has also been pointed out that as the respondent/petitioner has not proved his
employment, the fixing of his income as Rs. 100/- per day by the learned Judge and the calculation of loss of income of Rs. 1,000/- per month and
the multiplier of 16 adopted to arrive at a sum of Rs. 1,92,000/- towards loss of earning power was erroneous. Further, it was contended that the
assessment of disability at 60% by the learned Judge was erroneous. As such, the learned Counsel appearing for the appellant has contended that
the award granted under various heads were excessive and hence has prayed for setting aside the award and decree passed by the Tribunal.
The learned Counsel appearing for the appellant vehemently argued that a double compensation has been awarded by the Tribunal under the
same head ie., Rs.60,000/- was granted for 60% disability and Rs. 1,92,000/- was granted towards loss of earning power due to disability. As
such, the Tribunal had committed an error in granting the said award.
The learned Counsel appearing for the respondent argued that the claimant is an agricultural coolie and also involved in building construction
work and was aged about 22 years at the time of accident. In the said accident, four of his fingers of the claimant''s left hand had been fractured
and he was an inpatient at Jipmer Hospital, for a period of more than two months. His left leg has also been shortened and as such his physical
condition has collapsed. His marriage prospects have also been diminished. The claimant depends upon his physical strength for earning his
livelihood. In effect, the petitioner has become permanently disabled and as such the award granted by the Tribunal is reasonable.
Considering the facts and circumstances of the case, and the arguments advanced by the learned Counsels for their respective parties, the
findings and award granted by the Tribunal, this Court is of the view that the Tribunal has erred in granting an award of Rs. 60,000/- for 60%
disability and another award of Rs. 1,92,000/- for loss of earning due to disability. As such, this Court sets aside the award of Rs. 60,000/-
granted by the Tribunal for 60% disability and confirms the award of Rs. 1,92,000/- granted by the Tribunal for loss of future earnings due to
disability. This Court further confirms the award of Rs. 450/- granted by the Tribunal for medical expenses; a sum of Rs. 5,000/- for nutrition
expenses and a sum of Rs. 40,000/- for pain and suffering; as it is found reasonable and fair in the circumstances of the case. This Court further
grants an award of Rs. 5,000/- to the petitioner under the head of travelling expenses. In total, this Court grants an award of Rs. 2,42,450/- to the
petitioner, together with interest at the rate of 9% per annum, from the date of filing the petition till the date of payment of compensation. As such,
this Court has reduced the quantum of compensation granted to the petitioner from Rs. 2,97,450/- to Rs. 2,42,450/- together with interest at the
rate of 9% per annum, from the date of filing the petition till the date of payment.
This Court imposed a condition on the appellant/New India Assurance Co., Ltd., on 02.03.2005, to deposit the entire award amount, together
with interest and costs, into the credit of the M.C.O.P. No. 1025 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District
Judge (Fast Track Court No. II), Cuddalore. The same was complied by the appellant herein. Subsequently, this Court permitted the
respondent/claimant to withdraw 50% of the award amount with entire interest and costs.
Now, the claimant is entitled to receive the balance compensation amount, as per this Court findings, lying in the credit of the M.C.O.P. No.
1025 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Judge (Fast Track Court No. II), Cuddalore, after filing
necessary payment out application, in accordance with law.
In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 11.12.2003, in M.C.O.P. No. 1025
of 2003, passed by the Additional District Judge, Motor Accident Claims Tribunal, (Fast Track Court No. II), Cuddalore, is modified.
Consequently, connected miscellaneous petition is closed. No costs.