AI Structured Summary
Not yet generated for this judgment
Judgment
D. Hariparanthaman, J.—The appellant is the Insurance Company, who is the insurer of the two-wheeler owned by the second respondent.
The first respondent was a pillion rider of the two- wheeler. He received injuries due to skidding of the bike. According to him, he suffered 25%
disability in the eye and 25% disability in the jaw. He was 35 years old when the accident took place on 03.11.2003. According to him, his
monthly earnings was Rs. 15,000/-. He filed M.C.O.P. No. 128 of 2004, on the file of the Motor Accidents Claims Tribunal (Sub-Judge),
Pattukottai, claiming Rs. 10 lakhs as compensation. The Tribunal passed an award dated 19.09.2005, granting a sum of Rs. 4,29,000/- as
compensation with 9% interest as mentioned hereunder:
----------------------------------------------------------
S. No. Description of heads Amount
in Rs.
----------------------------------------------------------
1 loss of income Rs.3,50,000/-
medical expenses Rs. 34,400/-
pain and suffering Rs. 20,000/-
extra nourishment and Rs. 25,000/-
transport expenses
5 total Rs.4,29,400/-
----------------------------------------------------------
The appeal is against the said order.
The learned Counsel for the appellant makes two submissions:
(i) The Tribunal committed error in holding that the rider of the two-wheeler was responsible for the accident and on the other hand, the accident
took place due to the consumption of liquor by the first respondent/pillion rider.
(ii) The Tribunal committed arithmetical mistake and arrived at Rs. 35,70,000/- as compensation and according to him, this is erroneous.
On the other hand, the learned Counsel for the claimant submits that there was no plea before the Tribunal by the appellant that the first
respondent was under the influence of alcohol when he travelled as a pillion rider. Therefore, he could not have any such grievance now. For the
second issue, the learned Counsel fairly submits that the Tribunal committed arithmetic mistake. However, the learned Counsel submits that the
Tribunal was not correct in taking Rs. 2000/- as the monthly earnings when the claimant was not able to establish his monthly income as Rs.
15,000/- as claimed in the claim petition.
I have considered the submissions made by the learned Counsel appearing on either side and perused the records.
Though the appellant raised a ground that the pillion rider was not covered by the policy, the policy it is not pursued, since, the policy is a
comprehensive policy.
The next issue is whether the Tribunal was correct in holding that the rider of the two-wheeler was rash and negligent in riding the two-wheeler.
According to the appellant, the first respondent pillion rider was under the influence of alcohol. As rightly contended by the learned Counsel for the
first respondent, there is no whisper in the pleadings before the Tribunal that the first respondent is under the influence of alcohol. Further, there is
no evidence at all to the effect that the first respondent was under the influence of alcohol. In any event, even assuming that he was under the
influence of alcohol, there is nothing on evidence that he contributed to the accident, as he was only a pillion rider and not a rider. Therefore, I do
not find any infirmity in the award regarding the finding that the rider of the two wheeler was responsible for the accident.
The next issue is relating to the quantum of compensation. The learned Counsel for the claimant admits that the Tribunal committed arithmetic
error in paragraph 9 of the award and arrived at Rs. 35,70,000/- as compensation. For arriving at this amount, the Tribunal calculated as follows:
Rs. 2000 x 12 x 17 xx 25 x 35/100 : Rs. 35,70,000/-. It is not known how the aforesaid multiplication is adopted by the Tribunal. After arriving at
the said figure, the Tribunal awarded Rs. 3,50,000/- as compensation towards loss of income. Hence, the learned Counsel for the claimant fairly
submits that the entire calculation and ultimate award towards loss of income made by the Tribunal was erroneous.
The learned Counsel for the claimant is correct in his submission that when the claimant was not able to establish that the claimant earned Rs.
15,000/- as claimed in the claim petition, the Tribunal should have taken Rs. 3,000/- as the monthly earnings, instead of Rs. 2000/- The learned
Counsel correctly relies on the following decisions of the Honourable Supreme Court in this regard:
Ishwar Chandra and Ors. v. The Oriental Insurance Company Limited and Ors. reported in 2007 (1) TN MAC 343 (SC).
Ram Babu Tiwari v. United Indian Insurance Company Limited and Ors. reported in 2008 (3) TLNJ 312 (Civil).
National Insurance Company Limited v. Kusum Rai and Ors. reported in 2006 (1) TN MAC 9 (SC).
In those judgements, the accidents took place much prior to the year 2003 and Rs. 3000/- is taken as monthly earnings, while in this case, the
accident took place in November 2003.Therefore, I am inclined to fix the monthly earnings at Rs. 3,000/-.
Further, both the counsels agreed that the percentage of disability suffered by the claimant was only 50%. Therefore, there is no quarrel over it.
He was aged 35 years at the time of the accident and the proper multiplier to be applied is ''17'' and there is no dispute over the multiplier.
The learned Counsel for the appellant further submits that without any cross-objection, the appellant would not seek for re-working of the
calculation based on Rs. 3,000/- as the monthly income. I am not inclined agree with the submissions made by the learned Counsel for the
appellant. The entire calculation made by the Tribunal is discarded. Admittedly, the claimant was not able to establish that he earned Rs. 15,000/-
as claimed by him in the application.
If Rs. 3000/- is taken as monthly earnings, the compensation works out to Rs. 3000x12x17x50/100 : Rs. 3,06,000/-. The appellant is not
questioning the compensation awarded under other heads. Therefore, I fix the compensation as follows:
----------------------------------------------------------
S. No. Description of heads Amount
in Rs.
----------------------------------------------------------
1 loss of income Rs. 3,06,000/-
medical expenses Rs. 34,400/-
pain and suffering Rs. 20,000/-
extra nourishment and Rs. 25,000/-
transport expenses
5 total Rs.3,85,400/-
----------------------------------------------------------
Accordingly, the award amount stands modified from Rs. 4,29,400/- to Rs. 3,85,400/-, with the same rate of interest as awarded by the
Tribunal from the date of claim petition till the date of realisation.
The Civil Miscellaneous appeal is disposed of in the above terms. Consequently, connected miscellaneous petitions are closed. No costs.