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Judgment
P.R. Shivakumar, J.—The claimant before the Tribunal is the appellant herein. For the injuries sustained by him in a road accident that took
place on 23.05.1999 at about 06.45 p.m. in the National Highways between Krishnagiri and Hosur, near Addaguriki and the consequences that
ensue from the said injuries, the appellant herein filed M.C.O.P.No.132 of 1999 on the file of the Motor Accidents Claims Tribunal (Court of
Subordinate Judge), Hosur against the respondents 1 to 3 herein, claiming a sum of Rs. 3,00,000/- as compensation. He had also prayed for an
award which would include interest and cost.
According to the case of the appellant herein/claimant, while the appellant/claimant was travelling in his motorcycle bearing Registration No.
TN-29-W-5844 from Krishnagiri to Hosur, the bus bearing Registration No. TN-29-W-7999 belonging to the second respondent herein that
came in the opposite direction was driven by the first respondent in a rash and negligent manner and the same resulted in a collision with the
motorcycle in which the petitioner was proceeding. The appellant/claimant had made clear and concrete averments in the claim petition to the effect
that the accident took place solely due to the rash and negligent driving of the bus belonging to the second respondent. He had also made
averments in the claim petition that the offending vehicle, namely the bus bearing Registration No. TN-29-W-7999, had been insured with the
United India Insurance Company Limited, the third respondent herein as on the date of accident.
The driver and owner of the vehicle, namely the respondents 1 and 2 remained ex-parte and they did not contest the case. The United India
Insurance Company, the third respondent alone contested the case by filing a counter statement. It had also obtained permission u/s 170 of the
Motor Vehicles Act to contest the case on all grounds available to the insurer, in addition to the grounds of defence available to the third
respondent that the alleged offending vehicle, namely the bus bearing Registration No. TN-29-W-7999, was not insured with the third respondent
and that as two vehicles had involved in the accident, the owner and insurer of the motorcycle in which the petitioner was proceeding should also
be added as necessary parties. It was also contended therein that the drivers of the vehicles involved in the accident did not possess valid driving
licence at the time of accident and hence, for that reason also, the third respondent was not liable to pay compensation. The averments found in the
claim petition regarding the age and income of the claimant and the nature of injuries sustained by him were also disputed. With the said counter
allegations, the third respondent had prayed for the dismissal of the M.C.O.P., so far as the third respondent was concerned.
Three witnesses were examined as P.Ws.1 to 3 and 20 documents were marked as Exs.A.1 to A.10 on the side of the claimant. Only one
witnesses was examined as R.W.1 and no document was marked on the side of the respondents.
At the conclusion of trial, the Tribunal accepted the contention of the third respondent and held that the offending vehicle, namely the bus bearing
Registration No. TN-29-W-7999 was not insured with the third respondent on the relevant date. Consequently, the claim as against the third
respondent insurer was dismissed without cost.
On the question of negligence, the Tribunal held that though the driver of the bus bearing Registration No. TN-29-W-7999 was proved to be
negligent in driving the said vehicle at the time of accident, the Tribunal went further and held that as it was a case of direct collision of two vehicles
proceeding in opposite directions and hence the appellant/claimant, who was riding the motorcycle, should have also acted with some kind of
negligence. On the said reasoning, the Tribunal held that the appellant/claimant was guilty of contributory negligence and hence, after assessing the
compensation, the Tribunal directed that 30% of the damages thus assessed should be borne by the appellant/claimant himself and 70% of the
compensation alone shall be recovered from the respondents 1 and 2, together with an interest at the rate of 9% and cost. The Tribunal assessed
the total damages at Rs. 1,50,000/- and directed the respondents 1 and 2 to jointly and severally pay a sum of Rs. 1,05,000/- being 70% of the
compensation assessed by the Tribunal together with interest and cost as aforesaid.
Aggrieved by an challenging the said order of the Tribunal, the appellant/claimant has come forward with the present Civil Miscellaneous Appeal
as against the disallowed portion of the claim is concerned. However, by inadvertence, the appellant/claimant has omitted to incorporate a specific
ground challenging that part of the award dismissing the claim as against the third respondent Insurance Company. Therefore, the
appellant/claimant has come forward with the Civil Miscellaneous Petition No. 697 of 2008 seeking the leave of the Court to raise additional
grounds in the C.M.A., challenging the award in respect of the dismissal of the claim against the third respondent Insurance Company also. Yet
another Civil Miscellaneous Petition, namely C.M.P.No.698 of 2008 has also been filed seeking the leave of the Court to lead additional evidence.
In both the civil miscellaneous petitions, the third respondent has filed a counter admitting that the offending vehicle, namely the bus bearing
Registration No. TN-29-W-7999, which was involved in the accident, was in fact, insured with the third respondent as on the date of accident. By
such an admission, the third respondent has also made an admission that any liability of the owner of the vehicle to pay compensation to the
appellant/claimant shall be shouldered by the third respondent by virtue of the contract of insurance. In view of the above said admission,
C.M.P.No.697 of 2008 seeking leave of the Court to raise additional issue challenging the award of the Tribunal regarding the fixation of liability
on the third respondent has got to be allowed in the interest of justice. Accordingly, C.M.P.No.697 of 2008 is allowed and the petitioner
therein/appellant in the C.M.A. is allowed to raise the ground challenging the award of the Tribunal regarding the fixation of liability on the third
respondent insurer also.
In view of the fact that the third respondent has admitted the coverage of the vehicle belonging to the second respondent, namely the bus bearing
Registration No. TN-29-W-7999 (the alleged offending vehicle), the miscellaneous petition C.M.P.No.698 of 2008 filed for getting the leave of
the Court to lead additional evidence has been not pressed by the appellant and hence the same is dismissed.
The points that arise for consideration in the appeal are as follows:
i) Whether the finding of the Tribunal that the offending vehicle (bus) belonging to the 2nd respondent was not insured with the 3rd respondent and
thus exonerating the third respondent from its liability to pay compensation deserves to be interfered with.
ii) Whether the Tribunal was right in holding that the appellant herein/claimant was guilty of contributory negligence?
iii) Whether the compensation awarded by the Tribunal is too low requiring enhancement?
Apart from filing a counter statement, admitting that the offending vehicle, namely the bus bearing Registration No. TN-29-W-7999 stood
insured with the third respondent on the date of accident, it was also represented through the learned Counsel for the third respondent, that part of
the award of the Tribunal dismissing the claim as against the third respondent in entirety has got to be reversed and set aside. In view of the same,
this Court hereby holds that the Award of the Tribunal holding that the third respondent insurer was not liable to pay compensation to the
appellant/claimant for the injuries sustained by him in the accident that took place on 23.05.1999 deserves to be interfered with and reversed
holding that the third respondent herein, as the insurer of the vehicle bearing Registration No. TN-29-W-7999 is jointly and severally liable along
with the respondents 1 and 2, who were the driver and owner of the said vehicle, to pay compensation to the insured claimant.
During the pendency of the appeal, it was represented by the Counsel for the second respondent that the second respondent was reported
dead. However, the Counsel did not furnish the particulars of legal representatives. As the third respondent insurer has admitted coverage of
insurance and conceded that the entire liability of the owner of the offending vehicle, namely the shouldered by the third respondent, the appellant
has been exempted from taking steps to implead the legal heirs of the deceased second respondent and the presence of the third respondent is held
sufficient for the disposal of the case on merit. The third respondent has expressed no objection for thus proceeding with the case without
impleading the legal heirs of the deceased second respondent.
The appellant/claimant has made clear averment in his claim petition that while he was proceeding in his motorcycle slowly and cautiously from
Krishnagiri, he was hit by the bus bearing Registration No. TN-29-W-7999 that came in the opposite direction, as the same was driven by its
driver rashly and negligently. It is also obvious from Ex.A.1 that the police registered a case only against the first respondent, the driver of the bus.
No evidence either oral or documentary has been adduced on the side of the respondents to show that the driver of the bus was not at fault or that
there was negligence or contributory negligence on the part of the appellant/claimant. In the absence of any contra evidence and that too, while the
evidence of P.W.1, corroborated by the contents of Ex.A.1, stands unchallenged and uncontroverted, the Tribunal should not have chosen to
assume that the accident should have been caused by the negligence of the appellant as well as the driver of the bus bearing Registration No. TN-
29-W-7999. The very approach made by the Tribunal is erroneous and against all canons of law. Absolutely, there won''t be any justification in
approving the decision arrived at by the Tribunal to the effect that the appellant/claimant was also guilty of contributory negligence. In view of the
above said erroneous decision, the Tribunal has also wrongly held that the appellant should bear 30% of the loss and 70% of the loss alone has to
be reimbursed by the driver and owner of the bus bearing Registration No. TN-29-W-7999.
In view of the foregoing discussion, this Court does not have any hesitation to hold that the said decision of the Tribunal, not supported by any
evidence, is liable to be reversed. Accordingly, in supersession of the above said erroneous decision arrived at by the Tribunal, this Court holds
that the accident occurs solely due to the rash and negligent driving of the bus by its driver, namely the first respondent herein and that the driver,
owner and insurer of the bus are jointly and severally liable for the loss sustained by the appellant/claimant in its entirety. It is not in dispute that the
offending vehicle, namely the bus bearing Registration No. TN-29-W-7999 belonged to the second respondent herein and it was driven by the
first respondent herein at the time of accident. It has also been held supra that the said vehicle stood insured with the third respondent as on the
date of accident. Therefore, all the three respondents are jointly and severally liable to pay compensation to the appellant/claimant to the extent of
the loss suffered by him due to the accident.
The appellant/claimant is proved to have sustained grievous injuries in the accident concerned in this case. Clear evidence has been adduced
through P.Ws.1 to 3 and Exs.A.1 to A.20 to the effect that the appellant/claimant suffered fracture of both bones (radius and ulna) on the right
hand, for which he had to undergo surgery in the hospital. The private medical practitioner, who is said to have given treatment to the
appellant/claimant, has given testimony as P.W.2 to the effect that he received Rs. 9,800/- as fees from the appellant/claimant. P.W.3 after
examining the claimant and based on his clinical examinations and with the help of x-ray report, has certified that the appellant/claimant had suffered
permanent disability to the tune of 65%. The disability certificate issued by him has been marked as Ex.A.20. The correctness of the method of
assessment made by him and the certificate of disability issued by him have not been challenged by cross-examining him on the said aspects. The
x-ray taken on the claimant and x-ray report have been marked as Exs.A.11 and A.12 respectively. The disabilities correspond to the injuries
noted in Ex.A2-wound certificate issued to the appellant/claimant in the Government Hospital. Therefore, we have to accept the assessment of
disability made by P.W.3 to be correct. The Tribunal also relied on the disability certificate and held that the appellant/claimant had sustained
permanent disability. However, the Tribunal has not given a clear finding as to the extent of disability. It awarded only a sum of Rs. 20,000/-
towards permanent disability and the loss of income occasioned due to the permanent disability. It has also awarded a sum of Rs. 20,000/-
towards pain and suffering. The Tribunal assessed a sum of Rs. 1,00,000/- as compensation for medical expenses. For loss of earning during the
period of treatment and expenses towards extra-nutrition, the Tribunal has awarded a sum of Rs. 10,000/- and thus, arrived at a total sum of Rs.
1,50,000/- as compensation.
So far as the medical expenses is concerned, it is admitted by the Counsel appearing on either side that the assessment of damages for medical
expenses was done by the Tribunal on a rational basis based on the vouchers produced by the appellant/claimant. The medical bills are marked as
Ex.A18 series and Ex.A19 series. Considering the amount spent on medical expenses by the appellant/claimant as evidenced by Ex.A18 series
and Ex.A19 series and also the evidence of P.W.2, this court comes to the conclusion that the award of a sum of Rs. 1,00,000/- towards medical
expenses is neither on the higher side nor on the lower side and hence, the same has got to be confirmed. The appellant/claimant was aged about
38 years as on the date of accident. He was employed in a reputed concern, namely Ashok Leyland Limited. Even thought he appellant/claimant,
as P.W.1 would state that he is not in a position to use his right hand to do his work and hence he has suffered loss of earning, no evidence is
adduced to show that he lost his employment in the company or his wages were reduced. Though the appellant/claimant has stated in his petition
that he was having a monthly salary of Rs. 7,325/-, no document has been produced to substantiate the same. However, as an industrial worker,
we can assume that he might be getting a salary of not less than Rs. 3,500/- per month. Considering the fact that he had to avail leave during
treatment and subsequently, this court deems it fit to award a sum of Rs. 10,000/- as compensation for the loss of earning from the date of
accident till recovery.
Taking into account the nature of injuries and nature of treatment and also the fact that the appellant/claimant has sustained 65% permanent
disability, this court is of the view that the amount awarded by the Tribunal towards pain and suffering is quite reasonable. As sufficient evidence
regarding the loss of earning capacity has not been produced and it is obvious from the evidence that the appellant/claimant is still continued to be
employed in the very same factory, this court comes to the conclusion that it is not a fit case in which multiplier method can be adopted for
assessing the compensation for permanent disability and the only suitable method in this case is lumpsum compensation method. As the
appellant/claimant is middle aged, this court deems it fit to award compensation for permanent disability on limp sum basis at the rate of Rs.
1,400/- per 1% of disability. As such, the amount towards permanent disability comes to Rs. 51,000/-. Awarding a sum of Rs. 5,000/- towards
extra-nourishment shall be quite reasonable. Similarly, awarding a sum of Rs. 4,000/- towards transport expenses shall be quite reasonable. As
such, the total amount of compensation is arrived at Rs. 2,30,000/-, the details of which are as follows:
(i) Compensation for permanent
Disability = Rs. 91,000/-
(ii) Compensation for medical
expenses = Rs. 1,00,000/-
(iii) Compensation for pain and
suffering = Rs. 20,000/-
(iv) Compensation for temporary
loss of earning capacity from
the date of accident till
recovery = Rs. 10,000/-
(v) Compensation for extra-
nourishment expenses = Rs. 5,000/-
(vi) Compensation for transport
expenses = Rs. 4,000/-
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Total Rs. 2,30,000/-
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As pointed out supra, the liability to pay compensation to the entire extent as assessed supra shall be cast on the respondents 1 to 3. The
award of the Tribunal deserves to be modified as indicated supra.
In the result, the appeal is allowed and the award of Tribunal dated 16.03.2001 made in M.C.O.P. No. 132 of 1999 by the Motor Accidents
Claims Tribunal (Subordinate Judge), Hosur is modified by directing the respondents 1 to 3 to jointly and severally pay a sum of Rs. 2,30,000/-
along with interest found in the award of the Tribunal and proportionate costs. Connected C.M.P. No. 697/2008 shall stand allowed where as
C.M.P. No. 698/2008 shall stand dismissed. The appellant shall also be entitled to recover proportionate cost from the respondents.