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Judgment
P.P.S. Janarthana Raja, J.—By consent of both parties, the appeal itself is taken up for final disposal at the admission stage itself.
The appeal is preferred by the Transport Corporation-appellant against award dated 27.04.2004 made in MCOP No. 376 of 2003 by the
Motor Accident Claims Tribunal (II Additional Sub Judge) Erode.
Background facts in a nutshell are as follows:
On 20.03.2005 at about 19.30 hrs., the injured was walking from east to west on Ambatture estate road. At that time, a motorcycle bearing
Registration No. TN-10-F-9643 belonging to the second respondent came in a rash and negligent manner and dashed against the injured from
behind. Due to the same, he fell down and sustained grievous injuries all over the body. The claimant claimed a sum of Rs. 4,00,000/- as
compensation. The said motorcycle was insured with the appellant/Insurance Company resisted the claim. On pleadings the Tribunal framed the
following issues:
1.Whether the accident had occurred due to the rash and negligent riding of the motorcycle rider or not?
2.What is the compensation the claimant is entitled to? If so, what is the amount and from whom?
After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent riding of
the rider of the motorcycle and awarded a compensation of Rs. 2,98,868/- with interest at 7.5% per annum from the date of petition and the
details of the same are as under:
Permanent disability 50% Rs. 50,000/-
Loss of earning Rs. 16,000/-
Pain and suffering Rs. 54,000/-
Extra nourishment Rs. 2,000/-
Medical expenses Rs. 1,42,568/-
Other expenses Rs. 1,000/-
Transportation Rs. 2,000/-
Damage to cloth and articles Rs. 1,000/-
Loss of amenities Rs. 15,000/-
Loss of expectation of life Rs. 15,000/-
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Total... Rs. 2,98,868/-
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Aggrieved by that award, the Insurance Company has filed the present appeal.
The learned Counsel appearing for the appellant/Insurance Company questioned only the quantum of compensation awarded by the Tribunal
and contended that the amount awarded by the Tribunal is excessive, exorbitant, without basis and justification and further he contended that the
Tribunal has not taken into consideration that the FIR was filed after period of 40 days of the accident and therefore, the award passed by the
Tribunal is not in accordance with law and the same has to be set aside.
Learned Counsel appearing for the respondent/claimant submitted that the Tribunal had considered all the relevant materials and evidence on
record and came to the right conclusion and awarded a just, fair and reasonable compensation. Hence the order of the Tribunal is in accordance
with law and the same has to be confirmed.
Heard the counsel. On the side of the claimant, P.Ws.1 and 2 were examined and documents Exs.P1 to P11 were marked. P.W.1 is the
claimant. P.W.2 is one Dr. N. Saichandran. Ex.P.1 and Ex.P.2 are the discharge summaries. Ex.P.3 is the O.P. Record. Ex.P.4 is the prescription.
Ex.P.5 is the series of medical bills. Ex.P.6 is the X-ray. Ex.P.7 is the First Information Report. Ex.P.8 is the sketch. Ex.P.9 is the charge sheet.
Ex.P.10 is the disability certificate. Ex.P.11 is the X-ray. On the side of the appellant-Insurance Company, no one was examined and no document
was marked to support their claim. After considering the oral and documentary evidence, the Tribunal had given a categorical finding that the
accident had occurred only due to the rash and negligent riding of the rider of the motorcycle and the finding is based on valid materials and
evidence.
At the time of accident, the claimant was aged about 65 years. She is a retired teacher and earning sum of Rs. 4,000/- per month. She is PW1
and in her evidence, it is stated that the accident had occurred only due to the rash and negligent riding of the rider of the motorcycle belonging to
the second respondent. The rider of the motorcycle charge sheeted for offences under Sections 338 of IPC in Cr. No. 155/TM3/2005 by
Thirumangalam Police Station. Due to the accident, she sustained the following injuries;
Segmental fracture of tibia left; fracture of left radius; fracture of 4th, 5th and 6th left side ribs, injury on the left side of the chest; injury on the right
hand; injury over the upper part of forehead in the mid line at the joint of the fore head and scalp; and other multiple injuries all over the body;
Immediately after the accident, she was admitted in Soundara Pandiyan bones and Joint Hospital and Research Institute Private Limited, Anna
Nagar, Chennai-40 from 20.03.2005 to 08.04.2005. P.W.2 is one Dr. N. Saichandran and in his evidence, it is stated that the claimant is unable
to do any work as before. She cannot use the Indian toilet and also she is having giddiness and headache. He assessed the disability at 50%.
Ex.P.10 is the disability certificate. Ex.P.11 is the X-ray. Ex.P.1 and Ex.P.2 are the discharge summaries given by the Doctor. Ex.P.3 is the O.P.
Records. After considering the above oral and documentary evidence, the Tribunal has fixed the disability at 50% and awarded a sum of Rs.
50,000/- towards permanent disability of 50%. There is a specific finding given by the Tribunal and it is noticeable fact that the claimant would
have been disabled from attending her job for a period of four months. Normally the Courts used to award Rs. 1000/- to 2000/- for each
percentage of disability. In this case, the Tribunal has awarded Rs. 1,000/- for each percentage of disability. After considering facts and
circumstances of the case, the award amount of Rs. 50,000/- (50% x 1000) passed by the Tribunal is very reasonable and the same is hereby
confirmed. Further, the Tribunal also awarded a sum of Rs. 16,000/- towards loss of earning capacity. The learned Counsel appearing for the
appellant/Insurance Company vehemently contended that, when the loss towards permanent disability awarded, the Tribunal ought not to have
awarded a sum of Rs. 16,000/- towards loss of earning capacity. He also relied upon A Full Bench of this Court in the case of Cholan Roadways
v. Ahmed Thambi reported in Cholan Roadways Corporation Ltd. Vs. Ahmed Thambi and Others, , held that whenever compensation towards
permanent disability is awarded, further amount towards loss of income should not be awarded. Applying the principle enunciated in the above Full
Bench decision of this Court, the award of the Tribunal in respect of loss of earning at Rs. 16,000/- is not in accordance with law and therefore,
the same has to be set aside. The Tribunal also awarded a sum of Rs. 54,000/- towards pain and suffering. After considering the nature of injury as
stated above, the award amount is excessive and therefore, it is appropriate to award a sum of Rs. 40,000/- towards pain and suffering. There is
no dispute regarding the same. The Tribunal also awarded a sum of Rs. 2,000/- towards extra nourishment, Rs. 2,000/- towards transportation
and Rs. 1,000/- towards damage to cloth and articles, which are reasonable award amount and the same are hereby confirmed. Further, the
Tribunal also awarded a sum of Rs. 1,42,568/- towards medical expenses. Ex.P.5 is the series of medical bills. It is actual expenditure. Therefore,
the Tribunal correctly awarded a sum of Rs. 1,42,568 towards medical expenses and the same is hereby confirmed. The Tribunal also awarded a
sum of Rs. 1,000/- towards other expenses, which is unwarranted and the same has to be set aside. The Tribunal also awarded a sum of Rs.
15,000/- towards loss of amenities. After considering the facts and circumstances of the case and nature of the injury, it is just, fair and reasonable
award amount and the same is hereby confirmed. Further, the Tribunal also awarded a sum of Rs. 15,000/- towards loss of expectation of life.
After considering the age of the claimant at 65 years old, the award passed by the Tribunal towards loss of expectation of life is unwarranted and
the same has to be set aside. The Tribunal also awarded the interest rate at 7.5%. After considering the date of accident on 20.03.2005 and the
prevailing rate of interest, it is reasonable and the same is hereby confirmed. The details of the modified compensation as per the above discussion
are as under:
Permanent disability 50% Rs. 50,000/-
Pain and suffering Rs. 40,000/-
Extra nourishment Rs. 2,000/-
Medical expenses Rs. 1,42,568/-
Transportation Rs. 2,000/-
Damage to cloth and articles Rs. 1,000/-
Loss of amenities Rs. 15,000/-
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Total... Rs. 2,52,568/-
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(The award amount rounded of Rs. 2,52,600/-)
Therefore, the claimant is entitled to the modified compensation of Rs. 2,52,600/- as against the compensation of Rs. 2,98,868/- awarded by the
Tribunal.
The learned Counsel appearing for the appellant-Insurance Company has submitted that already a sum of Rs. 2,25,000/- has been deposited as
per order of this Court dated 10.07.2008. In such circumstance, the appellant/Insurance Company is directed to deposit the balance amount with
7.5% within four weeks from the date of receipt of a copy of this order. On deposit of such amount, the claimant is permitted to withdraw the
modified award amount of Rs. 2,52,600/- with interest at 7.5% p.a. from the date of petition, after adjusting the amount, if any, already withdrawn,
on making proper application.
With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs. Consequently, M.P. No. 1 of 2008 is dismissed.