IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.03.2010
CORAM
THE HONOURABLE MR. JUSTICE. C.S.KARNAN
C.M.A.No.1589 of 2008
S.Suguna .. Appellant
Vs
1.R.Ranganathan
2.United India Insurance Co., Ltd., .. Respondents
(R1 Ex-parte)
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 10.07.2006, made in M.C.O.P.No.4443 of 2000, on the file of the Motor Accident Claims Tribunal, IIIrd Small Causes Court, Chennai.
For appellant : Mr.U.M.Ravichandran
For respondents : Mr.N.Vijayaraghavan for R2
J U D G M E N T
The above Civil Miscellaneous Appeal has been filed by the appellant/petitioner against the Award and Decree, dated 10.07.2006, made in M.C.O.P.No.4443 of 2000, on the file of the Motor Accident Claims Tribunal, IIIrd Small Causes Court, Chennai, awarding a compensation of Rs.28,600/- with 7.5% interest per annum, from the date of filing petition till the date of payment of compensation.
2.Aggrieved by the said Award and Decree, the appellant/petitioner has filed the above appeal praying for enhanced compensation of Rs.1,00,000/- together with interest at the rate of 12% per annum from the date of filing the petition till the date of payment of compensation.
3.The short facts of the case are as follows:
On 14.07.2000, at about 09.00 hrs, while the petitioner was travelling as a passenger in an Autorickshaw bearing registration No.TN01 P2408, from south to north, at the western side of the Kanthanchavadi Bazar, the driver of the said autorickshaw drove the auto in a rash and negligent manner and dashed the auto against a parked auto bearing registration No.A/T TN21 A8998. As a result of the accident, the auto bearing registration No.TN01 P2408, turned turtle. Consequent to this, the petitioner sustained grievious injuries.
4.Due to the accident, the petitioner sustained fracture of right shoulder, injury on the right and left legs, back of her body, face and other multiple injuries all over her body. The petitioner was taken to Government Royapettah Hospital, Chennai and received medical treatment.
5.The petitioner was a flower vendor and was earning a sum of Rs.100/- per day. As the first respondent is the owner of the Autorickshaw bearing registration No.TN01 P2408 and the second respondent is its insurer, both the respondents are jointly liable to pay compensation to the petitioner. The petitioner’ has claimed a compensation of Rs.1,00,000/- from the respondents with interest and costs under Section 166 and 142(B) of the Motor Vehicles Act.
6.Regarding the said accident, a criminal case has been registered at C4, Thuraipakkam Police Station, Thuraipakkam in Crime No.362 of 1999.
7.The first respondent remained absent and he was set exparte.
8.The second respondent, in his common counter, has resisted the claim denying the averments in the claim as regards the age, income and occupation of the petitioner as well as the place, date and time of accident. The respondent has also not admitted the averments in the claim regarding the nature of injuries, period of treatment, medical expenses and alleged disability. It was also submitted that the driver of the vehicle bearing registration No.TN01 P2408 was not covered with a valid policy of insurance at the time of accident and that it was operated without a valid permit. It was also submitted that the driver of the said vehicle did not possess a valid driving licence at the time of accident. It was also submitted that the claim was excessive and has to be dismissed with costs.
9.The Motor Accident Claims Tribunal framed four issues for the consideration namely:
(i) Did the petitioner sustain injuries in the road traffic accident, which happened on14.07.1999 and did the accident involve the autorikshaw bearing registration No.TN01 P2408?
(ii)Whether the said autorickshaw was insured with the second respondent?
(iii)Whether the petitioner is entitled to get compensation? If so, what is the quantum of compensation, which she is entitled to get?
(iv)To what relief is the petitioner entitled to get?
10.On the petitioner side, the petitioner was examined as PW2 and Dr.N.Saichandran, who issued Disability Certificate, was examined as PW3 and seven documents were marked as Exs.P1 to P7. On the respondents’ side, no witnesses were examined and no documents were marked.
11.The petitioner has stated in her evidence that on 14.07.1999, at about 9 O’clock in the morning, when the petitioner was travelling in the autorickshaw bearing registration No.TN01 P2408, from south to north, on the western side of the Kandanchavadi Bazar, the driver of the said autorickshaw drove the auto in a rash and negligent manner and dashed against the auto bearing registration No.A/T TN21 A8998, resulting in the auto bearing registration No.TN01 P2408 to turn turtle and that in the result, she had sustained injuries and was admitted in Government Royapettah Hospital, Chennai and that she had undergone treatment like dressing, bandages and other treatments for two months. Exs.P1 and P3 are the case sheet and O.P.chit. Thuraipakkam Police registered a case in Crime No.362/1999. Ex.P2 is the copy of FIR. The contention of the respondent that the petitioner was negligently seated in the auto and thus had invited the accident was not found acceptable by the Tribunal in the absence of any evidence to prove it. The Tribunal also did not accept the contention of the respondent that the auto bearing registration No.TN01 P2408 was driven carefully by its driver, observing all the traffic regulations as no evidence has been let in to prove the said contention. Further, the driver of the auto had not appeared before the Tribunal and adduced any evidence to prove the negligence of the petitioner. The second respondent Insurance Company also has not taken any steps to examine the driver of the auto. As such, the Tribunal held that the accident happened only due to the rash and negligent driving of the auto bearing registration No.TN01 P2408.
12.The second respondent has not admitted that the said auto had been covered with a valid insurance policy with them and has contended that the owner of the auto bearing registration No.TN01 P2408 has not submitted any claim form with the vehicle records for due verification by them. But, no evidence has been adduced by the second respondent and no documents were marked to establish that the said auto was not covered under a policy of insurance with them and that the driver of the auto did not have a valid driving licence at the time of accident. Hence, the Tribunal considering the facts and circumstances of the case, held that the said auto was covered with a valid policy of insurance with the second respondent.
13.The petitioner has stated in her evidence that immediately after the accident, she was taken to Government Royapettah Hospital, Chennai and took treatment for a period of two months. Ex.P3 is the case sheet. The petitioner has claimed a sum of Rs.2,000/- towards transportation to hospital. But, the petitioner has not produced any documentary evidence to prove the said expenses and has also not stated anything about the details regarding distance travelled. As such, the Tribunal awarded a compensation of Rs.500/- to the petitioner under the head of transport expenses. The Tribunal also considering that the petitioner has undergone treatment in the hospital for a period of one month and that she was aged about 20 years at the time of accident, awarded a compensation of Rs.500/- to the petitioner under the head of nutrition.
14.Ex.P3 is the O.P.Chit. It is seen on scrutiny of Ex.P3 that the petitioner has sustained injuries and that she has undergone treatment. But, the Tribunal on seeing that no medical bills had been produced and also on considering that the petitioner had undergone treatment at Government Hospital, Royapettah, wherein all the treatment and medicines given are free of cost and also considering that no documents had been marked to prove that the petitioner had received private treatment and O.P.treatment, awarded a sum of Rs.100/- under the head of medical expenses.
15.Though the petitioner has stated in her evidence that she was a flower vendor at the time of accident and earning a sum of Rs.100/- per day, no documentary evidence has been furnished to prove her employment and income. Though the petitioner has claimed a compensation of Rs.6,000/- for the loss of earning sustained by her during the period she was unable to do work ie.from 14.07.1999 to 13.09.1999, no documentary evidence has been let in by the petitioner to establish the loss of earning sustained by her. As such, the Tribunal awarded only a sum of Rs.1,500/- to the petitioner under the head of loss of earning during the period of treatment.
16.Further, the Tribunal on considering the Ex.P3, the Case Sheet and Ex.P6, the Disability Certificate held that the petitioner has undergone pain and suffering subsequent to the accident and during the period of treatment and accordingly awarded a sum of Rs.6,000/- to the petitioner under the head of pain and suffering.
17.The petitioner has claimed a compensation of Rs.43,000/- towards permanent disability sustained by her in the accident and has marked Ex.P6, the Disability Certificate issued by the Doctor. The Dr.N.Saichandran was examined as PW3. The PW3 in his evidence has stated that he had assessed the permanent disability after due examination as 20%. But, PW2 admitted that he has not given any treatment to the petitioner and that he does not know what type of treatment the petitioner had received after the accident. The Doctor, who had given the treatment to her immediately after the accident had not been examined. The PW3 has deposed in his evidence that due to the injuries sustained by the petitioner in the road accident on 14.07.1999, the right shoulder bone of the petitioner has been dislocated and the muscles had hardened in that area and that due to this defect, the petitioner’s movement of her hands had been reduced by 30 Degrees. As such, the Doctor had certified that the petitioner has sustained 20% partial disability of her arm. In support of his evidence, he had marked Ex.P6, the Disability Certificate and Ex.P7, the X’rays.
18.On considering that the petitioner has sustained simple injuries and also considering the contention of the second respondent’s counsel that the assessment of the PW3 was not done on the basis of scientific Macbrid Scale and also nothing that the Doctor, who had treated her for the injuries sustained by her in the accident, had not been examined, the Tribunal awarded a sum of Rs.15,000/- only to the petitioner under the head of continuing permanent disability and loss of earning power as it was found to be relevant as per rules laid down in Schedule-I of the Workmen’s Compensation Act, 1923. The Tribunal further awarded a sum of Rs.5,000/- to the petitioner under the head of loss of earning power.
19.In total, the Tribunal awarded a sum of Rs.28,600/- to the petitioner (including interim award passed if any) and directed the second respondent to deposit the above said award with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.4443 of 2000, on the file of the Motor Accident Claims Tribunal, IIIrd Small Causes Court, Chennai, within a period of two months, from the date of its Order (the petitioner is not entitled to interest from 10.01.2005 to 10.03.2005 as per Order in M.P.No.701 of 2005, dated 10.03.1995). After such deposit was made, the award was to be deposited in a nationalised bank, as fixed deposit for a period of three years. The Court fee for the award amount was fixed at Rs.50/- and the excess Court fee paid by the petitioner was to be refunded to her, after appeal time. The Advocate fee was fixed at Rs.1,180. The second respondent was directed to pay the cost of Rs.1,275/- to the petitioner.
20.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal ought to have awarded the entire sum of Rs.25,000/- under the head of pain and suffering since the petitioner has sustained grievious injuries and the orthopaedic surgeon assessed the permanent disability to the tune of 20%, but the Tribunal had awarded only a sum of Rs.6,000/- under this head. The Tribunal had also awarded a sum of Rs.15,000/- only under the head of permanent disability. The learned counsel appearing for the appellant contended that as the orthopaedic surgeon assessed the permanent disability to the tune of 20% and the Tribunal after considering the above assessment as well as the grievious injuries suffered by the petitioners and the period of treatment should have awarded the entire sum of Rs.43,000/- claimed by the claimant under the head of permanent disability. It was also pointed out that the awards passed under the heads of loss of earning power, transport, loss of earning, nourishment are meagre.
21.As such, the learned counsel appearing for the appellant has prayed for enhanced compensation of Rs.1,00,000/- with 12% interest per annum from the date of filing the petition till the date of payment of compensation.
22.In support of his contentions, the learned counsel appearing for the appellant has cited a case law made in 2009(2) TN MAC 150 (SC), Supreme Court of India, Priya Vasant Kalgutkar v. Murad Shaikh & Ors. the relevant head notes of which are as follows:
“MOTOR VEHICLES ACT, 1988, Ss.166 & 173 Appeal for enhancement of Compensation Non-fatal Accident Injured, a minor girl aged 9 years Injuries : Swelling deformity and fracture of middle 3rd of left thigh (femur shaft) and abrasion over left frontal region and right lateral aspect Disability : 10-15% assessed by one Doctor and 20-25% assessed by another Doctor, since injured was treated by two Doctors Claim : Rs.3,00,000 Tribunal awarded Rs.40,000 towards 10% Permanent Disability, Rs.18,000 towards Pain & Suffering, Rs.12,460 towards Diet and Attendant Charges, Rs.323 towards Medical Expenses – Rs.72,785 awarded as Total Compensation by Tribunal High Court in Appeal awarded Rs.15,000 for Loss of Amenities and Discomfort due to Disability, Rs.30,000 for Pain & Suffering, Rs.10,000 for Medical and Incidental Expenses relating to treatment, Rs.27,000 (1500 X 18) for Loss of Future Earning on account of Disability and Rs.20,000 for Loss of Marriage Prospects due to Disability Rs.1,12,000 awarded in Appeal (as against Rs.72,785 awarded by Tribunal) without assigning any reason Appeal against Appellant contending that Compensation on basis of notional income should not have been determined Injured, being a minor child having no earning, future loss of earning or prospective loss of earning could not have been determined on basis of any legal principle Compensation for injuries can be determined either on basis of actual damages suffered or upon application of structured formula specified in Second Schedule Second Schedule provides for notional income of Rs.15,000 p.a. Where no income is proved or where injured/deceased had no income prior to accident And, Multiplier required to be applied would be 15 Thus, under head of disability, Compensation can be determined only on that basis Applying principles laid in Lata Wadhwa, Compensation granted by High Court held to be adequate in absence of evidence as to actual damage.”
23.The learned counsel appearing for the second respondent vehemently argued that the appellant has sustained only simple injuries in the said accident. The Tribunal, after well considering the nature of injuries and mode of treatment had awarded the compensation. The compensation has been awarded under the appropriate heads and reasons for the award arrived at has also been duly given by the Tribunal. The Doctor, who had issued disability of 20% has stated that it is a partial disability only and not permanent in nature. Further, the said Doctor, who had assessed the disability had not given any treatment to the claimant at the time of accident. As such, the learned counsel appearing for the second respondent had pointed out that the Tribunal’s order is fair and as such the appeal is not maintainable.
24.After going through the findings of the Tribunal and arguments advanced by the learned counsels for their respective parties and the citation submitted by the learned counsel appearing for the appellant, this Court is of the view that the award granted by the Tribunal is on the lower side and has to be enhanced. Accordingly, this Court grants the compensation as follows:
1.For disability, this Court awards a compensation of Rs.40,000/- to the claimant, taken into consideration that the claimant has sustained 20% disability in the said accident.
2.For transport expenses, the Tribunal awarded a sum of Rs.500/-. This Court enhances the award granted under this head to Rs.1,000/-.
3.For nutrition, the Tribunal awarded a sum of Rs.500/-. This Court enhances the award granted under this head to Rs.2,000/-.
4.For medical expenses, the Tribunal awarded a sum of Rs.100/-. This Court enhances the award granted under this head to Rs.1,000/- in spite of absence of medical bills to prove the same, considering the Doctor’s medical examination and disability certificate.
5.For loss of earning, the Tribunal awarded a sum of Rs.1,500/-. This Court enhances the award granted under this head to Rs.3,000/-.
6.For pain and suffering, the Tribunal awarded a sum of Rs.6,000/-. This Court confirms the award granted under this head as it is found to be reasonable and fair.
7.For permanent disability, the Tribunal awarded a sum of Rs.15,000/-. This Court sets aside the same as it is found not relevant.
8.For loss of earning power, the Tribunal awarded a sum of Rs.5,000/-. This Court sets aside the same as it is found not relevant.
In total, this Court awards a sum of Rs.53,000/- as compensation to the claimant together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation as it is found to be equitable and fair.
25.Therefore, this Court directs the respondent/the United India Insurance Co., Ltd., to deposit the balance compensation amount of a sum of Rs.24,400/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.4443 of 2000, on the file of the Motor Accident Claims Tribunal, IIIrd Small Causes Court, Chennai, within a period of four weeks from the date of receipt of this Order.
26.As the accident happened in the year 1999, it is open to the claimant to withdraw the additional compensation amount, with accrued interest thereon, lying in the credit of the M.C.O.P.No.4443 of 2000, on the file of the Motor Accident Claims Tribunal, IIIrd Small Causes Court, Chennai, after filing necessary payment out application, in accordance with law.
27.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 10.07.2006, in M.C.O.P.No.4443 of 2000, passed by the Motor Accident Claims Tribunal, IIIrd Small Causes Court, Chennai, is modified. Consequently, connected miscellaneous petition is closed. There is no order as to costs.
krk
To
1. Motor Vehicles Accident Claims Tribunal,
IIIrd Small Causes Court, Chennai.
2. The Section Officer,
VR Section, High Court,
Madras
