Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
29. 10.2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.No.2044 of 2009 Sathasivam ... Appellant Vs. 1.Shanmugam 2.The Manager New India Assurance Company Arakkonam-631 001 ... Respondents PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 20.12.2005, made in M.C.O.P.No.796 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Tiruvallur. For Appellant : Mr.G.Karthikeyan For Respondents : Mr.C.Ramesh Babu for R2 Not ready notice for R1 - - -
JUDGMENT
The appellant / claimant has preferred the present appeal against the judgment and decree dated 20.12.2005, made in M.C.O.P.No.796 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Tiruvallur.
2. The short facts of the case are as follows:- The claimant had filed a claim petition in M.C.O.P.No.796 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Tiruvallur, claiming a sum of Rs.15,00,000/- as compensation from the respondents for the injuries sustained by him in a motor vehicle accident.
3. It was submitted that on 06.05.2003, when the claimant was riding on a Hero Honda Motorcycle bearing registration No.TN20 K2031, along with one Mani, from Tiruttani to Thiruvallur and at about 04.30 p.m., when the vehicle was proceeding on the extreme left of the road near Pattaraiperumbudur Bus Stop, the first respondent's van bearing registration No.TN23 X7277, coming from Thiruvallur towards Tiruttani and driven at a high speed and in a rash and negligent manner, dashed against one Jayapalan, who was waiting in the bus stop and subsequently dashed against the motorcycle. As a result, the said Jayapalan, Mani and the claimant sustained grievous injuries. He was admitted at Sri Ramachandra Hospital, Porur, Chennai and received treatment as an inpatient from 06.05.2003 to 30.05.2003 and subsequently received treatment at the same hospital on 25.06.2003. Subsequently, he took treatment at Bone and Joint Clinic, Anna Nagar, Chennai, from 25.06.2003 to 18.07.2003 and from 11.08.2003 to 27.08.2003 and from 08.09.2003 to 26.09.2003 as an inpatient. At the time of accident, the claimant was aged 48 years and was running a groundnut and paddy business and earning Rs.15,000/- per month. Due to the disability sustained in the accident, he is not able to do his work as before. Hence, the claimant had filed the claim petition against the respondents, who are the owner and insurer of the van bearing registration No.TN23 X7277.
4. The second respondent Insurance Company, in their counter affidavit, had submitted that the first respondent's van bearing registration No.TN23 X7277 was not insured with them at the time of accident. The averments made in the claim petition regarding place of accident, manner of accident and involvement of the van bearing registration No.TN23 X7277 were also not admitted. The averments in the claim regarding nature of injuries sustained, period of treatment and medical expenses incurred were also not admitted. It was also submitted that the claimant has to implead the insurer of the motorcycle as necessary party in the claim. Further, it was submitted that the claim was excessive.
5. On considering the averments of both sides, the Tribunal had framed two issues for consideration namely: i. Whether the claimant is entitled to get compensation?. and ii. Whether there was negligence on the part of the respondents' van driver?.
6. In the same accident, two other claim petitions had been filed by the said Jayapalan and Mani in M.C.O.P.Nos.521 and 523 of 2003, claiming compensation from the same respondents for the injuries sustained by them. Based on a joint memo filed by the counsels for their respective parties, a joint trial was conducted and a common evidence was recorded. The claimants in M.C.O.P.Nos.521, 523 and 796 of 2003 were examined as P.Ws.1 to 3 respectively and one Dr.J.R.R.Thiagarajan was examined as P.W.4 and 20 documents were marked as Exs.P1 to P20 namely copy of FIR, copy of charge sheet, copy of M.V.I.report, discharge summaries, medical bill series, copy of wound certificate, outpatient service cards, copy of accident register, business tax receipts and disability certificates. On the side of the respondents, no witness was let in and no document was marked.
7. P.Ws.1 to 3 had adduced evidence, which is corroborative of the statements made by them in the claim regarding manner of accident. They had deposed that the accident was caused by the rash and negligent driving by the driver of the first respondent's van and in support of their evidence, they had marked Exs.P1 to P20. The Tribunal, on scrutiny of Exs.P1 and P2, observed that the F.I.R., and charge sheet had been filed against the driver of the first respondent's van. On scrutiny of Ex.P3, it is seen that the accident had not been caused due to any mechanism failure of the van. The Tribunal, on scrutiny of oral and documentary evidence and on observing that no investigation report or investigation officer had been examined by the second respondent to prove his contention that the accident was caused by the rash and negligent driving on the part of the motorcycle rider, held that the accident had been caused by the rash and negligent driving of the first respondent's van driver and hence held that the respondents are liable to pay compensation.
8. P.W.4 Doctor had adduced evidence that the claimant had sustained malunited fracture of right femur with shortening of right leg of 1 = inch extension insitu, right hip flexion only upto 60 Degrees, left femur supracondylar fracture, malunited implant insitu flexion left knee 45 Degrees possible bedridden, left leg both bones malunited fracture with fibrosis, left ankle nil movement, left forearm malunited, flexion of 80 degrees, left hand 5th metacorpal bone malunited and the gripping of articles is reduced, ribs right malunited, difficulty to breath and do hard work. He had deposed that the disability sustained by the claimant was 100%. The Tribunal observed, on scrutiny of Ex.P12, that the previous injury to thigh sustained 15 years back was treated conservatively and that the patient had shortening of left lower limb. It is also seen that the claimant was a diabetic patient on medication. It is seen that on 06.10.2003, the claimant was treated and he underwent wound debridement and external fixation for left tibia and that on 07.05.2003, ORIF left radius and ORIF right femur with bone grafting was performed and that on 12.05.2003 nail removed from left femur had been done. The Tribunal observed that the other disability as to the shortening of the leg was not connected to the accident.
9. Hence, the Tribunal, on scrutiny of oral and documentary evidence, awarded a sum of Rs.50,000/- towards injuries, Rs.3,50,000/- for medical expenses and treatment and Rs.75,000/- for pain and suffering. In total, the Tribunal awarded a sum of Rs.4,75,000/- as compensation to the claimant and directed the respondents to pay the said sum 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, with costs, within a period of two months from the date of it's order.
10. Not being satisfied by the award passed by the Tribunal, the claimant has preferred the present civil miscellaneous appeal.
11. The learned counsel appearing for the appellant has contended in the appeal that the Tribunal erred in granting only a sum of Rs.3,50,000/- towards treatment and other expenses, when the bills produced by the appellant itself is much more than the amount awarded. It is also contended that the Tribunal erred in awarding only Rs.50,000/- towards injuries. Further, it is contended that the Tribunal should have granted reasonable amount towards loss of earning capacity and permanent disability. It was also contended that the Tribunal ought to have considered the income proof filed by the appellant herein before arriving at the award amount. Hence, it is prayed for grant of additional compensation of Rs.7,25,000/-.
12. The learned counsel appearing for the Insurance Company has submitted that the Tribunal had awarded the compensation adequately after considering the relevant records of the claimant. The Doctor had assessed the disability at 100% which is on the higher side. In the said accident, two vehicles had been involved and as such the owner and insurer of the motorcycle are also necessary parties but they have not been included as necessary parties. As such, the claim is not maintainable.
13. On verifying the factual position of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the view that the claimant had been admitted at Ramachandra Hospital, Porur, on 06.05.2003 and he had been hospitalized till 26.09.2003. During this period, surgical operation was conducted on his right thigh and his left thigh bone had also fractured and therefore another surgical operation had been conducted, as per medical evidence. Besides this, the claimant had undergone treatment at Bone and Joint Clinic at Anna Nagar. The Tribunal had granted a sum of Rs.3,50,000/- for medical expenses. After deducting medical expenses, the balance compensation of a sum of Rs.1,25,000/- awarded under the various other heads are on the lower side. Therefore, this Court grants additional compensation as follows: i. Rs.1,20,000/- is awarded for disability, ii. Rs.15,000/- is awarded towards pain and suffering, iii. Rs.5,000/- is awarded towards transport expenses, iv. Rs.10,000/- is awarded towards attender charges, v. Rs.10,000/- is awarded towards nutrition, vi. Rs.10,000/- is awarded towards loss of earning during medical treatment and convalescence period, and vii. Rs.50,000/- is awarded towards loss of amenities and loss of comfort. In total, this Court awards a sum of Rs.,2,20,000/- as additional compensation to the claimant, as it is found to be appropriate in the instant case. This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation.
14. This Court directs the second respondent Insurance Company to execute this Court's Judgment, by way of depositing the additional compensation amount, with accrued interest thereon, to the credit of M.C.O.P.No.796 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Tiruvallur, within a period of four weeks from the date of receipt of a copy of this Judgment.
15. After such a deposit having been made, it is open to the claimant to withdraw the entire compensation amount, with accrued interest thereon, lying in the credit of M.C.O.P.No.796 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Tiruvallur, after filing a memo along with a copy of this Judgment.
16. In the result, this civil miscellaneous appeal is partly allowed and the Judgment and decree dated 20.12.2005, made in M.C.O.P.No.796 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.V, Tiruvallur, is modified. No costs. 29.10.2013 Index : Yes/No Internet : Yes/No krk To:
1. The Additional District Judge Motor Accident Claims Tribunal Additional District Court Fast Track Court No.V, Tiruvallur 2.The Section Officer V.R.Section, High Court Madras C.S.KARNAN, J.
krk C.M.A.No.2044 of 2009 29.10.2013