(Prayer: The Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 22.06.2009 made in M.C.O.P.No.34 of 2007 on the file of the Motor Accidents Claims Tribunal (Subordinate Judge), Sivagangai.)
1. The Civil Miscellaneous Appeal is filed by the appellant / claimant challenging the award dated 22.06.2009 in M.C.O.P.No.34 of 2007, passed by the learned Subordinate Judge, Motor Accidents Claims Tribunal, Sivagangai
2. The appellant is the claimant. He filed a claim petition in M.C.O.P.No.34 of 2007 before the Tribunal, claiming a sum of Rs.5,00,000/- as compensation, for the injuries sustained by him in a road accident, that took place on 22.03.2006.
3.The facts of the case are as follows: -
(i) It is the case of the appellant / claimant before the Tribunal that on 22.03.2006 Morning, he was riding a Bajaj motorcycle, bearing Registration No.TN-63-E-5871, belonging to his son, from Sivagangai to Kalaiyaarkovil. At that time, near Sivagangai Bus Stand, a lorry bearing Registration No.TTR-2489 belonging to the first respondent, insured with the second respondent, was driven by its driver in a rash and negligent manner and hit the motorcycle from behind. Due to the impact, the appellant sustained grievous injuries in the head and he was admitted in Apollo Hospital, Madurai, on the same day, i.e., 22.03.2006 and was taking treatment as inpatient from 22.03.2006 to 25.0`4.2006. He underwent surgery on the right side of the brain and also near the eye. Due to the accident, he was not able to speak properly. Therefore, he claimed a sum of Rs.5,00,000/- as compensation.
(ii) Before the Tribunal, the first respondent remained ex parte. The second respondent filed a counter statement and denied various averments made in the claim petition. The second respondent stated that the owner and insurer of the motorcycle are necessary parties, but they were not impleaded as parties in the claim petition. The appellant has to prove that he was having valid driving licence at the time of accident.
(iii) Before the Tribunal, the appellant himself examined as P.W.1 and one Dr.Sivakumar was examined as P.W.2 and 8 documents were marked as Exs.P.1 to P.8. The respondents did not let in oral and documentary evidence.
(iv) The Tribunal framed necessary points for consideration. Considering the pleadings, evidence, both oral and documentary and arguments, the Tribunal came to the conclusion that the accident took place only due to rash and negligent driving by the driver of the lorry and awarded a sum of Rs.60,000/- as compensation with interest at the rate of 7.5% p.a. from the date of petition till the date of realisation under the following heads:
Sl. No. | Heads | Amount |
1. | Partial Permanent Disability at 15 % | 35,000 |
2. | Attendant Charges, Nutrition and Transportation | 10,000 |
3. | Pain and suffering | 15,000 |
Total | 60,000 |
5. The learned counsel for the appellant / claimant submitted that,
(i) the Tribunal has erred in fixing the disability as 15%, in spite of the fact that the appellant proved the injury sustained by him, by his oral evidence and also by marking Ex.P.3 Wound Certificate;
(ii) the Tribunal has failed to see that the appellant was taking treatment as inpatient from 22.03.2006 to 25.04.2006 in Apollo Hospital, Madurai, thus, ought to have allowed the entire claim of the appellant;
(iii) the Tribunal has erred in rejecting the claim of the appellant under the head, 'medical expenses', on the ground that the appellant has got the said amount reimbursed from the Government. In support of the said contention, he has relied on a decision of the Hon'ble Supreme Court in Helen C.Rebello (Mrs) and others vs. Maharashtra State Road Transport Corporation and another [1999 (1) SCC 90];
(iv) the Tribunal has failed to see that any amounts received under the Insurance Policy are exgratia amount, which are not deductible;
(v) the Tribunal has erred in holding that there was no loss of income and also erred in awarding meagre compensation amount under the heads, Transportation, extra nourishment, attendant charges and pain and suffering. Hence, he prayed for enhancement of compensation.
6. I have heard the learned counsel for the appellant and perused the entire materials on record. Though notice was served on the respondents and their names are printed in the cause list, they have not chosen to appear either in person or through counsel.
7. From the materials available on record, it is seen that the Tribunal came to the conclusion that due to rash and negligent driving by the driver of the lorry, the accident took place, based on the evidence of P.W.1 and Ex.P.1 FIR, Ex.P.2 Charge Sheet, Ex.P.4 Judgment rendered by the Criminal Court and Exs.P.5 and 6 Motor Vehicle Inspector's Report. The respondents did not let in any evidence to disprove the same.
8. As far as quantum of compensation is concerned, the learned counsel for the appellant relied on Ex.P.3 Wound Certificate and contended that the Tribunal has erred in concluding that due to grievous injury, the appellant suffered 15% partial permanent disability and consequently, erred in awarding only Rs.35,000/- towards partial permanent disability. It is seen from Ex.P.3 - Wound Certificate and the evidence of PW2 Dr.Sivakumar that the appellant had suffered a partial permanent disability. It is to be noted that no disability certificate was marked to prove the percentage of disability sustained by the appellant. However, the Tribunal has fixed the partial permanent disability at 15%, without any basis.
9. Though the appellant has incurred Rs.2,09,119/- towards medical expenses and marked Exs.P.7 to P.9 - medical bills to substantiate the same, the Tribunal has rejected the said claim, on the ground that the appellant got a sum of Rs.1,00,000/- from the Government. The learned counsel for the appellant contended that the Tribunal erred in rejecting the medical expenses incurred by the appellant on the ground that the appellant got Rs.1,00,000/- reimbursed from the Government. The Hon'ble Apex Court and this Court has held that amount received by the legal heirs from Life Insurance Corporation on account of death of victim and also amounts received on mandatory contribution under Group Insurance are not deductible from compensation payable. The learned counsel relied on the following Judgments:
(i) 1999 (1) SCC 190 [Helen C.Rebello (Mrs.) and others Vs. Maharashtra State Road Transport Corporation and another.
(ii) 2013 (1) TN MAC 144 [The Branch Manager, ICICI Lombard General Insurance Co. Ltd. Vs. Narayanamurthy]
These judgments are not applicable to the contentions of the learned counsel for the appellant on the facts of the present case. The Tribunal did not deduct any amount from the compensation payable and awarded to the appellant. The Tribunal rejected the claim of the medical expenses on the ground that the appellant received a sum of Rs.1,00,000/-. The Tribunal has committed an error in rejecting the entire medical expenses of Rs.2,09,119/-, when the appellant was reimbursed only Rs.1,00,000/- by the Government. The respondents have not disputed Exs.P7 to P9 Medical Bills and that the appellant has spent Rs.2,09,119/-. In the circumstances, the appellant is entitled to Rs.1,09,119/- towards medical expenses [Rs.2,09,119 - Rs.1,00,000/- = Rs.1,09,119/-], as the appellant had already received Rs.1,00,000/- and the appellant is not entitled to unjustly enrich himself.
10. From the materials available on record, it is seen that PW2-Doctor has deposed that the appellant was completely cured of neuro problem and also cured the bleeding of blood and the appellant also admitted that he has joined duty. In the circumstances, the award amount of Rs.35,000/- towards partial permanent disability compensation and is hereby confirmed. The appellant was taking treatment from 22.03.2006 to 25.04.2006 and underwent surgery. In the circumstances, the consolidated award of Rs.10,000/- awarded under the head of attendant charges, nutrition and transportation and a sum of Rs.15,000/- towards pain and suffering are too meagre. Therefore, a sum of Rs.10,000/- each is awarded towards attendant charges and extra nourishment. A sum of Rs.5,000/- is awarded towards transport expenses and for pain and suffering Rs.25,000/- is awarded. In all other aspects, the award of the Tribunal is hereby confirmed.
11. Accordingly, the claimant is entitled to compensation as follows:-
Sl. No. | Heads | Amount awarded by the Tribunal | Amount awarded by this Court | Award confirmed/modified/ granted |
1 | Permanent disability | 35000 | 35000 | Confirmed |
2 | Attendant charges | Consolidated award of Rs.10000 | 10000 | Modified |
3 | Nutritious food | 10000 | Modified | |
4 | Transportation | 5000 | Modified | |
5 | Pain and suffering | 15000 | 25000 | Modified |
6 | Medical expenses | - | 109119 | Granted |
Total | 60000 | 194119 | enhanced by Rs.134119 |
12. In the result, the Civil Miscellaneous Appeal is partly allowed. No costs.