Full Judgment
12. 03/2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.(MD)No.729 of 2012 & M.P.(MD)No.2 of 2012 The Branch Manager, M/s.United India Insurance Company Limited, Nagarcoil. ... Appellant Vs. 1.T.Robinson 2.Philip 3.Gurpersing Surjitsing Bajawasing ... Respondents PRAYER Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 28.11.2005 made in M.C.O.P.No.21 of 1999, on the file of the Motor Accidents Claims Tribunal, Sub Court, Padmanabapuram. !For Appellant ... Mr.B.Rajesh Saravan ^For Respondents... No appearance for R-1 R-2 and R-3 (given up) - - - :JUDGMENT The appellant / third respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.21 of 1999, on the file of the Motor Accidents Claims Tribunal, Sub Court, Padmanabapuram.
2. The short facts of the case are as follows:- The petitioner has filed the claim in M.C.O.P.No.21 of 1999, claiming compensation of a sum of Rs.1,00,000/- from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that the petitioner was employed as a cleaner of the lorry bearing registration not MH-04- B-3534, and that on 13.04.1997, at about 10 p.m., when the petitioner was seated next to the driver of the lorry and when the lorry was proceeding from Sankarankoil to Tirunelveli, and when it was being driven through a curved road near Ahagiyapandiapuram, the driver of the lorry drove the lorry at a high speed and in a rash and negligent manner, as a result of which, the lorry had capsized. As a result, the petitioner sustained fracture of bone in his left leg and also sustained injuries on his left hand. He was immediately taken to Palayamkottai Hospital, wherein he received treatment for four days, as an inpatient. Subsequently, he took treatment at Catherin Booth Hospital, as an inpatient for two months. Due to the injuries sustained by him, he had become permanently disabled. Hence, the petitioner has filed the claim against the first, second and third respondents, who are the driver, owner and insurer of the lorry bearing registration not MH-04-B-3534.
3. The third respondent, in his counter has submitted that the petitioner should prove that first respondent's lorry had been covered under a valid policy of insurance with the third respondent at the time of accident and also prove that the driver of the lorry had a valid licence to drive the vehicle at the time of accident. It was submitted that the accident had occurred only due to the negligence of the petitioner and not due to any negligence on the part of the first respondent, as alleged in the claim. The averments in the claim regarding income of the deceased was also not admitted.
4. The Motor Accidents Claims Tribunal had framed three issues for consideration in the case, viz., "(i) Due to whose negligence was the accident caused? (ii) What is the quantum of compensation which the petitioner is entitled to get? Who is liable to pay the compensation to the petitioner? (iii) To what other relief is the petitioner entitled to?" 5. On the petitioner's side, the petitioner was examined as P.W.1 and six documents were marked as Exs.P1 to P6, viz., Ex.P1-copy of F.I.R. dated 15.04.1997, Ex.P2-copy of Motor Vehicle Inspector's report dated 28.04.1997, Ex.P3-copy of observation mahazar dated 15.04.1997, Ex.P4-copy of rough sketch dated 15.04.1997, Ex.P5-copy of accident register dated 27.06.2997, Ex.P6- medical bill for Rs.23,361.60/- issued at Catherine Booth Hospital, Nagarcoil dated 04.07.1997. On the respondent's side, no witness, no documents.
6. P.W.1 had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident and in support of his evidence, he had marked Exs.P1 to P6. The Tribunal, on scrutiny of Ex.P1, F.I.R, Ex.P2-Motor Vehicle Inspector's report, rough sketch and accident register and on considering the oral evidence of P.W.1 held that the accident had been caused by the rash and negligent driving of the second respondent's lorry, by the first respondent.
7. The Tribunal, held that the notional income of the petitioner was Rs.3,000/- per month and observed that his age was 21 years at the time of accident. On scrutiny of wound certificate marked as Ex.P5, it is seen that the first injury is a simple injury and that the second and third injuries sustained by the petitioner was grievous in nature. The Tribunal on observing that the petitioner had not been able to attend to his work for a period o”
1. 2 years due to the injuries sustained in the accident, awarded a sum of Rs.54,000/- as compensation under the head of 'loss of income during medical treatment and convalescence period' (Rs.3,000/- x 18); Rs.2,500/- was awarded towards transport expenses; Rs.2,000/- was awarded towards nutrition; Rs.10,000/- was awarded under the head of pain and suffering. The Tribunal further awarded a sum of Rs.1,000/- for one simple injury sustained by him and Rs.5,000/- each for the two grievous injuries sustained by him as per Ex.P5, accident register. Rs.23,361.80/- was awarded towards medical expenses as per exhibit marked as P6. In total, the Tribunal awarded a sum of Rs.1,02,861.80/- as compensation to the petitioner. However, the Tribunal on considering that the petitioner had restricted his claim to Rs.1,00,000/-, awarded a sum of Rs.1,00,000/- as compensation to the petitioner and directed the third respondent to deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition till date of deposit, with costs, within three months from the date of its order. The claim as against the first and second respondents were dismissed.
8. Aggrieved by the award passed by the Tribunal, the third respondent / United India Insurance Company Limited, Nagercoil has preferred the present appeal.
9. The learned counsel for the appellant has contended in his appeal that the Tribunal erred in awarding Rs.54,000/- for partial loss of income though the claimant had not produced any document to show that he was under treatment for 18 months and that the Tribunal failed to note that the claimant himself had stated that he was under treatment for only two months. It was also contended that the Tribunal erred in fixing the income of the petitioner as Rs.3,000/- per month and also erred in awarding cost to the claimant as there is no provision in Motor Vehicles Act or Rules empowering the panel to award costs.
10. The learned counsel for the appellant has further submitted that in order to prove the nature of injuries, mode of treatment, period of medical treatment, no doctor was examined. Therefore, in the absence of disability certificate, the Tribunal had awarded a sum of Rs.54,000/-, under the head of 'loss of income during medical treatment and convalescence period', which is extremely on the higher side. Besides this, the Tribunal had awarded a sum of Rs.11,000/- under the head of grievous injuries, which is not pertinent in this case as the Tribunal had already awarded a sum of Rs.54,000/- under the head of loss of income during medical treatment period and convalescence period. As such, the Tribunal had erroneously assessed the compensation. The notice had been served on the claimant, but in spite of this, no one appeared before the Court at the time of hearing. Therefore, this Court is constrained to pass orders on the above appeal.
11. On verifying the factual position of the case and arguments advanced by the learned counsel for the appellant and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding liability. However, the quantum of compensation which has been assessed by the Tribunal, without the evidence of the doctor is not appropriate and hence, needs to be restructured. Accordingly, this Court awards the compensation as follows:- Rs.30,000/- is awarded under the head of 'loss of income due to disability'; Rs.10,000/- is awarded towards pain and suffering; Rs.5,000/- is awarded towards transport; Rs.5,000/- is awarded towards nutrition; Rs.5,000/- is awarded towards attender charges; Rs.23,500/- is awarded for medical expenses as per Ex.P6. In total, this Court awards Rs.78,500/- as compensation to the claimant as it is found to be appropriate in the instant case. The rate of interest fixed by the Tribunal remains unaltered. Therefore, the compensation awarded has been scaled down from Rs.1,00,000/- to Rs.78,500/-. As per Court records, it is seen that the Insurance Company has already deposited the entire compensation amount and that the claimant was permitted to withdraw a sum of Rs.70,000/- with proportionate interest. Now, it is open to the claimant to withdraw the balance compensation amount, as per this Court's findings, of a sum of Rs.78,500/-, with accrued interest thereon lying in the credit of M.C.O.P.No.21 of 1999, on the file of the Motor Accidents Claims Tribunal, Sub Court, Padmanabapuram, after filing a Memo, along with a copy of this oder, subject to deduction of withdrawals made by the claimant, as per this Court's earlier order. Likewise, the appellant /Insurance Company is at liberty to withdraw the excess compensation amount with accrued interest thereon, after filing a Memo.
12. In the result, the above appeal is partly allowed. Consequently, the order passed in M.C.O.P.No.21 of 1999, on the file of the Motor Accidents Claims Tribunal, Sub Court, Padmanabapuram, dated 28.11.2005, is modified. There is no order as to costs. Connected miscellaneous petition is closed. r n s To The Sub Court, Motor Accidents Claims Tribunal, Padmanabapuram.