M.T.Mohanasundaram Vs. S.Shanmugam - Court Judgment

SooperKanoon Citationsooperkanoon.com/1168631
CourtChennai High Court
Decided OnOct-01-2013
JudgeC.S.KARNAN
AppellantM.T.Mohanasundaram
RespondentS.Shanmugam
Excerpt:
in the high court of judicature at madras dated:01. 10.2013 coram the honourable mr.justice c.s.karnan c.m.a.no.2600 of 2007 m.t.mohanasundaram ... appellant vs. 1.s.shanmugam 2.the oriental insurance co., ltd., tiruchengode taluk, namakkal dt., ... respondents prayer: civil miscellaneous appeal is filed under section 173 of the motor vehicles act, 1988, against the judgment and decree dated 05.10.2005, made in m.c.o.p.no.877 of 2002, on the file of the motor accident claims tribunal, chief judicial magistrate court, namakkal. for appellant : mr.n.manoharan for respondents : mr.j.chandran for r2 r1-served - - - judgment the appellant / claimant has preferred the present appeal against the judgment and decree dated 05.10.2005, made in m.c.o.p.no.877 of 2002, on the file of the motor accident claims tribunal, chief judicial magistrate court, namakkal.2. the short facts of the case are as follows:- the claimant had filed a claim petition in m.c.o.p.no.877 of 2002, on the file of the motor accident claims tribunal, chief judicial magistrate court, namakkal, claiming a sum of rs.2,00,000/- as compensation from the respondents for the injuries sustained by him in a motor vehicle accident.3. it was submitted that on 28.12.1999, at about 11.45 p.m., when the claimant was proceeding in the first respondent's tempo goods vehicle bearing registration no.tn28 r6781, as owner of the yarns along with others from karur to mallasamudram, on vellore paramathi road and when the vehicle was near maravapalayam petrol bunk, the driver of the vehicle drove it in a rash and negligent manner and due to which he lost control of the vehicle and the vehicle capsized. as a result, the claimant had sustained cut injuries on his nose and eyebrow and sustained injuries over his right chest, right knee and right fore arm. he was admitted at aravind hospital, namakkal, wherein he received treatment from 28.12.1999 to 07.01.2000. at the time of accident, the claimant was aged 31 years and was earning rs.5,000/- per month. due to the disability sustained by him 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 tempo goods vehicle bearing registration no.tn28 r6781.4. the second respondent insurance company, in their counter statement, had stated that the claimant should prove his age, income, occupation, nature of injuries sustained, medical treatment taken, medical expenses incurred through documentary evidence. it was also submitted that the alleged accident had not taken place as the complaint regarding occurrence of the alleged accident which had taken place on 28.12.1999 was given only after a delay of six days i.e., on 03.01.2000. it was submitted that as six persons had travelled in the first respondent's tempo goods vehicle, the policy conditions of insurance had been violated and as such only the first respondent can be held liable to pay compensation, if so decided by the tribunal. it was submitted that the first respondent's driver did not have a valid licence to drive it at the time of accident. it was submitted that the claim was excessive.5. on considering the averments of both sides, the tribunal had framed three issues namely: i. due to whose negligence was the accident caused?. ii. who is liable to pay compensation to the claimant?. iii. what is the quantum of compensation, which the claimant is entitled to get?.6. on the claimant's side the claimant was examined as p.w.1 and ten documents were marked exs.p1 to p10 namely fir, wound certificate, m.v.i's report, charge sheet, criminal court judgment, medical bills, medical prescriptions, x'rays, ct scan and ct scan report. on the respondents' side one witness was examined as r.w.1 and three documents were marked as exs.r1 to r3 namely policy, r.c.book and permit.7. p.w.1, the claimant, had adduced evidence, which is corroborative of the statements of the claim petition regarding manner of accident and in support of his evidence, he had marked exs.p1 to p10.8. on scrutiny of ex.p1, it is seen that a complaint regarding the accident had been lodged by p.w.1. it had been stated in the fir that the claimant had travelled along with one subramani, sekar and raman and that they had also sustained injuries in the said accident. on scrutiny of ex.p3, it is seen that the first respondent's tempo van driver had a valid licence and that the accident had not been caused due to any mechanism failure in the vehicle. on scrutiny of ex.p4, it is seen that the police, after investigation, had filed the charge sheet against the first respondent's driver. on scrutiny of ex.p5, it is seen that the driver of the van had admitted his guilt and paid the fine before the criminal court. the tribunal, on scrutiny of exs.p1 to p5 and on observing that no documentary evidence had been let in on the part of the respondent to rebut the evidence of p.w.1 held that the accident had been caused by the rash and negligent driving by the driver of the first respondent's tempo van.9. r.w.1 had adduced evidence that the first respondent's vehicle was registered as a goods vehicle and that premium had been paid only to cover the risk of one passenger, who had travelled as owner of goods. he deposed that as many persons had travelled in the first respondent's goods vehicle, the policy conditions of insurance had been violated and as such the claimant can claim relief only from the first respondent and in support of his evidence he had marked exs.r1 to r3. however, on scrutiny of ex.r1, it is seen that premium had been paid to ensure coverage of insurance to six persons other than the owner and driver of the first respondent's van. hence, the tribunal on observing that the policy conditions of insurance had not been violated, held that the respondents are liable to pay compensation to the claimant.10. the tribunal had observed that the claimant had not produced the discharge summary issued by hospital to prove the nature of injuries and medical treatment taken and disability and hence was not inclined to grant medical expenses as per medical bills marked as exhibit. however, the tribunal, on considering that the claimant had sustained injuries in the accident, had awarded a lump sum compensation of rs.30,000/- for medical treatment, pain and suffering, transport expenses and directed the second respondent insurance company on behalf of the first respondent, to deposit 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 month from the date of it's order.11. not being satisfied with the award passed by the tribunal, the claimant has preferred the present appeal.12. the learned counsel appearing for the appellant has contended in the appeal that the tribunal failed to consider the exhibits marked as exs.p1 to p10 and failed to give due diligence to the evidence of p.w.1, who clearly deposed about the income and disability sustained by him and erred in holding that there is no evidence on record to prove the income. it is contended that the tribunal failed to note that the injured would have earned more, if he had not sustained any injury. it is also contended that the tribunal had failed to note that no contra evidence had been let in on the part of the respondents to rebut the claim of the appellant/claimant. hence, it is prayed to grant of additional compensation of rs.1,00,000/-.13. the learned counsel for the insurance company has submitted that the claimant had sustained simple injuries. hence, the tribunal had granted compensation of a sum of rs.30,000/-. further, the medical bills produced by the claimant is not bona fide.14. 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 as per evidence, the claimant had been hospitalized for a period of ten days, as an inpatient and the claimant had produced medical bills for a sum of rs.28,920/-. therefore, this court is inclined to grant additional compensation to the claimant and reassess the compensation as follows: i. rs.30,000/- is awarded under the head of disability, ii. rs.10,000/- is awarded under the head of pain and suffering, iii. rs.28,000/- is awarded under the head of medical expenses, iv. rs.5,000/- is awarded under the head of attender charges, v. rs.5,000/- is awarded under the head of nutrition, vi. rs.5,000/- is awarded under the head of transport expenses, and vii. rs.5,000/- is awarded under the head of loss of earning during medical treatment period. in total, this court awards a sum of rs.88,000/- as compensation, as it is found to be appropriate to the instant case. after subtracting the initial compensation of a sum of rs.30,000/-, this court awards rs.58,000/- as additional compensation. 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.15. this court directs the second respondent insurance company to comply with this court's order, within a period of eight weeks from the date of receipt of a copy of this judgment, by way of depositing the compensation amount, to the credit of m.c.o.p.no.877 of 2002, on the file of the motor accident claims tribunal, chief judicial magistrate court, namakkal.16. after such a deposit having been made, it is open to the claimant to withdraw the said additional compensation amount with accrued interest thereon, lying in the credit of m.c.o.p.no.877 of 2002, on the file of the motor accident claims tribunal, chief judicial magistrate court, namakkal, after filing a memo along with a copy of this judgment 17. in the result, this civil miscellaneous appeal is partly allowed and the judgment and decree dated 05.10.2005, made in m.c.o.p.no.877 of 2002, on the file of the motor accident claims tribunal, chief judicial magistrate court, namakkal, is modified. no costs. 01.10.2013 index : yes/no internet : yes/no krk to:1. the chief judicial magistrate court motor accident claims tribunal chief judicial magistrate court, namakkal 2.the section officer v.r.section, high court madras c.s.karnan, j.krk c.m.a.no.2600 of 2007 01.10.2013
Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:

01. 10.2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.No.2600 of 2007 M.T.Mohanasundaram ... Appellant Vs. 1.S.Shanmugam 2.The Oriental Insurance Co., Ltd., Tiruchengode Taluk, Namakkal Dt., ... Respondents PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 05.10.2005, made in M.C.O.P.No.877 of 2002, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Namakkal. For Appellant : Mr.N.Manoharan For Respondents : Mr.J.Chandran for R2 R1-Served - - -

JUDGMENT

The appellant / claimant has preferred the present appeal against the judgment and decree dated 05.10.2005, made in M.C.O.P.No.877 of 2002, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Namakkal.

2. The short facts of the case are as follows:- The claimant had filed a claim petition in M.C.O.P.No.877 of 2002, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Namakkal, claiming a sum of Rs.2,00,000/- as compensation from the respondents for the injuries sustained by him in a motor vehicle accident.

3. It was submitted that on 28.12.1999, at about 11.45 p.m., when the claimant was proceeding in the first respondent's Tempo Goods Vehicle bearing registration No.TN28 R6781, as owner of the Yarns along with others from Karur to Mallasamudram, on Vellore Paramathi Road and when the vehicle was near Maravapalayam Petrol Bunk, the driver of the vehicle drove it in a rash and negligent manner and due to which he lost control of the vehicle and the vehicle capsized. As a result, the claimant had sustained cut injuries on his nose and eyebrow and sustained injuries over his right chest, right knee and right fore arm. He was admitted at Aravind Hospital, Namakkal, wherein he received treatment from 28.12.1999 to 07.01.2000. At the time of accident, the claimant was aged 31 years and was earning Rs.5,000/- per month. Due to the disability sustained by him 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 Tempo Goods Vehicle bearing registration No.TN28 R6781.

4. The second respondent Insurance Company, in their counter statement, had stated that the claimant should prove his age, income, occupation, nature of injuries sustained, medical treatment taken, medical expenses incurred through documentary evidence. It was also submitted that the alleged accident had not taken place as the complaint regarding occurrence of the alleged accident which had taken place on 28.12.1999 was given only after a delay of six days i.e., on 03.01.2000. It was submitted that as six persons had travelled in the first respondent's Tempo Goods Vehicle, the policy conditions of insurance had been violated and as such only the first respondent can be held liable to pay compensation, if so decided by the Tribunal. It was submitted that the first respondent's driver did not have a valid licence to drive it at the time of accident. It was submitted that the claim was excessive.

5. On considering the averments of both sides, the Tribunal had framed three issues namely: i. Due to whose negligence was the accident caused?. ii. Who is liable to pay compensation to the claimant?. iii. What is the quantum of compensation, which the claimant is entitled to get?.

6. On the claimant's side the claimant was examined as P.W.1 and ten documents were marked Exs.P1 to P10 namely FIR, wound certificate, M.V.I's report, charge sheet, criminal court judgment, medical bills, medical prescriptions, X'rays, CT Scan and CT Scan report. On the respondents' side one witness was examined as R.W.1 and three documents were marked as Exs.R1 to R3 namely Policy, R.C.Book and permit.

7. P.W.1, the claimant, had adduced evidence, which is corroborative of the statements of the claim petition regarding manner of accident and in support of his evidence, he had marked Exs.P1 to P10.

8. On scrutiny of Ex.P1, it is seen that a complaint regarding the accident had been lodged by P.W.1. It had been stated in the FIR that the claimant had travelled along with one Subramani, Sekar and Raman and that they had also sustained injuries in the said accident. On scrutiny of Ex.P3, it is seen that the first respondent's Tempo Van driver had a valid licence and that the accident had not been caused due to any mechanism failure in the vehicle. On scrutiny of Ex.p4, it is seen that the police, after investigation, had filed the charge sheet against the first respondent's driver. On scrutiny of Ex.P5, it is seen that the driver of the van had admitted his guilt and paid the fine before the criminal court. The Tribunal, on scrutiny of Exs.P1 to P5 and on observing that no documentary evidence had been let in on the part of the respondent to rebut the evidence of P.W.1 held that the accident had been caused by the rash and negligent driving by the driver of the first respondent's Tempo Van.

9. R.W.1 had adduced evidence that the first respondent's vehicle was registered as a goods vehicle and that premium had been paid only to cover the risk of one passenger, who had travelled as owner of goods. He deposed that as many persons had travelled in the first respondent's goods vehicle, the policy conditions of insurance had been violated and as such the claimant can claim relief only from the first respondent and in support of his evidence he had marked Exs.R1 to R3. However, on scrutiny of Ex.R1, it is seen that premium had been paid to ensure coverage of insurance to six persons other than the owner and driver of the first respondent's van. Hence, the Tribunal on observing that the policy conditions of insurance had not been violated, held that the respondents are liable to pay compensation to the claimant.

10. The Tribunal had observed that the claimant had not produced the discharge summary issued by hospital to prove the nature of injuries and medical treatment taken and disability and hence was not inclined to grant medical expenses as per medical bills marked as exhibit. However, the Tribunal, on considering that the claimant had sustained injuries in the accident, had awarded a lump sum compensation of Rs.30,000/- for medical treatment, pain and suffering, transport expenses and directed the second respondent Insurance Company on behalf of the first respondent, to deposit 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 month from the date of it's order.

11. Not being satisfied with the award passed by the Tribunal, the claimant has preferred the present appeal.

12. The learned counsel appearing for the appellant has contended in the appeal that the Tribunal failed to consider the exhibits marked as Exs.P1 to P10 and failed to give due diligence to the evidence of P.W.1, who clearly deposed about the income and disability sustained by him and erred in holding that there is no evidence on record to prove the income. It is contended that the Tribunal failed to note that the injured would have earned more, if he had not sustained any injury. It is also contended that the Tribunal had failed to note that no contra evidence had been let in on the part of the respondents to rebut the claim of the appellant/claimant. Hence, it is prayed to grant of additional compensation of Rs.1,00,000/-.

13. The learned counsel for the Insurance Company has submitted that the claimant had sustained simple injuries. Hence, the Tribunal had granted compensation of a sum of Rs.30,000/-. Further, the medical bills produced by the claimant is not bona fide.

14. 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 as per evidence, the claimant had been hospitalized for a period of ten days, as an inpatient and the claimant had produced medical bills for a sum of Rs.28,920/-. Therefore, this Court is inclined to grant additional compensation to the claimant and reassess the compensation as follows: i. Rs.30,000/- is awarded under the head of disability, ii. Rs.10,000/- is awarded under the head of pain and suffering, iii. Rs.28,000/- is awarded under the head of medical expenses, iv. Rs.5,000/- is awarded under the head of attender charges, v. Rs.5,000/- is awarded under the head of nutrition, vi. Rs.5,000/- is awarded under the head of transport expenses, and vii. Rs.5,000/- is awarded under the head of loss of earning during medical treatment period. In total, this Court awards a sum of Rs.88,000/- as compensation, as it is found to be appropriate to the instant case. After subtracting the initial compensation of a sum of Rs.30,000/-, this Court awards Rs.58,000/- as additional compensation. 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.

15. This Court directs the second respondent Insurance Company to comply with this Court's Order, within a period of eight weeks from the date of receipt of a copy of this Judgment, by way of depositing the compensation amount, to the credit of M.C.O.P.No.877 of 2002, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Namakkal.

16. After such a deposit having been made, it is open to the claimant to withdraw the said additional compensation amount with accrued interest thereon, lying in the credit of M.C.O.P.No.877 of 2002, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Namakkal, after filing a memo along with a copy of this Judgment 17. In the result, this civil miscellaneous appeal is partly allowed and the Judgment and decree dated 05.10.2005, made in M.C.O.P.No.877 of 2002, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Namakkal, is modified. No costs. 01.10.2013 Index : Yes/No Internet : Yes/No krk To:

1. The Chief Judicial Magistrate Court Motor Accident Claims Tribunal Chief Judicial Magistrate Court, Namakkal 2.The Section Officer V.R.Section, High Court Madras C.S.KARNAN, J.

krk C.M.A.No.2600 of 2007 01.10.2013