P.Francis Co Charls Alias Charls Vs. 1.Kumaresan - Court Judgment

SooperKanoon Citationsooperkanoon.com/1169419
CourtChennai High Court
Decided OnJan-06-2014
JudgeC.S.KARNAN
AppellantP.Francis Co Charls Alias Charls
Respondent1.Kumaresan
Excerpt:
before the madurai bench of madras high court dated:06. 01/2014 coram the honourable mr.justice c.s.karnan c.m.a.(md)no.472 of 2006 and cross objection (md)no.29 of 2013 c.m.a.(md)no.472 of 2006 p.francis co charls alias charls ... appellant vs. 1.kumaresan 2.c.thankayan 3.new india insurance company limited, rep. by its branch manager, near head post office, nagercoil, agastheeswaram taluk, kanyakumari district. ... respondents prayer civil miscellaneous appeal is filed under section 173 of the motor vehicles act, against the judgment and decree in m.c.o.p.no.90 of 2002, dated 05.092005, on the file of the i additional motor accidents claims tribunal, nagercoil. !for appellant ... mr.sreekumaran nair ^for respondents ... notice dispensed with for r1 and r2 mr.m.ramanathan for r3 - - - cross objection (md)no.29 of 2013 #the new india insurance company limited, rep. by its branch manager, near head post office, nagercoil, agastheeswaram taluk, kanyakumari district. ... cross objector vs. $1.p.francis co charls @ charls 2.kumaresan 3.c.thankayan ... respondents prayer: cross objection is filed under order xvi rule 22 of c.p.c., against the judgment and decree dated 05.09.2005 made in m.c.o.p.no.90 of 2002, on the file of the i additional motor accidents claims tribunal, nagercoil. !for cross objector ... mr.m.ramanathan ^for respondents ... mr.sreekumaran nair for r1 notice dispensed with for r2 and r3 - - - :common judgment the appellant / claimant has preferred the present appeal in c.m.a.(md)no.472 of 2006, against the judgment and decree passed in m.c.o.p.no.90 of 2002, on the file of the additional motor accidents claims tribunal, nagercoil.2. the short facts of the case are as follows:- the petitioner has filed the claim in m.c.o.p.no.90 of 2002, claiming compensation of a sum of rs.4,00,000/- from the respondents for the injuries sustained by him in a motor vehicle accident. it was submitted that on 15.07.2000, at about 05.15 p.m., when the petitioner was proceeding in his hero honda splendour motorcycle bearing registration no.tn-74-d-5016, on the verkilambu to thadikarankonam road along with one ananthakrishnan as pillion order and when the vehicle was near mavaravilai, a tempo came in the opposite direction. on seeing this, the petitioner moved his bike to the extreme left end of the tar road. at that time, the first respondent, who was coming behind the tempo van in his yamaha motorcycle bearing registration no.tn-74-z-1710, suddenly tried to overtake the tempo van at a high speed and in a rash and negligent manner and consequently dashed his vehicle against the motorcycle ridden by petitioner. as a result, the petitioner was thrown out of his vehicle and the cross bar of the first respondent's motorbike hit against the right leg of the petitioner. as a result, the petitioner sustained grievous injuries and was admitted at susrusha hospital, parvathipuram, nagercoil and a surgery was conducted and steel plate was fixed in the fractured area. hence, the petitioner has filed the claim against the respondents 1 to 3, who are the driver, owner and insurer of the yamaha motorcycle bearing registration no.tn-74-z-1710 .3. the third respondent, in his counter has submitted that as the accident had been caused by the rash and negligent driving of the motorcycle by the petitioner and that he had filed a false complaint against the first respondent. it was submitted that as the first respondent did not have a valid driving licence at the time of accident, the third respondent is not liable to pay any compensation. it was submitted that the petitioner should prove that he had a valid driving licence to ride the motorcycle at the time of accident. it was submitted that the claim was bad for non-joinder of the insurance company of the motorcycle driven by the petitioner as necessary party. it was submitted that as the petitioner had sustained only simple injuries, the claim was excessive.4. the motor accidents claims tribunal had framed three issues for consideration in the case, viz., ".(i) was the accident caused by the rash and negligent driving of the vehicle by the first respondent?. (ii) are the respondents liable to pay compensation to the petitioner?. (iii) what is the quantum of compensation which the petitioner is entitled to get?.".5. on the petitioner's side, four witnesses were examined and nineteen documents were marked as exs.p1 to p19, viz., ex.p1-copy of f.i.r., ex.p2-copy of observation mahazar, ex.p3-copy of rough sketch, ex.p4-copy of charge sheet, ex.p5-copy of motor vehicle inspector's report, ex.p6-copy of accident register, ex.p7-medical treatment record, ex.p8-medical bills, ex.p9- disability certificate, exs.p10 to p14-medical bills, ex.p15-discharge summary, ex.p15-salary certificate, ex.p17-hospital receipts, ex.p18-medical bill and ex.p19-medical prescriptions. on the respondent's side, one witness was examined and one document, viz., policy for vehicle bearing registration no.tn-74-z-1710 was marked as ex.r1.6. p.w.1, the petitioner 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 p4. the tribunal, on scrutiny of ex.p1 and evidence of p.w.1 held that the accident had been caused by the rash and negligent driving of the motorcycle by the first respondent.7. r.w.1, casbell shiromani, the assistant administrative officer of the third respondent's firm had adduced evidence that the second respondent's motorcycle had been insured with them, but as the first respondent did not have a valid licence to drive it at the time of accident, the third respondent is not liable to pay any compensation. the tribunal observed that the third respondent had not taken any steps to inform the first respondent to produce his driving licence. the tribunal further observed that no investigation report of the third respondent had been produced to prove that the first respondent did not have a valid licence. the tribunal, on observing that the second respondent's vehicle had been insured with the third respondent at the time of accident, held the second and third respondents to jointly or severally pay compensation assessed by the tribunal to the petitioner.8. on scrutiny of ex.p6, it is seen that the petitioner had sustained fracture of bone in his right knee, lacerated injuries over his left forehead, top of left eyebrow and right finger and middle finger of his right hand. 9 p.w.3, dr.mohandoss had adduced evidence that after the accident, the petitioner had been admitted at their hospital and that a surgery was conducted and steel plates were fixed in the fractured right leg of petitioner. he deposed that the petitioner had received treatment, as an inpatient, in their hospital and discharged on 31.07.2000.10. p.w.1 had further adduced evidence that at the time of accident, he was working at mary coretti higher secondary school, manalikarai and that he had sustained loss of income while undergoing treatment in hospital. on scrutiny of ex.p15, it is seen that the petitioner had not attended work for five months during medical treatment and convalescence period. the tribunal, on scrutiny of ex.p16, observed that the salary of the petitioner was rs.10,217/- per month.11. p.w.4, isaac sunderson had adduced evidence that due to the accident, the petitioner would not be able to sit cross-legged position and that his right leg had been shortened by 1 cm. he certified that the disability sustained by the petitioner was 35% and in support of his evidence, he had marked ex.p19, disability certificate.12. the tribunal, on scrutiny of oral and documentary evidence awarded a sum of rs.25,000/- for pain and suffering; rs.51,085/- for loss of income for five months during medical treatment and convalescence period; rs.35,000/- for disability of 35%; rs.39,207/- for medical expenses as per medical bills marked as exs.p18, p10 and p14 and rs.2,000/- for nutrition. in total, the tribunal awarded a sum of rs.1,52,292/- as compensation to the petitioner and directed the second and third respondents to jointly and severally deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the claim till date of payment of compensation, with costs, within one month from the date of its order.13. not being satisfied by the award passed by the tribunal, the claimant has preferred the above appeal in c.m.a.(md)no.472 of 2006.14. the learned counsel for the appellant / claimant has contended in his appeal that the tribunal failed to note that the claimant had sustained a leg injury and that the disability sustained on this count was 35% as proved by doctor's evidence. it was contended that the tribunal failed to grant award for nourishment was meagre and that the tribunal failed to grant award for damage to clothes and for transport expenses to hospital. it was also contended that the award granted for medical expenses, pain and suffering and disability was on the lower side and hence, it was prayed to grant additional compensation of rs.1,47,708/-.15. aggrieved by the award passed by the tribunal, the third respondent / the new india insurance company limited, nagercoil has preferred the cross objection in cross. obj.(md)no.29 of 2013.16. the learned counsel for the cross objector / insurance company has contended in his cross objection that the tribunal failed to appreciate that the driver, who drove the vehicle did not possess a valid driving licence to drive the vehicle and erred in holding that the cross objector did not take any steps for production of driving licence of the person, who had drove the vehicle. it was contended that the tribunal failed to consider that the specific objection of the insurance company is that the accident arose out of collision of two vehicles and therefore, the claim is not maintainable for non- joinder of necessary parties. it was contended that the award of rs.51,085/- granted for loss of income for five months was erroneous and there was no evidence to show that he did not get salary during the relevant period. it was also contended that the award granted for pain and suffering was also on the higher side. hence, it was prayed to set-aside the order as against the cross objector.17. on considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the tribunal, this court does not find any discrepancy in the conclusions arrived at regarding negligence, liability. however, the quantum of compensation is on the lower side since the claimant's right leg had been shortened by 1 cm and the claimant had sustained 35% disability and a surgical operation had been conducted and steel plates with screws were fixed, as per evidence. further, the claimant had spent a sum of rs.39,207/- towards medical expenses. hence, this court reassesses the compensation as follows:- rs.39,207/- is awarded for medical expenses; rs.52,500/- is awarded for disability; rs.15,000/- is awarded for pain and suffering; rs.6,085/- towards transport; rs.5,000/- towards attender charges; rs.5,000/- towards nutrition; rs.20,000/- towards loss of earning during medical treatment period; rs.50,000/- towards loss of amenities and loss of comfort. in total, this court awards rs.1,92,792/- as compensation. after subtracting the initial compensation of a sum rs.1,52,792/-, this court awards rs.40,000/- as additional compensation, 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 till date of payment of compensation.18. this court directs the new india assurance company limited herein to execute this court award by way of depositing the award before the tribunal, within a period of four weeks from the date of receipt of a copy of this order. after such deposit having been made, it is open to the claimant to withdraw the entire compensation amount, with interest, as per this court's findings, lying in the credit of m.c.o.p.no.90 of 2002, on the file of the additional motor accidents claims tribunal, nagercoil, after filing a memo, along with a copy of this order.19. in the result, the above appeal in c.m.a.(md)no.472 of 2006 filed by the claimant is partly allowed and the cross objection in cross. obj.(md)no.29 of 2013, filed by the insurance company is dismissed. consequently, the order and decree passed in m.c.o.p.no.90 of 2002, on the file of the additional motor accidents claims tribunal, nagercoil, dated 05.09.2005 is modified. there is no order as to costs. rns to the additional motor accidents claims tribunal, nagercoil.
Judgment:

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:

06. 01/2014 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.(MD)No.472 of 2006 and Cross Objection (MD)No.29 of 2013 C.M.A.(MD)No.472 of 2006 P.Francis Co Charls alias Charls ... Appellant Vs. 1.Kumaresan 2.C.Thankayan 3.New India Insurance Company Limited, Rep. by its Branch Manager, near Head Post Office, Nagercoil, Agastheeswaram Taluk, Kanyakumari District. ... Respondents PRAYER Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the judgment and decree in M.C.O.P.No.90 of 2002, dated 05.092005, on the file of the I Additional Motor Accidents Claims Tribunal, Nagercoil. !For Appellant ... Mr.Sreekumaran Nair ^For Respondents ... Notice dispensed with for R1 and R2 Mr.M.Ramanathan for R3 - - - Cross Objection (MD)No.29 of 2013 #The New India Insurance Company Limited, Rep. by its Branch Manager, Near Head Post Office, Nagercoil, Agastheeswaram Taluk, Kanyakumari District. ... Cross Objector Vs. $1.P.Francis Co Charls @ Charls 2.Kumaresan 3.C.Thankayan ... Respondents PRAYER: Cross Objection is filed under Order XVI Rule 22 of C.P.C., against the judgment and decree dated 05.09.2005 made in M.C.O.P.No.90 of 2002, on the file of the I Additional Motor Accidents Claims Tribunal, Nagercoil. !For Cross Objector ... Mr.M.Ramanathan ^For Respondents ... Mr.Sreekumaran Nair for R1 Notice dispensed with for R2 and R3 - - - :COMMON JUDGMENT

The appellant / claimant has preferred the present appeal in C.M.A.(MD)No.472 of 2006, against the judgment and decree passed in M.C.O.P.No.90 of 2002, on the file of the Additional Motor Accidents Claims Tribunal, Nagercoil.

2. The short facts of the case are as follows:- The petitioner has filed the claim in M.C.O.P.No.90 of 2002, claiming compensation of a sum of Rs.4,00,000/- from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that on 15.07.2000, at about 05.15 p.m., when the petitioner was proceeding in his hero honda splendour motorcycle bearing registration No.TN-74-D-5016, on the Verkilambu to Thadikarankonam Road along with one Ananthakrishnan as pillion order and when the vehicle was near Mavaravilai, a tempo came in the opposite direction. On seeing this, the petitioner moved his bike to the extreme left end of the tar road. At that time, the first respondent, who was coming behind the tempo van in his yamaha motorcycle bearing registration No.TN-74-Z-1710, suddenly tried to overtake the tempo van at a high speed and in a rash and negligent manner and consequently dashed his vehicle against the motorcycle ridden by petitioner. As a result, the petitioner was thrown out of his vehicle and the cross bar of the first respondent's motorbike hit against the right leg of the petitioner. As a result, the petitioner sustained grievous injuries and was admitted at Susrusha Hospital, Parvathipuram, Nagercoil and a surgery was conducted and steel plate was fixed in the fractured area. Hence, the petitioner has filed the claim against the respondents 1 to 3, who are the driver, owner and insurer of the yamaha motorcycle bearing registration No.TN-74-Z-1710 .

3. The third respondent, in his counter has submitted that as the accident had been caused by the rash and negligent driving of the motorcycle by the petitioner and that he had filed a false complaint against the first respondent. It was submitted that as the first respondent did not have a valid driving licence at the time of accident, the third respondent is not liable to pay any compensation. It was submitted that the petitioner should prove that he had a valid driving licence to ride the motorcycle at the time of accident. It was submitted that the claim was bad for non-joinder of the insurance company of the motorcycle driven by the petitioner as necessary party. It was submitted that as the petitioner had sustained only simple injuries, the claim was excessive.

4. The Motor Accidents Claims Tribunal had framed three issues for consideration in the case, viz., ".(i) Was the accident caused by the rash and negligent driving of the vehicle by the first respondent?. (ii) Are the respondents liable to pay compensation to the petitioner?. (iii) What is the quantum of compensation which the petitioner is entitled to get?.".

5. On the petitioner's side, four witnesses were examined and nineteen documents were marked as Exs.P1 to P19, viz., Ex.P1-copy of F.I.R., Ex.P2-copy of observation mahazar, Ex.P3-copy of rough sketch, Ex.P4-copy of charge sheet, Ex.P5-copy of Motor Vehicle Inspector's Report, Ex.P6-copy of accident register, Ex.P7-medical treatment record, Ex.P8-medical bills, Ex.P9- disability certificate, Exs.P10 to P14-medical bills, Ex.P15-discharge summary, Ex.P15-salary certificate, Ex.P17-hospital receipts, Ex.P18-medical bill and Ex.P19-medical prescriptions. On the respondent's side, one witness was examined and one document, viz., policy for vehicle bearing registration No.TN-74-Z-1710 was marked as Ex.R1.

6. P.W.1, the petitioner 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 P4. The Tribunal, on scrutiny of Ex.P1 and evidence of P.W.1 held that the accident had been caused by the rash and negligent driving of the motorcycle by the first respondent.

7. R.W.1, Casbell Shiromani, the Assistant Administrative Officer of the third respondent's firm had adduced evidence that the second respondent's motorcycle had been insured with them, but as the first respondent did not have a valid licence to drive it at the time of accident, the third respondent is not liable to pay any compensation. The Tribunal observed that the third respondent had not taken any steps to inform the first respondent to produce his driving licence. The Tribunal further observed that no investigation report of the third respondent had been produced to prove that the first respondent did not have a valid licence. The Tribunal, on observing that the second respondent's vehicle had been insured with the third respondent at the time of accident, held the second and third respondents to jointly or severally pay compensation assessed by the Tribunal to the petitioner.

8. On scrutiny of Ex.P6, it is seen that the petitioner had sustained fracture of bone in his right knee, lacerated injuries over his left forehead, top of left eyebrow and right finger and middle finger of his right hand. 9 P.W.3, Dr.Mohandoss had adduced evidence that after the accident, the petitioner had been admitted at their hospital and that a surgery was conducted and steel plates were fixed in the fractured right leg of petitioner. He deposed that the petitioner had received treatment, as an inpatient, in their hospital and discharged on 31.07.2000.

10. P.W.1 had further adduced evidence that at the time of accident, he was working at Mary Coretti Higher Secondary School, Manalikarai and that he had sustained loss of income while undergoing treatment in hospital. On scrutiny of Ex.P15, it is seen that the petitioner had not attended work for five months during medical treatment and convalescence period. The Tribunal, on scrutiny of Ex.P16, observed that the salary of the petitioner was Rs.10,217/- per month.

11. P.W.4, Isaac Sunderson had adduced evidence that due to the accident, the petitioner would not be able to sit cross-legged position and that his right leg had been shortened by 1 cm. He certified that the disability sustained by the petitioner was 35% and in support of his evidence, he had marked Ex.P19, disability certificate.

12. The Tribunal, on scrutiny of oral and documentary evidence awarded a sum of Rs.25,000/- for pain and suffering; Rs.51,085/- for loss of income for five months during medical treatment and convalescence period; Rs.35,000/- for disability of 35%; Rs.39,207/- for medical expenses as per medical bills marked as Exs.P18, P10 and P14 and Rs.2,000/- for nutrition. In total, the Tribunal awarded a sum of Rs.1,52,292/- as compensation to the petitioner and directed the second and third respondents to jointly and severally deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the claim till date of payment of compensation, with costs, within one month from the date of its order.

13. Not being satisfied by the award passed by the Tribunal, the claimant has preferred the above appeal in C.M.A.(MD)No.472 of 2006.

14. The learned counsel for the appellant / claimant has contended in his appeal that the Tribunal failed to note that the claimant had sustained a leg injury and that the disability sustained on this count was 35% as proved by doctor's evidence. It was contended that the Tribunal failed to grant award for nourishment was meagre and that the Tribunal failed to grant award for damage to clothes and for transport expenses to hospital. It was also contended that the award granted for medical expenses, pain and suffering and disability was on the lower side and hence, it was prayed to grant additional compensation of Rs.1,47,708/-.

15. Aggrieved by the award passed by the Tribunal, the third respondent / The New India Insurance Company Limited, Nagercoil has preferred the Cross Objection in Cross. Obj.(MD)No.29 of 2013.

16. The learned counsel for the Cross Objector / Insurance Company has contended in his Cross Objection that the Tribunal failed to appreciate that the driver, who drove the vehicle did not possess a valid driving licence to drive the vehicle and erred in holding that the cross objector did not take any steps for production of driving licence of the person, who had drove the vehicle. It was contended that the Tribunal failed to consider that the specific objection of the insurance company is that the accident arose out of collision of two vehicles and therefore, the claim is not maintainable for non- joinder of necessary parties. It was contended that the award of Rs.51,085/- granted for loss of income for five months was erroneous and there was no evidence to show that he did not get salary during the relevant period. It was also contended that the award granted for pain and suffering was also on the higher side. Hence, it was prayed to set-aside the order as against the Cross Objector.

17. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence, liability. However, the quantum of compensation is on the lower side since the claimant's right leg had been shortened by 1 cm and the claimant had sustained 35% disability and a surgical operation had been conducted and steel plates with screws were fixed, as per evidence. Further, the claimant had spent a sum of Rs.39,207/- towards medical expenses. Hence, this Court reassesses the compensation as follows:- Rs.39,207/- is awarded for medical expenses; Rs.52,500/- is awarded for disability; Rs.15,000/- is awarded for pain and suffering; Rs.6,085/- towards transport; Rs.5,000/- towards attender charges; Rs.5,000/- towards nutrition; Rs.20,000/- towards loss of earning during medical treatment period; Rs.50,000/- towards loss of amenities and loss of comfort. In total, this Court awards Rs.1,92,792/- as compensation. After subtracting the initial compensation of a sum Rs.1,52,792/-, this Court awards Rs.40,000/- as additional compensation, 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 till date of payment of compensation.

18. This Court directs the New India Assurance Company Limited herein to execute this Court award by way of depositing the award before the Tribunal, within a period of four weeks from the date of receipt of a copy of this order. After such deposit having been made, it is open to the claimant to withdraw the entire compensation amount, with interest, as per this Court's findings, lying in the credit of M.C.O.P.No.90 of 2002, on the file of the Additional Motor Accidents Claims Tribunal, Nagercoil, after filing a Memo, along with a copy of this order.

19. In the result, the above appeal in C.M.A.(MD)No.472 of 2006 filed by the claimant is partly allowed and the Cross Objection in Cross. Obj.(MD)No.29 of 2013, filed by the Insurance Company is dismissed. Consequently, the order and decree passed in M.C.O.P.No.90 of 2002, on the file of the Additional Motor Accidents Claims Tribunal, Nagercoil, dated 05.09.2005 is modified. There is no order as to costs. rns To The Additional Motor Accidents Claims Tribunal, Nagercoil.