The New India Assurance Company Vs. Subramaniam - Court Judgment

SooperKanoon Citationsooperkanoon.com/1169826
CourtChennai High Court
Decided OnNov-04-2013
JudgeC.S.KARNAN
AppellantThe New India Assurance Company
RespondentSubramaniam
Excerpt:
in the high court of judicature at madras dated:04. 11.2013 coram the hon'ble mr.justice c.s.karnan c.m.a.no.812 of 2006 the new india assurance company .. appellant vs 1) subramaniam 2) n.balasubramanian 3) c.balakrishnan .. respondents civil miscellaneous appeal filed under section 173 of motor vehicles act, 1988, to set aside the award and decree dated 26.10.2004 passed in m.c.o.p.no.314 of 2004 by the motor accidents claims tribunal (principal sub-judge), coimbatore. for appellant : mr.s.manohar for respondents : mr.v.nicholas (r1) r2 & r3 ndw judgment the appellant/insurance company has preferred the present appeal in cma no.812 of 2006, against the award and decree, dated 26.10.2004, passed in m.c.o.p.no.314 of 2004 by the motor accidents claims tribunal (principal sub-judge), coimbatore.2. the short facts of the cases are as follows:- the claimant stated that on 28.02.2001, at about 11.00 hours, when he was riding his motorcycle on the avinashi road, the driver of the auto bearing registration no.tab5616 coming in the same direction and driven at a high speed and in a negligent manner, dashed against the motorcycle. as a result, the claimant sustained grievous injuries. hence, he has filed the claim in mcop no.314 of 2004, on the file of the principal sub-court, coimbatore.3. the respondent/insurance company had filed a counter statement and resisted the claim petition. the respondent submitted that the said auto had not been covered under a valid policy. further, it was submitted that the accident had not been committed by the driver of the auto. the averments in the claim regarding nature of injuries, mode of treatment, disability and medical expenses was also not admitted.4. on considering the averments of both parties, the tribunal had framed two issues, namely, (1) due to whose negligence was the accident caused and did the petitioner sustain injuries in the accident?. (2) whether the claimant is entitled to get compensation?. if so, what is the quantum of compensation?.5. on the side of the claimants, three witnesses were examined and 22 documents were marked, namely, first information report, wound certificate, discharge summary, criminal court's judgment, medical treatment particulars, medical particulars, employment particulars, estimate for repair of motorcycle, x'rays, disability certificate, registration letter tendered by the claimant and acceptance of the same by the employer. on the side of the respondents, no oral and documentary evidence was given.6. p.w.1 had adduced evidence that on 28.02.2001, at about 11.00 a.m, when he was proceeding on his motorcycle on the avinashi road, the auto bearing registration no.tnb5616 driven by its driver in a negligent manner, dashed against the motorcycle. he deposed that he had sustained injuries, in the accident. he deposed that he had been hospitalised at psg hospital on the very same day, and that he had undergone treatment, as an impatient. he further stated that he had sustained injuries on his skull and that his skull bone was fractured and that his right eardrum had also been injured. p.w.1, further stated that he had spent a sum of rs.14,525/- towards medical expenses.7. p.w.2, doctor, had adduced evidence that the petitioner has sustained fits and facial palsy due to injuries sustained in the accident and he had certified that the claimant had sustained 50% disability.8. p.w.3, welfare officer, who is attached to the rangavilas mills had adduced evidence that after the accident, the claimant did not attend his duty and that he had tendered registration letter and the same had been accepted by the employer.9. on considering the evidence of the witnesses and on scrutinizing the documents marked by the claimant, the tribunal had awarded a sum of rs.1,90,165/- as compensation, with interest at the rate of 9% per annum. against the said award, the insurance company has filed the above appeal.10. the highly competent counsel vehemently argued that the claimant had sustained simple injuries, but the doctor had assessed the disability at 50% which is on the higher side. further, the tribunal had adopted multiplier method and granted compensation, under the head of disability, which is not pertinent in the instant case. further, in the said accident, two vehicles have been involved and as such, contributory negligence has to be attributed to both the drivers. hence, the highly competent counsel entreats the court to set aside the award.11. the highly competent counsel for the claimant argued that the claimant had sustained grievous injuries on his skull and the skull bone was fractured. besides this, his right eardrum had been injured. the claimant had also sustained facial palsy and has fits due to the accident and therefore, he has become a totally disabled person. hence, the competent doctor, who had examined the claimant and verified the medical records of the claimant, had certified that the claimant had sustained 50% disability. therefore, the claimant could not attend his duty at the cotton mills, and hence, he had tendered his registration, which had been accepted. this, clearly, proves that the claimant's avocation has been totally affected. as such, multiplier method had been adopted.12. on considering the factual position of the case, and arguments advanced by the learned counsels on either side and on scrutinizing the impugned award of the tribunal, this court does not find any discrepancy in the conclusions arrived at regarding negligence, liability and quantum of compensation. however, the tribunal had adopted multiplier method to assess loss of income, due to disability, which is not relevant in this case. therefore, this court restructures the compensation as follows:- rs.1,00,000/- is awarded for disability, rs.15,000/- towards pain and suffering; rs.14,165/- for medical expenses; rs.5000/- towards transport; rs.5000/- towards nutrition; rs.5000/- towards attender charges; rs.10,000/- towards loss of earning during medical treatment and convalescence period and rs.36,000/- towards loss of amenities and loss of comfort, since the claimant had sustained facial palsy in the accident, which is permanent in nature. in total, rs.1,90,165/- is awarded as compensation. as such, the quantum of compensation is confirmed.13. this court is of the further view that the tribunal had decided the negligence and liability on the basis of criminal proceedings which had been levelled against the driver of the auto and after observing that the said auto has been insured with the appellant herein. the rate of interest fixed by the tribunal is admissible.14. as per this court's order, dated 07.03.2006, the insurance company was directed to deposit the entire compensation amount. now, the claimant is permitted to withdraw the entire compensation amount, with accrued interest thereon, lying in the credit of m.c.o.p.no.314 of 2004 on the file of motor accidents claims tribunal (principal sub-judge), coimbatore.15. in the result, the above appeal is dismissed. consequently, the award and decree dated 26.10.2004 passed in m.c.o.p.no.314 of 2004 by the motor accidents claims tribunal (principal sub-judge), coimbatore is confirmed. no costs. 04.11.2013 index : yes / no internet: yes / no skn to motor accidents claims tribunal, principal sub-judge, coimbatore. c.s.karnan.j skn c.m.a.no.812 of 2006 04.11.2013
Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:

04. 11.2013 CORAM THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.812 of 2006 The New India Assurance Company .. Appellant vs 1) Subramaniam 2) N.Balasubramanian 3) C.Balakrishnan .. Respondents Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to set aside the Award and Decree dated 26.10.2004 passed in M.C.O.P.No.314 of 2004 by the Motor Accidents Claims Tribunal (Principal Sub-Judge), Coimbatore. For Appellant : Mr.S.Manohar For Respondents : Mr.V.Nicholas (R1) R2 & R3 NDW JUDGMENT

The appellant/Insurance Company has preferred the present appeal in CMA No.812 of 2006, against the Award and Decree, dated 26.10.2004, passed in M.C.O.P.No.314 of 2004 by the Motor Accidents Claims Tribunal (Principal Sub-Judge), Coimbatore.

2. The short facts of the cases are as follows:- The claimant stated that on 28.02.2001, at about 11.00 hours, when he was riding his motorcycle on the Avinashi Road, the driver of the Auto bearing registration No.TAB5616 coming in the same direction and driven at a high speed and in a negligent manner, dashed against the motorcycle. As a result, the claimant sustained grievous injuries. Hence, he has filed the claim in MCOP No.314 of 2004, on the file of the Principal Sub-Court, Coimbatore.

3. The respondent/Insurance Company had filed a counter statement and resisted the claim petition. The respondent submitted that the said Auto had not been covered under a valid policy. Further, it was submitted that the accident had not been committed by the driver of the auto. The averments in the claim regarding nature of injuries, mode of treatment, disability and medical expenses was also not admitted.

4. On considering the averments of both parties, the Tribunal had framed two issues, namely, (1) Due to whose negligence was the accident caused and did the petitioner sustain injuries in the accident?. (2) whether the claimant is entitled to get compensation?. If so, what is the quantum of compensation?.

5. On the side of the claimants, three witnesses were examined and 22 documents were marked, namely, First Information Report, Wound Certificate, Discharge Summary, Criminal Court's Judgment, Medical Treatment Particulars, Medical Particulars, Employment Particulars, Estimate for repair of motorcycle, X'rays, Disability Certificate, Registration Letter tendered by the claimant and acceptance of the same by the employer. On the side of the respondents, no oral and documentary evidence was given.

6. P.W.1 had adduced evidence that on 28.02.2001, at about 11.00 a.m, when he was proceeding on his motorcycle on the Avinashi Road, the auto bearing registration No.TNB5616 driven by its driver in a negligent manner, dashed against the motorcycle. He deposed that he had sustained injuries, in the accident. He deposed that he had been hospitalised at PSG hospital on the very same day, and that he had undergone treatment, as an impatient. He further stated that he had sustained injuries on his skull and that his skull bone was fractured and that his right eardrum had also been injured. P.W.1, further stated that he had spent a sum of Rs.14,525/- towards medical expenses.

7. P.W.2, Doctor, had adduced evidence that the petitioner has sustained fits and facial palsy due to injuries sustained in the accident and he had certified that the claimant had sustained 50% disability.

8. P.W.3, Welfare Officer, who is attached to the Rangavilas Mills had adduced evidence that after the accident, the claimant did not attend his duty and that he had tendered registration letter and the same had been accepted by the employer.

9. On considering the evidence of the witnesses and on scrutinizing the documents marked by the claimant, the Tribunal had awarded a sum of Rs.1,90,165/- as compensation, with interest at the rate of 9% per annum. Against the said award, the Insurance Company has filed the above appeal.

10. The highly competent counsel vehemently argued that the claimant had sustained simple injuries, but the Doctor had assessed the disability at 50% which is on the higher side. Further, the Tribunal had adopted multiplier method and granted compensation, under the head of disability, which is not pertinent in the instant case. Further, in the said accident, two vehicles have been involved and as such, contributory negligence has to be attributed to both the drivers. Hence, the highly competent counsel entreats the Court to set aside the award.

11. The highly competent counsel for the claimant argued that the claimant had sustained grievous injuries on his skull and the skull bone was fractured. Besides this, his right eardrum had been injured. The claimant had also sustained facial palsy and has fits due to the accident and therefore, he has become a totally disabled person. Hence, the competent doctor, who had examined the claimant and verified the medical records of the claimant, had certified that the claimant had sustained 50% disability. Therefore, the claimant could not attend his duty at the cotton mills, and hence, he had tendered his registration, which had been accepted. This, clearly, proves that the claimant's avocation has been totally affected. As such, multiplier method had been adopted.

12. On considering the factual position of the case, and arguments advanced by the learned counsels on either side and on scrutinizing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence, liability and quantum of compensation. However, the Tribunal had adopted multiplier method to assess loss of income, due to disability, which is not relevant in this case. Therefore, this Court restructures the compensation as follows:- Rs.1,00,000/- is awarded for disability, Rs.15,000/- towards pain and suffering; Rs.14,165/- for medical expenses; Rs.5000/- towards transport; Rs.5000/- towards nutrition; Rs.5000/- towards attender charges; Rs.10,000/- towards loss of earning during medical treatment and convalescence period and Rs.36,000/- towards loss of amenities and loss of comfort, since the claimant had sustained facial palsy in the accident, which is permanent in nature. In total, Rs.1,90,165/- is awarded as compensation. As such, the quantum of compensation is confirmed.

13. This Court is of the further view that the Tribunal had decided the negligence and liability on the basis of criminal proceedings which had been levelled against the driver of the auto and after observing that the said auto has been insured with the appellant herein. The rate of interest fixed by the Tribunal is admissible.

14. As per this Court's order, dated 07.03.2006, the Insurance Company was directed to deposit the entire compensation amount. Now, the claimant is permitted to withdraw the entire compensation amount, with accrued interest thereon, lying in the credit of M.C.O.P.No.314 of 2004 on the file of Motor Accidents Claims Tribunal (Principal Sub-Judge), Coimbatore.

15. In the result, the above appeal is dismissed. Consequently, the award and decree dated 26.10.2004 passed in M.C.O.P.No.314 of 2004 by the Motor Accidents Claims Tribunal (Principal Sub-Judge), Coimbatore is confirmed. No costs. 04.11.2013 Index : Yes / No Internet: Yes / No skn To Motor Accidents Claims Tribunal, Principal Sub-Judge, Coimbatore. C.S.KARNAN.J skn C.M.A.No.812 of 2006 04.11.2013