S. Suresh Vs. S. Alavandar and Others - Court Judgment

Excerpt:
(prayer: appeal filed under section 173 of the motor vehicles act, 1988, against the judgment and decree, dated 07.06.2002, made in m.c.o.p.no.674 of 2000, on the file of the additional district/fast track court [motor accident claims tribunal], thanjavur.) 1. this civil miscellaneous appeal has been filed by the appellant against the judgment and decree, dated 07.06.2002, made in m.c.o.p.no.674 of 2000, on the file of the additional district/fast track court [motor accident claims tribunal], thanjavur. 2. the appellant is the claimant in m.c.o.p.no.674 of 2000. he filed m.c.o.p., claiming a sum of rs.4,50,000/- for the injury sustained by him in the accident occurred on 09.07.1999. respondents 1 and 3 are the owners of the vehicle involved in the accident. respondents 2 and 4 are the insurer of the vehicle belonging to the respondents 1 and 3. 3. facts of the case: (i) according to the appellant, he was travelling in a motorcycle bearing registration no.tn-22-6289, belonging to the third respondent as a pillion rider. at that time, the employee of the first respondent drove the tvs 50 bearing registration no.tn-49-c-5023 in a rash and negligent manner and dashed against the motorcycle belonging to the third respondent and caused the accident. due to the said impact, the appellant sustained injuries and was taking treatment at thanjavur medical college hospital as inpatient from 09.07.1999 to 03.08.1999. subsequently, he took treatment in royal hospital. in the accident, the appellant's jaw was fractured and he lost his teeth. he is a practising advocate. he is not able to speak properly and suffered loss of income. the accident took place due to rash and negligent driving by the employee of the first respondent. the second respondent is the insurer of the vehicle belonging to the first respondent. therefore, both are liable to pay compensation. (ii) the first respondent, owner of t.v.s.50, tn-49-c-5023, filed counter statement stating that on the date of accident, i.e., 09.07.1999, the insurance policy was valid. the two wheeler driven by one chandrasekaran hit against the two wheeler driven by the third respondent - d.swaminathan and the appellant was travelling as a pillion rider of the two wheeler driven by the third respondent. therefore, the appellant has to prove that the said chandrasekaran was guilty of rash and negligent driving and he had a valid driving licence. (iii) the second respondent insurance company filed counter statement and denied all the allegations and contended that the accident took place only due to rash and negligent driving by the third respondent and not by the employee of the first respondent and denied their liability to pay the amounts. (iv) the third respondent filed counter statement stating that the accident had occurred only due to rash and negligent driving by chandrasekaran, who was driving tn-49-c-5023 and the owner of the said two wheeler is the first respondent. the third respondent was having a valid driving licence at the time of accident. a complaint before the sub-inspector of police, thiruvaiyaru, was registered against the said chandrasekaran, in crime no.152 of 1999 under sections 279 and 337 of ipc. as per the policy conditions, the insurer has to indemnify and pay the compensation, as on the date of accident, the third respondent's vehicle was covered by the insurance policy issued by the fourth respondent. (v) the fourth respondent filed counter statement stating that the fir has been filed only against the first respondent and the compensation claimed by the appellant is excessive. the first respondent's rider had violated the policy conditions and therefore, he prayed for dismissal of the claim petition. (vi) before the tribunal, the appellant himself examined as p.w.1 and renganathan, dr.balachandran and raja mohammed were examined as p.ws.2 to 4 and six documents were marked as exs.p1 to p6. on behalf of the respondents, chandrasekaran and manikandan were examined as r.ws.1 and 2 and one document viz., motor vehicle inspector's report was marked as ex.r1. (vii) the tribunal considering the pleadings, evidence and arguments, came to the conclusion that the accident took place due to rash and negligent driving of the employee of the first respondent. based on the doctor's evidence and documents, the tribunal awarded a sum of rs.1,57,500/- on the following heads: sl.no.headsamount1permanent disability1080002pain and suffering100003loss of future earning power100004medical expenses29500total1575004. not being satisfied with the said award, the appellant has come forward with the present civil miscellaneous appeal, for enhancement of compensation. 5. the civil miscellaneous appeal is of the year 2002. the said appeal was dismissed for default on 24.11.2008 and subsequently, it was restored to file on 31.03.2016. today, when the matter is taken up for hearing, there is no representation on behalf of the appellant. 6. in the grounds of appeal, the appellant has raised the following grounds: the appellant is a practising advocate and he was earning a sum of rs.10,000/- per month at the time of accident. the tribunal erred in fixing the monthly income of the appellant as rs.1,500/- in stead of rs.10,000/- per month and further awarded a sum of rs.10,000/- each, towards pain and suffering and loss of earning power. these amounts are too meagre and prayed for enhancement of compensation. 7. the respondents have not filed any appeal against the said award. therefore, the finding of the tribunal that the accident occurred due to rash and negligent driving by the employee of the first respondent, is confirmed. 8. the learned counsel for the second respondent contended that the appellant did not produce any document to substantiate that he was earning rs.10,000/- per month. in the circumstances, the compensation awarded by the tribunal, is just and proper and prayed for dismissal of the civil miscellaneous appeal. 9. i have heard the learned counsel for the second respondent and perused the materials available on record. 10. it is not disputed that the appellant is a practising advocate. he did not produce any evidence with regard to his income. the tribunal in the absence of any evidence, fixed the monthly income of the appellant at rs.1,500/- and awarded a sum of rs.1,08,000/- towards permanent disability (rs.1,500/- x 12 x 10 (multiplier) = rs.1,08,000/-), which is very meagre. taking into consideration the nature of profession of the appellant, this court fix the monthly income of the appellant as rs.2,000/-. p.w.3 has given the disability as 70%. the tribunal reduced the same as 60% without giving any reason. in view of the same, 70% of the disability, as certified by p.w.3 doctor, has to be taken into account for arriving at compensation with regard to injury. the appellant is entitled to compensation towards permanent disability as follows:- rs.2,000/- x 70 /100 x 12 x 10 = rs.1,68,000/- 11. further, the tribunal awarded a sum of rs.10,000/- each towards loss of future earning power and pain and suffering. considering the nature of injuries, the same are enhanced from rs.10,000/- to rs.15,000/- each. the appellant was taking treatment as inpatient from 09.07.1999 to 03.08.1999 and suffered 70% permanent disability. hence, he is entitled to attendant charges and for extra nourishment. therefore, a sum of rs.5,000/- each are awarded towards attendant charges and extra nourishment. in all other aspects, the award of the tribunal is hereby confirmed. 12. accordingly, the claimant is entitled for compensation as follows: sl.no.headsamount awarded by the tribunalamount awarded by this courtamount confirmed/ modified/ granted1permanent disability1080001,68,000modified2pain and suffering1000015,000modified3loss of future earning power1000015,000modified4medical expenses2950029,500confirmed5attendant charges-5,000granted6extra nourishment-5,000grantedtotal1575002,37,500enhanced byrs.80,000/-keeping in view the prevailing rate of interest during that period, the enhanced amount shall carry the interest at the rate of 7.5% p.a. from today. hence, the claimant is entitled for a sum of rs.1,57,500/- with interest at the rate of 9% p.a. from the date of claim till the date of realisation and also rs.80,000/- with interest at the rate of 7.5% p.a. from today till the date of realisation as compensation. the second respondent / insurance company is directed to deposit the entire award amount, now determined by this court, with accrued interest and costs, if not already deposited. 13. in the result, the award dated 07.06.2002, made in m.c.o.p.no.674 of 2000 passed by the learned additional district judge / fast track court, motor accident claims tribunal, thanjavur, is hereby modified and the civil miscellaneous appeal is partly allowed. no costs.

Judgment:

(Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree, dated 07.06.2002, made in M.C.O.P.No.674 of 2000, on the file of the Additional District/Fast Track Court [Motor Accident Claims Tribunal], Thanjavur.)

1. This Civil Miscellaneous Appeal has been filed by the appellant against the judgment and decree, dated 07.06.2002, made in M.C.O.P.No.674 of 2000, on the file of the Additional District/Fast Track Court [Motor Accident Claims Tribunal], Thanjavur.

2. The appellant is the claimant in M.C.O.P.No.674 of 2000. He filed M.C.O.P., claiming a sum of Rs.4,50,000/- for the injury sustained by him in the accident occurred on 09.07.1999. Respondents 1 and 3 are the owners of the vehicle involved in the accident. Respondents 2 and 4 are the insurer of the vehicle belonging to the respondents 1 and 3.

3. Facts of the case:

(i) According to the appellant, he was travelling in a motorcycle bearing Registration No.TN-22-6289, belonging to the third respondent as a pillion rider. At that time, the employee of the first respondent drove the TVS 50 bearing Registration No.TN-49-C-5023 in a rash and negligent manner and dashed against the motorcycle belonging to the third respondent and caused the accident. Due to the said impact, the appellant sustained injuries and was taking treatment at Thanjavur Medical College Hospital as inpatient from 09.07.1999 to 03.08.1999. Subsequently, he took treatment in Royal Hospital. In the accident, the appellant's jaw was fractured and he lost his teeth. He is a practising Advocate. He is not able to speak properly and suffered loss of income. The accident took place due to rash and negligent driving by the employee of the first respondent. The second respondent is the insurer of the vehicle belonging to the first respondent. Therefore, both are liable to pay compensation.

(ii) The first respondent, owner of T.V.S.50, TN-49-C-5023, filed counter statement stating that on the date of accident, i.e., 09.07.1999, the insurance policy was valid. The two wheeler driven by one Chandrasekaran hit against the two wheeler driven by the third respondent - D.Swaminathan and the appellant was travelling as a pillion rider of the two wheeler driven by the third respondent. Therefore, the appellant has to prove that the said Chandrasekaran was guilty of rash and negligent driving and he had a valid driving licence.

(iii) The second respondent Insurance Company filed counter statement and denied all the allegations and contended that the accident took place only due to rash and negligent driving by the third respondent and not by the employee of the first respondent and denied their liability to pay the amounts.

(iv) The third respondent filed counter statement stating that the accident had occurred only due to rash and negligent driving by Chandrasekaran, who was driving TN-49-C-5023 and the owner of the said two wheeler is the first respondent. The third respondent was having a valid driving licence at the time of accident. A complaint before the Sub-Inspector of Police, Thiruvaiyaru, was registered against the said Chandrasekaran, in Crime No.152 of 1999 under Sections 279 and 337 of IPC. As per the policy conditions, the insurer has to indemnify and pay the compensation, as on the date of accident, the third respondent's vehicle was covered by the insurance policy issued by the fourth respondent.

(v) The fourth respondent filed counter statement stating that the FIR has been filed only against the first respondent and the compensation claimed by the appellant is excessive. The first respondent's rider had violated the policy conditions and therefore, he prayed for dismissal of the claim petition.

(vi) Before the Tribunal, the appellant himself examined as P.W.1 and Renganathan, Dr.Balachandran and Raja Mohammed were examined as P.Ws.2 to 4 and six documents were marked as Exs.P1 to P6. On behalf of the respondents, Chandrasekaran and Manikandan were examined as R.Ws.1 and 2 and one document viz., Motor Vehicle Inspector's Report was marked as Ex.R1.

(vii) The Tribunal considering the pleadings, evidence and arguments, came to the conclusion that the accident took place due to rash and negligent driving of the employee of the first respondent. Based on the Doctor's evidence and documents, the Tribunal awarded a sum of Rs.1,57,500/- on the following heads:

Sl.No.	Heads	Amount
1	Permanent disability	108000
2	Pain and suffering	10000
3	Loss of future earning power	10000
4	Medical expenses	29500
	Total	157500

4. Not being satisfied with the said award, the appellant has come forward with the present civil miscellaneous appeal, for enhancement of compensation.

5. The civil miscellaneous appeal is of the year 2002. The said appeal was dismissed for default on 24.11.2008 and subsequently, it was restored to file on 31.03.2016. Today, when the matter is taken up for hearing, there is no representation on behalf of the appellant.

6. In the grounds of appeal, the appellant has raised the following grounds:

The appellant is a practising Advocate and he was earning a sum of Rs.10,000/- per month at the time of accident. The Tribunal erred in fixing the monthly income of the appellant as Rs.1,500/- in stead of Rs.10,000/- per month and further awarded a sum of Rs.10,000/- each, towards pain and suffering and loss of earning power. These amounts are too meagre and prayed for enhancement of compensation.

7. The respondents have not filed any appeal against the said award. Therefore, the finding of the Tribunal that the accident occurred due to rash and negligent driving by the employee of the first respondent, is confirmed.

8. The learned counsel for the second respondent contended that the appellant did not produce any document to substantiate that he was earning Rs.10,000/- per month. In the circumstances, the compensation awarded by the Tribunal, is just and proper and prayed for dismissal of the civil miscellaneous appeal.

9. I have heard the learned counsel for the second respondent and perused the materials available on record.

10. It is not disputed that the appellant is a practising Advocate. He did not produce any evidence with regard to his income. The Tribunal in the absence of any evidence, fixed the monthly income of the appellant at Rs.1,500/- and awarded a sum of Rs.1,08,000/- towards permanent disability (Rs.1,500/- x 12 x 10 (multiplier) = Rs.1,08,000/-), which is very meagre. Taking into consideration the nature of profession of the appellant, this Court fix the monthly income of the appellant as Rs.2,000/-. P.W.3 has given the disability as 70%. The Tribunal reduced the same as 60% without giving any reason. In view of the same, 70% of the disability, as certified by P.W.3 Doctor, has to be taken into account for arriving at compensation with regard to injury. The appellant is entitled to compensation towards permanent disability as follows:-

Rs.2,000/- x 70 /100 x 12 x 10 = Rs.1,68,000/- 11. Further, the Tribunal awarded a sum of Rs.10,000/- each towards loss of future earning power and pain and suffering. Considering the nature of injuries, the same are enhanced from Rs.10,000/- to Rs.15,000/- each. The appellant was taking treatment as inpatient from 09.07.1999 to 03.08.1999 and suffered 70% permanent disability. Hence, he is entitled to attendant charges and for extra nourishment. Therefore, a sum of Rs.5,000/- each are awarded towards attendant charges and extra nourishment. In all other aspects, the award of the Tribunal is hereby confirmed.

12. Accordingly, the claimant is entitled for compensation as follows:

Sl. No.	Heads	Amount awarded by the Tribunal	Amount awarded by this Court	Amount confirmed/ modified/ granted
1	Permanent disability	108000	1,68,000	modified
2	Pain and suffering	10000	15,000	modified
3	Loss of future earning power	10000	15,000	modified
4	Medical expenses	29500	29,500	confirmed
5	Attendant charges	-	5,000	granted
6	Extra nourishment	-	5,000	granted
	Total	157500	2,37,500	enhanced by Rs.80,000/-

Keeping in view the prevailing rate of interest during that period, the enhanced amount shall carry the interest at the rate of 7.5% p.a. from today. Hence, the claimant is entitled for a sum of Rs.1,57,500/- with interest at the rate of 9% p.a. from the date of claim till the date of realisation and also Rs.80,000/- with interest at the rate of 7.5% p.a. from today till the date of realisation as compensation. The second respondent / Insurance Company is directed to deposit the entire award amount, now determined by this Court, with accrued interest and costs, if not already deposited.

13. In the result, the award dated 07.06.2002, made in M.C.O.P.No.674 of 2000 passed by the learned Additional District Judge / Fast Track Court, Motor Accident Claims Tribunal, Thanjavur, is hereby modified and the Civil Miscellaneous Appeal is partly allowed. No costs.