Royal Sundaram Alliance Insurance Company Limited v. D.MosesR1

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.06.2011CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCMA.Nos.1421 and 1884 of 2007Royal Sundaram Alliance Insurance Company Limited Chennai-14Appellant in CMA.1421/07/2nd Respondent &R2 in CMA.1884/2007 Vs1.D.MosesR1 in CMA.1421/2007/ Claimant & Appellant in CMA.1884/07 2.A.Azeez BashaR2 in CMA.1421/2007/ 1st Respondent & R1 in CMA.1884/2007(R2 Set Exparte before Lower Court)Prayer:- These Civil Miscellaneous Appeal are filed under section173 of M.V.Act against the Judgement and Decree dated 9.3.2007made in MCOP.No.5694/2004 on the file of the VI Jude, Court ofSmall Causes (MACT) Chennai.For Appellant :Mr.M.B.Gopalan-CMA.1421/2007 Mr.V.M.Muthurajan - CMA.1884/2007for R1 For Respondent :Mr.N.M.Muthurajan-R1-CMA.1421/2007Mr.M.B.Gopalan-CMA.1884/2007 for R2JUDGEMENTThese Civil Miscellaneous Appeals in CMA.Nos.1421 and 1884of 2007 are filed by the Royal Sundaram Alliance Insurance CompanyLimited and the claimant respectively against the Judgement andDecree dated 9.3.2007 made in MCOP.No.5694/2004 on the file ofthe VI Court of Small Causes (MACT) Chennai.2. Shortly stated factual conspectus are as under:-a. On 31.7.2004 at about 16.30 hours, the claimant, who isthe Appellant in CMA.Nos.1884/2007, was driving the Lorry bearingReg.No.TN-07-U-1212 from Kelambakkam to Maduravoyal along 200 ft.bypass road and while he was proceeding near Kovur Bridge, the https://hcservices.ecourts.gov.in/hcservices/ lorry bearing Reg.No.TN-09-AD-8790 came in a rash and negligentmanner from the opposite direction and dashed against the lorrydriven by the claimant, as a result of which, he sustainedgrievous injuries. Hence, the claimant claimed a compensation ofRs.20,00,000/- before the Tribunal.b. In the counter filed by the Insurance Company, theydenied the averments made in the claim petition in relation to thenegligence of the driver, but, however, disclosed that theoffending lorry was insured with the Appellant Insurance Company.c. The Tribunal, on the basis of the pleadings of theparties and after hearing both sides and the evidence adduced,held that the accident had occurred only due to the rash andnegligent driving of the driver of the offending lorry and awardeda sum of Rs.5,06,000/- as total compensation to the claimant,directing the Insurance Company to deposit the award amount withinterest at the rate of 7.5 per cent p.a. from the date ofnumbering of the claim petition till the date of deposit. Asagainst the same, these Civil Miscellaneous Appeals have beenfiled by the Insurance Company and the claimant respectively.3. This court heard the submissions of the learnedcounsel on either side and also perused the materials placed onrecord.4. According to the claimant, the driver of the lorrybearing Reg.No.TN-09-AD-8790 was solely responsible for theaccident. On the other hand, the learned counsel for theInsurance Company would contend that the claimant was responsiblefor the accident and he had contributed to the accident at leastto some extent.5. On the side of the claimant, the claimant examinedhimself as PW.1 and the Head Constable attached to Mangadu PoliceStation as PW.5 to speak about the negligence. PW.1 has statedthat he was driving the lorry and proceeding to Maduravayal along200 ft. bypass road and when he was proceeding near Kovur Bridge,the offending lorry came to the wrong side and dashed against hislorry. His evidence indicated that though he tried his best toavoid the accident by going to his left extreme, but however, theoffending lorry came to his side and dashed against his lorry.PW.5 has stated that the FIR was registered against the offendinglorry driver in Cr.No.570/2004 for the offences under Sections 279and 338 of IPC and the driver of the offending lorry was alsocharge sheeted before the Judicial Magistrate, Poonamallee and hehas produced a copy of the FIR, Ex.P12, Rough plan Ex.P13, a copyof charge sheet Ex.P14 and a copy of RC Book of the lorry drivenby the claimant Ex.P15.6. The FIR was registered on the report given by thecleaner of the lorry driven by the claimant. Ex.P13 would clinchthe issue as to the negligence aspect. RW.1, the driver of theoffending lorry has deposed that both the lorries were on the spotin the same position till the Police arrived at the accident spot.He would further admit that Ex.P13 was prepared in his presence.In Ex.P13, it is shown that the lorry driven by the claimant was https://hcservices.ecourts.gov.in/hcservices/ in its correct direction and the offending lorry had come to thewrong side. The contention of RW.1 that the claimant whiledriving his lorry overtook a bus and an auto rickshaw, came to thewrong side and hit against the lorry driven by him is belied byEx.P13 rough plan. It is not in dispute that Ex.P13 showed theposition of the vehicles immediately after the accident at thespot. From the position of the vehicles, the inference that couldbe drawn is that the offending lorry had come to the wrong side,which had resulted in collusion of the vehicles. The evidenceshows that the claimant was diligent and he had swerved hisvehicle to his left side, but in spite of it, the offendingvehicle had dashed against him. RW.1 has stated that there was nodamages to both the vehicles. He has admitted that though he hasbeen injured, he has not filed any claim petition. That apart, hehas not given any complaint to the Police. As such, the evidenceon record clearly established that the offending lorry had come tothe wrong side and hit against the lorry driven by the claimant.On analysing the entire evidence, the Tribunal came to the rightconclusion that the driver of the offending lorry was solelyresponsible for the accident and there is no irregularity orinfirmity in the finding of the Tribunal with regard to thenegligence aspect, warranting interference by this court andhence, the same is confirmed.7. As regards the quantum of compensation, the claimanthas suffered the following injuries:-(a)compound and communited fracture of left femur,(b)fracture of both bone right leg, (c)communited fracture of distal end of right radium,(d)lacerated injury over left frontal region,(e) lacerated injury over right parietal region,(f) lacerated injury exposing muscle over left lower3rd of leg,(g)lacerated injury over left knee, lacerated injuryover left head-5x1x1.5cm and(h)lacerated injury over right knee-10x1.5x2 cms. Initially, the claimant was treated as an inpatient in theGovernment Hospital, Chennai from 31.7.2004 to 14.9.2004. Ex.P1 isthe discharge summary. Thereafter, he was admitted and treated asan inpatient in the VHS Hospital from 14.9.2004 to 10.2.2005.Subsequently, he was treated as an inpatient in Sri GM Hospitalfor continuous treatment from 5.4.2006 to 10.4.2006. The claimanthas suffered fracture in his both legs and also sufferedcommunited fracture on his left hand. 8. PW.2 Dr.K.J.Mathiazhagan, a retired Professor and Headof the Department of Kilpauk Medical College Hospital, Chennai,who had examined the claimant, has deposed that the claimantcannot perform the duty as a lorry driver, which he was doingearlier and assessed the disability as partial and permanent to anextent of 80 per cent. Though it was suggested to him by theInsurance Company that there was no mal union or non union ofbones, he denied the same in his cross examination. https://hcservices.ecourts.gov.in/hcservices/

9. It was pointed out by the learned counsel for theInsurance Company that the claimant had been treated for kidneyailment and contended that the claimant's previous poor healthcondition, more particularly, diabetes was responsible for hisdisablement, which aggravated his health condition and the samewas also suggested to PW.2 and he denied it in the crossexamination. According to the claimant, renal failure is due tothe compound and communited fracture suffered by him and also dueto loss of muscle. It has been submitted by the learned counselfor the claimant that whenever a major muscle injury happensoutside dirt particles, get into the blood vessels and accumulatein the kidney and cause renal failure. Therefore, he wouldsubmit that renal problem developed only in the course oftreatment. 10. The claimant had been admitted in the Hospital on31.7.2004. On 10.8.2004, when he was tested for fitness forsurgery, it was found that he was having renal problem. Ex.P16,discharge summary and the case sheet reveal the same. It is morelikely that the wounds would have been infected resulting inkidney renal problem. It is the categoric case of the claimantthat he had no kidney ailment before the accident and the injuryalone had caused it, which was later rectified. In the firstdischarge summary, there is no indication as to the history of therenal problem faced by the claimant at the time of admission intothe hospital. In the discharge summary issued by the VHS Hospitalalso, there is nothing noted regarding renal problems. Itappears that he had developed renal problem only in the course oftreatment. Therefore, the contention of the learned counsel forthe Insurance Company that the claimant had renal problems earlierand it had caused the disablement merits no acceptance.11. The Doctor has assessed the permanent disability at80 per cent on the ground that the claimant can walk only with asupporter, he cannot grip any material and it is not possible forhim to do work as a lorry driver any more in future. The claimantwas a lorry driver and the same is also evident from the fact thathe sustained those injuries only when he was driving the lorry.The evidence of PW.2 Doctor and the medical records clearlyestablished that he cannot work as a lorry driver and therefore,he had suffered total disability in respect of his earningcapacity as a driver. The Tribunal though accepted the assessmentmade by the Doctor that the claimant suffered permanent disabilityto an extent of 80 per cent, but, however, awarded Rs.2,00,000/-towards continuing permanent disability and the loss of earningpower, which needs to be modified.12. According to the claimant, he was earning Rs.4000/-p.m. and was getting Re.250 per day as batta. PW.4, the co-driverhas corroborated his evidence. It has been established by theoral as well as the documentary evidence that he cannot work as alorry driver in future and to that extent, there is total loss inhis earning capacity. While computing the compensation for the https://hcservices.ecourts.gov.in/hcservices/ disability suffered by the claimant, it is the functionaldisability resulting in loss of earning capacity, which is thecriteria in assessing compensation. The loss of earning capacityis commensurate to the injuries suffered and the loss of earningcapacity as a result thereof. In the instant case, it is no doubttrue that the claimant has lost his capacity to work as a driver.But, however, he could perform other works, which is suitable tohis physical condition after the accident. It is not the case ofthe claimant that he is totally immobilised and had become unfitfor doing any other work. Although the claimant cannot do thedriving work, as he is in a position to earn a living other thanby doing driver work, the functional disability could be assessedat 75 per cent.13. The claimant was aged 42 years old at the time of theaccident and hence, the proper multiplier would be 15. Theaccident had occurred at the time when he was driving the vehicleand he was having a valid driving licence as per Ex.P8. Accordingto the claimant, he was earning Rs.4000/- p.m. and Rs.250/- perday as batta. However, considering the personal expenses he wouldincur, his monthly income could be taken as Rs.4000/-. Thus, theloss of future earnings is arrived at Rs.5,40,000/-(Rs.4000*12*15*75/100).14. The Tribunal awarded Rs.2,00,000/- towards pain andsuffering, which is on the higher side and the same is reduced toRs.50,000/-. The amount of compensation Rs.10,000/- towardsattendant charges awarded by the Tribunal is enhanced toRs.20,000/-. The award of amount of Rs.45,000/- towards loss ofearning during the period of treatment, Rs.10,000/- towardstransportation charges, Rs.10,000/- towards extra nourishment,Rs.500/- towards damage to clothes and Rs.30,084/- towards medicalexpenses, which is born out by records, awarded by the Tribunalare just and fair compensation and the same are confirmed. Apartfrom this, a sum of Rs.20,000/- towards the loss of marital lifeis awarded. In all, the claimant is entitled to a sum ofRs.7,25,584/- with interest at 7.5 per cent p.a. from the date ofthe claim petition till the date of realization.15. In the result, CMA.No.1421/2007 filed by theInsurance Company is dismissed and CMA.No.1884 of 2007 filed bythe claimant is allowed. The impugned award is enhanced toRs.7,25,584/- from Rs.5,06,000/-. In all, the claimant isentitled to a sum of Rs.7,25,584/- with interest at 7.5 per centp.a. from the date of the claim petition till the date ofrealization as detailed below:-S.NoCategoryAward Amount (Rs.)1Loss of Future Earnings Due To The Disability Suffered By The Claimant 5400002Pain and Suffering50000 https://hcservices.ecourts.gov.in/hcservices/ 3Attendant's Charges200004Loss of Income During The Period Of Treatment450005Transportation Expenses100006Extra Nourishment100007Damages to Clothes 5008Medical Expenses300849Loss of Marital Life20000Total Compensation 725584The Appellant Insurance Company is directed to deposit theenhanced award amount with interest at 7.5 per cent p.a. from thedate of the claim petition till the date of deposit within aperiod of eight weeks from the date of receipt of a copy of thisorder. On such deposit being made, the claimant is entitled towithdraw the award amount with interest after giving credit to theamount already withdrawn by him. No costs. Srcm Sd/-Deputy Registrar//True Copy//Sub Asst. RegistrarTo:The VI Judge, Court of Small Causes (MACT) Chennai+ 2 ccs to Mr. N.B. Gopalan, Advocate SR No.36772, 36773+ 1 cc to Mr. N.M. Muthurajan, Advocate SR No.36439CK(CO)SR/1.8.2011CMA.Nos.1421 and 1884 of 2007