The New India Assurance Company v. Kandappan & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 03.03.2009CORAM:THE HONOURABLE MR.JUSTICE M.VENUGOPALC.M.A No.1009 of 2004The New India Assurance Company,12,New Hospital Road,Gobichettipalayam & Taluk. ... Appellant(3rd Respondent)Vs.1.Kandappan2.Karthikeyan3.A.K.Natarajan ... Respondents (Petitioner)Prayer: Appeal filed against the award of the Motor Accident ClaimsTribunal, Sub Judge, Bhavani in M.C.O.P.No.544 of 2001 dated28.07.2003. For Appellant : M/s.S.Jayasankar For Respondents: Mr.C.Chockalingam for R 1 No appearnace for R 2 R 3 -Notice Dispensed with J U D G M E N TChallenge in this Civil Miscellaneous Appeal is to the awardpassed by the Motor Accident Claims Tribunal viz., Sub Judge, Bhavaniin M.C.O.P.No.544 of 2001 dated 28.07.2003 awarding a compensation ofRs.2,21,553/- to the first respondent/claimant together with interestat 9% p.a. from the date of filing of the petition till date ofpayment.2. The short facts of the claim are as follows:-On 23.01.1997, the first respondent/claimant was travelling in abullock cart driven by one Periyasamy towards Sankarapalayam VelasamyKoil from Karuvalvadipudhur for cooking at festival in the temple for'Thai Poosam' at the early hours of the day. Periyasamy, the driverdrove the said cart from West to East on the left side of the https://hcservices.ecourts.gov.in/hcservices/ Andhiyur-Athani main road. Other than the first respondent/claimantand the driver, one Nanchappan, Sakthivel owner of the bullock cartand one Ekambaram were sitting in the bullock cart. In the cart,there were some articles like tape recorder, Speakers, Suit cases andsome cooking vessel with food materials. Also, another bullock cartdriven by Chinnasamy followed the first respondent/claimant's bullockcart. When the first respondent/claimant's cart was crossing Thoppurnear Alamarathur at about 04.30 a.m. the second respondent/firstrespondent drove the Goods lorry bearing Registration No.TCG 5004 inthe direction of West to East in a rash and negligent manner withoutblowing horn, without minding the traffic rules and without observingthe bullock cart in front of the lorry dashed the bullock cart drivenby Chinnasamy and the bullock cart in which the firstrespondent/claimant and others were travelling were thrown off, as aresult of which the first respondent/claimant sustained seriousinjuries on his chest and his both legs were crushed by the lorrywhich resulted in a fracture of his two leg bones and also that helost his both the legs. Due to the rash and negligent driving of thesecond respondent/first respondent, the accident had occurred not onlycausing serious injuries to the first respondent/claimant but alsoothers like Nanchappan, Sakthivel, Periyasamy, Ekambaram sustainedinjuries and further that bullocks also sustained injuries and damagesalso sustained to the bullock cart and other articles kept in thecart. The first respondent/claimant was immediately taken to theErode Government Hospital by a taxi and given medical treatment. Thefirst respondent/claimant is still undergoing medical treatment at aprivate hospital. The first respondent/claimant was serving as a Cookat function, marriages and other festival occasions. The firstrespondent/claimant was earning more than Rs.4,000/- p.m. by servingas a Cook. Before the accident, the first respondent/claimant washale and healthy and he was an efficient Cook in the locality.3. The second respondent/first respondent is the driver of theoffending lorry involved in the accident. The third respondent/secondrespondent is the owner of the said lorry. The lorry has been injuredwith the appellant/third respondent. Hence, they are jointly andseverally are liable to pay a compensation of Rs.3 lakhs to the firstrespondent/claimant. The second respondent/first respondent driverhas a valid driving license and the offending lorry involved in theaccident has been covered with insurance. The Anthiyur police haveregistered a criminal case against the second respondent/firstrespondent in Cr.No.54/97 under Sections 279, 337 and 338 of I.P.C.and in S.T.C.No.871/98. The second respondent/first respondent driverhas admitted the offence and has been fined to an extent ofRs.2,100/-.4. The appellant/third respondent has filed a counter whiledenying the paragraph No.23 averments of the claim petition, hasstated that the bullock cart was driving by Periyasamy in a rash and https://hcservices.ecourts.gov.in/hcservices/ negligent manner without following the rules and regulations and thathe is responsible for the occurrence and further that the firstrespondent/claimant has no manner of right to claim any type ofcompensation from the appellant/respondent and that the claim petitionis not maintainable and moreover, the claim made under each head ishighly excessive and therefore prays for dismissal of the petition.5. Before the Tribunal, the first respondent/claimant has beenexamined as P.W.2 and further that the claimant in M.C.O.P.543/01 hasbeen examined as P.W.1 and the claim in M.C.O.P.545/01 has beenexamined as P.W.3 and the doctor has been examined as P.W.4 and Exs.A1to A23 documents were marked. On the side of the respondents, Ex.B1has been marked and no witnesses were examined. After contest, theTribunal, on appreciation of oral and documentary evidence has passedan award granting a compensation of Rs.2,21,553/- (Rupees two lakhstwenty one thousand five hundred and fifty three) together withinterest at 9% p.a. from the date of petition till date of paymentalong with proportionate cost payable by the appellant/thirdrespondent Insurance Company.6. To prove negligence, the first respondent/claimant has beenexamined as P.W.2 and in his evidence, he has deposed that on23.01.1997 he along with Periyasamy, Sakthivel, Ekambaram andNanchiappan were proceeding to Velasamy (Murugan temple) atSankarapalayam in tyre cart on the left side of Anthiyur road and thatthe said cart was driven by Periyasamy and that Sakthivel is the ownerof the said tyre cart and they started at morning 4 O' clock atKaruvalvadipudhur and when they were coming beyond place past Thoppurat 04.30 a.m. at that time he was sitting along with Sakthivel,Ekambaram and Nanchiappan and at that time behind the cart anothertyre cart was driven by one Chinnasamy which was coming and at thattime the lorry bearing Registration No. TCG 5004 came from thewestern side in a fast speed and negligently without sounding horn anddashed against the tyre cart and Chinnasamy and further dashed againsttheir tyre cart also resulting in heavy damages and all of them werethrown out of their cart and that he sustained upon fracture in histwo legs and that his two legs were crushed and he also sustainedinjuries on the head, chest and hand and that their cart capsizedresulting in damages and also that their bullocks, its horns, leg werebroken and that the cooking vessels, rice, pulses and other foodarticles kept in the cart in which he travelled all were strewn on theroad and he fell unconscious and that he was taken to Erode Hospitalwhere an operation was performed on his two legs and that he tooktreatment at the hospital for two months as an inpatient. In factP.W.1 Periyasamy's evidence is similar to the evidence of P.W.2 inregard to the manner and mode of occurrence. Ex.A4 is the xerox copyof the Motor Vehicles Inspection Report relating of the offendinglorry TCG 5004, wherein the Motor Vehicles Inspector has inter alia https://hcservices.ecourts.gov.in/hcservices/ opined that 'the accident was not due to any mechanical defect in thevehicle'. Ex.A5 is the xerox copy of the charge sheet in respect ofthe second respondent/first respondent, being the driver of the lorryTCG 5004.7. A perusal of Ex.A5 indicates that the second respondent/firstrespondent lorry driver has been charge sheeted as per Sections 279,337 and 338 of I.P.C. Ex.A6 is the order dated 13.05.1997 of thelearned Judicial Magistrate, Bhavani, Erode District passed in STC821/97 whereunder the second respondent/first respondent (lorrydriver) has been found guilty upon his admission as per Sections 279,337 and 338 of I.P.C. along with fine and default sentence and he hasbeen imposed with a total fine amount of Rs.2,100/-. Inasmuch as thefirst respondent/claimant has spoken about the accident in hisevidence as P.W.1 in a clinching fashion and because of the fact thatthe second respondent/first respondent offending lorry driver hasadmitted the offence and resultantly he has been found guilty by thecriminal court as per Ex.A6 order, this Court comes to the conclusionthat the accident has taken place because of negligent and rashdriving of the second respondent/first respondent lorry driver andthat he is squarely responsible for causing the accident and the pointis answered accordingly.8. In regard to the quantum of compensation to be awarded, thelearned counsel for the appellant/Insurance company contends that theTribunal has committed an error in taking the monthly income of thefirst respondent /claimant as Rs.3,000/- in the absence of any proofand further that the Tribunal has wrongly accepted the disability at60%, assessed by P.W.2 doctor, when the claimant has sustainedfracture of both bones as per Ex.A2 and applied the Schedule II toSection 163 A of Motor Vehicles Act in assessing the loss of futureearning power, when the disability has not been in accordance with theWorkmen Compensation Act 1823 and further the Tribunal is not correctin awarding a sum of Rs.15,000 towards pain and suffering andRs.10,000/- towards Nourishment Expenses and in any event the amountawarded by the Tribunal viz., Rs.2,21,553/- together with interest at9% p.a. etc., is not legal and therefore prays for allowing the appealin the interest of justice.9. Per contra, the learned counsel for the firstrespondent/claimant submits that the Tribunal has awarded a sum ofRs.2,21,553/- together with interest at 9% p.a. etc., as against aclaim of Rs.3 lakhs and that no cross appeal has been filed by thefirst respondent/claimant and that the award passed by the Tribunal atthis stage in appeal need not be interfered with by this Court.10. It is to be noted that the first respondent/claimant in hisclaim petition has made the following claim under different headsclaiming different amount and the same is as below:- https://hcservices.ecourts.gov.in/hcservices/ 1)Loss of earning from 23.01.97 to 22.01.99Rs.at the rate of Rs.4,000/- p.m. as a Cookat functions : 96,000.002)Partial loss of earning :Total loss of earning as he lost his both the legs.3)Transport to hospital : 2,000.004)Extra Nourishment : 24,000.005)Damages to clothing and Articles : Nil6)Medical Expenses including doctor's fee and medicines (still the petitioner is undergoing treatment as outpatient): 1,00,000.007)Compensation for pain & suffering : 1,00,000.008)Compensation for continuing as permanent disability : 2,00,000.009)Compensation of the loss of earning power: 2,00,000.00 ----------------Total 7,22,000.00 ----------------and restricted the claim to the tune of Rs.3 lakhs only.11. In Ex.A10 the Wound Certificate of the firstrespondent/claimant, the following injuries are mentioned:-1)10cmX6cmX2cm lacerated wound medical aspect of lower half ofleft leg.0 Fractured bone ends seen then the wound.2)4cmX2cmX1cm lacerated wound just (+) medial aspect of lowerhalf of left leg. Fractured bone ends seen through the wound.3) Diffuse swelling of ® leg with a punctured wound over theanterior aspect of ® leg middle 1/3rd. 4) X-rays show comminutied fracture of both the bones in left legand right leg and admitted in Devi hospital.Further, in Ex.A10, it is stated the first respondent/claimant isalleged to have sustained injuries due to road traffic accident lorryversus bullock cart at about 04.30 a.m. on 23.01.1997 near ThoppurAnthiyur to Athani main road and has taken initial treatment atGeneral hospital, Erode. In Ex.A18, the Disability Certificate inrespect of the first respondent/claimant, issued by P.W.4 the doctorit is inter alia mentioned that the first respondent/claimant has cometo his clinic on 30.01.2003 with the help of an auxillary crutches forconsultation regarding his pain in his both legs and both ankles andon clinical examination, it is found that he has a painful adherentwound sear about 24 X 2 cms size extending from the medial side ofleft foot, left ankle and lower 1/3rd of the left leg and depresseddeformity with a bend on the medial side of lower 1/3rd of left leg https://hcservices.ecourts.gov.in/hcservices/ and tenderness (+) over the lower 1/3rd of (L) tibia and fibula bonesand left leg is shortened in 2cm in height and left muscles arewasted 3cm size in circumference and the left ankle and left foot aremedially deviated and their movements are limited and painful and leftknees joint movements are limited and painful and he walks withlimping painful gait. He uses an auxiliary crutches while walking andsitting crossed leg on the floor and squatting for toilet purposes andlong distance walking and long time standing causes pain in his bothlegs and both ankles and x-ray of the left leg with left knee dated30.01.2003 shows mal-united fracture of upper 1/3d of left leg withnon-united external fracture hole with mal-united fracture middle 1/3d(L) fibula bones with O.A. Changes (L) knee joint x-ray left anklewith leg TAP view, lat view shows mal-united fracture both bones lower1/3rd of left leg with joint space narrowing and O.A. Changes (L)ankle joint and (L) subtalar joint and x-ray of ® Leg knee dated30.01.2003 shows malunited fracture upper 1/3rd of right fibula andmalunited fracture of both bones lower 1/3rd of right leg andmalunited fracture of both bones lower end of right leg with O.A.Changes in ® knee joint and right ankle and right foot joint spacenarrowed O.A. changes (x) in the ankle joint and subtalar joints withosteoporosis of (L) foot and (L) ankle bones and based on the clinicaland x-ray findings involving both his legs and both ankles, thepermanent disability of the first respondent/claimant has beenassessed at 60%. Indeed, P.W.4 doctor has adduced evidence before theTribunal as per Ex.A18 the Disability Certificate issued by him. 12. Continuing further in Ex.A18, it is also mentioned thatthe first respondent/claimant has been taken to Devi hospital at Erodewhere he has been admitted on 23.01.1997 at 7 p.m. and X-rays weretaken which shows comminutied # both bones of both legs and hence hewas treated with external fixator Apparatus for his left legs # Bbones of lower 1/3rd heel and P.O.P. Slab ® AK slab for # Both bonesof middle 1/3d of ® leg for a period of 2 months during which timeS.S.G. Taken from left thigh is grafted for left leg and after twomonths of I.P. Treatment, his external fixator apparatus from the leftleg was removed and immobilised in left AK cast and then dischargedwith an advice for review for treatment for every 15 days once, etc.,.13. As far as the present case is concerned, the firstrespondent/claimant has suffered a permanent disability of 60% as perEx.A18 the Disability Certificate issued by Dr.R.Krishnasamy andtherefore this Court grants a sum of Rs.60,000/- (Rs.1,000 for 1%disability) in this regard. Towards pain and suffering, this Courtgrants a sum of Rs.20,000/-. Towards the Medical Expenses and X-rayExpenses as seen from Exs.A13 to A15 and Ex.A23, this Court grants theactual sum of Rs.22,213. Towards Transport Expenses, this Courtgrants a sum of Rs.2,000/-. Towards Nourishment Expenses, though thefirst respondent/claimant has claimed a sum of Rs.24,000/-, this Courtgrants a sum of Rs.10,000/- considering the 60% permanent disability https://hcservices.ecourts.gov.in/hcservices/ sustained by him and the period of treatment undergone because of thefact that no strict proof of Evidence Act will apply to the MotorAccident Claims Cases bearing in mind of an important fact that it isa social welfare legislation mainly intended for the benefit of theinjured/victims. Though the first respondent/claimant as P.W.2 hasdeposed before the Tribunal that he used to go for Cook job inconnection with marriage and other festivities, etc., and that he willearn a daily wage of Rs.200/- and that he earned Rs.4,000/- p.m.Except the ipsi dixi statement, there is no documentary proof inregard to the actual income earned by him per month and therefore thisCourt fixes the loss of income as Rs.15,000/- per annum and atleastfor five years, the same works out to Rs.75,000/- (Rs.15,000 X 5) andtherefore this Court grants a sum of Rs.75,000/- towards loss ofincome. Towards global compensation, this Court awards a sum ofRs.1,000/-. Thus, the first respondent/claimant is entitled toreceive a total compensation of Rs.1,90,213/- (Rupees one lakh ninetythousand two hundred and thirteen) together with interest at 9% p.a.from the date of filing of the petition till date of payment, payableby the appellant/third respondent Insurance Company and consequentlythe award of Rs.2,21,553/- awarded by the Tribunal is on the higherside and this Court allows the appeal in above terms, leaving theparties to bear their own costs. The Lawyer's fee is fixed by thisCourt at Rs.6,805/-.14. In fine, a sum of Rs.1,90,213/- (Rupees one lakh ninetythousand two hundred and thirteen) is awarded together with interestat 9% p.a. from the date of filing of the petition till date ofpayment by this Court as compensation to the first respondent/claimantand resultantly, the award of the Tribunal stands modified. TheLawyer's fee is fixed at Rs.6,805/-. Further, the firstrespondent/claimant and the appellant/third respondent InsuranceCompany are directed to receive their balance due amount (less theamount already withdrawn if any) from the Tribunal by filing necessaryapplication for payment out as per the Civil Rules of Practice inaccordance with law.Sd/Asst.Registrar/true copy/Sub Asst.Registrarvri https://hcservices.ecourts.gov.in/hcservices/ To1.The Motor Accident Claims Tribunal,Sub Judge, Bhavani.2.The Record Keeper,VR Section, High Court, Madras.MBS (CO)km/13.3.C.M.A No.1009 of 2004