K.Rukmani v. R.Ranganathan & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 05.03.2010CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.1580 of 2008K.Rukmani ..Appellant/ClaimantVs1.R.Ranganathan2.United India Insurance Co., Ltd., Third Party Claims Cell, 38, Anna Salai, Chennai-2. ..Respondents/Respondents (R1 – Ex-parte) Appeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award and Decree, dated 10.07.2006, made inM.C.O.P.No.4441 of 2000, on the file of the Motor Accident ClaimsTribunal, IIIrd Small Causes Court, Chennai.For Appellant : Mr.U.M.RavichandranFor Respondents : Mr.N.Vijayaraghavan for R2J U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellant/petitioner against the Award and Decree, dated 10.07.2006,made in M.C.O.P.No.4441 of 2000, on the file of the Motor AccidentClaims Tribunal, IIIrd Small Causes Court, Chennai, awarding acompensation of Rs.36,000/- with 7.5% interest per annum, from thedate of filing petition till the date of payment of compensation.2.Aggrieved by the said Award and Decree, theappellant/petitioner has filed the above appeal praying for enhancedcompensation of Rs.2,00,000/- together with interest at the rate of12% per annum from the date of filing the petition till the date ofpayment of compensation.3.The short facts of the case are as follows: https://hcservices.ecourts.gov.in/hcservices/ On 14.07.2000, at about 09.00 hrs, while the petitioner wastravelling as a passenger in an Autorickshaw bearing registrationNo.TN01 P2408, from south to north, at the western side of theKanthanchavadi Bazar, the driver of the said autorickshaw drove theauto in a rash and negligent manner and dashed the auto against aparked auto bearing registration No.A/T TN21 A8998. As a result ofthe accident, the auto bearing registration No.TN01 P2408, turnedturtle. Consequent to this, the petitioner sustained grieviousinjuries and has suffered permanent disability. As such, the firstrespondent, the owner of the auto and the second respondent, as itsinsurer, are jointly liable to pay the compensation claimed by thepetitioner with interest and costs under Sections 166 and 142(B) ofthe Motor Vehicles Act.4.The petitioner was aged about 42 years at the time of accidentand was a vegetable vendor, earning a sum of Rs.150/- per day. As aresult of the said accident, she has sustained fracture of rightshoulder, injury on the right and left side of the leg, back of herbody, face and other injuries all over her body. She was initiallyadmitted at Government Hospital at Royapettah and has been receivingtreatment as inpatient from 14.07.1999 till date. Due to thepermanent disability sustained by her, she is not in a position to doher normal work. Hence, she has claimed a compensation ofRs.2,00,000/- from the respondents with interest and costs underSections 166 and 142(B) of the Motor Vehicles Act.5.The first respondent remained absent and was set ex-parte.6.The respondents, in their common counter, have resisted theclaim denying the averments in the claim as regards the age, incomeand occupation of the petitioner as well as the place, date and timeof accident. The respondent has also not admitted the averments inthe claim regarding the nature of injuries, period of treatment,medical expenses and alleged disability. It was also submitted thatthe driver of the vehicle bearing registration No.TN01 P2408 had notdriven the said vehicle in a rash and negligent manner and that theaccident had occurred only due to the negligence on the part of thepetitioner. The respondent had also stated that the vehicle bearingregistration No.TN01 P2408 had not been covered under a valid policyof insurance at the time of accident and that it was plied without avalid permit. It was also submitted that the driver of the said autodid not have a valid licence at the time of accident.7.The Motor Accident Claims Tribunal framed four issues for theconsideration namely:(i)Did the petitioner sustain injuries in theroad traffic accident, which happenedon14.07.1999 and did the accident involve theautorikshaw bearing registration No.TN01 P2408? https://hcservices.ecourts.gov.in/hcservices/ (ii)Whether the said autorickshaw was insured withthe second respondent?(iii)Whether the petitioner is entitled to getcompensation? If so, what is the quantum ofcompensation, which she is entitled to get?(iv)To what relief is the petitioner entitled toget?8.On the petitioner' side, the petitioner was examined as PW1and Dr.N.Saichandran, who issued Disability Certificate, was examinedas PW3 and seven documents were marked as Exs.P1 to P7. On therespondents' side, no witnesses were examined and no documents weremarked.9.The petitioner has stated in her evidence that on 14.07.1999,at about 9 O' Clock, in the morning, when the petitioner wastravelling in the auto bearing registration No.TN01 P2408 from southto north on the western side of the Kandanchavadi Bazar, the driverof the said auto drove the vehicle in a rash and negligent manner anddashed against the auto bearing registration No.TN21 A8998, resultingin the autorickshaw bearing registration No.TN01 P2408 to turn turtleand that in the result, she had sustained injuries on her rightforearm and that the skin over the right forearm had been peeled offand that she had also sustained fractures in the 7th, 8th and 9thbone in her right hip. She was admitted, as an inpatient, atGovernment Royapettah Hospital and took treatment for a period of onemonth. X'rays were taken and bandages applied on her right arm andthis dressing was also changed once in four days. Further 6 to 7such dressings were done on the petitioner and skin graft operations,were also done on the petitioner. Exs.P1 and P3 are the Case Sheetand O.P.Chit. The Thuraipakkam Police registered a case in CrimeNo.362/1999 and the copy of the FIR was marked as Ex.P2. Thecontention of the respondent, that the petitioner was negligentlyseated in the autorickshaw and thus had invited the accident, was notfound acceptable by the Tribunal in the absence of any evidence toprove it. The Tribunal also did not accept the contention of therespondent that the autorickshaw bearing registration No.TN01 P2408was driven carefully by its driver, observing all the trafficregulations as no evidence has been let in to prove the saidcontention. Further, the driver of the autorickshaw had not appearedbefore the Tribunal and adduced any evidence to prove the negligenceof the petitioner. The second respondent Insurance Company also hasnot taken any steps to examine the driver of the autorickshaw. Assuch, the Tribunal held that the accident happened only due to therash and negligent driving of the autorickshaw bearing registrationNo.TN01 P2408. https://hcservices.ecourts.gov.in/hcservices/

10.The second respondent has not admitted that the saidautorickshaw had been covered with a valid insurance policy with themand has contended that the owner of the autorickshaw bearingregistration No.TN01 P2408 has not submitted any claim form, with thevehicle records, for due verification by them. But, no evidence hasbeen adduced by the second respondent and no documents were marked toestablish that the autorickshaw was not covered under a policy ofinsurance with them and that the driver of the autorickshaw did nothave a valid driving licence at the time of accident. Hence, theTribunal, on considering the facts and circumstances of the case,heldthat the said autorickshaw was covered with a valid policy ofinsurance with the second respondent.11.The petitioner has stated in her evidence that immediatelyafter the accident, she was taken to Government Royapettah Hospital,Chennai and took treatment for a period of one month and in supportof this, she has marked Ex.P1, the Case Sheet. She has claimed acompensation of Rs.2,000/- towards transportation to hospital. But,the Tribunal, on considering that the petitioner has not produced anytransportation bills, awarded a compensation of Rs.750/- towardsexpenses incurred for transportation to hospital. Further, theTribunal on considering that the petitioner was aged about 42 yearsat the time of accident and also that she had undergone treatment fora period of one month at the hospital awarded a compensation ofRs.750/- to the petitioner under the head of nutrition.12.Though the petitioner had claimed a compensation ofRs.10,000/- for medical expenses, no medical bills had been marked toestablish the claim. The respondents had also contended that theclaim of the petitioner, Rukmani was excessive as the petitioner hadundergone treatment at the Government Royapettah Hospital, whereinthe treatment and medicines had been given to her free of cost. TheTribunal, on considering that no document had been filed by thepetitioner to prove that she had taken private treatment held thatthe petitioner is entitled to get an award of Rs.500/- only andaccordingly granted Rs.500/- as compensation to the petitioner underthe head of medical expenses.13.Though the petitioner has contended that she was a vegetablevendor at the time of accident and was earning a sum of Rs.150/- perday, no documentary evidence has been let in to prove the professionand income of the petitioner. Further, the petitioner has claimedthat due to the accident and consequent injuries sustained by her,she was not able to do her work from 14.07.1999 to 13.10.1999 and hasincurred a loss of earning of Rs.13,500/-. But, the petitioner hasnot produced any record to prove her absence from employment and theloss of earning. The Tribunal, held that the petitioner has notproduced any document to prove her income from the alleged vegetablevendor profession and granted her an award of Rs.2,000/- only ascompensation towards loss of earning. https://hcservices.ecourts.gov.in/hcservices/

14.Further, the Tribunal, on considering the Ex.P1, the CaseSheet and Ex.P4, the Disability Certificate, were of the view thatthe petitioner would have undergone pain and suffering during herperiod of treatment at Government Hospital. Further, the Tribunalwere not inclined to accept the contention of the respondent that theinjuries suffered by the petitioner was simple in nature and that shehad recovered from all her ailments within a short period of time.The Tribunal, therefore granted an award of Rs.7,000/- to thepetitioner under the head of paid and suffering.15.Dr.N.Saichandran, who assessed the permanent disability ofthe petitioner, was examined as PW3. The PW3, in his evidence, hadadmitted that he did not know the type of treatment given to thepetitioner immediately after the accident. The Doctor, who had givensubstantial treatment to the petitioner had also not been examined bythe petitioner's side. The PW3 has stated in his evidence that dueto the accident, which happened on 14.07.1999, the 7th and 8th bonesin the hip of the petitioner had been fractured and had subsequentlynot joined in a proper manner. He had further stated that theexpansion of the petitioner chest on inhalation and expulsion ofbreath had been reduced by 2 cms. due to the accident. Due to theskin tear in the petitioner's right fore arm, a skin transplantsurgery has been conducted and due to the hardening of muscles in theaffected area, the movements of the petitioner has been restricted by20 Degrees. The Doctor had therefore stated that the petitioner hasdifficulty in standing and walking and in performing her work and hascertified that the disability sustained by the petitioner on thiscount was 30% and in support of his evidence has marked Ex.P4, theDisability Certificate and Ex.P5, the X'rays.16.On considering that the petitioner has sustained simpleinjuries and also on considering the contention of the secondrespondent's counsel that the assessment of PW3 was not done on thebasis of any scientific Macbrid Scale and also nothing that theDoctor, who had treated her for the injuries sustained by her in theaccident had not been examined, the Tribunal awarded a sum ofRs.20,000/- only to the petitioner under the head of permanentdisability and loss of earning power as it was found to be relevantas per rules laid down in Schedule-I of the Workmen's CompensationAct, 1923. 17.Though the petitioner has claimed that she was a vegetablevendor and was earning a sum of Rs.150/- per day, no documentaryevidence has been let in to establish her claim regarding income andprofession. Though the petitioner has claimed that she is not ableto do the work, which she used to do before the accident and hasclaimed a compensation of Rs.60,000/- for loss of earning power. Shehas not produced any documentary records to prove it. As such, theTribunal granted an award of Rs.5,000/- only as compensation to thepetitioner towards loss of earning power. https://hcservices.ecourts.gov.in/hcservices/

18.In total, the Tribunal awarded a compensation of Rs.36,000/-to the petitioner and directed the second respondent to pay the awardof Rs.36,000/- to the petitioner together with interest at the rateof 7.5% per annum from the date of petition till the date of payment(except for the period from 10.01.2005 to 10.03.2005 as per Order inM.P.No.697 of 2005, dated 10.03.2005) with costs, into the credit ofthe M.C.O.P.No.4441 of 2000, on the file of the Motor Accident ClaimsTribunal, IIIrd Small Causes Court, Chennai, within a period of twomonths from the date of its Order. Further, after such deposit wasmade, the award amount was to be deposited in a nationalised bank fora period of three years. The Court fee for the award amount wasfixed at Rs.74/- and the excess Court fee paid by the petitioner wasto be refunded after the appeal time. The Advocate fees was fixed atRs.1,550/- and the second respondent was directed to pay the cost ofRs.1,669 to the petitioner.19.The learned counsel appearing for the appellant has contendedin his appeal that the Tribunal ought to have awarded the entire sumof Rs.13,500/- instead of awarding a sum of Rs.2,000/- under the headof loss of earning power during the treatment period. It was alsocontended that the Tribunal should have awarded a sum of Rs.30,000/-under the head of pain and suffering as the petitioner had sustainedgrievious injuries and the orthopaedic surgeon had assessed thepermanent disability at 30% and as such the award of Rs.7,000/- givenby the Tribunal as compensation under this head was on the lowerside. The learned counsel appearing for the appellant had alsocontended that the Tribunal ought to have awarded the entire sum ofRs.82,500/- claimed by the petitioner instead of awarding Rs.20,000/-under the head of permanent disability on consideration of thegrievious injuries suffered by claimant and period of treatment aswell as the disability of 30% assessed by the orthopaedic surgeon.20.It was also pointed out that the other awards granted ascompensation under the various heads of loss of earning power,nourishment, transport to hospital expenses, were on the lower side.The learned counsel appearing for the appellant has therefore prayedfor an enhancement compensation of Rs.2,00,000/- together withinterest at the rate of 12% per annum from the date of petition tillthe date of payment.21.The learned counsel appearing for the second respondentargued that the quantum of compensation awarded by the Tribunal is afair and well considered one. Doctor PW3's evidence was notconvincing and further he was not aware of the type of treatmentgiven to the petitioner earlier. The disability of 30% assessed bythe Doctor has not been done on a scientific basis and as such it ison the higher side.22.After considering the facts and circumstances of the case andarguments advanced by the learned counsels on either sides, this https://hcservices.ecourts.gov.in/hcservices/ Court is of the view that the award granted by the Tribunal is on thelower side. This Court is of the view that the Doctor, PW3, in hisevidence before the Tribunal had stated that the petitioner hadsustained fractures in the 7th and 8th bone of her right hip and thatthe bone has not set properly and has been deformed. Further, theDoctor had stated that the lung expansion during inhalation andexhalation of breath has been reduced by 2 cms. in the petitioner'sbody and as a result the claimant is unable to inhale the normalamount of Oxygen needed for her normal respiration. The Doctor'sevidence has not been challenged by the respondent before the LowerCourt and hence the authenticity of the assessment of disabilitycertified as 30% by the Doctor cannot be questioned now.23.As such, on considering that the evidence given by Doctor PW3is fair and genuine, this Court enhances the compensation awarded tothe petitioner under the various heads in the following manner:1.For permanent disability, the Tribunal awarded asum of Rs.20,000/-. This Court enhances theaward granted under this head to Rs.60,000/-considering that the petitioner has sustained 30%disability due to the accident.2.For pain and suffering, the Tribunal awarded asum of Rs.7,000/-. This Court enhances the awardgranted under this head to Rs.10,000/-.3.For loss of income, the Tribunal awarded a sum ofRs.2,000/-. This Court enhances the awardgranted under this head to Rs.5,000/-.4.For loss of earning, the Tribunal awarded a sumof Rs.5,000/-. This Court sets aside the awardgranted under this head as it is redundant.5.For nutrition, the Tribunal awarded a sum ofRs.750/-. This Court enhances the award grantedunder this head to Rs.5,000/-.6.For transport expenses, the Tribunal awarded asum of Rs.750/-. This Court enhances the awardgranted for transport expenses to Rs.2,000/-.7.For medical expenses, the Tribunal awarded a sumof Rs.500/-. This Court enhances the awardgranted under the head of medical expenses toRs.2,000/- as it is found to be reasonableconsidering the nature of injuries sustained bythe claimant. https://hcservices.ecourts.gov.in/hcservices/ In total, this Court awards an additional compensation ofRs.53,000/- together with interest at the rate of 7.5% per annum fromthe date of filing the petition till the date of payment ofcompensation as it is found to be fair and proper in thecircumstances of the case.24.Therefore, this Court directs the second respondent, UnitedIndia Insurance Company Ltd., to deposit the additional compensationamount of Rs.53,000/- with accrued interest thereon, as observedabove, within a period of four weeks from the date of receipt of acopy of this Order, into the credit of the M.C.O.P.No.4441 of 2000,on the file of the Motor Accident Claims Tribunal, IIIrd Small CausesCourt, Chennai.25.As the accident happened in the year 1999, it is open to theclaimant to withdraw the additional compensation amount, with accruedinterest thereon, lying in the credit of the M.C.O.P.No.4441 of 2000,on the file of the Motor Accident Claims Tribunal, IIIrd Small CausesCourt, Chennai, after filing necessary payment out application, inaccordance with law.26.In the result, the above Civil Miscellaneous Appeal is partlyallowed and the Award and Decree, dated 10.07.2006, inM.C.O.P.No.4441 of 2000, passed by the Motor Accident ClaimsTribunal, IIIrd Small Causes Court, Chennai, is modified.Consequently, connected miscellaneous petition is closed. There isno order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarkrk To1. The Motor Accident Claims Tribunal, III Small Causes Court, Chennai.2. The Registrar, Small Causes Court, Chennai.3. The Section Officer, VR Section, High Court, Madras.+ 1 c.c. to Mr. U.M. Ravichandran, Advocate. S.R.No.15752. C.M.A.No.1580 of 2008PKB (CO)GSK 06.04.2010.