United India Insurance Co., Ltd.,Mayiladuthurai v. Pitchammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 01.12.2009CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.NO.1790 of 2007andM.P.No.1 of 2007United India Insurance Co., Ltd.,Mayiladuthurai,rep.by its Manager.. Appellant/2nd RespondentVs1.Pitchammal2.K.Singaravelu.. Respondents/Petitioner & 1st Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award and Decreetal Order dated 16.12.2005, made inM.C.O.P.No.14 of 2005, on the file of the Motor Accidents ClaimsTribunal, Addl. Sub-Court, Mayiladuthurai.For appellant : Mr.R.KumararajaFor respondents : Mr.S.SountharJ U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellant/second respondent against the Award and Decreetal Orderdated 16.12.2005, made in M.C.O.P.No.14 of 2005, on the file of theMotor Accidents Claims Tribunal, Addl. Sub-Court, Mayiladuthurai,awarding a compensation of Rs.1,60,000/- with 7.5% interest from thedate of filing the petition ie.22.12.2004 to till the date of awardie.16.12.2005.2.Aggrieved by the above award, the appellant/second respondent,United India Insurance Co., Ltd., has filed the above appeal prayingto set aside the Order.3.The short facts of the case are as follows:The petitioner is an agriculturist and a milk vendor and earninga sum of Rs.3,000/- per month. As her husband is sick, she has been https://hcservices.ecourts.gov.in/hcservices/ thrust with the responsibility of managing her family. On06.08.2004, at around 12.00 hours, as she was returning from work andwalking onthe left side of Melaperumpallam Main Road and when she wasin front of "Boomi Bricks Company", a Suzuki Motorcycle bearingregistration No.TN51 V4296, ridden in a rash and negligent manner andat a highspeed, dashed against the petitioner.4.In the result, two bones below her left knee was fractured andthe bones came right out of the skin. She sustained a deep wound onher left eyebrow. Further, her left hip bone was also fractured.Further, she sustained tear injuries on her tore head, which werelater surgically stiched. Further, she also sustained injuries inher liver. Due to this, there was inflammation of her liver andconsequent breathlessness. She was admitted immediately in MuthuHospital, Mayiladuthurai. She took treatment there for three daysand subsequently she had taken treatment for four days at GovernmentHospital, Mayiladuthurai as inpatient. As her conditiondeteriorated, she was admitted in the Annamalai Medical CollegeHospital, Chidambaram as inpatient in the casual ward. Subsequently,after her health improved, she was admitted at Muthu Hospital,Mayiladuthurai as inpatient. In spite of undergoing treatment, thepetitioner is still bedridden.5.A criminal case regarding the said accident has beenregistered by the Poompugar Police in Crime No.269/2004 underSections 279 and 337 of I.P.C and the case is pending investigation.6.Due to the accident, the petitioner has undergone pain andsuffering and incurred medical expenses and hence the petitioner hasclaimed a compensation of Rs.5,00,000/- from the respondents. Thefirst respondent being the owner of the said motorcycle and thesecond respondent, as its insurer are jointly and severally liable topay the compensation.7.The second respondent in its Counter has resisted the claimstating that the rider of the Suzuki Motorcycle was careful and theaccident was a self-invited one. Further, the Police investigationhas not yet been completed. The petitioner is also bound toestablish that the driver was holding proper driving licence and thatthe said vehicle has been insured with the second respondent.Further, the delay in lodging of complaint and FIR has not beenexplained by the petitioner. The injuries sustained by thepetitioner was also not admitted and it was submitted tat theinjuries did not lead to any disability. The type of treatment andexpenses incurred by the petitioner was also not admitted. The claimof the petitioner is also excessive. Further, the age, income andoccupation of the petitioner were also not admitted.8.The first respondent was set exparte. On the petitioner'sside, petitioner was examined as PW1 and one Dr.Muthu, was examinedas PW2. Exs.P1 to P12 were marked. On the respondents' side, nowitnesses were examined and no documents were marked. The Tribunal https://hcservices.ecourts.gov.in/hcservices/ upon hearing both sides and perusing the records gave the followingfindings. Ex.P1 is the Xerox copy of the FIR, Ex.P2 is the Xeroxcopy of the Motor Vehicle Inspector's Report, Ex.P7 is the DischargeCard given by the Dr.Muthu. All these show that the petitionersuffered injuries due to the motor accident that took place on thealleged date and place. The second respondent in his pleadings hadstated that the delay in filing FIR had not been explained. PW2, theDoctor has admitted in his cross-examination that he did not intimatethe Police about the accident immediately and hence the Tribunalaccepted the explanation given by the Doctor for the delay of twodays. Ex.P2 discloses that the accident was not due to mechanicaldefect of the motorcycle. So, on examination and perusal of Ex.P1,FIR, Ex.P2, MVI Report, Ex.P6, Outpatient Slip and Ex.P7, DischargeCard, the Tribunal came to the conclusion that the petitioner iseligible for compensation. Further, the second respondent hasalleged that the age of the petitioner was 60. But, on examinationof Ex.P8, the Family Ration Card, the age of the petitioner wasmentioned as 47 years and as per Ex.P6, it is recorded as 45 years.Hence, the Tribunal accepted the age of the petitioner as 47 years.Further, the policy number of the motorcycle is shown in the MVIReport, which is marked as Ex.P2. So, the Tribunal on examination ofEx.P1 and Ex.P2 came to the conclusion that the rider of the twowheeler bearing registration No.TN51 V4296 was negligent and thatthis had been the cause for the accident.9.For arriving at the quantum of compensation, the Tribunalexamined Ex.P4, which is the Observation made by the Doctor in hisprescription mentioning the fracture on the left leg and aninvestigation to be done about the rib. Ex.P3 is the ElectraCardiogram taken on the petitioner. According to PW2, Dr.Muthu, thevictim was suffering from breathlessness and treatment was given.Ex.P6 is the outpatient note given at Raja Muthaiah Medical CollegeHospital and in the third slip a note is given about the victimscondition. Later, it has been investigated and it was found that theleft rib has been broken and it has injured the lung. FromDr.Muthu's evidence, it was established that the percentage ofdisability suffered by the petitioner is 50%.10.The learned counsel appearing for the respondent argued thatthe injury on the lung is not due to the accident and the ribfracture is a new investigation, for which, the respondent are notliable to pay. But, the Tribunal on examination of Exs.P3 and P4came to the conclusion that the petitioner's problem ofbreathlessness was investigated by Dr.Muthu on the very day ofadmission. Hence, the Tribunal concluded that the breathlessness wasthere for the petitioner even on the date of accident. According toPW2, a CTN Scan done on the petitioner, after the accident gave aVivid detail about the injury in the chest cavity. He had seen abroken rib and the injury caused by it to the lungs. Thebreathlessness according to the doctor is due to the injury of thelungs. Hence, the Tribunal awarded a compensation of Rs.25,000/- forfracture of ribs sustained by the petitioner in the accident, and https://hcservices.ecourts.gov.in/hcservices/ Rs.50,000/- for disability of 50% and for pain and suffering.Towards transportation and good food, the Tribunal awarded a sum ofRs.10,000/-. Ex.P11 is the medical bill claimed by the petitioner,which shows that a sum of Rs.40,250/- paid to Dr.Muthu for thetreatment. Apart from this, the petitioner had incurred medicalexpenses at Rajah Muthiah Hospital. Put together, the Court awardeda compensation of Rs.50,000/-. In total, the Tribunal awarded a sumof Rs.1,60,000/- for the injuries suffered by the petitioner in themotor accident. First and second respondents are jointly andseverally liable to pay the compensation amount within a period ofone month from the date of the Order of the Tribunal, with 7.5%interest per annum from the date of the petition to the till date ofdeposit of award amount. Further, the Tribunal permitted thepetitioner to receive a sum of Rs.35,000/- in cash toward herimmediate medical treatment and the liabilities incurred. Thebalance amount of Rs.1,25,000/- was to be deposited as Fixed Depositin a bank for a period of three years and the petitioner waspermitted to receive interest once in six months. The first andsecond respondents were directed to pay petitioners proportionatecost of Rs.6,779/-. The petitioner was directed to pay deficit Courtfee and Advocate fees was fixed at Rs.6,200/-.11.The learned counsel appearing for the appellant has argued inhis appeal that the Tribunal erred in awarding huge amount ofcompensation. The Tribunal had failed to see that in the absence ofproduction of accident register by the injured claimant, no amount ofinjury/disability can be decided/fixed and no amount of compensationcan be granted without medical proof. The Tribunal erred in awardinga sum of Rs.25,000/- separately towards the ribs fracture, in theabsence of Scan Report as admitted by PW2. The Tribunal erred inawarding a sum of Rs.50,000/- towards 50% disability, when there isno disability and the Disability Certificate (Ex.P9) is highlyinflated. The Tribunal also erred in awarding a sum of Rs.10,000/-for transportation, in the absence of any documentary evidence.12.Further, the award on various heads come to Rs.1,35,000/-only and not Rs.1,60,000/- as mentioned in the Tribunal Order. Assuch, the learned counsel contended that the award passed iserroneous and has to be set aside. 13.The learned counsel appearing for the respondent submittedthat the claimant sustained five injuries that the first injury wason the left leg below the knee and that two bones were fractured.The second injury was a deep wound on the left side eyebrow and thesame was surgically stiched. The third injury was the fracture inthe left side hip. The fourth injury was a tear injury on her lowerjaw and the same was surgically stiched and the fifth injury was atear injury on her forehead and the same was also surgically stiched.The learned counsel appearing for the respondents further argued thatafter the accident, the claimant could not involve herself inagricultural work and also was unable to do her milk business asusual. As such, she has suffered untold hardship. Supporting of the https://hcservices.ecourts.gov.in/hcservices/ nature of the injuries and treatment, PW2, one Doctor was examined,who also issued Disability Certificate of 50%. She had further takentreatment at two hospitals for which medical bills had been produced.The quantum of compensation awarded by the Tribunal is reasonable.14.For the foregoing reasons and on consideration of the factsand circumstances of the case, arguments of the learned counsel fortheir respective sides and considering the quantum of compensationawarded, the Court is of the view that there is an arithmetical errorin the calculation of the award computed under various heads namely:1.Award for fracture of ribs:Rs.25,000/-2.Award for disability of 50% and for pain and suffering:Rs.50,000/-3.For transportation and good food:Rs.10,000/-4.For medical expenses:Rs.50,000/-15.In total, the amount comes to only Rs.1,35,000/- and notRs.1,60,000/- as calculated by the Tribunal. This Court rectifiesthe arithmetic error and holds that the amount awarded should havebeen only on Rs.1,35,000/-. Further, the award granted by theTribunal of Rs.50,000/- for disability of 50% and pain and sufferingunder a common head is an error. So, this Court awards the saidcompensation of Rs.50,000/- only for disability of 50%. A sum ofRs.25,000/- awarded by the Tribunal for fracture of ribs should betreated as an award under the head of pain and suffering. As such,this Court has corrected the arithmetical flaw and award grantedunder the common head and modifies the award as Rs.1,35,000/- fromRs.1,60,000/- as passed by the Tribunal together with interest at therate of 7.5% per annum. This Court is of the view that the awardgranted is fair and equitable. Considering that the claimant hassustained five injuries including grievous injuries and DisabilityCertificate Ex.P9 issued by the Doctor and Medical Bills, Ex.P5issued by the Hospital. These have all been considered by theTribunal and based on this they have awarded a fair and just acompensation but for a minor arithmetical error. As such, this Courtgrants an award of Rs.1,35,000/- with interest of 7.5% ascompensation to the claimant.16.This Court has directed the appellant/United India InsuranceCompany Ltd., on 02.08.2007 to deposit the entire compensation amountinto the credit of M.C.O.P.No.14 of 2005, on the file of the MotorAccidents Claims Tribunal, Addl. Sub-Court, Mayiladuthurai.17.It is open to the respondent/claimant to receive thecompensation amount a sum of Rs.1,35,000/- with accrued interest atthe rate of 7.5%, lying to the credit of M.C.O.P.No.14 of 2005, onthe file of the Motor Accidents Claims Tribunal, Addl. Sub-Court, https://hcservices.ecourts.gov.in/hcservices/ Mayiladuthurai, by filing necessary payment out application inaccordance with law. Likewise, the appellant/United India InsuranceCompany is permitted to withdraw the excess amount, which isdeposited into the credit of M.C.O.P.No.14 of 2005, on the file ofthe Motor Accidents Claims Tribunal, Addl. Sub-Court, Mayiladuthurai. 18.In the result, the Civil Miscellaneous Appeal is partlyallowed in the above terms and consequently, the award passed by theMotor Accidents Claims Tribunal, Addl. Sub-Court, Mayiladuthurai, inM.C.O.P.No.14 of 2005 is modified. Consequently, connectedmiscellaneous petition is also closed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkrkTo1. The Additional Sub Judge, Motor Accidents Claims Tribunal, Mayiladuthurai.2.The Section Officer, VR Section, High Court, Madras.+ 1 cc to Mr.S.Sounthar, Advocate, SR 65083+ 1 cc to Mr.R.Kumararaja, Advocate, sr 65285 Order in C.M.A.No.1790 of 2007PA (CO)RH (14.12.09)