Norullah v. M.Balasubbramani

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 04.01.2010CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.1821 of 2009Norullah ..Appellant/PetitionerVs1.M.Balasubbramani2.United India Insurance Co., Ltd.,..Respondents/Respondents Chennai-79. Appeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award and Decree, dated 20.11.2008, made inM.C.O.P.No.1023 of 2002, on the file of the Motor Accident ClaimsTribunal, VI Judge, Small Causes Court, Chennai.For Appellant : Mrs.A.Jothi for M/s.N.M.C.BabuFor Respondent : R1 – ex-parte Mr.S.Manoharan for M/s.G.Udhayashankar 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 20.11.2008,made in M.C.O.P.No.1023 of 2002, on the file of the Motor AccidentClaims Tribunal, VI Judge, Small Causes Court, Chennai, awarding acompensation of Rs.66,500/- with 9.5% 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 and to set aside the said award and decree.3.The short facts of the case are as follows:On 13.10.2001, at about 10.15 p.m. when the petitioner afterascertaining traffic clearance, crossed Wall Tax Road, Chennai-3, https://hcservices.ecourts.gov.in/hcservices/ from west to east, a Bajaj M80 bearing registration No.TN04 E8823,came from south to north at a high speed, in a rash and negligentmanner and dashed against the petitioner and caused grievous injuriesto him. The driver of the Bajaj M80 was responsible for theaccident. The first respondent as the owner and the secondrespondent as the Insurance Company are jointly and severally liableto pay compensation. The petitioner has claimed a total compensationof Rs.1,35,000/- from the respondents under Section 166 of the MotorVehicles Act. The first respondent remained ex-parte in this case.The Traffic Investigation, C2, Elephant Gate Police Station,Chennai-600 079 have registered an FIR in 258/C2/2001 of the saidaccident.4.The second respondent, the United India Insurance CompanyLtd., in its Counter has resisted the claim stating that thepetitioner had suddenly crossed the road, without seeing the trafficand so had courted the accident. The age, occupation and income ofthe petitioner, the nature of injuries, period and place oftreatment, the expenses incurred and the disability suffered shouldbe proved by the petitioner. There was no existence of validinsurance policy and the driver had no valid and effective drivinglicence on the date of accident. The claim made under various headsare excessive and so the petition should be dismissed with costs.5.The Motor Accident Claims Tribunal framed four issues for theconsideration namely:(i)Whether the accident had happened due tothe rash and negligent driving of the driver ofthe Bajaj M80 bearing registration No.TN04E8823?(ii)Whether the respondents are liable to paythe compensation?(iii)Whether the petitioner is entitled forcompensation?(iv)To what relief is the petitioner entitled to?6.On the petitioner's side two witnesses were examined and fivedocuments were marked as Exs.P1 to P5. Neither any oral evidence waslet in nor documents were marked by the respondents side.7.From the evidence of PW1, it appears that on 13.10.2001, atabout 10.15 p.m. while he crossed Wall Tax Road, after ascertainingtraffic clearance from west to east, a Bajaj M80 bearing registrationNo.TN04 E8823 came from south to north at a high speed, in a rash andnegligent manner and dashed against him, due to which he sustained https://hcservices.ecourts.gov.in/hcservices/ grievous injuries, fracture in the right had and lacerations all overthe body.8.To corroborate the oral evidence of PW1, Ex.P1-FIR and Ex.P2-Charge sheet have been marked. On perusal of Ex.P1, it appears thatdue to the rash and negligent driving of the driver of the Bajaj M80bearing registration No.TN04 E8823, the accident occurred and he wasresponsible for the same. The petitioner himself had lodgedcomplaint on the date of occurrence. On perusal of Ex.P2-Chargesheet, it is seen that charge was framed on the driver of the BajajM80 bearing registration No.TN04 E8823, in Crime No.258/Cr/2001,under Sections 338 I.P.C and 184 of Motor Vehicles Act. The detailsof FIR and Charge sheet are in consonance with the claim of thepetitioner. No contrary evidence has been let in to disprove thecontentions of the petitioner. As such, the Tribunal held that theaccident occurred due to the rash and negligent driving of the driverof the first respondent.9.The first respondent being the owner of the said vehicle isvicariously liable for the tortuous act of his driver and thereforehe is liable to compensate the petitioner.10.The second respondent has questioned the existence of validpolicy, valid driving licence of the driver and valid permit for theerring vehicle. The Tribunal held that as far as driving licence andpermit are concerned, they would come under terms of policy. Thepetitioner is a third party to the bipartite insurance agreementbetween both respondents. If there is any breach of any of theconditions of that agreement, the insurance company cannotstraightway escape in a claim preferred by a third party like thepetitioner. On the other hand the Insurance Company should firstcompensate the petitioner and later get itself indemnified from theowner of vehicle after proof of breach. The Tribunal was of theopinion that as far as the existence of valid policy is concerned,the duty of the petitioner gets discharged once when he gives detailsof policy in his petition. Thereafter, it is for the insurancecompany to produce the policy copy to establish its contentionsthereby disproving the petitioner's contentions. The Tribunal opinedthat in the present case, the second respondent has neither disprovedthe policy details furnished by the petitioner nor established breachof any of the policy conditions. Therefore, the Tribunal held thatthe second respondent is also liable to pay compensation to thepetitioner.11.The injured petitioner has claimed a sum of Rs.10,000/-towards loss of earning. Ex.P3-Discharge Summary reads that thepetitioner was admitted on 13.10.2001 at Government General Hospitaland discharged on 22.10.2001. He has sustained fracture of shaft ofhumerus 1/rd right. He was treated conservatively and 'U' slab wasapplied. Close reduction was done on 18.10.2001. Even though PW1 https://hcservices.ecourts.gov.in/hcservices/ has deposed that he had taken treatment under private doctors for sixmonths, no treatment records had been filed to prove the same. Fromthe evidence of PW2, Dr.J.R.R.Thiagarajan and the DisabilityCertificate Ex.P4 marked through him, it appears that the petitionersustained fracture in right humerus. It is stated that he was aScooter Mechanic, earning a sum of Rs.250/- per day. But, nodocuments were filed by the petitioner to prove his avocation andincome. The Tribunal therefore took a notional amount of Rs.3,500/-as his income per month. The Tribunal awarded a sum of Rs.10,500/-to the petitioner for loss of income for three months. Consideringthat the petitioner would have been prevented from getting on withhis normal work for three months due to his injuries. Further, theTribunal awarded a compensation of Rs.4,000/- towards transport tohospital, extra nourishment and for damage to clothing and articles.12.The Tribunal, considering that no documents had been filed tosubstantiate the petitioner's claim for medical expenses, grantedonly a sum of Rs.2,000/- under this head, as the Tribunal opined thathe would have spent some amount towards medical expenses.Considering the nature of injuries sustained by the petitioner andthe period of treatment, the Tribunal awarded a sum of Rs.5,000/-under the head of pain and suffering.13.With regard to compensation for continuing permanentdisability, PW2, Dr.J.R.R.Thiagarajan has been examined and theDisability Certificate issued by him was marked as Ex.P4. The Doctorhas assessed his disability at 45%. Considering the nature ofinjuries sustained by the petitioner, the Tribunal considered thatthe above disability percentage was reasonable and hence awarded acompensation of Rs.45,000/- under this head. The Tribunal onconsidering the nature of injury and absence of follow up treatmentrecords held that the injury was manageable by the petitioner and itwill not affect his earning capacity.14.In total, the Tribunal awarded a sum of Rs.66,500/- ascompensation to the petitioner and directed the respondents todeposit the above said award amount with interest at the rate of 9.5%per annum from the date of filing the petition till the date ofpayment of compensation, into the credit of the M.C.O.P.No.1023 of2002, on the file of the Motor Accident Claims Tribunal, VI Judge,Small Causes Court, Chennai, within a period of one month from thedate of its Order. After such deposit is made, the award has to beinvested in a nationalised bank for a period of three years ascumulative deposit. The Court fee for the award amount was fixed atRs.205/-. Excess Court fee paid by the petitioner has to be refundedto him, after appeal time. The Advocate fees was fixed at Rs.2,900/-.15.The learned counsel for the appellant has contended in hisappeal that the Tribunal had erred in awarding a consolidated sum ofRs.4,000/- for transport, nourishment and damage to dress without https://hcservices.ecourts.gov.in/hcservices/ considering the lengthy treatment and severe injuries sustained bythe appellant. Further, the Tribunal after having held that theappellant would have spent for medical expenses ought to have awardedthe amount reasonably claimed. Further, it has been contended thatthe Tribunal ought to have awarded a sum of Rs.30,000/- as claimed bythe appellant as it has been found by the Tribunal that the appellanthas sustained severe injuries. Further, the learned counsel for theappellant has contended that an award of Rs.45,000/- towards 45%disability sustained by the appellant is low considering the severityof the fracture and the evidence of the Doctor.16.Further, the reason given by the Tribunal for not granting anaward of Rs.25,000/- claimed for loss of earning power is erroneous.As such, the learned counsel for the appellant has prayed for settingaside the award and decree passed by the Tribunal.17.The learned counsel for the respondent argued that the awardof Rs.66,500/- granted by the Tribunal is reasonable afterconsidering the nature of injuries, age and occupation of claimant,doctor's evidence, mode of treatment and as such the Tribunal'sfindings is fair. The claimant had not produced any income proof.Further, the Disability Certificate certifying disability of Rs.45%is on the higher side. The Tribunal has awarded a sum of Rs.2,000/-for medical expenses, which is erroneous considering the fact thatthe appellant has taken treatment in a Government Hospital. As such,the Civil Miscellaneous Appeal is not maintainable and hence shouldbe dismissed. The learned counsel for the respondent further pointedout that the avocation of the claimant has not been affected afterthe accident and as such there is no loss of further earnings.18.Considering the facts and circumstances of the case and modeof treatment, claimants evidence, and PW2, the Doctor's evidence andthe Disability Certificate issued by him, certifying that thedisability sustained by the petitioner is 45%, this Court is of theview that for 45% disability the claimant is entitled to getRs.90,000/-. Since, the claimant was aged only 18 years at the timeof accident and accordingly this Court grants the same. In theabsence of proof of income of the claimant, this Court treats hisnotional income as only Rs.1,000/- and awards a sum of Rs.3,000/- asloss of income for three months. The Tribunal had awarded a sum ofRs.4,000/- for transport, nutrition and damage to clothes. ThisCourt awards a sum of Rs.1,000/- for transport; Rs.1,000/- fornutrition and a sum of Rs.500/- for damage to clothes. For medicalexpenses, this Court awards a sum of Rs.1,000/- only considering nomedical bills has been produced in support of this claim. For painand suffering, this Court confirms the award of Rs.5,000/- passed bythe Tribunal. In total, this Court awards a sum of Rs.1,01,500/- tothe claimant. The Motor Accident Claims Tribunal, VI Small CausesCourt, Chennai, awarded a sum of Rs.66,500/- and this is enhanced toRs.1,01,500/- by this Court. The original award of Rs.66,500/- https://hcservices.ecourts.gov.in/hcservices/ granted by the Tribunal will carry an interest of 9.5% per annum fromthe date of petition ie. 01.01.2001 till the date of deposit. Nointerest will be payable for the dismissal of O.P. for default periodfrom 11.12.2006 to 30.09.2008. Now, this Court directs the secondrespondent/United India Insurance Company to pay the additionalcompensation of Rs.35,000/- with interest at the rate of 7.5% perannum from the date of filing the petition till the date of paymentof compensation amount, excluding the period from 11.12.2006 to30.09.2008, as in the said period, the O.P. has been dismissed fordefault, within a period of four weeks from the date of receipt ofthis Order.19.With the above observations, the Civil Miscellaneous Appealis partly allowed, which this Court considers as equitable and fairand the award of Motor Accident Claims Tribunal, made inM.C.O.P.No.1023 of 2002, dated 20.11.2008 is modified.20.It is open to the appellant/claimant to withdraw theadditional compensation amount, together with interest lying in thecredit of the M.C.O.P.No.1023 of 2002, on the file of the MotorAccident Claims Tribunal, VI Judge, Small Causes Court, Chennai, byfiling necessary payment out application in accordance with law.21.In the result, the above Civil Miscellaneous Appeal is partlyallowed and consequently the award and decree passed by the MotorAccident Claims Tribunal, VI Judge, Small Causes Court, Chennai, inM.C.O.P.No.1023 of 2002, is modified. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkrkTo1.The Motor Vehicles Accident Claims Tribunal VI Judge, Small Causes Court, Chennai2. The Section Officer, VR Section, High Court, Madras.+ 1 c.c. to Mr. G. Udaya Sankar, Advocate. S.R.No.16.+ 1 c.c. to Mr. N.M.C. Balu, Advocate. S.R.No.8. C.M.A.No.1821 of 2009KA (CO)GSK 18.01.2010.