Signal, N.C.CHoly Angels Matriculation Higher Secondary School v. Govindammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17.09.2010CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.1646 of 2006Officer Commanding11, Signal, N.C.CHoly Angels Matriculation Higher Secondary SchoolMitta Pudur RoadAzhagapuramSalem-16.. Appellant/1st RespondentVs1.Govindammal2.Pushpavalli3.Palaniswamy.. Respondents/Petitioners 2 &3 and 2nd Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Award and Decree, dated 15.03.2004, made inM.C.O.P.No.248 of 1998, on the file of the Motor Accident ClaimsTribunal, Additional Sub Court, Salem.For appellant : Ms.Revathy, G.A. (C.S)For respondents : Mr.D.Shivakumar for RR1 and 2 Mr.V.Udayakumar for R3 J U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellant/first respondent against the Award and Decree, dated15.03.2004, made in M.C.O.P.No.248 of 1998, on the file of the MotorAccident Claims Tribunal, Additional Sub Court, Salem, awarding acompensation of Rs.90,710/- together with 9% interest per annum, fromthe date of filing the claim petition till the date of payment ofcompensation.2.Aggrieved by the said Award and Decree, the appellant/firstrespondent has filed the above appeal praying to set aside the awardand decree passed by the Tribunal.3.The short facts of the case are as follows:The Late.Gopalsamy @ Gopal was a national permit lorry driverand he was earning a sum of Rs.5,000/- per mensum, including the https://hcservices.ecourts.gov.in/hcservices/ batta. On 17.09.1997, himself and his friend went to Koottathupattyin TVS XL motorcycle bearing registration No.TAL 2284 after finishingtheir work. While they were returning back, at about 5.00 p.m. whilethey reached Hasthampatty Haneffa Complex, an Enfield bulletbelonging to N.C.C.Office bearing registration No.88A, 35913A, whichwas driven by the Palanisamy/second respondent in a rash andnegligent manner and dashed against the TVS XL. Due to which, theLate.Gopalsamy @ Gopal sustained grievous injuries on his right leg.His right leg below the knee got fractured and it was broken.Immediately, he was taken to the Government Hospital, Salem and givenfirst aid and then he was admitted in Kiruba, Private Nursing Home,where operation was performed and steel plate was fixed in the place,where the bone had got broken. He had undergone treatment for nearlya month. But, the external injuries were treated except one injuryhad not healed and puss was formed and the calf muscles had beendecomposed. Again he was admitted in the Ganesan Hospital, Salem,where a further operation was performed. Due to the said accident,he was not able to do his routine work as before the accident besidehe had sustained permanent disability. His right leg had sustainedfracture, it could not be possible to drive any lorry further. Theaccident had occurred only due to the rash and negligent driving ofthe rider of the Enfield bullet, belonging to N.C.C.Office, bearingregistration No.88A 35913A. Regarding the said accident, theHasthampatty Police has registered a criminal case under Sections 279and 337 of I.P.C. against the rider of the Enfield Bullet in CrimeNo.449/1997. As such, he claimed a compensation of Rs.1,65,500/-,but restricted it to Rs.1,00,000/- before the Tribunal. However,during the pendency of the case before the Tribunal, the petitionerexpired. Therefore, his legal heirs, first and second respondentherein, were impleaded as parties.4.The Palanisamy/second respondent/ in his Counter has resistedthe claim petition, which reads as follows:"The alleged accident is hereby specifically denied asfalse and the petitioner is put to strict proof of thesame. It is absolutely false to allege that the accidenttook place on 17.09.1999 at about 05.99 p.m. opposite toHenefa Complex at Hasthampatty, Salem-7.It is true that the Hasthampatty Police has registeredthe case against the second respondent under Sections 279and 337 of I.P.C. in Crime No.449/1997 and the complaintwas taken in the file of the Judicial Magistrate No.III ofSalem and the charges were framed against the secondrespondent and Trial was also conducted against the secondrespondent and six more witnesses were examined to provethe charges against the second respondent. Finally thisHon'ble Judicial Magistrate No.3 of Salem, verdicted thatthe second respondent herein was not guilty and the secondrespondent was acquitted from the case in S.T.R.198/98 inCrime No.449/1997 on 10.06.1999. https://hcservices.ecourts.gov.in/hcservices/ In the petition Column No.10 the petitioner hasalleged that he was riding the TVS XL 2284. The same wasalleged in the complaint in Crime No.449/1997 lodged by oneSengoden before Hasthampatti Police. The same is thecontent in the FIR of the Crime No.449/1997 also. But, thepetitioner was examined as PW2 in the S.T.R.No.198/98 inCrime No.449/97. In that case, the petitioner deposed thathe was not riding the TVS XL, and he has clearly statedthat the complainant of the Crime No.449/97, Sengoden wasriding the TVS XL. The alleged riding by the petitioner ishereby denied as false. The petitioner has to prove thatwho was riding the TVS XL at the time of the allegedaccident. Apart from that the petitioner has to producehis driving licence before this Hon'ble Court. Thepetitioner is neither the owner of the vehicle TVS XLbearing registration No.TAL 2284 nor the rider of the saidvehicle. The petitioner has to prove his case.No accident happened as alleged in the petition. Thesecond respondent was never involved in the allegedaccident.The amount of compensation claimed in Column No.21 ofthe petition are all false and are hereby specificallydenied. The amount of compensation claimed in the petitionis too much, excessive and exhorbitant. The respondentswere not involved in the alleged accident, hence they haveno need to pay any compensation to this petitioner.It is atrocious to allege that the petitionersustained grievous injury on his right leg and that hisright leg below the knee got fractured and it was broken.It is false to allege that the petitioner immediatelyafter the accident was taken to the Government HospitalSalem for first aid and then he was admitted in KirubaPrivate Nursing Home.It is atrocious to allege that the petitionerunderwent an operation and plate was fixed in the placewhere the bone got broken, and it is false to allege thatthe petitioner has spent Rs.30,000/- in the Hospital. Thepetitioner was not involved in any accident with thissecond respondent and he had not sustained any externalinjury or any fracture in his leg. The petitioner has toprove his case.It is false to allege that the petitioner again wasadmitted at the Ganesan Hospital, Salem and he spentRs.20,000/- in the Hospital. It is atrocious to allegethat the petitioner will take one year time to move fromthe bed. https://hcservices.ecourts.gov.in/hcservices/ It is atrocious to allege that the accident occurredonly due to rash and negligent driving of the secondrespondent. It is submitted that the second respondent isa law abiding citizen and respectable Retired Army Personand he never drove the vehicle in a rash and negligentmanner. He strictly follows the traffic rules, and henever met with any accident in his life."5.The learned Motor Accident Claims Tribunal framed two issuesfor the consideration namely:(i)Whether the accident had occurred only dueto the rash and negligent driving of the secondrespondent Corporation Bus? (ii)Whether the second and third petitionersare entitled for compensation, If so what is thequantum of compensation?6.On the petitioner's side, the third claimant was examined asPW1 and one Mr.Velayutham was examined as PW2 and fourteen documentswere marked as Exs.P1 to P14 namely Ex.P1-Xerox copy of the FIR,Ex.P2-Letter sent to the first respondent, Ex.P3-Letter sent to thesecond respondent, Ex.P4-Case Chit issued by the Kiruba Hospital,Ex.P5-Death Certificate of the first petitioner, Ex.P6-Legal HeirCertificate, Exs.P7 & P8-Medical Bills, Ex.P9-Receipt towardspurchasing of blood, Ex.P10-Receipt for X-ray, Ex.P11-Diagnosis,Ex.P12-Discharge Summary, Ex.P13-Judgment passed by the Lower Court,Ex.P14-Medical Bills. On the respondent's side, Mr.Palanisamy, thesecond respondent, was examined as RW1 and five documents were markedas Ex.R1 to R5 namely Ex.R1-Xerox copy of the Complaint given inHasthampatti, Ex.R2-Evidence of the Sengodan, Ex.R3-Evidence of theGopal, Ex.R4-Evidence of the Dr.Sivaprakasam and Ex.R5-Motor VehicleInspector's Report.7.PW1 had adduced evidence stating that on 17.09.1997 at about05.00 p.m. the second respondent had driven his motor cycle in a rashand negligent manner and dashed against the first petitioner. Due tothe said accident, the first claimant had sustained grievousinjuries. Immediately, he was taken to the Government Hospital atSalem for further and special treatment. Further, he had undergonetreatment at Kiruba Hospital and then at Ganesan Hospital. The saidaccident was registered by the Hasthampatty Police Station. When,the claim petition was pending, the injured patient had expired. Assuch, the second and third claimants proceeded with the case.Further, the PW1 in her evidence stating that her father/injuredperson had undergone treatment at various hospitals and also asurgical operation was conducted, wherein a steel plate was fixed onhis right leg, even though the injured person had expired, since thetreatment proved a failure. 8.After considering the evidence of the PW1 and PW2 and thedocuments marked as exhibits, the Tribunal had come to the conclusion https://hcservices.ecourts.gov.in/hcservices/ that the accident had happened due to the rash and negligent drivingof the second respondent and awarded the compensation as follows:Towards loss of income:Rs.80,000/-Medical expenses:Rs. 6,710/-Pain and suffering:Rs. 2,000/-Extra-nourishment:Rs. 1,000/-Transport expenses:Rs. 500/-Damages to clothes:Rs. 500/-In total, the Tribunal awarded a sum of Rs.90,710/- ascompensation, together with interest at the rate of 9% per annum fromthe date of filing the petition till the date of payment ofcompensation. Further, the Tribunal directed the respondents todeposit the said compensation amount within a period of two monthsfrom the date of its order, into the credit of the M.C.O.P.No.248 of1998, on the file of the Motor Accident Claims Tribunal, AdditionalSub Court, Salem. In turn, the said amount to be deposited in anyone of a nationalised bank for a period of three years under thefixed deposit scheme. Further, the Tribunal permitted the claimantsto withdraw the interest of their apportioned share amount, once inthree months. Accordingly ordered.9.Aggrieved by the said Award and Decree, the appellant/firstrespondent has filed the above appeal to set aside the award anddecree passed by the Tribunal.10.Learned counsel appearing for the appellant argued that theadopted method is not pertinent. The Doctor was not examined andWound Certificate was also not produced. Further, the compensationamount awarded the by the Tribunal is also on higher side. Hence, heseeks to set aside the award and decree passed by the Tribunal.11.Learned counsel appearing for the respondents argued that theinjured sustained grievous injuries, which led to his death. Evenafter better treatment, this also proved a failure. Further, thelearned counsel argued that the compensation amount awarded by theTribunal is on lower side. In any event the compensation amountshould not be scaled down, since the affected person should be dulycompensated.12.Considering the facts and circumstances of the case,arguments advanced by the learned counsel appearing on either sideand the award and decree passed by the Tribunal, this Court is of theview that whether the case should be treated as fatal or grievousinjuries. Compensation to be assessed accordingly. For thisclarification the learned counsel appearing on either side consentedto grant Rs.76,710/- as total compensation. Accordingly this appealis ordered, which is fair and equitable.13.On 20.06.2006, this Court imposed a condition on theappellant to deposit 50% of the award amount, into the credit of theM.C.O.P.No.248 of 1998, on the file of the Motor Accident ClaimsTribunal, Additional Sub Court, Salem. In turn the claimants were https://hcservices.ecourts.gov.in/hcservices/ permitted to withdraw the same. Therefore, now this Court herebydirects the appellant to deposit the balance compensation amount asper the findings of this Court, within a period of six weeks from thedate of receipt of a copy of this order, into the credit of theM.C.O.P.No.248 of 1998, on the file of the Motor Accident ClaimsTribunal, Additional Sub Court, Salem. After such a deposit is beingmade, it is open to the claimants to withdraw their apportioned shareamount (equal share) with accrued interest thereon, lying in thecredit of the M.C.O.P.No.248 of 1998, on the file of the MotorAccident Claims Tribunal, Additional Sub Court, Salem.14.In the result, this Civil Miscellaneous Appeal is partlyallowed and the Award and Decree, dated 15.03.2004, made inM.C.O.P.No.248 of 1998, on the file of the Motor Accident ClaimsTribunal, Additional Sub Court, Salem, is modified. No costs.Sd/-Asst.Registrar/True Copy/Sub.Asst.Registrarkrk To1.The Motor Accident Claims Tribunal, Additional Sub Court, Salem.2. The Section Officer, VR Section, High Court, Madras.+ 1 cc to the Government Pleader SR.68623+ 1 cc to Mr.V. Udayakumar, Advocate SR.69387 C.M.A.No.1646 of 2006TAM(CO)Eu 13.11.10