Pitchai v. Mrs.Riajunnissa2. M/s. United India Insurance Company Limited, Branch Office II, Puthur, Trichy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06.01.2010CORAMTHE HONOURABLE MR.JUSTICE N.KIRUBAKARANC.M.A.No.2194 of 2004andC.M.P.No.9130 of 2004 Pitchai ..Appellant/Claimant vs.

Mrs. Riajunnissa2. M/s. United India Insurance Company Limited, Branch Office II, Puthur, Trichy - 17. ..Respondents/Respondents Civil Miscellaneous Appeal is filed under Section 173 of MotorVehicles Act, 1988, against the Decree and Judgment dated 28.11.2003made in M.C.O.P.No.44 of 2002 on the file of the learned MotorAccidents Claims Tribunal and District Judge, Perambalur. For Appellant : Mr. JeyandrakrishnanFor Respondents : No AppearanceJUDGMENTThe Appeal has been preferred by the claimant aggrieved by thequantum awarded by the Tribunal.

The facts of the case are as follows:-The appellant sustained injuries in an accident thattook place on 14.09.2001 when the van came in the opposite directiondriven by its driver in a rash and negligent manner and dashedagainst the appellant who was walking on the side of the road. Theappellant sustained multiple and grievous injuries all over his bodyand on his left and right leg, below knee lacerated and the left legshortened. The further case of the claimant is that he was admittedinto the Government Hospital on 14.09.2001 and discharged on22.12.2001. He further contended that he spent about Rs.70,000/- for Medical Expenses and he was earning about Rs.4500/- per month as anagricultural worker. He was aged about 35 years at the time of theaccident. For the injuries caused to him the appellant made a claim https://hcservices.ecourts.gov.in/hcservices/ for Rs.4,00,000/-. The said claim petition was resisted by thesecond respondent Insurance Company. On appreciation of pleading andevidence the tribunal found that the accident took place because ofrash and negligent driving of the van driver and awarded a sum ofRs.75,000/-. Aggrieved by the quantum, the claimant is before this Court by way of this Appeal.

The learned counsel for the appellant submitted that theaccident was caused because of the rash and negligent driving of thevan driver. The claimant also proved that the injuries caused to himwere grievous in nature and the injuries affect the normal life andalso caused resultant loss in earning power. The learned counselfurther submitted that for 54% disability, only a sum of Rs.50,000/-was awarded without considering the loss of income. Therefore, hesought for enhancing the amount.

Even though, there was no representation on behalf of the Insurance Company, the pleadings and evidence and the award areconsidered by this Court and orders are passed on merits.

Ex.P1 FIR and Ex.P3 Accident Register would show that theaccident occurred because of the rash and negligent driving of thedriver of the van. The Tribunal gave a finding in paragraph 5 of theaward that it reached the conclusion based on the oral evidence ofPw1 and Ex.P1. Apart from that the Tribunal took note of non-examination of driver of the van by the Insurance Company. In factno one was examined on the side of the Insurance Company. Therefore, the Tribunal rightly found that the accident occurred because of therash and negligent driving of the van. Moreover there was no appealby the Insurance Company against the said finding and therefore ithas reached finality and the same is confirmed.

As far as the compensation is concerned, the Tribunal hasto consider, the nature of injuries caused to the claimant, age ofthe claimant and the avocation of the claimant. In this case Pw2 wasexamined to prove the injuries caused to the claimant. Ex.P2 woundcertificate speaks about the said injuries which were discussed inparagraph 9 & 10 of the award and the same is extracted as follows:-" 9. The Wound Certificate is marked as Ex.P.2. InEx.P.2 the doctor noticed the following injuries:1. A lacerated injury 20 x 5 x 2 cm over left legthrough the broken bone seen with loss of shin.2. A lacerated injury 10 x 2 x 1 cm over left kneejoint, https://hcservices.ecourts.gov.in/hcservices/

3. An abrasion 10 x 5 cm over left thigh.out of three injuries, injury No.1 is grievous innature.10. P.W.2 Dr.Saravanan, deposed that on 30.10.2003,he examined the petitioner to assess the disability. Two bones in the left leg were fractured into threepieces and there was no bone for three inches in the Tipiya bone. The left leg is shortening by 3 cm. Further skin grafting was also done to thepetitioner. New movement is restricted by 50 decree. He assessed the disability at 54%. Disabilitycertificate is marked as Ex.P.5. X-Ray is marked asEx.P.6."

Admittedly, as stated above there was fracture of bones andshortening of leg and restriction of movement of the leg by 50decree. The disability was proved to be 50%. The above after-effectsof the accident would have telling effect on the normal life of theclaimant and his earning would also get reduced. Therefore, this Court applies second schedule of the Motor Vehicles Act to calculatethe compensation. The age of the claimant was 35 at the time of theaccident. Since there is no evidence available to prove the monthlyincome of the claimant, this Court adopts the notional income. Asper the second schedule notional income is Rs.15,000/- per year. Thesaid second schedule was introduced with effect from 14.11.1994.Whereas the accident occurred on 14.09.2001 and therefore the sameamount cannot be taken us notional income as stated in the secondschedule, as there has been increase in earning power, inflation andcost of living. Hence, this Court fixes the annual income at therate of Rs.25,000/- per annum. After deducting 1/3rd amount topersonal expenses, the monthly loss of income would be Rs.25,000-Rs.25000x2/3x54/100x16=1,60,000.00. It has been held by the DivisionBench of this Court in United India Insurance Company Limited Vs.Veluchamy and another reported in 2005 ACJ 1483 that second schedulecan be applied by taking into account the injuries caused, based onthe facts of the case. The facts of the present case warrantsapplication of second schedule and therefore, the aforesaidcompensation of Rs.1,60,000.00 is awarded by applying the secondschedule as loss of income.

As this Court awards the amount of Rs.1,60,000.00/- as lossof income based on second schedule, the amount of Rs.50,000/- awardedtowards disability is deleted. Though the petitioner claimed someamount to Medical Expenses, the same was rightly rejected by the Tribunal for not filing medical bills to prove the same. TheTribunal awarded a sum of Rs.15,000/- for pain and suffering and thesame is confirmed. A sum of Rs.5000/- awarded for medical expenses https://hcservices.ecourts.gov.in/hcservices/ and a sum of Rs.5,000/- awarded for loss of earning are alsoconfirmed.