(Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, against the Judgment and decree dated 31.10.2007 and made in MCOP.No.1004 of 2004 on the file of the Motor Accident Claims Tribunal/ Additional Sub Judge, Dindigul.)
1. The above Civil Miscellaneous Appeal has been filed by the appellant the New India Assurance Company Limited, against the Judgment and decreemade in MCOP.No.1004 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional Sub Judge, Dindigul, for awarding compensation of Rs.90,000/-(Rupees Ninety thousand only) together with 7.5% interest per annum from the date of filing of the claim petition till the date of compensation.
2. The brief facts of the case are as follows:
(a) It is submitted that on 21.09.2003 at about 19.00 hours the petitioner was walking in Natham to Kottampatty main road from East to West in the extreme left side of the road when she was nearing Erakkapatti main road at that time the 1st respondent authorized person drove the M-80 Motor cycle bearing Registration No.TN-57 4008 from opposite direction i.e., from West to East in a rash and negligent manner with terrific speed and dashed against the petitioner on the wrong side of the road and there by the petitioner sustained multiple grievous injuries. The accident was caused only due to the rash and negligence driving of the 1st respondent authorized person alone.
(b) A Criminal case under Section 279, 337 of I.P.C was registered by Natham Police Station in Cr.No.399 of 2003 and the same
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s pending investigation.(c) The petitioner was sustained multiple grievous injuries:- (1) Cut injury over her (Lt) eyebrow 92) Laceration over her (Rt) leg immediately after the accident she was taken to Government Hospital Natham and then refer to Government Rajaji Hospital, Madurai and admitted as an inpatient on 21.09.2003 and discharged on 11.10.2003 at the request of the petitioner. She was talking statement at Dr.Alagn Heritory Mudavaidya salai, Thuvarankuruchi, Medical expenses Rs.20,000/-. The petitioner has sustained permanent disability of restricted movement of (Lt) leg and she is bed ridden and she cannot lay weight over his (Lt) hand and she cannot rotate his (Lt) hand and she is unfit for any work. She lost her total earning capacity. She suffered untold pain and sufferings at the time of under going treatment as an inpatient. Her son Nallapuliyan and daughter-in-law Panju were present for assistance at the time of undergoing treatment as an inpatient.(d) The petitioner was hale and healthy woman of 60 years at the time of accident. She used to earned Rs.100/- per day from his mobile fruit and coconut vending business. Now due to the disability she cannot do her Mobile Coconut and Fruit vending business and there by she lost her total earning capacity.(e) The 1st respondent is the owner of the M-80 Motor cycle bearing registration No.TN-57-4003. The accident occurred when the 1st respondent's driver was in a regular course of employment and service. The 1st respondent duly insured his vehicle with 2nd respondent and hence both respondent are jointly and severally liable to pay compensation to the petitioner.(f) In view of the Section 140 (Amended Act 54.94) of the Motor Vehicle Act, the respondents are liable to pay the interim compensation amount of Rs.25,000/- to the petitioner immediately even without proving the negligence on the part of the driver of the offending vehicle since the petitioner has sustained permanent disability of restricted movement of (Lt) leg and she is bed ridden and she cannot lay weight over his (Lt) hand and she cannot rotate his (Lt) hand and she is unfit for any work. She lost her total earning capacity.(g) Therefore it is prayed that this Court may graciously be pleased to pass an award in favour of the petitioner.(1) directing the respondents to pay the interim compensation amount of Rs.25,000/- to the petitioner immediately at the 1st instance as described under Section 140(Amended act 54/94) of the Motor Vehicle Act under ?No Faulty Liability Clause?(2) directing the respondents to pay the remaining compensation amount of Rs.1,25,000/-(Total claim of Rs.1,50,000/-) to the petitioner at the end of due enquiry.(3) directing the respondents to pay the costs of this action.(4) directing the respondents to pay the interest at the rate of 15% per annum from the date of filing of this petition till realisation of the amount and 3. The second respondent had filed a counter statement and resisted the claim petition as follow:(a) It is submitted that the details set out in the columns 3, 4, 6, 11, 13, 13(a), 13(b), 21(a), 23 are not correct. The age, work, income, nature of injury, treatment particular, disability concept, split particulars and the narration of accident are not true. the details have been exaggerated with intention to get the higher amount of compensation. The petitioner is hereby put to strict proof of all the above particulars with relevant documentary evidence.(b) It is further submitted that the accident occurred on 21.09.2003 at about 7.00 p.m in the night hour. According to the ?Observation Mahazar? and the ?Rough sketch? submitted by the Natham Police Officials the accident occurred before the Water Tape installed before the claimant's house. The observation Mahazar clearly shows the ?Place of accident?. According to the Mahazar the accident occurred on the Northern end of the road in the east-west road. According to the FIR the claimant was going from east to west. The going of the claimant at the time of accident from East to West was only on the ?Wrong side? of the road. Actually the claimant should have gone from east to west only on the southern end of the road. But she was actually going in the ?wrong side?. The ?observation Mahazar? and the ?Rough Sketch? clearly shows the ?factual place? of accident. At the time of accident the rider of the M-80 Two Wheeler TN 57 4003 was going from the west to east direction slowly and carefully following all the road rules on the left side of the road. But at that time the claimant who was going from east-west in the ?Wrong side? of the road since it was night hour and since she was a very old aged lady without noticing the oncoming vehicle had crossed the road from North to South and thereby invited the accident herself by hitting with the two wheeler herself. Hence the accident was purely due to the negligence of the claimant only. for the very wrong of the claimant herself there remains nothing on the line of legal right. Hence, the accident was an invited one by the claimant herself. For the accident occurred due to the ?Wrong passage? of the claimant herself, the owner of the two wheeler and in turn the insurer of the two wheeler M 80 Motor cycle TN 57 4003 had no liability at all towards the claimant.(c) It is also submitted that on the day of accident the claimant was 70 years old. Hence the concept of work and the earning thereof has no merit in it. The claimant received only simple injury in the accident and hence the concept of disability does not arise. She can do all the work as before the accident as equal to her age. Hence the pleadings in the petition do not have any force in it.(e) It is further submitted that the claimant should prove the insurance policy, Registration Certificate and Driving licence details with acceptable documents.(f) It is further submitted that the claim of compensation is very high and without basis. This 2nd respondent reserves the right to file the additional counter. Hence this petition has to be dismissed with costs.4. The learned Motor Accidents Claims Tribunal had framed two issues namely; (1) Whether the first respondent's vehicle dashed against the claimant in a rash and negligent manner and at high speed. If not did the claimant cross the road suddenly and as such the accident occurred? (2) Whether the claimant is entitled to get compensation, if so what is the quantum of compensation?5. On the side of the claimant three witnesses were examined and four documents were marked. On the side of the respondent R.W.1 was examined and Ex.R.1 was marked.6. P.W.1 had adduced evidence stating that on 21.09.2003 at about 7.00 p.m. the claimant was proceeding from East to West on the southern side of the road in order to visit a shop, at that point of time, the 1st respondent's son was coming from the opposite direction on a two-wheeler at high speed in the wrong direction and dashed against the claimant. In the result the claimant sustained injuries. Immediately he was taken to the Government Rajaji hospital at Madurai, wherein she underwent treatment, from 21.09.2003 to 11.10.2003 as an in-patient. supporting his evidence P.W.2 one R.Ganesan had adduced evidence, who is working in the said hospital. p.W.3 Dr.Mohandoss sawri had also given evidence. The documents namely Ex.P.1 First Information Report, Ex.P.2 Medical records, Ex.P.3 Disability certificate and Ex.P.4 x-ray were marked.7. R.W.1 had adduced evidence stating that the claimant came in the wrong direction, as such the accident took place. Therefore, the respondent is not liable to pay compensation. R.W.1 is working as a development officer in the respondents Insurance Company. Supporting his evidence he had marked Ex.P.1 Rough Sketch. After considering the evidence of the P.W.1 and R.W.1 and after perusing the First Information Report, rough sketch, the learned Motor Accidents Claims Tribunal had come to the conclusion that the accident had happened nearing the road and not in the middle of the road. As such the respondents are liable to pay compensation.8. P.W.1 had further adduced evidence that her left hand had suffered bone fracture and here left leg joint on the thigh had also fractured. Further she stated that she had sustained injuries on her right leg wholly, besides she also sustained deep injury on her right eyebrow. To prove the said injuries Ex.P.2 Medical Record was marked. P.W.3 had examined the claimant and after perusing the medical records, he had adduced evidence as stated by P.W.1. He also issued a disability certificate that the claimant had sustained 50% disability. The claimant's left hand bone become deformed and with a bend. As such the injured left leg movement is reduced by 20 to 90 instead of the normal movement of 130. Further, the Doctor adduced evidence that the left leg movement is reduced by 30 and left shoulder movement also reduced by 30.9. Considering the evidence of P.W.1 and P.W.3, Doctor's evidence, the learned Motor Accidents Claims Tribunal had awarded a compensation as follows: 91) Rs.50,000/- towards injuries and fractures incurred (2) Rs.25,000/- awarded disability (3) Rs.2,000/- under the head of transport and Rs.13,000/- was awarded under the head of pain and suffering in total the learned Motor Accidents Claims Tribunal had awarded a sum of Rs.90,000/- together with interest at the rate of 7.5% from the date of filing the claim petition till the date of payment of compensation. The Tribunal further directs the respondent to deposit the said compensation amount within a period of one month and after such a deposit being made, the claimant is at liberty to withdraw a sum of Rs.50,000/- together with interest and cost. The rest of the compensation amount i.e, a sum of Rs.40,000/- to be deposited in the Indian Overseas Bank, Dindigul for a period of three years under the fixed deposit scheme. The Tribunal further fixed the advocate fee at Rs.4375/- accordingly ordered.10. Aggrieved by the said award, the appellant/New India Assurance Company Limited has filed the appeal and challenging the same.11. The learned counsel for the appellant argued that the tribunal awarded Rs.50,000/- under the head of bone fracture injuries, which is not pertinent since the Tribunal had awarded a sum of Rs.25,000/- under the head of disability. The Tribunal had awarded Rs.13,000/- under the head of pain and suffering is on the high side. Learned counsel for the appellant vehemently argued that the disability as assessed by the Doctor as 50% which is erroneous. Hence, the learned counsel prays to set aside the award.12. Learned counsel for the respondent argued that the claimant had sustained grievous bone fracture injuries on her left hand, left leg and a deep injury near the eyebrow. The learned counsel further argued that the claimant was admitted at the hospital for a period of 20 days. Supporting his injuries and mode of treatment, duration of treatment, P.W.2 hospital employee, P.W.3 Doctor had adduced evidence. The learned Motor Accidents Claims Tribunal after well considering the evidence of the claimant and medical records passed the award. As such there is no impediment in the said award. Hence, he prays to dismiss the appeal.13. Considering the facts and circumstances of the case, arguments from both sides of learned counsels and findings of the learned Motor Accidents Claims Tribunal , this Court is of the view that there is a discrepancy in the said award, hence, this Court restructure the reward as follows: (1) Rs.50,000/- awarded towards disability at 50% disability (each percent will carry Rs.1,000/-)since the claimant's age was 60 (2) Tribunal had awarded Rs.25,000/- under the head of disability which is set aside (3) Tribunal had awarded Rs.13,000/- under the head of pain and suffering, this Court enhances this to Rs.15,000/- (4) The Tribunal had awarded Rs.2,000/- under the head of nutrition and transport, this Court awarded Rs.2,500/- under the head of nutrition and another Rs.2,500/- under the head of Transport cost.14. In total this Court awards Rs.70,000/- together with interest at the rate of 7.5% interest from the date of filing the claim petition till the date of payment of compensation which is equitable and fair. Therefore, this Court has reduced the compensation from Rs.90,000/- to Rs.70,000/-.15. As per this Honourable Court condition order dated 29.02.2008, the appellant/Insurance Company should deposit the entire award amount to the credit of MCOP.No.1004 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional Subordinate Court, Dindigul, within a period of four weeks.16. As the accident had happened in the year 2003, it is open to the claimant to withdraw her compensation i.e., a sum of Rs.70,000/- together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, lying in the credit of MCOP.No.1004 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional Sub-court, Dindigul after filing necessary application in accordance with law subject to the withdrawals, if any, made as per Tribunal's order. Likewise, the appellant/ New India Assurance Company Ltd., is at liberty to withdraw the excess compensation amount i.e., a sum of Rs.20,000/- with accrued interest thereon, after observing necessary formalities of the learned Motor Accidents Claims Tribunal.17. In the result the above civil miscellaneous appeal is partly allowed. Consequently the award and decree passed by the Motor Accident Claims Tribunal/ Additional Subordinate Court, Dindigul in MCOP.No.1004 of 2004, dated 31.10.2007 is modified. There shall be no order as to costs. Consequently, connected miscellaneous petition is also closed.