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R. Thangaraj v/s A.S. Somasundaram & Others

    C.M.A.(MD) No. 801 of 2004

    Decided On, 15 March 2013

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE C.S. KARNAN

    For the Appellant: N. Dharmar, Advocate. For the Respondents: R2, B. Rajesh Saravanan, R4, R. Kumararaja, Advocates.



Judgment Text

(Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, to set-aside the award in M.C.O.No.15 of 2001, dated 25.07.2002, of the Motor Accidents Claims Tribunal, Sub Court, Sivakasi.)

1. The appellant / petitioner has preferred the present appeal against the judgment and decree passed in M.C.O.No.15 of 2001, on the file of Motor Accidents Claims Tribunal, Sub Court, Sivakasi.

2. The short facts of the case are as follows:-

The petitioner has filed the claim in M.C.O.P.No.15 of 2001, claiming compensation of a sum of Rs.4,00,000/- from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that the petitioner was an employee of the Bilal Group of Companies at Sivakasi, on 30.03.2000, at around 02.30 hours, when he was travelling in the first respondent's van bearing registration No.TDR-7081, in the course of his employment and driven by one Selvaraj, from North towards South, on the Virudhunagar-Sivakasi Main Road, and when the van had passed the MEPCO bus stop and approaching Sivakasi, the third respondent's lorry bearing registration No.TN-04-C-2545, which was proceeding ahead of the van was suddenly halted by its driver, as a result of which, the petitioner had sustained injuries.

3. The second and fourth respondents have both filed a common statement of objections disputing the income of the petitioner and nature of injuries sustained by him. However, they have admitted that the vehicles involved in the accident had been insured with them and that there had not been breach of any policy conditions. It was submitted that the claim was excessive.

4. The Motor Accidents Claims Tribunal had framed three issues for consideration in the case, viz.,

"(i) Due to whose negligence was the accident caused?

(ii) What is the quantum of compensation which the petitioner is entitled to get? and

(iii) What is the final order / award of the Court of the claim?"

5. On the petitioner's side, two witnesses were examined and thirteen documents were marked as Exs.P1 to P13, viz., Ex.P1-salary certificate issued to the petitioner by Bill Trading Agencies, dated 30.03.2000, Ex.P2-certified copy of F.I.R. in Crime No.38 of 2000 of Amathur Police Station, dated 30.03.2000, Ex.P3-certified copy of charge sheet dated 26.05.2000, Ex.P4-certified copy of the Motor Vehicle Inspection report dated 30.03.2000, Ex.P5-certified copy of Motor Vehicle Inspection report relating to TN-04-C-2545, dated 30.03.2000, Ex.P6-certified copy of wound certificate issued by Jawahar Hospital dated 30.03.2000, Ex.P7-certified copy of judgment in S.T.C.No.4491 of 1991 before the Judicial Magistrate Court-II, Virudhunagar , dated 07.03.2002, Ex.P8-certificate issued by Jawhar Hospital to the petitioner, Ex.P9-medical bills (series), Ex.P10-receipts issued by Jawahar Hospital to the petitioner (series), Ex.P11-receipt issued by Sai Diagnostics, Madurai (series), Ex.P12-advance receipt and inpatient bill by Jawahar Hospital to the petitioner, Ex.P13-disability certificate issued by P.W.2 to the petitioner dated 24.06.2003. On the side of the respondents, no witness, no documents.

6. P.W.1 had adduced evidence which is corroborative of the statements made in the claim regarding mode of accident, and in support of his evidence, he had marked exhibits listed as P1 to P13. On scrutiny of Ex.P2, F.I.R. and Ex.P3-charge sheet, it is seen that the driver of the lorry had been prosecuted by the police. On scrutiny of Ex.P7, it is seen that the lorry driver had admitted his guilt and paid the fine. Hence, the Tribunal, on considering the evidence of P.W.1, and on scrutiny of Exs.P1 and P7, held that the accident had been caused by the rash and negligent driving by the driver of the third respondent's lorry and hence, held the third and fourth respondents jointly and severally liable to pay compensation.

7. P.W.1 had further adduced evidence that he had sustained multiple injuries in the accident and that he was initially treated at Government Headquarters Hospital, Virudhunagar and that he had subsequently taken treatment at Jawahar Hospital, Madurai and in support of his evidence, he had marked Ex.P6, wound certificate issued by Jawahar Hospital, Madurai. On scrutiny of Ex.P6, it is seen that the petitioner had sustained fracture of bone on right toe, right foot and right knee and that he had sustained three other simple wounds.

8. P.W.2, Dr.R.Jaganathan, Orthopaedic Surgeon of Government Hospital, Sivakasi has adduced evidence that he had examined the petitioner and also scrutinized the medical records and observed that the petitioner had sustained fracture on right knee and that the disability assessed on this count was 35% and that he had also sustained injury in his right eye-lid and that the disability assessed on this count was 18%. He deposed that the claimant could walk normally and that the screws fixed on the right knee had been removed. He deposed that the right eyelid appeared lightly sloping downwards and that he had opined that this was due to a nerve damage. However, the Tribunal observed on scrutiny of Ex.P6, that there was no reference at all to the injury in eyelid. Hence, the Tribunal held that the percentage of disability sustained by the petitioner was 15%. On scrutiny of Ex.P1, it is seen that the income of the petitioner was Rs.3,650/- per month.

9. The Tribunal, on scrutiny of medical bills marked as Exs.P9 to P12, awarded a sum of Rs.13,000/- as compensation under the head of medical expenses; Rs.15,000/- was awarded under the head of disability of 15% and Rs.15,000/- was awarded under the head of loss of earning capacity; Rs.7,000/- was awarded towards pain and suffering. In total, the Tribunal awarded a sum of Rs.50,000/- as compensation to the petitioner and directed the third and fourth respondents to jointly and severally pay the said sum together with interest at the rate of 9% per annum from the date of filing the petition till the date of deposit, with costs.

10. Not being satisfied with the award passed by the Tribunal, the petitioner has preferred the present appeal.

11. The learned counsel for the appellant has contended in his appeal that the tribunal failed to see that the appellant sustained severe injuries on his legs, face and eyes resulting in hospitalization and 35% disability of legs and nerve damage to right eyelid causing 18% disability and as such, the Tribunal ignored the documentary evidence and also the oral evidence of P.W.2 and erred in fixing the percentage of disability as 15%. It was contended that the Tribunal erred in not taking into account the number of days the appellant was under treatment properly and erred in ignoring Ex.P8 and in holding that there is no injury to the upper eyelid as Ex.P6. It was contended that the Tribunal ought to have considered Ex.P14, which is the X-rays showing the fracture and screw fixation. It was contended that the Tribunal ought not to have turned a blind eye to the fact that the appellant's face was disfigured and that there is an injury to his right eyelid among other serious injuries. It was contended that the Tribunal failed to note that the appellant has to undergo further surgeries for his face, knee and eyelid and as such failed to grant any compensation for future medical expenses. It was contended that the Tribunal erred in granting a meagre amount of Rs.13,000/- under the head of medical expenses and failed to consider Exs.P9 and P12 properly. It was also contended that the Tribunal erred in holding that there was no loss of pay at the hand of the employer. Hence, it was prayed to grant additional compensation of Rs.2,50,000/- to the appellant / claimant.

12. The learned counsel for the second respondent has submitted that the first and second respondents are formal parties in the claim petition, since the first respondent's vehicle had been involved in the said accident. Actually, the criminal case had been registered on the driver of the third respondent's vehicle and as such liability had been fasted on both the third and fourth respondents.

13. The learned counsel for the fourth respondent has submitted that adequate compensation had been granted by the Tribunal. The doctor had assessed the disability 53% which is on the higher side since the claimant had sustained only simple injuries and this aspect has been proved as per the statements made in the F.I.R. wherein it has been shown that the injured person sustained simple injury.

14. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding liability. However, the quantum of compensation awarded is on the lower side, considering the medical expenses incurred and surgical operation undergone to set-right the bone fracture. Further, the Tribunal had not awarded compensation under the heads of transport, nutrition and attender charges. Hence, this Court restructures the compensation as follows:-

Rs.53,000/- is awarded compensation under the head of disability; Rs.10,000/- is awarded under the head of pain and suffering; Rs.20,000/- is awarded under the head of medical expenses; Rs.5,000/- is awarded under the head of attender charges; Rs.5,000/- is awarded under the head of transport; Rs.5,000/- is awarded under the head of nutrition and Rs.5,000/- is awarded under the head of loss of income during medical treatment period and convalescence period. In total, this Court awards a sum of Rs.1,03,000/- as compensation as it is found to be appropriate. After deducting initial compensation of a sum of Rs.50,000/-, this Court grants a sum of Rs.53,000/- as additional compensation. This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. As such, this Court directs the fourth respondent herein /

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United India Insurance Company, Virudhunagar Branch to pay the additional compensation amount, with accrued interest thereon, as per this Court's order within a period of four weeks from the date of receipt of a copy of this order. 15. As per Court records, it is seen that the above appeal was dismissed for default on 08.08.2011 and it was restored on 19.07.2012, on condition that the claimant will forego the interest during the dismissal period. Therefore, the Insurance Company need not pay any interest for the said period, on the additional compensation awarded. After such deposit being made, it is open to the claimant to withdraw the additional compensation amount with accrued interest thereon lying in the credit of M.C.O.No.15 of 2001, on the file of Motor Accidents Claims Tribunal, Sub Court, Sivakasi, after filing a Memo, along with a copy of this order. 16. In the result, the above appeal is partly allowed. Consequently, the order passed in M.C.O.No.15 of 2001, on the file of Motor Accidents Claims Tribunal, Sub Court, Sivakasi, dated 25.07.2002, is modified. There is no order as to costs.
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