P.P.S. Janarthana Raja, J.@mdashThe appeal is preferred by the Insurance Company-appellant against the Judgment and Decree dated 12.03.2007 and made in M.A.C.T.O.P. No. 573/2004 by the Motor Accident Claims Tribunal (Subordinate Court, Ponneri).
2. Background facts in a nutshell are as follows:
On 20.10.2004 at about 8.45 a.m., the injured/claimant was walking on the left side of E.H.Road, opposite to door No. 267, Viyasarpadi, Chennai-600 039. At that time, a Hero Honda motor cycle bearing Registration No. TN-05-H-1095 belonging to the second respondent herein came in a rash and negligent manner and dashed against the injured. The claimant claimed a sum of Rs. 5,00,000/- as compensation. The said motor cycle was insured with the appellant-Insurance Company resisted the claim. On pleadings the Tribunal framed the following issues:
1. Whether the accident had occurred due to the rash and negligent driving of the rider of the motor cycle belonging to the second respondent herein or not?
2. What is the compensation the claimants are entitled to? If so, what is the amount and from whom?
After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the rider of the motor cycle and awarded a compensation of Rs. 2,49,000/- with interest at 9% per annum from the date of petition and the details of the same are as under:
Loss of income during treatment period Rs. 15,000/-
Transport charges Rs. 5,000/-
Extra nourishment Rs. 10,000/-
Pain and suffering Rs. 15,000/-
Future loss of earning Rs. 1,44,000/-
Loss of income due to disability 65% Rs. 60,000/-
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Total... Rs. 2,49,000/-
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Aggrieved by that award, the appellant/Insurance Company has filed the present appeal.
3. The learned Counsel appearing for the appellant/Insurance Company questioned only the quantum of compensation awarded by the Tribunal and contended that the amount awarded by the Tribunal is excessive, exorbitant, without basis and justification. Further, he contended that when the Tribunal awarded compensation towards loss of income due to disability at 65%, the Tribunal ought not to have awarded further a sum of Rs. 1,44,000/- towards loss of earning and therefore, the same is unwarranted and the same should be deleted. Hence, the award passed by the Tribunal is not in accordance with law and the same has to be set aside.
4. Learned Counsel appearing for the respondents/claimants submitted that the Tribunal had considered all the relevant materials and evidence on record and came to the right conclusion and awarded a just, fair and reasonable compensation. Hence the order of the Tribunal is in accordance with law and the same has to be confirmed.
5. Heard the counsel. The claimant himself examined as P.W.1. P.W.2 is Doctor Thiyaharajan also examined. On the side of the claimant, P.Ws.1 and 2 were examined and documents Exs.P1 to P17 were marked. Ex.P.1 is the First Information Report. Ex.P.2 is the copy of the accident register. Ex.P.3 is the wound certificate. Ex.P.4 is the discharge summary. Ex.P.5 is the document issued by the Puthur Hospital for taking treatment. Ex.P.6 to Ex.P.9 are the discharge summary. Ex.P.10 is the certificate of continuous treatment. Ex.P.11 is the series of medical bills. Ex.P.12 is the driving license. Ex.P.13 is the Policy certificate. Ex.P.14 is the Motor Vehicles Inspector''s report. Ex.P.15 & Ex.P17 are the X-rays. Ex.P.16 is the disability certificate. On the side of the appellant-Insurance Company, no one was examined and no document was marked. After considering the oral and documentary evidence, the Tribunal had given a categorical finding that the accident had occurred only due to the rash and negligent driving of the rider of the motor cycle and the finding is based on valid materials and evidence.
6. At the time of accident, the injured/claimant was aged about 39 years. He is an Auto driver and earning a sum of Rs. 150/- per day. Due to the accident, he suffered inter Trochanter fracture left femur and multiple injuries all over the body, grievous in nature. The rider of the motor cycle charge sheeted for offences under Sections 338 IPC & 184 MV Act in Cr. No. 488/P1/04 by G3 Police Station, Kilpauk, Chennai. Immediately after the accident, he was admitted in C.M.O.Govt., Stanley Hospital, Chennai as inpatient for the period of 6 days and later he was admitted in Government Hospital, Chennai, Royapettah as inpatient for the period of 64 days. Therefore, he was hospitalized as inpatient for 70 days. Further, the claimant stated that there is a fracture in the left leg and also steal plate was implanted. The claimant claimed that he was earning a sum of Rs. 150/- per day, but there is no document to substantiate the same. After considering the age of the claimant i.e 39 years old, he would have certainly earning not less than Rs. 3,000/- per month. He was in the hospital for 70 days. There is no dispute regarding the same. So, the Tribunal awarded a sum of Rs. 15,000/- (Rs. 3000 x 5) towards loss of income during the treatment period. After considering the above oral and documentary evidence, it is just, fair and reasonable award amount under the head of loss of income during treatment period and the same is hereby confirmed. The Tribunal also awarded a sum of Rs. 5,000/- towards transport expenses. After consideration of the treatment taken in various hospital, the amount awarded by the Tribunal is very reasonable and the same is hereby confirmed. Further, the Tribunal awarded a sum of Rs. 10,000/- towards extra nourishment. The learned Counsel appearing for the appellant/Insurance Company vehemently contended that the award passed by the Tribunal under the head of extra nourishment is excessive and exorbitant and the same has to be reduced. After consideration of the above oral and documentary evidence, it is reasonable to award a sum of Rs. 5,000/- towards extra nourishment against Rs. 10,000/- award passed by the Tribunal. The Tribunal also awarded a sum of Rs. 15,000/- towards pain and suffering. After considering the nature of injury and evidence of the Doctor/P.W.2, it is just, fair and reasonable award amount and the same is hereby confirmed. Further, the Tribunal also awarded a sum of Rs. 1,44,000/- towards future loss of earning and further a sum of Rs. 60,000/- towards loss of earning due to disability at 65%. The learned Counsel appearing for the appellant/Insurance Company vehemently contended that the award amount towards future loss of earning, which is against the Full Bench decision in the case of "
Rs. 2,000 x 65% = Rs. 1,30,000/-
Therefore, it is reasonable to award a sum of Rs. 1,30,000/- towards loss earning due to disability 65% as against Rs. 60,000/- awarded by the Tribunal. Also, the Tribunal has not awarded any amount towards attender charges. After taking into consideration of the injured admitted in two different hospitals as inpatient for the period of 70 days, it is reasonable to award a sum of Rs. 5,000/- towards attender charges. The Tribunal also has not awarded towards loss of amenities. After considering the nature of injury and facts and circumstances of this case, it is reasonable to award a sum of Rs. 15,000/- towards loss of amenities. Further, the Tribunal has not awarded towards loss of expectation of life. After considering the nature of injury and above oral and documentary evidence, it reasonable to award a sum of Rs. 15,000/- towards loss of expectation of life. The details of the modified compensation as per the above discussion are as under:
Loss of income during treatment period Rs. 15,000/-
Transport charges Rs. 5,000/-
Extra nourishment Rs. 5,000/-
Pain and suffering Rs. 15,000/-
Loss of earning due to disability 65% Rs. 1,30,000/-
Attender charges Rs. 5,000/-
Loss of amenities Rs. 15,000/-
Loss of expectation of life Rs. 15,000/-
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Total... Rs. 2,05,000/-
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Therefore, the claimant is entitled to the modified compensation of Rs. 2,05,000/- as against the compensation of Rs. 2,49,000/- awarded by the Tribunal. The Tribunal has fixed the rate of interest at 9% p.a from the date of petition. The accident has occurred on 20.10.2004. During the said period, the prevailing rate of interest is at 7.5%. Hence, the rate of interest is modified to 7.5% instead of 9%.
7. The learned Counsel appearing for the appellant-Insurance Company has submitted that already entire award amount has been deposited as per order of this Court. The claimant is permitted to withdraw the modified award amount of Rs. 2,05,000/- with interest at 7.5% p.a. from the date of petition, after adjusting the amount, if any, already withdrawn. The appellant-Insurance Company is also permitted to withdraw the balance amount on making proper application.
8. With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs.
