Royal Sundaram Alliance Insurance Company Ltd. Vs D. Moses and A. Azeez Basha

Aruna Jagadeesan, J.@mdashThese Civil Miscellaneous Appeals in CMA. Nos. 1421 and 1884 of 2007 are filed by the Royal Sundaram Alliance Insurance Company Limited and the claimant respectively against the judgment and Decree dated 9.3.2007 made in MCOP. No. 5694/2004 on the file of the VI Court of Small Causes (MACT) Chennai.

2. Shortly stated factual conspectus are as under:

a. On 31.7.2004 at about 16.30 hours, the claimant, who is the Appellant in CMA. Nos. 1884/2007, was driving the Lorry bearing Reg. No. TN-07-U-1212 from Kelambakkam to Maduravoyal along 200 ft. bypass road and while he was proceeding near Kovur Bridge, the lorry bearing Reg. No. TN-09-AD-8790 came in a rash and negligent manner from the opposite direction and dashed against the lorry driven by the claimant, as a result of which, he sustained grievous injuries. Hence, the claimant claimed a compensation of Rs. 20,00,000/- before the Tribunal.

b. In the counter filed by the Insurance Company, they denied the averments made in the claim petition in relation to the negligence of the driver, but, however, disclosed that the offending lorry was insured with the Appellant Insurance Company.

c. The Tribunal, on the basis of the pleadings of the parties and after hearing both sides and the evidence adduced, held that the accident had occurred only due to the rash and negligent driving of the driver of the offending lorry and awarded a sum of Rs. 5,06,000/- as total compensation to the claimant, directing the Insurance Company to deposit the award amount with interest at the rate of 7.5 per cent p.a. from the date of numbering of the claim petition till the date of deposit. As against the same, these Civil Miscellaneous Appeals have been filed by the Insurance Company and the claimant respectively.

3. This Court heard the submissions of the learned Counsel on either side and also perused the materials placed on record.

4. According to the claimant, the driver of the lorry bearing Reg. No. TN-09-AD-8790 was solely responsible for the accident. On the other hand, the learned Counsel for the Insurance Company would contend that the claimant was responsible for the accident and he had contributed to the accident at least to some extent.

5. On the side of the claimant, the claimant examined himself as PW.1 and the Head Constable attached to Mangadu Police Station as PW.5 to speak about the negligence. PW.1 has stated that he was driving the lorry and proceeding to Maduravayal along 200 ft. bypass road and when he was proceeding near Kovur Bridge, the offending lorry came to the wrong side and dashed against his lorry. His evidence indicated that though he tried his best to avoid the accident by going to his left extreme, but however, the offending lorry came to his side and dashed against his lorry. PW.5 has stated that the FIR was registered against the offending lorry driver in Cr. No. 570/2004 for the offences under Sections 279 and 338 of Indian Penal Code, 1860 and the driver of the offending lorry was also charge sheeted before the Judicial Magistrate, Poonamallee and he has produced a copy of the FIR, Ex.P12, Rough plan Ex.P13, a copy of charge sheet Ex.P14 and a copy of RC Book of the lorry driven by the claimant Ex.P15.

6. The FIR was registered on the report given by the cleaner of the lorry driven by the claimant. Ex.P13 would clinch the issue as to the negligence aspect. RW.1, the driver of the offending lorry has deposed that both the lorries were on the spot in the same position till the Police arrived at the accident spot. He would further admit that Ex.P13 was prepared in his

presence. In Ex.P13, it is shown that the lorry driven by the claimant was in its correct direction and the offending lorry had come to the wrong side. The contention of RW.1 that the claimant while driving his lorry overtook a bus and an auto rickshaw, came to the wrong side and hit against the lorry driven by him is belied by Ex.P13 rough plan. It is not in dispute that Ex.P13 showed the position of the vehicles immediately after the accident at the spot. From the position of the vehicles, the inference that could be drawn is that the offending lorry had come to the wrong side, which had resulted in collusion of the vehicles. The evidence shows that the claimant was diligent and he had swerved his vehicle to his left side, but in spite of it, the offending vehicle had dashed against him. RW.1 has stated that there was No. damages to both the vehicles. He has admitted that though he has been injured, he has not filed any claim petition. That apart, he has not given any complaint to the Police. As such, the evidence on record clearly established that the offending lorry had come to the wrong side and hit against the lorry driven by the claimant. On analysing the entire evidence, the Tribunal came to the right conclusion that the driver of the offending lorry was solely responsible for the accident and there is No. irregularity or infirmity in the finding of the Tribunal with regard to the negligence aspect, warranting interference by this Court and hence, the same is confirmed.

7. As regards the quantum of compensation, the claimant has suffered the following injuries:

(a)compound and communited fracture of left femur,

(b)fracture of both bone right leg,

(c) communited fracture of distal end of right radium,

(d)lacerated injury over left frontal region,

(e) lacerated injury over right parietal region,

(f) lacerated injury exposing muscle over left lower 3rd of leg,

(g)lacerated injury over left knee, lacerated injury over left head-5x1x1.5cm and

(h)lacerated injury over right knee-10x1.5x2 cMs.

Initially, the claimant was treated as an inpatient in the Government Hospital, Chennai from 31.7.2004 to 14.9.2004. Ex.P1 is the discharge summary. Thereafter, he was admitted and treated as an inpatient in the VHS Hospital from 14.9.2004 to 10.2.2005. Subsequently, he was treated as an inpatient in Sri GM Hospital for continuous treatment from 5.4.2006 to 10.4.2006. The claimant has suffered fracture in his both legs and also suffered communited fracture on his left hand.

8. PW.2 Dr. K.J.Mathiazhagan, a retired Professor and Head of the Department of Kilpauk Medical College Hospital, Chennai, who had examined the claimant, has deposed that the claimant cannot perform the duty as a lorry driver, which he was doing earlier and assessed the disability as partial and permanent to an extent of 80 per cent. Though it was suggested to him by the Insurance Company that there was No. mal union or non union of bones, he denied the same in his cross examination.

9. It was pointed out by the learned Counsel for the Insurance Company that the claimant had been treated for kidney ailment and contended that the claimant''s previous poor health condition, more particularly, diabetes was responsible for his disablement, which aggravated his health condition and the same was also suggested to PW.2 and he denied it in the cross examination. According to the claimant, renal failure is due to the compound and communited fracture suffered by him and also due to loss of muscle. It has been submitted by the learned Counsel for the claimant that whenever a major muscle injury happens outside dirt particles, get into the blood vessels and accumulate in the kidney and cause renal failure. Therefore, he would submit that renal problem developed only in the course of treatment.

10. The claimant had been admitted in the Hospital on 31.7.2004. On 10.8.2004, when he was tested for fitness for surgery, it was found that he was having renal problem. Ex.P16, discharge summary and the case sheet reveal the same. It is more likely that the wounds would have been infected resulting in kidney renal problem. It is the categoric case of the claimant that he had No. kidney ailment before the accident and the injury alone had caused it, which was later rectified. In the first discharge summary, there is No. indication as to the history of the renal problem faced by the claimant at the time of admission into the hospital. In the discharge summary issued by the VHS Hospital also, there is nothing noted regarding renal probleMs. It appears that he had developed renal problem only in the course of treatment. Therefore, the contention of the learned Counsel for the Insurance Company that the claimant had renal problems earlier and it had caused the disablement merits No. acceptance.

11. The Doctor has assessed the permanent disability at 80 per cent on the ground that the claimant can walk only with a supporter, he cannot grip any material and it is not possible for him to do work as a lorry driver any more in future. The claimant was a lorry driver and the same is also evident from the fact that he sustained those injuries only when he was driving the lorry. The evidence of PW.2 Doctor and the medical records clearly established that he cannot work as a lorry driver and therefore, he had suffered total disability in respect of his earning capacity as a driver. The Tribunal though accepted the assessment made by the Doctor that the claimant suffered permanent disability to an extent of 80 per cent, but, however, awarded Rs. 2,00,000/-towards continuing permanent disability and the loss of earning power, which needs to be modified.

12. According to the claimant, he was earning Rs. 4000/-p.m. and was getting Re.250 per day as batta. PW.4, the co-driver has corroborated his evidence. It has been established by the oral as well as the documentary evidence that he cannot work as a lorry driver in future and to that extent, there is total loss in his earning capacity. While computing the compensation for the disability suffered by the claimant, it is the functional disability resulting in loss of earning capacity, which is the criteria in assessing compensation. The loss of earning capacity is commensurate to the injuries suffered and the loss of earning capacity as a result thereof. In the instant case, it is No. doubt true that the claimant has lost his capacity to work as a driver. But, however, he could perform other works, which is suitable to his physical condition after the accident. It is not the case of the claimant that he is totally immobilised and had become unfit for doing any other work. Although the claimant cannot do the driving work, as he is in a position to earn a living other than by doing driver work, the functional disability could be assessed at 75 per cent.

13. The claimant was aged 42 years old at the time of the accident and hence, the proper multiplier would be 15. The accident had occurred at the time when he was driving the vehicle and he was having a valid driving licence as per Ex.P8. According to the claimant, he was earning Rs. 4000/ p.m. and Rs. 250/-per day as batta. However, considering the personal expenses he would incur, his monthly income could be taken as Rs. 4000/-. Thus, the loss of future earnings is arrived at Rs. 5,40,000/-(Rs. 4000*12*15*75/100).

14. The Tribunal awarded Rs. 2,00,000/-towards pain and suffering, which is on the higher side and the same is reduced to Rs. 50,000/-. The amount of compensation Rs. 10,000/-towards attendant charges awarded by the Tribunal is enhanced to Rs. 20,000/-. The award of amount of Rs. 45,000/-towards loss of earning during the period of treatment, Rs. 10,000/-towards transportation charges, Rs. 10,000/-towards extra nourishment, Rs. 500/-towards damage to clothes and Rs. 30,084/-towards medical expenses, which is born out by records, awarded by the Tribunal are just and fair compensation and the same are confirmed. Apart from this, a sum of Rs. 20,000/-towards the loss of marital life is awarded. In all, the claimant is entitled to a sum of Rs. 7,25,584/- with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization.

15. In the result, CMA. No. 1421/2007 filed by the Insurance Company is dismissed and CMA. No. 1884 of 2007 filed by the claimant is allowed. The impugned award is enhanced to Rs. 7,25,584/-from Rs. 5,06,000/-. In all, the claimant is entitled to a sum of Rs. 7,25,584/-with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization as detailed below:

The Appellant Insurance Company is directed to deposit the enhanced award amount with interest at 7.5 per cent p.a. from the date of the claim petition till the date of deposit within a period of eight weeks from the date of receipt of a copy of this order. On such deposit being made, the claimant is entitled to withdraw the award amount with interest after giving credit to the amount already withdrawn by him. No. costs.