Partly allowed

Oriental Ins.Co.Ltd., v. Arunachalam

Madras HC8 Jul 2013CMA/1507/2004

Case brief

AI extract

What is this about?

In an appeal against the Motor Accidents Claims Tribunal, the High Court held that while liability was correct, the awarded compensation was excessive. The Court reduced the total compensation from Rs. 2,70,000 to Rs. 2,00,000 by recalculating heads of damages.

What did the court decide?

The compensation award fixed by the Tribunal is scaled down from Rs. 2,70,000 to Rs. 2,00,000. The claimant is permitted to withdraw the modified amount from the Tribunal.

Oriental Ins.Co.Ltd., Vs Arunachalam — Motor Accident Claims | Madras HC (2013)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED: 08.07.2013

¶3

CORAM

¶4

THE HONOURABLE MR.JUSTICE C.S.KARNAN

¶5

C.M.A.No.1507 of 2004 &

¶6

C.M.P.No.7928 of 2004

¶7

Oriental Insurance Company Limited, Divisional Manager, Vellore. ... Appellant / 2nd Respondent. Vs.

¶8

1.Arunachalam 2.Sundaramurthy ... Respondents /Petitioners and 1st Respondent.

¶9

PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the judgment and decree passed in M.C.O.P.No.124 of 2000, dated 03.04.2003, on the file of the Motor Accidents Claims Tribunal, Subordinate Judge, Cheyyar, Thiruvannamalai District.

¶10

For Appellant : Mr.J.Chandran For Respondents : Mr.S.Sounthar for R-1 R-2 (served)

¶11

The appellant / second respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.124 of 2000, on the file of the Motor Accidents Claims Tribunal, Subordinate Judge, Cheyyar, Thiruvannamalai District.

¶12

The short facts of the case are as follows:-

¶13

The petitioner has filed the claim in M.C.O.P.No.124 of 2000, claiming compensation of a sum of Rs.3,00,000/- from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that on 30.10.2000, at about 12.30 p.m., when the petitioner was riding his bicycle on the extreme left of the Thirumanjana Gopuram Street, Thiruvannamalai Town, the first respondent's hero honda motorcycle bearing registration No.TN-25-B0223, coming on the same road and driven in a rash and negligent

¶14

https://hcservices.ecourts.gov.in/hcservices/

¶15

manner by its rider dashed against the petitioner. As a result, the petitioner sustained fracture of his right wrist and was admitted at Thiruvannamalai Government Hospital initially and subsequently received treatment at a private hospital. Due to disability sustained in the accident, he is not able to do his work as before. Hence, the petitioner has filed the claim against the first and second respondents, who are the owner and insurer of the hero honda motorcycle.

¶16

The second respondent, in his counter has submitted that the first respondent's motorcycle was not insured with this respondent at the time of accident. It was submitted that the petitioner has to prove his age, income, occupation, nature of injuries sustained, manner of accident, disability and also prove that the driver of the first respondent's motorcycle had a valid driving licence through documentary evidence. It was submitted that the claim was excessive.

¶17

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

¶18

"(i) Was the accident caused by the rash and negligent driving by the rider of the first respondent's motorcycle?

¶19

(ii) Are the respondents liable to pay compensation to the petitioner? If so, what is the quantum of compensation payable to the petitioner?"

¶20

On the petitioner's side, two witnesses were examined and 14 documents were marked as Exs.P1 to P14, viz., Ex.P1-copy of F.I.R., Ex.P2-wound certificate, Ex.P3-Motor Vehicle Inspector's Report, Ex.P4-medical chits, (three in numbers), Ex.P5Physiotherapy bill, Ex.P6-medical receipts, Ex.P7-X-ray, Ex.P8copy of R.C. of Senthil Agro Service, Ex.P9-certificate showing payment of sales tax, Ex.P10-certificate showing training undergone at Agro Service, Ex.P11-tax receipt for vehicle bearing registration No.TN-25-A-8575, Ex.P12-Tax receipt for vehicle bearing registration No.TAT-4888, Ex.P13-tax receipt for vehicle bearing registration No.TN-25-B-0061 and Ex.P14-disability certificate.

¶21

P.W.1, the petitioner had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident and in support of his evidence, he had marked Exs.P1 to P14. On scrutiny of Ex.P1, it is seen that the F.I.R. has been registered against the first respondent. The Tribunal, on scrutiny of evidence of P.W.1 and Ex.P1 and on observing that no evidence had been let in on the respondent's side to rebut the claim of P.W.1 regarding manner of accident, held that the accident had been

¶22

https://hcservices.ecourts.gov.in/hcservices/

¶23

caused by the rash and negligent driving of the motorcycle by the first respondent and hence, held the respondents jointly and severally liable to pay the compensation to the petitioner.

¶24

P.W.1 had further adduced evidence that due to the accident, he had sustained fracture of his right wrist bone and that he had received treatment initially at Nagariputhur and subsequently received treatment at Thiruvannamalai Government General Hospital. He deposed that he was aged 52 years and was an industrialist and earning Rs.25,000/- per month and due to the disability sustained by him, he is not able to do his work as before. He deposed that he had also received Physiotherapy treatment for 1 1/2 months. He further deposed that he is running an agro-manufacturing unit and is also the owner of two lorries.

¶25

P.W.2, doctor had also adduced evidence on similar lines of P.W.1 regarding nature of injuries sustained and mode of treatment and certified that the petitioner had sustained 30% disability. The Tribunal, on observing that no income tax returns had been filed by the petitioner to prove his income, held that the notional income of the petitioner could only be taken as Rs.5,000/per month. The Tribunal, on scrutiny of oral and documentary evidence, awarded a sum of Rs.8,000/- for medical expenses and transport. The Tribunal, on observing that the petitioner was aged 52 years, adopted a multiplier of '10', and awarded a sum of Rs.1,80,000/- as compensation for loss of earning capacity (Rs.5000 x 12 x 10 x 30/100); Rs.70,000/- was awarded for disability and Rs.12,000/- for pain and suffering. In total, the Tribunal awarded a sum of Rs.2,70,000/- as compensation to the petitioner and directed the respondents to jointly or severally deposit the said sum together with interest at the rate of 9% per annum from the date of filing the claim till date of payment of compensation, with costs, within two months from the date of its order.

¶26

Aggrieved by the award passed by the Tribunal, the second respondent / Oriental Insurance Company Limited, Vellore has preferred the present appeal.

¶27

The learned counsel for the appellant has contended in his appeal that the Tribunal failed to consider the delay in lodging the F.I.R. on 06.11.2000 for the occurrence on 30.10.2000. It was also contended that the Tribunal erred in accepting the evidence of R.W.2, who had assessed the disability at 30% as per Ex.P14, for a simple fracture of wrist bone. It was also contended that the Tribunal after observing that the income tax returns of the claimant had not been marked to prove his income, erred in fixing the income of the claimant at Rs.5,000/- per month and awarded a sum of Rs.1,80,000/- for loss of income, without any basis. It was also contended that the Tribunal erred in holding that the claimant was the owner of two lorries since only the tax

¶28

https://hcservices.ecourts.gov.in/hcservices/

¶29

receipts was marked as Exs.P11, P12 and P13 and neither the original registration certificates nor permits were marked to prove the ownership. It was also contended that the award of Rs.70,000/for disability was also excessive. Hence, it was prayed to setaside the award passed by the Tribunal.

¶30

The very competent counsel, Mr.S.Sounthar, appearing for the claimant submits that the rider of the motorcycle had ridden his motorcycle in a rash and negligent manner and dashed against the claimant, who was proceeding on his bicycle. Hence, a criminal case had been levelled against the rider of the motorcycle and the said motorcycle had been insured with the appellant herein. The claimant had sustained multiple bone fracture injuries and the doctor had assessed the disability at 30%. The learned counsel has further submits that after considering the medical evidence, the Tribunal had granted compensation in an appropriate manner.

¶31

On considering 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 negligence and liability. However, the quantum of compensation is on the higher side. Hence, this Court reassesses the compensation as follows:-

¶32

Rs.60,000/- is awarded for disability; Rs.15,000/- for pain and suffering; Rs.10,000/- for transport; Rs.10,000/- for nutrition; Rs.10,000/- for attender charges; Rs.30,000/- for medical expenses; Rs.15,000/- for loss of earning during medical treatment period and Rs.50,000/- for loss of amenities and loss of comfort since the claimant had sustained bone fracture injuries on his right wrist, which is permanent in nature. In total, this Court awards Rs.2,00,000/- as compensation, as it is found to be appropriate in the instant case. As such, this Court scales down the compensation from Rs.2,70,000/- to Rs.2,00,000/-. The rate of interest fixed by the Tribunal is unaltered.

¶33

On scrutiny of Court records, it is seen that the entire compensation amount with interest, awarded by the Tribunal, had been deposited by the appellant / Insurance Company. Now, the claimant is at liberty to withdraw the compensation amount, with interest, as per this Court's modified order, lying in the credit of M.C.O.P.No.124 of 2000, on the file of the Motor Accidents Claims Tribunal, Subordinate Judge, Cheyyar, Thiruvannamalai District, after filing a Memo, along with a copy of this order, subject to deduction of withdrawals made, as per this Court's earlier order dated 30.04.2004. Likewise, the Insurance Company is at liberty to withdraw the excess compensation amount, with added interest thereon, lying in the credit of M.C.O.P.No.124 of 2000, on the file of the Motor Accidents Claims Tribunal, Subordinate Judge,

¶34

https://hcservices.ecourts.gov.in/hcservices/

¶35

Cheyyar, Thiruvannamalai District, after filing a Memo.

¶36

In the result, the above appeal is partly allowed. Consequently, the order and decree passed in M.C.O.P.No.124 of 2000, on the file of the Motor Accidents Claims Tribunal, Subordinate Judge, Cheyyar, Thiruvannamalai District, dated 03.04.2003, is modified. There is no order as to costs. Consequently, connected miscellaneous petition is closed.

¶37

Sd/Asst. Registrar[cs.ii] Dt/-13/05/2014 /true copy/ Sub Asst. Registrar. r n s To The Subordinate Judge, Motor Accidents Claims Tribunal, Cheyyar, Thiruvannamalai District. Copy To: The Section Officer, VR Section, High Court, Madras. 1 CC To Mr.J.Chandran, Advocate SR NO.34198 1 CC To Mr.S.Sounthar, Advocate SR NO.34251 C.M.A.No.1507 of 2004 SAI[co] gp/26.5.

¶38

https://hcservices.ecourts.gov.in/hcservices/

Oriental Ins.Co.Ltd., v. Arunachalam

Case brief

What is this about?

What did the court decide?

Oriental Ins.Co.Ltd., v. Arunachalam

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Pasooran Vs T.S.Indirani Ammal

The Divisional Manager, Vs Arumugam

The Divisional Manager, Vs Minor Tamail Arasi

The Branch Manager Vs Mangammal

P.Ayyasamy Vs a.Arunachalam

Arumugam Vs the Managing Director