Partly allowed

The National Ins.Co.Ltd., v. Saiman

Madras HC12 Jul 2013CMA/2454/2004

Case brief

AI extract

What is this about?

This Court set aside the appeal filed by the insurance company against the Motor Accidents Claims Tribunal award. Observing the quantum of compensation was higher than appropriate, the Court re-assessed and reduced the total compensation, declaring the appeal partly allowed and the Tribunal order modified.

What did the court decide?

Modifying the previous Tribunal award, scaling down the total compensation to Rs.2,40,000/- with interest, and transferring the balance to the claimant.

The National Ins.Co.Ltd., Vs Saiman — Motor Accident Claims | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 12.07.2013

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CORAM

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THE HONOURABLE MR.JUSTICE C.S.KARNAN

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C.M.A.No.2454 of 2004 & C.M.P.No.14479 of 2004

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The National Insurance Company Limited, Pondicherry. ...

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... Appellant/2nd Respondent

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Vs. 1.Saiman 2.R.S.Sundaram ... Respondents/Petitioners

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PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the award and decree dated 08.11.2001 made in O.P.No.1154 of 1999, on the file of the Motor Accidents Claims Tribunal, Principal Sub-Judge, Cuddalore.

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For Appellant : Mr.S.Arun Kumar For Respondents : R-1 (dismissed) R-2 (served)

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J U D G M E N T

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The appellant / second respondent has preferred the present appeal against the judgment and decree passed in O.P.No.1154 of 1999, on the file of the Motor Accidents Claims Tribunal, Principal Sub-Judge, Cuddalore.

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The short facts of the case are as follows:-

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The petitioner has filed the claim in M.C.O.P.No.1154 of 1999, claiming compensation of a sum of Rs.10,00,000/- from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that on 24.03.1999, at about 4.45 p.m., when the petitioner was standing at the Cuddalore Post Office bus stop, in order to board a bus to go to Panruti, the first respondent's ambassador car bearing registration No.TN-31-8686, coming from behind the petitioner and driven in a rash and negligent manner dashed against him. As a result, the petitioner sustained grievous injuries and was admitted at Cuddalore Government Hospital initially and subsequently took treatment at Chennai Government General Hospital and at other private hospitals. At the time of accident, the petitioner was aged 28 years and was working as an Electrician and as a plumber and earning Rs.3,500/per month. Due to the disability sustained in the accident, he is not able to do his work as before. Hence, the petitioner has filed https://hcservices.ecourts.gov.in/hcservices/ the claim against the first and second respondents, who are the

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owner and insurer of the car.

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The second respondent, in his counter has denied the averments in the claim that the first respondent's car had been insured with this respondent and that it was covered under a valid R.C. and F.C. and that the driver of the car had a valid driving licence to drive it at the time of accident. It was submitted that the F.I.R. has been registered after a delay of two months, and that the car had not been sent for inspection at the Motor Vehicle Inspector's Officer. The averments in the claim regarding age, income and occupation of the petitioner, period of treatment and disability was not admitted. It was submitted that the vehicle involved in the accident was not owned by the first respondent. It was submitted that the claim was excessive.

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

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

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(ii) Is the petitioner entitled to get compensation from the respondents? If so, what is the quantum of compensation which he is entitled to get?"

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On the petitioner's side, two witnesses were examined and 10 documents were marked as Exs.P1 to P10, viz. Ex.P1-copy of F.I.R., Ex.P2-copy of Motor Vehicle Inspector's Report, Ex.P3-copy of driving licence, Ex.P4-copy of R.C., Ex.P5-copy of policy, Ex.P6-wound certificate, Exs.P7 and P8-X-rays, Ex.P9-disability certificate and Ex.P10-receipt showing payment of fine of Rs.1,000/- at the criminal Court. On the respondent's side, one witness was examined and one document, viz., copy of investigation report was marked as Ex.R1.

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P.W.1, the petitioner had adduced evidence that 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 P6. R.W.1.,Thirumavalavan, the investigator of the second respondent's firm had adduced evidence that the alleged accident had occurred on 18.05.1999 and that he had enquired the police and the first respondent, on being enquired, had denied the involvement of his vehicle in the accident and that no documentary evidence was available to show that the petitioner had received treatment at Cuddalore Government Hospital, on the alleged date of accident. He deposed that no such accident, as alleged in the claim had occurred and in support of his evidence, he had marked Ex.R1.

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The Tribunal, on scrutiny of Exs.P1 and P2 observed that the F.I.R. had been registered against the first respondent's car driver and that the motor vehicle inspector had also reported that the accident was not caused due to any mechanism failure of the car. On scrutiny of Ex.P6, it is seen that the driver of the car had admitted his guilt and paid the fine of Rs.1,000/- before the criminal Court. Hence, the Tribunal, on scrutiny of oral and https://hcservices.ecourts.gov.in/hcservices/ documentary evidence, held that the accident had been caused by the

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rash and negligent driving by the driver of the first respondent's car.

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P.W.1 had further adduced evidence that due to the accident, he had sustained injuries on his neck and right leg and that he had initially taken treatment at Cuddalore Government Hospital and subsequently at Chennai Government Hospital. P.W.2, Dr.Raja had adduced evidence that on scrutiny of Ex.P6, he had observed that the petitioner had sustained injuries on his shoulder and right leg knee and that on taking X-rays, he had observed that C5 and C6 bone in his spinal cord had been fractured and displaced and that he had also sustained injuries in his hands and that the strength of his left hand had been reduced by 20%. He certified that the petitioner had sustained 40% disability and in support of his evidence, he had marked Ex.P9.

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The Tribunal, on observing that the age of the petitioner was 28 years and on taking his notional monthly income as Rs.2,000/- and on adopting a multiplier of '18', awarded a sum of Rs.1,72,800/- as compensation for loss of earning due to disability (Rs.2,000 x 12 x 18 x 40/100); Rs.20,000/- was awarded for medical expenses, future medical expenses and loss of income during medical treatment period and Rs.1,10,000/- was awarded for pain and suffering, injuries and mental agony. In total, the Tribunal awarded a sum of Rs.3,02,800/- as compensation to the petitioner and directed the second respondent, being the insurer of first respondent's car, to pay 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.

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

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The learned counsel for the appellant has contended in his appeal that the Tribunal erred in relying upon the exaggerated assessment of P.W.2, Dr.Raja while assessing the compensation for disability. It was also contended that the Tribunal erred in taking the income of the claimant as Rs.2,000/per month in the absence of proof for employment and income. It was contended that the Tribunal erred in passing award of Rs.1,72,800/for loss of income in spite of the fact that the first respondent had failed to prove the loss of his earning power. It was also contended that the award passed for pain and suffering is also excessive and hence, it was prayed to set-aside the award passed by the Tribunal.

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Even though this Court's notice was served on the claimant, no one had appeared. Hence, this Court is constrained to pass final order on the basis of available records.

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On considering the facts and circumstances of the https://hcservices.ecourts.gov.in/hcservices/ case and arguments advanced by the learned counsel for the

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Insurance Company 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, since the Tribunal had adopted multiplier method and assessed the compensation for loss of income due to disability, which is not appropriate in the instant case. Hence, this Court reassesses the compensation as follows:-

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Rs.80,000/- is awarded for disability; Rs.15,000/towards pain and suffering; Rs.10,000/- towards transport; Rs.10,000/- towards nutrition; Rs.15,000/- towards attender charges; Rs.10,000/- towards medical expenses and Rs.1,00,000/towards loss of amenities and loss of comfort since as per medical evidence, the claimant's 5th and 6th spinal cord bones had been fractured and displaced. In total, this Court awards Rs.2,40,000/as compensation. As such, this Court scales down the compensation from Rs.3,02,800/- to Rs.2,40,000/-. The rate of interest fixed by the Tribunal remains unaltered.

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As per Court records, it is seen that the entire compensation amount awarded by the Tribunal had been deposited. Now, it is open to the claimant to withdraw this Court's modified compensation amount of a sum of Rs.2,40,000/- with proportionate interest thereon, lying in the credit of M.C.O.P.No.1154 of 1999, on the file of the Motor Accidents Claims Tribunal, Principal SubJudge, Cuddalore, after filing a Memo, along with a copy of this order. Likewise, the appellant / National Insurance Company Limited is at liberty to withdraw the excess compensation amount, with added interest thereon, after filing a Memo.

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In the result, the above appeal is partly allowed. Consequently, the order and decree passed in M.C.O.P.No.1154 of 1999, on the file of the Motor Accidents Claims Tribunal, Principal Sub-Judge, Cuddalore, dated 08.11.2001 is modified. There is no order as to costs. Consequently, connected miscellaneous petition is closed.

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Sd/Assistant Registrar(CS-V) Dated: 10.06.2014

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//True Copy//

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Sub Assistant Registrar

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1.The Motor Accidents Claims Tribunal, Principal Sub-Judge, Cuddalore.

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2.The Section Officer, VR Section, High Court, Madras.

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1 CC to Mr.S.Arun Kumar, Advocate SR.No.35432

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C.M.A.No.2454 of 2004 & C.M.P.No.14479 of 2004

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TEJ(CO) https://hcservices.ecourts.gov.in/hcservices/ JJM (10.06.2014)

The National Ins.Co.Ltd., v. Saiman

Case brief

What is this about?

What did the court decide?

The National Ins.Co.Ltd., v. Saiman

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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