Partly allowed

The Manager v. P.S.Charless

Madras HC22 Jul 2013CMA/3692/2008

Case brief

AI extract

What is this about?

In a civil miscellaneous appeal, the High Court of Judicature at Madras reassessed compensation awarded in a motor accident case. The court held the tribunal's award on higher side and recalculated specific heads of loss, reducing the total compensation from Rs.4,63,000 to Rs.3,00,000.

What did the court decide?

The award and decree of the Motor Accident Claims Tribunal were modified; the compensation award was reduced to Rs.3,00,000.

The Manager Vs P.S.Charless — Motor Accident Claims | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 22.07.2013

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CORAM

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THE HON'BLE MR.JUSTICE C.S.KARNAN

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The Manager, National Insurance Co. Ltd., 751, Anna Salai, Chennai. ...Appellant

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Vs 1.P.S.Charless 2.Mohamed Sardar ...Respondents

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Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the award and decree dated 27.04.2005 made in M.C.O.P.No.775 of 2003 on the file of the Motor Accident Claims Tribunal, Subordinate Court, Tiruvallur.

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For Appellant : Mr.S.Arunkumar For Respondents: Mr.R.Neelakandan (for R1) R2 – Not ready Notice

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JUDGMENT

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The appellant / 2^nd respondent has preferred the present appeal in C.M.A.No.3692 of 2008, against the award and decree passed in M.C.O.P.No.775 of 2003, on the file of the Motor Accident Claims Tribunal / Subordinate Court, Tiruvallur.

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2.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.775 of 2003, claiming compensation of a sum of Rs.5,00,000/- from the respondents for the injuries sustained by him in a Motor Vehicle Accident. It was submitted that on 08.03.2003, at about 9.30 a.m., when the petitioner was proceeding in a bus on the M.T.H. Road near Veppampattu, the 1^st respondent's lorry bearing Registration No.AP-02T-6679, driven in a rash and negligent manner, dashed against the bus. As a result, the petitioner sustained injuries. Hence, he has filed the claim against the 1^st and 2^nd respondents, who are the owner and insurer of the lorry.

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

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3.The 2^nd respondent, in his counter has denied the averments in

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the claim regarding age, income, occupation of the petitioner, nature of injuries sustained, medical treatment taken and disability. It was submitted that the petitioner has to prove that the 1^st respondent's vehicle driver had a valid driving licence and that the lorry was insured with this respondent at the time of accident through documentary evidence. The averments in the claim that the accident was caused due to negligence of the 1^st respondent's lorry driver was also not admitted.

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4.The Motor Accident Claims Tribunal framed two issues for consideration in the case namely (1) Due to whose negligence was the accident caused? and (2) What is the quantum of compensation which the petitioner is entitled to get?

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5.On the petitioner's side, three witnesses were examined and 9 documents were marked as Exhibits P1 to P9 namely Ex.P1-Copy of F.I.R.; Ex.P2-Motor Vehicle Inspector's report; Ex.P3-Copy of charge sheet; Ex.P4-Copy of criminal court judgment; Ex.P5-Discharge summary; Ex.P6-Medical treatment records; Ex.P7-Report; Ex.P8Disability certificate and Ex.P9-Salary certificate. On the respondents' side, no witness, no documents.

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6.PW1, 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 P4. The Tribunal, on scrutiny of Exs.P1 and P3 observed that the F.I.R. had been registered against the 1^st respondent's driver and the police, after investigation have filed the charge sheet against him. On scrutiny of Ex.P4, it is seen that the driver of the 1^st respondent's lorry had admitted his guilt and paid the fine before the criminal court. Hence, the Tribunal, on scrutiny of evidence of PW1 and Exs.P1 to P4 and on observing that no evidence had been let in on the respondents' side to rebut the claim of PW1 regarding manner of accident held that the accident had been caused by the rash and negligent driving by the driver of the 1^st respondent's vehicle liable to pay compensation to the petitioner.

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7.PW1 had further adduced evidence that he was aged 34 years and was working as a mechanic in a tailoring shop and earning Rs.4,000/per month. He deposed that due to the accident, his right hand joint had been fractured and that he received initial treatment at Tiruvallur Government Hospital and subsequently at Chennai Government General Hospital, as an inpatient for 7 days and in support of his evidence, he had marked Exs.P5 and P6.

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8.PW2, Dr.Thyagarajan had adduced evidence that the fractured bone in the petitioner's right fore arm joint had malunited and that the petitioner is unable to stretch or bend his right arm and that he is unable to use this hand for eating. He deposed that as the flesh in his right arm had rendered and that his right wrist movements had been restricted to 5° and certified that the petitioner had sustained 65% disability and in support of his evidence, he had marked Exs.P7 and P8.

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9.PW3, Prem Amirtharaj had adduced evidence that the petitioner was working in his firm as a machine mechanic and earning Rs.4,000/-

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per month and that Ex.P9 is the salary certificate issued by their firm. The Tribunal, on scrutiny of oral and documentary evidence awarded a sum of Rs.48,000/- for loss of income for one year during medical treatment period (4,000X12); Rs.5,000/- was awarded for transport expenses; Rs.5,000/- for nutrition; Rs.40,000/- was awarded for pain and suffering; Rs.65,000/- for disability; Rs.3,00,000/- was awarded for loss of earning capacity due to disability. In total, the Tribunal awarded a sum of Rs.4,63,000/- as compensation to the petitioner and directed the 2^nd respondent 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 a period of four weeks from the date of its order.

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10.Aggrieved by the award passed by the Tribunal, the 2^nd respondent / National Insurance Company Limited, Chennai, has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Tribunal failed to note that the assessment of PW2 is not in accordance with the judgment reported in 1999 (8) Supreme 401 and 2003 LW 81 and as such erred in relying on the exaggerated assessment of 65% disability to award a sum of Rs.3,00,000/- for loss of earning power. It was also contended that the award passed under the heads of loss of income, pain and suffering and disability was on the higher side and hence it was prayed to set aside the award passed by the Tribunal.

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11.The very competent counsel Mr.R.Neelakandan submits that the accident had been committed by the driver of the lorry and hence the F.I.R. has been registered against him. The said lorry had been insured with the Insurance company. The claimant had sustained 65% disability. As per Doctor's evidence, the claimant had sustained multiple bone fracture injuries on his right hand. As such, the Tribunal had granted compensation which is reasonable and found to be suitable for execution against the Insurance company.

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12.On considering the factual position of the case and arguments advanced by the learned counsel 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 liability. However, the quantum of compensation awarded is on the higher side. Since, the Tribunal had adopted multiplier method to grant compensation under the head of disability, which is not pertinent in the instant case. Hence, this Court reassess the compensation as follows:-

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Rs.65,000/- is awarded for disability; Rs.15,000/- for pain and suffering; Rs.10,000/- towards transport; Rs.10,000/- towards nutrition; Rs.10,000/- towards attender charges; Rs.25,000/- towards loss of earning during medical treatment period; Rs.65,000/- for medical expenses and Rs.1,00,000/- for loss of amenities and loss of comfort. In total, this Court awards Rs.3,00,000/- as compensation to the claimant. The rate of interest fixed by the Tribunal is unaltered. It is seen from the Court records that the appellant had deposited a sum of Rs.3,50,000/- with proportionate interest thereon and the claimant was permitted to withdraw a portion of the deposited https://hcservices.ecourts.gov.in/hcservices/ amount. Likewise the appellant is permitted to withdraw Rs.50,000/with accrued interest thereon, after filing a memo before the trial Court.

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13.Now, the claimant is at liberty to withdraw the balance compensation amount, with added interest thereon, as per this Court's findings, after deducting earlier withdrawals made by the claimant, lying in the credit of M.C.O.P.No.775 of 2003 on the file of the Motor Accident Claims Tribunal, Subordinate Court, Tiruvallur, after filing a memo, along with a copy of this order.

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14.In the result, the above Civil Miscellaneous Appeal is partly allowed. Consequently, the award and decree, passed in M.C.O.P.No.775 of 2003, dated 27.04.2005, on the file of the Motor Accident Claims Tribunal, Subordinate Court, Tiruvallur, is modified. No costs. Consequently, connected miscellaneous petition is closed. Sd/Assistant Registrar(CS-IV) Dated: 18.06.2014 //True Copy// Sub Assistant Registrar To The Motor Accident Claims Tribunal, Subordinate Court, Tiruvallur. 1 CC to Mr.S.Arunkumar, Advocate SR.No.37958 1 CC to Mr.R.Neelakandan, Advocate SR.No.37237 C.M.A.No.3692 of 2008 and M.P.No.1 of 2008 RSK(CO) JJM (19.06.2014)

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The Manager v. P.S.Charless

Case brief

What is this about?

What did the court decide?

The Manager v. P.S.Charless

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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