The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 28.01.2005, made in M.C.O.P.No.1303 of 2003, on the file of the Motor Accident Claims Tribunal, Second Additional District Court, Pondicherry, awarding a compensation of Rs.1,70,628/- together with 9% interest per annum, from the date of filing the claim petition till the date of payment of compensation.
2.Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal.
3.The short facts of the case are as follows:
On 02.10.2003, at about 14.00 hours, the petitioner was riding his TVS50 motorcycle bearing registration No.PY01 L8688, on the extreme left side of the Pondy Villianur main road. When he was nearing opposite to Udhayam Maligai Store, Arumparthapuram, the Hero Honda Splendor motorcycle bearing registration No.PY01 U7488, belonging to the first respondent and insured with the second respondent, driven by its rider at a heavy speed and in a rash and negligent manner, came behind the petitioner and hit the motorcycle of the petitioner. Due to which, the petitioner was thrown away from the motorcycle and he had sustained multiple injuries all over his body with fracture of left hand. Immediately, he was taken to PHC Villianur and thereafter he was admitted in G.H.Pondicherry on 02.10.2003 and then discharged with advice to take regular treatment. At the time of the accident, the petitioner was a Peon in Education Department, Chief Secretariat, Pondicherry and was earning a sum of Rs.2,000/- per month and supporting his family. The said accident had happened only due to the rash and negligent driving of the rider of the first respondent's vehicle. Therefore, the first and second respondents are liable to pay compensation to the petitioner. As such, the petitioner claimed a compensation of Rs.2,00,000/- before the Tribunal.
4.The second respondent/United India Insurance Co., Ltd., in their Counter, had resisted the claim petition that the accident did not occur due to the rash and negligent driving of the Hero Honda Splendor motorcycle belonging to the first respondent by its rider as stated in the claim petition. The petitioner has to prove the nature of injury sustained by him in the accident apart from proving his age, occupation and income. The petitioner also has to prove that the rider of the Hero Honda Splendor motor cycle was having valid driving licence and that the said vehicle was covered by proper documents as contemplated under the Motor Vehicles Act at the time of the accident. The petitioner is not entitled to any compensation. However, the compensation claimed by the petitioner is on higher side. Accordingly, the second respondent prayed for the dismissal of the petition.
5.The learned Motor Accident Claims Tribunal had framed three issues for the consideration namely:
(i) Whether the accident had occurred due to the rash and negligent riding of the Hero Honda Splendor Motorcycle bearing registration No.PY01 U7488 belonging to the first respondent by its rider or due to the negligent riding of the petitioner?
(ii) Whether the rider of the Hero Honda Splendor motorcycle belonging to R1 was having valid driving licence and that the said vehicle was covered by proper documents as contemplated under the MV Act at the time of accident?
(iii)What was the nature of injury sustained by the petitioner and what should be the quantum of compensation and by who it is payable?
6.On the petitioner's side, the petitioner was examined as PW1, one Dr.R.V.Krishnakumar was examined as PW2 and sixteen documents were marked as Exs.A1 to A16 namely Ex.A1-Photocopy of the FIR No.179/2003 of Reddiarpalayam Police Station, Ex.A2-Photocopy of the Accident Inspection Report relating to R1 vehicle, Ex.A3-Photo copy of Insurance Certificate issued by R2 in favour of the R1 vehicle, Ex.A4-OPD Slip issued by PHC Villianur, Pondicherry, Ex.A5-OPD Slip issued by G.H. Pondicherry, Ex.A6-Photocopy of the Wound Certificate issued by G.H.Pondicherry, Ex.A7-Photocopy of driving licence of the petitioner, Ex.A8-Photocopy of the driving licence of the rider of the R1's vehicle, Ex.A9-Photocopy of the Registration Certificate of R1's vehicle, Ex.A10-Doctors prescriptions issued to the petitioner, Ex.A11-Medical Bills (4 Nos), Ex.A12-X-ray Bills, Ex.A13-Photocopy of the Final Form, Ex.P14-Service Certificate issued to the petitioner, Ex.A15-Disability Certificate issued by PW2 and Ex.A16-Disability Certificate issued by PW2. On the respondents' side no witnesses were examined and no documents were marked.
7.The PW1, the claimant, had adduced evidence stating that on 02.10.2003, at about 14.00 hours, he was riding his TVS50 motorcycle bearing registration No.PY01 L8688, on the extreme left side of the Pondy Villianur main road. When he was nearing opposite to Udhayam Maligai Store, Arumparthapuram, the Hero Honda Splendor motorcycle bearing registration No.PY01 U7488, belonging to the first respondent and insured with the second respondent, driven by its rider at a heavy speed and in a rash and negligent manner, came behind him and hit the motorcycle. Due to which, he was thrown away from the motorcycle and had sustained multiple injuries all over his body with fracture of left hand. Immediately, he was taken to PHC Villianur and thereafter he was admitted to G.H.Pondicherry on 02.10.2003 and then discharged with advice to take regular treatment. He had also marked Ex.A1-First Information Report and Ex.A2-Motor Vehicle Inspector's Report and Ex.A7-Driving Licence. Further, he had adduced evidence stating that at the time of the accident, he was aged 35 years and working as a Peon in Education Department, Chief Secretariat, Pondicherry and was earning a sum of Rs.2,000/- per month and supporting his family.
8.PW2, Dr.R.V.Krishna Kumar had adduced evidence stating that the petitioner due to the said accident had sustained abrasion over left elbow and right knee and swelling and tenderness over left wrist joint. After examined the petitioner, he had assessed the disability as 32% sustained by the petitioner, by taking into account that minimally malunited fracture of lower end of bronchus left with post traumatic arthritis of left wrist and restriction of movements of left wrist and restriction of pronation and sufination of left FA.
9.After considering the evidence of the PW1 and PW2 and the documents, which were marked as exhibits, the learned Tribunal had come to the conclusion that the accident had occurred only due to the rash and negligent driving of the rider of the first respondent's vehicle, therefore the first and second respondents are liable to pay compensation to the petitioner and awarded the compensation as follows:
i. Rs.1,43,616/- under the head of loss of income due to 32% disability, after deducting the multiplier method, ii. Rs.5,000/- under the head of pain and suffering, iii. Rs.10,000/- under the head of mental agony, iv. Rs.10,000/- under the head of nutrition, v. Rs.2,012/- under the head of medical expenses, In total, the Tribunal awarded a sum of Rs.1,70,628/- as compensation to the petitioner, together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation. Further, the Tribunal directed the respondents to deposit the compensation amount of Rs.1,70,628/- together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation. In turn, the said amount to be deposited, under a fixed deposit scheme, in Union Bank of India, Pondicherry for a period three years and the petitioner was permitted to withdraw the interest once in three months. Accordingly ordered.
10.Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal.
11.The learned counsel appearing for the appellant/Insurance Company argued that the award amount of Rs.1,70,628/- is on higher side. Further, the learned counsel argued that the Tribunal adopted multiplier method and awarded compensation under the head of loss of income is not pertaining to the instant case. Further, the learned counsel argued that the PW2 assessed the disability as 32%, the same is on higher side, considering the nature of injuries and mode of treatment. As such, the learned counsel prays before this Court to scale down the compensation amount passed by the Tribunal.
12.The learned counsel appearing for the first respondent/claimant argued that the claimant sustained bone fracture injuries, which is grievous in nature. Considering the aspect, the Tribunal adopted multiplier method and the same is pertinent in this case. The age of the claimant and the salary was properly calculated by the Tribunal. As such, the Tribunal awarded a sum of Rs.1,43,616/- under the head of loss of income is fair and equitable and the other heads have also been considered by the Tribunal, therefore there is no discrepancy in the award and decree passed by the Tribunal and the rate of interest is also proper in the relevant period. As such, the learned counsel prays before this Court to dismiss the appeal filed by the appellant.
13.Considering the facts and circumstances of the case, the arguments advanced by the learned counsel appearing on either side and the award and decree passed by the Tribunal, this Court is of the view that the quantum of compensation passed by the Tribunal is on higher side. Hence, this Court decided to scale down the compensation as follows:
i. The Tribunal awarded a sum of Rs.1,43,616/- under the head of loss of income due to the 32% disability, this Court reduces it to Rs.64,000/- as it is pertinent, ii. The Tribunal awarded a sum of Rs.Rs.5,000/- under the head of pain and suffering, this Court enhances it to Rs.15,000 as it is pertinent, iii. This Court awards a sum of Rs.5,000/- under the head of transport expenses, iv. The Tribunal awarded a sum of Rs.10,000/- under the head of nutrition, this Court confirms the same as it is pertinent, v. This Court awards a sum of Rs.6,600/- under the head of loss of income during the medical treatment period as it is pertinent, vi The Tribunal awarded a sum of Rs.2,012/- under the head of medical expenses, this Court confirms the same as it is pertinent, vii. This Court awards a sum of Rs.10,000/- under the head of loss of future earning capacity, In total, this Court awards a compensation of Rs.1,12,612/- together with interest at the rate of 9% per annum, from the date of filing the claim petition, till the date of payment of compensation. Therefore, this Court hereby reduces the Tribunal compensation amount of Rs.1,70,628/- to Rs.1,12,612/-, which is fair and equitable.
14.On 26.09.2005, this Court imposed a condition on the appellant to deposit 50% of the compensation amount with accrued interest thereon, into the credit of the M.C.O.P.No.1303 of 2003, on the file of the Motor Accident Claims Tribunal, Second Additional District Court, Pondicherry. Further, on 31.08.2006, this Court permitted the claimant to withdraw 50% of the deposited amount with accrued interest thereon, lying in the credit of the M.C.O.P.No.1303 of 2003, on the file of the Motor Accident Claims Tribunal, Second Additional District Court, Pondicherry.
15.Now this Court directs the appellant/Insurance Company to deposit the remaining compensation with accrued interest thereon, as per the findings of this Court, into the credit of the M.C.O.P.No.1303 of 2003, on the file of the Motor Accident Claims Tribunal, Second Additional District Court, Pondicherry, within a period of six weeks from the date of receipt of a copy of this Order.
16.After such deposit being made, it is open to the first respondent/claimant to withdraw the remaining compensation amount, awarded by this Court, with accrued interest thereon and costs, lying in the credit of the M.C.O.P.No.1303 of 2003, on the file of the Motor Accident Claims Tribunal, Second Additional District Court, Pondicherry, by making proper payment out application, subject to the deduction of earlier withdrawals, if any, in accordance with law.
17.In the result, this Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 28.01.2005, made in M.C.O.P.No.1303 of 2003, passed by the Motor Accident Claims Tribunal, Second Additional District Court, Pondicherry is modified. No costs.
17.09.2010 Index: Yes/No Internet: Yes/No krk To
1.The Motor Accident Claims Tribunal, Second Additional District Court, Pondicherry.
2. The Section Officer, VR Section, High Court, Madras.
C.S.KARNAN, J.
krk C.M.A.No.2988 of 2005 17.09.2010