The appellant/second respondent has filed the civil miscellaneous appeal No.718 of 2005 against the decree and judgment passed by the Motor Accidents Claims Tribunal (Additional District Court, Fast Track Court No.2 at Cuddalore) in MCOP No.225 of 2004 dated 12.10.2004 awarding a total compensation of Rs.7,88,000/- together with interest at the rate of 9% per annum from the date of filing the claim petition till date of payment of compensation.
2. The short facts of the case are as follows;
The petitioner, Kumanan, S/o. Ramalingam, was travelling in the Suzuki Motor cycle bearing registration No.PY-01-L-2535 from Cuddalore to Periakanganankuppam on 05.06.2001. A Hero Honda Motor Cycle, bearing registration No. TN-49-A-9301, coming from Pondicherry to Cuddalore, owned by the first respondent, one Velmurugan and driven by him in a rash and negligent manner, hit against the petitioner. In the result, the petitioner sustained grievous injuries on his head, forehead and right leg and all over the body. Immediately, he was admitted in Sri Kannan Hospital, Cuddalore. Subsequently, for further treatment, the petitioner was taken to Chennai and admitted in Malar Hospital, wherein major surgery was done. Thereafter, the petitioner is undergoing treatment regularly. Due to this accident, his right eye vision has been lost, and the total vision power is impaired and as such, he has become permanently disabled.
The petitioner is a Mechanical Engineer and employed in Padhmam Herbal Care (P) Limited, Pondicherry, as a Production Engineer. He was earning Rs.7,500/- per month. Due to this accident, he could not attend to his normal duties and his income has been depleted. He is able to survive and do normal activities, only with the help of others. Hence, the first respondent is liable to pay compensation. His vehicle has been insured with the second respondent, insurance company and so both the respondents are liable to pay compensation. In connection with this accident, the Reddichavadi Police Station registered a criminal case in Crime No.149 of 2001.
3. The petitioner has claimed a compensation of Rs.15,00,000/- under the following heads;
1)Transport to hospital: Rs.5,000
2)Extra nourishment:Rs.50,000
3)Damages to clothing and articles:Rs.15,000/-
4)Medical expenses including treatment:Rs.3,50,000/-
5)Other expenses;Rs.30,000/-
6)For pain and suffering;Rs.50,000/-
7)Compensation for continuing disability:Rs.5,00,000/-
8)Compensation for loss of earning power:Rs.5,00,000/-
4. Challenging the claim petition, the second respondent/the New India assurance company limited has filed counter statement and resisted the claim of the petitioner. In the counter statement, the second respondent narrated that connected O.P.No.202 of 2002 is also filed. The second respondent has alleged that they are entitled to contest the case under
Section 170 of Motor Vehicles Act. The second respondent denied that the vehicle involved in the accident bearing registration No.TN-49-A-9301 Hero Honda Motorcycle is insured with them. The validity of registration certificate and driving licence are also denied. The petitioner has to implead the owner and insurance company of TVS Suzuki Motorcycle, registration No.PY-01-L-2535, which alone is the cause for the accident. The second respondent denied the Status of the petitioner, his age and monthly income. The petitioner's claim are imaginary and highly excessive.
5. In the said claim petition, on the side of the claimant, three witnesses were examined, namely PW1, the claimant herein, PW2, Dr.Chandiran and PW3-Dr.Srikanth. Further, on the side of claim petitioner, 26 documents were marked Ex.P1 to Ex.P26. On the side of the respondents, no one was examined and no document was marked.
6. The Motor Accidents Claims Tribunal, after considering the claim petition and counter statement of the second respondent and evidence of the claimants and documents which were marked on the petitioner's side, had framed two issues namely, 1) On whose negligence, the accident happened? 2) Whether the claimant is entitled to get compensation? If so, what is the quantum of compensation?.
7. Before the Tribunal, at the time of adjudication, the first respondent was called absent and set ex-parte. The claimant was examined as PW1 and he stated that on 05.06.2001, he was traveling on his Motorcycle bearing registration No.PY-01-L-2535, nearing Periyakanangankuppam, the first respondent's vehicle (bearing registration No.TN-49-A-9301) coming from pondicherry to Cuddalore, driven in a Zig Zag manner with high speed, and negligent manner, dashed against the claimant's vehicle. In the result, he sustained grievous injuries all over the body. This happened due to negligence of the first respondent. To prove the occurrence, the claimant marked the document, Ex.P1, i.e. the first information report. The said first information report reveals that the first respondent had driven his vehicle bearing registration No.TN-49-A-9301 with rash and negligent manner, and due to this, the accident had occurred. It was proved that the first respondent had valid registration certificate for his vehicle through the document i.e. Ex.P3. As such, the Motor Accidents Claim Tribunal has come to a conclusion that the accident happened due to the rash and negligent driving of the first respondent. On the side of the second respondent, no one was examined regarding the issue. As such, the second respondent allegation made in the counter statement was not accepted.
8. The Motor Accidents Claim Tribunal then proceeded to determine the liability. The first respondent Motorcycle bearing registration number TN-49-A-9301, has been insured with the second respondent insurance company and this policy was in force on the date of accident i.e. 05.06.2001. As such, the Tribunal has come to a conclusion that the first and second respondents are liable to pay compensation to the claimant.
9. The claimant has deposed in his evidence about his injuries sustained in the said accident. In the said accident, he had sustained injuries on the head and this had resulted in loss of blood through head, ears and nose. Further, he had suffered grievous injuries on his forehead, eyes, head, hands, legs and all over his body. Due to this, the connecting nerves to eyes have been compressed and his eyes have become motionless and that subsequent to this he had been admitted in Kannaki Hospital and because his condition worsened here, he was then admitted to Malar Hospital and remained there for 18 days as inpatient. Here, the petitioner underwent surgery and surgery was done on his brain. Further, the petitioner underwent treatment at Aravind Eye Hospital, Madurai and Raghuram Eye Hospital, Chennai and Sankara Nethralaya Eye Hospital for setting right his vision. But, due to the said accident, the petitioner has completely lost his right eye vision and his left eye vision has also been impaired. Further, he has lost hearing in his right ear. His memory has also become impaired and the petitioner is unable to do normal work also. The petitioner was engaged to be married at the time of accident. Due to the accident, his marriage was stopped and he was further found to have become impotent and unfit for marriage. The petitioner is a diploma holder in Mechanical Engineering and Computer studies and was employed in Padhmam Herbal Care Private Limited as Production Engineer getting a monthly salary of Rs.7,500/-. Due to the accident, he has not been able to do any work and thus, there has been loss of income. For his medical expenses, he has spent Rs.3,00,000/-. Further, he has asked for compensation of Rs.15,00,000/- towards pain and suffering, permanent disability, loss of income and medical expenses. Further, from the wound certificate issued by Kannan Hospital, Cuddalore, where he was admitted initially after the accident, it was found by the Tribunal that the age of the petitioner was 31 as per Ex.P22. From the discharge summary given by Malar Hospital, Chennai, Ex.P2, it was found that the age of the petitioner was 31. As there were no other documents to prove the age of the petitioner, other than those mentioned above, the age of the petitioner was taken as 31, by the Tribunal, based on the above said two documents. Further on perusal of the wound certificate issued by Kannan Hospital i.e. Ex.P22, it was found that there were tear injuries on his head, right side of forehead and further bleeding through his left ear. For further treatment of the above injuries, it was found that the petitioner was sent to Malar Hospital and further the injuries suffered were grievous in nature. Thus, Tribunal can find no reason to ignore the findings contained in document Ex.P22.
10. Further, the Tribunal accepted that the petitioner took treatment, as inpatient, in Malar Hospital, Chennai from 06.06.2001 to 23.06.2001 by verifying document, Ex.P2. In Ex.P2, it has been certified that the petitioner has right temporal and frontal brain contusion. Ex.P2 further reveals that there has been a bone fracture in right side of head and this has affected the brain. Further, on going through Ex.P5 documents, it is found that the petitioner has been subjected to various tests. Ex.P6 reveals the blood test reports. Ex.P7 reveals that the petitioner has taken treatment for injuries in the eyes. Further, Ex.P8 shows that due to injury in brain, the petitioner has been affected in various ways. On inspection of Ex.P9, Ex.P10 and Ex.P11, it is seen that the petitioner has received treatment in Raghuram Eye hospital, Kumbakonam, Aravind Eye Hospital, Madurai and Sankara Nethralaya, Chennai. From Ex.P11, it is seen that the petitioner's right eye has been affected. Considering that the petitioner has suffered grievous injury on his head and consequent damage to his brain and nerves which had resulted in loss of eye sight in his right eye, the Tribunal feels that the permanent disability suffered by the petitioner and consequent pain and suffering cannot be taken lightly.
11. Regarding the injuries and treatment taken by the petitioner, PW2, one Doctor Chandiran was examined. In his proof affidavit, the Doctor has submitted that the petitioner had come to him, for assessment of the permanent disability suffered by him, on 30.07.2004 and 04.08.2004. The Doctor is a retired Senior Government Residence Doctor and presently working in Krishna Hospital, Cuddalore and Vallivilas hospital. The Doctor has examined the wound certificate given by Kannan Hospital, Cuddalore, Discharge summary of Malar Hospital, documents on medical treatment particulars, X-rays which were ordered to be taken by him and the report of the nerve specialist Dr.M.Velumani, dated 03.08.2004. It was found during examination that the petitioner was restless, and irritated and further he was not able to concentrate and that his memory was impaired. It was further found that there were two surgical marks on the right side of the face and back of the face and that his right eye vision was impaired badly and his left eye vision was also impaired and that he had loss of hearing on right ear. Further, he has stated that due to the accident he had been admitted in Malar Hospital from 06.06.2001 to 23.06.2001 and that surgery was done on the same day that he was admitted. During surgery, the blood clots in brain were removed and he was under artificial respiration through machine. Considering the above factors PW2 has gauged the extent of permanent disability as 40% and has given the disability certificate Ex.P23.
12. Further the medical report submitted by the ear, nose and throat specialist doctor N.Ramakrishnan was marked as Ex.P20; Dr.Velumani, nerve specialists report was marked as Ex.P21. The wound certificate issued by Kannan Hospital, Cuddalore was marked as Ex.P22. The four C.T. Scans were marked as Ex.P24 and two others C.T. Scans were marked as Ex.P25. On cross-examination of PW2, the doctor has admitted that the extent of permanent disability fixed at 40% is approximate. Hence, the Tribunal has taken the extent of permanent disability as 35%. On this Count, it awarded a sum of RS.35,000/- to the petitioner.
13. Further, PW3, Eye Specialist, Doctor Srikanth on examination stated in his proof affidavit that he had examined the petitioner on 30.07.2004. On a thorough examination, he had found that the claimant's right eye vision has been totally affected and his left eye vision is normal and hence he had fixed the permanent disability at 30%. His certificate was marked as Ex.P26. From this, the Tribunal came to understand that due to the accident, the petitioner nerves had been affected and due to this the petitioner has lost his right eye vision. But on cross-examination of the doctor, it was admitted by the doctor that the disability fixed by him was approximate. Hence, the Tribunal taking only 25% disability, arrived at compensation for this to be Rs.25,000/-. Accordingly, the Tribunal taking into account permanent disability on both counts fixed the compensation as Rs.60,000/-.
14. Further on consideration of Ex.P18 and Ex.P19, the Tribunal has come to the conclusion that the petitioner is a qualified Diploma holder in Mechanical engineering and Computer Studies. From a scrutiny of Ex.P17, salary report, it was found that the petitioner was getting a monthly salary of Rs.7,500/- during the time of accident, and that he was employed as Production Engineer. From the fact that the petitioner had sustained grievous permanent disability, it can be deduced that the petitioner is not in a position to continue doing the same type of work which he was doing before the accident. Considering this, his loss of income per month was arrived as Rs.2,000/-. Considering that the age of the petitioner at the time of accident was 31 and taking into account the multiplier of 17 as per
Section 163(A), the second schedule of Motor Vehicles Act, the loss of income has been computed as 2000 X 12 X17 = Rs.4,08,000/-. This was granted as compensation by the Tribunal under the head of loss of income.
15. From Ex.P12, which are medical bills, the amount in total in these bills come to Rs.1,34,022.70/- Considering that the petitioner has had a brain surgery and had been hospitalised at Malar Hospital for continuous treatment, and as there are no contrary evidence to negative this claim, the amount of Rs.1,34,000/- claimed by the petitioner was granted by the Tribunal. Doctor's fee paid during the said hospitalisation has come to Rs.54,300/- as per document, Ex.P13. This amount was also granted by the Tribunal. The Tribunal also considered EX.P14, Medical bills, which amounted to Rs.1,340.80. The Tribunal rounded this amount to Rs.1,500/- and granted the same. Hence, for medical expenses, the Tribunal granted a sum of Rs.1,34,000 + 54,000 + 1,500 + 500 (as per Ex.P15) = Rs.1,90,000/-.
16. Further regarding travel expenses, the petitioner had travelled to Chennai, Madurai and Kumbakkonam in rented cars and has claimed an amount of Rs.95,576/- towards those expenses. Ex.P16 has been marked in support of these expenses incurred, which contains trip sheets and Bills for the said travel. However, as the persons who had given the bills were not examined, the Tribunal did not grant the full claim, but awarded a sum of Rs.50,000/- only towards these expenses. Further, the Tribunal had granted a sum of Rs.5,000/- for nutrition, considering that the petitioner had been hospitalised for a period of 18 days. The Tribunal also awarded a sum of Rs.75,000/- towards non-pecuniary damage for the loss of his right eye-sight, nervous disorder, prospects of married life being reduced, shock due to accident, pain and mental suffering and the inconveniences caused to him. In total, the Tribunal granted a sum of (Rs.60,000 + 4,08,000 + 1,90,000 + 50,000 + 5,000 + 75,000) Rs.7,88,000/- as total compensation to the petitioner and directed the first and second respondent to deposit the above sum within one month with interest at the rate of 9% per annum from the date of filing of petition till date of payment of compensation. It also directed them to pay the cost of the petition to the petitioner. It further directed that the said amount should be deposited in a nationalised bank and interest from the deposit should be paid by the bank, where it is deposited, directly to the petitioner once in three months. Lawyer's fee was decided as Rs.14,880/-.
17. The learned counsel for the appellants vehemently argued that the compensation awarded by the Tribunal Rs.7,88,000/- is on the higher side. Rs.4,08,000 granted towards loss of earnings is also an error. Further, the learned Tribunal had awarded a compensation under the below mentioned heads namely towards Transport Charges Rs.50,000/-; nourishment Rs.5000/-; non-pecuniary loss Rs.75,000/-; head injury Rs.35,000/- and for loss of vision Rs.25,000/-. Dr.Chandiran, PW2, who is an Ortho doctor has neither performed any surgery nor given any treatment to the claimant for the head injury suffered by him. As such, PW2, Doctor Chandiran's disability certificate should be rejected. PW2, in his cross-examination has admitted that the disability certificate showing 40% disability was an approximate one. But, suo motto the learned Tribunal has reduced the percentage to 35% without assigning any reason. PW3, an eye doctor Sreekanth also did not give any treatment to the injured claimant. He has issued a disability certificate showing 30% as disability and as such this should also be rejected. The learned counsel for the appellant further argued that PW3, at the time of cross-examination, had admitted that the disability certificate issued by him was an approximate one and as such this certificate is also incorrect. Therefore, Rs.60,000/- which has been awarded under the head of disability i.e. 35% for head injuries and 25% for eye injury has got to be rejected. Rs.1,90,000/- awarded by the Tribunal, under the head of medical expenses in Malar Hospital, doctor fees and medical bills also has got to be set aside as the authors of the documents, who have given the bills have not been examined. The multiplier of 17 adopted by the Tribunal under 163(A) of the Motor Vehicles Act is also illegal. Further the learned counsel for appellant pointed out that the employer of the injured claimant was not examined. The extra nourishment of Rs.5000 awarded was also erroneous.
18. The learned counsel for the respondent submitted that the injured is an engineer and has sustained grievous injuries all over the body especially head injuries, wherein the nerves in the brain have been affected and consequently the petitioner has lost his right eye vision. The treatment received, medical bills given in support thereof and the cause for accident have all been proved. The first information report has also shown that a case has been registered only against the first respondent, who is the rider of the vehicle. The claim has been awarded by the Tribunal on the basis of oral and documentary evidence after establishing the claim case regarding the age, income and nature of injuries. The learned respondent counsel also pointed out that due to the said accident, the claimant has become physically unfit to lead a married life. Therefore, the award given by the Tribunal is correct.
19. For the foregoing reasons and on consideration of the facts and circumstances of the case, the Court is of the view that an award of Rs.7,88,000/- granted by the Tribunal is justified for the following reasons.
1) For loss of earning;- Rs.4,08,000/- was granted as per Section 163 A of the second schedule of Motor Vehicles Act. Considering the present physical condition of the claimant and taking into account his disability and age of the claimant as 31 years, the Court views that the petitioner will suffer a loss of income. This has been taken as Rs.2,000/- per month by the learned Tribunal and this Court cannot find any fault in this. Hence, the award granted by the Tribunal is reasonable.
2) On the basis of documentary evidence i.e. Ex.P12, the Tribunal has granted Rs.1,34,000/-. This is also a bonafide claim and there is no need for the doctors who have issued the bills to be examined, because the person who paid the bills was examined by the Tribunal and found to be correct.
3) As per Ex.P13, doctor's fee, Rs.54,500/- was paid by the claimant. This has also been proved, but the amount has been rounded off to Rs.54,000/- and the same was awarded by the Tribunal. This Court could not find any error in the said award.
4) For medical bills, as per Ex.P14, the Tribunal had granted Rs.1,500/- which is also reasonable.
5) As per Ex.P15, Rs.500 was paid to Sankar Nethralaya, by the claimant and this has been verified and accordingly, the Tribunal had granted the same. As such, this Court finds no error in this.
6) The claimant has produced Ex.P16, regarding Transport expenses incurred for treatment and on this head he has claimed Rs.95,576/-, but the Tribunal has reduced the same and granted Rs.50,000/- only. This is also a reasonable one and as such, this award cannot be faulted.
7) The claimant underwent treatment from 06.06.2001 to 23.06.2001 as inpatient in the Malar Hospital and has claimed Rs.5,000 for nutrition. Though, this Court admits the contention of the appellant that nutritional food was given by the hospital and thus it has been charged already under hospital expenses, the claimant is also entitled to take nutritious food from outside sources as well and as such this award claimed is also fair.
8) On non-pecuniary damages, Rs.75,000/- was awarded for shock, inconveniences, physical defects which is a minus for marriage prospects and hence this Court feels that the award granted is reasonable.
20. In total, a sum of Rs.7,88,000/- was granted by the Tribunal together with interest at the rate of 9% per annum from the date of filing of the petition till the date of payment which this Court considers fair and correct.
21. The above said appeal came before this Court on 10.08.2005, when the appellant's counsel submitted to this Court that the entire balance compensation amount including interest and cost has been deposited into the credit of MCOP No.225 of 2004 on the file of Motor Accidents Claims Tribunal, Cuddalore. This Court also permitted the claimant to withdraw 50% of the deposited amount from the Motor Accidents Claims Tribunal. The accident happened in the year 2001 and hence the Court permits the respondent/claimant to receive the balance amount lying to the credit of MCOP No.225 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Court, Fast Track Court No.2, Cuddalore, by filing necessary payment out application in accordance with law. Resultingly, the civil miscellaneous appeal is dismissed and the award passed by the Motor Accidents Claim Tribunal, Additional District Court, Fast Track Court No.II, at Cuddalore in M.C.O.P.No.225 of 2004 is confirmed. Parties are directed to bear their own cost.
JIKR To The Additional District Judge, Fast Track Court No.II, Motor Accidents Claims Tribunal, Cuddalore