The above Civil Miscellaneous Appeal has been filed by the appellant/ 2nd respondent against the Award and Decree, dated 26.03.2003, made in M.C.O.P.No.555 of 2001, on the file of the Motor Vehicles Accident Claims Tribunal, Sub Court, Namakkal, awarding a compensation of Rs.1,59,134/- with 9% interest from the date of filing the petition till the date of payment of the compensation.
2.Aggrieved by the said Order, the appellant/ 2nd respondent, New India Assurance Co., Ltd., Namakkal has filed the above appeal to set aside the award.
3.The short facts of the case are as follows:
on 03.06.2001, at about 19.30 hrs, while the petitioner was travelling in Tempo Van, bearing registration No.TN28 9842 and when it was near Gurusamipalayam bus stop on the Rasipuram to Valayppamalai main road, the petitioner tried to get down from the Tempo van. But, before he had alighted from the van, the driver of the Tempo van, bearing registration No.TN28 9842, without making any signal, suddenly moved the vehicle and due to this the petitioner's left hand fingers were crushed on the door and this had caused the accident. The incident occurred only due to the rash and negligent act of the driver of the Tempo van, bearing registration No.TN28 9842.
4.The petitioner was aged about 33 years and he was hale and healthy at the time of the accident. The petitioner was doing agricultural work and was also a poultry farm owner and earning a sum of Rs.7,000/- per month. Due to the accident, the petitioner's little finger on his left hand was fully crushed. After the incident, the petitioner took treatment at Salem Gokulam Hospital and then he was shifted to Coimbatore Ganga Hospital. The petitioner has undergone several operations. Due to the accident, the petitioner has sustained permanent disability; the petitioner has claimed that he is not able to do normal work as before and has claimed a compensation of Rs.3,00,000/-.
5.The first respondent is the owner and the second respondent is the insurer of the Tempo Van, bearing registration No.TN28 9842. So both are jointly and severally liable to pay the said compensation to the petitioner with interest at the rate of 12% per annum and costs, under
Section 166 of the Motor Vehicles Act.
6.The Puduchatram Police have registered a case in Crime No.185/2001, under
Sections 270 and
337 of I.P.C. against the driver of the Tempo Van, bearing registration No.TN28 9842.
7.The second respondent, the New India Assurance Co., Ltd., in its Counter has resisted the claim stating that the said accident occurred while the driver of the van stopped the vehicle to take Tea and at that time the petitioner got down from the Vehicle and closed the door. At the time of closing the door, his left hand little finger was crushed with in door. Thus, it has been denied that the said accident occurred due to the rash and negligent act of the driver of the van. Further, the petitioner has to state and prove the reasons for delay of nine days in preferring complaint before the Police regarding the accident.
8.It has also been stated that the petitioner was a gratuitous passenger in the van and as such, the respondent is not liable to pay any compensation. Further, the nature of injuries suffered by the petitioner, the duration of treatment, the nature of disability, the operations undergone and the medical expenses incurred by the petitioner has not been admitted. Further, the age, income and occupation of the petitioner was not admitted. The second respondent has further stated that the claim is excessive and inflated and has prayed for dismissal of the petition with costs.
9.The Motor Accident Claims Tribunal framed three issues for the consideration namely
(i) Was the accident caused by the negligent act and rash driving of the driver of the Tempo Van, bearing registration No.TN28 9842?
(ii) Is the petitioner is entitled to receive compensation? If so, what is the quantum of compensation, he is entitled to receive?
(iii)To what relief?
10.During the Trial before the Tribunal, on the petitioner's side two witnesses were examined as PW1 and PW1 and nine documents were marked as Exs.P1 to P9. On the respondent's side, one witness was examined as RW1 and two documents were marked as Exs.R1 and R2.
11.The PW1, in his evidence has adduced that on 03.06.2001, at about 7.30 p.m. when he was travelling in the Tempo Van, bearing registration No.TN28 9842, and when he was in the process of getting down from the van near Gurusamypalayam bus stand on the Rasipuram Vaiyappamalai main road, the Van driver had rashly and negligently moved the car forward and as a result, he had fallen down, sustained injuries and had taken treatment. A criminal case regarding the said accident has been registered by the Puthusathiram Police and after investigation, a charge sheet has been filed by the Police as against the driver of the Tempo van and the criminal case was filed with the Judicial Magistrate Court No.II, Namakkal. In the Criminal case, as the driver of the Tempo van had pleaded guilty, he was punished. The Tribunal further held that the respondents have not examined either the driver of the van or any other witnesses before the Trial Court. The Tribunal, on considering evidence adduced by the PW1, Ex.P1, FIR; Ex.P2, Charge Sheet; Ex.P3, Motor Vehicle Inspector's Report and Ex.P5, copy of Judgement in Criminal case held that the accident had been caused only by the rash and negligent act of the driver of the said Tempo Van, bearing registration No.TN28 9842.
12.The RW1, the Administrative Officer of the second respondent's Insurance Company was examined. In his evidence, he has stated that the document marked as Ex.R1, is the Insurance Policy for the said Tempo van. He has stated that in the claim form given by the first respondent, the owner of the Tempo van, no details had been furnished regarding the category of passenger, under which the petitioner had travelled in the said Tempo van. It was further stated that as the petitioner had travelled as a gratuitous passenger in the said Tempo van and as no extra premium had been paid by the first respondent to permit passengers to travel in the said tempo van, the second respondent should be absolved from its liability to pay compensation to the petitioner. The claim form given by the first respondent has been marked as Ex.R2. Further, during the cross-examination of RW1, he has stated that no reasons have been stated as to why the petitioner had travelled in the said tempo van and also no details regarding the load carried by the Tempo van have been furnished. In his cross-examination, he has admitted that he does not know directly about the load, which was carried in the Tempo van on the date of the accident; that he knew the details after going through the FIR, and that he knew that the petitioner being the owner of the goods transported in the Tempo van, had travelled in the said Tempo van. The Tribunal therefore, on considering that the petitioner, being the owner of goods to facilitate transport of goods for his poultry farm, had travelled in the said tempo van. No contrary, evidence had been let in on the respondents side to refute this point. As such, the Tribunal held that as the petitioner had travelled in the Tempo van and was in the position of the owner of goods being transported in it, he is entitled to receive compensation.
13.The Tribunal, on considering the legal ruling of judgement made in Ramesh Kumar Vs. National Insurance Co., Ltd., and Others, 2001 ACJ 1565, and holding that the present case is similar to that, was of the view that the second respondent is liable to pay compensation to the petitioner. To determine the quantum of compensation, the Tribunal scrutinised Ex.P8, the Engineering Diploma Certificate of the petitioner. From this, the date of birth of the petitioner was taken as 24.05.1969 and his age, at the time of the accident was determined as 33 years. Considering, the petitioner's age as 33 years and holding that the compensation in this case should be given as per Sec.163A, 2nd Schedule of the Motor Vehicles Act, the Tribunal decided that a multiplier of the 17 should be adopted.
14.The petitioner in his evidence had submitted that he was running a poultry farm and was also doing agricultural work and was earning a sum of Rs.7,000/- per month. But, the Tribunal, on considering the petition and the evidence of the PW1 decided that the petitioner's income could be taken as Rs.2,500/- per month. From scrutiny of Ex.P4, Wound Certificate, it was established that the petitioner had sustained grievous fracture injuries of his bones. The Doctor, who had assessed permanent disability of the petitioner, was examined as PW2. The PW2, in his evidence has stated that he had examined the petitioner after the accident and had noticed that half of the little finger of the petitioner's left hand had been cut and that the petitioner had taken treatment at a private hospital in Salem and Coimbatore and that the portion of his little finger, which had been cut, was surgically fixed at these hospitals. On taking X'rays of this finger, the fractures sustained in the bones have not healed and as a result, the movements of his little finger have reduced and his little finger appeared small and has lost its sensitivity. As such, the Doctor has stated that the petitioner will have difficulty in doing hard labour, and will find it difficult to have a firm grip any things/objects and has certified that the permanent disability sustained by the petitioner as 15%, and marked as Ex.P9, Disability Certificate.
15.As such, the Tribunal taking into account, the petitioner's evidence, Doctor's evidence, Ex.P4-Wound Certificate; Ex.P9-Disability Certificate, assessed that the loss of future earnings suffered by the petitioner as a result of permanent disability of 15% as Rs.2,500 X 12 X 17 X 15/100 = Rs.76,500/-. The Tribunal also granted a sum of Rs.62,634/- as medical expenses incurred by the petitioner as per Ex.P6, Medical Bills. The Tribunal granted a sum of Rs.10,000/- to the petitioner for pain and suffering undergone by the petitioner and a sum of Rs.10,000/- towards transport and nutrition expenses incurred by the petitioner. In total, the Tribunal awarded a sum of Rs.1,59,134/- as compensation to the petitioner. Further, the Tribunal considered the request of the petitioner that he should be given the entire award immediately as he had borrowed money from other sources to pay for his medical treatment and that he had furnished medical bills Ex.P6, wherein a sum of Rs.62,634/- has been paid by him towards medical expenses. The petitioner had also stated that because of the accident, he was unable to do any work and so had to borrow money and now he has to settle those debts.
16.As such, the Tribunal was inclined to agree with the petitioner on these counts and accordingly held that only a sum of Rs.20,000/- of the award should be retained as deposit in a Bank and the balance award amount could be withdrawn by the petitioner immediately after the award amount was deposited in the Court.
17.In the result, the Tribunal directed the second respondent to pay the award amount as compensation to the petitioner and further directed them to deposit the award with interest at the rate of 9% per annum from the date of filing the petition till the date of payment, within a period of two months from the date of its Order. Immediately, after such deposit was made, the Court was to invest Rs.20,000/- out of the award in a Nationalised Bank under re-investment scheme for a period of three years and permitted the petitioner to receive the balance amount of award. The petitioner was directed to pay Court fees on the award granted within a period of 15 days from the date of its Order.
18.The learned counsel appearing for the appellant has contended in his appeal that the first respondent was a gratuitous passenger in the goods vehicle and therefore the appellant was not liable to cover the risk of such passenger. The learned Tribunal failed to appreciate that not only the claimant-first respondent herein, did not prove that he is owning and running a poultry farm, but also that he did not prove that he was travelling along with his goods. The learned Tribunal failed to appreciate that the claimant had given a complaint to the Police after more than a week, after the accident to suit his convenience and therefore, the learned Tribunal was wrong in relying on the mere statement of the claimant made in FIR as proof of travel in the vehicle as owner of goods. It was further contended that since it was the claimant's case that he was travelling as a owner of goods, the burden lies on him to prove that he was travelling in the vehicle along with his goods.
19.Further, the Tribunal failed to appreciate that the injury being only to little finger in the left hand and considering the nature of avocation alleged, there could not be any loss of earning power. The learned Tribunal went wrong in awarding a huge compensation of Rs.76,500/- for permanent disability. Further, the learned Tribunal failed to appreciate that the claimant had completed his treatment as in-patient on 15.06.2001, whereas the bills produced related to period posterior to 15.06.2001.
20.Further, the learned counsel appearing for the appellant stated that the learned Tribunal failed to appreciate that the respondent/claimant did not suffer any serious or grievous injury involving any prolonged treatment to result in a permanent disability in his left hand. The first respondent herein did not suffer any loss of job or loss of income. The assessment of permanent disability as 15% is also excessive and baseless.
21.It was therefore prayed by the appellant to set aside the award and decree passed by the Tribunal.
22.The learned counsel appearing for the respondent argued that immediately after the accident, the claimant was admitted in the Salem Gokulam Hospital for preliminary treatment and thereafter he was shifted to Coimbatore Ganga Hospital by car. Hence, the expenses incurred for transport charges are high. The medical bills alone paid to private hospitals is a sum of Rs.62,634/-. The rest of the compensation awarded by the Tribunal towards pain and suffering, nutrition, transport and loss of future earning is reasonable.
23.For the foregoing reasons and consideration of the facts and circumstances of the case, this Court is of the opinion that the accident happened in the year 2001. The income of the claimant has been taken as Rs.2,500/- per month only. As per Ex.P8, Academic Qualification Certificate, the claimants age was 33 years. The Tribunal, on considering these aspects had adopted a multiplier of 17 and assessed loss of future earnings due to disability of 15% as Rs.76,500/-.
24.This Court is of the view that the claimant has suffered a grievous injury in his little finger on his left hand. But, this grievous injury sustained by the petitioner could not have affected his normal earning capacity considering the avocation of his work. Hence, the multiplier method adopted by the Tribunal is not applicable in this case, considering the nature of injury and so it is set aside. This Court, is inclined to give a lumpsum compensation of award for the grievous injury sustained and so grants an award of Rs.30,000/- for the 15% disability suffered by claimant. The Tribunal had granted an award of Rs.10,000/- towards pain and suffering. This Court enhances the amount under this head to Rs.20,000/-. For transport and nutrition, the Tribunal had awarded a sum of Rs.10,000/- and this Court awards a sum of Rs.8,000/- for transport expenses and a sum of Rs.5,000/- for nutrition. For medical expenses, Rs.62,634/- was granted by Tribunal as per Ex.P6. This Court confirms the said award of the Tribunal under the head of medical expenses. In total, this Court is of the view that the claimant is entitled to get a compensation of Rs.1,25,634/- together with interest at the rate of 9% per annum from the date of application till the date of realisation.
25.The excess compensation amount of Rs.33,500/- with accrued interest paid by the appellant/New India Assurance Company can be withdraw by them by following necessary Court procedure, before the Motor Accident Claims Tribunal, Sub Court, Namakkal in M.C.O.P.No.555 of 2001.
26.Accordingly, the award passed by this Court, under the above heads is considered to be fair and equitable in the circumstances of the case.
27.The above Civil Miscellaneous Appeal came before this Court on 24.02.2005, when the Court imposed a condition on the appellant to deposit the entire compensation on the appellant to deposit the entire compensation amount awarded by the Tribunal together with interest and costs, into the credit of the M.C.O.P.No.555 of 2001, on the file of the Motor Vehicles Accident Claims Tribunal, Sub Court, Namakkal. Further, the Court permitted the claimant to withdraw 50% of the award amount.
28.Now, this Court permits the respondent/claimant to receive the balance amount of award lying the credit of the M.C.O.P.No.555 of 2001, on the file of the Motor Vehicles Accident Claims Tribunal, Sub Court, Namakkal, by filing necessary payment out application in accordance with law.
29.In the result, the Civil Miscellaneous Appeal is partly allowed in the above terms and the award passed by the Motor Accident Claims Tribunal, Sub Court, Namakkal, in M.C.O.P.No.555 of 2001 is modified. No costs.
krk To
1.Motor Vehicles Accident Claims Tribunal, Sub Court, Namakkal.
2. The Section Officer, VR Section, High Court, Madras