(Judgment of the Court was delivered by PRABHA SRIDEVAN,J) The motor cyclists who sustained injuries in the accident that took place on 5.7.1998 at 20:00 hours filed MCOP. No. 1314/99. He claimed compensation of Rs.26 lakhs. The Tribunal awarded a sum of Rs.4,03,290/-. Against this, the insurance company has filed appeal in CMA.No. 2002 of 2005 and the claimant filed appeal in CMA.No. 2073/2002 seeking enhancement.
2. According to the claimant, he was riding his motor cycle TN 07Z 1451 from North to South in Kamaraj Salai. When he was proceeding next to the war memorial opposite to the Military Quarters on the eastern side of the road, the Motor cycle TN 22 W 7186 and the Maruthi car bearing registration No. TN 04 D 1749 came from the opposite direction at very high speed driving in a rash and negligent manner. The car overtook the other motor cycle and lightly touched the motor cycle, lost its control and came to the extreme eastern side of the road, dashed the claimant's motor cycle and dragged it to some distance, then came to a halt. In the accident, the motor cyclists sustained multiple fractures and injuries. In the claim petition, the case of the claimant was that the driver of the car alone was solely and directly responsible for the accident. However, in the claim petition both the car owner and motor cycle owner and their respective insurance companies were made as party respondents.
3. In the counter, the appellant herein has stated that the claimant has given a false and fabricated version and the accident was only due to the rash and negligent driving of the claimant. According to the appellant, the claimant along with pillion rider came from north to south on Kamaraj Salai rashly and negligently and after passing War Memorial crossed the middle line went to the wrong side and hit the motor cycle and thereafter hit the Maruthi car. In the counter it is stated that number of motor cycle involved in the accident was TN 22 W 7186 and not TN 22 W 7198. According to the counter, if the claimant had been careful and diligent, the accident would not have occurred and therefore, the accident was only due to the rash and negligent driving of the claimant. It is also stated that the claimant was prosecuted under
Section 337 and
338 IPC and under
Section 184 of the Motor Vehicles Act and he was convicted by the III Metropolitan Magistrate, Madras in CC.No. 1162/99. According to them since the driver of the insured vehicle had no tortious liability, the appellant, the second respondent therein was not bound to indemnify the insurance. The fourth respondent insurer of the motor cycle also filed a counter and they stated that the correct registration of the motor cycle involved in the accident is TN 22 W 7186. In their counter, they narrated the events regarding the manner in which the accident took place which is identical to the counter filed by the appellant insurance company.
4. The Tribunal on hearing the submissions and the judgments cited, came to the conclusion that since the conviction in the criminal case was set aside on appeal, the claimant was not negligent. It also faulted the insurance company for not examining the driver of the car and the driver of the motor cycle, who had lodged Ex.R1, FIR. For these reasons, the Tribunal held that the accident took place only on account of the negligence of the driver of the Maruthi car, which was the vehicle insured by the appellant herein.
5. As regards the compensation, the Tribunal took note of Ex.P1, which is a discharge summary given by Apollo Hospital for the period during which he was admitted in the said hospital as inpatient viz., 6.7.98 to 24.7.98. It is seen from Ex.P1 that he had undergone surgery on 6.7.98 and there has been fractures on his left frontal, parietal and temporal bones and at the time of discharge, all his systems were found to be functioning well. He continued his treatment with Aysha Hospital. Ex.P2 is the discharge summary given by Aysha Hospital. Ex.P3 shows that the medical expenses incurred by the claimant to a sum of Rs.82,285.03. He was a Planning Engineer in a private company. As P.W.1 the claimant has given evidence that due to the accident he sustained head injuries and he had suffered a fracture in his right leg and he is unable to walk easily and unable to work easily. Ex.P8 to Ex.P10 were marked to prove his employment and income. P.W.2 was the Doctor who treated him and he had given evidence regarding his disability at 65%. The Tribunal found that the claimant would have definitely earned a sum of Rs. 3000/- per month. Hence, it awarded compensation under the following heads,
(i) For Loss of income during the period from 6.7.98 to 5.7.99 Rs. 50,000/-
6. Learned counsel for the appellant submitted that the insurance company challenges its very liability since the accident took place only because of the rash and negligent driving of the claimant and therefore, as a tort-feasor, he is not entitled to any compensation. He submitted that though in the claim petition it is stated that the driver of the car alone was solely and directly responsible for the accident, in his chief examination he had stated that "tpgj;Jf;F motor cycle jhd; fhuzk;" Apart from the above statement, he had also stated that the accident took place on the western side of the road i.e. on the right extreme which was the wrong side of the road, in so far as the claimant was concerned.
7. Learned counsel for the appellant read out the relevant portion of the depositions of P.W.1 and pointed out the contents of Ex.R3, First Information Report and the Rough Sketch, Ex.R4 and submitted that the documentary evidence would go to show that the Maruthi car and the other motor cycle were being driven on their right side of the road and it was the claimant's vehicle which had turned sharply from the eastern side of the right extreme of the road to the western side, hit the motor cycle and thereafter hit the car and sustained injuries. Learned counsel also submitted that the heads under which the award has been granted would go to show that there is duplication and an inflated award has been passed.
8. Learned counsel for the claimant submitted that P.W.1 had stated that the motor cycle and the car were driven slowly on the side of the military quarters. If they had been moving on the side of the military quarters, then both the car and the motor cycle were on their wrong side of the road. According to the learned counsel, FIR was given on the next day and so also the rough sketch. Therefore, much credence cannot be given to these documents.
9. Learned counsel for the claimant further submitted that the award of the Tribunal must be enhanced in view of the fact that the claimant's sexual life has been greatly affected and the future loss of earning power has not been taken into account by the Tribunal while awarding compensation and therefore, the compensation as claimed must be awarded.
10. We have gone through all the documents and we have considered the submissions as well as the pleadings. We will first decide the quantum of compensation be payable to him and thereafter we will decide whether he is entitled to any compensation.
11. The Tribunal had found that no one was examined on the side of the Consultancy Bureau where the claimant was allegedly working viz., Entech Consultancy Bureau. However, he was a trainee. From Ex.P9 it is seen that he was relieved from the job on 6.2.1999 as he has submitted his resignation. Therefore, the Tribunal only accepted Rs.3000/- as the possible monthly income, if so, the loss of income cannot be more than Rs.6000/-, since he had been in-patient only for 18 days. Towards transport expenses and extra nourishment, the amount awarded by the Tribunal at Rs.5000/- each may not be wrong. Towards medical expenses, a sum of Rs. 82,285/- was awarded, which was borne out by records. However, there is no justification for the Tribunal to award any amount towards loss of income of the family members. We do not know, how the Tribunal awarded any amount, much less, Rs.36,000/- under this head. We hope the Motor Accidents Claims Tribunal before awarding compensation examine carefully whether heads under which the amounts are awarded are sustainable and whether they are just and reasonable. The Motor Accident Claim petitions are not lottery tickets, where the claimants can hit jackpots. It is true that it is a socially beneficial legislation but the compensation awarded by the Tribunal must be based on materials on record. Even though the procedure is summary, the Tribunal cannot be capricious and whimsical and the award shall not be arbitrary and baseless. The Tribunal has awarded a sum of Rs.10,000/- towards mental agony, Rs.75,000/- for loss of marital prospects, Rs.75,000/- for pain and suffering and a sum of Rs.65,000/- for partial disability, which we find are repetition.
12. Therefore assuming, without granting that the appellant was rash and negligent, only the following compensation could have been granted.
(i) For Loss of income during the period from 6.7.98 to 5.7.99 Rs. 6,000/- (ii) For Transport expenses Rs. 5,000/- (iii) For extra nourishment Rs. 5,000/- (iv) For medical expenses Rs. 82,285/- (vi) For mental agony Rs. 10,000/- (vii) For the disfigure which may affect marital prospects Rs. 10,000/- (viii) For pain and suffering Rs. 10,000/- (ix) For partial disability Rs. 10,000/- --------------- Total compensation Rs.1,38,285/- -------------- If at all the respondent is entitled to any amount, it will be only this amount.
13. Now we will examine the question of law and see whether he is at all entitled to receive any compensation. In his claim petition, it is stated that the claimant was proceeding on the eastern side and the motor cycle and the maruthi car came from the opposite direction and lightly touched him and with the result he lost his control. He sustained fracture and the other motor cyclists also sustained injuries. However, in his oral evidence, he has stated, as pointed out by the learned counsel for the appellant, that motor cycle alone caused the accident. Therefore, these are mutually contradictory.
14. Next we will look at the cross examination. There is no dispute regarding the fact that he was proceeding from north to south, i.e. Burma Bazaar to Royapettah. He should have travelled on the left side of the road, which is the eastern side. However, it is his own admission in the cross examination that "the accident took place only on the western side". He also stated that "the motor cycle which dashed came from South to North". Therefore, the collision was on the west extreme of the road. The maruthi car which allegedly hit him and was coming from the south to north, was travelling on the right side of the road, that is the western side of the road. The maruthi car and the motor cycle were on the western side of the road travelling from south to north, whereas the claimant's motor cycle which ought to have been on the eastern side of the road had turned sharply and hit the other two vehicles. The sketch also supports this. The objection of the learned counsel for the claimant is that the sketch was recorded on the next day; but it has recorded the accident in just the manner, as spoken to by the claimant, P.W.1 in his cross examination. Further the submission that it was recorded on the next day is only technically correct. The accident took place at 20.00 hours on 5.7.98. The rough sketch was made soon thereafter, that is on 6.7.98 at about 7.30 hours, i.e. in the morning. Therefore, this cannot be stated to be a long delay.
15.The First Information Report was registered on the complaint given by one Jawahar who was the rider of the motor cycle which came from South to North and against which, the claimant collided. The First Information Report shows that, "When I crossed Napier bridge going from South to North across the Military Quarters, a motor cycle coming from North to South was driven rashly and negligently and crossed the yellow line in the middle of the road dashed against my vehicle lost balance and dashed against the Maruthi car coming behind me. I fell down from my vehicle".
16. Ex.R3 was marked through R.W.1, the Additional Sub Inspector. The reference to the Military Quarters does not indicate that the collision was on that side i.e. the Eastern side. It indicates that it was in front of the Military Quarters which means 'opposite'. So this too supports the case of the appellant. The trial court had found him guilty. Of course, on appeal, the learned Appellate Judge reversed it. But in view of the oral and documentary evidence, we hold that the claimant was solely responsible for the accident.
17. Learned counsel for the claimant submitted that even if some negligence has to be attributed to him, it may only be contributory negligence and he cannot be held solely responsible for the accident. We are unable to agree with him. If both the vehicles which hit against each other were found in the middle of the road, then we can sustain his submission to some extent. But from the rough sketch as well as P.W.1's own evidence, we see that the car and the motor cycle were travelling on the safest possible side viz., right extreme. In spite of that, if the claimant chose to cross the middle yellow line and collided against them, they can not be held to be responsible at all. In view of the above, the respondent alone drove rashly and negligently. This had caused his injuries. We therefore allow the appeal in entirety, except to the extent of liability under
Section 140 of the Motor Vehicles Act which is to the extent of sum of Rs.25,000/-. The award of the Tribunal is set aside and there shall be an award of Rs.25,000/- only under
Section 140 of the Motor Vehicle's Act.
18. We are informed that in view of the conditional order passed by this Court on 19.7.2005, the appellant had deposited the entire amount awarded by the Tribunal. Subsequently, the claimant had withdrawn a sum of Rs.1,00,000/- from the deposited amount by filing a petition to withdraw the 50% of the amount. We have now awarded compensation of a sum of Rs.25,000/- only. As such, the claimant has withdrawn more than he is entitled to. In view of the above, the appellant is entitled to withdraw the entire balance amount remaining in the deposit and the appellant is also at liberty to proceed against the claimant for recovery of the excess amount which was withdrawn by him as per the above modified award amount by us.
19. In view of the above finding, CMA.No. 2073 of 2005 is dismissed and CMA.No. 2002 of 2005 is allowed. No costs.
bg To
1. New India Assurance Company Limited , No. 46, Moore Street Chennai 1
2. Oriental Insurance Co., Ltd No. 130, Angappan Street, Chennai 1
3. Motor Accident Claims Tribunal (III Court of Small Causes), Madras