The above Civil Miscellaneous Appeal has been filed by the appellants/respondents against the Award and Decree, dated 28.11.2006, made in M.C.O.P.No.570 of 2003, on the file of the Motor Accident Claims Tribunal (Chief Small Causes Court), Madras, awarding a compensation of Rs.1,70,000/- with 7.5% interest per annum from the date of filing the petition till the date of payment of the compensation.
2.Aggrieved by the above said award, the appellants/respondents have preferred the above appeal to set aside the order/award.
3.The short facts of the case are as follows:
On 24.08.2002, at about 8.00 a.m. when the deceased was riding on his cycle from Maduravoyal Erikkarai to Maduravoyal Rationshop, a two wheeler 'TVS Suzuki', bearing registration No.TN20 H6815, driven in a rash and negligent manner, hit the deceased, as a result of which the deceased sustained fatal injuries and succumbed to the same. The respondents being the owner and insurer respectively, of the offending vehicle, are liable to pay compensation to the petitioners with costs and interests.
4.The deceased was aged about 60 years and was working as security guard at Popular Hardwares, Erikkarai, Maduravoyal and was earning a sum of Rs.3,000/- per month. After the said accident, the deceased had taken treatment at Kilpauk Medical College and Hospital, Chennai-600 010, Sri Ramachandra Hospital, Porur and Government General Hospital, Chennai and had taken treatment as in-patient from 24.08.2002 to 22.10.2003.
5.The petitioners, who are the wife, daughters and son of the deceased had claimed a compensation of Rs.3,00,000/- from the respondents, with interest and costs, under
Sections 163A and
166 of the Motor Vehicles Act, 1988.
6.The second respondent/the New India Assurance Co., Ltd., in its Counter has resisted the claim stating that the age, income and employment of the deceased are not admitted. Further, the alleged injuries said to have been sustained by the deceased, the medical treatment taken by him and the resultant death of deceased due to those alleged injuries are not admitted. That the deceased died only after two months from the date of accident shows that the deceased had not died due to injuries suffered in the accident. Further, the manner of the accident as alleged in the claim petition was not admitted. It is stated that the rider of the first respondent's Motorcycle rode the vehicle carefully and cautiously on the Poonamallee High Road from west to east and at that time the deceased suddenly crossed the said road with his cycle, without adhering to traffic rules and dashed against the motorcycle, which had resulted in the alleged accident. The alleged accident took place solely due to the negligence and fault on the part of the deceased and not because of the rash and negligent riding on the part of the rider of the motorcycle.
7.Further, the claim under various heads is excessive and hence the second respondent has prayed for dismissal of the claim petition with costs.
8.The first respondent, in his Counter has resisted the claim stating that the rider of the two-wheeler rode it in a careful and cautious manner and that the deceased had suddenly crossed the road with a cycle and dashed against the motorcycle. The age, employment and income of the deceased was also not admitted. The petitioners should also prove that the deceased had been suffering from Kidney failure, for a long time and as the accident took place only due to rash and negligent act of the deceased, the owner and rider of the motorcycle cannot be held liable to pay compensation to the petitioners. As such, the first respondent had prayed for dismissal of the petition against him.
9.The Motor Accident Claims Tribunal framed three issues for the consideration namely:
(i) Whether the accident occurred due to the rash and negligent riding of the rider of the motorcycle bearing registration No.TN20 H6815?
(ii) Whether the death was caused due to the injuries sustained by him in the accident?
(iii)Whether the petitioners are entitled to claim compensation from the respondents? If so, what is the reasonable amount that can be awarded as compensation?
10.It is alleged in the petition that on 24.08.2002, at about 8.00 a.m. the deceased was riding his bicycle from Maduravoyal Erikkarai towards Maduravoyal Rationshop and at that time, a two-wheeler 'TVS Suzuki' bearing registration No.TN20 H6815, driven in a rash and negligent manner, hit the deceased, as a result of which, the deceased sustained injuries and succumbed to those injuries. The petitioners are not the eye-witnesses. They have examined one Kumar as PW2, who is alleged to have seen the accident, while he was waiting for the bus in the Maduravoyal Bus stop. According to him, he was standing in the bus stop, which is situated opposite to the Maduravoyal rationshop. He has stated that at about 8.00 a.m. in the bus stop, one bus came and stopped at the bus stand and a motorcycle, which came behind the bus overtook the bus on its left side and in the process, it knocked down the cyclist, who was waiting for the bus to pass on. He has further stated that the cyclist sustained injuries on various parts of his body and he could not get up. PW2 helped him and sent him to Kilpauk Medical College Hospital in an Auto. He has stated that the accident occurred only due to the rash and negligent riding of the rider of the motorcycle, who overtook the bus on its left side. The son of the deceased had lodged the complaint on the same day. But, he is not an eye-witness. He had narrated the manner of the accident on the information furnished to him by the witness, who saw the accident. The oral testimony of PW2 coupled with the FIR clearly attributed negligence to the motorcyclist and there is no contra evidence. The evidence clearly indicated that the cyclist was waiting ahead of the bus to cross the road with his cycle and that the motorcycle, which came on the wrong side of the bus, had knocked down the cyclist causing grievous fatal injuries. As such, the Tribunal held that the accident occurred due to the rash and negligent riding of the rider of the motorcycle.
11.The petitioners are the wife and children of the deceased Kannan, who was 60 years old at the time of the accident. Immediately after the accident, the deceased was admitted in the KMC Hospital, wherein he was given treatment and X'rays were taken on his Skull, Chest and Spinal. It is stated that Nephrologist opinion was obtained and he was advised to undergo peritoneal dialysis. A reference is made in the Discharge Summary that the patient was not willing for peritoneal dialysis in spite of repeated counselling. So, he was discharged against medical advice. The wife of the deceased examined herself as PW1 and has stated that due to the injuries sustained by him, his Kidney was damaged and after getting discharged from KMC Hospital and after two days, he was admitted at Sri Ramachandra Medical College Hospital, Porur, on 02.09.2002. To prove the same, Ex.P3 was marked, which is the clinical progress notes issued by the Sri Ramachandra Medical College, Hospital, Porur. It is noted that the patient was conscious, disoriented and was having head injuries, frontal injuries and laceration. On his back, it is seen that the deceased had undergone treatment for urine encophiopathy. As the patient was willing to get himself admitted, he had been treated as out-patient only. Thereafter, on the same day, he was admitted in Government General Hospital and was discharged on 23.09.2002. It is noted in the history that the patient sustained injuries in the road traffic accident and incidentally, the doctors treating him defected renal failure on 24.09.2002. Hence, it is clear from all these documents that the deceased suffered renal failure only due to the injuries, sustained by him in the accident. When he was discharged on 23.09.2002, he was advised to attend the O.P. three days a week. According to the petitioner, after discharge from Government General Hospital, he was in the house and died on 22.10.2002 due to the renal failure. Hence, the documents in Ex.P2 to Ex.P4 clearly prove that the deceased died only due to renal failure, which occurred to him as a result of injuries sustained by him on his spine as well as on other parts of his body, in the road accident. Ex.P5 is the Death Certificate of the deceased.
12.According to the claimants, the deceased was aged about 60 years and was working as a Security Guard in Popular Hardwares and was earning a sum of Rs.3,000/- per month. Except the oral testimony of PW1, there is no other evidence to prove the employment and income of the deceased. Though he was aged about 60 years at the time of the accident, it is common that aged persons could work as Watchman in any company and hence the Tribunal held that it was possible for the deceased to have worked as a Watchman in Popular Hardwards, Maduravoyal and earned a sum of Rs.3,000/- per month as salary. Deducting 1/3rd share of this for personal expenses, the monthly contribution by the deceased to his family was assessed at Rs.2,000/- and the yearly contribution calculated as Rs.24,000/-.
13.In the absence of any evidence to prove the age of the deceased, the Tribunal considering that his age could be between 60 to 65 years, selected the multiplier of 5 for assessing loss of pecuniary benefits to the petitioners. As such, the Tribunal assessed loss of pecuniary benefits as Rs.24,000/- X 5 = Rs.1,20,000/- and granted the same as award to the petitioners under the said head. The Tribunal granted a sum of Rs.20,000/- towards loss of consortium and a sum of Rs.25,000/- towards loss of love and affection and loss of expectation of life and also awarded a sum of Rs.5,000/- towards funeral expenses. In total, the Tribunal granted a sum of Rs.1,70,000/- as compensation to the petitioners.
14.In the result, the Tribunal directed the first and second respondents to pay the above said award amount jointly and severally with an interest at the rate of 7.5% per annum from the date of filing the petition till the date of deposit with proportionate cost. The apportioned share of the award to the first petitioner was Rs.1,00,000/- with proportionate interest and the apportioned share of award to the 2nd, 3rd and 4th petitioners was Rs.20,000/- each with proportionate interest. Further, the Tribunal, on consideration of age of the first petitioner, permitted the first petitioner to withdraw her apportioned share of award with interest, after appeal time. Court fee for the award amount was fixed at Rs.1072.50. Excess Court fees shall be refunded to the petitioners after appeal time. Advocate fees was fixed at Rs.6,400/-.
15.The learned counsel for the appellants in his appeal has contended that the Tribunal had failed to appreciate the evidence that the deceased died due to the natural causes and not due to the accident injuries and so was wrong in awarding a huge compensation of Rs.1,70,000/-.
16.The learned Tribunal failed to note that the deceased suffered only simple injuries and that there was no abdominal injuries, related to injuries to both Kidneys.
17.The learned Tribunal without any medical experts evidence or medical record, was wrong in holding that the deceased suffered renal failure only due to the accident injuries.
18.The learned Tribunal failed to note that the deceased was discharged on 24.09.2002 from the Government General Hospital and in spite of the Hospital Doctors advise to the deceased to attend O.P. for treatment regularly, there is not medical record to show that the deceased was under medical care after 24.09.2002.
19.The learned Tribunal failed to appreciate that even as per Ex.P2, the alleged Hospital O.P. Chit issued by Kilpauk Medical Hospital, the deceased was a known H.T. (Hypertension) patient and that he was on regular consultation with Nephrologist and that it was a known case of renal decease.
20.The learned Tribunal failed to appreciate that there was clear suppression of heath history of the deceased and that taking advantage of the accident on 24.08.2002, the claimants have foisted a false case stating that the deceased suffered renal failure only due to the accident injuries. The learned Tribunal failed to note that the deceased suffered only Lacerations Over the head and there was no spinal injury or abdominal injury or rupture of Kidneys or other grievous injuries capable of damaging the Kidneys.
21.As such, the learned Tribunal ought to have found that the deceased died not due to the accident injuries, but only due to the natural causes namely renal failure suffered by the claimant even prior to the accident.
22.The learned counsel appearing for the appellants has therefore contended that the award and decree of the Motor Accident Claims Tribunal, dated 28.11.2006, in M.C.O.P.No.570 of 2003 should be set aside.
23.The learned counsel for the respondents argued that the said accident happened on 24.08.2002. Hence, he sustained injuries and underwent treatment at Ramachandra Medical College Hospital and that subsequently he was discharged, but, had undergone treatment for injuries continuously. As the treatment was not successful, he had died. The death of the claimant was caused only by injuries suffered in the accident.
24.Considering the facts and circumstances of the case, at the time of the accident, the age of the deceased was 60 years and he had been employed as a Security Guard. The Tribunal awarded a sum of Rs.1,70,000/- to the claimants as compensation. The Court is of the view that as the deceased had completed 60 years, the claimants 2nd, 3rd and 4th, who are daughters and son of the deceased are not dependant on the income of the deceased. Further, there is no crystal clear evidence to suggest the renal failure of the deceased had been caused only due to the injuries suffered in the road accident. Likewise, there are no strong reasons laid down by the appellant, either oral or documentary to refute the above contention of the claimants. As such, the Court awards a sum of Rs.60,000/- (taking into consideration of Rs.12,000/- as annual income and multiplies of 5) as loss of pecuniary benefits to the claimants after deducting personal expenses of the deceased. The Court awards a sum of Rs.10,000/- for loss of consortium to the first claimant and a sum of Rs.10,000/- each to the 2nd, 3rd and 4th claimants for loss of love and affection. This Court awards a sum of Rs.5,000/- for medical expenses and a sum of Rs.5,000/- for funeral expenses. In total, this Court awards a sum of Rs.1,10,000/- as compensation. The first claimant is apportioned a sum of Rs.65,000/- out of this award and the 2nd, 3rd and 4th claimants are apportioned a sum of Rs.15,000/- each out of this award together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment. The Court considers this as equitable and fair.
25.The learned counsel appearing for the appellant submitted that the entire compensation amount has already been deposited into the credit of the M.C.O.P.No.570 of 2003, on the file of the Motor Accident Claims Tribunal (Chief Small Causes Court), Madras.
26.As the accident happened in the year 2002, it is open to the claimants to withdraw their apportioned award amount with accrued interest lying the credit of the M.C.O.P.No.570 of 2003, on the file of the Motor Accident Claims Tribunal (Chief Small Causes Court), Madras, by filing necessary payment out application in accordance with law. Likewise, the appellant/New India Assurance Co., Ltd., is at liberty to withdraw the excess compensation amount, which is lying in the credit of the M.C.O.P.No.570 of 2003, on the file of the Motor Accident Claims Tribunal (Chief Small Causes Court), Madras, after observing Court procedure.
27.In the result, the Civil Miscellaneous Appeal is partly allowed and the award and decree passed by the Motor Accident Claims Tribunal, Chief Small Causes Court, Madras, is modified. Consequently, connected miscellaneous petition is also closed. No costs.
krk To
1.Motor Accidents Claims Tribunal, Chief Small Causes Court, Madras
2. The Section Officer, VR Section, High Court, Madras