This Civil Miscellaneous Appeal has been directed against the award dated 15.03.2013 made in M.C.O.P.No.148 of 2009 by the learned III Additional Sub Judge, Motor Accidents Claims Tribunal, Trichy.
2. It is a case of injury caused due to the accident that took place on 25.05.2008 at about 7.30 p.m, at Kadukaithurai to Eratai Mandabam road. On the date of accident, the petitioner/claimant was travelling as a pillion rider in TVS 50 Motor bike bearing registration No.TN 48 A 8561, which was driven by one Rajendran at Kadukaithurai to Eratai Mandabam road and when the motor bike was nearing Kadukaithurai water tank, a minidoor auto bearing registration No.TN 48 F 0774, which was owned by the first respondent and insured with the second respondent, came from the opposite direction, in a rash and negligent manner and dashed against the motor bike and caused injuries to the petitioner/claimant and the rider. In the said accident, the petitioner/claimant suffered 32% permanent disability. Hence, he has filed the above MCOP, seeking compensation.
3.Before the Tribunal, the claimant examined four witnesses as P.Ws.1 to 4 and marked eight documents as Ex.P.1 to Ex.P.8. On the side of the Insurance Company, one witness was examined as R.W.1 and no document was marked.
4.The Tribunal, after considering the pleadings, oral and documentary evidence and arguments of the counsel for the petitioner/claimant and the respondents and also on appreciating the evidence on record, held that the accident occurred due to the rash and negligent driving of the driver of the first respondent as well as the claimant and fixed the liability as 50:50 by totally awarding a sum of Rs.90,000/- (Rs.45,000/- + Rs.45,000/-), as compensation to the appellant. Against which, the appellant/claimant has filed this present appeal on the ground that the Court below is not right in fastening the 50% negligence on this appellant and the quantum awarded by the Court below is on the lower side.
5. The learned counsel appearing for the appellant/Claimant contended that the Tribunal ought to have fixed the entire negligence on the part of first respondent. However, in the case on hand, the tribunal has wrongly fixed the contributory negligence on the appellant also. Further, the quantum of compensation is also on the lower side and the same should be enhanced.
6. Per contra, the learned counsel for the first respondent contended that the Tribunal has rightly fixed the liability as 50:50 and the quantum awarded is also reasonable and hence, the same does not require interference by this Court.
7. Heard the learned counsel appearing on both sides and perused the materials available on record.
8.The point for consideration in this appeal is as follows:-
(i) Whether the appellant/claimant is responsible for the accident?
(ii) Whether the Court below has awarded the just and reasonable compensation?
9. As far as the first point is concerned, the learned counsel for the appellant/claimant would draw the attention of this Court to relevant portion of the order of the Tribunal, wherein, it has been held as follows:
?vjph;kDjhuh; jug;gpy; kDjhuh;jhd; ngUe;J tUtij ftdpf;fhky; jpObud;W rhiyia FWf;nf flf;f brd;wjhy; tpgj;njw;gl;ljhf thjplg;gl;lJ. Mdhy; mjid epU:gpf;f vjph;kDjhuh; thfdXl;Leh; rhl;rpahftprhhpf;fgltpy;iy. mjw;fhd vt;tpj tpsf;fKk; vjph;kDjhuh; jug;gpy; ,y;iy. Kjy; jfty; mwpf;if k.rh.M1I Muha;e;J ghh;f;Fk;nghJ tpgj;Jf;F vjph;kDjhuh; ngUe;JXl;Lehpd; ftdf;Fiwt[ vd Fwpg;gplg;gl;Ls;sJ. mjid cWjp bra;a[k; tifapy; kDjhuh;fs; k.rh.1> k.rh.2 Mf rhl;rpakspj;Js;sdh;. vjph;kDjhuh; thfd Xl;Leh; bkJthft[k; ftdkhft[k; thfdj;ij Xl;oapUe;jhy; kDjhuh;fs; brd;w ,Urf;fu thfdj;jpd;kPJ nkhjntz;oa mtrpakpy;iy. Vdnt nkw;go rhl;rpfs; kw;Wk; Mtzq;fisg; ghh;f;Fk;nghJ tpgj;Jf;F fhuzk; vjph;kDjhuh; ngUe;J Xl;Lehpd; ftdf;Fiwt[ vd Kot[ bra;ag;gLfpwJ.?
9.1. The learned counsel for the petitioner would contend that the persons travelling in the moped has cross the road without seeing the offending vehicle and contributed to the negligence and to establish the same, the driver was not examined. In support of his contention, he would also rely on the Judgement in LEELA BAI AND OTHERS v. MUNNA LAL AND OTHERS reported in 1996 ACJ 1190, wherein it has been specifically stated that the Tribunal found that since three persons were sitting on the moped which was sufficient to presume that there was contributory negligence on the part of the appellants. On this point, the Tribunal had deducted 20 per cent of the amount calculated for the award. The learned Judge, has specifically stated that the contributory negligence could not be assumed and it has to be proved. Further, it is stated that if three persons have been sitting on the moped, that by itself does not amount to contributory negligence. On the other hand, the nature of the accident was taken into account and if there is any indication of contributory negligence, then only, contributory negligence can be fixed on the person.
10. Per contra, the learned counsel for the first respondent would rely on the Judgment of this Court reported in NATIONAL INSURANCE COMPANY LTD. v. S.CHITRA AND OTHERS, 2009 (1) TN MAC 411 (DB), wherein, the Hon'ble Division Bench of this Court has categorically stated that they would strongly deprecate the practice of drivers of two-wheelers carrying more than one person besides themselves in their vehicles. A two-wheeler is meant for a driver and a pillion rider alone and no more passengers. Therefore, it is very clear that there is violation of Rule by the claimant and also by virtue of number of people travelling in the vehicle, there was a wobling in the vehicle and ultimately, resulted in the accident. Definitely, the contribution of the injured person should be taken note of.
Heard the learned counsel for the appellant and learned counsel for the respondents.
11. In my considered opinion, the judgment relied on by the learned counsel appearing for the insurance company is not applicable to the case on hand. Here is the case where the learned Judge at paragraph No.8 (extracted above), has specifically stated that though the respondents had argued that the appellant/claimant had tried to cross the road without noticing the respondents' vehicle, to establish the same, the driver of the respondent vehicle was not examined. As per the FIR, the accident occurred due to the negligence of the respondent vehicle. To prove the same, P.Ws.1 and 2 were examined. The learned Judge further held that as per the evidence of P.Ws.1 and 2, the respondent vehicle is the cause for the accident and after giving such finding that the negligence was on the part of the respondent, the learned Judge ought not to have fixed the contributory negligence at 50% on the appellant, which is highly disproportionate.
12. In view of the above discussion, in my considered opinion, as rightly pointed out by the learned Judge in the Judgement reported in 1996 ACJ 1190 (cited supra) that the contributory negligence should not be assumed, but it has to be proved and travelling with three persons alone will not amount to contributory negligence, the finding of the Tribunal in fixing 50% liability on the appellant has to be set aside and accordingly, it is set aside and the entire negligence is fixed on the first respondent herein. Accordingly, the first point is answered in favour of the appellant/claimant.
13. The doctor who gave the disability certificate was examined as P.W.3. The Doctor has categorically stated that the petitioner has sustained 32% of permanent disability. However, the Tribunal fixed the disability as 30% and awarded only a sum of Rs.2,000/- (Rupees Two Thousand only) for 1% permanent disability and awarded a total sum of Rs.60,000/-(Rupees Sixty Thousand only) (30%x2,000=60,000). As per the judgment of this Court in National Insurance Company Limited v. G.Ramesh and another reported in 2013 (2) TN MAC 583, this Court fixes a sum of Rs.3,000/- (Rupees Three Thousand Only) for 1% permanent disability and awards a total sum of Rs.90,000/- (Rupees Ninety Thousand Only) towards disability. Further, the Tribunal has awarded a sum of Rs.15,000/- towards pain and sufferings, which is very meagre because the claimant was under treatment for more than one month and therefore, it is enhanced to Rs.50,000/- (Rupees Fifty Thousand only) and a sum of Rs.8,000/- is awarded towards nutritious food. The claimant has suffered disability at 32% and therefore, a sum of Rs.15,000/- is awarded towards nutritious food. The amount of Rs.4,000/- towards transportation and a sum of Rs.1,000/- for damaged clothes are reasonable and the same is confirmed; A sum of Rs.2,000/- is awarded for loss of income during the treatment period, which is very low. Considering the period of treatment, it is awarded to Rs.5,000/-. The rate of interest awarded by the Tribunal at 7.5% per annum is also confirmed.
14. In view of the settled position of law, this Court modifies the award of the Tribunal by enhancing the compensation, as under:- S.No Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted
1. For permanent disability (30%) 60,000 90,000 enhanced
2. For pain and sufferings 15,000 50,000 confirmed
3. For Nutrition 8,000 15,000 confirmed
4. For loss of income during treatment period 2,000 5,000 confirmed
5. For Damages of clothes 1,000 1,000 confirmed
6. For transportation 4,000 4,000 confirmed Total Rs.90,000 Rs.1,65,000 By enhancing a sum of Rs.75,000/-
15. In the result, this Civil Miscellaneous Appeal is allowed, enhancing the award of the Tribunal from Rs.90,000/- (Rupees Ninety Thousand only) to a sum of Rs.1,65,000/- (Rupees One Lakh Sixty Five Thousand only) along with interest at the rate of 7.5% per annum from the date of petition till date of realisation and proportionate costs;
16. The second respondent-Insurance is directed to deposit the entire award amount namely, Rs.1,65,000/- along with accrued interest and costs, less the amount deposited, if any, to the credit of M.C.O.P.No.148 of 2009 on the file of the Motor Accidents Claims Tribunal (III Additional Sub Court), Trichy, within a period of eight weeks from the date of receipt of a copy of this judgment;
17. On compliance of payment of additional Court Fees, if any, by the claimant, the Tribunal is directed to transfer the entire award amount, namely, Rs.1,65,000/- (Rupees One Lakh Sixty Five Thousand only) along with accrued interest and costs directly to the Personal Savings Bank Account Number of the appellant-claimant, through RTGS/NEFT system, after getting his Account Details, within a period of two weeks, thereafter; and in the facts and circumstances of the case, there shall be no order as to costs.
To
1.The III Additional Sub Judge, Motor Accidents Claims Tribunal, Trichy.
2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
.