This appeal is directed against the judgment and award passed by the lower court made in M.C.O.P.No.87/1996 dated 19.06.2003.
2. The appellant was the claimant before the lower court. The respondents were the respondents in the lower court.
3. The case of the claimant before the lower court is stated briefly as follows:
Claimant was working as a tailor in Zodiac readymade dresses shop at Bangalore. Claimant father is running a vegetable shop in his native place. When the claimant comes to his native place he buys vegetable for his father. On 05.03.1995 when the claimant came to his native place he bought 3 bags of onion and loaded them in the 1st respondent vehicle lorry bearing Registration No. C.A.A.7569. When the lorry was nearing Melmonavur at about 5.45 a.m, it dashed against the bus belonging to the 3rd respondent bearing Registration No. TN-23-NO.123 in which the claimant was injured. Claimant was immediately taken to the Vellore Government hospital and further he was taken to C.M.C. Medical hospital as inpatient from 05.03.1995 till 14.03.1995 and was getting treatment for the injuries sustained by him. Claimant had spent Rs.25,000/- towards medical expenses and for the injury caused on his eye the claimant spent Rs.5,000/-.
(b) Claimant was physically fit before the accident and was doing the tailoring work. After the accident he was not able to continue the work as tailor and because of that he was unable to earn his monthly income of Rs.5,000/-. He further submits that the 1st respondent driver is responsible for the accident and hence the claimant claims compensation of Rs.2,00,000/- for the loss of income.
4. The contentions raised by the 2nd respondent in his statement of objection would be as follows:
The 2nd respondent submits that the appellant was permitted to travel in the lorry as a passenger which is not covered under the insurance policy. The appellant has not proved that the driver was having the driving license. The claimant is put to strict proof as regards the age, avocation and income of the claimant. The injuries sustained by the claimant and the period of treatment undergone by the claimant as well as the medical expenses incurred by the claimant are denied. Hence the compensation claimed by the claimant is excessive and hence the petition has to be dismissed.
5. The contentions raised by the 3rd respondent in his statement of objection would be as follows:
The 3rd respondent denies the contentions of the claimant and submits that the bus was driven slowly and carefully by the driver and there is no fault on the part of the 3rd respondent driver. Accident occurred due to the rash and negligent driving of the 1st respondent dashed with the 3rd respondent vehicle. Hence the 1st respondent is responsible for the accident. In the case also it was registered as that the accident took place due to the rash and negligent driving of the lorry by the driver. The appellant has not proved that the driver was having the driving license. The claimant is put to strict proof as regards the age, avocation and income. The injuries sustained by the claimant and the period of treatment undergone by the claimant as well as the medical expenses incurred by the claimant are denied. Hence the compensation claimed by the claimant is excessive and hence the appeal has to be dismissed.
6. The lower court examined P.W.1 and P.W.2 and admitted documentary evidence Ex.P.1 to Ex.P.6 on the side of the petitioner and examined R.W.1 and R.W.2 and admitted Ex.R.1 to Ex.R.4 on the side of the respondents and had come to a conclusion that the 1st respondent alone was liable to pay a sum of Rs.29,400/- towards compensation out of the claim made by the claimant for a sum of Rs.2,00,000/- in the petition. Against the said order passed by the lower court, the appellant/claimant had preferred the appeal questioning the liability as well as the quantum of compensation.
7. Heard Ms.Stanli, learned counsel appearing for the appellant/claimant and Mr.G.Munirathinam,learned counsel appearing for the 3rd respondent. No representation or appearance for the respondents 1 and 2.
8. Learned counsel for the appellant/claimant would submit in her argument that the lower court had not discussed the evidence produced by the petitioner and had wrongly come to the conclusion that the claimant was a gratuitous passenger not entitled to get his compensation from the insurance company and the claim against the 3rd respondent Transport Corporation should have been ordered along with other respondents but had failed to pass award against them also. She would further submit in her argument that the quantum of compensation calculated by the lower court is sherely a pittance when the claimant had sustained injury on his head and all over his body. The lower court did not consider the permanent disability of 35% proved through the examination of Doctor P.W.2 but had rejected the evidence by saying that P.W.2 was only an ortho surgeon and not a 'Neuro surgeon' and the award of low compensation of Rs.10,000 is adding insult to the injury. She would further submit in her argument that the claimant was taking treatment and he could not do anything during the said period and no compensation has been awarded for the temporary loss of income. She would further submit in her argument that the expenditure towards extra nourishment was awarded only at Rs.2000/- and no compensation was awarded for transport nor for the attendant charges and on that score also lower court failed in granting compensation and therefore the quantum of compensation should also be revised in accordance with law.
9. She would further argue that the liability may be attached to the 2nd respondent as well as 3rd respondent and an appropriate award may be passed and the appeal may be thus allowed.
10. Learned counsel for the 3rd respondent would submit in his argument that when the lower court came to a conclusion that the driver of the 3rd respondent was in no way responsible for the commission of the accident the bus corporation belonging to 3rd respondent is not all responsible to pay the claim of compensation for the claimant and therefore the appeal against the 3rd respondent has to be dismissed on that score itself. He would also submit in his argument that the quantum of compensation as fixed by the lower court can be considered in view of the situation that the 3rd respondent is not liable to pay the said compensation. Alternatively he would submit in his argument that the quantum of compensation as fixed by the lower court need not be revised.
11. Considering the submissions made on either side, this court could see that the accident was an admitted fact in which the appellant/claimant was injured. It is the lower court which had come to the conclusion that the claimant was travelling in the vehicle belonging to the 1st respondent as a gratuitous passenger without accompanying any goods and therefore the 2nd respondent was not at all liable to pay the compensation payable to the claimant. The lower court had also came to the conclusion that the driver of the 3rd respondent was not responsible for the cause of accident and therefore the 3rd respondent was not liable. Since the driver of the 1st respondent was found guilty of negligent driving 1st respondent alone was liable to pay the compensation at Rs.29,400/- with interest at 9% p.a from the date of petition till the date of payment.
12. The claim against respondents 2 and 3 were dismissed. The case of the appellant/claimant are two fold in this appeal. The appellant is questioning the judgment of lower court in deciding the liability against the 1st respondent alone in respect of the quantum fixed by the lower court. Firstly when we analyse the liability to pay compensation is concerned, we could see that the accident had happened in between two vehicles belonging to 1st and 3rd respondent on 05.03.1995. The case of the claimant was that he travelled in a vehicle belonging to the 1st respondent which was a goods vehicle along with his onion bags and he also paid for the onion bags and aslo for him to travel in the said vehicle. However the lower court had come to the conclusion that the claimant did not prove that he had travelled along with the goods in the 1st respondent's vehicle and therefore he was only a gratuitous passenger and the insurance policy entered into between the respondents 1 and 2 will not govern the payment of compensation on behalf of 1st respondent and therefore if any compensation is fixed payable to the claimant it should be paid by the 1st respondent alone.
13. The lower court had also found that the 3rd respondent was no way responsible for the accident and therefore it had dismissed the claim against the 3rd respondent. According to the evidence of P.W.1, he travelled in the 1st respondent vehicle along with onion bags and unfortunately the accident had happened and he sustained injuries.
14. A careful perusal of the evidence of P.W.1, we could see that he had answered to the question in his cross examination that he had paid money for travelling in the said vehicle. The said answer was clarified in his re-examination that the money paid by the claimant was for the luggage and for his person. In the entire cross examination of P.W.1 nothing was suggested to P.W.1 that he did not carry any luggage in the 1st respondent's vehicle. In the absence of such cross examination the evidence spoken by P.W.1 that he travelled in the vehicle of 1st respondent along with the luggages, for consideration has to be held as true.
15. In the aforesaid circumstances, the claimant cannot be called as a gratuitous person and the contract of indemnification entered into between the respondents 1 and 2 cannot be kept away for refusing the payment of compensation to the claimant by the 2nd respondent. In the aforesaid circumstances, the lower court had lost sight of the evidence adduced by P.W.1 and had not discussed about the cross examination but it had simply found that the claimant was only gratuitous person. The finding of the lower court that the 2nd respondent is not at all responsible and therefore the entire liability fastened on the 1st respondent is not correct. The terms of the insurance policy will certainly bind the 2nd respondent under the contract of indemnity, as the claimant was not a gratituous passenger.
16. So far as the finding of lower court in respect of the 3rd respondent is concerned it has been categorically found that there was no fault on the part of the driver of the 3rd respondent and the 3rd respondent is not responsible for the payment of compensation.
17. The finding of the lower court is perfectly all right in respect of 3rd respondent. Therefore any compensation fixed for the injuries sustained by the claimant should have been paid by the respondents 1 and 2 alone.
18. As regards the quantum of compensation is concerned the claimant is said to have injured in the accident happened on 05.03.1996, and his discharge summary is produced as Ex.P.4. In the said document we can see that the claimant had sustained five simple and one grievous injury on his head. He took treatment in the hospital for quite a longer time and he should have felt much pain and sufferings. Therefore a sum of Rs.5,000/- for one grievous injury and Rs.1,000/- per simple injury for five simple injuries total Rs.10,000/- has to be awarded towards the compensation for pain and sufferings. The fixing of damages separately at Rs.5,000/- for head injury and Rs.5,000/- for pain and sufferings by the lower court is not sustainable.
19. As regards the disability is concerned the lower court had simply rejected the permanent disability issued by the Doctor P.W.2 for 35% on the reason that P.W.2 was not a 'neuro surgeon'. The injuries sustained by the claimant would certainly result in disabilities which could be spoken by the Doctor who is well versed either in ortho or neuro. It is not a valid reason for rejecting the permanent disability sustained by the claimant. No doubt the injury caused on the head was a fracture and it had caused injury on the brain and due to the said impact the permanent disability has been caused. In the aforesaid circumstances, the Doctor P.W.2 had examined him clinically and assessed permanent disability at 35%. When we go through the facts the disability awarded could be accepted in toto. Now the compensation can be assessed through the formula of Rs.2,000/- per 1%. When we calculate for 35% disability it would reach a sum of Rs.70,000/- to be awarded towards permanent disability. With regard to the temporary loss of income is concerned nothing the lower court is silent. No doubt the claimant was taking treatment for a limited period before Government hospital but he had taken treatment subsequently for quite longer period for his head injury and to cure damage caused to the brain. Considering the gravity of injury and the disabilities caused to the claimant the temporary loss of income should have been fixed for about six months at the rate of Rs.3,000/- per month. Therefore, a sum of Rs.18,000/- has to be paid on that category. With regard to the medical expenses is concerned, the lower court has awarded a sum of Rs.7,400/- on the basis of Ex.P.5 and the said amount is acceptable towards medical expenses.
20. The lower court did not award any amount towards medical attendant's charges and transport to hospital. The claimant is also entitled to a sum of Rs.5,000/- on that caption. The lower court had awarded only a sum of Rs.2,000/- towards extra nourishment which is a smaller amount when compared to the injuries sustained by the claimant. Therefore is enhanced to Rs.5,000/-. When we calculate the total amount fixed under various heads it comes to Rs.1,20,400/- to which the lower court had awarded only a sum of Rs.29,400/- only which is not correct and proportionate to the facts and circumstances of the case.
21. In the foregoing discussions, we have seen that the claimant is entitled to a sum of Rs.1,20,400/- where as the lower court has awarded a sum Rs.29,400/- only therefore the appeal is allowed in part enhancing the compensation from Rs.29,400/- to Rs.1,20,400/- and enhanced compensation fixed at Rs.91,000/- is ordered to be paid to the claimant by the respondents 1 and 2 with interest at 7.5% from the date of petition till the date of payment with proportionate costs. The claim against 3rd respondent is not sustainable and therefore the appeal preferred by the appellant against 3rd respondent is dismissed. There is no order as to costs in this appeal.
kpr To Sub Judge Motor Accidents Claims Tribunal, Arni