IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1731 of 2008 and M.P.No.1 of 2009 The National Insurance Co., Ltd., Coimbatore .. Appellant /IV Respondent Vs 1.Munieswaran 2.B.Manoharan 3.The New India Assurance Co., Ltd., Coonoor, 4.A.V.Dhanasekaran .. Respondents/Petitioner and (R2 & R4 Ex-parte) Respondents 1 to 3 Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 16.08.2007, made in M.C.O.P.No.213 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Tirupur, Coimbatore District. For appellant : Mr.J.Chandran For respondents : Mr.S.S.Swaminathan, for R1 No appearance, for R-3 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/fourth respondent against the Award and Decree, dated 16.08.2007, made in M.C.O.P.No.213 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Tirupur, Coimbatore District, awarding a compensation of Rs.2,20,000/- with 7.5% interest per annum, from the date of filing petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/fourth respondent, the National Insurance Co., Ltd., Coimbatore, has filed the above appeal praying to set aside the award and decree passed by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 3.The short facts of the case are as follows: On 23.07.2004, at about 17.00 hours, the petitioner was going by a Maruti Van, bearing registration No.TN43 3575, from west to east, in the east west Mettupalayam Road and when it was near Alamaram bus stop, the said Maruti Van was driven rashly and negligently by its driver, working under the first respondent, without adhering to traffic rules and regulations and dashed the Maruti Van against the Car bearing registration No.TN40 3893, coming on the opposite direction, which was also driven rashly and negligently by its driver, working under the third respondent. 4.Due to the accident, the petitioner sustained grievous injuries namely fractures at left upper limb, shaft of left humerus and injuries all over his body. Immediately, the petitioner was taken to K.P.S.Mettupalayam and P.S.G.Hospital, Coimbatore, and admitted as inpatient. The petitioner was undergoing treatment for one month and still the petitioner is undergoing treatment. The petitioner was employed in M/s.Mouni Garments, Pichampalayam, Tirupur, as a Tailor and was earning a sum of Rs.4,000/- per month. After the accident, the petitioner is unable to attend the work. The petitioner has claimed a compensation of Rs.5,00,000/- from the respondents under Section 166 of the Motor Vehicles Act. 5.The first respondent, as the owner of the Maruti Van bearing registration No.TN43 3575, the second respondent, the insurer of the above said vehicle, the third respondent, as the owner of the vehicle 'Indica' Car bearing registration No.TN40 3893 and the fourth respondent, as the insurer of the vehicle bearing registration No.TN40 3893 are jointly and severally liable to pay the said compensation to the petitioner. 6.A criminal case has been filed against the driver of the Maruti Van under Sections 279 and 337 of I.P.C. by the Sirumugai Police Station in Crime No.252 of 2004, but the petitioner has submitted that the accident happened due to the rash and negligent driving by the drivers of both the vehicles. 7.The second respondent, in his Counter has resisted the claim stating that the alleged accident happened only due to the careless act of the driver of the car bearing registration No.TN40 3893 and as such he is not liable to pay any compensation to the petitioner. The age, income and occupation of the petitioner, the nature of injuries, permanent disability caused to the petitioner and medical expenses incurred by him has also not been admitted. It is submitted that the claim under various heads are excessive and hence it is prayed that the petition should be dismissed. 8.The fourth respondent, in his Counter has resisted the claim stating that the drivers of both the cars, which were alleged to have been involved in the accident have not been made parties to the proceedings and as such the petition ought to be dismissed as against him. It was submitted that as accident happened only due to the https://hcservices.ecourts.gov.in/hcservices/ negligence of the driver of the Maruti Van and that the FIR has been registered as against the driver of the Maruti Van bearing registration No.TN43 3575, the fourth respondent is not liable to pay any compensation to the petitioner for the injuries sustained by him in the alleged accident, and that only the second respondent is solely liable to pay compensation to the petitioner. The fourth respondent has also submitted that the petitioner has to prove that the drivers of both the vehicles involved in the alleged accident had valid driving licence at the relevant time of the accident. The age, cause and extent of injury, income and occupation of the petitioner and various other details furnished in the petition was also not admitted. It was also submitted that the claim was exaggerated and has to be dismissed. 9.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Whether the accident was due to the rash and negligent act of the driver of the car bearing registration No.TN40 3893 or of the driver of the van, bearing registration No.TN43 3575 or of both of them? (ii) Whether, the petitioner is entitled to get compensation and if so, what is the quantum of compensation, which he is entitled to get? 10.On the petitioner's side, five witnesses were examined as PW1 to PW5 and 14 documents were marked as Exs.A1 to A14. On the respondents' side, one witness was examined as RW1 and two documents were marked as Exs.B1 and B2. 11.The petitioner was examined as PW1, in his evidence, he stated that when he was travelling in Maruti Van bearing registration No.TN43 3575, near Kattupillaiyarthottam, Alamaram bus stop in Annur to Mettupalayam road at about 5.00 p.m on 22.07.2004, the Indica Car bearing registration No.TN40 3893 came rashly in the opposite direction and collided with the said maruti van and that he had sustained injuries in the accident. He had deposed that the accident was due to the rash and negligent act of the drivers of both the vehicles. Based on the complaint of one Thiru.Gopal, who was the driver of the Indica car bearing registration No.TN40 3893, a case in Crime No.252/2004 was registered against the driver of the Maruti Van bearing registration No.TN43 3575 under Sections 279 and 337 of I.P.C. Ex.A1 is the copy of FIR. It is stated in the FIR that the accident was due to the rash and negligent act of the driver of the maruti van. One Thiru.Udayakumar, who is working as Administrative Officer in the Office of the fourth respondent was examined as RW1. The copy of Charge Sheet filed against the driver of the van bearing bearing registration No.TN43 3575 was marked through him as Ex.B1. The rough Sketch drawn by the Investigating Officer was marked as Ex.B2. By relying on the said documents, the learned counsel https://hcservices.ecourts.gov.in/hcservices/ appearing for the fourth respondent has contended that the accident was caused due to the rash and negligent act of the driver of the maruti van. In the case of collision between two motor vehicles, the fact whether the accident was due to the rash and negligent act of any one of the drivers of the vehicles or due to contributory negligence of drivers of both the vehicles is to be decided based on direct evidence adduced by the parties before the Tribunal. No direct oral evidence has been let in on the side of the second and fourth respondents. Hence, the Tribunal on considering evidence of the PW1, held that the accident was caused due to the contributory negligence of the drivers of both the vehicles and accordingly fixed their contribution of negligence at 50% each. 12.As such, the Tribunal held that each of the first and fourth respondents, being insurers of the vehicles involved in the accident, are liable to pay 50% of the compensation awarded to the petitioner. 13.Ex.A2 is the Discharge Summary issued to the petitioner/PW1 for the treatment given at P.S.G.Hospital, Coimbatore as inpatient from 15.10.2004 to 23.10.2004. He has sustained a fracture over the shaft of left humerus bone and open reduction and internal fixation with bone grafting was done by surgery on 18.10.2004. PW3, Dr.Senthilkumar, who is an Ortho-surgeon working in C.M.C.Hospital, Coimbatore has examined the petitioner/PW1 on 05.03.2007 and issued a Certificate as Ex.A6, fixing the permanent partial disability suffered by the petitioner due to restricted movement of left upper hand and loss of co-ordination at 33.3%. The petitioner had stated that he was working as a overlock tailor in M/s.Mouni Garments, Tiruppur and earning a sum of Rs.4,000/- per month and that he is unable to pursue his avocation after the accident due to the injuries in his left hand. One Thiru.Balu was examined as PW4. He had deposed in his evidence that the petitioner was working with him as overlock tailor in M/s.Mouni Garments, Tiruppur and earning a sum of Rs.4,000/- per month and that he has stopped the work after the accident. Ex.A4 is the Certificate issued by the proprietor of Mouni Garments, Tiruppur to the effect that the petitioner was earning a sum of Rs.4,000/- per month as a overlock tailor. The Tribunal, on taking into consideration the loss of future earning power on account of injuries his left hand fixed it at 25%. As such, the Tribunal, considering that the income of the petitioner could be taken as Rs.3,000/- per month as it was the normal minimum wages of any labourer in that area, and considering the age of petitioner as 27 years at the time of accident, as per Ex.A2, adopted a multiplier of 18 relevant to the petitioner's age and computed the compensation for the loss of future earning power at 25% as 25/100 X Rs.3,000/- X 12 X 18 = Rs.1,62,000/-. The Tribunal further awarded a compensation of Rs.39,000/- towards expenses for medical treatment as per bills shown in Ex.A4. The Tribunal awarded a sum of Rs.10,000/- under the head of pain and suffering; a sum of Rs.3,000/- awarded for extra nourishment; a sum of Rs.5,000/- awarded for loss of income during treatment and a sum of Rs.1,000/- awarded for transport charges. In total, the Tribunal awarded a compensation of Rs.2,20,000/- and https://hcservices.ecourts.gov.in/hcservices/ directed the second and fourth respondents to pay a sum of Rs.1,10,000/- each with interest at the rate of 7.5% per annum from the date of petition till the date of payment and deposit the said amount with interest, into the credit of the M.C.O.P.No.213 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Tirupur, Coimbatore District, within a period of two months from the date of its Order. The petitioner was directed to pay deficit Court fee within a period of ten days from the date of its Order. The Advocate fees was fixed at Rs.7,400/-. 14.The learned counsel appearing for the appellant has contended in his appeal that it has been stated in the claim petition that on 23.07.2004, at about 17.00 hours, while the claimant was going in the maruti van bearing registration No.TN43 3575 from west to east, the said car was driven rashly and negligently without adhering to traffic regulations and that it had dashed against the India Car bearing registration No.TN40 3893, which was coming on the opposite direction and caused the accident. It has also been submitted in the claim application that the maruti van bearing registration No.TN43 3573 alone was shown as the offending vehicle and not the Indica car bearing registration No.TN40 3893. 15.The learned counsel appearing for the appellant has further contended that as per the exhibit marked as R2, it is clearly established that only the maruti van has gone on to the right side of the road in the wrong direction and stopped on the southern side after dashing against the Indica Car. The learned counsel appearing for the appellant has contended that though the Police has charge sheeted only the maruti van driver, the Tribunal mentioning that no direct or oral evidence has been adduced by the drivers of both the vehicles has hastily held both vehicles as equally responsible and apportioned the liability at 50% each without appreciation of documentary evidence of Ex.R1 and R2. It is also mentioned that the learned Tribunal ought to have disbelieved the evidence of PW2, Dr.Senthilkumar and his assessment of partial permanent disability at 33.3% towards restricted movement of left upper arm, without mentioning any fracture and also on the mere ground of the nature of injury being mentioned as simple in the accident register. 16.Further, it was contended that the findings arrived at by the learned Tribunal to assess the compensation of Rs.2,20,000/- granted by it has been purely on its discretion rather than on the basis of either oral or documentary evidence available on record. Therefore, the learned counsel appearing for the appellant has claimed that as the reasoning of the learned Tribunal in having awarded a sum of Rs.2,20,000/- is against the pleadings, facts, evidence and unrealistic and against the well laid principles of law, the award passed by the learned Tribunal has to be set aside. 17.The learned counsel appearing for the respondent argued that the second respondent/the New India Assurance Co., Ltd., did not file https://hcservices.ecourts.gov.in/hcservices/ any appeal against the said award. As per Sketch and tyre marks, both the vehicles are equally involved in the said accident even though there was no criminal case registered against the driver of the Indica car. Further, the learned counsel appearing for the respondents argued that criminal proceedings are entirely different from the proceedings in claim case and as such the criminal case cannot be taken as a ground to assess compensation and liability. 18.Considering the facts and circumstances of the case, this Court is of the view that the compensation of Rs.2,20,000/- awarded together with interest at the rate of 7.5% per annum is reasonable. The quantum of compensation has been assessed by the Tribunal, on the basis of nature of injuries of the claimant and the mode of treatment received ie. open reduction and internal fixation with bone grafting by surgery. This surgery has been undergone by the claimant in a private hospital. Further, as the claimant was a tailor, the income of Rs.3,000/- taken by the Tribunal as income of tailor is admissible. Considering that the year of accident was 2005, the age of the claimant was 27 years. As such, this Court finds that there is no error in the adoption of multiplier of 18 by the Tribunal and assessment of loss of income as Rs.1,62,000/-; a sum of Rs.38,399/- has been awarded by the Tribunal on the basis of Ex.A3, medical bills; a sum of Rs.10,000/- has been awarded by the Tribunal for pain and suffering; a sum of Rs.3,000/- has been awarded by the Tribunal for extra-nourishment; a sum of Rs.1,000/- has been awarded by the Tribunal for transport charges and a sum of Rs.5,000/- has been awarded by the Tribunal for loss of income during the medical treatment period, are all reasonable and fair. Hence, this Court confirms the quantum of compensation awarded by the Tribunal. 19.Regarding the negligence and liability, the Tribunal has come to a conclusion on this aspect on the basis of Exs.P1 and P2, Charge Sheet and Rough Sketch respectively. Further, only on the basis of evidence of RW1, who is an Administrative Officer of the fourth respondent/National Insurance Co., Ltd., the Tribunal has come to a conclusion that there has been equal contributory negligence on the part of both the drivers of vehicles involved in the accident. In the absence of examination of both the drivers of the vehicles, the Tribunal has come to a conclusion on contributory negligence on the basis of scrutiny of Exs.B1 and B2 namely Charge Sheet and Rough Sketch prepared by the Investigating Officer. So, negligence point also has been carefully considered by the Tribunal. Therefore, the award granted by the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Tirupur, Coimbatore District, in M.C.O.P.No.213 of 2005, together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment is reasonable and fair. 20.At the time of admission, this Court directed the appellant to deposit a sum of Rs.75,000/- together with proportionate interest and entire costs into the credit of the M.C.O.P.No.213 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District https://hcservices.ecourts.gov.in/hcservices/ Judge, Fast Track Court No.IV, Tirupur, Coimbatore District. This Court directs the appellant/National Insurance Co., Ltd., to deposit the balance compensation amount of Rs.35,000/- with proportionate interest from the date of filing this petition till the date of payment, into the credit of the M.C.O.P.No.213 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Tirupur, Coimbatore District, within a period of four weeks from the date of receipt of this Order. 21.As the accident happened in the year 2005, it is open to the claimant/respondent to withdraw the entire compensation amount with accrued interest and costs, lying in the credit of the M.C.O.P.No.213 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Tirupur, Coimbatore District, after filing necessary payment out application in accordance with law. 22.In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 16.08.2007, passed by the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Tirupur, Coimbatore District, in M.C.O.P.No.213 of 2005, is confirmed. Consequently, connected miscellaneous petition is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To 1.Additional District Judge, Motor Vehicles Accident Claims Tribunal, Fast Track Court No.IV, Tirupur, Coimbatore District. 2.The Section Officer, VR Section, High Court, Madras. 1 cc To Mr.S.S.Swaminathan, Advocate, SR.4701 C.M.A.No.1731 of 2008 KA(CO) sra 09.02.2010 https://hcservices.ecourts.gov.in/hcservices/