1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.10.2009 CORAM: THE HONOURABLE MR.JUSTICE S.PALANIVELU C.M.A.(MD)Nos.87 and 88 of 2006 and M.P(MD)Nos.1 and 2 of 2009 The Divisional Manager, The oriental Insurance Company Limited, Ramakrishna Building, Aristo Junction, Trivandrum. ... Appellant in both C.M.As' Vs. 1. Alexander ...First Respondent in C.M.A.No. 87 of 2006 2. Jose Antony ...First Respondent in C.M.A.No. 88 of 2006 2. Hari ... Second Respondent in both C.M.As' COMMON PRAYER:Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles Act, 1998 against the judgments and decrees made in M.A.C.O.P.Nos.58 and 65 of 2004, dated 25.08.2005, on the file of the Motor Accident Claims Tribunal (Principal Subordinate Judge),Tirunelveli. For Appellant : Mr.C.Ramachandran in both C.M.As' For Respondent-1 : Mr.T.Selvakumaran in both C.M.As' For Respondent-2 : No appearance in both C.M.As' COMMON JUDGMENT The oriental Insurance Company Limited, Ramakrishna Building, Aristo Junction, Trivandrum, has filed these Appeals, aggrieved over the awards, dated 25.08.2005, made in M.A.C.O.P.Nos.58 and 65 of 2004, on the file of the Motor Accident Claims Tribunal (Principal Subordinate Judge), Tirunelveli. https://hcservices.ecourts.gov.in/hcservices/ 2 C.M.A(MD)No.87 and 88 of 2006: 2. In the claim petitions, it is stated that on 06.12.2003 at about 3.15 A.M., while both the claimants were going by Motor-Cycle bearing Registration No. TN 74 X 8890, nearing Valli Workshop near Pandimavilai, a Mahindra Van bearing Registration No. KL 01 T 7648 was driven by its driver in a rash and negligent manner and dashed against the motor-cycle and the accident had occurred. Both of them were rushed to Marthandam Issac Hospital and thereafter, to Nagercoil Thiriviyam Hospital. Both of them were fish vendors and were earning Rs.3,000/-p.m. Hence, a sum of Rs.3,00,000/- and Rs.4,00,000/- are claimed as compensation. 3. In the counter filed by the second respondent, it is stated that the claimants have to establish their income and avocation. The negligence on the part of the motor- cyclists was the cause for the accident. They sustained only simple injuries. The compensation claimed under various heads are excessive and hence, the petitions have to be dismissed. 4. The learned Tribunal Judge, after analysing the records had fastened the responsibility of causing the accident on the Mahindra Van driver and awarded a sum of Rs.3,83,020/- and 2,43,160/- payable by the respondent/Corporation to the claimants. Aggrieved by the same, the appellant is before this Court. C.M.A(MD)No.87 of 2006 5. The following is the compensation fixed by the Tribunal under various heads: 1. for injuries - Rs. 50,000/- 2. for pain and suffering - Rs. 5,000/- 3. for transport expenses - Rs. 1,000/- 4. for extra nourishment - Rs. 3,000/- 5. for medical expenses - Rs. 93,820/- 6. " - Rs. 85,100/- 7. " - Rs. 23,190/- 8. " - Rs. 19,900/- 9. for medical bills - Rs. 2,550/- 10. for permanent disability 60% - Rs. 60,000/- 11. for loss of income during treatment period - Rs. 1,000/- 12. for loss of earning power - Rs.30,000/- -------------- Total -Rs.3,74,560/- -------------- (In the award it is mentioned as Rs.3,83,020/-) 6. The doctor/P.W.3 examined the claimant for the purpose of giving the Disability Certificate. He says that the claimant was inpatient from 06.12.2003 to 18.01.2004 and in the hospital https://hcservices.ecourts.gov.in/hcservices/ 3 he has undergone surgery, that he has undergone skin-grafting as well as bone-grafting and hence, he sustained fractures in his right leg and hence, he is suffering from permanent disability to the tune of 60%. 7. In view of this Court, grant of Rs.50,000/- for injuries and Rs.5000/- for pain and sufferings is not sustainable. They are clubbed together under one head of pain and suffering and a sum of Rs.20,000/- is awarded. Rs.2,550/- for medical bills is not borne out by documents and hence, the said part of the award is deleted. Transport expenses is increased to Rs.3,000/-. For each percentage of permanent disability, a sum of Rs.2,000/- could be awarded. The Tribunal has awarded a sum of Rs.60,000/- for permanent disability and Rs.30,000/- awarded towards loss of earning power and both of them have to be granted under a single head of permanent disability. In this head, the claimant could be granted a sum of Rs.1,20,000/-. Following is the compensation fixed by this Court: 1. for pain and suffering - Rs. 20,000/- 2. for transport expenses - Rs. 3,000/- 3. for medical expenses -Rs. 93,820/- " - Rs. 85,100/- " - Rs. 23,190/- " - Rs. 19,900/- 4. for permanent disability - Rs. 1,20,000/- 5. for loss of income - Rs. 1,000/- 6. for extra nourishment - Rs. 3,000/- -------------- Total - Rs. 3,69,010/- -------------- In fine, the Civil Miscellaneous Appeal is allowed in part and the compensation amount is reduced from Rs.3,74,560/- to Rs.3,69,010/- as indicated above. In all other aspects the findings of the Tribunal remains unaltered. C.M.A(MD)No.88 of 2006: 8. The following is the compensation assessed by the Tribunal under various heads: 1. for pain and suffering - Rs. 7,000/- 2. for injuries - Rs. 42,000/- 3. for extra nourishment - Rs. 5,000/- 4. for transport expenses - Rs. 1,000/- 5. for medical expenses - Rs. 75,360/- " - Rs. 28,800/- 6. for permanent disability (43.4%) - Rs. 43,000/- 7. for loss of earning during treatment period -Rs. 10,000/- 8. for future loss of income -Rs. 30,000/- ------------=- total -Rs.2,42,160/- -------------- https://hcservices.ecourts.gov.in/hcservices/ 4 9. P.W.3/Doctor also examined the claimant and deposed that the claimant had suffered from fractures in his right shoulder and right leg besides, fracture in his right hand, where, surgery was done and screw was fixed, that the Tibea bone also got fractured and for that also treatment was given and that he was inpatient in the hospital from 06.12.2003 to 29.12.2003 and on 25.04.2004, another surgery was done to remove the screw and he was discharged on 06.05.2004. He assessed the permanent disability at 43.4%. 10. In view of this Court, the grant of Rs.42,000/- and Rs.7,000/- for injuries and pain and suffering respectively, is not sustainable and they may be clubbed together under one head as pain and suffering and a sum of Rs.20,000/- may be awarded. This Court is of the opinion that Rs.2,000/- may be considered for each percentage of permanent disability. The award of Rs.43,000/- and Rs.30,000/- for permanent disability and future loss of income will not go together and under a single head of permanent disability, a sum of Rs.86,000/- may be awarded. 11. The following is the compensation fixed by this Court: 1. for pain and suffering - Rs. 20,000/- 2. for extra nourishment - Rs. 5,000/- 3. for transport expenses - Rs. 10,000/- 4. for medical expenses - Rs. 75,360/- " - Rs. 28,800/- 5. for permanent disability - Rs. 86,000/- 6. for loss of income - Rs. 10,000/- during treatment period ----------------- Total - Rs.2,35,160/- ----------------- In fine, the Civil Miscellaneous Appeal is allowed in part and the compensation amount is reduced from Rs.2,42,160/- to Rs.2,35,160/- as indicated above. In all other aspects, the findings of the Tribunal remains unaltered. C.M.A(MD)No.87 of 2006: In fine, the Civil Miscellaneous Appeal is allowed in part and the compensation amount is reduced from Rs.3,74,560/- to Rs.3,69,010/- as indicated above. In all other aspects the findings of the Tribunal remains unaltered. Consequently, connected Miscellaneous Petitions are closed. No costs. C.M.A(MD)No.88 of 2006 In fine, the Civil Miscellaneous Appeal is allowed in part and the compensation amount is reduced from Rs.2,42,160/- to Rs.2,35,160/- as indicated above. In all other aspects, the findings of the Tribunal remains unaltered. No costs. Sd/- Deputy Registrar(Accounts) /True Copy/ Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 5 To The Motor Accident Claims Tribunal, (Principal Subordinate Court), Tirunelveli. +Two Ccs to Mr.T.Selvakumaran, Advocate, SR.Nos.32750,32751 +One Cc to Mr.C.Ramachandran, Advocate, SR.No.32689 vsn rl/5c – 19.12.2009 C.M.A(MD)Nos.87 and 88 of 2006 23.10.2009 https://hcservices.ecourts.gov.in/hcservices/