IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3106 of 2007 National Insurance Company Ltd., .. Appellant Vs 1.R.Rajeevi 2.K.Senthamaraikannan .. Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 18.04.2006, made in M.C.O.P.No.1723 of 2004, on the file of the Motor Accident Claims Tribunal (First Additional Sub-Court), Cuddalore. For appellant : Mr.D.Bhaskaran For respondents : No appearance J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 18.04.2006, made in M.C.O.P.No.1723 of 2004, on the file of the Motor Accident Claims Tribunal (First Additional Sub-Court), Cuddalore, awarding a compensation of Rs.1,01,700/- 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/second respondent, The National Insurance Co., Ltd., has filed the above appeal praying to set aside the said award and decree. 3.The short facts of the case are as follows: On 09.07.2004, at about 4.45 a.m., while the petitioner was walking from west to east direction, at the extreme left side of the Panrutti-Cuddalore Main Road near Government Museum, Cuddalore, the first respondent's van bearing registration No.TN48 A9867 came in the same direction and driven by its driver at a very high speed in a rash and negligent manner and hit behind the petitioner and caused the accident. 4.Due to the accident, the petitioner sustained grievous injuries and multiple fractures all over her body and head. She was immediately taken to and admitted in G.H.Cuddalore and then transferred to Vallivilas Hospital, Cuddalore. The accident was caused only due to the rash and negligent act of the driver of the https://hcservices.ecourts.gov.in/hcservices/ first respondent's vehicle bearing registration No.TN48 A9867. 5.The petitioner was a hale and healthy at the time of the accident and was only 45 years old. She was earning a sum of Rs.5,000/- per month as a cloth merchant. She is the only breadwinner of her family. Due to the accident, she has become disabled and is not able to work as before. 6.As such, the petitioner has claimed a sum of Rs.5,00,000/- as compensation from the first respondent, the owner of the vehicle involved in the accident and the second respondent, the insurer of the said vehicle, with interest at the rate of 18% per annum from the date of accident till the date of payment of the compensation with costs and other relief under Section 166(1) of the Motor Vehicles Act. 7.Regarding the above accident, a case has been registered, as Crime No.450/2004, at Cuddalore N.T.Police Station. 8.The second respondent in his Counter has resisted the claim stating that the first respondent's vehicle driver drove the vehicle in a moderate speed, observing all the traffic rules and regulations and that the petitioner had suddenly crossed the road without minding the on coming vehicle and so had invited the accident. So, the accident had occurred only due to the negligence and carelessness of the petitioner. Further, it has been submitted that the first respondent's vehicle driver did not have a valid driving licence at the time of the accident and also that the said vehicle had not been insured with the second respondent. Further, the age, income and occupation of the petitioner, nature of injuries sustained by her, permanent disability caused thereof were not admitted. It was submitted that as the claim was excessive and without any basis, it has to be dismissed with costs. 9.As the first respondent did not render appearance even on summon being issued to him, he was set exparte by the Tribunal. 10.The Motor Accident Claims Tribunal framed three issues for the consideration namely: (i) Whose negligence was the cause for the accident to take place? (ii) Was the first respondent's vehicle insured with the second respondent at the time of the accident and did the vehicle driver have a valid driving licence at the time of the accident? (iii)Is the petitioner entitled to receive compensation? If so, who is liable to pay the compensation and what is the quantum of compensation, which the petitioner is entitled to get? https://hcservices.ecourts.gov.in/hcservices/ 11.On the petitioners' side, the petitioner was examined as PW1 and nine documents were marked as Exs.P1 to P9. On the respondents' side, no witness was examined and no documents were marked. 12.PW1, in her evidence had adduced that on 09.07.2004, at 4.45 a.m. when she was carrying her grand-daughter and walking from west to east, on the Cuddalore Main Road, and was opposite the Cuddalore Government Museum, the first respondent's Van bearing registration No.TN48 A9867, driven in the same direction at a high speed and in a rash and negligent manner by its driver, had hit the petitioner from behind. As a result of the accident, she sustained injuries all over her body. She was initially treated at the Cuddalore Government Hospital and subsequently at Vallivilas Hospital, Cuddalore. She has further stated that she was earning a sum of Rs.5,000/- per month doing cloth business, before the accident and that after the accident, she has not been able to continue doing this business and so has incurred loss of income. As such, the PW1, in her evidence before the Tribunal, had claimed a compensation of Rs.3,00,000/-. 13.In the Motor Vehicle Inspector's Report marked as Ex.P2, it has been mentioned that the accident had not happened due to mechanical defects in the van. The FIR, which has been marked as Ex.P1 reveals that the complaint regarding the accident had been given by one Sumitha and based on this the Cuddalore Pudu Nagar Police had registered a Criminal Case as Crime No.450/2004 under Sections 279 and 304(A) of I.P.C. against the driver of the said Van. Though, the second respondent has contended that the accident had occurred due to the carelessness of the petitioner as she had crossed the road without seeing the oncoming van, no witness has been examined to prove this contention. As such, the Tribunal on considering PW1's evidence, Ex.P1-FIR held that the accident had been caused only due to the rash and negligent driving of the said Van, by its driver. Further, the Tribunal on considering held that the Motor Vehicle Inspector's Report of the said Van has been insured with the second respondent and the van driver had valid driving licence at the time of the accident. 14.On scrutiny of Ex.P3-copy of Accident Register, it is seen that the injuries suffered by the petitioner are grievous in nature. The Doctor, who had inspected the petitioner was examined as PW3. The PW3 in his evidence has adduced that on 07.02.2006, the petitioner had come to meet him and had sought for an assessment of her permanent disability incurred in the accident on 09.07.2004. The Doctor, after examining the medical documents given to him had found that the petitioner had sustained a fracture in her bone of her left hip and been treated. On examination of X'rays of her left hip, it is found that the petitioner's left hip bone has been affected. Any movement of this portion causes pain to the petitioner and due to this, she is unable to carry heavy weight and walk and also has difficulty to sit and squad. As such, the Doctor PW3 has assessed the disability sustained by the petitioner as 35% and had marked Ex.P8-Disability Certificate and Ex.P9-X'rays. https://hcservices.ecourts.gov.in/hcservices/ 15.The Tribunal, on examination of Ex.P3 and the Doctor's evidence, wherein he had said that the left hip bone fractured during the accident had joined improperly and as a result of this the petitioner has difficulty in lifting of heavy weights held that the petitioner is entitled to receive a compensation of Rs.35,000/- for 35% permanent disability sustained by her. 16.Further, the Tribunal after scrutiny of Ex.P4-Medical Treatment Record of Vallivilas Hospital; Ex.P5-Medical Prescription and Ex.P6-Medical Bills, wherein the total medical expenses were shown as Rs.11,797.74, awarded a compensation of Rs.11,700/- to the petitioner under the head of medical expenses. For nutrition, the Tribunal awarded a sum of Rs.5,000/-. 17.Further, the Tribunal on consideration of the fact that the petitioner, due to her hip fracture had incurred loss of income during the period of treatment and also taking into account that she had also incurred a loss of earning capacity due to the accident, awarded a sum of Rs.25,000/- as compensation towards recoupment of her earning capacity and loss of income incurred by her during the period of treatment. The Tribunal awarded a compensation of Rs.25,000/- for pain and suffering undergone by the petitioner. In total, the Tribunal awarded a compensation of Rs.1,01,700/- to the petitioner and held the second respondent liable to pay the said award to the petitioner with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, within a period of one month from the date of its Order, into the credit of the M.C.O.P.No.1723 of 2004, on the file of the Motor Accident Claims Tribunal (First Additional Sub-Court), Cuddalore. Further, after such deposit was made, the amount deposited was to be invested in a nationalised bank as fixed deposit for three years and the petitioner was permitted to receive the interest from such deposit, once in six months, directly from the bank. The Court fees, for the award amount, was to be paid by the petitioner, within a period of 10 days from the date of its Order. The Advocate fees was fixed as Rs.5,340/-. 18.The learned counsel for the appellant has contended in his appeal that the Tribunal had erred in coming to the conclusion that the driver of the first respondent's vehicle alone was responsible for the accident. Further, it has been contended that the disability assessed by the Doctor PW3 is excessive and that it has been issued without conducting necessary examination and without reflecting the correct position and that this contention is based on a Judgement reported in 1999 (8) Supreme 401. 19.Further, the award of Rs.25,000/- has been granted for disability and another award of Rs.25,000/- has also been granted for loss of earning power in the absence of any material and basis. Further, the award of Rs.25,000/- for pain and suffering and Rs.5,000/- awarded for nutrition are also without any basis. https://hcservices.ecourts.gov.in/hcservices/ 20.As such, the learned counsel for the appellant has contended that the award passed by the Tribunal is excessive and without any basis. 21.After considering the award and decree passed by the Tribunal and evidence of both the parties and arguments advanced by the learned counsels on either side, the court is of the view that only the award of Rs.25,000/- granted by the Tribunal for recoupment of earning capacity is not pertinent and hence this Court sets aside the award under that head. The rest of the award granted under other heads namely Rs.35,000/- for 35% disability; Rs.11,700/- for medical bills on the basis of Exs.P4, P5 and P6, which discloses the mode of treatments and expenses incurred; Rs.5,000/- for nutrition and Rs.25,000/- for pain and suffering are all found to be reasonable and as such this Court confirms the same. In total, this Court awards a sum of Rs.76,700/- to the petitioner together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment, as this is found to be fair and equitable in the circumstances of the case. 22.This Court directed the appellant to deposit the entire compensation amount with accrued interest, into the credit of the M.C.O.P.No.1723 of 2004, on the file of the Motor Accident Claims Tribunal (First Additional Sub-Court), Cuddalore. As per the Court's condition, the appellant has deposited the award amount with interest. 23.It is open to the respondent/claimant to withdraw the award amount of a sum of Rs.76,700/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment, after filing necessary application, in accordance with law, subject to deduction of withdrawals, if any, by the claimant, before the Motor Accident Claims Tribunal (First Additional Sub-Court), Cuddalore. Likewise, the appellant/Insurance Company is permitted to withdraw the excess compensation amount, a sum of Rs.25,000/- with accrued interest, after observing Court formalities. 24.In the result, the Civil Miscellaneous Appeal is partly allowed. Consequently, the award and the decree passed by the Motor Accident Claims Tribunal (First Additional Sub-Court), Cuddalore, in M.C.O.P.No.1723 of 2004, is modified. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk https://hcservices.ecourts.gov.in/hcservices/ To 1.Motor Vehicles Accident Claims Tribunal, First Additional Sub-Court, Cuddalore. 2. The Section Officer, VR Section, High Court, Madras. 1 cc To Mr.D.Bhaskaran, Advocate, SR.1130. C.M.A.No.3106 of 2007 RSI(CO) pmk.9.2.2010 https://hcservices.ecourts.gov.in/hcservices/