IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.09.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1600 of 2006 and C.M.P.No.7095 of 2006 The Manager United India Insurance Co., Ltd., Chennai .. Appellant/2nd Respondent Vs 1.T.R.Venugopal ..Respondent/Petitioner 2.R.S.Sampath Kumar ..Respondent/Ist Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 14.12.2004, made in M.C.O.P.No.827 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Thiruvallore. For appellant : Mrs.N.Mala For respondents : Mr.R.Neelakandan for R1 Mr.Devadasan for R2 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 14.12.2004, made in M.C.O.P.No.827 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Thiruvallore, awarding a compensation of Rs.2,18,450/- together with 9% interest per annum, from the date of filing the claim petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal. 3.The short facts of the case are as follows: On 30.05.2002, the petitioner was going by the TATA Sumo bearing registration No.TN23 R6901, belonging to the first respondent and insured with the second respondent, along with K.Ravichandraiah, Rudraiah and Bullodu, from Janagalapalli to Vellore. At about 12.00 noon, when they were nearing Melvenkatapuram Village, on the Sholinghur to Arcot Road, the driver of the vehicle drove it in a https://hcservices.ecourts.gov.in/hcservices/ rash and negligent manner and dashed against the road side tree. In the result, the petitioner had sustained grievous injuries. Immediately, he was taken to CMC Hospital, Vellore for treatment. Due to the accident, he had sustained fracture of Zygomatic Maxillary, Complex, Parasymphy fracture mandible on the left side, bone deep insertion on fore head above left eyebrow and all over the body. After the accident he is unable to do his work as before. The said accident had happened only due to the rash and negligent driving of the driver of the first respondent's vehicle. Therefore, the first and second respondents are liable to pay compensation to the petitioner. As such, the petitioner claimed a compensation of Rs.4,10,000/- before the Tribunal. 4.The second respondent/United India Insurance Co., Ltd., in their Counter, had resisted the claim petition, which reads as follows: "This respondent submits that the aforesaid circumstances, this respondent is entitled to contest the case under Section 170 of M.V.Act. The respondent is not filing a separate petition since they have been impleaded by the petitioner as a party. It is prayed that a formal permission may be recorded under Section 170 of M.V.Act. Without prejudice, this respondent denies all the allegations set out in the petition except those are specifically admitted herein and puts the petitioner to strict proof thereof. This respondent specifically denies the insurance and vehicular records. The respondent denies that the accident alleged to have been occurred on 30.05.2002, at about 10.00 hrs. was happened due to the alleged rash and negligent driving of the TATA Sumo car bearing registration No.TN23 R6901, which was insured with this respondent. This respondent does not admit the age, occupation and income of the petitioner and puts the petitioner to strict proof thereof. The averments set out in Column No.18 to 20 are not admitted. In any event the amount claimed by way of compensation is high, excessive and lacks in legal basis." Accordingly, the second respondent prayed for dismissal of the claim petition. 5.The learned Motor Accident Claims Tribunal had framed three issues for the consideration namely: (i) Whether the accident had occurred due to the rash and negligent driving of the driver of the first respondent's TATA Sumo? https://hcservices.ecourts.gov.in/hcservices/ (ii) Whether the petitioner is entitled to get compensation? If so, what is the quantum of compensation? 6.On the petitioner's side, the petitioner was examined as PW1, one Dr.J.K.R.Thiagarajan was examined as PW2 and six documents were marked as Exs.P1 to P6 namely Ex.P1-Accident Register of the Vellore C.M.C.Hospital, Ex.P2-Ultra Sonogram Report of the petitioner, Ex.P3- Electro Cardiogram of the petitioner, Ex.P4-Chennai Government Hospital Chits, Ex.P5-Hospital Bills and Ex.P6-Disability Certificate. On the respondents' side no witnesses were examined and no documents were marked. 7.PW1, the claimant, had adduced evidence stating that on 30.05.2002, he was going by the TATA Sumo bearing registration No.TN23 R6901, belonging to the first respondent and insured with the second respondent, along with K.Ravichandraiah, Rudraiah and Bullodu, from Janagalapalli to Vellore. At about 12.00 noon, when they were nearing Melvenkatapuram Village, on the Sholinghur to Arcot Road, the driver of the vehicle drove it in a rash and negligent manner and dashed against the road side tree. In the result, the petitioner had sustained grievous injuries. The co-passengers were died on the spot itself. Supporting his evidence he had marked Ex.P1-Accident Register. Further, he had adduced evidence stating that after the accident he was taken to the CMC Hospital, Vellore, wherein he was inpatient for one day. Thereafter he was referred to Sri Ramachandra Hospital, Porur. Further he was referred to Government General Hospital, Chennai for further treatment, wherein he was admitted as inpatient for a long time. Further, he had adduced evidence stating that at the time of the accident he was 40 years old and he had spent a sum of Rs.50,000/- towards medical expenses. In the said accident his left shoulder bone was also fractured and three teeth were fallen, besides he sustained head injury. To prove the nature of injuries and mode of treatment, he has also marked Ex.P2-Ultra Sonogram Report of the petitioner, Ex.P3-Electro Cardiogram of the petitioner and Ex.P6-Medical Bill series. 8.PW2, Dr.J.K.R.Thiagarajan had adduced evidence stating that he examined the claimant and verified the medical records and assessed the disability as 75% sustained by him. 9.After considering the evidence of the PW1 and PW2 and the documents, which were marked as exhibits, the learned Tribunal had come to the conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the first respondent's vehicle, therefore the second respondent is liable to pay compensation to the petitioner on behalf of the first respondent and awarded the compensation as follows: i. Rs.75,000/- under the head of 75% disability, ii.Rs.1,00,000/- under the head of loss of earning capacity, https://hcservices.ecourts.gov.in/hcservices/ iii. Rs.9,000/- under the head of loss of income during the medical treatment period, iv.Rs.3,000/- under the head of transport expenses, v. Rs.2,000/- under the head of extra-nourishment, vi.Rs.4,450/- under the head of medical expenses, vii. Rs.25,000/- under the head of pain and suffering, In total, the Tribunal awarded a sum of Rs.2,18,450/- as compensation to the petitioner, together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation. Further, the Tribunal directed the second respondent to deposit the compensation amount of Rs.2,18,450/- together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation, within a period of one month from the date of its Order. In turn, the said amount to be deposited, under a fixed deposit scheme, in any one of a nationalised bank, for a period of three years. Accordingly ordered. 10.Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal. 11.The learned counsel appearing for the appellant/Insurance Company argued that the compensation amount of Rs.2,18,450/-, awarded by the Tribunal is on higher side. Further, the learned counsel argued that Rs.1,00,000/- under the head of earning capacity and Rs.75,000/- under the head of 75% disability, assessed by the PW2, are on higher side and exorbitant. Further, the learned counsel argued that the claimant admitted at Government Hospital at Chennai. As such, the medical expenses is not incurred in the instant case. As such, the learned counsel prays before this Court to scale down the compensation amount passed by the Tribunal. 12.The learned counsel appearing for the first respondent/claimant argued that the claimant sustained grievous bone injuries, head injury and right shoulder bone fracture. The learned counsel further argued that the Tribunal awarded a sum of Rs.3,000/- under the head of transport expenses and Rs.2,000/- under the head of extra-nourishment are on lower side. Further, the learned counsel argued that the claimant is a Carpenter. After the said accident, he is unable to perform his normal work. Further, the learned counsel argued that the Tribunal after considering the evidence of PW1 and PW2 and documents marked as exhibits, had awarded the compensation of Rs.2,18,450/-, which is fair and equitable, considering the nature of injuries and mode of treatment. https://hcservices.ecourts.gov.in/hcservices/ 13.The learned counsel appearing for the second respondent/owner argued that the second respondent/owner of the vehicle is not at all liable to pay compensation to the claimant, since the vehicle is insured with the first respondent/Insurance Company. Further, the Insurance Company has complied with the conditional Order dated 16.11.2006 passed by this Court. As such, the second respondent/owner of the vehicle is only a formal party. In support of his contention, the learned counsel produced the Judgment dated 16.04.2009, made in C.M.A.Nos.3306, 3307 and 3308 of 2006, The Manager, United India Insurance Co., Ltd., Chennai Vs. Smt.Vijaya and others, filed by the other claimants in the same accident, which held as follows: "9.The appellant had deposited 50% of the award amount. They shall calculate the compensation with interest as above and deposit the balance amount within eight weeks from the date of receipt of a copy of this Order. On such deposit, the respondents in C.M.A.Nos.3307 and 3308 of 2006 are permitted to withdraw the amount. As regards, the respondents in C.M.A.No.3306 of 2006, the first respondent/Vijaya is entitled to withdraw Rs.4,27,336/- and the share of Rs.3 lakhs each of the second and third respondents shall be invested in a nationalised bank in a fixed deposit, to be renewed during the period of minority and the first respondent is entitled to withdraw the interest accrued thereon once in six months." 14.Considering the facts and circumstances of the case, the arguments advanced by the learned counsel appearing on either side and the award and decree passed by the Tribunal, this Court is of the view that the quantum of compensation passed by the Tribunal is on higher side. Hence, this Court decided to scale down the compensation as follows: i. The Tribunal awarded a sum of Rs.75,000/- under the head of 75% disability, this Court enhances it to Rs.1,50,000/- as it is pertinent, ii. The Tribunal awarded a sum of Rs.9,000/- under the head of loss of income during the medical treatment period, this Court confirms the same as it is pertinent, iii. The Tribunal awarded a sum of Rs.3,000/- under the transport expenses, this Court enhances it to Rs.5,000/- as it is pertinent, iv. The Tribunal awarded a sum of Rs.2,000/- under the head of extra-nourishment, this Court enhances it to Rs.5,000/- as it is pertinent, https://hcservices.ecourts.gov.in/hcservices/ v. The Tribunal awarded a sum of Rs.4,450/- under the head of medical expenses, this Court confirms the same as it is pertinent, vi. The Tribunal awarded a sum of Rs.25,000/- under the head of pain and suffering, this Court confirms the same as it is pertinent In total, this Court awards a compensation of Rs.1,98,450/- together with interest at the rate of 9% per annum, from the date of filing the claim petition, till the date of payment of compensation. Therefore, this Court hereby reduces the Tribunal compensation amount of Rs.2,18,450/- to Rs.1,98,450/-, which is fair and equitable. 15.On 16.11.2006, this Court imposed a condition on the appellant to deposit 50% of the compensation amount with accrued interest thereon, into the credit of the M.C.O.P.No.827 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Thiruvallore. Further, this Court permitted the claimant to withdraw 50% of the deposited amount with accrued interest thereon, lying in the credit of the M.C.O.P.No.827 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Thiruvallore. 16.Now this Court directs the appellant/Insurance Company to deposit the remaining compensation with accrued interest thereon, as per the findings of this Court, into the credit of the M.C.O.P.No.827 of 2002, on the file of the Motor Accident Claims Tribunal, Sub- Court, Thiruvallore, within a period of six weeks from the date of receipt of a copy of this Order. 17.After such deposit being made, it is open to the first respondent/claimant to withdraw the remaining compensation amount, awarded by this Court, with accrued interest thereon and costs, lying in the credit of the M.C.O.P.No.827 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Thiruvallore, by making proper payment out application, subject to the deduction of earlier withdrawals, if any, in accordance with law. 18.In the result, this Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 14.12.2004, made in M.C.O.P.No.827 of 2002, passed by the Motor Accident Claims Tribunal, Sub-Court, Thiruvallore is modified. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Motor Accident Claims Tribunal, Sub-Court, Thiruvallore. 2.The Section Officer, VR Section, High Court, Madras. 1 cc To Ms.N.Mala, Advocate, SR.70744 1 cc To Mr.R.Neelakandan, Advocate, SR.70410 1 cc To Mr.Devadasan & Segar, Advocate, SR.71042 C.M.A.No.1600 of 2006 LA (CO) RH (3.1.11) https://hcservices.ecourts.gov.in/hcservices/