IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.04.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3035 of 2009 and M.P.No.1 of 2009 National Insurance Co., Ltd., Salem Branch Office - I Salem-1 .. Appellant / Second Respondent Vs 1.Poomalai 2.A.Balu .. Respondents /Petitioner and 1st Respondent Appeal filed under Section 173 of the Motor Vehicles Act, against the Award and Decree, dated 25.09.2002, made in M.C.O.P.No.1268 of 2000, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No.II, Salem. For appellant : Mr.R.Yashod Vardhan, S.C. for Mr.K.Kannan 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 25.09.2002, made in M.C.O.P.No.1268 of 2000, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No.II, Salem, awarding a compensation of Rs.50,000/- 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. 2.Aggrieved by the said Award and Decree, the appellant/second respondent, The National Insurance Co., Ltd., Salem-1, has filed the above appeal praying to scale down the award from Rs.50,000/- to Rs.10,000/-. https://hcservices.ecourts.gov.in/hcservices/ 3.The short facts of the case are as follows: The petitioner, M.Poomalai, aged about 35 years, was a load man in the first respondent's lorry bearing registration No.TNN4671. On 06.06.2000, at about 2.45 p.m. when the petitioner was travelling in the said lorry as load man, while the said lorry was proceeding near Chinthamani Nagar on the Salem to Atthur road, the first respondent's lorry driver drove the said lorry in a rash and negligent manner and dashed against the water pump at the road side. Due to the impact, the lorry turned turtle and the petitioner along with other load man fell down and sustained severe fracture injuries. He was admitted in the hospital and still undergoing treatment. He has sustained permanent disability and is not able to attend to any work. 4.Hence, the first respondent, being the owner of the lorry bearing registration No.TNN4671 and the second respondent being the insurer of the above lorry are jointly and severally liable to pay compensation to the petitioner. The petitioner has claimed a compensation of Rs.1,00,000/- from the respondents together with interest and costs under Section 166 of the Motor Vehicles Act. 5.Regarding the said accident, a criminal case has been registered at Karipatty Police Station in Crime No.652 of 2000 as against the driver of the lorry. 6.The second respondent, in his counter, has resisted the claim denying the averments in the claim regarding the manner of accident and has submitted that the petitioner must prove that the alleged accident was caused due to the rash and negligent driving of the driver of the first respondent's lorry. The second respondent has also denied that the lorry had a valid permit and that the driver of the lorry had a valid and effective driving licence to drive the lorry at the time of accident. 7.The second respondent has also denied the averments in the claim regarding the age, income and occupation of the petitioner as well as the nature of injuries, manner of treatment, medical expenses and permanent disability sustained by the petitioner. As such, the second respondent has prayed for dismissal of the claim with costs. 8.Four other persons, who had also travelled in the said lorry as loadman and who were also injured in the said accident had filed M.C.O.P.nos.1267, 1269, 1270 and 1271 of 2000 claiming compensation. 9.The Motor Accident Claims Tribunal had framed three issues for the consideration namely: (i) Was the accident caused due to the first respondent's lorry being driven at a high speed and in a rash and negligent manner by its driver as alleged in the claim ? https://hcservices.ecourts.gov.in/hcservices/ (ii) Is the petitioner entitled to get compensation? (iii)To what other relief is the petitioner entitled to get? 10.On the petitioner's side, the petitioner in M.C.O.P.No.1267 of 2000, Adimoolam, was examined as PW1; the petitioner in M.C.O.P.No.1268, Poomalai was examined as PW2; the petitioner in M.C.O.P.No.1269, Velmurugan was examined as PW3; the petitioner in M.C.O.P.No.1270 of 2000, P.Mani was examined as PW4 and the petitioner in M.C.O.P.No.1271 of 2000, Arumugam @ Sithalingam was examined as PW5 and 12 documents were marked as Exs.P1 to P12. On the respondents' side no witness was examined and no documents were marked. 11.The PW1, in his evidence had adduced evidence that on 06.06.2000, at about 01.00 p.m., while he was travelling as a loadman along with five others for loading bricks in the first respondent's lorry titled 'Sri Murugan' and while the lorry was proceeding on the Salem – Atthur road and was nearing Chintamani Nagar, the driver of the lorry drove the lorry at a high speed and in a rash and negligent manner and dashed the lorry against the water pump situated on the extreme end of the road; that due to the collision the lorry had turned turtle. The other four petitioners, who were examined as PW2 to PW5 had also adduced evidence, which was in consonance with that given by PW1. On scrutiny of the evidence of the PW1 to PW5, as well as on scrutiny of the Ex.P1, the FIR, it is evident that a criminal case has been filed as against the driver of the first respondent's lorry. No contra-evidence has been let in on the part of the respondent's side to refute the evidence of the PW1 to PW5. As such, the Tribunal held that the accident had been caused by the rash and negligent manner of driving by the driver of the first respondent's lorry. It was also an admitted fact that the first respondent's lorry had been covered under a valid policy of insurance with the second respondent at the time of accident. 12.The petitioner herein was examined as PW2. The PW2, in his evidence adduced that on 06.06.2000, when he was travelling as a loadman in the said lorry and when the lorry had hit against the water pipe, he had sustained injuries in his head, right cheek and right hip as well as injuries on his right thigh; that he had been initially admitted in Salem Government Hospital, wherein, he had taken treatment for 15 days; that he worked as an agricultural coolie as well as a loadman and that due to the injuries sustained in the said accident, he is not able to do his work as he used to do before the accident; that he was earning an income of Rs.100/- per day by doing the work of a coolie. In support of his evidence, he has marked Ex.P5, the Wound Certificate. On scrutiny of the Wound Certificate, it is seen that the petitioner's age has been stated as https://hcservices.ecourts.gov.in/hcservices/ 35 years and accordingly, the Tribunal held that the age of the petitioner was 35 years at the time of the said accident. 13.Though, the petitioner has stated that he was earning a sum of Rs.100/- per day as a coolie in agricultural and forest work as well as that of being a loadman, no documentary evidence had been let in to establish the proof regarding the income. On scrutiny of Ex.p1, it is evidence that the petitioner had been working as a loadman in the lorry. As such, the Tribunal held that the petitioner as a coolie, could have earned a monthly income of Rs.1,500/- accordingly fixed the notional income of petitioner as Rs.1,500/- per month. On scrutiny of Ex.P5, the Wound Certificate, it is seen that the petitioner had sustained an inflamed injury of size 3 X ½ cms. in his right thigh, an inflamed injury of size 2 X 2 cms. in his right chest; a soft tissue injury of size 1 ½ X 1 ½ cms. on his right eyebrow, a tear injury of size 2 X 1 cms. which had been sutured in his lower jaw and a tear injury of size 2 cms in his head, which had been sutured. On scrutiny of the X'rays taken on the petitioner, it is seen that the petitioner had sustained a fracture on his humerus bone in his thigh. 14.The Doctor, working at Salem Government Hospital, who had issued the Wound Certificate had mentioned in his report that the fracture of humerus bone sustained by the petitioner is grievous in nature and that the other injuries sustained by him are simple in nature and have been medically treated. 15.The Tribunal, on considering that the petitioner would have experienced pain and suffering as a result of injuries sustained in the accident, awarded a sum of Rs.25,000/- as compensation under the head of pain and suffering. The Tribunal, on scrutiny of Ex.P2, were of the opinion that the petitioner would have sustained a loss of income for a period of one year due to the nature of injuries sustained by him in the said accident and accordingly granted an award of Rs.18,000/- as compensation under the head of loss of income for one year. The Tribunal on considering that no Doctor had been examined to establish that the petitioner had sustained permanent or partial disability in the said accident were not inclined to award any compensation under the head of loss of earning capacity due to the disability. 16.On considering evidence of the PW2 and on scrutiny of the Ex.P5, the Tribunal awarded a lumpsum compensation of Rs.7,000/- to the petitioner for medical expenses. In total, the Tribunal awarded a compensation of Rs.50,000/- to the petitioner and directed the first and second respondents jointly and severally deposit the above award together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.1268 of 2000, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No.II, Salem, within a period of two months from the date of its order. The petitioner was directed to pay the Court fee due on https://hcservices.ecourts.gov.in/hcservices/ the award amount within a period of one month from the dat of its order. The Advocate fees was fixed at Rs.1,500/- and the respondents were directed to pay the cost of Rs.1,723.50 to the petitioner. 17.Learned counsel appearing for the appellant has contended in his appeal that the Tribunal ought to have seen that the injuries sustained by the petitioner was simple in nature and that there was no justification for awarding a compensation of Rs.50,000/-. It has also been contended that the Tribunal ought to have seen that even if the injury was grievous, there was no permanent disability or loss of earning to justify the quantum of compensation awarded by the Tribunal. It has also been pointed out that the award of Rs.25,000/- towards pain and suffering, Rs.18,000/- towards loss of earning and Rs.7,000/- for extra nourishment were all arbitrary and excessive. It has been pointed out that the Tribunal should have awarded only a compensation of Rs.10,000/- on consideration of all facts relevant to the case. As such, it has been prayed by the learned counsel appearing for the appellant to set aside the award and decree passed by the Tribunal. 18.Considering the facts and circumstances of the case, scrutiny of findings of the Tribunal and the arguments advanced by the learned counsel appearing for the appellant, this Court is of the view that as per the Wound Certificate, marked as Ex.P5, the claimant sustained injuries on his head, right thigh, right chest, right eyebrow and lower jaw. Sutures had been done on his head and lower jaw to set right the tear injury. Further, the injured person was a loadman besides being involved in agricultural operations. Considering the above two aspects namely his nature of injuries as well as his occupation as a coolie, the compensation awarded by the Tribunal is not excessive. As such, the Award and Decree, dated 25.09.2002, in M.C.O.P.No.1268 of 2000, passed by the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No.II, Salem, is confirmed. 19.Therefore, this Court hereby directs the appellant to deposit the entire compensation amount, with accrued interest thereon, into the credit of the M.C.O.P.No.1268 of 2000, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No.II, Salem, within a period of four weeks from the date of receipt of a copy of this Order, subject to deduction of deposits made, if any. 20.The claimant is at liberty to withdraw the entire compensation amount with accrued interest thereon, after such deposit is made, lying in the credit of the M.C.O.P.No.1268 of 2000, on the file of the Motor Accident Claims Tribunal, Additional District-cum- Fast Track Court No.II, Salem, after filing necessary payment out application in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ 21.In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 25.09.2002, in M.C.O.P.No.1268 of 2000, passed by the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No.II, Salem, is confirmed. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To 1. The Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No.II, Salem. 2. The Section Officer, VR Section, High Court, Madras. 1 cc To Mr.R.Yashod Varadhan, Advocate, SR.24006 C.M.A.No.3035 of 2009 BVN(CO) sra 05/05/2010 https://hcservices.ecourts.gov.in/hcservices/