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THE MANAGING DIRECTOR versus KARIKALAN

High Court of Madras

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The Managing Director v. Karikalan - C.M.A.(MD).No.1078 of 2000 [2007] RD-TN 1584 (23 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 23/04/2007

CORAM:

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

C.M.A.(MD).No.1078 of 2000

The Managing Director,

Tamil Nadu State Transport Corporation,

(Kumbakonam Division II) Ltd.,

Trichy. .. Appellant Vs.

Karikalan .. Respondent

Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act against the Judgment and Decree dated 22.09.1999 made in M.C.O.P.No.1481 of 1993 on the file of the Motor Accident Claims Tribunal (IIIrd Additional Sub Judge), Trichy.

For Appellant : Mr.D.Sivaraman

For Mr.Rajnish Pathiyil

For Respondent : Mr.S.Muthukrishnan

:JUDGMENT



This Civil Miscellaneous Appeal is directed against the award dated 22.09.1999 passed by the Motor Accident Claims Tribunal (IIIrd Additional Sub Judge), Trichy in M.C.O.P.No.1481 of 1993 directing payment of a sum of Rs.55,000/- together with an interest at the rate of 12 from the date of claim till realisation and costs for the injuries sustained by the claimant in an accident alleged to have taken place on 27.02.1993 at about 11.00 a.m.

2. The respondent herein/claimant preferred a claim on the file of the Motor Accident Claims Tribunal (IIIrd Additional Sub Judge), Trichy by filing M.C.O.P.No.1481 of 1993 praying for an award against the appellant/respondent for the injuries sustained by the claimant who met with an accident on 27.02.1993 at about 11.00 a.m. Contending that on the date of accident, viz., 27.02.1993 at about 11.00 a.m., the respondent/claimant was proceeding in his bullet motor cycle bearing Registration No.TN-Y-4061 on the Trichy - Ariyalur Main road; that while he was thus proceeding near Poovalur tank, the appellant's/respondent's bus bearing registration No.TN-45-N-0319, on its trip from Meensuritti to Trichy, came there at a high speed driven by its driver in a rash and negligent manner and dashed against the claimant; that the rash and negligent driving of the above said bus by its driver was the sole cause of the accident and that in the said accident, the respondent/claimant was seriously injured leading to permanent disability and consequential loss of earning capacity. According to the respondent/claimant, the petitioner was aged about 35 years and was employed as a Centre View Master in Kothari Sugars and Chemicals Limited and was having a monthly income of Rs.2,300/- The respondent/claimant had filed the above said M.C.O.P.No.1481 of 1993 under Sections 140 and 166 of the Motor Vehicles Act, claiming a sum of Rs.75,000/- as compensation from the appellant/respondent.

3. In order to prove his claim, the respondent/claimant, besides examining himself as P.W.1, examined one more witness as P.W.2 and relied on six documents marked as Exs.A-1 to A-6.

4. The said claim was resisted by the appellant/respondent who filed a counter statement denying the petition averments concerning the negligence aspect, liability of the appellant to pay compensation and quantum of compensation. With the further contention that the negligence on the part of the respondent/claimant in driving his motorcycle was the sole cause of the accident; that there was no fault on the part of the driver of the bus; that disregarding the horn sound of the bus, the claimant with a pillion rider on the back seat of the motor cycle, came to the centre of the road in a rash and negligent manner and invited the accident; that the respondent/claimant did not even possess a valid licence to drive the motor cycle; that in fact, he did not know how to raid it; that the injuries sustained by the respondent/claimant were simple and superficial and that the amount claimed as compensation was highly excessive and unreasonable, the appellant/respondent had prayed for the dismissal of M.C.O.P. with costs. In support of the defence case of the appellant/respondent, only one witness was examined and no document was marked.

5. After the conclusion of evidence, the Tribunal heard the arguments advanced on either side, framed the necessary questions for determination, scrutinised the materials on record and on such scrutiny, held that the driver of the bus belonging to the appellant/respondent was at fault and that the accident occurred due to the rash and negligent driving of the bus bearing Registration No.TN-45-N-0319 by its driver, mulcted the liability on the appellant/respondent as the owner of the offending vehicle, assessed the compensation at Rs.55,000/- and passed an award directing the appellant/respondent to pay the above said amount to the respondent/claimant as compensation with an interest at the rate of 12 from the date of claim till realisation. The Tribunal has also directed the appellant/respondent to pay costs.

6. Aggrieved by and challenging the said award both on the question of negligence as well as quantum of compensation, the owner of the offending vehicle has brought forth this appeal before this Court.

7. Mr.D.Sivaraman, learned counsel, advancing arguments on behalf of the appellant, would submit that the finding of the Tribunal regarding negligence aspect was erroneous and against the preponderance of evidence; that the Tribunal ought to have held that the accident was the result of the negligence on the part of the respondent/claimant and that hence the respondent/claimant was not entitled to claim any compensation based on the theory of fault and that the Tribunal should have either dismissed the claim petition in its entirety or restricted the award of compensation to what was payable under Section 140 of the Motor Vehicles Act. Contending further, the learned counsel submitted that the award of a sum of Rs.55,000/- towards compensation for the alleged injury sustained by the respondent/claimant was highly excessive and exorbitant; that though the permanent disability suffered by the respondent/claimant was assessed by the Tribunal at 15, it committed an error in awarding a sum of Rs.35,000/- for permanent disability as such; that the award of a sum of Rs.15,000/- towards medical expenses could not be sustained, as the same was not supported by documentary evidence; that the award of a sum of Rs.15,000/- towards medical expenses, as against a sum of Rs.1,643.21 paise, for which amount alone Ex.A-3 series - medical bills have been produced, was highly unreasonable and that hence viewed from any angle, the award of the Tribunal was excessive and liable to be reduced drastically.

8. This Court also heard the submissions made by Mr.S.Muthukrishnan, learned counsel on behalf of the respondent/claimant and paid its anxious considerations to the same.

9. In the instant case, the respondent/claimant, has made a specific plea in his claim petition that the driver of the bus belonging to the appellant/respondent drove it in a rash and negligent manner and hit him, while he was proceeding in his motor cycle slowly and cautiously. In order to prove his case that the accident was the result of rash and negligent driving of the bus belonging to the appellant/respondent, the claimant himself deposed as P.W.1 repeating and reiterating the petition averments regarding how the accident took place.

10. In addition to the oral evidence of P.W.1, the claimant has also produced the certified copy of the First Information Report and marked the same as Ex.A.1. The same proves that a case in Crime No.276 of 1993 was registered on the file of Lalgudi Police Station against the driver of the bus for alleged offences punishable under Sections 279 and 337 IPC. The First Information Report seems to have been registered based on the statement of the claimant recorded by the police, while he was taking treatment in the casualty ward of Government Hospital, Lalgudi, regarding which an intimation had been received by the police. The narration made by the claimant in the above said complaint statement lends support to the claimant's case and corroborates the evidence of P.W.1. In this regard, the evidence of P.W.1 remains unassailed even though he was meticulously cross-examined. The suggestions put to him that he did not possess a valid driving licence and ventured to drive the motorcycle without properly learning to drive have been stoutly denied by P.W.1. The evidence of P.W.1 inspires the the confidence of this Court, as the same is spontaneous, natural and without any remarkable contradiction. On the other hand, the evidence of R.W.1 the driver in charge of the offending vehicle, namely, the bus involved in the accident, seems to be unnatural and unreliable. Even though R.W.1 might have stated that he saw the respondent/claimant coming in the motorcycle at a high speed and with rashness and negligence at a distance of 30 feet, there is nothing in his evidence to the effect that he took any step to avoid collision. Though he might have asserted in his evidence that the accident took place on the left side of the road and that the motorcycle came into contact with the bus on its front right side portion, the appellant/respondent has not chosen to adduce any corroborate peace of evidence. Copy of the observation mahazar and rough sketch prepared by the Investigating Officer showing the topography of the place of occurrence have not been obtained and produced. R.W.1 would state in his evidence that the criminal case registered against him was dismissed. But, whether it was an honourable acquittal or an acquittal giving benefit of doubt to the accused is not known. The Tribunal, after properly analysing the evidence both oral and documentary, rightly disbelieved the evidence of R.W.1 and believed the evidence of P.W.1 corroborated by Ex.A.1 and came to a correct conclusion that the rash and negligent driving of the bus bearing Registration No.TN-45-N-0319 belonging to the appellant/respondent was the sole cause of the accident. Based on the said finding on the question of negligence, the Tribunal has cast the liability on the appellant/respondent, as the owner of the offending vehicle, to pay compensation to the respondent/claimant. This Court is not in a position to notice any infirmity, error or illegality in the above said finding rendered by the Tribunal and hence the same deserves to be confirmed.

11. In order to prove that the injuries sustained by the respondent/claimant in the accident resulted in permanent disability, the claimant, besides disposing as P.W.1, examined one Dr.Illangovan as P.W.2. P.W.2 after going through the medical records and based on his clinical examination of the respondent/claimant found him with 15 permanent disability referable to the injury sustained in the accident and issued Ex.A.6 - disability certificate. The evidence of P.W.1 and P.W.2 and Ex.A.6 in this regard remain unchallenged, as there is no contra evidence. The Tribunal has rightly come to the conclusion that the claimant sustained 15 permanent disability due to the injuries caused in the accident in question. Relying on the disability certificate issued by P.W.2 produced and marked as Ex.A.6, the Tribunal proceeded with the assessment of compensation on various heads and fixed the total amount of compensation at Rs.55,000/-, the details which are found as follows:

Compensation for permanent

disability = Rs.35,000/- Compensation for medical

expenses = Rs.15,000/- Compensation for pain and

suffering = Rs. 3,000/- Compensation for expenses

incurred towards extra-

nourishment = Rs. 2,000/- -------------- Total = Rs.55,000/- --------------

12. In the above assessment made by the Tribunal, the award of a sum of Rs.2,000/- towards expenses for extra-nourishment and a sum of Rs.3,000/- towards pain and suffering has not been challenged by the appellant to be excessive. Therefore, without any impediment whatsoever, the same can be confirmed. The challenge made by the appellant is confined to the award of Rs.35,000/- for permanent disability and Rs.15,000/- towards medical expenses. In cases of injuries sustained in the accident resulting in permanent disability either a lump sum amount for the permanent disability as such can be awarded which will incorporate in itself the loss of future earning capacity and loss of amenities in life or award separate amounts for loss of future earning capacity and loss of amenities in life. In case, the second method is adopted, there is no need for awarding separate amounts for permanent disability as such and in fact if such an award is made, the same will result in duplication.

13. In the instant case, even though the respondent/claimant has made an averment that the permanent disability has resulted in loss of earning capacity also, there is nothing on record to show that there was either loss of job or loss of income from the job. It is not in dispute that the claimant prior to the accident was working as a Centre View Master in Kothari Sugars and Chemicals Limited. But there is no evidence to show that he was removed from service, demoted or denied promotion. Nor is there any evidence to show that his prospect of promotion has been diminished because of the disability. Under these circumstances, applying the second method of assessment of compensation, namely, separate assessment being made on the heads of future loss of earning capacity and loss of amenities in life will not be appropriate and the first method, viz., awarding a lump sum payment for permanent disability will alone be appropriate. Thus, the Tribunal has adopted the correct method in awarding a lump sum amount for permanent disability as such. At the same time, awarding a sum of Rs.35,000/- for 15 spermanent disability, according to view of this Court, is definitely disproportionate and is on the higher side.

14. When the method of awarding lump sum amount for permanent disability is adopted, the age of the claimant shall play an important role. The award may range from Rs.1,000/- to Rs.2,000/- per 1 disability depending upon the age of the claimant. Maximum rate shall be applied in case of youngsters and minimum rate shall be applied in case of aged persons. As per evidence, the claimant had completed 35 years of age as on the relevant date. Applying such a test, this Court holds that awarding compensation at the rate of Rs.1,500/- per 1 disability in the case of the respondent/claimant in this case shall be absolutely justifiable. Thus the lump sum amount to be awarded towards compensation for permanent disability to the respondent/claimant in this case shall have to be fixed at Rs.1,500 x 15 = Rs.22,500/- instead of Rs.35,000/-. If such a method of calculation is adopted, the award of Rs.35,000/- as compensation for the permanent disability, as such, shall have to be brought down to Rs.22,500/-. In case of adoption of either of the method indicated above, loss of earning occasioned to the claimant during the period of treatment prior to the date of claim shall have to be awarded as a component of pecuniary damages. In this case, the claimant has produced Ex.A.5 - certificate issued by Kothari Sugars and Chemicals Limited that he was on leave on loss of pay from 28.02.1993 to 20.05.1993 and that the loss of remuneration suffered by him was Rs.8,122.24/-. Giving a small increase, the same can be rounded to Rs.8,500/-. So far as the assessment of compensation for medical expenses is concerned, this Court is of the considered view that the award of Rs.15,000/- by the Tribunal cannot be sustained. The claimant has produced Ex.A.3 series covering a sum of Rs.1,643.21/- alone. Giving a marginal increase to the said amount, we can safely arrive at a conclusion that awarding a sum of Rs.2,000/- alone for medical expenses shall be quite reasonable. If such reductions, additions and adjustments are made, the reasonable amount that could be awarded as total compensation shall be only Rs.38,000/-. At the cost of repetition, the details of the assessment of compensation are given as under: Compensation for permanent

disability = Rs.22,500/- Compensation for loss of

remuneration during the period

of treatment = Rs. 8,500/-

Compensation for medical

expenses = Rs. 2,000/- Compensation for pain and

suffering = Rs. 3,000/- Compensation for expenses

incurred towards extra-

nourishment = Rs. 2,000/- -------------- Total = Rs.38,000/- --------------

15. For the reasons stated supra, this Court comes to a conclusion that the award of the Tribunal in respect of its quantum is slightly on the higher side and the same deserves to be reduced to 38,000 from Rs.55,000/- and subject to the above said reduction, the award of the Tribunal deserves to be confirmed in all other respects. If the award amount has already been deposited to the credit of M.C.O.P.No.1481 of 1993, the Tribunal is directed to refund the balance amount to the appellant/respondent within a period of two months from the date of receipt of a copy of this order. Accordingly, this Civil Miscellaneous Appeal is partly allowed. There shall be no order as to payment of costs.

SML

To

The Motor Accident Claims Tribunal

(IIIrd Additional Sub Judge),

Trichy.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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