The Tamil Nadu Government Rep. v. K.M.Karuppanasamy @ Velusamy - Died
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.01.2021
CORAM
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR CMA No.831 and 1169 of 2006 CMA 831 of 2006
1. The Tamil Nadu Government rep. by the District Collecotor, Erode.
2. The Superintendent of Police, Special Task Force, Pannari Mugam.
...Appellants/2nd and 3rd respondents
3. Suresh Kumar, s/o Muthuramalingam, 24-C, Pudhu Colony, A.R.Line, Old Fort, A.R. Line, OldFort, Tirunelveli.
...3rd Appellant/first respondent Vs.
1. K.N.Karuppanasamy @ Velusamy (died) ...first Respondent/Claimant
2. Rajeswari
3. K.Shanmugapriya
4. K.K.Narendiran
5. Pavayammal (R2 to R5 brought on record as legal heirs of the deceased R1 vide court order dated 06.09.2019 made in CMP Nos.11611, 11613 and 11614 of 2019 in CMA No.831/2006) ....Respondents 2 to 5 CMA 1169 of 2006
1. K.N.Karuppanna Samy (deceased) @ Velusamy
2. Pavayammal
3. Rajeshwari
4. K.K.Narendran
5. K.Shanmugapriya ...Appellants/Claimants
Vs.
1. Suresh Kumar
2. Government of Tamilnadu, rep by District Collector, Erode District, Erode 638 011.
3. The Superintendent of Police, Special Task force, Bannari Camp ...Respondents/Respondents Prayer in CMA 831 of 2006:
Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act to set aside the order dated 28.06.2005 made in MCOP No.40 of 2005 on the file of the Additional District Judge, Motor Accident Claims Tribunal, Fast Track Court No.2, Gobichettipalayam.
Prayer in CMA 1169 of 2006:
Civil Miscellaneous Appeal filed under Section 173(1) of the Motor Vehicles Act against the order dated 28.06.2005 made in MCOP No.40 of 2005 on the file of the Additional District Judge, Motor Accident Claims Tribunal, Fast Track Court No.2, Gobichettipalayam.
In CMA 831 of 2006 For Appellants : Mr.Devnarendren, Government Advocate For Respondents : Ms. Zeenath Begum for F2 and F4 R1 and R5 - Died R3- No appearance In CMA 1169 of 2006 For Appellants : Ms. Zeenath Begum For Respondent : Mr.Devnarendren, Government Advocate for R2 and R3 No appearance for R1 COMMON ORDER Challenging the orders passed by the Tribunal in MCOP No.40 of 2005 dated 28.05.2005, the appellants/ respondents have filed the appeal in CMA No.831 of 2006 to set aside the same, whereas, the appellant/claimant has filed the appeal in CMA No.1169 of 2006 to enhance the compensation.
2. For the sake of convenience, the parties herein are referred to as per their ranking in the M.C.O.P No.40 of 2005.
3. The case of the claimant is that on 15.12.1997, at about 11.00 a.m. the claimant was riding his motor bike bearing registration No.TAS 8406 along Sathy-Mysore Trunk Road towards upward and while he was nearing the sixth bend on the Ghat Road at 87/8km Stone, a Tempo Trax Zeep bearing registration No. TN 33 G 0030 coming from opposite side hit the motor bike as a result of which the claimant sustained severe head injuries and he became unconscious and he was admitted to Sathy Government Hospital and then he was treated as inpatient from 15.12.1997 to 11.01.1998 in Ashwin Hospital, Coimbatore for surgery and then in D.K.G.R.Surgical Nursing Home, Sathyamangalam for post operative care and follow up. According to the claimant, the rash and negligent driving of the driver of the vehicle/ first respondent was the cause of accident and since the Zeep is belonging to the police department, all the respondents are liable to pay compensation of Rs.5,00,000/- to the claimant for the injuries sustained by him in the above accident.
4. The case of the claimant was resisted by the respondents by filing counter affidavits and contended that on the date and time of accident, the claimant was riding his motor bike rashly and negligently and was overtaking a van bearing registration No.TN37 K 3630 and by seeing that the driver of the zeep bearing registration No.33 G 0030 had stopped the zeep at the left hand side of the road towards downward, however the claimant had dashed against the foot step being at the right hand side driver door of the Zeep and only the rash and negligent driving of the claimant was the cause of accident and hence, the respondents are not liable to pay any compensation to the claimant.
5. Before Tribunal, the claimant and another two witnesses have been examined as PW1 to PW3 and Ex.A1 to Ex.A22 have been marked on the side of the claimant and the first respondent was examined as RW1 on the side of the respondents and no document has been marked on their side.
6. After analysing the evidence on record, the Tribunal awarded a compensation of Rs.2,44,000/- under various heads, as given hereunder.
Heads Amount in Rs.
Loss of earning capacity 1,15,500 Medical bills 78,500 Pain and sufferings 50,000 Total 2,44,000
7. Not satisfied with the compensation awarded by the Tribunal, the claimant has filed the Appeal in CMA No.1169 of
2006 to enhance the compensation and the respondents have filed the appeal in CMA No.831 of 2006 to set aside the order passed by the Tribunal.
8. Heard the learned counsels for the parties and I have perused the materials on record.
9. The learned counsel appearing for the claimant submitted that the claimant was doing agriculture and dairy work and was earning a sum of Rs.35,000/- per month. He also submitted that before Tribunal the claimant has filed Ex.A21 and Ex.A22 to prove his income by selling the sugar cane to Sakthi Sugars Limited for a sum of Rs.2,41,590 for the year 2000-2001 and a sum of Rs.64,777/- for the year 2002-2003 respectively. Further he submitted that though the claimant had earned from the business of milk production, the Tribunal had not considered the same and erroneously fixed only a sum of Rs.30,000/- per annum as income of the claimant.
He also submitted that due to the accident, the claimant sustained grievous injury on his head and a part of skull was opened and removed blood clot and thereafter, skull was not fixed, thereby he lost his earning capacity and also suffered by other related ailments. He further submitted that the PW3 Doctor was examined before the Tribunal and he deposed that the permanent disability suffered by the Claimant was 35% and due to the accident, the claimant was not able to do his agriculture and dairy work atleast for three months, however, the Tribunal has not awarded any amount towards loss of income and extra nourishment and awarded very meagre amount as compensation, without considering the documents and grievous injuries sustained by him.
He further submitted that due to the accident, the claimant died during appeal proceedings and his legal heirs were impleaded as appellants 2 to 5 and hence, he prayed for enhancement of compensation and the appeal filed by the Government is liable to be dismissed.
10. The learned counsel appearing for the respondent/State submitted that during the accident, the claimant had driven his vehicle rashly and negligently and by overtaking a van which was going ahead him, dashed the foot step being at the front side driver seat of the zeep, as a result of which he sustained injuries and this aspect was not considered by the Tribunal. He further submitted that without considering the evidence on record the Tribunal has awarded a huge amount as compensation and hence, the Corporation has preferred the present appeal in CMA No.831 of 2006 to set aside the same.
11. The learned Government Advocate appearing for the Corporation submitted that the claimant had driven his vehicle rashly and negligently and dashed against the zeep belonging to
the Police Department and sustained injuries. Further, the compensation awarded by the Tribunal is an excessive and hence, the award passed by the Tribunal has to be set aside.
12. Now the point for determination is
1. Whether the Award passed by the Tribunal is excessive?
2. Whether the claimant is entitled for enhancement of compensation?
13. Point No.1 and 2 There is no dispute with regard to the negligence on the part of the drivers of the vehicles and both the counsels advanced their respective arguments only with regard to the quantum of compensation awarded by the Tribunal.
14. The claimant had filed the claim petition to pay a compensation of Rs.5,00,000/- for the injuries sustained by him in the road accident towards " loss of earning capacity, pain and sufferings, permanent disability and medical expenses". The claimant had produced Ex.A7 wound certificate to prove the injuries sustained by him and Ex.A18 Disability Certificate to prove that he suffered permanent disability at 35% due to the above said accident. As far as the income of the claimant is concerned, he filed Ex.A21 and Ex.A22. As per the Ex.A21 statement of account, the claimant had sold sugar cane to Sakthi Sugars Limited for a sum of Rs.2,41,500/- for the year 2000-2001 and as per Ex.A22, he asked Sakthi Sugars Limited to pay a sum of Rs.64,777/- for the year 2002-2003 for the sugar cane supplied by him. The respondents have not disputed the above said documents. Based on the above said documents, the Tribunal has fixed a sum of Rs.30,000/- as yearly income of the claimant and by adopting multiplier '11' awarded a sum of Rs.1,15,000/- towards " Loss of Earning Capacity ".
15. It is the case of the claimant that due to the accident he sustained grievous injuries on his head and surgery was done on his head by opening skull and in following days he lost his memory power and concentration and he was not able to do his agriculture and dairy work as earlier and hence, the compensation awarded by the Tribunal has to be enhanced. The Ex.A21 and Ex.A22 receipts, which are related to the subsequent date of the accident are filed to prove the income of the claimant. Considering the injuries sustained by the claimant and also considering the Ex.A21 and Ex.A22 which proved that the claimant earned a sum of Rs.2,41,590/- during the year 2000-2001 and a sum of Rs.64,777/- during the year 2002-2003 and also considering the fact that the claimant died during the appeal proceedings inview of the accident, this court is of the
view that the Tribunal has fixed very meagre amount as income of the claimant and the same warrants interference by this court. By considering the above facts including occupation of the claimant, it is just and fair to fix a sum of Rs.50,000/- p.a. as income of the claimant. As per the disability certificate Ex.A18, the permanent disability suffered by the claimant is 35%. Accordingly, by adopting proper multiplier '11' " Loss of Earning Capacity " is fixed at (50,000 x 35% x 11 ) Rs.1,92,500.
16. As far as the medical expenses is concerned, the learned counsel appearing for the claimant submitted that the claimant has paid a sum of Rs.1,20,000/- towards his medical expenses, however, the Tribunal has awarded only a sum of Rs.78,500/-. As per the receipts filed by the claimant i.e. Ex.A8 to Ex.A12, the Tribunal has rightly calculated all the amounts paid and fixed a sum of Rs.78,500/- as " Medical Expenses " . Except those documents, the claimant has not produced any other bills to prove his contentions. As far as the other head " Pain and Sufferings" is concerned, the Tribunal has fixed a just compensation of Rs.50,000/- which does not warrant any interference by this court. Accordingly, the modified compensation awarded under various heads is as follows.
Heads Compensation awarded by the Tribunal Compensation modified by this court Loss of earning capacity (50,000x35% x11) 1,15,500 1,92,500 Medical bills 78,500 78,500 Pain and sufferings 50,000 50,000 Total 2,44,000 3,21,000 From the above said compensation, the third and fourth appellants in CMA No.1169 of 2006 are entitled to get Rs.1,00,000/- each and the second and fifth appellants are entitled to Rs.60,500/- each.
17. In the result, (i) The appeal in CMA No. 831 of 2006 is dismissed. No costs.
(ii) The appeal in CMA No.1169 of 2006 is partly allowed and the compensation awarded by the Tribunal is enhanced from 2,44,000/- to Rs.3,21,000/- and the third and fourth appellants (Rajeshwari and K.K.Narendran) in CMA No.1169 of 2006 are entitled to get Rs.1,00,000/- each and the second and fifth appellants (Pavayammal and K.Shanmugapriya) are entitled to Rs.60,500/- each. No costs.
(ii) The respondents/ government are directed to deposit the enhanced compensation of Rs.3,21,000/- along with the interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit, within a period of 12 weeks from the date of receipt of a copy of this order, less the amount if already deposited.
(iii) On such deposit being made by the respondents the claimants are entitled to withdraw the same as per the ratio referred above, after following due process of law. Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar mst To
1. The Additional District Judge, Additional District Court, Motor Accident Claims Tribunal, Fast Track Court No.2, Gobichettipalayam.
Copy To The Section Officer, V R Section, High Court, Madras.
+1cc to Mr.Zeenath Begum, Advocate, S.R.No.1061 +1cc to the Government Pleader, S.R.No.1367 CMA No.831 and 1169 of 2006 RSV(CO) RGA(23/11/2021)