Muniraj v. Managing Director
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.07.2018
CORAM:
THE HONOURABLE MR.JUSTICE S.BASKARAN C.M.A.No.2964 of 2014 Muniraj ..Appellant/Petitioner Vs 1.The Managing Director M/s.Ashok Nursery and Primary School Now Ashk Leyland School No.M-69, Avalapalli Hudco Bagalur Road, Hosur, Krishnagiri- 635 109 2.The United India Insurance Company Limited Rep. By its Branch Manager MM Reddy complex Old Bangalore Road Hosur, Krishnagiri- 635 109 ..Respondents Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, against the order and decree dated 13.09.2010 made in M.C.O.P.No.199 of 2008 on the file of Motor Accident Claims Tribunal, Subordinate Judge, Hosur.
For appellant : : Mr.T.Panchatsaram For Respondents : : Mr.T.Ravichandran for R2.
R1 - Set exparte before the Tribunal.
J U D G M E N T
The Appellant is the Petitioner and fled the above appeal challenging the order and decree dated 13.09.2010 made in M.C.O.P.No.199 of 2008 on the file of Motor Accident Claims Tribunal, Subordinate Judge, Hosur.
2. For convenience sake, the parties are referred to hereunder according to their litigative status before the Tribunal. It is a case of injury. The case of the Petitiner is that on 10.06.2008 as the Petitioner was going along with school children in the school bus at about 1 p.m., while going near ITI Bus Stop, Ennore, due to the negligence of the bus driver, the bus was stopped with a jerk and the Petitioner fell down from the bus, sustained crush injury and fracture in left foot.
According to the Petitioner, the accident occurred due to negligence of the 1st respondent school bus driver. The vehicle was insured with the 2nd respondent. The Petitioner, after taking first aid treatment was admitted in the Sparsh Hospital, Bommasandra, Bangalore, from 10.06.2008 to 24.06.2008. The Petitioner by working as Cleaner in the bus was earning Rs.5000/- per month. Due to the injury he suffered, he is unable to attend to his normal avocation and suffered loss of income. Thus, the Petitioner claims Rs.8,00,000/- as compensation from the respondents.
3. On the other hand, opposing the claim of the Petitioner, by filing counter, the 2nd respondent/Insurance company contends that the accident occurred only due to negligence of the Petitioner himself. The Petitioner who travelled in the foot board tried to get down from the bus even before it came to halt and contributed to the accident by his carelessness. The age, occupation and avocation of the petitioner is denied. The claim of the Petitioner is exorbitant. The 2nd respondent sought for dismissal of the Petition.
4. Before the Tribunal, the Petitioner examined himself as P.W.1 and the medical expert as P.W.2, produced documents Ex.P.1 to Ex.P.12 to prove his claim. The respondent examined R.W.1 and R.W.2, produced documents Ex.R.1 and Ex.R.2. After analysing the evidence on record, the Tribunal found negligence of the first respondent driver alone caused the accident, passed an award for a sum of Rs.1,15,000/- [Compensation arrived at Rs.75,000/-] payable by the 2nd respondent to the Petitioner. Being not satisfied with the quantum of the award, the Petitioner /claimant has come forward with the present appeal.
5. Heard both sides and perused the records carefully.
6. The learned counsel for the Petitioner/claimant contends that the Tribunal, after fixing the entire liability on the first respondent, erred in awarding very meagre amount as compensation. The assessment of 45% disability by the medical expert is to be treated as Permanent disablement for the entire life and appropriate amount has to be awarded as compensation. The court below failed to consider the future prospects while granting compensation. Nevertheless, the Appellant/Petitioner restricted the claim in appeal to Rs.1,00,000/-. The Petitioner/Appellant seeks to entertain the appeal and to enhance the quantum of the Award passed by the Tribunal.
7. Per contra, the learned counsel for the 2nd respondent/Insurance company contends that the award passed by the Tribunal itself is on the higher side and the Petitioner has not suffered any functional disability. As such, there is no scope to enhance the quantum of award passed by the Tribunal.
Thus, the 2nd respondent/Insurance company seeks dismissal of the appeal.
8. This is only quantum appeal. The Insurance company has not preferred any appeal questioning the liability. Thus the question regarding the issue of negligence and liability does not arise in this appeal. The conclusion of the Tribunal in that regard has become final.
9.1. The Petitioner stated that he was earning Rs.5000/- per month by working as a Cleaner in the first respondent bus. However, as pointed out by the Tribunal, it is clear from Ex.P.8-Salary Certificate that the Petitioner was earning Rs.2820/- as salary per month.
9.2. The Petitioner further stated that he suffered crush injury in left foot, fracture of left navicular and cuneiforms and fracture of left medial malleolus. For the said injuries, the Petitioner underwent treatment as inpatient in Sparsh Hospital, Bangalore from 10.06.2008 to 24.06.2008 and the same is established by Ex.P.5-Medical Report given by the said Hospital. Likewise, it is clear from Ex.P.2-Wound Certificate issued by the said hospital that the Petitioner has suffered grievous injuries in his left foot. To prove the claim of the Petitioner that he suffered disability, the medical expert who examined the Petitioner to assess the disability suffered by him deposed as P.W.2 and stated that the Petitioner is suffering from 45% permanent disability. P.W.2 stated that he examined the Petitioner physically on 09.07.
2010 and found that the petitioner underwent surgery to unite the fracture in his left foot and he suffered permanent scar due to that. Thus, he assessed the disability at 45%. In the absence of any contra evidence to the same and considering that nothing was elicited in the cross examination of P.W.2 to discredit the assessment of disability, the conclusion of P.W.2 that the Petitioner suffered 45% disability is to be accepted. As the accident occurred in 2008, it will be appropriate to compensate the petitioner at the rate of Rs.2000/- per percentage of disability. Thus the compensation for disability is as under:- 45% x 2000 = Rs.90,000/-.
9.3. Even though the Petitioner produced Ex.P.6-Medical Bills, the Tribunal after analysing the same found that the said bills are issued by the 1st respondent school only. Thus, in the absence of any evidence to corroborate the said medical expenses incurred by him, the Tribunal has rightly rejected the claim for medical expenses viz., Ex.P.6/Medical Bills. The same is appropriate and needs no interference. Likewise, in the absence of any proof, no amount need to provided for Transport Expenses. Considering the nature of injuries sustained, it will be appropriate to award Rs.5000/- instead of Rs.10,000/- for Pain
and suffering. Thus, the award passed by the Tribunal is modified as follows:- Sl.
No.
Heads Amount awarded by the Tribunal (Rs.) Amount awarded by this Court (Rs.) 1.
Disability 60,000/- 90,000/- 2.
Pain and suffering 10,000/- 5,000/- 3.
Transport expenses 5,000/- -- 4.
Nutritious food --- 5,000/- Total Rs.75,000/- 1,00,000/- As per decreetal order Rs.1,15,000/-
10. In the result, (i) The Civil Miscellaneous Appeal is Disposed of with the modification as stated supra.
(ii) The appellant/claimant is entitled to Rs.1,00,000/- [Rupees One Lakh only] as compensation with interest at the rate of 7.5% per annum from the date of petition till the date of realisation.
(iii) The 2nd respondent/Insurance company is directed to pay the award amount, along with proportionate interest and cost, less the amount already deposited, within a period of six weeks from the date of receipt of a copy of this order. (iv) On such deposit, the appellant/claimant is entitled to withdraw the same, by filing necessary application before the Tribunal.
(v) No costs.
Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar To 1.The Motor Accident Claims Tribunal, Subordinate Judge, Hosur.
2.The Section Officer, V.R.Section, High Court, Madras.
+1cc to Mr.T.Ravichandran, Advocate sr.no.49812 +1cc to Mr.T.Panchatsaram, Advocate sr.no.49774 C.M.A.No.2964 of 2014 nr 30/10/2018