VENKATAVARADA REDDIAR Vs. A ANTHONISAMY

JUDGEMENT

(1.) THE above Civil Miscellaneous Appeal has been filed by the appellants/respondents against the award and decree passed in M.A.C.T.O.P.No.766 of 2002, dated 30.07.2002, passed by the Motor Accident Claims Tribunal, (II Additional District Judge), Pondicherry awarding a compensation of Rs.3,78,800/- 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 appellants have filed the above appeal praying to scale down the compensation passed by the Tribunal. 3. THE short facts of the case are as follows: On 18.06.2001 at about 11.45 p.m., the petitioner was standing on the extreme left side of the Pondicherry-Villupuram Main Road in Reddiarpalayam near Pondy Roadways Bus Shed. At that time, the stage carriage bus bearing Registration No.PY/01-D-8323 belonging to the first respondent, insured with the second respondent came from Villupuram towards Pondicherry i.e., from South to North in a rash and negligent manner, and dashed against the petitioner. Due to the impact, the petitioner was thrown out on the left side of the road and he fell down and lying on the road side unconciously. Some of the persons who got down from the bus questioned and went away without any help. On 19.06.2001, at about 7.00 A.M. one Moorthy son of Arumugam saw the injured petitioner and he admitted him in Government General Hospital, Pondicherry for treatment. Because of the accident, the petitioner sustained the following injuries. i) Trochenteric fracture of left femur. ii) Fracture of lower 1/3rd of femur right iii) Fracture of scapular right iv) Fracture of right side ribs 1,2,3,4 & 5 v) Right Haemothoray. THE petitioner was 40 years old, experienced bus driver working in Pondicherry Roadways Bus Service, Pondicherry for about 13 years. He was hale and healthy before the accident. He was getting Rs.250/-per day as his daily batta apart from his salary. His average monthly income was Rs.7,000/- THE petitioner got married and he has a 19 years old son and 11 years old daughter. His son is studying in I.T.I. and his daughter is studying 6th standard in the school for Deaf and Dumb students at Pondicherry. All the members of his family were depending upon the only income of the petitioner. THE accident had happened only due to the rash and negligent driving of the driver of the first respondent's bus. As such, the petitioner claimed a compensation of Rs.7,00,000/- with interest before the Tribunal. 4. THE second respondent/National Insurance Company resisted the claim petition, which reads as follows: a) THE petitioner is put to strict proof of the accident itself as the F.I.R. has been fabricated and the same is false. As per the petition, the accident has taken place on 18.06.2001 and the complaint has been lodged to S.H.O. Reddiarpalayam on 21.6.2001 therefore it is absolutely a false and a fabricated F.I.R. b) If there is an accident as alleged by the petitioner, the matter would have immediately been intimated to the S.H.O. Reddiarpalayam or to the outpost present in the G.H. itself. Moreover, in the F.I.R. itself it has been clearly mentioned that at the time of accident, the petitioner seems to have consumed ALCOHOL and lying in the road. Moreover, the petitioner has been taken to the Hospital by his wife and one Moorthy. THEre was no intimation filed by the petitioner issued by G.H. to the S.H.O.Reddiarpalayam, along with the petition. c) As per the wound certificate also the Medical Officer who is in-charge, examined the petitioner on 19.6.2001 at 7.40 a.m. whereas the accident had occurred on 18.6.2001, has clearly mentioned that the petitioner was under the influence of ALCOHOL at the time of treatment. As such, the second respondent prayed for dismissal of the petition. 5. After considering the plea of the claimant and counter statement of the 2nd respondent, the Motor Accidents Claim Tribunal had framed the following three issues for consideration and passed order as follows:- i) Whether the accident had occurred due to the rash and negligent driving of the bus bearing Regn.No.PY-01/D-8323 belonging 1st respondent by its driver" ii) Whether the driver of 1st respondent's bus was having valid licence to drive the same and whether the said bus was covered by proper documents as contemplated under the Motor Vehicles Act at the time of accident" iii) What was the nature of injury sustained by the petitioner and what should be the quantum of compensation and by whom is it payable" 6. On the side of the petitioner, the petitioner was examined as PW1 and one eye-witness G.Karthikeyan was examined as PW2 and eleven documents were marked namelyEx.A1"Photo copy of F.I.R.135/01 of Reddiarpalayam P.S.,Pondicherry, marked through PW1, Ex.A2-Photo copy of Insurance Certificate, issued by R2 relating to 1st respondent's vehicle, marked through PW1,Ex.A3 - Photo copy of driving licence of the petitioner, marked through PW1,Ex.A4- Photo copy of driving licence of 1st respondent's driver, marked through PW1,Ex.A5-Photo copy of R.C. relating to 1st respondent's vehicle, marked through PW1,Ex.A6-Photo copy of Wound certificate of petitioner, issued by G.H., Pondicherry, marked through PW1,Ex.A7 -Two numbers of discharge slip issued to the petitioner, marked through PW1,Ex.A8- Salary Certificate of the petitioner, issued by his employer marked through PW1,Ex.A9- Copy of charge sheet filed in FIR No.135/01, marked through PW1,Ex.A10-Photo copy of receipt for the payment of fine by the petitioner, marked through PW1 and Ex.A11-Disability Certificate, issued by G.H., Pondicherry, marked through PW1. On the respondents side no witnesses were examined and no documents were marked. 7. THE petitioner has stated in his petition that on 18.06.2001 when he was standing near Raman Roadways Bus shed in Reddiarpalayam on Pondicherry " Villupuram Main Road, the bus belonging to 1st respondent driven by its driver in a rash and negligent manner and dashed against him and as a result of which he was thrown out and became unconscious. On the next day, one Moorthy took him to Government General Hospital, Pondicherry for treatment. He reiterated the same facts in his evidence before this Tribunal. THE said Moorthy lodged the complaint with Reddiarpalayam P.S. and on that basis, F.I.R. was registered against the driver of the bus belonging to 1st respondent. THE registration of F.I.R. against the driver of 1st respondent's bus shows prima facie negligence on the part of driver of 1st respondent. PW2 is an eye-witness to the occurrence and he corroborated the evidence of PW1. THE driver of 1st respondent's bus was not examined so as to torpedo the evidence of PW1. Without examining the driver of 1st respondent's bus, the insurer cannot take in the defence that there was no negligence on his part. THE driver of 1st respondent's bus has admitted the offence before the criminal court and has paid fine also. In the absence of any evidence to the contrary, the evidence of PW1 remains unchallenged and unshattered. Hence, this point is decided in favour of the petitioner to the effect that the accident occurred due to the rash and negligent driving of the bus belonging to 1st respondent by its driver. 8. It is a trite proposition of law that R2, the insurer of 1st respondent's vehicle should prove that the driver of 1st respondent's vehicle was not having valid driving licence and that the said vehicle was not covered by proper documents as contemplated under the M.V.Act at the time of accident. Ex.A4-the photo copy of driving licence of 1st respondent's driver, Ex.A5- the photo copy of driving licence of 1st respondent's driver, Ex.A5- the photo copy of R.C.book of 1st respondent's bus, Ex.A2-the photo copy of Insurance Certificate issued by R2 in favour of 1st respondent's bus, would all go to show that the driver of 1st respondent's bus was having valid driving licence and that the said bus was covered by valid and proper documents, as contemplated under the Motor Vehicles Act at the time of accident. THE point is decided accordingly. 9. THE petitioner has claimed a compensation of Rs.7,00,000/- for the injuries sustained in the accident. Ex.A6 is the photo copy of wound certificate issued by Government General Hospital, Pondicherry wherein, the doctor has stated that the injuries are grievous in nature. Ex.A7 is the discharge slip issued by the Government General Hospital, Pondicherry wherein it is mentioned that the petitioner was admitted on 19.06.2001 and was discharged on 07.08.2001 and again from 22.08.2001 to 29.09.2001. Ex.A11 is the Permanent Disability Certificate, issued by the Department of Orthopaedics, Government General Hospital, Pondicherry, wherein it is stated that the petitioner suffered from 60% permanent disability. THE above percentage of disability has been arrived at by taking into account the following:1) Post traumatic sequelae of both lower limbs and right shoulder, 2) old fracture of trochanter with shortening of two inches left side, 3) old fracture of shaft of right side, 4) restriction of right shoulder movements. Apparently, there is nothing to doubt the disability arrived at by the Department of Orthopaedic, Government General Hospital, Pondicherry. 10. To prove the income, the petitioner has filed Ex.A8, wherein it is stated that the petitioner was drawing a monthly income of Rs.1,000/- and a daily batta of Rs.250/- for twenty days. In all, the petitioner was earning a sum of Rs.6,000/-p.m. THE author of Ex.A8 was not examined to substantiate the same. THE driver working in a private transport company might have got a salary of not less than Rs.3,000/- At the time of accident, the petitioner was aged about 37 and hence, multiplier '16' is adopted to assess the loss of income. As such, the loss of income due to the disability sustained by the petitioner due to the accident, is assessed at (36,000X60X16) Rs.3,45,600/- Due to the grievous injuries sustained in the accident, the petitioner might have suffered pain and sufferings and hence under that count, a sum of Rs.5,000/- is awarded as compensation. THE petitioner took treatment in the Government General Hospital, Pondicherry for about 82 days. For those 82 days, a sum of Rs.8,200/-@ Rs.3,000/- is awarded as compensation towards loss of income. Due to the injuries and the consequent permanent disability, the petitioner might have suffered mental agony and hence a sum of Rs.10,000/- is awarded as compensation under that counter. THE petitioner might have taken rich and nutritious food for recuperation of his health and hence, a sum of Rs.10,000/- is awarded under that count. In all, the petitioner is entitled to a compensation of Rs.3,78,800/- THE amount of compensation is just and reasonable and it would meet the ends of justice. 11. In the result, this petition is allowed with cost. An award of Rs.3,78,800/- (Rupees Three Lakhs Seventy Eight Thousand and Eight Hundred Only) is passed by this Tribunal with interest at 9%p.a. from the date of petition, viz.06.08.2002 till the date of deposit. THE entire award amount shall be deposited in the State Bank of India, Agricultural Development Branch, Pondicherry for a period of three years with liberty to the petitioner to draw quarterly interest. Accordingly ordered. 12. Aggrieved by the said award and decree passed by the Motor Accident Claims Tribunal, the appellants/respondents have filed the present Civil Miscellaneous Appeal to scale down the compensation amount, awarded by the Tribunal. 13. THE learned counsel for the appellants/respondents vehemently argued that the claimant consumed alcohol at the time of accident. THE same was narrated to the Investigation Police Officer. THE same was confirmed through FIR, Ex.P1 as such the claimant had committed negligence on his side. THE learned counsel further argued that the compensation amount under the various heads are excessive and exorbitant. 14. THE learned counsel further argued that the Tribunal awarded a compensation of Rs.3,45,600/- under the head of loss of income for 60% disability. THE same was awarded after adopting multiplier method. In the instant case, the multiplier method will not be applicable. THE learned counsel further argued that Doctor was not examined in this case. As such, the disability assessed by the doctor as 60% is not sustainable under Law. THE learned counsel specifically argued that the accident had happened on 18.06.2001, but the FIR was lodged on 21.06.2001. Further the claimant was admitted in hospital as in-patient on 19.06.2001. THE learned counsel further argued that in the absence of proper income proof and in the absence of doctor's evidence, the multiplier method was adopted by the Tribunal and awarded the compensation under the head of loss of income for disability is not pertinent in the instant case. Rs.10,000/- had been awarded by the Tribunal under the head of mental agony which is not pertinent. In support of his contention, the learned counsel produced the following judgments reported in (2007) 13 SCC 625, Andhra Pradesh State Road Transport Corporation represented by its Chief Law Officer Vs. M.Pentaiah Chary; the relevant head notes of which are as follows: "Motor Vehicles Act, 1988 - Ss.168-A, 166 and SchII " Compensation " Multiplier " Deviation from Scheduled multiplier " If and when permissible " Claimant aged 38 years, working as a carpenter, monthly salary of Rs.4,500 " Dependants included parents, wife, two daughters, one son- claimant was permanently disabled in a motor vehicle accident- Tribunal awarding Rs.85,000/- as damages along with 12% interest- High Court, in appeal, granting further amount of Rs.1,62,000/- -Question arising whether the multiplier of 15 was correctly applied- Appellant claiming that multiplier of 12 should be applied- if warranted " Held, the accident took place on 26.01.1995- Parliament inserted S.163-A of the Act by Act 54 of 1994 with effect from 14.11.1994 " THE said provision contains a non obstante clause in terms whereof inter alia the owner of the motor vehicle is made liable to pay, in the case of death or permanent disablement, compensation, as indicated in the Second Schedule appended to the Act- In view of the fact that the claimant being deprived of a reasonable amount of compensation and the fact that he has permanently lost his capacity to earn, remaining dependent on others besides physical sufferance of such magnitude, multiplier suggested by Parliament should be accepted " THEre is no intention to lay down a general law " However, the minimum compensation payable in a case of this nature should be considered from the suffering of disability undergone by the victim - It is not suggested that in certain situations the multiplier specified in the Second Schedule cannot and should not be altered but there must exist strong circumstances _ Appellant shall bear the costs of the respondent- Constitution of India " Art.136- Interference " Scope of." 2003(1) CTC 389, Mrs.Sasikala Ramalingam and another Vs. Sami Jyhia Nattar and 7 others, the relevant head notes of which are as follows: Motor Vehicle Act, 1988, Sections 147,149 (2) & 173- Maintainability of appeal by Insurer independently or jointly with insured on quantum of compensation " Insurer had benefit of challenging award only on any one or all grounds available under section 149 (2) " Quantum of compensation is not ground mentioned in section 149 (2)- Insurer cannot file appeal against award of compensation on ground of quantum of compensation-Insurance company cannot maintain joint appeal along with Insured as Insurance Company cannot seek any relief indirectly which it cannot seek directly- Joint appeals at instance of parties having common cause can be filed when there is entitlement to challenge impugned order by both appellants or several appellants-Joint appellants should show common cause as well as their entitlements to challenge orders under appeal- If joint appellants espouse different causes they have to file separate appeals- Entitlement to file appeal should also be common- When entitlement to challenge compensations is not common to Insurance Company and Insured, joint appeal is not maintainable. THErefore, the learned counsel prays before this Court to scale down the compensation amount awarded by the Tribunal. 15. THE learned counsel for the respondent argued that it is an admitted fact that the 1st respondent bus dashed against the claimant in a rash and negligent manner as such the claimant sustained grievous bone fracture injury. THE same was informed to the son-in-law on 19.06.2001. Immediately he was rushed to the occurrence place and he had taken the claimant to the hospital, wherein he was admitted as in-patient. Subsequently, he lodged the complaint to the investigation police officer there is no malafide statement on the side of the complainant. THE learned counsel further argued that the injured person is the driver. After the accident, he is unable to perform his normal duty as driver. As such his avocation of duty is affected. Hence the Tribunal awarded a compensation after adopting the multiplier method which is proper. THE learned counsel further argued that the Tribunal had not granted any compensation under the head of transport expenses. 16. Considering the facts and circumstances of this case, scrutiny of the findings of the learned Motor Accident Claims Tribunal and arguments advanced by the learned counsel appearing on either side, this Court is of the view that the award passed by the Tribunal is not appropriate, hence, this Court modifies the award as follows : i) Rs.1,20,000/- under the head of loss of income for 60% disability. ii) Rs.15,000/- under the head of pain and sufferings iii) Rs.10,000/- under the head of extra nourishment iv) Rs.10,000/- under the head of transport expenses v) Rs.9,000/- under the head of attendant charges vi) Rs.18,000/- under the head of loss of income during the medical treatment period and subsequent period vii) this court awards a sum of Rs.1,00,000/- under the head of loss of earning capacity since the claimant is a driver. In total, this Court awarded a sum of Rs.2,82,000/- with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation. As such this Court scales down the said award from Rs.3,78,800/- to Rs.2,82,000/- which is found to be fair and equitable. 17. This Court imposed a condition, on 14.06.2006, on the appellant to deposit 75% of the award amount with interest and cost, into the credit of M.C.O.P.No.766 of 2002, on the file of the Motor Accident Claims Tribunal / II Additional District and Sessions Judge, Pondicherry on 26.09.2006. Further, this court permitted the claimant to withdraw 25% of the deposit amount lying in the credit of the MCOP.No.766 of 2002 on the file of the Motor Accidents Claims Tribunal, Addl District Judge, Pondicherry. This Court directed the Tribunal to deposit the balance compensation amount in a nationalised bank for a period of three years under the FD scheme. 18. Now, it is open to the claimant to withdraw the balance compensation amount with accrued interest thereon lying in the credit of the MCOP.No.766 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Pondicherry, after filing necessary payment out application in accordance with law subject to the deduction of withdrawal if any made, as per this Court order. Likewise, the appellant/Insurance Company is at liberty to withdraw the excess compensation, after observing the formalities of the Court. 19. In the result, the above civil miscellaneous appeal is partly allowed and the award and decree dated 30.07.2004 passed by the Motor Accident Claims Tribunal, II Additional District Judge, Pondicherry in M.C.O.P.No.766 of 2002 is modified. Consequently, the connected Miscellaneous petition is closed. No costs.