C.S. Karnan, J.@mdashThe above Civil Miscellaneous Appeal has been filed by the Appellant/claimant against the Award and Decree, dated 09.06.2003, made in M.C.O.P. No. 3696 of 1999, on the file of the Motor Accident Claims Tribunal (Additional District Judge/Fast Track Court-V), Chennai, awarding a compensation of Rs. 75,000/- together with 9% interest per annum, from the date of filing the claim petition till the date of payment of compensation.
2. Having not been satisfied with the said Award and Decree, the Appellant/claimant has filed the above appeal praying additional compensation of Rs. 1,25,000/-.
3. The short facts of the case are as follows:
On 29.06.1998, at about 19.45 hours, when the Petitioner was riding his motorcycle bearing registration No. TSH4306, in Gandhi Irwin Salai in Egmore at Chennai. While he was passing opposite to Radhakrishnan Stadium, at that time, the first Respondent''s vehicle bearing registration No. TN09 E41, driven by its driver in a rash and negligent manner endangering to the public safety in the said road, went and hit against the Petitioner''s vehicle and thereby caused grievous and multiple injuries to the Petitioner. The accident had occurred only due to the rash and negligent driving of the driver of the first Respondent''s vehicle. As such, he claimed a compensation of Rs. 2,00,000/- before the Tribunal.
4. The first Respondent averred in the counter that the averments in the petition are denied. The Petitioner is put to strict proof of injuries, disability etc., The motorcycle was driven by the Petitioner in a rash and negligent manner and the motorcycle rider''s negligent driving caused the accident as it dashed against the first Respondent''s car. The driver of the car was not having valid driving licence at the time of accident. The compensation claimed is excessive.
5. The second Respondent averred in the counter that the age, occupation and monthly income of the Petitioner are denied. The place, date and time of the accident are also not admitted. The injuries and disability are not admitted. The claim is excessive and has no basis. The rash and negligent driving of the vehicle TN09 E41 is not true. The Petitioner alone was rash and negligent and caused the accident. In any event, the Petitioner is guilty of contributory negligence. The first Respondent was not having valid fitness certificate for the car on the date of accident. Hence, the Respondent is not liable to indemnify the first Respondent. The Respondent craves leave to file additional counter later and to contest the claim u/s 170 of the Motor Vehicles Act.
6. The learned Motor Accident Claims Tribunal framed two issues for the consideration namely:
(i) Whether the accident was caused solely due to the rash and negligent driving of the Car bearing registration No. TN09 E41?
(ii) Is the Petitioner entitled to compensation, If so to what amount?
7. On the Petitioner''s side, the claimant himself was examined as PW1 and one Dr. Kamaraj C. Natesan was examined as PW2 and eight documents were marked as Exs.P1 to P8 namely Ex.P1-FIR, Ex.P2-Discharge Summary, Ex.P3-Medical Bills, Ex.P4-X-ray, Ex.P5-Identity Card, Ex.P6-Driving Licence, Ex.P7-Disability Certificate, Exs.P8 X-ray of leg. On the Respondents'' side no one was examined and no documents were marked.
8. PW1, the claimant had adduced evidence stating that on 29.06.1998, at about 07.45 p.m. he was proceeding in his motorcycle bearing No. TSH4306 along Gandhi Irwin Salai. At that time the Tata Sumo Car bearing registration No. TN09 E41 came rashly from the opposite direction and dashed against the motorcycle and thus the accident was caused. Further, PW1 was suggesting that he rode the vehicle on the middle of the road and caused the accident. PW1 further denied the rashness and negligence attributed to his riding. Ex.P1 is the FIR filed by the Petitioner to prove the accident. One Chandrasekaran is the informant in Ex.P1. Ex.P1 records that the informant Chandrasekaran and the Petitioner came by TVS Suzuki bearing registration No. TSH 4308, which was ridden by the Petitioner on 29.06.1998. When they came near Radhakrishnan Staduum opposite to the stadium the Tata Siera Car bearing registration No. TN09 E41 dashed against the motorcycle and the time then was 19.45 hours. Thus the negligence of the Tata Siera car driver is mentioned in Ex.P1 FIR. There is no rebuttal evidence on the side of the Respondents. The car driver was not examined. Though the Respondents have pleaded contributory negligence of the Petitioner, they have not examined the car driver to speak about it. From the evidence of the PW1, the Tribunal held that the Tata Siera Car bearing registration No. TN09 E41 was alone rash and negligent causing the accident and the Respondents are liable to pay compensation to the Petitioner.
9. The Petitioner had claimed a compensation of Rs. 2,00,000/-. The Petitioner averred that he was about 30 years and he was working as an Instructor in Crescent Engineering College, Vandalur, Chennai, drawing a salary of Rs. 3,000/- per month. Due to the said accident, he sustained injuries such as compound fracture on right leg both bone, abdominal injury and multiple injuries all over the body. Further, the PW1 deposed that he was taken to Kilpauk Medical College Hospital for treatment, where he was given treatment for one day. Then he discharged himself and went to Bone and Joint Clinic at Triplicane. He sustained fracture below his right knee and sustained injury on his hip. He spent a sum of Rs. 66,627/- for medical expenses. Due to the disability, he could not stand continuously and could not walk. Ex.P2 is the discharge summary. Ex.P3 is the medical bills. Ex.P4 is the X-ray. Ex.P5 is the Identity Card and Ex.P6 is the driving licence of the Petitioner. PW1 admitted in cross examination that he was working in Crescent Engineering College in the same job and denied that he exaggerated the disability. He admitted that after inpatient treatment, he did not take any outpatient treatment. He denied that he was cured and there was no disability. PW2, the Doctor assessed the disability at 40%. Ex.P7 is the disability certificate and Ex.P8 is the X-ray. PW2 deposed that there is a misalignment of bone in the right leg of the Petitioner and there is also shortening of bone. The Petitioner feels continuous pain and bends his leg and walks. He would feel difficulty in lifting heavy objects and standing for a long time and walking for a long distance. He would feel difficulty in lifting heavy objects and standing for a long time and walking for a long distance. Further, he admitted that the medical records of the Petitioner which he perused did not mention anything about 1 1/2 " shortening of length in the bone. Further he admitted that the Petitioner sustained fracture in between the knee and the ankle bone.
10. After considering the evidence of PW1 and PW2 and documents, which were marked by the claimant, the learned Tribunal had come to the conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the first Respondent''s vehicle, therefore the second Respondent/Insurance Company is liable to pay compensation and awarded the compensation as follows:
i. Rs. 1,000/- under the head of transport expenses,
ii. Rs. 1,000/- under the head of extra-nourishment,
iii. Rs. 40,000/- under the head of medical expenses,
iv. Rs. 8,000/- under the head of pain and suffering,
v. Rs. 25,000/- under the head of continuing disability,
In total, the Tribunal awarded a sum of Rs. 75,000/- as compensation to the Petitioner, 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. Further, the Tribunal directed the second Respondent to deposit the compensation amount of Rs. 75,000/- 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, within a period of two months. In turn, the said amount to be deposited, under a fixed deposit scheme, in a nationalised bank for a period three years. Accordingly ordered.
11. Having not been satisfied with the said Award and Decree, the Appellant/claimant has filed the above appeal praying additional compensation of Rs. 1,25,000/-.
12. The learned Counsel appearing for the Appellant/claimant argued that the claimant had produced medical bills to the tune of Rs. 66,627/-. But, the Tribunal had granted only Rs. 40,000/-under the head of medical expenses. The claimant had taken treatment at the KMC Hospital and at the Star Bone and Joint Centre. Further, the learned Counsel vehemently argued that the award amount under the head of pain and suffering, extra nourishment and transport expenses, are on lower side. Therefore, he seeks additional compensation.
13. The learned Counsel appearing for the second Respondent argued that the award passed by the Tribunal is a well considered one. The Tribunal had awarded compensation on all the required head. The Doctor had issued a disability as 40% is obviously an arbitrary one. The learned Counsel further argued that the medical bills are over rated. Hence, he prays to dismiss the appeal.
14. After considering the arguments advanced by the learned Counsel appearing on either side and award and decree passed by the learned Motor Accident Tribunal, this Court is of the view that the award amount granted by the Tribunal is on the lower side. Hence, this Court decided to restructure the compensation as follows:
i. This Court awards a sum of Rs. 60,000/-under the loss of income due to the 40% disability,
ii. The Tribunal awarded a sum of Rs. 8,000/-under the head of pain and suffering, this Court enhances the same to Rs. 10,000/-,
iii. The Tribunal awarded a sum of Rs. 1,000/-under the head of extra-nourishment, this Court enhances the same to Rs. 5,000/-,
iv. The Tribunal awarded a sum of Rs. 1,000/-under the head of transport expenses, this Court enhances the same to Rs. 5,000/-,
v. The Tribunal awarded a sum of Rs. 40,000/-under the head of medical expenses, this Court enhances the same to Rs. 56,629/-,
vi. The Tribunal awarded a sum of Rs. 25,000/-under the head of continuing disability, now this Court set aside the same,
In total, this Court awards a sum of Rs. 1,36,629/- as compensation, which is fair and equitable. After deducting the original award amount of Rs. 75,000/-, this Court awards an additional award amount of Rs. 61,629/- with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation.
15. This Court directs the second Respondent/United India Insurance Co., Ltd., to deposit the above mentioned additional compensation amount with accrued interest thereon, into the credit of the M.C.O.P. No. 3696 of 1999, on the file of the Motor Accident Claims Tribunal (Additional District Judge/Fast Track Court-V), Chennai, within a period of six weeks from the date of receipt of a copy of this order. After such deposit being made, it is open to the claimant to withdraw the compensation amount with accrued interest thereon, lying in the credit of the M.C.O.P. No. 3696 of 1999, on the file of the Motor Accident Claims Tribunal (Additional District Judge/Fast Track Court-V), Chennai, by making proper payment out application.
16. In the result, this Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 09.06.2003, made in M.C.O.P. No. 3696 of 1999, on the file of the Motor Accident Claims Tribunal (Additional District Judge/Fast Track Court-V), Chennai, is modified. No costs.
