C.S. Karnan, J.@mdashThe above Civil Miscellaneous Appeal has been filed by the Appellant/claimant against the judgment and Decree passed by the Motor Accident Claims Tribunal (Fast Track Court No. IV), Chennai, in M.C.O.P. No. 794 of 2001, dated 09.06.2004, awarding a compensation of Rs. 50,000/- 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.
2. Having not been satisfied with the said award and decree, the Appellant/claimant has filed this appeal praying for additional compensation amount.
3. The short facts of the case are as follows:
On 14.04.2000, at about 17.45 hrs. the Petitioner was walking in Kamarajar Salai, near MGR Samadhi. At that time, a Motor Cycle, bearing registration No. TN - 04 FTC 12, which was driven at high speed, in a rash and negligent manner, by its Driver, endangering public safety came from North to South Direction and hit the Appellant/claimant. As a result the Appellant/claimant sustained grievous injuries. The Appellant/claimant sustained grievous injuries and was rushed to the Government Hospital, for preliminary treatment. The Appellant/claimant further stated that on 18.04.2000, he underwent further medical treatment in Kilapauk Medical Hospital. The Appellant/claimant further stated that at the time of the accident, he was a Mobile Ice Cream Vendor and as such, he was earning a sum of Rs. 200/- per day. At the time of accident, he was 19 years old. The said accident was registered by the D-6, Anna Square Tr. Investigation, Chennai - 5, in Crime No. 140/T1/2000. The Appellant/claimant submitted that he was admitted at Government Hospital, one day as in-patient.
4. Due to the said accident, the Appellant/claimant sustained grievous injuries, for which he claimed a sum of Rs. 2,00,000/- against Respondents 1 and 2. The Appellant/claimant further submitted that the first Respondent''s Motor Cycle insured with the second Respondent/the New India Assurance Co. Ltd., as such the first and second Respondents are jointly and severally liable to pay the said compensation to the Petitioner with interest, from the date of the claim petition till the date of payment of compensation.
5. The second Respondent has filed a counter statement and resisted the claim petition which reads as follows:
(i) This Respondent submits that when admittedly the Petitioner aged about 18 years as Col.3 of the petition, the above O.P. filed by father and next friend is not maintainable.
(ii) This Respondent denies and refutes the correctness of the averments in clause 23 and 23 (a) of the Petitioner about the manner of the accident and the liability of the Respondent. This Respondent submits that, in the claim petition, it was stated that, the accident occurred, when the minor Petitioner was walking on Kamaraj Salai. But in the F.I.R. it has been stated that, the accident had occurred, when the minor Petitioner was trying to cross the road from east to west. Hence, there is contradiction in the statements given by the Petitioner about the manner of accident and the Petitioner is put to strict proof about the same.
(iii) Without prejudice to the aforesaid contentions, this Respondent submits that, if the Petitioner had crossed the road by using the subway the accident would be averted. This Respondent states that, on the instant day, when the rider of the first Respondent''s vehicle riding from north to south, the Petitioner without seeing the on coming vehicle, suddenly crossed the road and invited the alleged accident. Since the accident had occurred only due to the negligence of the Petitioner, the Respondent is not liable to pay any compensation to the Petitioner. In any event only contributory negligence will arise in the instant case.
(iv) This Respondent put the Petitioner to strict proof of the claim made in Cols.5, 11, 11(a), 13, 13(a), 21, 21(a), 23 and 23(a) of the claim petition and refutes the correctness. The injuries sustained in the accident were only simple in nature and not grievous as stated in cols.11 and 13A.
(v) If at all any award is passed, the Petitioner is entitled to get 9% interest from the date of filing of the above O.P. till date of payment as per judgment of the Apex Court.
(vi) This Respondent further states that the claim put forth in Part I and II of Clause 21(a) is highly exaggerated and excessive and the claim of compensation to the tune of Rs. 2,00,000/-is nothing but excessive and inconceivable.
(vii) This Respondent further states that the claim of compensation for loss of earning in the absence of proof of any disability cannot be allowed and in any event the claim put forth is highly excessive.
(viii) This Respondent puts the Petitioner to strict proof of each one of the claims mentioned in the various columns with supporting documents.
(ix) This Respondent craves leave of this Tribunal to file its additional counter statement if any as and when better particulars regarding the cause or manner of accident is furnished to this Respondent. This Respondent reserves its right to contest the claim u/s 170 of the M.V. Act.
(x) This Respondent submits that the claim petition of the Petitioner is misconceived and devoid of merits and is therefore liable to be dismissed.
The second Respondent further submitted that the claim amount is on the higher side and hence the Respondent prays before the Motor Accident Claims Tribunal to dismiss the claim petition with costs.
6. The learned Motor Accident Claims Tribunal framed the following issues for consideration namely:
1. At whose negligence, the accident had occurred?
2. Whether the claimant is entitled to get compensation? If so what is the quantum of compensation?
7. On the side of the Petitioner three witnesses were examined namely, P.W.1 claimant herein, P.W.2 Dr. N. Sai Chandran and P.W.3 Dr. Gopalan and 8 documents were marked as Exs.P.1 to P.8, namely, Ex.P.1 Medical Sheet, Ex.P.2 O.P. Sheet, Ex.P.3 First Information Report, Ex.P.4 Sketch, Ex.P.5 Disability Certificate, Ex.P.6 X-ray, Ex.P.7 Disability Certificate and Ex.P.8 also X-ray. On the side of the Respondents no witnesses were examined and no documents were marked.
8. The Petitioner was examined as P.W.1. In his evidence he had adduced evidence stating that, on 14.04.2000, at about 17.45 hrs. he was walking on Kamarajar Salai, near MGR Samadhi. At that time, a Motor Cycle, bearing registration No. TN - 04 FTC 12, which was driven at high speed, in a rash and negligent manner, by its Driver, endangering public safety came from North to South Direction and hit the Appellant/claimant. As a result the Appellant/claimant sustained grievous injuries. The Appellant/claimant sustained grievous injuries and was rushed to the Government Hospital, for preliminary treatment. The Appellant/claimant further stated that on 18.04.2000, he underwent further medical treatment in Kilpauk Medical Hospital. The Appellant/claimant further stated that at the time of the accident, he was a Mobile Ice Cream Vendor and as such, he was earning a sum of Rs. 200/- per day. At the time of accident, he was 19 years old. The said accident was registered by the D-6, Anna Square Tr. Investigation, Chennai - 5. The F.I.R. has been marked as Ex.P.3. The said criminal case was registered against the Driver of the first Respondent. Considering the evidence of the P.W.1, the learned Motor Accident Claims Tribunal has come to the conclusion that the first and second Respondents are liable to pay the compensation amount to the claimant.
9. P.W.2, Dr. N. Sai Chandran and P.W.3. Dr. Gopalan, examined the Appellant and certified that the Appellant had sustained disability of 40% & 25% respectively.
10. Considering the evidence of P.W.1, P.W.2 and P.W.3 disability certificates issued by P.W.2 and P.W.3, the learned Motor Accident Claims Tribunal (Fast Track Court No. IV), Chennai had granted a compensation as follows:
1. Rs. 10,000/- granted under the head of pain and suffering and grievous injuries.
2. Rs. 5,000/- granted under the head of nutrition and transport expenses.
3. Rs. 5,000/- granted under the head of medical expenses.
4. Further, the tribunal awarded a sum of Rs. 30,000/- under the head of loss of earning power and loss of income during the treatment period.
In total, the Motor Accident Claims Tribunal awarded a sum of Rs. 50,000/- 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, and directed the 2nd Respondent to deposit the above award into the credit of M.C.O.P. No. 794 of 2001, on the file of the Motor Accident Claims Tribunal (Fast Track Court No. IV), Chennai, within a period of three months from the date of its order. In turn, the said amount to be deposited in a Nationalized Bank for a period of three years under the fixed deposit scheme. Accordingly ordered.
11. Having not been satisfied with the judgment and Decree passed by the Additional Sub Judge, Motor Accident Claims Tribunal (Fast Track Court No. IV), Chennai, in M.C.O.P. No. 794 of 2001, dated 09.06.2004, the Appellant/claimant filed this appeal for additional compensation together with interest.
12. Learned Counsel appearing for the Appellant raised the contention in the said appeal, stating, that the Motor Accident Claims Tribunal failed to allow the entire compensation amount. Further the Motor Accident Claims Tribunal had not fairly considered the Doctors evidence i.e. P.W.2. The competent Doctor, P.W.2 issued disability certificate stating that the claimant sustained 40% disability after examining the P.W.1. As per P.W.2''s evidence, the Appellant/claimant sustained 40% disability. As such the award and decree passed by the Tribunal is on the lower side. Hence, he seeks additional compensation.
13. The learned Counsel appearing for the Respondents vehemently argued that the Tribunal after considering the evidence and verified the documents, awarded the compensation. As such there is no discrepancy in the award and decree passed by the Tribunal. Hence, they seek to dismiss the Civil Miscellaneous Appeal filed by the Appellant. After considering the facts and circumstances of the case, arguments of learned Counsel appearing on either side, findings of the Motor Accident Claims Tribunal (Fast Track Court No. IV), Chennai, this Court is of the view that the award amount granted by the Motor Accident Claims Tribunal (Fast Track Court No. IV), Chennai, in M.C.O.P. No. 794 of 2001 is on the lower side. Hence, this Court enhances the compensation as follows:
1. This Court awards a sum of Rs. 65,000/- under the head of permanent disability for 65% disability, which was assessed by the competent Doctors.
2. This Court confirms a sum of Rs. 10,000/- for pain and suffering.
3. The Tribunal awarded a sum of Rs. 5,000/- under the head of expenses towards transportation. This Court reduces it to Rs. 2,500/-.
4. This Court awards a sum of Rs. 2,500/- under the head of nutrition.
In total this Court awards a sum of Rs. 80,000/-. Already the Motor Accident Claims Tribunal awarded a sum of Rs. 50,000/- together with interest at the rate of 9% from the date of filing the claim petition till the date of payment of compensation, into the credit of M.C.O.P. No. 794 of 2001 on the file of the Motor Accident Claims Tribunal (Fast Track Court No. IV), Chennai. The additional compensation amount of Rs. 30,000/- is granted by this Court as it is found to be fair and equitable in the circumstances of the case.
Already the Motor Accident Claims Tribunal awarded a sum of Rs. 50,000/- with interest to the claimant. This Court grants an additional sum of Rs. 30,000/- as compensation and this additional sum will carry an interest at the rate of 7.5% per annum from the date of filing the petition till date of payment of compensation.
14. Therefore, this Court hereby directs the second Respondent/the New India Assurance Co. Ltd., to deposit the entire compensation amount together with interest at the rate of 7.5% from the date of filing claim petition, till date of payment of compensation, into the credit of M.C.O.P. No. 794 of 2001 on the file of the Motor Accident Claims Tribunal (Fast Track Court No. IV), Chennai, within a period of eight weeks, from the date of receipt of a copy of this order.
15. After such deposit is made, the Appellant/claimant is at liberty to withdraw the entire additional compensation amount together with accrued interest thereon lying in the credit of M.C.O.P. No. 794 of 2001 on the file of the Motor Accident Claims Tribunal (Fast Track Court No. IV), Chennai, after filing necessary payment out application in accordance with law.
In the result, the Civil Miscellaneous Appeal is partly allowed and the award and decree dated 09.06.2004 passed by the Motor Accident Claims Tribunal (Fast Track Court No. IV), Chennai, in M.C.O.P. No. 794 of 2001 dated 09.06.2004, is modified. However, there shall be no order as to costs.
