Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.08.2013 CORAM THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.1975 of 2009 V.Sankar ..Appellant Vs S.Gunasekaran (Died) 1.National Insurance Company Ltd., No.751, Anna Salai, Chennai 2.
2.Srimathi ..Respondents (2nd Respondent was exparte before Tribunal hence notice may be dispense with) Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the Judgment and decree dated 29.09.2008 and made in M.C.O.P.No.5316 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court / Fast Track Court-I, Chennai.
For Appellant : Mr.C.Prabhakaran for Mr.V.Jagannathan For Respondents: Mr.S.Vadivel for R1 R2 Exparte JUDGMENT
The appellant / petitioner has preferred the present appeal in C.M.A.No.1975 of 2009, against the judgment and decree passed in M.C.O.P.No.5316 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court / Fast Track Court-I, Chennai.
2.The short facts of the case are as follows:- The petitioner has filed the claim in M.C.O.P.No.5316 of 2003, claiming compensation of a sum of Rs.2,00,000/- from the respondents for the injuries sustained by him in a Motor Vehicle Accident.
It was submitted that on 18.08.2003, at about 4.30 p.m., when the petitioner was riding his motorcycle bearing Registration No.TN-04-Y-8800 on the C.T.H.Road, the 1st respondent's auto bearing Registration No.TN-20-A-2412, driven in a rash and negligent manner, dashed against the motorcycle.
As a result, the petitioner sustained grievous injuries on his right fore arm.
Hence, he has filed the claim against the 1st and 2nd respondents, who are the owner and insurer of the auto.
As the 1st respondent had died during the pendency of the claim, the 3rd respondent, who is the wife of the 1st respondent has been impleaded as necessary party in the claim.
3.The 2nd respondent, in his counter has denied the averments in the claim regarding age, income, occupation, nature of injuries sustained, period of treatment, medical expenses and disability.
It was submitted that the accident was caused only due to the rash and negligent driving of the motorcycle by the petitioner and that the 1st respondent's auto driver had not been rash and negligent in his driving of auto as alleged.
It was submitted that the claim was excessive.
4.The Motor Accident Claims Tribunal framed two issues for consideration in the case namely (1) Due to whose negligence was the accident caused?.
and (2) If the accident had been caused by the rash and negligent driving by the driver of the 1st respondent's auto, what is the quantum of compensation which the 2nd respondent is liable to pay to the petitioner?.
5.On the petitioner's side, two witnesses were examined and 10 documents were marked as Exhibits P1 to P10 namely Ex.P1-F.I.R.; Ex.P2-Discharge summary; Ex.P3-Puthur O.P.Chit; Ex.P4-Prescription; Ex.P5-Medical bill; Ex.P6-Hematology test; Ex.P7-X-ray; Ex.P8-Disability certificate; Ex.P9-X-ray and Ex.P10-Report.
On the respondents' side, no witness, no documents.
6.PW1 had adduced evidence, which is corroborative of the statements made in the claim regarding manner of accident and in support of his evidence, he had marked Exs.P1 to P3.
The Tribunal on scrutiny of evidence of PW1 and Exs.P1 to P3 held that the accident had been caused by the rash and negligent driving by the driver of the 1st respondent's auto.
7.PW2, Doctor had adduced evidence that due to the accident, two of the bones in the petitioner's right forearm had been fractured and malunited.
He certified that the petitioner had sustained 40% disability and in support of his evidence, he had marked Exhibits P8 to P10.
The Tribunal, on considering that the assessment of disability was on the higher side held that the disability sustained by the petitioner could only be taken as 35%.
8.The Tribunal, on scrutiny of oral and documentary evidence awarded a sum of Rs.35,000/- for disability; Rs.4,000/- for medical expenses; Rs.8,000/- for pain and suffering; Rs.1,500/- for nutrition and Rs.1,500/- for transport.
In total, the Tribunal awarded a sum of Rs.50,000/- as compensation and directed the respondents to jointly or severally pay the said sum together with interest at the rate of 7.5% per annum from the date of filing the claim till date of payment of compensation, with costs, within a period of two months from the date of its order.
9.Not being satisfied by the award passed by the Tribunal, the petitioner has preferred the present appeal.
The learned counsel for the appellant has contended in his appeal that the Tribunal erred in taking the disability sustained by the appellant at 35%, when the Doctor, PW2 had clearly certified that the claimant had sustained 40% disability.
It was also contended that the award of Rs.35,000/- for disability was on the lower side.
It was also contended that the Tribunal ought to have awarded Rs.1,00,000/- towards loss of future earning capacity as per the decision of the Apex Court in 2008 ACJ.It was also contended that the award of Rs.8,000/- for pain and suffering was on the lower side as the appellant had taken treatment for long period of time in various hospitals as per Exs.P2 to P7.
It was also contended that the Tribunal failed to grant award for loss of earning during treatment period.
It was also contended that the award passed on the other heads are on the lower side and hence it was prayed for grant of additional compensation of Rs.1,00,000/-.
10.The very competent counsel Mr.S.Vadivel appearing for the Insurance Company submits that adequate compensation had already been granted.
Further, the claimant had sustained simple injuries.
11.On considering the factual position of the case and arguments advanced by the learned counsel on either side and on perusing the impugned award of the Tribunal, this Court does not find any lapse in the conclusions arrived at regarding negligence and liability.
However, the quantum of compensation is on the lower side.
Hence, this Court reassesses the compensation as follows:- Rs.40,000/- is awarded for disability; Rs.10,000/- for pain and suffering; Rs.4,000/- towards medical expenses; Rs.5,000/- towards transport; Rs.5,000/- towards attender charges; Rs.5,000/- towards nutrition; Rs.10,000/- towards loss of earning during medical treatment period.
In total, this Court awards Rs.79,000/- as compensation.
After deducting initial compensation of a sum of Rs.50,000/-, this Court awards Rs.29,000/- as additional compensation, as it is found to be appropriate in the instant case.
This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim till date of payment of compensation.
This Court directs the National Insurance Company Limited to deposit the said compensation amount, with added interest thereon, within a period of four weeks from the date of receipt of this order.
12.After such a deposit having been made, it is open to the claimant to withdraw the modified compensation amount, lying in the credit of M.C.O.P.No.5316 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court / Fast Track Court-I, Chennai, after filing a memo along with a copy of this order.
13.In the result, the above appeal is partly allowed.
Consequently, the judgment and decree passed in M.C.O.P.No.5316 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court / Fast Track Court-I, Chennai, dated 29.09.2008, is modified.
No costs.
05.08.2013 vs Index : Yes / No Internet : Yes / No To 1.The Motor Accident Claims Tribunal, Additional District Court / Fast Track Court-I, Chennai.
2.The Section Officer, VR Section, High Court, Madras.
C.S.KARNAN.J.vs C.M.A.No.1975 of 2009 05.08.2013