Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
05. 08.2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.No.2953 of 2008 M.Ramar ... Appellant Vs. 1.B.Chakrapani 2.United India Insurance Company Limited, Third Party Cell, South India Co-op. Building, III Floor, 38, Anna Salai, Chennai-2. ... Respondents PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 20.01.2006 passed by the Motor Accidents Claims Tribunal, III Judge, Fast Track Court, Chennai, (on transfer from VI Judge, Small Causes Court) in M.C.O.P.No.2050 of 2001. For Appellant : Ms.A.Jothi For Respondents : R-1 (not ready notice) R-2 (served) - - -
JUDGMENT
The appellant / petitioner has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.2050 of 2001, on the file of III Judge, Fast Track Court, Chennai, (on transfer from VI Judge, Small Causes Court), Motor Accidents Claims Tribunal.
2. The short facts of the case are as follows:- The petitioner has filed the claim in M.C.O.P.No.2050 of 2001, claiming compensation of a sum of Rs.2,50,000/- from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that on 07.02.2001, at about 11 a.m., when the petitioner was working as a cleaner in the lorry bearing registration No.TN-04-4741, which was parked in Manali Road, Chennai-6 and while he was in the process of boarding the lorry, the driver of the lorry started the lorry in a rash and negligent manner, due to which, the petitioner fell down and sustained injuries. As a result, the petitioner sustained deglove injury in his left hand, skin loss exposing the bone in the left leg and injuries in left rib, left sole and facial injuries. He was admitted at Government Stanely Hospital, Chennai-1 and received treatment as an inpatient from 07.02.2001. At the time of accident, the petitioner was aged 22 years and working as a Cleaner and earning Rs.150/- per day. Due to disability sustained by him, he is not able to do his work as before. Hence, the petitioner has filed the claim against the first and second respondents, who are the owner and insurer of the lorry.
3. The second respondent, in his counter has submitted that the lorry bearing registration No.TN-04-4741 which was involved in the accident had not been insured with this respondent at the time of accident. The averments in the claim that the first respondent's lorry driver had a valid driving lcience was also not admitted. It was submitted that the accident was caused only due to the negligence of the petitioner. The averments in the claim regarding nature of injuries sustained and medical treatment taken was not admitted.
4. The Motor Accidents Claims Tribunal had framed two issues for consideration in the case, viz., ".(i) Was the accident caused by the rash and negligent driving of the driver of the first respondent's lorry?. (ii) What is the quantum of compensation which the petitioner is entitled to get?.".
5. On the petitioner's side, two witnesses were examined and 9 documents were marked as Exs.P1 to P9, viz., Ex.P1-medical bills, Ex.P2-discharge summary, Ex.P3-O.P.chit, Ex.P4-photo with negatives, Ex.P5-F.I.R., Ex.P6-rough sketch, Ex.P7-disability certificate, Ex.P8 and Ex.P9-X-rays. On the respondent's side, no witness, no documents.
6. P.W.1 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.P5 and P6. On scrutiny of Ex.P5, it is seen that the F.I.R. has been registered against the first respondent's' lorry driver based on the complaint given by P.W.1. The Tribunal, on scrutiny of evidence of P.W.1 and Exs.P5 and P6 and on observing that no evidence had been let in on the respondent's side, to rebut the claim of P.W.1 regarding manner of accident held that the accident had been caused due to the rash and negligent driving by the driver of the first respondent's lorry.
7. P.W.1 had further adduced evidence that he had received treatment initially at Sugan Hospital and subsequently, received treatment at Stanley Hospital, as an inpatient for 40 days and that 5 skin grafting operations were done, wherein the flesh from his right thigh was removed and implanted in his left hand. He deposed that he had further received treatment at the same hospital for a period of 2 years as an inpatient and that subsequently, he had also received treatment at Mankulam and that he had incurred medical expenses of Rs.30,000/-. He deposed that at the time of accident, he was working as a cleaner and earning Rs.150/- per day and that subsequent to the accident, he is not able to attend his work. He deposed that he is not able to use his left hand to lift any heavy objects and in support of his evidence, he had marked Exs.P1 to P4.
8. P.W.2, Dr.Thyagarajan had adduced evidence that he had examined the petitioner on 16.12.2005 and observed that due to the accident, the petitioner had sustained injuries in his left hand and that skin grafting operations had been conducted, wherein the flesh from his right thigh had been removed and implanted in his hand. He deposed that the upward movements of the petitioner's left hand had been restricted to 80o and due to loss of flesh, the grasping power in the fingers of his left hand had been reduced by 20%. He deposed that as the flesh on his left knee had hardened and lost its flexibility, the flexion of the petitioner's left leg had been reduced by 10o. He deposed that the petitioner had also sustained fracture of bone in the middle finger of his left hand and that as the fractured bone had mal-united, he has difficulty in grasping things while working. He certified that the petitioner had sustained 65% disability due to the accident and in support of his evidence, he had marked Exs.P7, P8 and P9. The Tribunal, on holding the disability sustained by the petitioner as 60%, awarded a sum of Rs.60,000/- for disability; Rs.30,000/- for pain and suffering; Rs.3,000/- for transport and nutrition; Rs.1,000/- for medical expenses; Rs.20,000/- was awarded for loss of earning capacity. In total, the Tribunal awarded a sum of Rs.1,14,000/- as compensation to the petitioner and directed the second respondent to 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 three months from the date of its order.
9. Not being satisfied by the award by the Tribunal, the petitioner has preferred the present appeal.
10. The learned counsel for the appellant has contended in his appeal that the Tribunal, despite observing that the petitioner had received treatment for more than 2 years, erred in granting a meagre sum for transport and nourishment. It was also contended that the Tribunal failed to grant award for loss of income for two years during medical treatment and convalescence period. It was also contended that the award passed for medical expenses, disability and loss of earning power was on the lower side, especially as the appellant's leg has been rendered dysfunctional. Hence, it was prayed to grant of additional compensation of Rs.1,36,000/-.
11. Even though notice was served on the respondents, no one had appeared. Hence, this Court is constrained to pass final orders.
12. On considering the facts and circumstances of the case and arguments advanced by the learned counsel for the appellant, this Court does not find any discrepancy in the conclusions arrived at regarding negligence and liability. However, the quantum of compensation is on the lower side since the claimant had undergone a surgical operation as well as skin grafting surgical operation and he had been hospitalized for about 40 days, as an inpatient as per doctor's evidence. Hence, this Court reassesses the compensation as follows:- Rs.60,000/- is awarded for disability; Rs.15,000/- for pain and suffering; Rs.10,000/- towards transport; Rs.10,000/- towards nutrition; Rs.10,000/- towards attender charges; Rs.10,000/- towards medical expenses; Rs.10,000/- towards loss of earning during medical treatment period; Rs.80,000/- for loss of amenities and loss of comfort. In total, this Court assesses a sum of Rs.2,05,000/- as total compensation. After deducting initial compensation of a sum of Rs.1,14,000/-, this Court awards Rs.91,000/- as additional compensation. This additional compensation will carry interest at the rate of 7.5% per annum from the date of filing the claim till date of payment of compensation.
13. This Court directs the United India Insurance Company Limited, to deposit the said compensation amount with added interest, within a period of four weeks from the date of receipt of a copy of this order. After such deposit has been made, it is open to the claimant to withdraw the said compensation amount, with interest thereon, lying in the credit of M.C.O.P.No.2050 of 2001, on the file of III Judge, Fast Track Court, Chennai, (on transfer from VI Judge, Small Causes Court), Motor Accidents Claims Tribunal, after filing a Memo, along with a copy of this order.
14. In the result, the above appeal is partly allowed. Consequently, the order and decree passed in M.C.O.P.No.2050 of 2001, on the file of III Judge, Fast Track Court, Chennai, (on transfer from VI Judge, Small Causes Court), Motor Accidents Claims Tribunal, dated 20.01.2006, is modified. There is no order as to costs. 05.08.2013 Index : Yes. Internet : Yes. r n s To The III Judge, Fast Track Court, Chennai. C.S.KARNAN, J.
r n s C.M.A.No.2953 of 2008 05.08.2013