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.2709 of 2009 Rajakannu .Appellant Vs 1.
Govindasamy 2.
Koteeswaran 3.
The Oriental Insurance Company Rep.
by It's Divisional Manager 4, Bharathidasan Road Contonment Trichirapalli .Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the fair and decreetal order of Motor Accidents Claims Tribunal, (Additional District Court).Puducherry at Karaikal, dated 13.03.2009 made in M.C.O.P.No.233 of 2007.
For Appellant : Mr.S.Sounthar For Respondents : Mr.M.J.Vijayaraghavan (for R3) R1 & R2 - Exparte JUDGMENT
The appellant herein / claimant has filed M.C.O.P.No.233 of 2007, against the respondents herein stating that when he was proceeding on the motorcycle bearing Registration No.TN-51-T-5791, on the Porayar Road, on 10.07.2007 at about 10.30 a.m., on the extreme left of the road, the 2nd respondent's lorry bearing Registration No.TN-46-E-1639, driven by its driver in a rash and negligent manner in the opposite direction, dashed against him.
As a result, he had sustained grievous injuries.
Hence, the claim has been levelled against the respondents before the Motor Accidents Claims Tribunal, (Additional District Court).Puducherry at Karaikal and a compensation of Rs.6,00,000/- was claimed.
2.The respondents 1 and 2 were set exparte.
Hence, on the basis of averments raised by the petitioner, the Tribunal had framed two issues namely: (1) Whether the accident was caused due to the rash and negligent driving of the driver of the lorry bearing Registration No.TN-46-E-1639?.
and (2) If so, what is the quantum of compensation which the claimant is entitled to get?.
3.On the side of the claimant, three witnesses were examined including himself and 12 documents were marked as Exhibits P1 to P12 namely, Ex.P1-F.I.R; Ex.P2-Driving licence; Ex.P3-Insurance Policy; Ex.P4-Accident Inspection Report; Ex.P5-Panchayatdars Certificate; Ex.P6-Photos (6 in numbers).Ex.P7-R.C.Book of lorry; Ex.P8-Medical bills; Ex.P9-Trip sheets; Ex.P10-Disability Certificate; Ex.P11-Discharge slip; and Ex.P12-Xerox copy of case records.
On the side of the respondents, no witness was examined and no document was marked.
PW1 had adduced evidence that on 10.07.2007, at about 10.30 a.m., when he was proceeding on his two wheeler bearing Registration No.TN-51-T-5791, as a pillion rider and ridden by one Jeyabal and when the vehicle was proceeding on the Porayar Road, the 2nd respondent's lorry bearing Registration No.TN-46-E-1639, coming from the opposite direction, dashed against the motorcycle.
As a result, he had sustained injuries on his left leg and left hip and also the flesh on his left leg had been sheared off.
PW1 further stated that he was immediately taken to Government Hospital, Karaikal, wherein he was treated as an inpatient for a period of 3 days and subsequently discharged.
Therefore, he had been admitted at Karaikal Medical Centre, wherein, a surgical operation has been conducted on his left leg to set right the fracture of bone and skin grafting and flesh grating was done.
PW1 further stated that he was a fisherman and he was aged 54 years at the time of accident.
In support of his evidence, he had marked the above listed documents.
4.PW2, Dr.Balaji had adduced evidence that on 10.07.2007, at about 11.00 a.m., the claimant came to the Government Hospital, Karaikal and that he was hospitalised for a period of 3 days and that he had given treatment to him to set right the fracture of his left leg.
PW3, Dr.Muthiyan had adduced evidence that the claimant had sustained injuries on his left leg, left hip and as such his joint has been displaced by 900 and the thickness of flesh in his left thigh had been reduced and that his left leg had been shortened by 5 cMs.PW3 further stated that after examining him and verifying the entire records, he had issued disability certificate and mentioned disability at 56%.
5.After considering the evidence of the witnesses, the Tribunal had granted a sum of Rs.10,000/- as lump sum compensation, with interest at the rate of 7.5% per annum.
The learned Judge had assigned the reason that the petitioner had not produced the accident register and also has not produced any acceptable documents to show further treatment taken.
However, he had observed that there was documentary evidence to show that the claimant had undergone medical treatment at Government Hospital, Karaikal as inpatient for 3 days.
6.Not being satisfied by the compensation awarded by the Tribunal, the claimant has filed the above appeal.
The highly competent counsel argued that the claimant had produced discharge slip, photo copies of case records, medical bills, etc.in order to prove his medical treatment at two hospitals namely, Government Hospital, Karaikal and Karaikal Medical Centre, wherein a surgical operation was conducted to set right his bone fracture and skin grafting was also conducted.
The claimant has been hospitalised for 43 days as inpatient in the two hospitals.
His left leg had been shortened by 5 cMs.The claimant is a fisherman and was earning Rs.500/- per day.
After the accident, he had been incapacitated from doing his avocation as a fisherman.
The Doctor had assessed the disability at 56%.
Therefore, the claimant is entitled to get adequate compensation from the Insurance Company.
Since the offending vehicle has been insured with the Insurance Company and the F.I.R.had been registered against the driver of the lorry.
Besides this, the Motor Vehicle Inspector's report discloses that the offending vehicle is in a fit condition to be operated on the public road.
7.The very competent counsel for the Insurance Company submits that the claimant had not produced the relevant records regarding his medical treatment and duration of treatment and nature of injuries.
However, the Doctor had assessed the disability at 56% which is on the higher side.
Therefore, in the absence of relevant documents to show nature of treatment, a lacuna has arisen in the claim petition.
Therefore, the Tribunal had awarded lump sum compensation which is appropriate.
8.Per contra, the learned counsel for the claimant submits that the claimant had produced six photos which reveals the nature of injuries, surgical operation and skin grafting performed and that screw marks due to surgery are clearly visible.
Initially, the claimant has been hospitalised for 3 days as an inpatient at Government General Hospital, Karaikal.
For better treatment, he has been referred to Karaikal Medical Centre, wherein he underwent treatment for a period of 40 days.
9.On verifying 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 discrepancy in the conclusions arrived at regarding negligence and liability.
However, the quantum of compensation is on the lower side since as per the evidence of claimant and Doctor, it is seen that the claimant had sustained bone fracture injuries and his flesh had been sheared off and the Doctor had assessed the disability at 56%.
Therefore, this Court is inclined to grant compensation as follows: Rs.56,000/- is awarded under the head of disability; Rs.15,000/- is awarded for pain and suffering; Rs.5,000/- towards transport; Rs.5,000/- towards attender charges; Rs.5,000/- towards nutrition; Rs.5,000/- towards loss of earning during medical treatment period and Rs.50,000/- towards medical expenses.
In total, this Court awards Rs.1,41,000/- as compensation as it is found to be appropriate in the instant case.
After deducting initial compensation of a sum of Rs.10,000/- awarded by the Tribunal, this Court grants a sum of Rs.1,31,000/- as additional compensation.
This additional compensation will carry interest at the rate of 7.5% per annum.
10.This Court directs the 3rd respondent / Oriental Insurance Company Limited to deposit the said compensation amount within a period of four weeks from the date of receipt of this order.
After such a deposit having been made, it is open to the claimant to withdraw the entire additional compensation amount, with accrued interest thereon, lying in the credit of M.C.O.P.No.233 of 2007, on the file of Motor Accidents Claims Tribunal, (Additional District Court).Pudhucherry at Karaikal, after filing a memo, along with a copy of this order.
11.In the result, the above Civil Miscellaneous Appeal is partly allowed.
Consequently, the Award and Decree, passed in M.C.O.P.No.233 of 2007, dated 13.03.2009, on the file of the Motor Accidents Claims Tribunal, (Additional District Court).Puducherry at Karaikal, is modified.
No costs.
vs To 1.
The Motor Accidents Claims Tribunal, Additional District Court, Pudhuchery at Karaikal.
2.
The Section Officer VR Section High Court Madras