(Prayer; Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the Common Judgment and Decree in M.C.O.P.No.2114 of 2000 dated 05.01.2005, on the file of VI Judge, Small Causes Court, (Motor Accident Claims Tribunal), Chennai and praying to set aside the same.)
1. The appellant / petitioner has preferred the present appeal in C.M.A.No.109 of 2006, against the Common Judgment and Decree passed in M.C.O.P.No.2114 of 2000, on the file of the Motor Accident Claims Tribunal / VIth Judge, Small Causes Court, Chennai.
2. The short facts of the case are as follows:-
The petitioner has filed the claim in M.C.O.P.No.2114 of 2000, claiming compensation of a sum of Rs.3,00,000/- from the respondents for the injuries sustained by him in a Motor Vehicle Accident. It was submitted that on 06.02.1999, at about 9.00 a.m., when the petitioner was riding his cycle on the Gandhi Mandapam road, near Anna University from North to South and was turning his bicycle towards his right, after giving indication, the 1st respondent's Car bearing Registration No.TN-09-E-7201, coming from behind the petitioner and driven in a rash and negligent manner, dashed against the bicycle. As a result, the petitioner sustained grievous injuries. Due to disability sustained in the accident, he is not able to do his work as before. Hence, the petitioner has filed the claim against the 1st and 2nd respondents, who are the owner and insurer of the Car.
3. The 2nd respondent, in his counter has denied the averments in the claim that the accident was caused due to the rash and negligent driving of the Car by its driver. It was submitted that the accident was caused only due to the negligence of the petitioner. It was submitted that the petitioner has to prove that the driver of the Car had a valid driving licence and that the Car was covered under a valid policy of Insurance at the time of accident through documentary evidence. It was submitted that the claim was excessive.
4. The Motor Accident Claims Tribunal framed four issues for consideration in the case namely (1) Due to whose negligence was the accident caused? (2) Are the respondents liable to pay compensation? (3) Is the petitioner entitled to get compensation? If so, what is the quantum? and (4) To what other relief is the petitioner entitled to get?
5. On the petitioner's side, three witnesses were examined and 15 documents were marked as Exhibits P1 to P15 namely Exs.P1 & P2-O.P. Chits; Ex.P3-Scan report; Exs.P4 & P5-Discharge summary; Exs.P6 to P8-Medical bills; Ex.P9-Transport bills; Ex.P10-Letter regarding job of petitioner; Ex.P11-Salary certificate; Ex.P12-F.I.R; Ex.P13-Rough sketch; Ex.P14-Disability certificate and Ex.P15-X-ray. On the respondents' side, no witness, no documents.
6. PW1, the petitioner 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 Exhibits P12 and P13. The Tribunal, on scrutiny of evidence of PW1 and Exs.P12 and P13 and on observing that no evidence had been let in on the respondents' side to rebut the claim regarding manner of accident, held that the accident had been caused by the rash and negligent driving by the driver of the 1st respondent's Car and hence held the 2nd respondent, being the insurer of the Car liable to pay compensation to the petitioner.
7. PW1 had further adduced evidence that he had sustained fracture of two of his bones below his right knee and also sustained injuries on his head. He deposed that he had taken treatment for one day at Royapettah Government Hospital and subsequently taken treatment for a day at Government General Hospital and later on at Devaki Hospital, wherein a scan was taken. He deposed that he had subsequently received treatment at Isabellah Hospital, as an inpatient for five days, wherein a surgery was conducted and steel rods were fixed and that after four months, as the rod fixed was broken, while walking, a surgery was conducted at C.M.C. Hospital, Vellore and the broken rod was removed and a new rod was implanted in the operated area. He deposed that as he subsequently experienced pain in the operated region, another surgery was conducted and the screw which had been loosened was set right. He deposed that at the time of accident, he was doing his Ph.D. at Madras University and was getting a stipend of Rs.5,000/- per month and also doing part time Accountancy work and that subsequent to the accident, the stipend paid to him was stopped. He deposed that he is not able to walk or ride a cycle and not able to fold his leg and in support of his evidence, he had marked Exs.P1 to P8.
8. PW2, Dr.Thyagarajan had adduced evidence that two of the bones which were fractured in the petitioner's right leg had malunited and that as the flesh had handled in this region, the petitioner will be able to bend his right knee only through 60. He deposed that the petitioner would not be able to walk fast or ride a cycle. He deposed that due to the blood clots formed in his right side of brain, the petitioner experiences headache, giddiness and shivering of hands and certified that the petitioner had sustained 50% disability and in support of his evidence, he had marked Exs.P14 and P15.
9. PW3, the employer of the deceased had adduced evidence that the petitioner was working as a part time Accountant in their firm and earning Rs.2,000/- per month and in support of his evidence, he had marked Ex.P16.
10. The Tribunal, on taking the income of the petitioner as Rs.2,000/- per month and on scrutiny of oral and documentary evidence awarded a sum of Rs.16,000/- as compensation for loss of income for 8 months during medical treatment and convalescence period; Rs.5,000/- was awarded for transport expenses; Rs.5,000/- for nutrition; Rs.86,000/- was awarded for medical expenses as per medical bills marked as Exs.P6 to P8; Rs.20,000/- was awarded for pain and suffering; Rs.55,000/- was awarded for disability; Rs.25,000/- was awarded for loss of earning capacity due to disability. In total, the Tribunal awarded a sum of Rs.2,12,000/- as compensation to the petitioner and directed the 2nd respondent to pay the said sum together with interest at the rate of 9% per annum from the date of filing the claim till date of payment of compensation, with costs, within a period of eight weeks from the date of its order.
11. 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 award of Rs.25,000/- granted under the head of future loss of earning is on the lower side as the appellant had sustained fracture of bones on his right leg and also sustained head injury and had sustained 55% disability due to the accident. It was contended that the Tribunal failed to grant award for future medical expenses, as the rod implanted in his leg has to be removed through another surgical operation. It was contended that the Tribunal ought to have awarded a sum of Rs.30,000/- for medical expenses as per Ex.P9 and erred in awarding a meagre sum of Rs.5,000/- for medical expenses. Hence, it was prayed for grant of additional compensation of Rs.88,000/-.
12. The highly competent counsel Mr.G.Udayasankar submits that the claimant had ridden hisbicycle in a negligent manner and dashed against the Car. As such, the entire negligence vests on the side of the claimant. The claimant had sustained simple injuries, but the Doctor had assessed the disability at 55% which is on the higher side.
13. 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, since the claimant had undergone three surgical operations and steel rods were fixed in the operated area, as per Doctor's evidence and the Doctor had assessed the disability at 55%. Therefore, this Court reassesses the compensation as follows:-
Rs.1,10,000/- is awarded for disability; Rs.15,000/- towards pain and suffering; Rs.10,000/- towards transport; Rs.10,000/- towards attender charges; Rs.10,000/- towards nutrition; Rs.87,000/- towards medical expenses; Rs.25,000/- towards loss of amenities and loss of comfort. In total, this Court awards Rs.2,67,000/- as compensation. After deducting initial compensation of a sum of Rs.2,12,000/-, this Court awards Rs.55,000/- as additional compensation as it is fo
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und to be appropriate. This additional sum 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 herein to deposit the said compensation amount, with added interest thereon, within a period of four weeks from the date of receipt of this order. 14. 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.2114 of 2000, on the file of the Motor Accident Claims Tribunal / VI Judge, Small Causes Court, Chennai, after filing a memo along with a copy of this order. 15. In the result, the above appeal is partly allowed. Consequently, the Common Judgment and Decree passed in M.C.O.P.No.2114 of 2000, on the file of the Motor Accident Claims Tribunal / VI Judge, Small Causes Court, Chennai, dated 05.01.2005, is modified. No costs.