(Appeal filed under Section 173 of the Motor Vehicles Act, 1998 against the judgment and decree dated 26.12.2002 made in M.C.O.P.No.440 of 2002 on the file of Motor Accidents Claims Tribunal Judge cum Addl. District Judge, Fast Track Court No.II, Tindivanam.)
This appeal is filed at the instance of the claimant against the award passed by the Motor Accident Claims Tribunal cum Additional District Judge, Fast Track Court No.II, Villupuram at Tindivanam praying for enhancement of compensation.
2. The case of the parties before the tribunal in brief is as follows:-
(a) On 03.07.1999 at about 6.30 p.m. when the petitioner was proceeding as a pillion on T.V.S. Motor cycle bearing Regn. No. PY 01 K 2436 rode by one Patchaiyappan to Amirtham Sweets and Snacks Shop, Vazhudavur Road, Thaiashpe, Pondicherry from west to east in the extreme left side of the road, the lorry driver of the mini lorry bearing Regn. No.PY 01 E 5981 who drove the lorry in a rash and negligent manner hit against the motor cycle from behind and in that course, the petitioner sustained grievous injuries and the rider of the motor cycle too sustained injuries and they were rushed to the nearby private hospitals for treatment. The accident took place only due to rash and negligence on the part of the driver of the lorry belonging to the first respondent. The lorry was insured with the second respondent. Both the respondents are jointly and severally liable to pay compensation to the petitioner for the injuries sustained by him in the road accident. Hence, this petition claiming a sum of Rs.1,50,000/- as compensation from the respondents.
(b) The 2nd respondent Insurance Company filed their counter resisting the claim and contending that the age, avocation, income of the petitioner and the injuries sustained, course of treatment and the extent of disablement due to the injuries are denied. The petitioner is put to strict proof of the same. The driver of the lorry of the first respondent was no way responsible for the accident. It is only because of the careless and negligent riding of the motorcyclist, the accident had occurred. Since the accident involving two motor vehicles, the other of the motor cycle ought to have been impleaded as one of the necessary parties to the petition. In any event, the claim of compensation is excessive and exorbitant. The petition is liable to be dismissed.
3. The Tribunal after having considered the oral and documentary evidence available on record had passed an award of Rs.33,000/- with interest at 9% p.a. as against the claim of Rs.1,50,000/-
4. This appeal is preferred by the aggrieved claimant seeking enhancement of compensation. Although, a sum of Rs.1,50,000/- was claimed before the tribunal, the claimant, confined his claim to Rs.1,33,000/- in this appeal less Rs.33,000/- awarded by the tribunal and paid necessary court fees thereon. The respondents have preferred any appeal questioning the negligence nor against the quantum of compensation.
5. The learned counsel appearing for the appellant/claimant would submit that the tribunal had not properly considered the oral and documentary evidence adduced by the claimant. The petitioner sustained 50% disability due to the injuries as spoken to by P.W.3 Doctor and the tribunal failed to appreciate the evidence of the Doctor coupled with Ex.A7 Disability Certificate. The tribunal in all awarded only a sum of Rs.33,000/- which is meagre and not in accordance with law. The petitioner was running a workshop and was operating a lorry of his own and getting a sum of Rs.6,000/- per month at the time of accident. During treatment, for about 4 months he could not attend his work and as such he is entitled to loss of income for 4 months. Further, the tribunal failed to take note of the percentage of disability at 50% and its impact in the day-to-day life of the petitioner. Therefore, he would urge this Court to suitably enhance the award of compensation.
6. The learned counsel appearing for the second respondent would on the other hand submit that the tribunal had awarded just and a reasonable award. The tribunal having considered the nature of the injuries and the 50% of disability of the claimant, had passed award on pain and sufferings and permanent disability among along with other heads and the same does not require any interference.
7. I have given anxious consideration to the arguments advanced on either side. At the outset, on going through the award of the tribunal, it could be found that a sum of Rs.25,000/- was awarded towards grievous injury; Rs.5,000/- towards treatment and other expenses; and Rs.3,000/- towards pain and sufferings in all a sum of Rs.33,000/- has been awarded by the tribunal. The said finding of the tribunal does not indicate as to whether it had awarded compensation under permanent disability or for mere injuries. The discussion of the tribunal in arriving at a compensation of Rs.25,000/- would not show that it is for the disablement sustained due to the injuries. According to P.W.3 Doctor the petitioner had sustained grievous injuries on his right leg apart from another injury on his leg and four metacarpal bones got fractured. P.W.3 Doctor assessed the disability consequent to the injuries at 50% and issued Ex.A.7 Disability Certificate. According to P.W.3 Doctor, due to the disablement, the petitioner could not able to and flex the right ankle or walk or to do any work and flex or fold the right foot. The tribunal ought to have considered the impact of the disability sustained by the petitioner as spoken by the Doctor, coupled with Ex.A.7 Disability Certificate issued by him.
8. According to the petitioner, he was running a workshop and was operating a lorry of his own and getting a sum of Rs.6,000/- per month at the time of accident. However, the said disability cannot be considered for assessing pecuniary loss, as there is no material produced to support the permanent income of the petitioner. Therefore, the method of calculating the compensation at Rs.1,000/- for every 1% of disability would meet the ends of justice. Accordingly, a sum of Rs.50,000/- could be awarded to the petitioner. As far as pain and sufferings is concerned, according to the evidence of P.W.3 Doctor, the petitioner sustained fracture on four metacarpal bones besides other injuries in the road accident. The petitioner would have subjected to much pain and sufferings immediately after the accident and during treatment. Therefore, on taking into consideration of the nature of injuries and the extent of sufferings, a just and reasonable sum of Rs.20,000/- could be awarded to the petitioner towards pain and sufferings. Similarly, the tribunal had failed to consider the compensation under the heads of transport charges, special diet and medicines including attendant charges to which the petitioner would have certainly spent. Accordingly, a sum of Rs.4,000/- towards transport charges, a sum of Rs.2,000/- towards extra nutrition; and a sum of Rs.8,000/- towards medical and attendant charges could be awarded. Further, on taking into consideration of the period of treatment, even though the petitioner did not prove his permanent income, for the purpose of assessing the temporary loss of income suffered by the petitioner during the course of treatment for four months, a sum of Rs.4,000/- could be taken as monthly salary. Accordingly, the petitioner is entitled to Rs.16,000/- towards temporary loss of income for four months. Therefore, in all the petitioner is entitled to a total comp
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ensation of Rs.1,00,000/- whereas the tribunal had awarded only a sum of Rs.33,000/- without considering the facts and circumstances. Therefore, it has become necessary for this Court to modify the award passed by the tribunal suitably enhancing the award from Rs.33,000/- to Rs.1,00,000/-. The head-wise details of compensation to which the petitioner is entitled are furnished here below:- 9. Accordingly, the appeal is partly allowed with proportionate costs in the appeal. The compensation awarded by the tribunal is enhanced from Rs.33,000/- to Rs.1,00,000/- and the appellant is entitled to interest at 7.5% per annum for the enhanced compensation of Rs.67,000/- from the date of petition till date of deposit by the first respondent in full. Time for payment 6 weeks. The order of the tribunal in other respects shall stand maintained.