IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 5.1.2009 Coram THE HON'BLE MR. JUSTICE R.SUDHAKAR Civil Miscellaneous Appeal No.4051 of 2008 Divisional Manager, Oriental Insurance Co. Ltd., Third Party Claims Office, Belgaum, South India Co-operative Building, III Floor, Post Box No.38, Anna Salai, Madras-2. ...Appellant/2nd Respondent vs. 1.K.K.Prakash Kumar, 2.Keshav D.Patil. ...Respondent/Petitioner and first respondent Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 27.1.2000 passed in M.C.O.P.No.133 of 1994 on the file of the Motor Accidents Claims Tribunal (Additional Sub Court), Chengalpattu. For Appellant : Mr.N.Vijayaraghavan For 1st Respondent : Mr.J.Srinivasa Mohan JUDGMENT The Oriental Insurance Company is on appeal challenging the award dated 27.1.2000 passed in M.C.O.P.No.133 of 1994 on the file of the Motor Accidents Claims Tribunal (Additional Sub Court), Chengalpattu. 2. It is a case of injury. The brief facts of the case are as follows:- The accident in this case happened on 23.4.1993. The injured claimant K.K.Prakash Kumar, aged 30 years, a lorry driver, was driving a lorry bearing Registration No.KL-13-6442. Another lorry bearing Registration No.KA-22/449 coming from opposite direction driven by its driver in a rash and negligent manner, hit the lorry bearing Registration No.KL-13-6442. In that accident, https://hcservices.ecourts.gov.in/hcservices/ the claimant suffered grievous injuries. He was treated at K.J. Hospital, Madras for 3 days. Thereafter treated at Government Hospital at Tellicheri in Kerala for 10 days. He filed a claim for compensation in a sum of Rs.2,00,000/- for the injury suffered in the accident stating that he was earning a sum of Rs.2,500/- per month. 3. The Tribunal tried this case along with connected M.C.O.P.No.134 of 1994 filed by the cleaner in the lorry bearing Registration No.KL-13-6442. In support of the claim, the injured claimant K.K.Prakash Kumar was examined as P.W.2. The claimant in another claim was examined as P.W.1. Exs.A-1 to A-10 were marked. No oral or documentary evidence was let on behalf of the appellant insurance company, the second respondent before the Tribunal. 4. The finding of negligence on the part of the driver of the lorry bearing Registration No.KA-22/449 belonging to the first respondent, who is held responsible for the accident and the injury caused to the claimant, and the liability fixed on the appellant insurance company to compensate the injured claimant is not seriously disputed by the appellant's counsel and the same is confirmed. The only contention raised by the learned counsel for the appellant is on the quantum of compensation. 5. As per discharge certificate Ex.A-6 issued by the Government Hospital, Tellicheri and other medical records, the Tribunal came to conclusion that consequent to the accident, the claimant suffered fracture of the right bilateral bone of skull, fracture of the right radius and dislocation of right elbow. Ex.A- 7 is the prescription given by the bone specialist at Tellicherry. The Treatment given at Chennai in KG Hospital is supported by Exs.A-8 and A-10. Unfortunately, in this case, the disability has not been assessed by the doctor. The Tribunal taking note of the documents on record, the nature of injury, age, occupation and period of treatment, granted the following amounts as compensation with interest at 11% per annum from 12.11.1998:- Sl. No. Head Amount granted by the Tribunal 1 Pain and suffering Rs. 30,000/- 2 Permanent disability Rs. 50,000/- 3 Loss of earning power Rs. 40,000/- 4 Medical expenses Rs. 10,200/- 5 Loss of income during the period of treatment Rs. 2,000/- Total Rs.1,32,200/- https://hcservices.ecourts.gov.in/hcservices/ 6. In appeal, the plea urged by the learned counsel for the appellant is that the amount granted for disability in a sum of Rs.50,000/- is on the higher side as there is no assessment of disability by the doctor. Further, loss of earning power ought not to have been granted when adequate compensation has been granted for permanent disability. 7. Learned counsel for the claimant on the other hand stated that the injured claimant is a driver by occupation. He suffered injuries. He was treated at KJ Hospital at Chennai and then at Tellichery Government Hospital. The fracture of the right bilateral bone of skull, fracture of the right radius and dislocation of the right elbow is affecting his earning capacity as a driver. Therefore, the compensation need not be reduced. 8. The accident in this case happened in the year 1993. The nature of injury is very grievous in nature as the accident happened between two lorries by way of head-on-collision. The injured claimant as well as the cleaner of the lorry were taken to hospital in Chennai. Then the claimant took further treatment at Tellichery in Government Hospital. The fracture on the head and fracture on the right elbow will limit the earning capacity of the heavy vehicle lorry driver. Consequently, there will be a reduction in earning capacity. Hence, the compensation under permanent disability and loss of earning capacity can be combined and granted as one component. Therefore, the compensation both on the head of disability and loss of earning capacity can be granted as one component. Accordingly a sum of Rs.75,000/- is granted instead of Rs.90,000/- granted on two heads. The other amounts granted by the Tribunal are not disputed. Accordingly, the award of the Tribunal is modified as follows:- Sl. No. Head Amount granted by the Tribunal Amount granted by this Court 1 Pain and suffering Rs. 30,000/- Rs. 30,000/- 2 Permanent disability Rs. 50,000/- --- 3 Loss of earning power Rs. 40,000/- --- 4 Disability coupled with loss of earning capacity --- Rs. 75,000/- 5 Medical expenses Rs. 10,200/- Rs. 10,200/- 6 Loss of income during the period of treatment Rs. 2,000/- Rs. 2,000/- Total Rs.1,32,200/- Rs.1,17,200/- 9. The interest granted at 11% stands confirmed as the accident in this case happened in the year 1993 and the award was https://hcservices.ecourts.gov.in/hcservices/ passed in the year 2007. In any event, the Tribunal granted interest only from 12.11.1998 till date of deposit and the period prior to that date has been excluded on account of non-prosecution of the claim by the claimant. Therefore, the interest granted by the Tribunal stands confirmed. 10. In the result, the Civil Miscellaneous Appeal is allowed in part as follows:- (i) The award of the Tribunal is reduced to Rs.1,17,200/- from Rs.1,32,200/-. (ii) The interest granted by the Tribunal at 11% from 12.11.1998 till date of deposit is confirmed. (iii) Learned counsel for the appellant seeks for eight weeks' time to deposit the award amount as ordered by this court and is granted. (iv) On such deposit, the claimant is permitted to withdraw the award amount as ordered by this court. (v) There will be no order as to costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar ts To The Additional Subordinate Judge, (The Motor Accidents Claims Tribunal) Chengalpattu. + 1 c.c. to Mr. J. Srinivasamohan, Advocate. S.R.No.20. + 1 c.c. to Mr. N. Vijayaraghavan, Advocate. S.R.No.619. Judgment in C.M.A.No.4051 of 2008 SSR (CO) GSK 16.02.2009. https://hcservices.ecourts.gov.in/hcservices/