IN THE HIGH COURT OF JUDICATUE AT MADRAS DATED 31.01.2011 CORAM THE HONOURABLE MR. JUSTICE P.P.S.JANARTHANA RAJA C.M.A.No.2705 of 2008 & CROSS OBJECTION NO.67 OF 2008 & M.P.NO.1 OF 2009 The New India Assurance Co. Ltd., No.46, Moore Street, Chennai – 2. .. Appellant in C.M.A.No.2705 of 2008/ 2nd Respondent in MCOP first respondent in Cross Objection No.67 of 2008. Vs 1.M.Chelladurai .. first respondent in C.M.A.No.2705 of 2008 / Petitioner Cross Objector in Cross Objection No.67 of 2008 2.U.E.Suresh Kumar .. second respondent in C.M.A.No.2705 of 2008/ second respondent in Cross Objection No.67 of 2008/First Respondent (2nd Respondent was not exparte by the Claim Tribunal) Appeal filed under Section 173 of the Motor Vehicles Act, 1988 and the Cross Objection filed under Order 41, Rule 22 of the Civil Procedure Code, against the Judgment and Decree dated 11.02.2008 made in M.C.O.P.No.5249 of 2003 on the file of Motor Accident Claims Tribunal, (Vth Judge Small Causes Court) Chennai. For Appellant in C.M.A.No.2705 of 2008/first respondent in Cross objection No.67 of 2008 : Mr.C.Ramesh Babu For first Respondent in C.M.A.No. 2705 of 2008/Cross Objector in Cross Objection No.67 of 2008 : Mr.N.M.Muthurajan https://hcservices.ecourts.gov.in/hcservices/ C O M M O N J U D G M E N T The Civil Miscellaneous Appeal is preferred by the appellant-Insurance company against the award dated 11.02.2008 made in M.C.O.P.No.5249 of 2003 on the file of Motor Accident Claims Tribunal, Vth Small Causes Court, Chennai. 2. The Cross Objection is filed by the first respondent herein/claimant, against the judgment and decree dated 11.02.2008 made in M.C.O.P.No.5249 of 2003 on the file of Motor Accident Claims Tribunal, Vth Small Causes Court, Chennai. 3. Since the Civil Miscellaneous Appeal and Cross Objection are filed against the same award, they are taken up together and disposed of by a common Judgment. 4. Background facts in a nutshell are as follows: One Chelladurai met with motor vehicle accident that took place on 23.08.2003 at about 23.00 hours. The said Chelladurai was riding cycle from Valasarawakkam to Vadapalani, from West to East direction. He was nearing Bharani Hospital, Virugambakkam. At that point of time, a Motor Cycle bearing Registration No.TN 07 T 7988 came from behind in a rash and negligent manner at high speed and hit the cyclist. Due to the said impact, the claimant sustained grievous injuries all over the body and also fracture. He claimed a compensation of Rs.9,00,000/- before the Tribunal. The said Motor Cycle was insured with the appellant-Insurance Company, who resisted the claim. On pleadings, the Tribunal framed the following issues:- "1. Whether the accident had happened due to the rash and negligent driving of the rider of the motor cycle bearing Registration No.TN -07-T-7988? 2. Whether the respondents are liable to pay the compensation? 3. Whether the petitioner is entitled for the compensation? 4. To what relief?" After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the rider of the Motorcycle and awarded a compensation of Rs.2,67,000/- with interest at 7.5% per annum from the date of the claim petition and the details of the same are as under:- https://hcservices.ecourts.gov.in/hcservices/ Loss of Income .. Rs. 40,000.00 Transport charges .. Rs. 10,000.00 Extra Nourishment .. Rs. 10,000.00 Damage to clothing and cycle .. Rs. 2,000.00 Medical expenses .. Rs. 75,000.00 Future Medical expenses .. Rs. 20,000.00 Attendant charges .. Rs. 10,000.00 Mental agony .. Rs. 20,000.00 Pain and suffering .. Rs. 40,000.00 Loss due to 40% permanent Disability .. Rs. 40,000.00 --------------- Total .. Rs.2,67,000.00 --------------- Aggrieved by that award, the appellant-Insurance Company as well as the first respondent/claimant have filed Appeal and Cross Objection respectively. 5. The learned counsel appearing for the appellant- Insurance Company has questioned only the quantum of compensation awarded by the Tribunal by contending that the amount awarded by the Tribunal is excessive, exorbitant and without any basis and justification. Therefore, the award passed by the Tribunal is not in accordance with law and the same has to be set aside. 6. The learned counsel appearing for the first respondent/ claimant submitted that the compensation awarded by the Tribunal is very low and meagre and the Tribunal ought to have awarded compensation as claimed by the claimants and the Tribunal has not followed the principles of assessment before passing the award. Hence, the amount awarded by the Tribunal is very low and meagre and seeks enhancement of the compensation. 7. Heard the counsel and perused the materials on record. On the side of the claimant, Pws' 1 to 3 were examined and documents Exs.P1 to P14 were marked. PW-1 is the claimant/Chelladurai. PW2 is the Doctor Mathiazhagan. PW3-Mr.V.P.Sivaraman, Head Constable of Police. Ex.P1 is the First Information Report. Exs.P2 and P3 are the Rough Sketch. Ex.P4 is the Discharge Summary. Ex.P5 is the Medical Bills, Ex.P6 is the Pharmacy Bills. Ex.P7 is the injury certificate. Ex.P8 is the X-ray. Ex.P9 is the copy of the Registration Certificate. Ex.P10 is the Receipts for collection of fees for the issue of licenses. Ex.P11 is the Professional tax receipts. Ex.P12 is the T.N.C.S.C. License. Ex.P13 is the Disability Certificate. Ex.P14 is the X-ray. On the side of the appellant-Insurance Company, no one https://hcservices.ecourts.gov.in/hcservices/ was examined and no document was marked. After considering the oral and documentary evidence, the Tribunal had given a categorical finding that the accident had occurred only due to the rash and negligent riding of the rider of the Motor Cycle and the finding is based on the valid materials and evidence and the same is confirmed. 8. At the time of the accident, the claimant Chelladurai was aged about 50 years and he was doing business and earning a sum of Rs.10,000/- per month. PW1, in his evidence, has stated that a case has been registered by R-4, Pondy Bazaar Police Station, Chennai, in Crime No.332/TN2/2003 against the rider of the Motor Cycle bearing Registration No.TN 07 T 7988. Due to the accident, the injured sustained following injuries:- "1. Compound and communitted fracture of right femur 2. Fracture Inter Trochanteric femur right side 3. Injury in both hip 4. Injury in chest 5. Surgeries conducted and implants fixed 6. Multiple injuries" Immediately after the accident, he was admitted in C.M.O.Bharani Hospital, Virugambakkam, Cheannai and thereafter he was referred to Sooriya Hospital, Chennai for better treatment. In his evidence, he further stated that due to injuries sustained, he was not able to do the work as before. Ex.P4-Discharge Summary reveals that he had taken treatment as inpatient from 24.08.2003 to 04.09.2003 and surgery was also done on 25.08.2003. Due to the injury, his earning was affected from 24.08.2003 to 23.02.2004. After considering the oral and documentary evidence, the Tribunal awarded a sum of Rs.40,000/- under the head of loss of income during the treatment period. Considering the period of treatment i.e., 24.08.2003 to 04.09.2003, I feel that the amount awarded under this head is very reasonable and the same is confirmed. The Tribunal awarded a sum of Rs10,000/- towards transport charges, which is on the higher side and it would be reasonable to award a sum of Rs.7,500/- under this head as against Rs.10,000/- awarded by the Tribunal. The Tribunal awarded a sum of Rs.10,000/- towards Extra Nourishment, which is on the higher side and it would be reasonable to award a sum of Rs.7,500/- under this head as against Rs.10,000/- awarded by the Tribunal. The Tribunal awarded Rs.2,000/- under the head of Damage to clothing and cycle, which is very reasonable and the same is confirmed. The Tribunal has awarded a sum of Rs.75,000/- towards medical expenses. Exs.P5 and P6 are the medical bills and it is the actual expenditure incurred by the claimant. Hence, the amount awarded under this head is very reasonable and the same is confirmed. The Tribunal awarded a sum of Rs.20,000/- towards future medical expenses. Iron rods and screws were fixed in the broken bones and the same has to be removed and https://hcservices.ecourts.gov.in/hcservices/ hence the claimant needs further treatment. Therefore, the amount awarded under this head is very reasonable and the same is confirmed. Further, the Tribunal awarded a sum of Rs.10,000/- under the head of attendant charges. Considering the nature of injuries and treatment, the amount awarded under this head is very reasonable and the same is confirmed . The Tribunal awarded a sum of Rs.20,000/- under the head 'Mental agony' due to shortening of leg and Rs.40,000/- under the head 'pain and suffering'. The learned counsel appearing for the appellant-Insurance company vehemently contended that the Tribunal ought not to have awarded compensation towards different heads viz., mental agony due to shortening of leg and pain and suffering. Considering the facts and circumstances of the case, this Court is of the view that the amount awarded under the head 'mental agony' due to shortening of leg is unwarranted and therefore, the same is deleted and it is reasonable to award a sum of Rs.25,000/- towards pain and suffering as against Rs.40,000/- awarded by the Tribunal. The Tribunal also awarded a sum of Rs.40,000/- under the head of 40% permanent disability. PW2, Dr.Mathiazhagan, who examined the claimant, has determined the disability at 40%. Ex.P13 is the disability certificate issued by him. The doctor further stated that the claimant sustained fracture in the right femur and grievous injuries in all over the body. With regard to disability, there is no dispute. Normally the Courts award Rs.1000/- to 2000/- per percentage of disability. Considering the nature of the injuries sustained, I feel that it would be appropriate to award Rs.2000/- per percentage of disability and, if Rs.2000/- is awarded per percentage, for 40% disability, the amount works out to Rs.80,000/- (Rs.2000 x 40%) as against Rs.40,000/- awarded by the Tribunal. The Tribunal has awarded interest at the rate of 7.5% p.a from the date of petition. The accident was occurred on 23.08.2003. Keeping in view the prevailing rate of interest at the time of the accident, I feel that the rate of interest awarded by the Tribunal is very reasonable and the same is confirmed. The details of the modified compensation as per the above discussion are as under:- Loss of Income .. Rs. 40,000.00 Transport charges .. Rs. 7,500.00 Extra Nourishment .. Rs. 7,500.00 Damage to clothing and cycle .. Rs. 2,000.00 Medical expenses .. Rs. 75,000.00 Future Medical expenses .. Rs. 20,000.00 Attendant charges .. Rs. 10,000.00 Pain and suffering .. Rs. 25,000.00 Loss due to 40% permanent Disability .. Rs. 80,000.00 --------------- Total .. Rs.2,67,000.00 --------------- https://hcservices.ecourts.gov.in/hcservices/ The compensation amount awarded by the Tribunal is confirmed and apportioned under various heads. The claimant is entitled to the compensation of Rs.2,67,000/- with 7.5% per annum. 9. It is stated by the learned counsel appearing for the appellant-Insurance Company that the entire award amount has already been deposited and the first respondent/ claimant was also permitted to withdraw 50% of the award amount. The first respondent / claimant is permitted to withdraw the award amount with interest at 7.5% per annum from the date of petition, after adjusting the amount already withdrawn, on making proper application. 10. With the above modification, the Civil Miscellaneous Appeal is disposed of. The Cross Objection is disposed of. No costs. Consequently, connected M.P.No.1 of 2009 is closed. Sd/- Asst. Registrar / True Copy/ Sub Asst. Registrar r n s To 1. The (Motor Accidents Claims Tribunal), Vth Judge Small Causes Court, Chennai. 2. The Section Officer, VR Section, High Court, Chennai. +1CC to Mr.C.Ramesh Babu, Advocate (CC Sr.No.7124) +1CC to Mr.V.M.Muthurajan, Advocate (CCSR.No.7063) C.M.A.No.2705 of 2008 & Cross Objection NO.67 OF 2008 GV(CO) CS (16.5.11) https://hcservices.ecourts.gov.in/hcservices/