IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.09.2010 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.1402 OF 2006 & C.M.P.Nos.1357 and 6232 of 2006 Government Kilpauk Medical College, Chennai – 600 010 .. Appellant Versus S.Kumar .. Respondent Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 19 against the award and decree dated 08.09.2005 made in M.C.O.P.No.4107 2001, on the file of Motor Accidents Claims Tribunal, Vth Small Caus Court, Chennai. For Appellant : Mrs.P.Shanthi Rakkappan Government Advocate For Respondent : Mr.Santhanakrishnan for Mr.S.P.Prabhakaran - - - J U D G M E N T The above appeal has been filed by the appellant / Government Kilpa Medical College, against the award and decree dated 08.09.2005 made M.C.O.P.No.4107 of 2001, on the file of Motor Accidents Claims Tribuna Vth Small Causes Court, Chennai. 2.The short facts of the case are as follows: On 23.02.2001, while the petitioner was travelling in a TVS Cha bearing registration No.TN 01 E 8701, as a pillion rider, through Marsha https://hcservices.ecourts.gov.in/hcservices/ Salai from North to South direction and at about 11.15 hours, when t Moped was idling at Ethiraj Salai Junction, in order to turn to t eastern side, the bus bearing Registration No. TMY 2021 coming from Nor to South direction and driven by its driver in a rash and neglige manner, hit against the said moped. As a result of the impact, the rid and the pillion rider, the petitioner herein sustained grievous injurie Hence, the petitioner has claimed a compensation of Rs.3,00,000/- wi interest and costs from the first respondent, the owner of the bus and t second respondent, its insurer. 3.The first respondent, the Government Kilpauk Medical Colleg Chennai – 10, has in its counter refused the allegations made in t claim. It has been stated that when the driver of the bus had turned t bus towards left at the turning of Marshalls Road end, the said t wheeler had tried to overtake the bus on the left side. As there w insufficient place between the two vehicles, the accident had occurred. the bus had dashed the moped from behind, the moped would have suffer extensive damage in its rear side of moped as well as causing fractures the back side or hip bone of the rider and pillion rider of the moped. T fact that only the Moped's front fork and front wheel were damaged and t fact that the petitioner had only minor injuries clearly proves that t bus did not hit behind the moped as alleged in the claim. It was furth stated that the rider of the Moped did not have a valid driving licence the time of accident and the rider had submitted L.L.R. to the Poli Department in L.R.No.3177/2001, dated 12.03.2001 for the period fr 12.03.2001 to 11.09.2001. It was further stated that the rider of t Moped was not its owner. Hence, the first respondent had prayed f dismissal of the claim with costs. 4.On the pleadings of both parties, the Motor Accidents Clai Tribunal framed two issues for consideration, namely; “(i)Who is responsible for the accident? (ii)Is the petitioner entitled to get compensation?” 5.On the petitioners side, three witnesses were examined and ni documents were marked. On the respondents side, there was no witnesses a no documents were marked. 6.PW1, the rider of the Moped in his evidence adduced that while was travelling from North to South on Marshalls Road and when his mop was idling near its turning, the bus had hit the moped from behind. PW the pillion rider of the moped had also adduced evidence that the said b had hit him from behind and that the accident was caused only by t negligence of the driver of the bus. On scrutinizing of P2, the F.I.R., is seen that the accident had occurred only due to negligence of the b driver and a criminal case had been registered against him https://hcservices.ecourts.gov.in/hcservices/ Cr.No.77/T3/2003. The Tribunal, on considering the evidence a circumstances of the case, held that the accident occurred due to t negligence of the bus driver. 7.PW2, in his evidence had stated that because of the said acciden his left thigh bone had been fractured and that two bones had be fractured in the region below his right knee and that he had suffer bruises on his left eyebrow and left calf of his leg. He stated that had taken treatment at Royapettah Government Hospital, as inpatient, for period of six months and that he is not bale to perform his work and al not able to stand for long periods of time and that even for passi stools, he needs the help of another person. He has further stated that a result of the accident, one of his leg has been shortened by 2”. 8.PW3, the Doctor had adduced evidence stating that in the sa accident PW1 had suffered left fumer fracture, fracture of bones in h right and left leg and also abrations over left elbow and that sk surgery had also been done. He had further stated that the fractured t bones in his right leg had not joined properly, even after treatment a his knee movements had been reduced by 200. He had certified that t disability sustained by the petitioner as 50% and marked Ex.P8, t disability certificate. 9.The Tribunal on considering that the petitioner was earni Rs.3,500/- per month as mason, and considering that he was not able to any work for a period of one year after the accident and after consideri the facts and circumstances of the case, gave compensation as follows:- Rs.42,000/-(R.3,500 x 12) towards loss of income for one year; Rs.5000/- for transport expenses; Rs.5000/- against nutrition; Rs.17,250/- towards medical expenses as per Ex.P4 Rs.15,000/- towards attendant charges; Rs.25,000/- towards pain and suffering; Rs.50,000/- for loss of earning capacity; In total, an award of Rs.2,09,250/- was granted as compensation to t petitioner. 10.The learned counsel for the appellant argued that the Tribunal h awarded Rs.42,000/- under the head of 'loss of income' and that this not proper, besides the Tribunal had awarded Rs.50,000/- under the head 'loss of earning capacity' and this is also not pertinent. The learn counsel further argued that the 50% disability, which had been assessed the Doctor was on the higher side. 11.The learned counsel for the claimant argued that the claimant h sustained bone fracture injuries on his left thigh, right leg, left l knee and other bodily injures. The claimant had undergone six mont https://hcservices.ecourts.gov.in/hcservices/ medical treatment, as inpatient, at Government Royapettah Hospita Chennai. His leg has been shortened by 2”. During medical treatme period, a surgical operation was conducted and steel plates and scre were fixed in the operated area. After some time, they had been p formation in the area and the steel plates were then removed. Consideri the nature of injuries and period of medical treatment, the award is n on the higher side. The learned counsel further argued that the claimant leg had been shortened by 2” and as such the claimant is unable to prefo his normal duty as mason. 12.In view of the facts and circumstances of the case and argumen advanced by the learned counsels on either side and on perusing t impugned award, this Court is of the considered opinion that the claima had sustained bone fracture injuries in his two legs. A surgical operati had also been conducted and the doctor had assessed the disability at 50 Therefore, the compensation amount of a sum of Rs.2,09,250/- reasonable, especially considering the petitioner's disability, loss income during medical treatment period, attendant charges, nutritio transport, medical expenses, pain and suffering and loss of earni capacity. Therefore, this Court is not warranted to interfere with t quantum of compensation and hence this Court confirms the award of t Tribunal, as it is fair and equitable. 13.It is open to the claimant to withdraw the entire compensati amount lying in the credit of M.C.O.P.No.4107 of 2001, on the file Motor Accidents Claims Tribunal, Vth Small Causes Court, Chennai, aft filing necessary payment out of application in accordance with la subject to withdrawals if any made already. 14.Resultantly, the above Civil Miscellaneous Appeal is dismisse Consequently, the Award and Decree, passed by the Motor Accidents Clai Tribunal on the file of Vth Small Causes Court, Chennai, made M.C.O.P.No.4107 of 2001, dated 08.09.2005 is confirmed. There is no ord as to costs. Consequently, connected miscellaneous petitions are closed. r n s Sd/- Asst. Registrar //True Copy// Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Judge (Motor Accidents Claims Tribunal, ) Vth Small Causes Court, Chennai. + 1 cc to Mr.S.P.Prabhakaran Advocate, SR.67321 C.M.A.NO. 1402 OF 200 KSJ (CO) RRI/19.5.2011 https://hcservices.ecourts.gov.in/hcservices/