IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.05.2008 CORAM: THE HONOURABLE Mr. JUSTICE M.VENUGOPAL C.M.A.No.1749 of 2003 P.Rajamani ... Appellant Vs. 1.E.Bakthavatchalam 2.The New India Assurance Company Limited, Regina Mension, Ist Floor, No.46, Moore Street, Chennai-600 001. ... Respondents Prayer: Appeal filed against the Judgment and Decree dated 29.10.2002 made in M.C.O.P.No.3580 of 2000 on the file of the Motor Accidents Claims Tribunal (Court of Small Causes), Chennai. For Appellant : Mr.C.Munusamy For C & K. Law Firm For Respondents : Mr.J.Chandran JUDGMENT This Civil Miscellaneous Appeal is preferred by the appellant/claimant as against the award dated 29.10.2002 passed by the Motor Accidents Claims Tribunal viz., Second Judge, Court of Small Causes, Chennai in M.C.O.P.No.3580 of 2000 praying for enhanced compensation. 2.The appellant has filed the claim petition originally claiming a sum of Rs.2,00,000/- and restricting the same to a sum of Rs.1,50,000/- as compensation for the grievous injuries sustained by him in the road accident. 3.The Tribunal has awarded a sum of Rs.61,000/- as total compensation along with interest at 9% per annum from the date of filing of the petition till date of payment directing the second respondent Insurance Company to pay the same. https://hcservices.ecourts.gov.in/hcservices/ 4.The short facts to the claim made by the appellant/ claimant are as follows:- On 30.08.2000 at about 13.45 hours the appellant/ claimant was riding his cycle along the first main road CIT Nagar from west to east direction and at that time, a Van bearing Registration No.TN.22.F.1739 came from behind in rash and negligent manner endangering public safety and dashed against him, resulting in grievous injuries. The driver of the van is responsible for the accident. Hence, the first respondent as owner of the van and second respondent as insurer of the said vehicle are jointly and severally liable to pay compensation with interest and costs. The stand of the second respondent Insurance Company is that the accident has taken place due to the fault of the claimant, who was all of a sudden riding his bicycle on the middle of the road without observing traffic rules and regulations and resultantly, the claimant has been hit by the first respondent vehicle and as such, there is no rashness and negligence on the part of the driver of the first respondent vehicle. Before the Tribunal, on the side of the claimant witnesses P.Ws.1 to P.W.3 were examined and documents Exs.P.1 to P.8 were marked. On the side of respondents, no one was examined and no document was marked. After contest, on appreciation of oral and documentary evidence, the Tribunal has awarded a sum of Rs.61,000/- as compensation along with interest at 9% per annum from the date of filing of the petition till date of payment, directing the second respondent Insurance Company to pay the same. The Tribunal has fixed lawyer's fee at Rs.2,562.50. 5.According to the learned counsel for the appellant, the Tribunal has granted only a sum of Rs.20,000/- towards loss of earning during treatment period as against the claim of Rs.40,000/- and that the Tribunal has given only lesser amount under various heads in the award without any discussion and in any event, the award of Rs.61,000/- as total compensation is meagre as against a claim of Rs.1,50,000/- and prays for allowing the appeal in the interest of justice. 6.In order to prove negligence, on the side of appellant/ claimant P.W.1 and P.W.2 were examined. Ex.P.5 is the FIR lodged by the appellant/claimant/P.W.1 in Ex.P.5-FIR, the name of the accused of the accused is mentioned as driver of van (407) TN.22.F.1739. In Ex.P.5-FIR it is clearly stated by the informant/appellant that on 30.08.2000 at about 1.45 p.m. in the afternoon he was proceeding in a cycle to Velacherry Police Station on the CIT first main road from west to east and at that time in the same direction in front of Door No.75 the van which was coming beyond him in fast speed and negligently came and hit against him, as a result he lost his balance and fell down and that he saw the number of the van as TN.22.F.1739 and that his left hand wrist https://hcservices.ecourts.gov.in/hcservices/ swelled heavily and that immediately he was taken in an auto by the persons who were there in the accident spot, to the Government Royapettah Hospital where he was undergoing treatment. P.W.2 in his evidence has stated that the driver of the van has admitted the offence. A perusal of Ex.P.5 shows that a case under Section 337 IPC, under Section 184 M.V. Act has been registered against the van driver by the J.3 Guindy Police Inspector (Traffic Wing). 7.Ex.P.6 is the carbon copy of the charge sheet filed against the van driver before the 4th Metropolitan Magistrate Court, Chennai. The complainant/appellant/ claimant in his evidence as P.W.1 has lucidly spoken about the occurrence giving a clear account of the same. Moreover, the van driver has also admitted the offence. In short, there is no contra evidence on the side of respondents to disprove the version projected by P.W.1/appellant/claimant in regard to the manner and happening of accident. Therefore, this Court comes to the conclusion that the accident has taken place because of the negligent driving of the van by its driver in fast speed and that driver of the van is squarely responsible for causing the accident and the finding is rendered accordingly. 8.In regard to the quantum of compensation, the Tribunal has granted a sum of Rs.20,000/- towards loss of income, towards transportation expenses it has granted a sum of Rs.2,000/-, towards nourishment expenses it has granted Rs.2,000/-, towards damage to clothes and other expenses it has granted Rs.1,000/-, it has granted Rs.1,000/- towards cycle damage, towards medical expenses it has granted Rs.10,000/-, towards pain and suffering it has granted a sum of Rs.10,000/-, towards permanent disability it has granted a sum of Rs.10,000/- and towards loss of earning capacity it has granted Rs.5,000/- and in all, a sum of Rs.61,000/- has been awarded as total compensation. 9.P.W.3-Doctor in his evidence has stated that he has not treated the appellant/claimant and that the appellant/ claimant has difficult to bend upwards his wrist and that the bone has wrongly united and that the appellant/claimant with fingers is not able to grip the objects and work and that he has given 35% disability as per Ex.P.7 and that 5% variation in disability will be there from doctor to doctor. In Ex.P.7-Disability Certificate, the disability is assessed at 35% and that it is stated that "(1)malunion # (L) lower end of Radius with fibra.. DFPF (L) wrist 5 10 only .. difficulty to carry weights... (2)Thumb Index fingers fleximar limited, grip power reduced due to muscle of flex.. Thump Index affected in the injury. X-ray (L) seen'. In Ex.P.7-Disability Certificate it is mentioned as Collis # (L) wrist. In Ex.P.2-Hospital Chit it is mentioned that '18 day old coller's # (L) side on BE cart and further it is stated that 'active finger movements, no swelling etc.' It is to be borne in mind that Ex.P.2-Hospital Chit has been issued by the department of physiotherapy and Rehabilitation. In Ex.P.1 (two hospital https://hcservices.ecourts.gov.in/hcservices/ chits) in one of them it is mentioned that the x-ray position is satisfactory. Ex.P.3 is the medical certificate of the appellant wherein the doctor has opined that the absence of the appellant for 48 days from 30.08.2000 is absolutely necessary for restoration of his health. In the claim petition, a sum of Rs.40,000/- is claimed towards loss of earning from 30.08.2000 to 29.02.2001. 10.In United India Insurance Company Limited V. R.Chinnaraj and two others, 2008 (1) TN MAC 8, it is observed that 'in view of Full Bench decision in Cholan Roadways and enhanced towards Permanent Disability, amount awarded by Tribunal towards loss of future income is unwarranted and therefore, is set aside.' 11.Inasmuch as the appellant/claimant has sustained 35% disability, this Court grants a sum of Rs.49,000/- in this regard (calculating a sum of Rs.1,400/- for 1% disability). For a claim of Rs.5,000/- towards transportation expenses, the award of Rs.2,000/- granted by the Tribunal is sustained, in the absence of necessary proof. For a claim of Rs.10,000/- towards nourishment expenses, this Court agrees with the view of the Tribunal granting Rs.2,000/-, since there is no sufficiency of proof in this regard. A sum of Rs.1,000/- claimed towards damage to clothes and articles and awarded by the Tribunal is sustained by this Court. A sum of Rs.1,000/- claimed towards damages to cycle granted by the Tribunal is also upheld by this Court. Since there is no adequate proof for a claim of Rs.15,000/- towards medical expenses, a sum of Rs.10,000/- granted by the Tribunal is upheld. Towards pain and suffering, this Court is not interfering with a sum of Rs.10,000/- awarded by the Tribunal. 12.Thus, the appellant/ claimant is entitled to a total compensation of Rs.75,000/- (Rupees seventy five thousand only) for the injuries sustained by him in the accident. Therefore, the award of Rs.61,000/- arrived at by the Tribunal as total compensation to the appellant/claimant is not adequate based on the facts and circumstances of the case. Already the Tribunal has awarded a sum of Rs.61,000/- along with interest at 9% per annum from the date of filing of the petition till date of payment. Hence, the difference sum of Rs.14,000/- is ordered to be paid by the second respondent Insurance Company along with interest at 9% per annum from the date of petition till date of payment. 13.The lawyer's fee is fixed at Rs.3,438/- by this Court. Already the Tribunal has fixed a sum of Rs.2,562.50 as lawyer's fee for the compensation of Rs.61,000/-. Hence, for the compensation of Rs.75,000/- fixed by this Court, there is a difference sum of Rs.875.50 rounded off to Rs.876/- payable by the second respondent Insurance Company. The second respondent Insurance Company is directed to deposit the balance difference amount to the credit of M.C.O.P.No.3580 of 2000 on the file of the Motor Accidents Claims Tribunal viz., Second Judge, Court of Small Causes, Chennai within a period of two months from the date of https://hcservices.ecourts.gov.in/hcservices/ receipt of the copy of this order. On such deposit, it is open to the appellant/claimant to withdraw the same from the Tribunal by filing necessary payment out application in manner known to law. 14.Resultantly, the Civil Miscellaneous Appeal is allowed in above terms and the award dated 29.10.2002 passed by the Motor Accidents Claims Tribunal viz., Second Judge, Court of Small Causes, Chennai in M.C.O.P.No.3580 of 2000 is modified. The Tribunal before making the balance payment to the appellant/claimant, is to ensure the proper payment of necessary Court Fee in the claim petition. Considering the facts and circumstances of the case, the parties are directed to bear their own costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar sgl To 1. Second Judge, Court of Small Causes, Motor Accidents Claims Tribunal, Chennai. 2. The Record Keeper, VR Section, High Court, Madras. Ts (co) krd / 17.6.08 C.M.A.NO.1749 OF 2003 https://hcservices.ecourts.gov.in/hcservices/