IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.04.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3036 of 2009 and M.P.No.1 of 2009 The National Insurance Co., Ltd., Salem-1 .. Appellant/2nd Respondent Vs 1.P.Mani 2.A.Balu .. Responden/Claimant & 1st Respondent Appeal filed under Section 173 of the Motor Vehicles Act, against the Award and Decree, dated 25.09.2002, made in M.C.O.P.No.1270 of 2000, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No.II, Salem. For appellant : Mr.R.Yashod Vardhan, Senior Advocate For respondents : No appearance J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 25.09.2002, made in M.C.O.P.No.1270 of 2000, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No.II, Salem, awarding a compensation of Rs.56,420/- together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/second respondent, The National Insurance Co., Ltd., Salem-1, has filed the above appeal praying to scale down the award from Rs.56,420/- to Rs.20,000/-. https://hcservices.ecourts.gov.in/hcservices/ 3.The short facts of the case are as follows: The petitioner, P.Mani, aged about 27 years, was a load man in the first respondent's lorry bearing registration No.TNN4671. On 06.06.2000, at about 2.45 p.m. when the petitioner was travelling in the said lorry as load man, while the said lorry was proceeding near Chinthamani Nagar on the Salem to Atthur road, the first respondent's lorry driver drove the said lorry in a rash and negligent manner and dashed against the water pump at the road side. Due to the impact, the lorry turned turtle and the petitioner along with other load man fell down and sustained severe fracture injuries. He was admitted in the hospital and still undergoing treatment. He has sustained permanent disability and is not able to attend to any work. 4.Hence, the first respondent, being the owner of the lorry bearing registration No.TNN4671 and the second respondent being the insurer of the above lorry are jointly and severally liable to pay compensation to the petitioner. The petitioner has claimed a compensation of Rs.1,00,000/- from the respondents together with interest and costs under Section 166 of the Motor Vehicles Act. 5.Regarding the said accident, a criminal case has been registered at Karipatty Police Station in Crime No.652 of 2000 as against the driver of the lorry. 6.The second respondent, in his counter, has resisted the claim denying the averments in the claim regarding the manner of accident and has submitted that the petitioner must prove that the alleged accident was caused due to the rash and negligent driving of the driver of the first respondent's lorry. The second respondent has also denied that the lorry had a valid permit and that the driver of the lorry had a valid and effective driving licence to drive the lorry at the time of accident. 7.The second respondent has also denied the averments in the claim regarding the age, income and occupation of the petitioner as well as the nature of injuries, manner of treatment, medical expenses and permanent disability sustained by the petitioner. As such, the second respondent has prayed for dismissal of the claim with costs. 8.Four other persons, who had also travelled in the said lorry as loadman and who were also injured in the said accident had filed M.C.O.P.Nos.1267, 1268, 1269 and 1271 of 2000 claiming compensation. 9.The Motor Accident Claims Tribunal had framed three issues for the consideration namely: (i) Was the accident caused due to the first respondent's lorry being driven at a high speed and in a rash and negligent manner by its driver as alleged in the claim ? https://hcservices.ecourts.gov.in/hcservices/ (ii) Is the petitioner entitled to get compensation? (iii)To what other relief is the petitioner entitled to get? 10.On the petitioner's side, the petitioner in M.C.O.P.No.1267 of 2000, Adimoolam, was examined as PW1; the petitioner in M.C.O.P.No.1268, Poomalai was examined as PW2; the petitioner in M.C.O.P.No.1269, Velmurugan was examined as PW3; the petitioner in M.C.O.P.No.1270 of 2000, P.Mani was examined as PW4 and the petitioner in M.C.O.P.No.1271 of 2000, Arumugam @ Sithalingam was examined as PW5 and 12 documents were marked as Exs.P1 to P12. On the respondents' side no witness was examined and no documents were marked. 11.The PW1, in his evidence had adduced evidence that on 06.06.2000, at about 01.00 p.m., while he was travelling as a loadman along with five others for loading bricks in the first respondent's lorry titled 'Sri Murugan' and while the lorry was proceeding on the Salem – Atthur road and was nearing Chintamani Nagar, the driver of the lorry drove the lorry at a high speed and in a rash and negligent manner and dashed the lorry against the water pump situated on the extreme end of the road; that due to the collision the lorry had turned turtle. The other four petitioners, who were examined as PW2 to PW5 had also adduced evidence, which was in consonance with that given by PW1. On scrutiny of the evidence of the PW1 to PW5, as well as on scrutiny of the Ex.P1, the FIR, it is evident that a criminal case has been filed as against the driver of the first respondent's lorry. No contra-evidence has been let in on the part of the respondent's side to refute the evidence of the PW1 to PW5. As such, the Tribunal held that the accident had been caused by the rash and negligent manner of driving by the driver of the first respondent's lorry. It was also an admitted fact that the first respondent's lorry had been covered under a valid policy of insurance with the second respondent at the time of accident. 12.The petitioner herein was examined as PW4. The PW2, in his evidence adduced that on 06.06.2000, when he was travelling as a loadman in the said lorry and when the lorry had hit against the water pipe, he had sustained injuries in his right knee and soft tissue injuries all over his body; that he was admitted in the Salem Gokulam Hospital and the tear injuries sustained by him had been sutured; that he had received treatment at the hospital for 15 days; that prior to the said accident, he had been working as a loadman and earning a sum of Rs.100/- per day and that subsequent to the accident, he had not been able to do his work as a loadman. In support of his evidence, he has marked Ex.P7, the Wound Certificate. On a scrutiny of the wound certificate, it is seen that the age of https://hcservices.ecourts.gov.in/hcservices/ the petitioner has been stated as 27 years and accordingly, the Tribunal held that the age of the petitioner at the time of the said accident as 27 years. Though, the petitioner in his petition and evidence had stated that he was working as a loadman and earning a sum of Rs.100/- per day, no documentary evidence had been let in to establish this contention. However, the Tribunal, on scrutiny of Ex.p1 held that the petitioner was working as a loadman and could have earning a monthly income of Rs.1,500/-. On scrutiny of Ex.P7, it is seen that the petitioner had sustained an inflamed injury in his right fore arm and a tear injury on his right sole and a soft tissue injury on his fore head. The Government Doctor of Salem Government Mohan Kumaramangalm Medical College, who had given the wound certificate had also taken X'rays on the petitioner ad had stated that on examination of the X'rays taken on his leg, it was found that the pefula bone in the right knee of the petitioner had been fractured and that he had received treatment at the hospital to set right this defect and the Doctor has certified that the above said injury was grievous in nature. 13.The Tribunal on considering that the petitioner would have undergone pain and suffering due to the injuries sustained in the accident, awarded a compensation of Rs.20,000/- under the head of pain and suffering. The Tribunal, on scrutiny of Exs.P7 to P9, the wound certificate and medical bills and considering the nature of injuries were of the opinion that the petitioner had sustained a loss in his income for a period of one year being the period, during which he had received treatment and accordingly awarded a sum of Rs.18,000/- as compensation under the head of loss of income for a period of one year. On scrutiny of Exs.P8 and P9, it is seen that the petitioner has spent a sum of Rs.13,420/- towards medical expenses and hence the Tribunal granted an award of Rs.13,420/- to the petitioner under the head of medical expenses. The Tribunal further awarded a lumpsum compensation of Rs.5,000/- to the petitioner towards attendant charges, transport expenses and nutrition. The Tribunal, on considering that no Doctor had been examined and that no medical disability certificate had been let in on the petitioner's side to establish that he had sustained permanent disability were not inclined to grant any relief towards it. In total, the Tribunal, awarded a sum of Rs.56,420/- as compensation to the petitioner and directed to first and second respondents to jointly and severally deposit the above said award together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.1270 of 2000, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No.II, Salem, within a period of two months from the date of its order. The petitioner was directed to pay the Court fee due on the award amount within a period of one month from the date of its order. The respondents were directed to pay the costs of Rs.2,413.25 to the petitioner. The Advocate fees was fixed at Rs.2,142/-. 14.Learned counsel appearing for the appellant has contended in https://hcservices.ecourts.gov.in/hcservices/ his appeal that the Tribunal ought to have seen that the injuries suffered by the petitioner was simple in nature and there was no justification for awarding a compensation of Rs.56,420/-. It has also been contended that the Tribunal ought to have seen that even if the injury was grievous, there was no permanent disability or loss of earnings to justify the quantum of compensation awarded by the Tribunal. It has been pointed out that the award of Rs.20,000/- towards pain and suffering; Rs.18,000/- towards loss of earning and Rs.5,000/- for extra-nourishment were all arbitrary and excessive. The learned counsel has therefore contended that the Tribunal, after consideration of all facts relevant to the case, ought not to have awarded more than Rs.20,000/- as compensation and has therefore prayed for setting aside the award and decree passed by the Tribunal. 15.After considering the facts and circumstances of the case, scrutiny of findings of the Tribunal and arguments advanced by the learned counsel appearing for appellant, this Court is of the view that the claimant was aged 27 years at the time of the said accident and he was a coolie and earning a sum of Rs.100/- per day. Further, he had undergone treatment at Gokulam Hospital for 15 days. During the period of treatment, sutures had been done to set right the tear injuries sustained by him. Besides this, he had also undergone treatment at Government Hospital at Salem. As per the Exs.P8 and P9, the medical bills, it is seen that the medical expenses incurred by the petitioner is Rs.13,420/-. As such, the rest of the compensation amount of Rs.43,000/- awarded by the Tribunal cannot be considered excessive in the instant case, since the petitioner had sustained injuries on his right arm right sole, fore head and also sustained a bone fracture in his right leg. As such, the award granted by the Tribunal under the head of pain and suffering, loss of income and for transport and nutrition is found to be fair and equitable by this Court. Hence, this Court confirms the Award and Decree, dated 25.09.2002, in M.C.O.P.No.1270 of 2000, passed by the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No.II, Salem. 16.Therefore, this Court hereby directs the appellant to deposit the entire compensation amount, with accrued interest thereon, into the credit of the M.C.O.P.No.1270 of 2000, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No.II, Salem, within a period of four weeks from the date of receipt of a copy of this Order, subject to deduction of deposits made, if any. 17.The claimant is at liberty to withdraw the entire compensation amount with accrued interest thereon, after such deposit is made, lying in the credit of the M.C.O.P.No.1270 of 2000, on the file of the Motor Accident Claims Tribunal, Additional District-cum- Fast Track Court No.II, Salem, after filing necessary payment out application in accordance with law. 18.In the result, the above Civil Miscellaneous Appeal is https://hcservices.ecourts.gov.in/hcservices/ dismissed and the Award and Decree, dated 25.09.2002, in M.C.O.P.No.1270 of 2000, passed by the Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No.II, Salem, is confirmed. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To 1.The Motor Accident Claims Tribunal, Additional District-cum-Fast Track Court No.II, Salem. 1 cc To Mr..R.Yashod Vardhan, Advocate, SR.24007 C.M.A.No.3036 of 2009 vsv(co) pmk.28.4.2010. https://hcservices.ecourts.gov.in/hcservices/