IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1821 of 2009 Norullah ..Appellant/Petitioner Vs 1.M.Balasubbramani 2.United India Insurance Co., Ltd., ..Respondents/Respondents Chennai-79. Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 20.11.2008, made in M.C.O.P.No.1023 of 2002, on the file of the Motor Accident Claims Tribunal, VI Judge, Small Causes Court, Chennai. For Appellant : Mrs.A.Jothi for M/s.N.M.C.Babu For Respondent : R1 – ex-parte Mr.S.Manoharan for M/s.G.Udhayashankar for R2 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/petitioner against the Award and Decree, dated 20.11.2008, made in M.C.O.P.No.1023 of 2002, on the file of the Motor Accident Claims Tribunal, VI Judge, Small Causes Court, Chennai, awarding a compensation of Rs.66,500/- with 9.5% interest per annum, from the date of filing petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/petitioner has filed the above appeal praying for enhanced compensation and to set aside the said award and decree. 3.The short facts of the case are as follows: On 13.10.2001, at about 10.15 p.m. when the petitioner after ascertaining traffic clearance, crossed Wall Tax Road, Chennai-3, https://hcservices.ecourts.gov.in/hcservices/ from west to east, a Bajaj M80 bearing registration No.TN04 E8823, came from south to north at a high speed, in a rash and negligent manner and dashed against the petitioner and caused grievous injuries to him. The driver of the Bajaj M80 was responsible for the accident. The first respondent as the owner and the second respondent as the Insurance Company are jointly and severally liable to pay compensation. The petitioner has claimed a total compensation of Rs.1,35,000/- from the respondents under Section 166 of the Motor Vehicles Act. The first respondent remained ex-parte in this case. The Traffic Investigation, C2, Elephant Gate Police Station, Chennai-600 079 have registered an FIR in 258/C2/2001 of the said accident. 4.The second respondent, the United India Insurance Company Ltd., in its Counter has resisted the claim stating that the petitioner had suddenly crossed the road, without seeing the traffic and so had courted the accident. The age, occupation and income of the petitioner, the nature of injuries, period and place of treatment, the expenses incurred and the disability suffered should be proved by the petitioner. There was no existence of valid insurance policy and the driver had no valid and effective driving licence on the date of accident. The claim made under various heads are excessive and so the petition should be dismissed with costs. 5.The Motor Accident Claims Tribunal framed four issues for the consideration namely: (i) Whether the accident had happened due to the rash and negligent driving of the driver of the Bajaj M80 bearing registration No.TN04 E8823? (ii) Whether the respondents are liable to pay the compensation? (iii)Whether the petitioner is entitled for compensation? (iv)To what relief is the petitioner entitled to? 6.On the petitioner's side two witnesses were examined and five documents were marked as Exs.P1 to P5. Neither any oral evidence was let in nor documents were marked by the respondents side. 7.From the evidence of PW1, it appears that on 13.10.2001, at about 10.15 p.m. while he crossed Wall Tax Road, after ascertaining traffic clearance from west to east, a Bajaj M80 bearing registration No.TN04 E8823 came from south to north at a high speed, in a rash and negligent manner and dashed against him, due to which he sustained https://hcservices.ecourts.gov.in/hcservices/ grievous injuries, fracture in the right had and lacerations all over the body. 8.To corroborate the oral evidence of PW1, Ex.P1-FIR and Ex.P2- Charge sheet have been marked. On perusal of Ex.P1, it appears that due to the rash and negligent driving of the driver of the Bajaj M80 bearing registration No.TN04 E8823, the accident occurred and he was responsible for the same. The petitioner himself had lodged complaint on the date of occurrence. On perusal of Ex.P2-Charge sheet, it is seen that charge was framed on the driver of the Bajaj M80 bearing registration No.TN04 E8823, in Crime No.258/Cr/2001, under Sections 338 I.P.C and 184 of Motor Vehicles Act. The details of FIR and Charge sheet are in consonance with the claim of the petitioner. No contrary evidence has been let in to disprove the contentions of the petitioner. As such, the Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the first respondent. 9.The first respondent being the owner of the said vehicle is vicariously liable for the tortuous act of his driver and therefore he is liable to compensate the petitioner. 10.The second respondent has questioned the existence of valid policy, valid driving licence of the driver and valid permit for the erring vehicle. The Tribunal held that as far as driving licence and permit are concerned, they would come under terms of policy. The petitioner is a third party to the bipartite insurance agreement between both respondents. If there is any breach of any of the conditions of that agreement, the insurance company cannot straightway escape in a claim preferred by a third party like the petitioner. On the other hand the Insurance Company should first compensate the petitioner and later get itself indemnified from the owner of vehicle after proof of breach. The Tribunal was of the opinion that as far as the existence of valid policy is concerned, the duty of the petitioner gets discharged once when he gives details of policy in his petition. Thereafter, it is for the insurance company to produce the policy copy to establish its contentions thereby disproving the petitioner's contentions. The Tribunal opined that in the present case, the second respondent has neither disproved the policy details furnished by the petitioner nor established breach of any of the policy conditions. Therefore, the Tribunal held that the second respondent is also liable to pay compensation to the petitioner. 11.The injured petitioner has claimed a sum of Rs.10,000/- towards loss of earning. Ex.P3-Discharge Summary reads that the petitioner was admitted on 13.10.2001 at Government General Hospital and discharged on 22.10.2001. He has sustained fracture of shaft of humerus 1/rd right. He was treated conservatively and 'U' slab was applied. Close reduction was done on 18.10.2001. Even though PW1 https://hcservices.ecourts.gov.in/hcservices/ has deposed that he had taken treatment under private doctors for six months, no treatment records had been filed to prove the same. From the evidence of PW2, Dr.J.R.R.Thiagarajan and the Disability Certificate Ex.P4 marked through him, it appears that the petitioner sustained fracture in right humerus. It is stated that he was a Scooter Mechanic, earning a sum of Rs.250/- per day. But, no documents were filed by the petitioner to prove his avocation and income. The Tribunal therefore took a notional amount of Rs.3,500/- as his income per month. The Tribunal awarded a sum of Rs.10,500/- to the petitioner for loss of income for three months. Considering that the petitioner would have been prevented from getting on with his normal work for three months due to his injuries. Further, the Tribunal awarded a compensation of Rs.4,000/- towards transport to hospital, extra nourishment and for damage to clothing and articles. 12.The Tribunal, considering that no documents had been filed to substantiate the petitioner's claim for medical expenses, granted only a sum of Rs.2,000/- under this head, as the Tribunal opined that he would have spent some amount towards medical expenses. Considering the nature of injuries sustained by the petitioner and the period of treatment, the Tribunal awarded a sum of Rs.5,000/- under the head of pain and suffering. 13.With regard to compensation for continuing permanent disability, PW2, Dr.J.R.R.Thiagarajan has been examined and the Disability Certificate issued by him was marked as Ex.P4. The Doctor has assessed his disability at 45%. Considering the nature of injuries sustained by the petitioner, the Tribunal considered that the above disability percentage was reasonable and hence awarded a compensation of Rs.45,000/- under this head. The Tribunal on considering the nature of injury and absence of follow up treatment records held that the injury was manageable by the petitioner and it will not affect his earning capacity. 14.In total, the Tribunal awarded a sum of Rs.66,500/- as compensation to the petitioner and directed the respondents to deposit the above said award amount with interest at the rate of 9.5% 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.1023 of 2002, on the file of the Motor Accident Claims Tribunal, VI Judge, Small Causes Court, Chennai, within a period of one month from the date of its Order. After such deposit is made, the award has to be invested in a nationalised bank for a period of three years as cumulative deposit. The Court fee for the award amount was fixed at Rs.205/-. Excess Court fee paid by the petitioner has to be refunded to him, after appeal time. The Advocate fees was fixed at Rs.2,900/-. 15.The learned counsel for the appellant has contended in his appeal that the Tribunal had erred in awarding a consolidated sum of Rs.4,000/- for transport, nourishment and damage to dress without https://hcservices.ecourts.gov.in/hcservices/ considering the lengthy treatment and severe injuries sustained by the appellant. Further, the Tribunal after having held that the appellant would have spent for medical expenses ought to have awarded the amount reasonably claimed. Further, it has been contended that the Tribunal ought to have awarded a sum of Rs.30,000/- as claimed by the appellant as it has been found by the Tribunal that the appellant has sustained severe injuries. Further, the learned counsel for the appellant has contended that an award of Rs.45,000/- towards 45% disability sustained by the appellant is low considering the severity of the fracture and the evidence of the Doctor. 16.Further, the reason given by the Tribunal for not granting an award of Rs.25,000/- claimed for loss of earning power is erroneous. As such, the learned counsel for the appellant has prayed for setting aside the award and decree passed by the Tribunal. 17.The learned counsel for the respondent argued that the award of Rs.66,500/- granted by the Tribunal is reasonable after considering the nature of injuries, age and occupation of claimant, doctor's evidence, mode of treatment and as such the Tribunal's findings is fair. The claimant had not produced any income proof. Further, the Disability Certificate certifying disability of Rs.45% is on the higher side. The Tribunal has awarded a sum of Rs.2,000/- for medical expenses, which is erroneous considering the fact that the appellant has taken treatment in a Government Hospital. As such, the Civil Miscellaneous Appeal is not maintainable and hence should be dismissed. The learned counsel for the respondent further pointed out that the avocation of the claimant has not been affected after the accident and as such there is no loss of further earnings. 18.Considering the facts and circumstances of the case and mode of treatment, claimants evidence, and PW2, the Doctor's evidence and the Disability Certificate issued by him, certifying that the disability sustained by the petitioner is 45%, this Court is of the view that for 45% disability the claimant is entitled to get Rs.90,000/-. Since, the claimant was aged only 18 years at the time of accident and accordingly this Court grants the same. In the absence of proof of income of the claimant, this Court treats his notional income as only Rs.1,000/- and awards a sum of Rs.3,000/- as loss of income for three months. The Tribunal had awarded a sum of Rs.4,000/- for transport, nutrition and damage to clothes. This Court awards a sum of Rs.1,000/- for transport; Rs.1,000/- for nutrition and a sum of Rs.500/- for damage to clothes. For medical expenses, this Court awards a sum of Rs.1,000/- only considering no medical bills has been produced in support of this claim. For pain and suffering, this Court confirms the award of Rs.5,000/- passed by the Tribunal. In total, this Court awards a sum of Rs.1,01,500/- to the claimant. The Motor Accident Claims Tribunal, VI Small Causes Court, Chennai, awarded a sum of Rs.66,500/- and this is enhanced to Rs.1,01,500/- by this Court. The original award of Rs.66,500/- https://hcservices.ecourts.gov.in/hcservices/ granted by the Tribunal will carry an interest of 9.5% per annum from the date of petition ie. 01.01.2001 till the date of deposit. No interest will be payable for the dismissal of O.P. for default period from 11.12.2006 to 30.09.2008. Now, this Court directs the second respondent/United India Insurance Company to pay the additional compensation of Rs.35,000/- with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation amount, excluding the period from 11.12.2006 to 30.09.2008, as in the said period, the O.P. has been dismissed for default, within a period of four weeks from the date of receipt of this Order. 19.With the above observations, the Civil Miscellaneous Appeal is partly allowed, which this Court considers as equitable and fair and the award of Motor Accident Claims Tribunal, made in M.C.O.P.No.1023 of 2002, dated 20.11.2008 is modified. 20.It is open to the appellant/claimant to withdraw the additional compensation amount, together with interest lying in the credit of the M.C.O.P.No.1023 of 2002, on the file of the Motor Accident Claims Tribunal, VI Judge, Small Causes Court, Chennai, by filing necessary payment out application in accordance with law. 21.In the result, the above Civil Miscellaneous Appeal is partly allowed and consequently the award and decree passed by the Motor Accident Claims Tribunal, VI Judge, Small Causes Court, Chennai, in M.C.O.P.No.1023 of 2002, is modified. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To 1.The Motor Vehicles Accident Claims Tribunal VI Judge, Small Causes Court, Chennai 2. The Section Officer, VR Section, High Court, Madras. + 1 c.c. to Mr. G. Udaya Sankar, Advocate. S.R.No.16. + 1 c.c. to Mr. N.M.C. Balu, Advocate. S.R.No.8. C.M.A.No.1821 of 2009 KA (CO) GSK 18.01.2010. https://hcservices.ecourts.gov.in/hcservices/