IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.11.2008 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR C.M.A.No.3723 of 2008 and M.P.No.1 of 2008 The New India Assurance Company Ltd.,Represented by its Legal Manager, 3rd Party Cell, No.46, Moore Street, II Line Beach, Chennai-1. ...Appellant/2nd Respondent vs. 1.M.Pachaiappan, 2.R.S.Kumar. (2nd respondent ex parte in lower court and hence notice ...Respondents/Petitioner may be dispensed with). and 1st Respondent Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 4.2.2008 passed in M.C.O.P.No.3004 of 2003 on the file of the Motor Accidents Claims Tribunal (III Judge, Court of Small Causes), Chennai. For Appellant : Mr.N.Vijayaraghavan For 1st respondent : Mr.S.Natanarajan JUDGMENT The New India Assurance Company is on appeal challenging the award dated 4.2.2008 passed in M.C.O.P.No.3004 of 2003 on the file of the Motor Accidents Claims Tribunal (III Judge, Court of Small Causes), Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2. It is a case of injury. The brief facts of the case are as follows:- The accident in this case happened on 25.11.2002 at 2.30 p.m. The injured claimant Pachaiyappan, aged 52 years, was crossing the road on the Anna Salai, Chennai, when he was hit by the auto-rickshaw insured with the appellant. In that accident, he suffered fracture of the left leg. He was given first aid at Saidapet Hospital and further treatment at Royapettah, Government Hospital. Thereafter, he had treatment at Puthur Bone Setting Hospital. He claimed compensation in a sum of Rs.1,00,000/- stating that he was earning Rs.4,500/- per month at the time of accident. 3. In support of the claim, the injured claimant was examined as P.W.1. Dr.N.Saichandran, was examined as P.W.2. Exs.P-1 to P-9 were filed, the details of which are as follows:- Ex.P-1 is the O.P. Chit, Ex.P-2 is the accident register, Ex.P-3 is the chit given at Puthur Bone Setting Hospital, Ex.P-4 series are the prescriptions, Ex.P-5 is the complaint copy, Ex.P-6 is the F.I.R., Ex.P-7 is the rough sketch, Ex.P-8 is the X-Ray and Ex.P-9 is the disability certificate. No oral or documentary evidence was let in on behalf of appellant insurance company, the second respondent before the Tribunal. 4. The appellant insurance company disputed the accident, negligence and the liability on the ground that the F.I.R. lodged with the police was well over a month after the alleged accident i.e., on 28.12.2002. 5. On the first issue relating to the negligence and the liability, the Tribunal discussed the issue in paragraphs 8 and 9 of the award in answer to the point Nos.1 and 2. 6. In so far as the plea of no accident is concerned, the following facts, as enumerated by the Tribunal, have to be considered. The accident, in this case, happened on 25.11.2002 at https://hcservices.ecourts.gov.in/hcservices/ 2.30 p.m. The injured claimant was given first aid at Saidapet Government Hospital. Thereafter, he was taken to Government Royapettah Hospital for further treatment. The Accident register extract is filed as Ex.P-2. He also underwent treatment at the Puthur Bone Setting Hospital. Ex.P-3 is the chit given at Puthur Bone Setting Hospital. Ex.P-4 series are the Prescriptions. After a period little more than a month, complaint was lodged on 28.12.2002 and that has been marked as Ex.P-5. The case was registered by the police in Ex.P-6 against auto-rickshaw driver thereafter. Ex.P-7 is the copy of rough sketch of the place of occurrence prepared by the police. The appellant stated that there was a delay in registering the F.I.R. and therefore, the accident is disputed. The delay in giving the complaint has been explained stating that the injured claimant was taking treatment in three hospital. The delay in registering the F.I.R., Ex.P-6 dated 29.7.2003 was found to be not at the instance of the injured claimant. The Tribunal observed that CBCID, who were asked to verify the claim, did not file any adverse report against the injured claimant. In view of the documents filed by the claimant, the Tribunal came to the conclusion that the accident in this case happened due to the rash and negligence on the part of the auto- rickshaw driver. In paragraph 9 in answer to point No.2, the Tribunal held that the appellant as the insurer of the vehicle was liable to compensate the claimant. This court is not able to come to any other conclusion than what has been arrived at by the Tribunal in the absence of any other material to the contrary to support the stand taken in appeal. 7. As far as the compensation is concerned, the issue was decided by the Tribunal in paragraph 10 of the award in answer to point No.3. According to the claimant, he was the Dhobi and was earning a sum of Rs.4,500/- per month. The Tribunal fixed the income of the injured claimant at Rs.3,000/- per month. The Tribunal taking note of the fracture of the left leg, period of hospitalisation and the disability assessed at 50% which was reduced to 40% granted the following amounts as compensation with 12% interest:- Sl. No. Head Amount granted by the Tribunal Pecuniary damages:- 1 Loss of income for a period of four months Rs.12,000/- 2 Transport expenses Rs. 2,000/- 3 Extra nourishment Rs. 2,000/- 4 Damage to clothing and articles Rs. 1,000/- 5 Medical expenses Rs. 2,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Head Amount granted by the Tribunal 6 Miscellaneous expenses Rs. 1,000/- 7 Disability assessed by the doctor at 50% which was reduced to 40% by the Tribunal Rs.40,000/- Non-pecuniary damages:- 8 Pain and suffering Rs.12,000/- 9 Loss of amenities Rs.10,000/- 10 Loss of expectation of life Rs.10,000/- Total Rs.92,000/- 8. The counsel for the appellant disputes the quantum of compensation on the following heads:- (i) It is stated that for the disability assessed at 40% a reasonable compensation has been granted, as such the sum of Rs.10,000/- granted for loss of amenities and the sum of Rs.10,000/- granted for loss of expectation of life are not justified and should be set aside. (ii) It is stated that the interest granted at 12% has to be reduced since the accident in this case happened in the year 2002 and the award was passed in the year 2008. 9. The compensation granted for pecuniary damages is not seriously disputed and the same is confirmed. As far as the compensation granted for non-pecuniary damages are concerned, as contended by the appellant, the claimant is not entitled to compensation under the head loss of expectation of life and loss of amenities. The Tribunal has not stated the reason as to how the compensation towards loss of expectation of life and loss of amenities will be applicable to the present case. Therefore, the total sum of Rs.20,000/- granted towards loss of expectation of life and loss of amenities are set aside. However, the claimant is entitled to further sum of Rs.5,000/- towards pain and suffering as the claimant suffered fracture and has taken treatment at two Government Hospitals at Chennai and then at Puthur Bone Setting Hospital. 10. In view of the decision of the Apex Court in Tamil Nadu State Transport Corporation vs. S.Rajapriya reported in 2005 (3) C.T.C. 373, the interest stands reduced to 7.5% from 12%. https://hcservices.ecourts.gov.in/hcservices/ 11. Accordingly, the award of the Tribunal is modified as follows with interest at 7.5%%:- Sl. No. Head Amount granted by the Tribunal Amount granted by this Court Pecuniary damages:- 1 Loss of income for a period of four months Rs.12,000/- Rs.12,000/- 2 Transport expenses Rs. 2,000/- Rs. 2,000/- 3 Extra nourishment Rs. 2,000/- Rs. 2,000/- 4 Damage to clothing and articles Rs. 1,000/- Rs. 1,000/- 5 Medical expenses Rs. 2,000/- Rs. 2,000/- 6 Miscellaneous expenses Rs. 1,000/- Rs. 1,000/- 7 Disability assessed by the doctor at 50% which was reduced to 40% by the Tribunal Rs.40,000/- Rs.40,000/- Non-pecuniary damages:- 8 Pain and suffering Rs.12,000/- Rs.17,000/- 9 Loss of amenities Rs.10,000/- --- 10 Loss of expectation of life Rs.10,000/- --- Total Rs.92,000/- Rs.77,000/- 12. Counsel for the appellant prays for eight weeks' time to deposit the balance award amount and on such deposit the counsel for the claimant prays for withdrawal. 13. In the result, the Civil Miscellaneous Appeal is allowed in part as follows:- (i) The award of the Tribunal is reduced to Rs.77,000/- from Rs.92,000/-. (ii) The interest granted by the Tribunal at 12% is reduced to 7.5% per annum. Accordingly, the award amount will bear interest at 7.5% from the date of claim petition till date of deposit. (iii) The appellant is permitted to deposit the balance award amount as per order of this Court and on such deposit the claimant is permitted to withdraw the award amount as ordered by this court. (iv) There shall be no order as to costs. https://hcservices.ecourts.gov.in/hcservices/ (v) Consequently, connected miscellaneous petition is closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar ts To The Motor Accidents Claims Tribunal (III Judge, Small Causes Court), Chennai. + 1 c.c. to Mr. S. Natana Rajan, Advocate. S.R.No.66087. Judgment in C.M.A.No.3723 of 2008 CK (CO) GSK 29.12.2008. https://hcservices.ecourts.gov.in/hcservices/