IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.03.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1580 of 2008 K.Rukmani ..Appellant/Claimant Vs 1.R.Ranganathan 2.United India Insurance Co., Ltd., Third Party Claims Cell, 38, Anna Salai, Chennai-2. ..Respondents/Respondents (R1 – Ex-parte) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 10.07.2006, made in M.C.O.P.No.4441 of 2000, on the file of the Motor Accident Claims Tribunal, IIIrd Small Causes Court, Chennai. For Appellant : Mr.U.M.Ravichandran For Respondents : Mr.N.Vijayaraghavan 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 10.07.2006, made in M.C.O.P.No.4441 of 2000, on the file of the Motor Accident Claims Tribunal, IIIrd Small Causes Court, Chennai, awarding a compensation of Rs.36,000/- with 7.5% 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 of Rs.2,00,000/- together with interest at the rate of 12% per annum from the date of filing the petition till the date of payment of compensation. 3.The short facts of the case are as follows: https://hcservices.ecourts.gov.in/hcservices/ On 14.07.2000, at about 09.00 hrs, while the petitioner was travelling as a passenger in an Autorickshaw bearing registration No.TN01 P2408, from south to north, at the western side of the Kanthanchavadi Bazar, the driver of the said autorickshaw drove the auto in a rash and negligent manner and dashed the auto against a parked auto bearing registration No.A/T TN21 A8998. As a result of the accident, the auto bearing registration No.TN01 P2408, turned turtle. Consequent to this, the petitioner sustained grievious injuries and has suffered permanent disability. As such, the first respondent, the owner of the auto and the second respondent, as its insurer, are jointly liable to pay the compensation claimed by the petitioner with interest and costs under Sections 166 and 142(B) of the Motor Vehicles Act. 4.The petitioner was aged about 42 years at the time of accident and was a vegetable vendor, earning a sum of Rs.150/- per day. As a result of the said accident, she has sustained fracture of right shoulder, injury on the right and left side of the leg, back of her body, face and other injuries all over her body. She was initially admitted at Government Hospital at Royapettah and has been receiving treatment as inpatient from 14.07.1999 till date. Due to the permanent disability sustained by her, she is not in a position to do her normal work. Hence, she has claimed a compensation of Rs.2,00,000/- from the respondents with interest and costs under Sections 166 and 142(B) of the Motor Vehicles Act. 5.The first respondent remained absent and was set ex-parte. 6.The respondents, in their common counter, have resisted the claim denying the averments in the claim as regards the age, income and occupation of the petitioner as well as the place, date and time of accident. The respondent has also not admitted the averments in the claim regarding the nature of injuries, period of treatment, medical expenses and alleged disability. It was also submitted that the driver of the vehicle bearing registration No.TN01 P2408 had not driven the said vehicle in a rash and negligent manner and that the accident had occurred only due to the negligence on the part of the petitioner. The respondent had also stated that the vehicle bearing registration No.TN01 P2408 had not been covered under a valid policy of insurance at the time of accident and that it was plied without a valid permit. It was also submitted that the driver of the said auto did not have a valid licence at the time of accident. 7.The Motor Accident Claims Tribunal framed four issues for the consideration namely: (i) Did the petitioner sustain injuries in the road traffic accident, which happened on14.07.1999 and did the accident involve the autorikshaw bearing registration No.TN01 P2408? https://hcservices.ecourts.gov.in/hcservices/ (ii)Whether the said autorickshaw was insured with the second respondent? (iii)Whether the petitioner is entitled to get compensation? If so, what is the quantum of compensation, which she is entitled to get? (iv)To what relief is the petitioner entitled to get? 8.On the petitioner' side, the petitioner was examined as PW1 and Dr.N.Saichandran, who issued Disability Certificate, was examined as PW3 and seven documents were marked as Exs.P1 to P7. On the respondents' side, no witnesses were examined and no documents were marked. 9.The petitioner has stated in her evidence that on 14.07.1999, at about 9 O' Clock, in the morning, when the petitioner was travelling in the auto bearing registration No.TN01 P2408 from south to north on the western side of the Kandanchavadi Bazar, the driver of the said auto drove the vehicle in a rash and negligent manner and dashed against the auto bearing registration No.TN21 A8998, resulting in the autorickshaw bearing registration No.TN01 P2408 to turn turtle and that in the result, she had sustained injuries on her right forearm and that the skin over the right forearm had been peeled off and that she had also sustained fractures in the 7th, 8th and 9th bone in her right hip. She was admitted, as an inpatient, at Government Royapettah Hospital and took treatment for a period of one month. X'rays were taken and bandages applied on her right arm and this dressing was also changed once in four days. Further 6 to 7 such dressings were done on the petitioner and skin graft operations, were also done on the petitioner. Exs.P1 and P3 are the Case Sheet and O.P.Chit. The Thuraipakkam Police registered a case in Crime No.362/1999 and the copy of the FIR was marked as Ex.P2. The contention of the respondent, that the petitioner was negligently seated in the autorickshaw and thus had invited the accident, was not found acceptable by the Tribunal in the absence of any evidence to prove it. The Tribunal also did not accept the contention of the respondent that the autorickshaw bearing registration No.TN01 P2408 was driven carefully by its driver, observing all the traffic regulations as no evidence has been let in to prove the said contention. Further, the driver of the autorickshaw had not appeared before the Tribunal and adduced any evidence to prove the negligence of the petitioner. The second respondent Insurance Company also has not taken any steps to examine the driver of the autorickshaw. As such, the Tribunal held that the accident happened only due to the rash and negligent driving of the autorickshaw bearing registration No.TN01 P2408. https://hcservices.ecourts.gov.in/hcservices/ 10.The second respondent has not admitted that the said autorickshaw had been covered with a valid insurance policy with them and has contended that the owner of the autorickshaw bearing registration No.TN01 P2408 has not submitted any claim form, with the vehicle records, for due verification by them. But, no evidence has been adduced by the second respondent and no documents were marked to establish that the autorickshaw was not covered under a policy of insurance with them and that the driver of the autorickshaw did not have a valid driving licence at the time of accident. Hence, the Tribunal, on considering the facts and circumstances of the case,held that the said autorickshaw was covered with a valid policy of insurance with the second respondent. 11.The petitioner has stated in her evidence that immediately after the accident, she was taken to Government Royapettah Hospital, Chennai and took treatment for a period of one month and in support of this, she has marked Ex.P1, the Case Sheet. She has claimed a compensation of Rs.2,000/- towards transportation to hospital. But, the Tribunal, on considering that the petitioner has not produced any transportation bills, awarded a compensation of Rs.750/- towards expenses incurred for transportation to hospital. Further, the Tribunal on considering that the petitioner was aged about 42 years at the time of accident and also that she had undergone treatment for a period of one month at the hospital awarded a compensation of Rs.750/- to the petitioner under the head of nutrition. 12.Though the petitioner had claimed a compensation of Rs.10,000/- for medical expenses, no medical bills had been marked to establish the claim. The respondents had also contended that the claim of the petitioner, Rukmani was excessive as the petitioner had undergone treatment at the Government Royapettah Hospital, wherein the treatment and medicines had been given to her free of cost. The Tribunal, on considering that no document had been filed by the petitioner to prove that she had taken private treatment held that the petitioner is entitled to get an award of Rs.500/- only and accordingly granted Rs.500/- as compensation to the petitioner under the head of medical expenses. 13.Though the petitioner has contended that she was a vegetable vendor at the time of accident and was earning a sum of Rs.150/- per day, no documentary evidence has been let in to prove the profession and income of the petitioner. Further, the petitioner has claimed that due to the accident and consequent injuries sustained by her, she was not able to do her work from 14.07.1999 to 13.10.1999 and has incurred a loss of earning of Rs.13,500/-. But, the petitioner has not produced any record to prove her absence from employment and the loss of earning. The Tribunal, held that the petitioner has not produced any document to prove her income from the alleged vegetable vendor profession and granted her an award of Rs.2,000/- only as compensation towards loss of earning. https://hcservices.ecourts.gov.in/hcservices/ 14.Further, the Tribunal, on considering the Ex.P1, the Case Sheet and Ex.P4, the Disability Certificate, were of the view that the petitioner would have undergone pain and suffering during her period of treatment at Government Hospital. Further, the Tribunal were not inclined to accept the contention of the respondent that the injuries suffered by the petitioner was simple in nature and that she had recovered from all her ailments within a short period of time. The Tribunal, therefore granted an award of Rs.7,000/- to the petitioner under the head of paid and suffering. 15.Dr.N.Saichandran, who assessed the permanent disability of the petitioner, was examined as PW3. The PW3, in his evidence, had admitted that he did not know the type of treatment given to the petitioner immediately after the accident. The Doctor, who had given substantial treatment to the petitioner had also not been examined by the petitioner's side. The PW3 has stated in his evidence that due to the accident, which happened on 14.07.1999, the 7th and 8th bones in the hip of the petitioner had been fractured and had subsequently not joined in a proper manner. He had further stated that the expansion of the petitioner chest on inhalation and expulsion of breath had been reduced by 2 cms. due to the accident. Due to the skin tear in the petitioner's right fore arm, a skin transplant surgery has been conducted and due to the hardening of muscles in the affected area, the movements of the petitioner has been restricted by 20 Degrees. The Doctor had therefore stated that the petitioner has difficulty in standing and walking and in performing her work and has certified that the disability sustained by the petitioner on this count was 30% and in support of his evidence has marked Ex.P4, the Disability Certificate and Ex.P5, the X'rays. 16.On considering that the petitioner has sustained simple injuries and also on considering the contention of the second respondent's counsel that the assessment of PW3 was not done on the basis of any scientific Macbrid Scale and also nothing that the Doctor, who had treated her for the injuries sustained by her in the accident had not been examined, the Tribunal awarded a sum of Rs.20,000/- only to the petitioner under the head of permanent disability and loss of earning power as it was found to be relevant as per rules laid down in Schedule-I of the Workmen's Compensation Act, 1923. 17.Though the petitioner has claimed that she was a vegetable vendor and was earning a sum of Rs.150/- per day, no documentary evidence has been let in to establish her claim regarding income and profession. Though the petitioner has claimed that she is not able to do the work, which she used to do before the accident and has claimed a compensation of Rs.60,000/- for loss of earning power. She has not produced any documentary records to prove it. As such, the Tribunal granted an award of Rs.5,000/- only as compensation to the petitioner towards loss of earning power. https://hcservices.ecourts.gov.in/hcservices/ 18.In total, the Tribunal awarded a compensation of Rs.36,000/- to the petitioner and directed the second respondent to pay the award of Rs.36,000/- to the petitioner together with interest at the rate of 7.5% per annum from the date of petition till the date of payment (except for the period from 10.01.2005 to 10.03.2005 as per Order in M.P.No.697 of 2005, dated 10.03.2005) with costs, into the credit of the M.C.O.P.No.4441 of 2000, on the file of the Motor Accident Claims Tribunal, IIIrd Small Causes Court, Chennai, within a period of two months from the date of its Order. Further, after such deposit was made, the award amount was to be deposited in a nationalised bank for a period of three years. The Court fee for the award amount was fixed at Rs.74/- and the excess Court fee paid by the petitioner was to be refunded after the appeal time. The Advocate fees was fixed at Rs.1,550/- and the second respondent was directed to pay the cost of Rs.1,669 to the petitioner. 19.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal ought to have awarded the entire sum of Rs.13,500/- instead of awarding a sum of Rs.2,000/- under the head of loss of earning power during the treatment period. It was also contended that the Tribunal should have awarded a sum of Rs.30,000/- under the head of pain and suffering as the petitioner had sustained grievious injuries and the orthopaedic surgeon had assessed the permanent disability at 30% and as such the award of Rs.7,000/- given by the Tribunal as compensation under this head was on the lower side. The learned counsel appearing for the appellant had also contended that the Tribunal ought to have awarded the entire sum of Rs.82,500/- claimed by the petitioner instead of awarding Rs.20,000/- under the head of permanent disability on consideration of the grievious injuries suffered by claimant and period of treatment as well as the disability of 30% assessed by the orthopaedic surgeon. 20.It was also pointed out that the other awards granted as compensation under the various heads of loss of earning power, nourishment, transport to hospital expenses, were on the lower side. The learned counsel appearing for the appellant has therefore prayed for an enhancement compensation of Rs.2,00,000/- together with interest at the rate of 12% per annum from the date of petition till the date of payment. 21.The learned counsel appearing for the second respondent argued that the quantum of compensation awarded by the Tribunal is a fair and well considered one. Doctor PW3's evidence was not convincing and further he was not aware of the type of treatment given to the petitioner earlier. The disability of 30% assessed by the Doctor has not been done on a scientific basis and as such it is on the higher side. 22.After considering the facts and circumstances of the case and arguments advanced by the learned counsels on either sides, this https://hcservices.ecourts.gov.in/hcservices/ Court is of the view that the award granted by the Tribunal is on the lower side. This Court is of the view that the Doctor, PW3, in his evidence before the Tribunal had stated that the petitioner had sustained fractures in the 7th and 8th bone of her right hip and that the bone has not set properly and has been deformed. Further, the Doctor had stated that the lung expansion during inhalation and exhalation of breath has been reduced by 2 cms. in the petitioner's body and as a result the claimant is unable to inhale the normal amount of Oxygen needed for her normal respiration. The Doctor's evidence has not been challenged by the respondent before the Lower Court and hence the authenticity of the assessment of disability certified as 30% by the Doctor cannot be questioned now. 23.As such, on considering that the evidence given by Doctor PW3 is fair and genuine, this Court enhances the compensation awarded to the petitioner under the various heads in the following manner: 1.For permanent disability, the Tribunal awarded a sum of Rs.20,000/-. This Court enhances the award granted under this head to Rs.60,000/- considering that the petitioner has sustained 30% disability due to the accident. 2.For pain and suffering, the Tribunal awarded a sum of Rs.7,000/-. This Court enhances the award granted under this head to Rs.10,000/-. 3.For loss of income, the Tribunal awarded a sum of Rs.2,000/-. This Court enhances the award granted under this head to Rs.5,000/-. 4.For loss of earning, the Tribunal awarded a sum of Rs.5,000/-. This Court sets aside the award granted under this head as it is redundant. 5.For nutrition, the Tribunal awarded a sum of Rs.750/-. This Court enhances the award granted under this head to Rs.5,000/-. 6.For transport expenses, the Tribunal awarded a sum of Rs.750/-. This Court enhances the award granted for transport expenses to Rs.2,000/-. 7.For medical expenses, the Tribunal awarded a sum of Rs.500/-. This Court enhances the award granted under the head of medical expenses to Rs.2,000/- as it is found to be reasonable considering the nature of injuries sustained by the claimant. https://hcservices.ecourts.gov.in/hcservices/ In total, this Court awards an additional compensation of Rs.53,000/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation as it is found to be fair and proper in the circumstances of the case. 24.Therefore, this Court directs the second respondent, United India Insurance Company Ltd., to deposit the additional compensation amount of Rs.53,000/- with accrued interest thereon, as observed above, within a period of four weeks from the date of receipt of a copy of this Order, into the credit of the M.C.O.P.No.4441 of 2000, on the file of the Motor Accident Claims Tribunal, IIIrd Small Causes Court, Chennai. 25.As the accident happened in the year 1999, it is open to the claimant to withdraw the additional compensation amount, with accrued interest thereon, lying in the credit of the M.C.O.P.No.4441 of 2000, on the file of the Motor Accident Claims Tribunal, IIIrd Small Causes Court, Chennai, after filing necessary payment out application, in accordance with law. 26.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 10.07.2006, in M.C.O.P.No.4441 of 2000, passed by the Motor Accident Claims Tribunal, IIIrd Small Causes Court, Chennai, is modified. Consequently, connected miscellaneous petition is closed. There is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To 1. The Motor Accident Claims Tribunal, III Small Causes Court, Chennai. 2. The Registrar, Small Causes Court, Chennai. 3. The Section Officer, VR Section, High Court, Madras. + 1 c.c. to Mr. U.M. Ravichandran, Advocate. S.R.No.15752. C.M.A.No.1580 of 2008 PKB (CO) GSK 06.04.2010. https://hcservices.ecourts.gov.in/hcservices/