IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.04.2010 CORAM: THE HON’BLE MR. JUSTICE C.S.KARNAN C.M.A.No.693 of 2006 and C.M.P.No.2856 of 2006 The Deputy Director of Health Services Cuddalore in the place of The District Health Officer District Health Centre Cuddalore .. Appellant(Respondent) (cause title accepted vide order of Court dated 25.10.2005 and made in C.M.P.No.17202 of 2005) -vs- Kaliamurthi ... Respondent(Petitioner) Prayer: Appeal filed by under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 11.08.2004, made in M.C.O.P.No.800 of 2003, on the file of the Motor Accident Claims Tribunal, II Additional Sub-Court, Cuddalore. For Appellant : Mr.V.Srikanth, A.G.P. For Respondent : Mr.R.Muralidharan J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/respondent, The Deputy Director of Health Services Cuddalore, against the Award and Decree, dated 11.08.2004, made in M.C.O.P.No.800 of 2003, on the file of the Motor Accident Claims Tribunal, II Additional Sub-Court, Cuddalore, awarding a compensation amount of Rs.48,100/- with 9% interest per annum, from the date of filing petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree passed by the Motor Accident Claims Tribunal, the appellant/respondent, The Deputy Director of Health Services Cuddalore has filed the above appeal praying to set aside the award and decree passed by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 3.The short facts of the case are as follows: On 13.01.2003, at about 06.45 p.m. when the petitioner was riding his bicycle from east to west direction on the extreme left hand side of the Cuddalore to Panruti Main road with due care and caution near Geetha Cafe at Nellikuppam. At that time, the respondent's jeep bearing registration No.TMR6953 driven by its driver from west to east at a high speed in a rash and negligent manner without using any horn, without following the traffic rules and regulations had lost his control and dashed against the petitioner. Resultantly, the petitioner sustained multiple injuries all over his body and on his head. Immediately, after the said accident he was rushed to the Government Hospital, Cuddalore, wherein he had taken treatment as inpatient from 16.01.2003 and continues his treatment in private hospitals. The petitioner further submitted that at the time of accident he was an agriculturist and was aged about 30 years. He was earning a sum of Rs.200/- per day by doing agricultural coolie work. Regarding the said case, a case was registered in the Nellikuppam Police Station in Crime No.131/2003, under Sections 279 and 338 of I.P.C. The said accident had happened due to the rash and negligent act and driving of the driver of the respondent's vehicle. Hence, the respondent has to pay a sum of Rs.5,00,000/- as compensation with interest. 4.The respondent has filed a counter statement and denying the allegations made by the petitioner in his claim petition. The respondent stated in his counter statement that the petitioner without following the traffic rules and regulations had hit against the respondent's vehicle. Further, the respondent submitted that the respondent's vehicle driver had driven his vehicle at a moderate speed and by observing all traffic rules and regulations. The petitioner alone suddenly crossed the road without watching out for coming vehicles and invited the accident. As such, the respondent is not liable to pay compensation to the petitioner. Further, the respondent denying the allegations stating that at the time of the said accident, the petitioner's age was 30 and that he was earning a sum of Rs.200/- per day. Further, the respondent submitted that the claim of Rs.5,00,000/- is on a higher side. Hence, the respondent prays before the Tribunal to dismiss the claim petitioner with costs. 5.The Motor Accident Claims Tribunal had framed two issues for consideration namely; (i) Who is responsible for the accident? (ii)Whether the petitioner is entitled to get compensation? If so, what is the quantum of compensation? 6.On the side of the petitioner two witnesses were examined as PW1 and PW2 and 11 documents were marked as Ex.P1 to Ex.P11. On the side of the respondent one witness was examined as RW1 and three documents were marked as Ex.R1 to Ex.R3. https://hcservices.ecourts.gov.in/hcservices/ 7.The petitioner was examined as PW1. PW1 had adduced evidence stating that on 13.01.2003 at about 06.15 p.m. he was proceeding to Nellikuppam on Panrutti main road from east direction to west direction on his bicycle. At that time, the respondent's vehicle came from west direction to east direction, at a high speed in a rash and negligent manner and dashed against the cyclist. Resultantly, he was thrown down on the floor. Further, the petitioner adduced evidence stating that in the said accident he sustained grievous injuries on his right hand, right shoulder and right hand third finger and fifth finger. Immediately, he was taken to Government Hospital at Cuddalore on 13.01.2003, wherein he was an in-patient till 16.01.2003. Again, he underwent treatment from 02.02.2003 to 30.02.2003. Further, PW1 adduced evidence stating that the accident had happened due to the negligent driving of the driver of the jeep. 8.The driver of the jeep was examined as RW1. RW1 had adduced evidence stating that on 13.01.2003, after finishing his office work, he was proceeding by Jeep towards Cuddalore Health Centre. When he was proceeding near Geetha Cafe, the petitioner came on his bicycle at a high speed and dashed against the jeep. In the result, he sustained only simple injuries. On humanitarian basis, a sum of Rs.2,000/- was paid to the cyclist. After receiving the same, the petitioner executed a letter on 13.01.2003, which was marked as Ex.R1, and in the other letter, which was marked as Ex.R2, the claimant narrated that in the said accident the petitioner himself is the responsible person. As such, the petitioner is not entitled to get any compensation from the respondent. 9.The Motor Vehicle Inspector's Report disclosed that the accident had not happened due to the mechanical failure. After considering the report of the Motor Vehicle Inspector, evidence of the claimant, driver of the jeep and Ex.P1, FIR registered against the driver of the Jeep, the Tribunal had came to the conclusion that the accident had happened due to the rash and negligent driving of the driver of the Jeep. The learned Tribunal after considering the Ex.P5 ie.Motor Vehicle Inspector's Report, Ex.P6 Registration Certificate of the Vehicle and Ex.P7 Driving Licence of the driver, the Tribunal decided that the respondent is liable to pay compensation to the claimant. 10.The claimant further adduced evidence stating that he sustained grievous injuries on his right shoulder, right leg, on right hand third and fifth fingers. The petitioner further stated that from 13.01.2003 to 16.01.2003, he had taken treatment as inpatient at Cuddalore Government Hospital. Further, he had taken treatment from 02.01.2003 to 30.02.2003. Supporting his medical treatment, he has also marked Ex.P2, Wound Certificate and also marked Ex.P3, O.P.Chit and Ex.P4, Medical Bills. https://hcservices.ecourts.gov.in/hcservices/ 11.One Dr.Natarajan was examined as PW2. PW2 had adduced evidence stating that the claimant sustained fracture injuries on his right hand third and fifth fingers. As such, he is unable to move his right hand. Further, he is unable to carry any weight. PW2, after considering the medical records, he had issued disability certificate, but the Tribunal considered only 15% disability as sustained by the claimant. As such, the Tribunal awarded a sum of Rs.15,000/- as compensation under the head of loss of income and disability; Rs.15,000/- as compensation under the head of loss of income; Rs.15,000/- as compensation under the head of pain and suffering and mental shock; Rs.3,000/- under the head of nutrition and Rs.100/- under the head of medical expenses, on the strength of the Ex.P4, Medical Bill series. In total, the Tribunal awarded a sum of Rs.48,100/- as compensation to the petitioner 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. The Tribunal directed the respondent to deposit the compensation within a period of one month from the date of its Order. In turn, the said compensation amount to be deposited in any one of a nationalised bank for a period of three years in a fixed deposit scheme. Further, the Tribunal fixed the Advocate fees at Rs.2,650/-. 12.Aggrieved by the said Award and Decree passed by the Motor Accident Claims Tribunal, the appellant/respondent, The Deputy Director of Health Services Cuddalore has filed the above appeal praying to set aside the award and decree passed by the Tribunal. 13.The learned counsel appearing for the appellant argued that the Tribunal awarded a compensation of Rs.15,000/- under the head of loss of income and disability. Again the learned Tribunal awarded another Rs.15,000/- under the head of loss of income, which is not pertinent in the instant case. The learned counsel further argued that the Doctor issued disability certificate stating that the petitioner sustained 45% disability without any basic medical record. The assessment of the disability is on higher side. The learned counsel further argued that the claimant received a sum of Rs.2,000/- from the driver of the vehicle and executed a letter stating that he is fully satisfied and he will not initiate any proceedings against the respondent. The learned counsel further argued that the rate of interest at 9% is excessive and the learned Tribunal had committed an error in the award passed in M.C.O.P.No.800 of 2003, on the file of the Motor Accident Claims Tribunal, II Additional Sub-Court, Cuddalore. Further, the claimant has not produced any documentary proof in regard to the income and the age and the award granted by the Tribunal is misconceived and not well considered. As such, the learned counsel has prayed before this Court to set aside the award passed by the Tribunal. 14.The learned counsel appearing for the respondent argued that at the time of accident, the claimant was aged about 30 years and he was occupied in the agricultural operation. After the said accident, he is unable to perform his normal occupation. The learned counsel https://hcservices.ecourts.gov.in/hcservices/ further argued that the claimant sustained grievous injuries on his right shoulder and right leg and also sustained fracture in his right hand third and fifth fingers. PW2 had adduced evidence stating that after examining the claimant and medical records he assessed the disability stating that the claimant sustained 45% disability in the said accident. The learned counsel further argued that the Tribunal after considering the evidence of the claimant, doctor, driver of the vehicle and the documents, awarded the said compensation. Further, the PW2 certified that the claimant sustained 45% disability. But, the Tribunal fixed the disability only at 15% and the award granted by the Tribunal is a well considered one. As such, the above Civil Miscellaneous Appeal is not maintainable. Hence, the learned counsel has prayed before this Court to dismiss the appeal. 15.Considering the facts and circumstances of the case, scrutiny of the findings of the Tribunal, arguments advanced by the learned counsel appearing on either side, this Court is of the view that there is a slight discrepancy in the award and the quantum of compensation is not on the higher side and which is found to be fair and equitable. As such, this Court restructures the award granted by the Tribunal as follows: 1.This Court awards a sum of Rs.30,000/- under the head of loss of income and disability on the basis of Ex.P10, Disability Certificate issued by the PW2. 2.The Tribunal awarded a sum of Rs.15,000/- under the head of pain and suffering. This Court reduces to Rs.10,000/-. 3.The Tribunal failed to consider the travel expenses. This Court grants a sum of Rs.5,000/- under the head of transport expenses. 4.The Tribunal awarded a sum of Rs.3,000/- under the head of nutrition. This Court confirms the same under the same head. 5.The Tribunal awarded a sum of Rs.100/- under the head of medical expenses. This Court confirms the same under the same head. Therefore, the award amount of Rs.48,100/- granted by the Tribunal, 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, into the credit of the M.C.O.P.No.800 of 2003, on the file of the Motor Accident Claims Tribunal, II Additional Sub-Court, Cuddalore, is found to be fair and equitable. https://hcservices.ecourts.gov.in/hcservices/ 16.On 28.03.2006, this Court directed the appellant to deposit the entire compensation amount with accrued interest and costs, into the credit of the M.C.O.P.No.800 of 2003, on the file of the Motor Accident Claims Tribunal, II Additional Sub-Court, Cuddalore, within a period of eight weeks from the date of its Order. The learned counsel appearing for the appellant submitted that the said conditional order has been complied with. 17.As the accident had happened in the year 2003, it is open to the claimant to withdraw the entire compensation amount, lying in the credit of the M.C.O.P.No.800 of 2003, on the file of the Motor Accident Claims Tribunal, II Additional Sub-Court, Cuddalore, by making proper payment out application in accordance with law, subject to deduction of withdrawal if any made. 18.In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 11.08.2004, made in M.C.O.P.No.800 of 2003, on the file of the Motor Accident Claims Tribunal, II Additional Sub-Court, Cuddalore, is confirmed. Consequently, connected civil miscellaneous petition is closed. There shall be no order as to the costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar krk To 1.The Motor Accident Claims Tribunal, II Additional Sub-Court, Cuddalore. + 1 CC to Mrs.R.Muralidharan,Advocate,SR.23238 + 1 CC to Special Government Pleader(CS),SR.23238 C.M.A.No.693 of 2006 MBS(CO) EM/21.6.10 https://hcservices.ecourts.gov.in/hcservices/