IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.02.2010 CORAM THE HON'BLE MR.JUSTICE N. KIRUBAKARAN C.M.A.No.1494 of 2004 Metropolitan Transport Corporn. By its Managing Director, Pallavan Salai, Chennai -2. ..Appellant/Respondent /vs/ N.Shanmugasundaram ..Respondent/Petitioner Prayer: Civil Miscellaneous Appeal preferred under Section 173 of Motor Vehicles Act, 1988 against the Judgement and Decree of the Learned Motor Accidents Claims Tribunal (IV Judge, Court of Small Causes), Chennai in MCOP No.747 of 1999 dated 20.08.2003. For Petitioner : Mr.A.Babu For Respondents : Mr.T.G.Balachandran ORDER Aggrieved by the order of the Motor Accident Claims Tribunal (IV Judge, Court of Small Causes), Chennai dated 20.08.2003 in M.C.O.P.No.747 of 1999, the appellant has filed this appeal before this Court. 2.The facts of the case are as follows:- The case of the claimant before the Tribunal was that he sustained injuries in the accident occurred on 05.12.198. When he was travelling in an auto,it was hit by the appellant bus driven in a rash and negligent manner resulting in sustaining fracture of left clavicle, fracture of ribs 3 to 6 left side, fracture of neck of scapula, loss of skin of left thigh and multiple abrasions. He was hospitalised Government Royapettah Hospital and then subsequently in private Hospital he took treatment for more than two months. Hence the respondent claimant filed a claim petition for a sum of Rs.2,75,000/- as compensation. The said petition was contested by the appellant Transport Corporation. https://hcservices.ecourts.gov.in/hcservices/ 3.After enquiry the Tribunal came to the conclusion that the accident occurred because of rash and negligent driving of the appellant bus and awarded a sum of Rs.1,31,700/- as compensation in the following manner: loss of income Rs. 1,20,000/- Transportation Rs. 1,000/ loss of income during treatment Rs. 2,500/- extra nourishment Rs. 1,000/- medical bills Rs. 6,200/- pain and suffering Rs. 1,000/- --------------- 1,31,700/- ---------------- The compensation awarded by the Tribunal is the subject matter of this appeal. 4.Mr.Babu, the learned counsel for the appellant submitted that even though PW2 Doctor deposed that 50% disability was sustained by the claimant the Tribunal disbelieved the version and rightly fixed as 25% disability. The counsel further submitted that for 25% disability the Tribunal adopted second schedule of the M.V.Act to calculate the loss of income and the same is contrary to law. Secondly the learned counsel submitted that there was no proof before the Tribunal that the claimant was working as driver in the Government Department. Therefore, the learned counsel sought for reduction in the impugned award towards compensation. 5. On the other hand, the D.G.Balachandran, learned counsel for the respondents/claimant submitted that in the claim petition, it was stated that the claimant was working as a driver and it was not seriously challenged in the cross examination of PW1. Secondly, he found fault with the Tribunal for refixing the disability from of 50% to 25% without assigning any reason. He would submit that the amount awarded under various heads are as per law and infact he sought for enhancement of the compensation. 6.As far as the adoption of second schedule is concerned, there is no reason given by the Tribunal. There is no contention like loss of income and loss of employment to the claimant. Application of second schedule is not automatic. as per the Devision Bench Judgment of this Court United India Insurance Co., .Vs.Veluchami.(reported in 2005(1) TNMAC P.87). Therefore, this Court set asides award of Rs.90,000/- towards loss of income by application of second schedule. 7.The nature of injuries caused to the respondent, fracture of left clavicle, fracture of ribs 3 to 6 left side, fracture of neck of scapula, loss of skin of left thigh and multiple abrasions. Those https://hcservices.ecourts.gov.in/hcservices/ injuries are very serious and grievous in nature. PW2 Dr.Thiyagarajan elaborately explained about the injuries in his evidence. Ex.P5 is based on clinical examination and also medical documents namely three discharge summaries and x-rays. When that is the position, without giving any reason the Tribunal unilaterally reduced the disability suffered by the claimant from 50% to 25% and the same is contrary to law. The Tribunal is not an expert in medicine and in the absence of any contra expert evidence, the Tribunal has to believe the evidence of the doctor unless the expert witness is impeached in the cross examination. Therefore, this court determines disability at 50% this Court awards Rs.50,000/- for the same. 8.The injuries sustained by the respondent mentioned above are serious in nature and there are 3 discharge summaries marked as Ex.P1, P2 and P4 and , the claimant had to undergo treatment atleast for two months and therefore. For loss of income, two months salary is taken into consideration. There was no documentary evidence with regard to the employment as driver. PW2 deposed in his oral evidence that he is drawing as Rs.6,000/-and therefore loss of income for two months Rs.12,000/- is awarded. 9.As far as extra nourishment is concerned only Rs.1,000/- was awarded and the same is enhanced to Rs.10,000/-. Towards pain and suffering Rs.1,000/- alone was awarded and considering the nature of injuries sustained, the amount is enhanced to Rs.10,000/-. The amounts granted under the other heads are confirmed. For loss of amenities, this Court grants a sum of Rs.2,500/-. The Tribunal rightly granted 9% interest. 10.In the result, the appeal is partly allowed reducing the compensation to Rs.93,200/- in the following manner. Towards disability Rs. 50,000/-. Medical expenditure Rs. 6,200/- Further treatment Rs. 5,000/- loss of income Rs. 12,000/- extra nourishment Rs. 10,000/- Pain and sufferings Rs. 10,000/- --------------- Rs. 93,200/- --------------- 11.Appeal is partly allowed as stated above. No cost. Sd/ Asst.Registrar /true copy/ kkd Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Motor Accident Claims Tribunal IV Judge, Court of Small Causes, Chennai. Copy to: The Section Officer, V.R. Section, High Court, Madras. + 1 c.c. to Mr. A. Babu, Advocate. S.R.No.7403. CMA.No.1494 of 2004 KS (CO) GSK 29.03.2010. https://hcservices.ecourts.gov.in/hcservices/