IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.10.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1107 of 2006 M.Sundaramoorthy .. Appellant/Petitiner Claimant Vs 1.M/s.Larson & Tourbo Ltd., Mambakkam, Sriperumbutur Taluk (R1 exparty before the lower court) 2.M/s.The National Insurance Co., Ltd., Chennai .. Respondents/Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 31.05.2005, made in M.C.O.P.No.439 of 2001, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.II, Kancheepuram. For appellant : Mr.N.Veerasamy For respondents : Mr.S.Vadivel for R2 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/claimant against the Award and Decree, dated 31.05.2005, made in M.C.O.P.No.439 of 2001, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.II, Kancheepuram, awarding a compensation of Rs.3,66,860/- together with 9% interest per annum, from the date of filing the claim petition till the date of payment of compensation. 2.Having not been satisfied with the said Award and Decree, the appellant/claimant has filed the above appeal praying additional compensation of Rs.3,50,000/-. 3.The short facts of the case are as follows: On 13.02.2001, at about 07.00 p.m. the petitioner was riding the bullock-cart towards Damal Village. At that time, nearing MBT road, the lorry bearing registration No.TN21 D3362 belonging to the first respondent and insured with the second respondent, was proceeding behind the petitioner's bullock-cart with rash and negligent manner, with uncontrollable speed and dashed behind the bullock-cart. Due to the said accident, the petitioner was thrown away from the bullock- https://hcservices.ecourts.gov.in/hcservices/ cart and he had sustained multiple grievous injuries all over the body and fracture of bone over the both legs and also damages to the bullocks and bullock-cart and the petitioner was immediately admitted in Government Hospital, Kancheepuram and then referred to Sri Ramachandra Hospital, Porur for treatment. The accident had happened only due to the rash and negligent driving of the driver of the first respondent's lorry. As such, the petitioner claimed a compensation of Rs.12,90,000/- before the Tribunal. 4.The second respondent/The National Insurance Co., Ltd., in their Counter had resisted the claim petition that the petition is not maintainable. The claim of Rs.12,90,000/- is not proportionate with the injuries sustained by the victim and the subsequent disability. The averments made in the claim petition as regard the injuries and medical treatment and also the disability are to be strictly proved by the petitioner himself. It is further contended that the lorry bearing registration No.TN21 D3362 belonging to the first respondent never involved in any accident on 13.02.2001 as averred in the claim petition. Petitioner's bullock cart was hit by some other vehicle for which the first respondent's vehicle has been unnecessarily dragged. Therefore, the second respondent is not statutorily responsible to pay compensation. The first respondent's driver had no valid driving licence on the date of occurrence. The vehicle in question has no insurance coverage on the date of occurrence. The amount of compensation claimed is excessive and as such the petition is liable to be dismissed. 5.The learned Motor Accident Claims Tribunal framed two issues for the consideration namely: (i)Whether the accident occurred due to the careless driving of the first respondent's driver? (ii)Whether the petitioner is entitled for compensation and if so what will be the quantum of the same? 6.On the petitioner's side, the the petitioner himself was examined as PW1 and Dr.A.Vaithilingam was examined as PW2 and 273 documents were marked as Exs.P1 to P273 namely Ex.P1-First Information Report, Ex.P2-Discharge Summary issued by SRMC Hospital, Porur, Exs.P3 and P4-Bills issued by SRMC Hospital, Ex.P5-95 Prescriptions issued by SRMC Hospital, Exs.P6 to 264-Medical Bills, Exs.P265 and 266-Photos and Exs.P267 and 268-Negatives, Ex.P269-13-X- rays, Ex.270-Patta issued by the Village Administrative Officer, Ex.271-Chitta issued by the Village Administrative Officer, Ex.272- Disability Certificate issued by the PW2 and Ex.273-two X-rays. On the respondents' side, no witnesses were examined and no documents were marked. 7.PW1, the claimant had adduced evidence stating that while he was riding his bullock-cart on the MBT road on 13.02.2001 at about 7.00 p.m. when the first respondent's lorry bearing registration https://hcservices.ecourts.gov.in/hcservices/ No.TN21 D3362 was coming behind the petitioner's bullock-cart with rash and negligent manner, with uncontrollable speed, and dashed behind the bullock-cart. The accident case was registered against the offending vehicle driver. The PW1 further had adduced evidence stating that he had driven the bullock-cart on the left side of the road, the respondent's lorry driven by its driver came and dashed against the bullock cart. In the result, the bullock-cart driver was thrown upon the ground himself. Further, he had adduced evidence stating that he was admitted in Kancheeputam Government Hospital and thereafter he was referred to Sri Ramachandran Hospital, Porur, as an inpatient on two occasion from 14.02.2001 to 04.05.2001 and from 01.07.2003 till 12.07.2003. In order to prove his treatment as in- patient as well as out patient, he had marked Exs.P3 to P264. Further, he had adduced evidence stating that his leg bones had been fractured and a portion of muscle was removed from the right leg thigh and the same was grafted on to his left leg. This was conducted while he was being treated as an in-patient,besides surgeries were conducted. His right leg was shortened by 1 cms. 8.PW2, Dr.A.Vaithilingam, had adduced evidence stating that the claimant sustained 60% disability, his fractured bones had deformed on his legs, left leg movement is severely restricted. The claimant could walk with the assistance of a walking stick. The claimant further stated that at the time of accident he was aged 35 years and he possessed cultivable lands and in order to prove the same he had marked Ex.P71, as such he is entirely involved in agricultural operations. 9.After considering the oral evidence of the PW1 and PW2 and documentary evidence, which were marked by the claimants, the learned Tribunal had come to the conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the first respondent's lorry, therefore the second respondent/National Insurance Co., Ltd., is liable to pay compensation and awarded the compensation as follows: i. Rs.40,000/- under the head of injuries sustained by the claimant, ii.Rs.60,000/- under the head of partial permanent disability, iii. Rs.50,000/- under the head of loss of future prospects, iv.Rs.50,000/- under the head of loss of earning power, v. Rs.5,000/- under the head of transport expenses, vi.Rs.1,61,860/- under the head of medical expenses/- https://hcservices.ecourts.gov.in/hcservices/ In total, the Tribunal awarded a sum of Rs.3,66,860/- as compensation to the claimant, 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. Further, the Tribunal permitted the claimant to withdraw a sum of Rs.66,860/- and the remaining sum of Rs.3,00,000/- directed to be deposited in the Bank of India, Kancheepuram Branch, under a fixed deposit scheme for a period of three years. Accordingly ordered. 10.Having not been satisfied with the said Award and Decree, the appellant/claimant has filed the above appeal praying additional compensation of Rs.3,50,000/-. 11.The learned counsel appearing for the appellant/claimant argued that the claimant had spent a sum of Rs.2,00,000/- towards medical expenses. Further, the claimant had undergone treatment for four years as inpatient as well as outpatient. The inpatient period was about three months and during this period he undergone surgical operation and muscle grafting. The fractured bones are deformed, the claimant's right leg was shortened by 1 cms. The claimant is now walking with a walking stick. Before the operation he was an active agriculturist, in order to prove that he had driven the bullock-cart at the time of the accident. Further, the learned counsel argued that the claimant's avocation was totally affected, his physical condition is also totally paralysed. In the middle age of 35 years, his normal life and responsibility to his family is being affected. Hence, the learned counsel prays for additional compensation. The learned counsel in support of his appeal has cited the following Judgment made in (2010) 1 MLJ 1268, Murugiah v. MD, TN State Transport Corpn., the relevant head notes of which are as follows: "Motor Vehicles Act (59 of 1988), Sections 166, 168, 173 – Accident claim – Compensation – Award passed by Tribunal – Appeal by claimant for enhancement in compensation – Victim, an young man lost his leg in accident and naturally his future prospects and matrimonial prospects would be affected – Victim has to lead miserable and crippled life and also society is not treating handicapped person properly in spite of many legislations – Said factors are relevant factors required to be considered determining just, fair and reasonable compensation – Appellant proved that he sustained 70% permanent disability – Appellant entitled to compensation towards loss of future income and future treatment – As no challenge to amounts awarded by Tribunal on other headings, same confirmed – Award of Tribunal modified by enhancing compensation – Appeal partly allowed." 12.Per contra, the learned counsel appearing for the second respondent/National Insurance Co., Ltd., argued that the medical expenses and transport expenses were granted on the strength of https://hcservices.ecourts.gov.in/hcservices/ respective bills. Further, the Tribunal had awarded compensation for loss of income, loss of earning capacity and permanent partial disability. Therefore, the Tribunal award amount is a well considered one. There is no discrepancy in the said award. In the absence of income proof, the Tribunal had considered the loss of income head also. The Doctor assessed the disability at 60% is on the higher side. The claimant had not produced any income proof towards agricultural income. Hence, the learned counsel prays before the Court to dismiss the appeal, since there is no discrepancy in the order passed by the Tribunal. 13.After considering the arguments advanced by the learned counsel appearing on either side and award and decree passed by the learned Motor Accident Tribunal, this Court is of the view that the claimant is entirely involved in agriculture operations on a full time. After the accident, his avocation was affected. Therefore, this Court decided to grant compensation against the multiplier method and restructure the compensation as follows: i. Rs.3,67,200/- (Rs.3,000/- X 60/100 X 12 X 17) under the head of loss of income, ii.Rs.25,000/- under the head of pain and suffering, iii.Rs.10,000/- under the head of nutrition, iv.Rs.1,67,000/- under the head of medical and transport expenses, as per bills recorded, In total, this Court awards a sum of Rs.5,69,200/- as compensation, which is fair and equitable. After deducting the original award amount of Rs.Rs.3,66,860/-, this Court awards an additional award amount of Rs.2,02,340/- with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation. 14.This Court directs the second respondent/National Insurance Company Limited to deposit the additional compensation amount with accrued interest thereon as observed about, into the credit of the M.C.O.P.No.439 of 2001, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.II, Kancheepuram, within a period of six weeks from the date of receipt of a copy of this Order. 15. After such deposit being made, it is open to the claimant to withdraw the entire compensation amount with accrued interest thereon and costs, lying in the credit of the M.C.O.P.No.439 of 2001, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.II, Kancheepuram, by making proper payment out application. 16.In the result, this Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 31.05.2005, made in M.C.O.P.No.439 of 2001, on the file of the Motor Accident Claims https://hcservices.ecourts.gov.in/hcservices/ Tribunal, Additional District Court, Fast Track Court No.II, Kancheepuram, is modified. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar krk To 1.The Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.II, Kancheepuram 2. The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr.N. Veerasamy, Advocate SR.73651 C.M.A.No.1107 of 2006 VS(CO) Eu 26.11.10 https://hcservices.ecourts.gov.in/hcservices/