IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.07.2010 CORAM: THE HON'BLE MR.JUSTICE B.RAJENDRAN C.M.A.No.438 of 2007 and M.P.No.1 of 2007 The New India Assurance Company Ltd Dharmapuri Branch Rep. by Assistant Manager-Legal 5th Floor, 45, Moore Street Chennai – 600 001 ... Appellant/2nd Respondent Versus 1. Mr. Thangavelu 2. Mrs. K. Nagammal ... Respondents/Petitioner & Ist Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 11.03.2005, made in MACTOP No.1599 of 2003 on the file of the Motor Accidents Claims Tribunal cum Subordinate Judge Krishnagiri. For Petitioner : Mr. S. Sundaresan For Respondents : Mr. P. Arivudainambi for R1 JUDGMENT The Insurance company has come forward with this appeal questioning the quantum of compensation awarded by the court below at Rs.1,75,000/- for the injuries sustained by the claimant/first respondent herein in a road accident. 2. A reading of the claim petition would unfold the fact that on 16.10.2002, when the claimant was walking on Kadamadai to Palacode road, at about 8.00 pm near Palacode B.D.O. Office in front of Deivam Hotel, the auto rickshaw bearing Registration No. TN 43 4598 belonged to the second respondent herein was driven by its driver in a rash and negligent manner and hit the claimant. In the impact, the claimant sustained the injuries in the nature of (i) Diffuse contusion over (L) foot dorsal as pect 10 x 7 cm skin colour (ii) Abrasion over (L) wrist 2 x 1 cm balck in colour (iii) Contusion (R) little toe 1 x 1 cm (iv) Abrasion c over (R) elbow 2 x 2 cm (v) Contusion over accipital region 4 x 2 cm skin colour. According to the claimant, he was immediately taken to a private hospital at Salem, where he was given first aid and thereafter he was referred to Government Head Quarters Hospital, Dharmapuri. Subsequently, the claimant had also taken treatment at a private hospital. Therefore, for the injuries sustained in the road accident, he had claimed a sum of Rs.2,00,000/- as compensation. https://hcservices.ecourts.gov.in/hcservices/ 3. Before the Court below, the claimant examined himself as PW1 and Dr. Elangovan as PW2 and marked Exs. P1 to P5. On behalf of the respondents, two independent witnesses, Rws 1 and 2 were examined and Exs. R1 to R2 were marked. The Court below, on consideration of the oral and documentary evidence, directed the insurance company to pay Rs.1,75,000/- as compensation for the claimant/first respondent herein. 4. The learned counsel for the appellant/insurance company vehemently contended that the complaint regarding the manner of accident itself was reported to the police after one week from the date of accident and based on such complaint, the First Information Report itself was registered with a delay and therefore, the entire theory, as portrayed by the claimant, is ingenuine and not bonafide. Further, the autorickshaw involved in the accident was issued permit only to run in Krishnagiri Town alone and therefore, in the absence of any evidence to show the date, place and time of accident, the insurance company cannot be fastened with any liability. The learned counsel further contended that the claimant had only sustained simple injuries such as abrasion and contusion and therefore, the disability certificate issued by the Doctor assessing the disability of the claimant at 35% is exaggerated and untrustworthy. Further, the wound certificate produced by the claimant do not indicate any fracture injury and in the absence of the same, the court below is not justified in granting an exorbitant amount as compensation. Therefore, the insurance company questions the quantum of compensation as well as liability to pay the compensation amount awarded by the court below. 5. The learned counsel for the claimant/first respondent would contend that the doctor, in his evidence has stated that the claimant had sustained fracture and therefore, he had rightly assessed the disability of the claimant at 35%. When the claimant had established the injuries sustained by him by examining a Doctor, the Court below has rightly awarded the compensation amount and he justified the award passed by the court below. 6. Heard both parties. The short point for consideration in this appeal is whether the quantum of compensation awarded by the Court below is fair, reasonable and correct. 7. Admittedly, in the accident that took place on 16.10.2002, the claimant had sustained certain injuries, which are mentioned in column No.11 of the claim petition which are to the effect that (i) Diffuse contusion over (L) foot dorsal as pect 10 x 7 cm skin colour (ii) Abrasion over (L) wrist 2 x 1 cm balck in colour (iii) Contusion (R) little toe 1 x 1 cm (iv) Abrasion c over (R) elbow 2 x 2 cm (v) Contusion over accupital region 4 x 2 cm skin colour. Even according to the claimant, he was taken to a private hospital where first aid was given for the injuries sustained by him and thereafter, he was admitted in the Government Hospital, Dharmapuri for treatment and subsequently, he had taken treatment in a private hospital as well. It is also seen from the records that the claimant was working as Accounts Assistant in Tamil Nadu Electricity Board and after the accident, according to the claimant, he could not concentrate in his https://hcservices.ecourts.gov.in/hcservices/ job properly and his promotions were affected. 8. It is very clear from the very admission of the claimant himself in the claim petition that the claimant had sustained five injuries which are in the nature of contusion or abrasion and no where it was mentioned in the claim petition about any fracture or any grievous injuries sustained by him. In the claim petition, the claimant has not mentioned as to how long he was admitted in the hospital and what kind of a treatment given to him. The claimant, in his evidence as PW1 had only stated thus:- nkw;go tpgj;jpdhy; vdf;F ,lJ fhy; ghjj;jpy; vYk;g[ Kwpt[ Vw;gl;lJ/ 9. Even though in the chief examination he had stated that he sustained fracture in his left leg foot, in the cross examination, he has admitted that he had not produced any records to show the nature of treatment taken by him or he has produced medical records to show that he had sustained fracture. In the complaint, the claimant has admitted that he has given the complaint after seven days of the incident. If we read Ex.P1 - FIR, which was given after one week from the date of accident, it was stated therein as follows:- fPnH tpGe;j ehd; jiyapd; cr;re;jiy. tyJif Kl;o. tyJfhy; Rz;Ltpuy;. ,lJfhy; ghjk;. K:f;F. tapW. ,lJg[uk; nghd;w ,l';fspy; mog;gl;l vd;id mUfpy; ,Ue;j ,uhkehjd; kh!;lh; KUfd; Mfpnahh;fs; rk;gtj;ij nehpy; ghh;j;J vd;id J}f;fp vd; tPl;ow;F jfty; brhy;yp mDg;gp vd; kidtp b$akzp vd;id nryk; jdpahh; kUj;Jtkidf;F miHj;J rpfpr;irf;F nrh;j;jhh;/ 10. Even in the FIR, no where it was mentioned by the claimant that he had sustained any fracture or taken any treatment for such fracture. It is also pertinent to note here that FIR was also registered only after one week after the accident. If really the claimant had sustained fracture, as alleged, he could have mentioned the same in the complaint given to the police, based on which the First Information Report came to be registered. Therefore, the complaint given by the claimant after one week from the date of accident is unbelievable. 11. In the claim petition, the claimant himself had admitted that he sustained injuries in the nature of contusion and abrasion. However, the Doctor, PW2, who issued the disability certificate, Ex.P2 dated 24.11.2002, certified that the claimant had sustained disability to the extent of 35%. In Ex.P2, six injuries were mentioned. The first injury is stated as grievous in nature and injuries 2 to 6 are simple in nature. Whereas, the injuries mentioned in Column No.11 in the original petition indicate that the claimant had sustained only minor injuries. But, in the wound certificate, an entry was made by making some insertion stating that the claimant had sustained "fracture distal end of 3rd and 4th Mete Tarsal Bone". It is not known how the Doctor, PW2, who examined the claimant after 1 ½ years from the date of accident had assessed the disability of the claimant at 35%. In the Chief examination, PW2 says that he had examined the claimant only on 05.10.2004 i.e., more than two years after the accident and he has never treated him at the time of https://hcservices.ecourts.gov.in/hcservices/ accident. PW2 would only say that he has seen the wound certificate issued by the Government hospital and would contend that the claimant had sustained fracture in his left leg and because of the fracture in the foot the claimant could not sit or stand properly and therefore there is permanent disability of 35%. Now if we analyse the wound certificate, issued by the Government Hospital, no where it was mentioned that the claimant had sustained any fracture injury. In the absence of any fracture injury sustained by the claimant, as could be seen from the Wound Certificate, the disability certificate issued by the Doctor, PW2 is clearly exaggerated. Therefore, the disability certificate issued by the Doctor, PW2 is unbelievable and it cannot be taken as a basis for awarding any compensation. 12. The learned counsel for the insurance company/appellant also pointed out that the Insurance Company itself will not be held any responsible or liable to pay compensation when the autorickshaw which was involved in the accident had violated the permit condition. But as I have already pointed out that the very injury sustained by the claimant is not a grievous injury and only a simple injury, the award amount granted by the court below has to be set aside in entirety. If at all, the claimant is only entitled to a sum of Rs.25,000/- under the heading 'no fault liability' dehors the contention of the counsel for the appellant that there is a violation of permit condition. 13. In the result, the award passed by the court below at Rs.1,75,000/- is set aside and the claimant is only entitled to a sum of Rs.25,000/- under 'no fault liability' for the injuries sustained by him. The appeal filed by the insurance company is partly allowed. No costs. 14. The learned counsel for the appellant submitted that the entire award amount was deposited. In view of the reduction of the compensation amount, the excess amount deposited by the appellant is permitted to withdrawn with accrued interest. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ogy/rsh To The Subordiante Judge, The Motor Accidents Claims Tribunal Krishnagiri. 1 cc To Mr.S. Sundaresan, Advocate, SR.54334 1 cc To Mr. P. Arivudainambi , Advocate, SR.54679 W.P.No.438 of 2007 ng(co) pmk.31.5.2011 https://hcservices.ecourts.gov.in/hcservices/