IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.02.2010 CORAM THE HONOURABLE MR. JUSTICE N.KIRUBAKARAN CMA.No.46 of 2004 S..Venkatachalam ..Appellant /vs/ 1. V.B.Abdul Ajees 2. M/s.Gobi Impex 16,Union Mill Road, Tiruppur-1. 3. The New India Insurance Co. Limited Divisional Office, Kushar Shopping Complex, Kumaran Road, Thiruppur. (1st respondent is given up as he remained exparte in the lower court) ..Respondents PRAYER: Civil Miscellaneous Appeal preferred under Section 173 of Motor Vehicles Act, 1988 against the Judgment and Decree of the Learned Motor Accidents Claims Tribunal (Additional District Court, Fast Track Court No.V), Coimbatore at Tiruppur in MCOP No.878 of 1996 dated 02.01.2003. For Petitioner : Mr.R.Subramanian For Respondent-3 : Mr.K.S.Narasimhan ORDER Aggrieved by the quantum the claimant is before this Court. 2.The case of the appellant is that he sustained injuries in the accident occurred on 12.09.1996. When he was proceeding in his scooter, which was hit by a van driven due to rash and negligent driving of the van driver and sustained severe injuries to the claimant. Therefore, he filed claim petition for a sum of Rs.2,00,000/-. The said claim petition was contested by the third respondent/Insurance Company. On appreciation of pleadings and https://hcservices.ecourts.gov.in/hcservices/ evidence, Tribunal found that the accident occurred, due to rash and negligent driving of the van and awarded a sum of Rs.5,000/- as compensation. Aggrieved again, that the present CMA has been preferred by this claimant. 3.The learned counsel for the appellant pointed out that the appellant sustained injuries in the head, left hand, jaws and he was treated as an inpatient in Kovai Ramakrishna Hospital for 12 days medical expenses about Rs.10,000/-. 4.Pw2 Dr.Gokulanathan spoke about the injuries sustained by the claimant and the disability caused to him. Even though, the doctor was examined as PW2 and Ex.P2 the Wound Certificate and Ex.P3 the disability certificate were before the Tribunal, the Tribunal rejected evidence on the ground that he did not treat the claimant The learned counsel appearing for the appellant attacked the said rejection of evidence by the Tribunal contending that the accident was proved, injuries were caused out of the accident and the same was spoken by PW2 doctor based on the records, and therefore, there is no ground or base for the Tribunal to reject it. 5.On the other hand, Mr.Narasimhan learned counsel for the third respondent contended that the Tribunal had correctly approached the matter and rejected PW2's evidence and awarded a sum of Rs.5,000/-. 6.A perusal of the pleadings and evidence would show that due to the accident he sustained injuries resulting in disability to the tune of 25% This is proved for the witnesses Pw1, PW2 and Ex.P1 to P3. 7.PW2 Dr.Gokulanathan deposed based on medical records and also clinical examination of the claimant. Merely because the doctor who treated the claimant when he was admitted in the hospital was not examined does not mean the claimant cannot prove the disability through another medical expert. As long as the evidence of the doctor is believable the evidence cannot be rejected on the ground as adopted by the Tribunal. Therefore, this Court setaside the finding with regard to rejection of PW2's evidence and believes PW2 evidence. Apart from that there is no contra evidence on the side of the third respondent/Insurance Company when that is the position, the Tribunal ought to have believed PW2's evidence. Therefore, relying upon PW2's evidence and Ex.P3, this Court fixes the disability at 25% and awards Rs.25,000/- in favour of the claimant. Towards pain and suffering and extra nourishment, this Court awards Rs.15,000/- each head Rs.5,000/- awarded by the Tribunal is adjusted towards transportation. The claimant is entitled for a sum of Rs.60,000/- in the following manner : https://hcservices.ecourts.gov.in/hcservices/ towards disability Rs.25,000/- Pain and suffering Rs.15,000/- extra nourishment Rs.15,000/- awarded by the tribunal is adjusted towards transportation Rs. 5,000/- ------------- Total Rs.60,000/- ------------- 8.The Tribunal has awarded at the rate of interest 9% p.a., however is reduced to 7.5%. The appeal is partly allowed, and there is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kkd To 1. The Motor Accidents Claims Tribunal, (Additional District Court, Fast Track Court No.5), Coimbatore. 2. The Record Keeper, V.R. Section, High Court, Madras. + 1 c.c. to Mr. R. Subramanian, Advocate. S.R.No.7584. + 1 c.c. to Mr. K.S. Narasimhan, Advocate. S.R.No.8239. CMA.No.46 of 2004 KLT (CO) GSK 17.03.2010. https://hcservices.ecourts.gov.in/hcservices/