IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.03.2009 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.M.A No.1009 of 2004 The New India Assurance Company, 12,New Hospital Road, Gobichettipalayam & Taluk. ... Appellant (3rd Respondent) Vs. 1.Kandappan 2.Karthikeyan 3.A.K.Natarajan ... Respondents (Petitioner) Prayer: Appeal filed against the award of the Motor Accident Claims Tribunal, Sub Judge, Bhavani in M.C.O.P.No.544 of 2001 dated 28.07.2003. For Appellant : M/s.S.Jayasankar For Respondents : Mr.C.Chockalingam for R 1 No appearnace for R 2 R 3 -Notice Dispensed with J U D G M E N T Challenge in this Civil Miscellaneous Appeal is to the award passed by the Motor Accident Claims Tribunal viz., Sub Judge, Bhavani in M.C.O.P.No.544 of 2001 dated 28.07.2003 awarding a compensation of Rs.2,21,553/- to the first respondent/claimant together with interest at 9% p.a. from the date of filing of the petition till date of payment. 2. The short facts of the claim are as follows:- On 23.01.1997, the first respondent/claimant was travelling in a bullock cart driven by one Periyasamy towards Sankarapalayam Velasamy Koil from Karuvalvadipudhur for cooking at festival in the temple for 'Thai Poosam' at the early hours of the day. Periyasamy, the driver drove the said cart from West to East on the left side of the https://hcservices.ecourts.gov.in/hcservices/ Andhiyur-Athani main road. Other than the first respondent/claimant and the driver, one Nanchappan, Sakthivel owner of the bullock cart and one Ekambaram were sitting in the bullock cart. In the cart, there were some articles like tape recorder, Speakers, Suit cases and some cooking vessel with food materials. Also, another bullock cart driven by Chinnasamy followed the first respondent/claimant's bullock cart. When the first respondent/claimant's cart was crossing Thoppur near Alamarathur at about 04.30 a.m. the second respondent/first respondent drove the Goods lorry bearing Registration No.TCG 5004 in the direction of West to East in a rash and negligent manner without blowing horn, without minding the traffic rules and without observing the bullock cart in front of the lorry dashed the bullock cart driven by Chinnasamy and the bullock cart in which the first respondent/claimant and others were travelling were thrown off, as a result of which the first respondent/claimant sustained serious injuries on his chest and his both legs were crushed by the lorry which resulted in a fracture of his two leg bones and also that he lost his both the legs. Due to the rash and negligent driving of the second respondent/first respondent, the accident had occurred not only causing serious injuries to the first respondent/claimant but also others like Nanchappan, Sakthivel, Periyasamy, Ekambaram sustained injuries and further that bullocks also sustained injuries and damages also sustained to the bullock cart and other articles kept in the cart. The first respondent/claimant was immediately taken to the Erode Government Hospital by a taxi and given medical treatment. The first respondent/claimant is still undergoing medical treatment at a private hospital. The first respondent/claimant was serving as a Cook at function, marriages and other festival occasions. The first respondent/claimant was earning more than Rs.4,000/- p.m. by serving as a Cook. Before the accident, the first respondent/claimant was hale and healthy and he was an efficient Cook in the locality. 3. The second respondent/first respondent is the driver of the offending lorry involved in the accident. The third respondent/second respondent is the owner of the said lorry. The lorry has been injured with the appellant/third respondent. Hence, they are jointly and severally are liable to pay a compensation of Rs.3 lakhs to the first respondent/claimant. The second respondent/first respondent driver has a valid driving license and the offending lorry involved in the accident has been covered with insurance. The Anthiyur police have registered a criminal case against the second respondent/first respondent in Cr.No.54/97 under Sections 279, 337 and 338 of I.P.C. and in S.T.C.No.871/98. The second respondent/first respondent driver has admitted the offence and has been fined to an extent of Rs.2,100/-. 4. The appellant/third respondent has filed a counter while denying the paragraph No.23 averments of the claim petition, has stated that the bullock cart was driving by Periyasamy in a rash and https://hcservices.ecourts.gov.in/hcservices/ negligent manner without following the rules and regulations and that he is responsible for the occurrence and further that the first respondent/claimant has no manner of right to claim any type of compensation from the appellant/respondent and that the claim petition is not maintainable and moreover, the claim made under each head is highly excessive and therefore prays for dismissal of the petition. 5. Before the Tribunal, the first respondent/claimant has been examined as P.W.2 and further that the claimant in M.C.O.P.543/01 has been examined as P.W.1 and the claim in M.C.O.P.545/01 has been examined as P.W.3 and the doctor has been examined as P.W.4 and Exs.A1 to A23 documents were marked. On the side of the respondents, Ex.B1 has been marked and no witnesses were examined. After contest, the Tribunal, on appreciation of oral and documentary evidence has passed an award granting a compensation of Rs.2,21,553/- (Rupees two lakhs twenty one thousand five hundred and fifty three) together with interest at 9% p.a. from the date of petition till date of payment along with proportionate cost payable by the appellant/third respondent Insurance Company. 6. To prove negligence, the first respondent/claimant has been examined as P.W.2 and in his evidence, he has deposed that on 23.01.1997 he along with Periyasamy, Sakthivel, Ekambaram and Nanchiappan were proceeding to Velasamy (Murugan temple) at Sankarapalayam in tyre cart on the left side of Anthiyur road and that the said cart was driven by Periyasamy and that Sakthivel is the owner of the said tyre cart and they started at morning 4 O' clock at Karuvalvadipudhur and when they were coming beyond place past Thoppur at 04.30 a.m. at that time he was sitting along with Sakthivel, Ekambaram and Nanchiappan and at that time behind the cart another tyre cart was driven by one Chinnasamy which was coming and at that time the lorry bearing Registration No. TCG 5004 came from the western side in a fast speed and negligently without sounding horn and dashed against the tyre cart and Chinnasamy and further dashed against their tyre cart also resulting in heavy damages and all of them were thrown out of their cart and that he sustained upon fracture in his two legs and that his two legs were crushed and he also sustained injuries on the head, chest and hand and that their cart capsized resulting in damages and also that their bullocks, its horns, leg were broken and that the cooking vessels, rice, pulses and other food articles kept in the cart in which he travelled all were strewn on the road and he fell unconscious and that he was taken to Erode Hospital where an operation was performed on his two legs and that he took treatment at the hospital for two months as an inpatient. In fact P.W.1 Periyasamy's evidence is similar to the evidence of P.W.2 in regard to the manner and mode of occurrence. Ex.A4 is the xerox copy of the Motor Vehicles Inspection Report relating of the offending lorry TCG 5004, wherein the Motor Vehicles Inspector has inter alia https://hcservices.ecourts.gov.in/hcservices/ opined that 'the accident was not due to any mechanical defect in the vehicle'. Ex.A5 is the xerox copy of the charge sheet in respect of the second respondent/first respondent, being the driver of the lorry TCG 5004. 7. A perusal of Ex.A5 indicates that the second respondent/first respondent lorry driver has been charge sheeted as per Sections 279, 337 and 338 of I.P.C. Ex.A6 is the order dated 13.05.1997 of the learned Judicial Magistrate, Bhavani, Erode District passed in STC 821/97 whereunder the second respondent/first respondent (lorry driver) has been found guilty upon his admission as per Sections 279, 337 and 338 of I.P.C. along with fine and default sentence and he has been imposed with a total fine amount of Rs.2,100/-. Inasmuch as the first respondent/claimant has spoken about the accident in his evidence as P.W.1 in a clinching fashion and because of the fact that the second respondent/first respondent offending lorry driver has admitted the offence and resultantly he has been found guilty by the criminal court as per Ex.A6 order, this Court comes to the conclusion that the accident has taken place because of negligent and rash driving of the second respondent/first respondent lorry driver and that he is squarely responsible for causing the accident and the point is answered accordingly. 8. In regard to the quantum of compensation to be awarded, the learned counsel for the appellant/Insurance company contends that the Tribunal has committed an error in taking the monthly income of the first respondent /claimant as Rs.3,000/- in the absence of any proof and further that the Tribunal has wrongly accepted the disability at 60%, assessed by P.W.2 doctor, when the claimant has sustained fracture of both bones as per Ex.A2 and applied the Schedule II to Section 163 A of Motor Vehicles Act in assessing the loss of future earning power, when the disability has not been in accordance with the Workmen Compensation Act 1823 and further the Tribunal is not correct in awarding a sum of Rs.15,000 towards pain and suffering and Rs.10,000/- towards Nourishment Expenses and in any event the amount awarded by the Tribunal viz., Rs.2,21,553/- together with interest at 9% p.a. etc., is not legal and therefore prays for allowing the appeal in the interest of justice. 9. Per contra, the learned counsel for the first respondent/claimant submits that the Tribunal has awarded a sum of Rs.2,21,553/- together with interest at 9% p.a. etc., as against a claim of Rs.3 lakhs and that no cross appeal has been filed by the first respondent/claimant and that the award passed by the Tribunal at this stage in appeal need not be interfered with by this Court. 10. It is to be noted that the first respondent/claimant in his claim petition has made the following claim under different heads claiming different amount and the same is as below:- https://hcservices.ecourts.gov.in/hcservices/ 1)Loss of earning from 23.01.97 to 22.01.99 Rs. at the rate of Rs.4,000/- p.m. as a Cook at functions : 96,000.00 2)Partial loss of earning :Total loss of earning as he lost his both the legs. 3)Transport to hospital : 2,000.00 4)Extra Nourishment : 24,000.00 5)Damages to clothing and Articles : Nil 6)Medical Expenses including doctor's fee and medicines (still the petitioner is undergoing treatment as outpatient): 1,00,000.00 7)Compensation for pain & suffering : 1,00,000.00 8)Compensation for continuing as permanent disability : 2,00,000.00 9)Compensation of the loss of earning power : 2,00,000.00 ---------------- Total 7,22,000.00 ---------------- and restricted the claim to the tune of Rs.3 lakhs only. 11. In Ex.A10 the Wound Certificate of the first respondent/claimant, the following injuries are mentioned:- 1)10cmX6cmX2cm lacerated wound medical aspect of lower half of left leg.0 Fractured bone ends seen then the wound. 2)4cmX2cmX1cm lacerated wound just (+) medial aspect of lower half of left leg. Fractured bone ends seen through the wound. 3) Diffuse swelling of ® leg with a punctured wound over the anterior aspect of ® leg middle 1/3rd. 4) X-rays show comminutied fracture of both the bones in left leg and right leg and admitted in Devi hospital. Further, in Ex.A10, it is stated the first respondent/claimant is alleged to have sustained injuries due to road traffic accident lorry versus bullock cart at about 04.30 a.m. on 23.01.1997 near Thoppur Anthiyur to Athani main road and has taken initial treatment at General hospital, Erode. In Ex.A18, the Disability Certificate in respect of the first respondent/claimant, issued by P.W.4 the doctor it is inter alia mentioned that the first respondent/claimant has come to his clinic on 30.01.2003 with the help of an auxillary crutches for consultation regarding his pain in his both legs and both ankles and on clinical examination, it is found that he has a painful adherent wound sear about 24 X 2 cms size extending from the medial side of left foot, left ankle and lower 1/3rd of the left leg and depressed deformity with a bend on the medial side of lower 1/3rd of left leg https://hcservices.ecourts.gov.in/hcservices/ and tenderness (+) over the lower 1/3rd of (L) tibia and fibula bones and left leg is shortened in 2cm in height and left muscles are wasted 3cm size in circumference and the left ankle and left foot are medially deviated and their movements are limited and painful and left knees joint movements are limited and painful and he walks with limping painful gait. He uses an auxiliary crutches while walking and sitting crossed leg on the floor and squatting for toilet purposes and long distance walking and long time standing causes pain in his both legs and both ankles and x-ray of the left leg with left knee dated 30.01.2003 shows mal-united fracture of upper 1/3d of left leg with non-united external fracture hole with mal-united fracture middle 1/3d (L) fibula bones with O.A. Changes (L) knee joint x-ray left ankle with leg TAP view, lat view shows mal-united fracture both bones lower 1/3rd of left leg with joint space narrowing and O.A. Changes (L) ankle joint and (L) subtalar joint and x-ray of ® Leg knee dated 30.01.2003 shows malunited fracture upper 1/3rd of right fibula and malunited fracture of both bones lower 1/3rd of right leg and malunited fracture of both bones lower end of right leg with O.A. Changes in ® knee joint and right ankle and right foot joint space narrowed O.A. changes (x) in the ankle joint and subtalar joints with osteoporosis of (L) foot and (L) ankle bones and based on the clinical and x-ray findings involving both his legs and both ankles, the permanent disability of the first respondent/claimant has been assessed at 60%. Indeed, P.W.4 doctor has adduced evidence before the Tribunal as per Ex.A18 the Disability Certificate issued by him. 12. Continuing further in Ex.A18, it is also mentioned that the first respondent/claimant has been taken to Devi hospital at Erode where he has been admitted on 23.01.1997 at 7 p.m. and X-rays were taken which shows comminutied # both bones of both legs and hence he was treated with external fixator Apparatus for his left legs # B bones of lower 1/3rd heel and P.O.P. Slab ® AK slab for # Both bones of middle 1/3d of ® leg for a period of 2 months during which time S.S.G. Taken from left thigh is grafted for left leg and after two months of I.P. Treatment, his external fixator apparatus from the left leg was removed and immobilised in left AK cast and then discharged with an advice for review for treatment for every 15 days once, etc.,. 13. As far as the present case is concerned, the first respondent/claimant has suffered a permanent disability of 60% as per Ex.A18 the Disability Certificate issued by Dr.R.Krishnasamy and therefore this Court grants a sum of Rs.60,000/- (Rs.1,000 for 1% disability) in this regard. Towards pain and suffering, this Court grants a sum of Rs.20,000/-. Towards the Medical Expenses and X-ray Expenses as seen from Exs.A13 to A15 and Ex.A23, this Court grants the actual sum of Rs.22,213. Towards Transport Expenses, this Court grants a sum of Rs.2,000/-. Towards Nourishment Expenses, though the first respondent/claimant has claimed a sum of Rs.24,000/-, this Court grants a sum of Rs.10,000/- considering the 60% permanent disability https://hcservices.ecourts.gov.in/hcservices/ sustained by him and the period of treatment undergone because of the fact that no strict proof of Evidence Act will apply to the Motor Accident Claims Cases bearing in mind of an important fact that it is a social welfare legislation mainly intended for the benefit of the injured/victims. Though the first respondent/claimant as P.W.2 has deposed before the Tribunal that he used to go for Cook job in connection with marriage and other festivities, etc., and that he will earn a daily wage of Rs.200/- and that he earned Rs.4,000/- p.m. Except the ipsi dixi statement, there is no documentary proof in regard to the actual income earned by him per month and therefore this Court fixes the loss of income as Rs.15,000/- per annum and atleast for five years, the same works out to Rs.75,000/- (Rs.15,000 X 5) and therefore this Court grants a sum of Rs.75,000/- towards loss of income. Towards global compensation, this Court awards a sum of Rs.1,000/-. Thus, the first respondent/claimant is entitled to receive a total compensation of Rs.1,90,213/- (Rupees one lakh ninety thousand two hundred and thirteen) together with interest at 9% p.a. from the date of filing of the petition till date of payment, payable by the appellant/third respondent Insurance Company and consequently the award of Rs.2,21,553/- awarded by the Tribunal is on the higher side and this Court allows the appeal in above terms, leaving the parties to bear their own costs. The Lawyer's fee is fixed by this Court at Rs.6,805/-. 14. In fine, a sum of Rs.1,90,213/- (Rupees one lakh ninety thousand two hundred and thirteen) is awarded together with interest at 9% p.a. from the date of filing of the petition till date of payment by this Court as compensation to the first respondent/claimant and resultantly, the award of the Tribunal stands modified. The Lawyer's fee is fixed at Rs.6,805/-. Further, the first respondent/claimant and the appellant/third respondent Insurance Company are directed to receive their balance due amount (less the amount already withdrawn if any) from the Tribunal by filing necessary application for payment out as per the Civil Rules of Practice in accordance with law. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vri https://hcservices.ecourts.gov.in/hcservices/ To 1.The Motor Accident Claims Tribunal, Sub Judge, Bhavani. 2.The Record Keeper, VR Section, High Court, Madras. MBS (CO) km/13.3. C.M.A No.1009 of 2004 https://hcservices.ecourts.gov.in/hcservices/