IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.03.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.2695 OF 2008 & M.P.No.1 of 2008 Bajaj Allianz General Insurance Co. Ltd., No.25/26, College Road, Nungambakkam, Chennai – 600 006. ... Appellant/ 2nd Respondent Versus 1.N.Moorthy 2.S.Veldurai ... Respondents/ Claimant and (R2 was set exparte I Respondent by the court below) Prayer: This appeal is preferred u/s 173 of M.V. Act against the award and decree dated 26.02.2008, made in M.C.O.P.No.3561 of 2005, on the file of the Motor Accidents Claims Tribunal, Vth Judge, Small Causes Court, Chennai. For Appellant : Mr.K.Padmanabhan For Respondents : Mr.K.K.Dhandapani (R-1) J U D G M E N T The above appeal has been filed by the appellant / Bajaj Allianz General Insurance Company Limited, against the award and decree dated 26.02.2008, made in M.C.O.P.No.3561 of 2005, on the file of the Motor Accidents Claims Tribunal, Vth Small Causes Court, Chennai. 2.The short facts of the case are as follows: On 25.07.2005 at around 10.00 a.m., the petitioner was proceeding on his motorcycle on the Medavakkam to Chennai road, when at that time an auto bearing Registration No.TN22 AH 1031 came from the same direction at high speed and in a rash and negligent manner and dashed against the motorcyclist, resulting he https://hcservices.ecourts.gov.in/hcservices/ had sustained grievous injuries. Hence, the claim petition has been filed against the respondents for compensation a sum of Rs.3,66,000/- with interest. 3.The second respondent Insurance Company had filed a counter statement and resisted the claim petition. The respondent denied that the accident was committed by the driver of the auto. Further, the offending vehicle was not in possession of valid documents. The respondent denied the age, income and occupation of the claimant. The claim amount is excessive. The owner of the motorcycle and its Insurance Company are necessary parties, but were not included in the said case. 4.On the pleas of both parties, the Tribunal had framed four issues for consideration, namely; “(i)Whether the accident had happened due to the rash and negligent driving by the driver of the auto bearing Registration No.TN 22 AH 1031? (ii)Whether the respondents are liable to pay compensation? (iii)Whether the petitioner is entitled to receive compensation? (iv)To what relief?” 5.On the side of the claimant two witness had been examined and six documents were marked, namely, Accident Register, Discharge Medical Summary, First Information Report, Rough Sketch, Driving Licence and Disability Certificate. On the side of the respondent two witnesses had been examined and one document was marked. 6.PW1 had adduced evidence that he had been riding his motorcycle on the Medavakkam Bazaar Road, Chennai on 25.07.2005 at around 10.00 a.m., when at that time, the auto rickshaw bearing Registration No. TN22 AH 1031 came at high speed and dashed against the motorcyclist. In the result, he had sustained bone fracture injuries on his right hand and dislocation of bone over joints of both legs. Immediately, after the accident he was admitted at Sankara Hospital, wherein he has undergone treatment from 25.07.2005 to 28.07.2005. 7.PW1 had adduced that the driver of the auto was in possession of driving licence and the auto was insured with the second respondent. PW1 had marked accident register and discharge summary in order to prove the nature of injuries. He further stated that he had been hospitalized for a period of four days as inpatient and he was a driver by profession and earning Rs.6,000/- per month. PW2 had assessed the disability as 50%. https://hcservices.ecourts.gov.in/hcservices/ 8.On considering the evidence of the witnesses, the Tribunal had awarded a sum of Rs.1,70,000/- with interest at the rate of 7.5% per annum. The breakup of compensation is as follows:- Rs.40,000/- towards loss of income during medical treatment & convalescent period; Rs.10,000/- for transport; Rs.10,000/- against nutrition; Rs.50,000/- towards medical expenses; Rs.10,000/- for pain and suffering; Rs.50,000/- towards disability 9.Aggrieved by the said award, the appellant / Bajaj Alianz General Insurance Company has filed the above appeal. 10.Learned counsel for the appellant argued that the claimant had sustained simple injuries and he had been hospitalized for a period of few days, but the Doctor assessed the disability as 50% is on the higher side. The Tribunal had awarded Rs.40,000/- under the head of 'loss of income', which is also on the higher side. 11.Learned counsel for the claimant argued that the claimant had sustained multiple bone fracture injuries on his leg, the knee joints were dislocated, after the accident he is not able to perform his normal duties as a driver for a period of 10 months. The doctor had properly assessed the disability after a thorough physical examination and scrutinizing the medical records. 12.In view of the facts and circumstances of the case and arguments submitted by the learned counsels on either side and on perusing the award of the Tribunal, this Court is of the considered opinion that the claimant had sustained bone fracture injuries on his leg and dislocation of knee joints, his profession being a driver and the doctor's assessment of the disability at 50%, hence, considering these aspects, the Tribunal had properly assessed the compensation. Therefore, this Court is not warranted to interfere with the impugned award of the learned Motor Accidents Claims Tribunal. As such, the award is confirmed as fair and equitable. 13.On 01.09.2008, this Court imposed a condition on the appellant / Bajaj Allianz General insurance Company Limited to deposit a sum of Rs.1,25,000/- with accrued interest thereon and costs to the credit of M.C.O.P.No.3561 of 2005, on the file of the Motor Accidents Claims Tribunal, Vth Small Causes Court, Chennai. Therefore, this Court directs the appellant / Bajaj Allianz General insurance Company to deposit the balance compensation amount to the credit of M.C.O.P.No.3561 of 2005, on the file of https://hcservices.ecourts.gov.in/hcservices/ the Motor Accidents Claims Tribunal, Vth Small Causes Court, Chennai, within a period of six weeks from the date of receipt of copy of this order, subject to deductions on earlier deposit if any made already by the appellant. After such a deposit being made, it is open to the claimant to withdraw the entire compensation amount lying in the credit of M.C.O.P.No.3561 of 2005, on the file of the Motor Accidents Claims Tribunal, Vth Small Causes Court, Chennai, after filing necessary payment out of application in accordance with law, subject to withdrawals if any made already. 14.Resultantly, the above Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal on the file of Vth Small Causes Court, Chennai, made in M.C.O.P.No.3561 of 2005, dated 26.02.2008 is confirmed. There is no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. r n s To The Motor Accidents Claims Tribunal, Vth Judge, Small Causes Court, Chennai Copy to The Section Officer VR Section, High Court, Madras 1 cc to Mr.K. Padmanabhan, Advocate, Sr. 16878 1 cc to Mr.K.K. Dhandapani,. Advocate, Sr. 16458 C.M.A.NO. 2695 OF 2008 CK (CO) kk 9/5 https://hcservices.ecourts.gov.in/hcservices/