IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.10.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2332 of 2006 and C.M.P.No.9171 of 2006 National Insurance Co., Ltd., Salem .. Appellant/2nd Respondent Vs 1.Mohan .. 1st Respondent/Claimant 2.S.Arulshankar ..2nd Respondent/1st Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 03.08.2004 made in M.C.O.P.No.1720 of 2001, on the file of the Motor Accident Claims Tribunal, Additional District Court and Special Court for E.C. Case, Salem. For appellant : Mr.S.Arun Kumar For respondents : Mr.K.Kuppusamy for R1 No appearance for R2 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 03.08.2004 made in M.C.O.P.No.1720 of 2001, on the file of the Motor Accident Claims Tribunal, Additional District Court and Special Court for E.C. Case, Salem, awarding a compensation of Rs.1,12,000/- together with 9% interest per annum, from the date of filing the claim petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal. 3.The short facts of the case are as follows: On 01.11.2001, at about 08.15 p.m. when the petitioner was walking at the road side in front of the Central Jail, the motorcycle bearing registration No.TN07 C4593, belonging to the first respondent and insured with the second respondent, driven by its rider in a rash and negligent manner and dashed against the petitioner. Due to the https://hcservices.ecourts.gov.in/hcservices/ accident, the petitioner sustained fracture injuries and he spent more than Rs.50,000/- for his medical treatment. At the time of the accident, he was aged about 49 years and working as Assistant Jailor and earning a sum of Rs.6,700/- per month. The said accident had happened only due to the rash and negligent driving of the rider of the vehicle. As such, the respondents are liable to pay compensation to the petitioner. Hence, the petitioner claimed a compensation of Rs.2,00,000/- before the Tribunal. 4.The second respondent/National Insurance Co., Ltd., in their Counter, had resisted the claim petition that it is not true that on 01.11.2001, at 08.15 p.m. when the petitioner was walking near the Central Jail, the rider of the motorcycle came in a rash and negligent manner and dashed against the petitioner and sustained fracture injuries. The case is a hit and ran case. The motorcycle referred to in the petition was not involved in the accident. The name of the rider is mentioned as Annamalai in the petition. But, he is no way connected with the motorcycle. It is false to allege that the petitioner sustained fracture injuries and spent a sum of Rs.50,000/- for his medical treatment. There is no permanent disability. The amount claimed as compensation is very high. Hence, the petition is to be dismissed with costs. 5.The learned Motor Accident Claims Tribunal had framed two issues for the consideration namely: (i) Whether the accident had occurred due to the rash and negligent riding of the rider of the motorcycle belongs to the first respondent? (ii) Whether the petitioner is entitled to compensation as claimed? 6.On the petitioner's side, the petitioner was examined as PW1 and Dr.P.Sridhar was examined as PW2 and six documents were marked as Exs.P1 to P6 namely Ex.P1-True copy of FIR, Ex.P2-Wound Certificate, Ex.P3-Discharge Summary, Ex.P4-Medical Bills, Ex.P5-Disability Certificate and Ex.P6-X-ray. On the respondents' side one Annamalai was examined as RW1, one S.R.Nagaraj was examined as RW2 and one Rathinavelu was examined as RW3 and three documents were marked as Exs.R1 to R3 namely Ex.R1-Investigation Report, Ex.R2-CBCID Report and Ex.R3-Contempt Petition No.431/2003. 7.PW1, the claimant had adduced evidence stating that he has lodged a complaint regarding the accident. He stated that he was walking on the left side of the road on 01.11.2001, at about 08.15 p.m. on the Yercaud main road and at that point of time, the motorcycle bearing registration No.TN07 C4593, belonging to the first respondent and insured with the second respondent, driven by its rider in a rash and negligent manner and dashed against him. In the result he had sustained injuries on his right leg and head. He was admitted in the Government Hospital and thereafter he was shifted to a private hospital, wherein he was an inpatient for a period of 15 days. He had spent a sum of Rs.1,00,000/- towards medical expenses. https://hcservices.ecourts.gov.in/hcservices/ He had further adduced evidence stating that at the time of the accident, he was an Assistant Jailor at Salem Central Jail and was earning a sum of Rs.7,000/- per month. In order to prove the accident and mode of treatment, he had marked Ex.A1-First Information Report, Ex.A2-Wound Certificate, Ex.A3-Medical Discharge Summary, Ex.A4-Medical Bill series, Ex.A5-Disability Certificate and Ex.A6-X- ray. 8.PW2, Dr.P.Sridhar had adduced evidence stating that the claimant sustained injuries on the right leg and both bones were broken and a steel rod has been fixed on the operated regions. Further, he had adduced evidence stating that another operation will be required to remove the steel rod and he assessed the disability at 25% sustained by the claimant. 9.RW1, Annamalai had adduced evidence stating that he had not voluntarily admitted and paid the fine for the said accident and was also not compelled by the Police. Further, he had stated that he was the rider of the motorcycle. 10.RW2, S.R.Nagaraj had adduced evidence stating that there was no such accident had occurred. He has also marked Ex.R1- Investigation Report. Further, he had adduced evidence stating that he had lodged a complaint to the CBCID and he was not aware of the accident directly. Ex.R3 is the order of the High Court regarding the M.C.O.P.No.1060 of 2001, on the file of the Fast Track Court, Thirunelveli. 11.After considering the evidence of both sides and documents, which were marked as exhibits, the learned Tribunal had come to the conclusion that the accident had occurred only due to the rash and negligent driving of the rider of the first respondent's vehicle, therefore the first and second respondents are jointly and severally liable to pay compensation to the petitioner and awarded the compensation as follows: i. Rs.40,000/- under the head of loss of income for five years, ii.Rs.15,000/- under the head of pain and suffering, iii.Rs.55,000/- under the head of hospital bills, iv.Rs.2,000/- under the head of medical bills, In total, the Tribunal awarded a sum of Rs.1,12,000/- as compensation to the petitioner, 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 directed the respondents to deposit the compensation amount of Rs.1,12,000/- 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, within a period of six months from the date of its order. In turn, the said amount to be deposited, under a fixed deposit scheme, in a nationalised bank for a period three years and the petitioner was https://hcservices.ecourts.gov.in/hcservices/ permitted to withdraw the interest alone once in three months. Accordingly ordered. 12.Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal. 13.The learned counsel appearing for the appellant/Insurance Company argued that the compensation amount awarded by the Tribunal is on the higher side. The claim case is misconceived. The date of accident ie.on 01.11.2001, but the complaint was lodged with the Police on 03.11.2001, after that the complaint was lodged. The Doctor's evidence is also not properly. For another operation of the claimant, no medical records available in this regard. The accident and involvement of a vehicle has not been proved beyond doubt. In order to challenge the accident, Ex.P1, P2 and P3 were marked, the same was not considered by the Tribunal. Further, the learned counsel argued that Rs.40,000/- under the head of loss of income for five years is on higher side and the rate of interest fixed by the Tribunal is also on higher side. As such, the learned counsel prays before this Court to scale down the compensation amount awarded by the Tribunal. 14.The learned counsel for the first respondent/claimant argued that the medical bills alone about Rs.1,00,000/-. But, the Tribunal had awarded a sum of Rs.55,000/-. So, the Tribunal has not awarded adequate compensation under this head. As per the PW2's evidence, another operation is required. Therefore, the claimant is entitled to receive further medical expenses. The competent Doctor's evidence was not considered by the Tribunal. The learned counsel further argued that the claimant is entitled to receive attender charges, loss of income and transport expenses, these heads were not considered by the Tribunal. The claimant is an Assistant Jailor. So, his physical condition is abnormal, due to the fracture on his leg. At the time of argument, the learned counsel for the appellant has fairly admitted that this claim petition is not covered under a false claim. In order to prove the same, the learned counsel produced a Judgment in C.C.No.275 of 2006, dated 29.01.2010, on the file of the Judicial Magistrate No.III, Salem. This Court appreciates the learned counsel for the appellant for assistance to render proper justice to the parties concerned. Therefore, he prays before this Court to dismiss the appeal filed by the appellant. 15.Considering the facts and circumstances of the case, the arguments advanced by the learned counsel appearing on either side and the award and decree passed by the Tribunal, this Court is of the view that the quantum of compensation is on the higher side. Hence, this Court scales down the same as follows: i. Rs.25,000/- under the head of disability, ii. The Tribunal awarded a sum of Rs.15,000/- under the head of pain and suffering, this Court confirms the same as it is pertinent, https://hcservices.ecourts.gov.in/hcservices/ iii. Rs.9,000/- under the head of loss of income during the medical treatment period, iv. Rs.6,000/- under the head of extra nourishment, v. Rs.2,000/- under the head of transport expenses, vi. Rs.35,000/- under the head of medical expenses and future medical expenses, In total, this Court awards a compensation of Rs.92,000/- 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. Therefore, this Court hereby reduces the Tribunal compensation amount of Rs.1,12,000/- to Rs.92,000/-, which is fair and equitable. 16.Therefore, this Court directs the appellant/National Insurance Company Limited to deposit the entire compensation amount of Rs.92,000/- together with accrued interest thereon, as observed above, into the credit of the M.C.O.P.No.1720 of 2001, on the file of the Motor Accident Claims Tribunal, Additional District Court and Special Court for E.C. Case, Salem, within a period of six weeks from the date of receipt of a copy of this Order, subject to the deduction of earlier deposit if any. 17.After such deposit being made, it is open to the first respondent/claimant to withdraw the entire compensation amount, awarded by this Court, with accrued interest thereon and costs, lying in the credit of the M.C.O.P.No.1720 of 2001, on the file of the Motor Accident Claims Tribunal, Additional District Court and Special Court for E.C. Case, Salem, by making proper payment out application, subject to the deduction of withdrawals, if any, in accordance with law. 18.In the result, this Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 03.08.2004 made in M.C.O.P.No.1720 of 2001, on the file of the Motor Accident Claims Tribunal, Additional District Court and Special Court for E.C. Case, Salem is modified. Consequently, connected miscellaneous petition is closed. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar krk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Motor Accident Claims Tribunal, Additional District Court and Special Court for E.C. Case, Salem. 2. The Section Officer, VR Section, High Court, Madras. +1cc to Mr.S.Arun kumar Advocate, Sr.76330 Order in C.M.A.No.2332 of 2006 GR(CO) rvr 03/12/2010 22.10.2010 https://hcservices.ecourts.gov.in/hcservices/