IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.03.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.1471 OF 2009 Shiva .. Appellant/ Petitioner Versus 1.Jayashree Shankavaram 2.Bajaj Allianz General Insurance Company Ltd., No.105-A/107-A, Cears Plaza, No.136, Residency Road, Bangalore – 560 025. .. Respondents/ Respondents Prayer: This appeal is preferred against the judgment and decree made in M.C.O.P.No.42 of 2007, dated 21.07.2008, on the file of Motor Accident Claims Tribunal, Principal Subordinate Court, Krishnagiri. For Appellant : Mr.Arunkumar Rajan For Respondents : No Appearance J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant / claimant against the judgment and decree passed in M.C.O.P.No.42 of 2007, dated 21.07.2008, on the file of Motor Accident Claims Tribunal, Principal Subordinate Court, Krishnagiri, on awarding a compensation a sum of Rs.1,10,288/- with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. 2.The short facts of the case are as follows:- on 26.06.2005, at around 11.00 a.m., when the petitioner was proceeding on his scooter on the Koramangala Main Road, a car bearing Registration No.KA-01-MA-8046 driven by its driver at a high speed and reckless manner, dashed against the petitioner. In the result, he had sustained grievous injuries. Hence, the claim petition was filed against the respondents for compensation of a sum of Rs.5,00,000/- with interest. https://hcservices.ecourts.gov.in/hcservices/ 3.The second respondent / Insurance Company had filed a counter statement and resisted the claim petition. The respondent submitted that the driver did not have a valid driving licence and the vehicle was not covered under valid records. Actually, the petitioner had committed the said accident. The age, income and occupation of the claimant was also denied. The claim amount is an excessive one. 4.On the plea of both parties, the Tribunal had framed three issues for consideration, namely; “(i)Whether the accident occurred due to the rash and negligent driving of the driver of the car bearing Registration No. KA-01-MA-8046 or the accident occurred due to the rash and negligent driving of the petitioner? (ii)Whether the petition is bad for non-joinder of necessary party? (iii)Whether the petitioner is entitled to receive compensation as prayed for?” 5.On the side of the claimant two witnesses had been examined viz., PW1-Shiva, PW2-Dr.Gandhi and thirteen documents were marked, which are as follows:- Ex.P1-First Information Report–Kanada Version, Ex.P2-First Information Report translated from Kanada to Tamil Version, Ex.P3- Charge sheet-Kanada version, Ex.P4-Charge sheet translated from Kanada to Tamil version, Ex.P5-Spot Mahazar-Kanada version, Ex.P6- Spot Mahazar translated from Kanada to Tamil version, Ex.P7-Motor Vehicle Inspector's Report, Ex.P8-Wound Certificate, Ex.P9- Discharge Summary, Ex.P10-Insurance Policy, Ex.P11-Medical Bills, Ex.P12-Permanent Disability Certificate, Ex.P13-X-ray. On the side of the respondents, no witness, no documentary evidence. 6.PW1/claimant had adduced evidence stating that on 26.06.2005 when he was riding his scooter on the Koramangala Main road, the first respondent's car bearing Registration No. KA-01-MA-8046, driven by its driver in a rash and negligent manner, dashed against the petitioner. He further stated that in the said accident, he had sustained grievous injuries. Immediately after the accident, he was taken to the Gold Star Hospital for treatment. He further stated that at the time of accident, his age was 35 years and that he was engaged as a mason in construction work. He had sustained lacerated wound on his left leg, left knee, left forearm, right elbow etc., PW2, Doctor had examined the claimant and assessed the disability as 42%. The claimant's tibia and febula bones were fractured and surgical operation was conducted. In the operated area, a steel plate was fixed. PW1, further adduced evidence stating that he had https://hcservices.ecourts.gov.in/hcservices/ spent more than Rs.60,000/- towards medical expenses. 7.On considering the evidence of the witnesses and documentary evidence, the Tribunal had awarded a sum of Rs.1,10,288/- as compensation with interest at the rate of 7.5% per annum. 8.Not being satisfied with the said award, the claimant has filed the above appeal for adequate compensation and has claimed a sum of Rs.2,00,000/-. 9.The learned counsel for the claimant argued that the claimant had sustained bone fracture injuries on his left leg. A surgical operation was conducted on his left leg. After the accident, he is unable to perform his normal work as mason. As such, he has sustained loss of income as his avocation had been affected. He had spent a sum of Rs.60,788/- as medical expenses. The Tribunal had not granted adequate compensation under the heads of attender charges and loss of income during medical treatment period. 10.Considering the facts and circumstances of the case and arguments advanced by the learned counsel for the claimant and on perusing the impugned award of the Tribunal, this Court is of the considered opinion that the claimant is entitled to receive additional compensation since he had sustained bone fracture injuries on his left leg and also considering that he was engaged as a mason i.e, construction work. Therefore, this Court has assessed the compensation as follows:- Rs.84,000/- towards loss of income due to disability; Rs.61,000/- towards medical expenses; Rs.20,000/- towards pain and suffering; Rs.5,000/- for nutrition; Rs.5,000/- for transport expenses; Rs.5,000/- for attender charges and Rs.10,000/- for loss if income during medical treatment and convalescent period. In total, this Court awards Rs.1,90,000/- as compensation as it is found to be fair and equitable. After deducting initial compensation i.e., a sum of Rs.1,10,288/-, this Court award a sum of Rs.79,712/- which is rounded off to 80,000/- as additional compensation. This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. Therefore, this Court directs the second respondent / Bajaj Allianz General Insurance Company to deposit the above mentioned modified compensation amount with accrued interest thereon, within a period of six weeks from the date of receipt of this order. After such deposit has been made, it is open to the claimant to withdraw the modified compensation https://hcservices.ecourts.gov.in/hcservices/ amount as fixed by this Court lying in the credit of M.C.O.P.No.42 of 2007 on the file of Motor Accident Claims Tribunal, Principal Subordinate Court, Krishnagiri, after filing a Memo along with this order. 11.In the result, this Civil Miscellaneous Appeal is partly allowed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal, Principal Subordinate Court, Krishnagiri, made in M.C.O.P.No.42 of 2007, dated 21.07.2008 is modified. There is no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. r n s To The Principal Subordinate Judge, Motor Accident Claims Tribunal, Krishnagiri. Copy to the section Officer VR Section, High Court, Madras 1 cc to M/s. Arunkumar Rahan, Advocate, Sr. 22246 C.M.A.NO.1471 OF 2009 sai(co) pmk.12.7.2011 https://hcservices.ecourts.gov.in/hcservices/