IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.9.2008 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR C.M.A.No.3051 of 2008 and M.P.No.1 of 2008 M/s. Oriental Insurance Co. Ltd., Coimbatore. ... Appellant/2nd Respondent vs. 1.Thiru Thirumappa Gowder, 2.Thiru Govindarajalu. ... Respondents/Petitioner and 1st respondent Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 23.1.2008 passed in M.C.O.P.No.908 of 2004 on the file of the Motor Accidents Claims Tribunal (Additional District Judge, Fast Track Court No.IV), Tiruppur, Coimbatore. For appellant : Mr.J.Chandran JUDGMENT The Oriental Insurance Company is on appeal challenging the award dated 23.1.2008 passed in M.C.O.P.No.908 of 2004 on the file of the Motor Accidents Claims Tribunal (Additional District Judge, Fast Track Court No.IV), Tiruppur, Coimbatore. 2. The primary contention of the appellant's counsel in this appeal is on the quantum of compensation and a plea was taken with regard to negligence on the part of the injured claimant also. 3. It is a case of injury. The brief facts of the case are as follows:- The accident in this case happened on 30.12.2002 at 9.30 hours on the Kovai to Mettupalayam Road. The injured claimant Thirumappa Gowder, aged 73 years, an agriculturist, was walking on the road, when he was hit by a motorcycle driven in a rash and negligent manner. In that accident the said Thirumappa Gowder suffered fracture of the right knee, right leg and injuries all over https://hcservices.ecourts.gov.in/hcservices/ the body. He was taken to Ganga Hospital, Coimbatore and was treated as inpatient. He filed a claim in a sum of Rs.5 lakhs as compensation against the owner and the insurer of the vehicle. 4. In support of the claim, the injured claimant was examined as P.W.1. Doctor Senthilkumar was examined as P.W.2. Exs.A-1 to A- 7 were filed, the details of which are as follows:- Ex.A-1 is the copy of printed FIR in Cr.No.1/2003 in Karamadai Police station dated 1.1.2003, Ex.A-2 is the Motor Vehicle Inspector's Inspection Report, Ex.A-3 is the wound certificate, Ex.A-4 is the discharge summary, Ex.A-5 is the medical bills, Ex.A-6 is the disability certificate and Ex.A-7 is the X-Ray taken for the claimant/petitioner No oral or documentary evidence was let in on behalf of the appellant insurance company, 2nd respondent before the Tribunal. 5. Though a plea with regard to negligent was taken by the appellant insurance company, in the absence of any oral or documentary evidence to support the plea of negligence on the part of the injured claimant, the finding of the Tribunal based on oral and documentary evidence adduced on behalf of the claimant is accepted and accordingly such plea is rejected. 6. As far as compensation is concerned, the same was decided by the Tribunal in paragraph 6 of the award in answer to point No.2. Ex.A-3, the wound certificate and Ex.A-4 discharge summary show the nature of injuries and the treatment given to the injured claimant at Ganga Hospital, Coimbatore as inpatient from 30.12.2002 to 4.1.2003. The Tribunal discussed the nature of injury and fracture sustained by the claimant. The evidence of doctor P.W.2, an orthopedic surgeon working in Coimbatore Medical College was recorded. He has given Ex.A-6 disability certificate stating that the disability suffered by the injured claimant is 40%. The Tribunal in the absence of any material stated that the injured claimant is a non-earning person. However, for the disability assessed at 40%, for the pain and suffering undergone and the treatment given to the injured claimant and considering other factors, the Tribunal granted the following amounts as compensation with interest at 7.5% per annum:- Sl. No. Head Amount granted by the Tribunal 1 Disability assessed at 40% Rs.40,000/- 2 Pain and suffering Rs.15,000/- 3 Transport to hospital expenses Rs. 1,500/- https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Head Amount granted by the Tribunal 4 Extra nourishment Rs. 2,000/- 5 Medical expenses as per Ex.A-5 series Rs.19,520/- Total Rs.78,020/- 7. The plea that is taken by the counsel for the appellant is that the quantum of compensation is on the higher side. This court is not inclined to interfere with the award of the Tribunal by way of reduction for the following reasons:- (i) The accident was happened on 30.12.2002. For the disability assessed at 40%, a sum of Rs.40,000/- has been granted, which is justified. (ii) For pain and suffering undergone by the 73 year old man, a sum of Rs.15,000/- has been granted, which is justified as the X-Ray revealed that he suffered depressed lateral tibial condyle fracture on his right side, for which screw fixation was done in the surgical procedure done on 31.12.2002. (iii) No amount has been granted for attender charges and a meagre amount has been granted for extra nourishment and transport expenses 8. Considering the above, the quantum of compensation awarded by the Tribunal is justified as well as the interest granted at 7.5% as the accident happened in the year 2002 and the award was passed in January, 2008. 9. Finding no merit, this Civil Miscellaneous Appeal is dismissed at the admission stage. Counsel for the appellant seeks eight weeks time to deposit the award amount and is granted and on such deposit, the claimant is entitled to withdraw the same. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.Additional District Judge, Fast Track Court No.IV, The Motor Accidents Claims Tribunal Coimbatore at Tiruppur. 1 CC To Mr.J.Chandran, Advocate, SR NO.56104 C.M.A.No.3051 of 2008 sj(co) pmk/5.11.2008. https://hcservices.ecourts.gov.in/hcservices/