IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.04.2010 Coram: THE HONOURABLE MR. JUSTICE C.S.KARNAN C.M.A. No. 3948 of 2004 S.Parthiban (Minor) Rep. By mother and next friend S.Susila .. Appellant/Petitioner vs. 1.M/S.Western Agencies I floor, Utility Complex 109, Angappa Naicken Street Chennai-1. 2.The New India Assurance Company Ltd., third party cell Regina complex, I floor 46, Moore street, Chennai-1. .. Respondents/Respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, against the Judgment and decree dated 11.03.2003 made in M.C.O.P. No.1289 of 1999, on the file of the Motor Accident Claims Tribunal, Additional District & Sessions Court, (Fast Track Court No.II), on transfer from Small Causes Court No.IV, Chennai. For Appellant : Mr. N.M.C. Babu For Respondents : Mr. N. Manoharan for R1 Mr. R. Sivakumar for R2 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/claimant, against the award and decree passed in M.C.O.P. No. 1289 of 1999, dated 11.03.2003, by the Motor Accident Claims Tribunal, Additional District & Sessions Court, (Fast Track Court No.II), on transfer from Small Causes Court No. IV, Chennai, for awarding a compensation a sum of Rs.34,600/- together with the interest at the rate of 9% per annum, from the date of filing the claim petition till the date of payment of compensation. 2. Having not been satisfied with the award and decree dated 11.03.2003, in M.C.O.P. No. 1289 of 1999, passed by the Motor https://hcservices.ecourts.gov.in/hcservices/ Accident Claims Tribunal, Small Causes Court No.IV, Chennai, the appellant/claimant preferred this appeal for enhancement of compensation. 3. The short facts of the case are as follows: On 03.12.1998, at about 8.30 p.m. the petitioner was walking with his mother at the left end of Annai Sivagami Nagar, when the tipper lorry bearing Registration No.TN04/5356 coming behind the petitioner in a rash and negligent manner dashed against the petitioner causing him grievous injuries and hence, this petition. 4. The counter statement filed by the second respondent Insurance company opposed the claim petition as follows: "1.This respondent denies all the allegations contained in the claim petition save those that are specifically admitted herein and puts the petitioner to strict proof of the allegations which are not admitted herein by producing documentary evidence. 2.This respondent denies the age of the petitioner and the petitioner is called upon to prove the same by producing documentary evidence. 3.The manner of the accident as alleged by the petitioner in para-23 of the claim petition is denied as false. It has been falsely alleged by the petitioner that the driver of the tipper lorry had driven the lorry in a rash and negligent manner and hit the petitioner and caused grievous injury to the petitioner. It is submitted that the petitioner along with two others were walking on the middle of the road without observing any vehicles passing and they were interesting in talking. Even, they had not heard the horn given by the driver. The driver of the vehicle on seeing the petitioner and two others walking on the middle of the road without hearing the horn given by him, without any alternative the driver of the vehicle applied the brake and stopped at the spot, and in that process the petitioner and two others themselves came and hit the lorry and they fell down having simple injuries. Hence, there may not be any negligence on the part of the driver and he was driving the vehicle as per rules and regulations. On the other hand, it is the fault of the petitioner and others walking on the middle of the road. In any event there is contributory negligence on the part of the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 4.The respondent called upon the petitioner to prove that the petitioner had sustained the alleged injuries out of the accident. Out of the said accident the petitioner had sustained very simple injuries and no disability, would have arisen as alleged. The injuries and disabilities are exaggerated in the claim petition for the purpose of making a huge claim. The driver of the said vehicle who drove at the time of accident has no valid licence since he had only licence to drive light motor vehicles and hence, the policy does not cover the driver who drove the vehicle without any valid licence and hence, the insured only is liable to pay compensation if any awarded by this Hon'ble Court. 5.The quantum of compensation claimed by the petitioner under various heads in para-21 of the claim petition is excessive, huge, illusory, and fanciful to which the petitioner is not entitled. The alleged medical expenses and other expenses or losses are to be proved by the petitioner by producing documentary evidence. 6.This respondent craves leave from this Court to contest the matter on all grounds available to them under the insurance policy taken by the first respondent and Motor Vehicles Act. Also craves leave of this Court to file additional counter statement at later stage on the availability of future investigation records. 7.If at all any compensation is awarded the same would be payable by the first respondent since the driver of the vehicle had no valid licence to drive the lorry at the time of accident. 8.Therefore, this respondent prays this Court to dismiss the petition with costs." 5. After considering the contents of the claim petition and the counter statement filed by the second respondent, the learned Tribunal had framed two issues namely; "(1)Whether the accident had happened due to the rash and negligent driving of the driver of the vehicle? (2)Whether the claimant is entitled to get compensation? If so, what is the quantum of compensation?" https://hcservices.ecourts.gov.in/hcservices/ 6. P.W.2, the mother had adduced her evidence stating that she and her child were walking on the road, when the respondent vehicle dashed against her. As a result, the child sustained grievous injuries. Immediately, the child was admitted at Sugam Hospital, Chennai, as inpatient from 03.12.1998 to 05.12.1998. The said accident was registered by the Traffic Investigation Wing, Ennore Police Station, in Crime No. 580 of 1998 against the driver of the vehicle. On the side of the claimant, Ex.P5-the discharge summary, Ex.P7-x-ray, Ex.P8-medical bill series and Ex.P9-Doctor's prescription, were marked. Supporting the nature of the injury, the P.W.4 Doctor had adduced his evidence stating that he examined the injured person and filed the medical records. Further, he stated that the child sustained 25% disability in the said accident and still the child is having headache and nerves problem. Further, the doctor had adduced his evidence that the nervous system of the child is also affected, due to the injuries sustained by him. After considering the evidence of P.W.2-the mother and P.W.4-the doctor, the Tribunal had awarded the compensation as follows: Rs.25,000/- for 25% permanent disability assessed by the P.W.4-the doctor, Rs.1,000/- for nutrition, Rs.3,600/- for medical expenses, Rs.1,000/- for transport, Rs.4,000/- for pain and suffering, In total, the Tribunal had awarded a compensation of Rs.34,600/-. 7. Having not been satisfied with the award and decree dated 11.03.2003, made in M.C.O.P. No. 1289 of 1999, passed by the Motor Accident Claims Tribunal, Small Causes Court No.IV, Chennai, the claimant has filed the above appeal for getting additional compensation. 8. Heard both the learned counsel for the appellant and the respondents. 9. Accordingly, this Court enhances the compensation as follows: Considering the age of the claimant, this Court enhances Rs.50,000/-, Rs.3,000/- for transport, Rs.3,600/- for medical expenses which confirms the same as Tribunal awarded, Rs.3,000/- for nutrition, Rs.10,000/- for pain and suffering. In total, this Court awarded Rs.69,600/- as compensation to the claimant. The Tribunal had awarded already Rs.34,600/- after deducting the compensation awarded by the Tribunal from the enhanced amount awarded by this Court, Rs.35,000/- as additional compensation to the claimant, which is fair and equitable, by considering the nature of the injuries and the age of the claimant. Therefore, this Court hereby directs the second respondent insurance company to deposit the additional amount of Rs.35,000/- together with interest at the rate of 7.5% from the date of filing the claim petition till the date of payment of compensation into the credit of M.C.O.P. No. 1289 of 1999, dated 11.03.2003, by the Motor Accident Claims Tribunal, Additional District & Sessions Court, (Fast Track Court No.II), on transfer from Small Causes Court No. IV, Chennai, within a period of four weeks from the date of https://hcservices.ecourts.gov.in/hcservices/ receipt of a copy of this order. After such deposit is made into the credit of the said Court, in turn, the said amount to be deposited in any one of the nationalised banks till the claimant becomes major. After such deposit is made, it is open to the mother of the claimant, to withdraw the entire interest once in six months from the bank directly. 10. In the result, the above Civil Miscellaneous Appeal is partly allowed and consequently, the award and decree passed by the M.C.O.P. No. 1289 of 1999, dated 11.03.2003, by the Motor Accident Claims Tribunal, Additional District & Sessions Court, (Fast Track Court No.II), on transfer from Small Causes Court No. IV, Chennai, is modified. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar kj To 1. The Additional District & Sessions Judge, Motor Accident Claims Tribunal Fast Track Court No.II, Chennai. 2.The IV Judge, Small Causes Court,Chennai. 1 cc to Mr.R.Sivakumar, Advocate, Sr.No.29416 1 cc to Mr.N.M.C.Babu, Advocate, Sr.No.29523 C.M.A. No. 3948 of 2004 BKY {CO} TP/16.6.2010. https://hcservices.ecourts.gov.in/hcservices/