IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.03.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.1633 of 2008 Palaniammal .. Appellant/Petitioner Vs 1.Gopalakrishnan 2.National Insurance Co., Ltd., Salem-7 .. Respondents/Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 21.04.2007, made in M.C.O.P.No.776 of 2004, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Salem. For appellant : Mr.K.Kuppusamy For respondents : Mr.S.Arunkumar for R2 No appearance for R1 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/petitioner against the Award and Decree, dated 21.04.2007, made in M.C.O.P.No.776 of 2004, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Salem, awarding a compensation of Rs.36,250/- with 7.5% interest per annum, from the date of filing petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/petitioner has filed the above appeal praying for enhanced compensation of Rs.1,00,000/-. 3.The short facts of the case are as follows: On 09.07.2004, at 07.00 p.m. when the petitioner was standing at the road side bus stop near Uma Theatre, on the Junction to 5 roads crossing, the first respondent's motorcycle bearing registration No.TN27 H3791, coming from 5 roads towards the Junction and driven in a rash and negligent manner by its rider, hit the petitioner. Due to the impact, the petitioner sustained severe fractures all over the body and was immediately admitted at the Salem Shanmuga Hospital, wherein she was given first aid and then shifted to Salem Government Hospital for further treatment. Due to the injuries incurred by her in the accident, she has sustained permanent disability. https://hcservices.ecourts.gov.in/hcservices/ 4.Hence, the first respondent, as the owner of the said motorcycle and the second respondent, its insurer are jointly and severally liable to pay compensation to the petitioner. The petitioner has claimed a compensation of Rs.3,00,000/- from the respondents under Section 166 of the Motor Vehicles Act. 5.Regarding the said accident, a criminal case has been registered by the Traffic Investigation Wing as against the rider of the motorcycle in Crime No.360/2004. 6.The first respondent remained absent and was set exparte by the Tribunal. 7.The second respondent, in its Counter, has resisted the claim denying the averments in the claim regarding the age, income, occupation of the petitioner, nature of injuries sustained by her, mode of treatment, medical expenses and disability of the petitioner. It has been submitted that the petitioner has to prove her claim through documentary evidence and through witnesses. It has also been submitted that the rider of the first respondent's motorcycle had not ridden his bike in a rash and negligent manner as alleged in the claim. It has been submitted that the accident had occurred only because of the petitioner's negligence in crossing the road suddenly. As such, the second respondent had submitted that he is not liable to pay any compensation to the petitioner. It has also been submitted that as the claim is excessive and has been claimed without any basis, it has to be dismissed. 8.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Was the accident caused due to the rash and negligent manner of riding by the first respondent? (ii) Is the petitioner entitled to get compensation? If so, what is the quantum of compensation, which she is entitled to get and who is liable to pay her the compensation? 9.On the petitioner's side, two witnesses were examined as PW1 and PW2 and four documents were marked as Exs.P1 to P4. On the second respondent's side, no witness was examined and no documents were marked. 10.The injured petitioner was examined as PW1 before the Tribunal. The PW1, in her evidence, deposed that two years ago, when she was standing at the bus stand near Uma Theatre, the first respondent had ridden his motorcycle bearing registration No.TN27 H3791, at a high speed and in a rash and negligent manner and hit against her thereby causing the accident. In support of her evidence, she had marked Ex.P1, the FIR. On scrutiny of the FIR, it https://hcservices.ecourts.gov.in/hcservices/ is seen that the complaint has been registered as against the first respondent, the rider of the said motorcycle. But, the first respondent has not given any evidence before the Tribunal to refute the allegations of the petitioner and establish that he is not guilty. Hence, the Tribunal held that the accident had been caused due to the fault of the first respondent. 11.As the second respondent has not examined any witness or produced documentary proof to establish that the first respondent's vehicle had not been insured with them at the time of accident, the Tribunal held that the first respondent's vehicle had been insured with the second respondent, at the time of accident and accordingly held that both the first and second respondents are liable to pay compensation to the petitioner. 12.Though the PW1 had deposed in her evidence that her age was 60 years at the time of accident, the Tribunal on scrutiny of the Ex.P2, the Discharge Summary, wherein it has been stated that the age of the petitioner was 70 years, held that the age of the petitioner was 70 years at the time of accident. 13.Though the PW1 has stated that she was employed as a helper at the time of accident and was earning a sum of Rs.3,000/- per month, no documentary evidence had been marked to establish and prove this claim. As such, the Tribunal, on considering the age of the petitioner fixed the notional income of the petitioner as Rs.15,000/- per year. 14.The PW1, in her evidence,had deposed that due to the injuries sustained by her in the accident she has not been able to work as she used to do before the accident and that she had sustained permanent disability. In support of this, she had marked Ex.P2, the Discharge Summary. 15.Dr.Sridhar, a Professor in the Orthopaedic Department of Kanyakumari Medical College Hospital, who had assessed the disability of the petitioner was examined as PW2. The PW2, in his evidence, deposed that he had carried out a medical examination on the petitioner on 12.03.2007. He had stated that a surgery had been done on the injured petitioner to set right the fracture sustained by the petitioner on her right thigh bone, which had been broken into pieces in the accident on 09.07.2004 and that during surgery, a steel plate and screw had been fixed in the fractured area by the Doctors at Salem Government Hospital. He had further stated that even after the said medical treatment, the petitioner experiences pain in the fractured area and that puss is frequently oozing out from the said fractured bone, which had become thick and curved. He had further stated that the flesh in her right thigh had reduced thickness and that the length of her right thigh had been reduced by 2.5 cms. and that due to this the petitioner walks with a limp and also has difficulty in siting, squatting, standing and walking for long periods and that she also has difficulty in performing her day to day https://hcservices.ecourts.gov.in/hcservices/ work. He had stated that the movements of the petitioner's right knee had been reduced by 50 Degrees and as such the PW2 has certified that the petitioner has sustained a permanent disability of 50% on this count and in support of his evidence, he has marked Ex.P3, the Disability Certificate and Ex.P4, the X'rays. He had further stated that Rs.20,000/- may be required for surgical removal of the steel plate and screw fixed in the petitioner's leg. During cross- examination, the PW2 has stated that even though proper treatment has been given to the petitioner, the prospects of puss formation in the petitioner's leg is possible as the affected portion in the accident is the petitioner's flesh in her right thigh. 16.The Tribunal on considering the evidence of the PW2 held that the permanent disability sustained by the petitioner was 35%. the Tribunal, therefore, on adopting a multiplier of 5 as was applicable to the petitioners age ie.70 years at the time of accident, as per Schedule II of Section 163A of the Motor Vehicles Act, assessed her total future income as Rs.15,000 X 5 = Rs.75,000/-. On considering the disability of the petitioner as 35%, the Tribunal assessed the loss of income of the petitioner due to her disability as 35/100 X Rs.75,000/- = Rs.26,250/- and accordingly awarded her a compensation of Rs.26,250/- under the head of permanent disability. The Tribunal further awarded a compensation of Rs.6,000/- under the head of pain and suffering; Rs.2,000/- under the head of nutrition; Rs.1,000/- under the head of transport expenses and Rs.1,000/- under the head of damages to clothes. In total, the Tribunal awarded a compensation of Rs.36,250/- to the petitioner and directed the first and second respondents to jointly and severally deposit the award together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.776 of 2004, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Salem, with costs, within a period of two months from the date of its Order. Further, after such deposit was made, the award with accrued interest was to be deposited in a nationalised bank, as fixed deposit, for a period of three years and the petitioner was permitted to receive interest on such deposit, once in three months, directly from the bank. The petitioner was directed to pay the Court fee due on the award amount within a period of ten days from the date of its Order. The Advocate fees was fixed at Rs.1,815/- and the respondents were directed to pay the cost of Rs.2,256/- to the petitioner. 17.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal has grossly erred in fixing the income of the appellant at Rs.15,000/- per anum as there was no income proof, when the apex Court had held that the notional income of a coolie could also be taken as Rs.3,000/- per month even though no income proof was produced. It has also been contended that the Tribunal ought not to have reduced the percentage of disability and should have maintained the percentage of disability at 50% as assessed by the expert witness (PW2). https://hcservices.ecourts.gov.in/hcservices/ 18.The Tribunal has grossly erred in not considering the nature of injuries sustained by the appellant, which is grievous in nature and she had suffered multiple fractures and is limping due to shortening of her leg. It has also been contended that the Tribunal had not considered the fact that the appellant has to undergo another surgery to remove the implants, which entails future medical expenses and also that the Tribunal had erred in granting Rs.26,250/- for 50% permanent disability sustained by the appellant. It has also been pointed out that the Tribunal had erred in granting only Rs.6,000/- for pain and suffering, when the appellant had sustained multiple fracture and implants have been fixed and with shortening of her thigh by 2.5 cms. in length. It has also been contended that the Tribunal ought to have awarded compensation for loss of income to the appellant during the period of treatment undergone by the appellant. As such, it has been prayed that the award of the Tribunal should be enhanced from Rs.36,250/- to Rs.1,00,000/-. 19.The learned counsel appearing for the second respondent argued that the claimant was aged about 70 years at the time of accident and she underwent treatment at the Government Hospital. Further, no documentary proof was advanced to prove that she was earning any income. As such, the Tribunal had awarded a sum of Rs.36,250/- after a detailed consideration of the documentary evidence advanced and had then arrived at the above quantum of compensation. As such, it is found to be fair and equitable. 20.Considering the facts and circumstances of the case and scrutiny of the findings of the Tribunal and after hearing the arguments advanced by the learned counsels on either sides and considering the nature of injuries of the claimant, the Court is of the view that the quantum of compensation granted by the Tribunal is on the lower side. Hence, the Court decides to enhance the compensation to the claimant as follows: 1.For permanent disability, the Tribunal awarded a sum of Rs.26,250/- and consequent loss of earning assuming that only 35% disability had been sustained by her. However, this Court on considering that the Doctor, PW2, had issued the Disability Certificate, wherein he had certified that the petitioner had sustained 50% disability, awards a compensation of 50/100 X Rs.15,000/- X 5 = Rs.37,500/-. 2.For pain and suffering, the Tribunal awarded a sum of Rs.6,000/-. This Court enhances the compensation awarded under this head to Rs.10,000/-. https://hcservices.ecourts.gov.in/hcservices/ 3.For nutrition, the Tribunal awarded a sum of Rs.3,000/-. This Court enhances the award under this head to Rs.5,000/-. 4.For transport expenses, the Tribunal awarded a sum of Rs.1,000/-. This Court enhances the award granted under this head to Rs.3,000/-. 5.For damage to clothes, the Tribunal awarded a sum of Rs.1,000/-. This Court confirms the award granted under this head. 6.As per Doctor's evidence and claimant's evidence, the plate and screw fixed surgically inside the claimant's right leg had to be removed by performing another surgery and that the cost of such surgery would be Rs.20,000/-. This Court, on accepting this claim of the claimant and also considering that the claimant's right thigh had been shortened by 2.5 cms, awards a compensation of Rs.20,000/- under the head of future medical expenses. 7.This Court, considering that the claimant has discomfort in doing her day to day work namely difficulty in sitting, squatting, walking awards a compensation of Rs.5,000/- under the head of loss of pleasures of life. In total, this Court awards a compensation of Rs.81,500/- to the claimant. 21.Already, the Tribunal had awarded a sum of Rs.36,250/- to the claimant. Now, this Court awards an additional compensation of Rs.45,250/- to the claimant, together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation. This Court, therefore directs the second respondent/National Insurance Co., to deposit the above said additional compensation amount of a sum of Rs.45,250/- with accrued interest thereon, as observed above, into the credit of the M.C.O.P.No.776 of 2004, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Salem, within a period of four weeks from the date of receipt of this Order. 22.As the accident happened in the year 2004, it is open to the claimant to withdraw the additional compensation amount with accrued interest, after such deposit has been made, from the credit of the M.C.O.P.No.776 of 2004, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Salem, after filing necessary payment out application, in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ 23.As such, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 21.04.2007, in M.C.O.P.No.776 of 2004, passed by the Motor Accident Claims Tribunal, Principal Sub Court, Salem, is modified. There shall be no order as to costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar krk To 1.The Motor Vehicles Accident Claims Tribunal, Principal Sub Judge, Salem. 2. The Section Officer, VR Section, High Court, Madras. + 1 CC to Mr.S.Arunkumar,Advocate,SR.16887 + 1 CC to Mr.K.Kuppusamy,Advocate,SR.16790 C.M.A.No.1633 of 2008 RSY(CO) EM/4.6.10 https://hcservices.ecourts.gov.in/hcservices/