IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.02.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2149 of 2003 Mallika .. Appellant/Claimant Vs 1.Gowri 2.The Zonal Manager United India Insurance Co., Kumbakonam 3.M.Arokiasamy .. Respondents/Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 25.06.2002, made in M.C.O.P.No.163 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Chidambaram. For appellant : No appearance For respondents : No appearance 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 25.06.2002, made in M.C.O.P.No.163 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Chidambaram, awarding a compensation of Rs.65,000/- with 9% 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, Mallika, has filed the above appeal praying for enhanced compensation and to set aside the award and decree passed by the Tribunal. 3.The short facts of the case are as follows: On 04.06.1996, at 11.00 p.m. the petitioner was travelling as a passenger, along with Vasanthakokilam, Manivasakam and Swaminathan, in an Ambassador Car bearing registration No.TN49 Z5555, from Chidambaram to Karaikudi, on 05.06.1996, at about 03.00 a.m. in the morning when the car was nearing Kandarvakottai on the Pisanatthur branch road, the driver of the said car drove the car at a high speed and in a rash and negligent manner and dashed the car against a Banyan tree situated on the north side of the road. As a result of this impact, the petitioner as well as the other three passengers sustained serious injuries and were immediately admitted in the https://hcservices.ecourts.gov.in/hcservices/ Tanjavur Vinodhagan Hospital and received treatment. The petitioner has incurred medical expenses for her treatment, transport expenses, nutrition expenses and also has sustained permanent disability due to the accident. As such, the petitioner has claimed a compensation of Rs.3,00,000/- from all the three respondents, under Section 166(1) of the Motor Vehicles Act. 1st and 3rd respondents are the owners of the said car and the second respondent is the insurer of the said car. 4.Regarding the said accident, a criminal case has been registered at the Kandarvakottai Police Station in Crime No.252 of 1996, under Sections 279, 336 and 337 of I.P.C. 5.The second respondent, in his Counter, has resisted the claim denying the averments made in the claim regarding the age, income and occupation of the petitioner. The second respondent has also submitted that the said car involved in the accident was not covered by a policy of insurance with them, at the time of accident. It was also submitted that the car had plied on the road without the necessary permit, R.C. and F.C and that the driver of the car also did not have a valid driving licence to drive the car at the time of accident. It was also submitted that the driver of the car had not been negligent. As such, the second respondent has submitted that the claim should be dismissed. 6.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Was the accident caused by the rash and negligent driving of the driver of the car belonging to the first and third respondents? (ii) Is the petitioner entitled to receive compensation? If so, what is the quantum of compensation, which she is entitled to get? 7.The other three passengers in the said car had also filed M.C.O.P's claiming compensation, in M.C.O.P.Nos.161, 162 and 164 of 2002, for injuries sustained by them in the said accident. The Tribunal therefore, considered all four claims and passed a common Judgement. 8.The petitioner was examined as PW3 and the other three petitioners in M.C.O.P.Nos.161, 162 and 164 of 2002, were examined as PW1, PW2 and PW4. The PW1, in her evidence, has stated that on 05.06.1996 in the morning, while she was travelling in the Ambassador Car bearing registration No.TN49 Z5555, belonging to the first and third respondents and when the car was nearing Kandarvakottai on the Pisanatthur branch road, the driver of the said car had driven the car at a high speed and in a rash and negligent manner and dashed the car against a Banyan tree and caused the accident. In support of her evidence, she has marked Ex.P1, the FIR, wherein it is seen that a case has been registered at the Kandarvakottai Police Station, in Crime No.252/1996. It has been reported in Ex.P1, that the driver of the car had driven at a high speed and in a rash and negligent manner https://hcservices.ecourts.gov.in/hcservices/ and dashed against the Banyan tree situated on the north side of the road. From a scrutiny of Ex.P3, the Motor Vehicle Inspector's Report, it is seen that the accident had not occurred due to mechanical defect in the said car. The Rough Sketch of the accident had been marked as Ex.P4. From Exs.P5 and P60, it is seen that the driver of the car had admitted his guilt before the criminal Court and that he had been punished. From a scrutiny of Ex.P6, it is seen that the said car has been covered under a policy of insurance taken with the second respondent. The copy of Registration Certificate of the car has been marked as Ex.P7. No contra evidence has been laid down on the respondents' side to refute the evidence let in on the petitioner's side. So, the Tribunal on considering evidence of the PW1, PW2, PW3 and PW4 and also on scrutiny of Ex.P1, the FIR, held that the accident had been caused only by the rash and negligent driving of the driver of the car belonging to the first and third respondents and the high speed at which he had driven the said car. 9.PW3, in her petitioner, has stated that she was aged about 33 years at the time of accident and that she undertook contract jobs and was also in real estate business and earning a sum of Rs.25,000/- per month. She has produced documentary evidence to back her above claim. But, on cross-examination of PW3, she has accepted that she does not know how to take contract works and that only her husband used to do the above work. The husband of the PW3 was examined as PW4. He had stated that he had been doing the contract works in his wife's name and that PW3 was not in any way involved with the above contract works, except affixing her signature in the relevant forms. As such, the Tribunal held that PW3 had only been a homemaker and hence her evidence regarding her occupation was not considered. Ex.P38 is the Wound Certificate issued to PW3. On scrutiny of Ex.P38, it is seen that the Doctor had stated that the second injury listed in the certificate was a fracture sustained by the PW3 in her left thigh bone. The first injury has been mentioned as a simple injury. In support of her statements that she had taken treatment for the injuries at Vinodhagan Medical Hospital as inpatient,she had marked the discharge summaries issued by the said hospital as Ex.P39 to P41. Exs.P42 and P43 are the medical bills for treatment of her injuries. No oral or documentary evidence was let in by PW3 to prove that the bills are genuine. Ex.P44 is the series of medical bills. On scrutiny of Ex.P44, it is seen that even phone bills have been included. The medical advise slip given by Dr.Joseph, the slip given at Vinodhagan Medical Hospital, the medical slips given by Dr.Sumathi, Dr.Radhakrishnan and Dr.Senthilnathan have been marked as Exs.P45, to P49 respectively. An ECG was taken on the petitioner, immediately after the accident. Dr.Senthilnathan was examined as PW5. The PW5, in his evidence, has stated that the petitioner's leg has not been healed and that she has sustained 40% disability due to the said accident. In support of his evidence, he has marked Ex.P63, the Disability Certificate and Ex.P64, the X'rays. The Doctor had further stated that if the petitioner had taken physiotherapy treatment, she would not have sustained such a high disability. As such, the Tribunal held that the petitioner is entitled to get compensation for the one grievious injury and one simple injury sustained by her in the accident. No documentary evidence was https://hcservices.ecourts.gov.in/hcservices/ furnished by the PW3, to establish her claim towards travel expenses. The Tribunal, however granted an award of Rs.2,000/- to the petitioner under the head of transport expenses; Rs.3,000/- under the head of nutrition; Rs.10,000/- under the head of medical expenses and Rs.50,000/- under the head of disability and future medical expenses. In total, the Tribunal, granted an award of Rs.65,000/- to the petitioner as compensation and directed the second respondent, to deposit the compensation on behalf of the first and third respondents, together with interest at the rate of 9% 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.163 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Chidambaram, within a period of eight weeks from the date of its Order. After such deposit was made, the award 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. The Advocate fees was fixed at Rs.2,500/-. The second respondent was directed to pay the cost of Rs.3,097.50 to the petitioner, on behalf of the first and third respondents. 10.The learned counsel appearing for the appellant has contended in his appeal that the Tribunal failed to assess the earning capacity of the appellant and the loss of income in the light of the clear and unimpeachable evidence that the appellant was earning a sum of Rs.25,000/- per month as income through her contract and real estate business. It was contended that the Tribunal failed to consider the permanent disability of 40% caused to the appellant and assess the award as per law. It was also contended that the Tribunal had erred in holding that the appellant's husband was indirectly doing the business in her name and that the appellant was a housewife. It was also pointed out that the Tribunal committed a grave error in not noticing the seriousness of the injuries sustained by the appellant and coming to a conclusion that disability would not have occurred had proper physiotherapy been taken. 11.As such, the learned counsel appearing for the appellant has prayed for enhanced compensation and to set aside the award and decree passed by the Tribunal. 12.Considering the facts and circumstances of the case, this Court is of the view that the compensation awarded by the Tribunal, is on the lower side, considering the nature of injuries, mode of treatment and period of hospitalisation. The Doctor, who had assessed the disability of the claimant had certified that the claimant had sustained 40% disability due to the accident. The Tribunal had granted a sum of Rs.50,000/- as compensation under the head of disability and for future medical expenses for surgery. This Court enhances the compensation granted under the head of disability to Rs.80,000/-. The Tribunal had awarded a sum of Rs.2,000/- for transport. This Court enhances the award granted under the head of transport expenses to Rs.5,000/-. The Tribunal had awarded a sum of Rs.3,000/- under the head of nutrition. This Court enhances the https://hcservices.ecourts.gov.in/hcservices/ compensation awarded under the head of nutrition to Rs.5,000/-. The Tribunal had awarded a sum of Rs.10,000/- towards medical expenses and this Court confirms the award granted under the said head as it is found to be in order. This Court further grants an award of Rs.5,000/- as compensation to the claimant under the head of pain and suffering. In total, this Court grants an enhanced award of Rs.1,05,000/- as compensation to the claimant. The additional amount of Rs.40,000/- granted by this Court as compensation will carry an interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, into the credit of the M.C.O.P.No.163 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Chidambaram, as it is found to be fair and equitable, in the circumstances of the case. 13.Therefore, this Court directs the second respondent/United India Insurance Company, Kumbakonam, to deposit the additional compensation amount of Rs.40,000/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of additional award amount, into the credit of the M.C.O.P.No.163 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Chidambaram, within a period of four weeks from the date of receipt of a copy of this Order. 14.As the accident happened in the year 1996, it is open to the claimant to withdraw the entire additional compensation amount with accrued interest thereon, lying in the credit of the M.C.O.P.No.163 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Chidambaram, after filing necessary payment out application, in accordance with law. 15.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 25.06.2002, in M.C.O.P.No.163 of 2002, passed by the Motor Accident Claims Tribunal, Additional District Court, Chidambaram, is modified. Consequently, connected miscellaneous petition is closed. There is no order as to costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar krk To 1.The Additional District Court, Motor Accident Claims Tribunal, Chidambaram. https://hcservices.ecourts.gov.in/hcservices/ 2. The Section Officer, VR Section, High Court, Madras. 1 cc to Mr.S.Kumara Devan, Advocate, Sr.No.11779 1 cc to Mr.V.N.Mohanraj, Advocate, Sr.No.11715 Order in C.M.A.No.2149 of 2003 PKB {CO} TP/19.3.2010. https://hcservices.ecourts.gov.in/hcservices/