IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.06.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.97 of 2002 S.Ramadoss ... Appellant/Petitioner Vs. 1) G.Nagarajan (remained exparte in the lower court) 2) M/s.United India Ins. Co. Ltd., C/o Motor Third Party Claims Offices No.38, Annasalai, Chennai - 2 ... Respondents/Respondents This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 as against the Judgment and award of the Motor Accidents Claims Tribunal (II Judge, Small Causes Court), Chennai passed in M.C.O.P.No.2501/1998 dated 11.07.2000. For Appellant : Mr.T.G.Balachandran For Respondent No.2 : Mr.R.Ravichandran J U D G M E N T The claimant before the Motor Accidents Claims Tribunal (II Judge, Small Causes Court), Chennai in M.C.O.P.No.2501/1998 has filed this appeal against the award of the Tribunal dated 11.07.2000 made in the said MCOP dismissing the claim of the appellant/petitioner in its entirety. 2. The appellant herein filed M.C.O.P.No.2501/1998 on the file of the Motor Accidents Claims Tribunal (II Judge, Small Causes Court), Chennai claiming a sum of Rs.1,58,000/- as compensation for the injuries sustained by him in a road accident that allegedly took place on 27.04.1998 at about 8.10 a.m. in Kodambakkam Road, Chennai - 33. 3. Petition allegations are as follows:- " On 27.04.1998, the petitioner was proceeding in his bicycle towards corporation school in Kodambakkam Road, Chennai - 33. While he was entering the Kodambakkam Road, a motorcycle bearing Regn. No.TCF 1685 belonging to the first respondent came there, driven by its rider rashly and negligently, and hit the appellant/petitioner from behind causing the following injuries:- 1) Fracture on both bones of the left leg; 2) Fracture of left thumb; 3) Injuries on the face https://hcservices.ecourts.gov.in/hcservices/ and 4) Multiple abrasions. For the above said injuries, the appellant/ petitioner got treatment as an in-patient in Government Royapettah Hospital till the date of filing of the petition. The accident was the result of the rash and negligent driving of the motorcycle belonging to the first respondent bearing Regn. No.TCF 1685 by its rider. The said motorcycle stood insured with the second respondent insurance company at the relevant point of time. Therefore, the first and second respondents are jointly and severally liable to pay compensation to the petitioner. Though, the appellant/petitioner assessed the damages to which he is entitled at Rs.1,58,000/-, he restricts his claim to Rs.1,20,000/-." 4. Based on the above said pleadings, the appellant/ petitioner had prayed that an award should be passed directing the respondents 1 and 2 herein to jointly and severally pay the above said sum of Rs.1,20,000/- together with interest for the said amount from the date of petition till realisation and costs. 5. The owner of the offending vehicle, namely the first respondent herein, did not resist the claim and remained ex-parte. The second respondent insurance company alone contested the case by filing a counter statement denying the petition averments regarding the manner in which the accident took place, the alleged negligence on the part of the rider of the motorcycle, the injuries sustained by the appellant/petitioner and the reasonableness of the amount claimed as compensation. 6. The Tribunal conducted enquiry in which two witnesses were examined as P.W.1 and P.W.2 and eight documents were marked as Ex.P1 to Ex.P8 on the side of the appellant/petitioner. No witness was examined and no document was marked on the side of the respondents. After hearing the arguments and upon considering the evidence in the light of the arguments advanced on either side, the Tribunal came to the conclusion that the appellant/petitioner had not proved his case that the accident took place due to the rash and negligence on the part of the rider of the motorcycle belonging to the first respondent and in the light of the said finding, the Tribunal dismissed the petition in its entirety. 7. Aggrieved by and challenging the said award of the Tribunal dismissing the claim made by the appellant herein/petitioner in its entirety, the present appeal has been brought-forth on various grounds set out in the Memorandum of appeal. The point that arise for consideration in this appeal is:- " Whether the appellant/petitioner is entitled to claim compensation from the respondents 1 and 2? If so, what is the amount to which the appellant/petitioner shall be entitled as reasonable compensation? " 8. This court heard the submissions made by Mr.T.G.Balachandran, learned counsel appearing on behalf of the appellant and Mr.R.Ravichandran, learned counsel appearing for the 2nd Respondent. The materials available on records were also perused. https://hcservices.ecourts.gov.in/hcservices/ 9. It is the specific case of the appellant herein/petitioner that on 27.04.1998 at about 8.10 a.m. he was proceeding in his bicycle towards Kodambakkam Road via Mettupalayam Karunanidhi Street; that when he took a left turn to enter Kodambakkam Road, the motorcycle belonging to the first respondent bearing Regn. No.TCF 1685 which came there from northern side, hit the bicycle in which the appellant herein/petitioner was proceeding, as a result of which the appellant herein/petitioner sustained injuries and that the rash and negligent driving of the said motorcycle by its rider was the cause of the accident. However, in the claim petition, the registration number of the motorcycle was wrongly furnished as TN-01 N-3111 instead of the correct Registration No.TCF 1685. Admittedly, after the accident, the police registered a case in Crime No.248/S3/98 on the file of J.3 Guindy Police Station (Traffic Investigation) against the rider of the motorcycle bearing Regn. No.TCF 1685. A copy of the First Information Report has been marked as Ex.P5. From the said document, it is obvious that after the petitioner was admitted in the hospital, police were given intimation through the brother of the appellant herein/petitioner and the statement of the appellant herein/petitioner was received by the police in the hospital itself. Though the correct registration number of the motorcycle had been given in the FIR, while preparing the claim petition a mistake was committed in writing the registration number of the offending vehicle and it was written as TN- 01 N-3111 instead of TCF 1685. It should also be noticed that the second respondent who alone contested the case before the Tribunal did not raise any defence based on the fact that the registration number of the motorcycle found in the petition differed from the same found in the FIR. Nothing has been elicited from the witnesses examined on the side of the petitioner in cross-examination regarding the above said discrepancy. 10. However, the Tribunal itself, without there being any contention from the respondents, found out the discrepancy regarding the registration number of the vehicle and on that basis alone, without even affording an opportunity to the appellant herein/petitioner to explain how such discrepancy happened to arise chose to hold that the appellant herein/petitioner had not proved the accident in question and dismiss the claim application in its entirety. In this appeal, the appellant herein/ petitioner came forward with a petition to amend the registration number of the offending vehicle. The said petition was allowed and the MCOP was amended stating the correct registration number of the offending vehicle (motorcycle) as TCF 1685. It shall be appropriate to mention that the contesting respondent does not deny that the accident was caused by the motorcycle bearing registration No.TCF 1685; that the said motorcycle was owned by the first respondent; that the said vehicle stood insured with the second respondent at the relevant point of time and that it was by mistake the registration number of the vehicle was wrongly noted in the original petition filed before the Tribunal. In view of the same, the finding of the Tribunal that the appellant herein/ petitioner has not proved his case that he met with an accident on 27.04.1998 at about 8.10 a.m. as he was hit by the motorcycle belonging to the first respondent was not proved, has got to be interfered with and reversed. Accordingly, this court holds https://hcservices.ecourts.gov.in/hcservices/ that the appellant herein/ petitioner has proved that he met with an accident on 27.04.1998 as he was hit by the motorcycle belonging to first respondent and bearing registration No.TCF 1685 while he was proceeding in his bicycle; that the said motorcycle stood insured with the second respondent as on the date of the accident and that hence the respondents 1 and 2 are jointly and severally liable to pay compensation to the appellant herein/petitioner. 11. Ex.P1 is the case sheet showing the nature of treatment given to the appellant herein/petitioner at Government Royapettah Hospital, Chennai. From the evidence of P.W.1 (the appellant herein/petitioner) and Ex.P1 - Discharge summary, it is obvious that the petitioner had sustained fracture on both bones of left leg for which he took treatment as an in-patient in Government Royapettah Hospital from 27.04.1998 to 03.05.1998. Thereafter, the petitioner had taken treatment for the fracture at Bone Setting Hospital, Puthur, Andhra Pradesh as evidenced by Ex.P2, Ex.P3 and Ex.P4. Despite such a treatment, the appellant herein/petitioner has sustained permanent disability, which has been assessed at 40% by P.W.2 (registered Medical Officer and Ortho Specialist). Though, P.W.2 might have assessed the permanent disability at 40%, he himself, in his evidence, admitted that there may be a difference of 5% in the assessment made by him. In the absence of any other evidence to the contrary, we have to rely on the certificate issued by P.W.2 clarified by the above said admission made by P.W.2 in his evidence. Under such circumstances, this court holds that the injuries sustained by the petitioner in the accident have resulted in 35% permanent disability. 12. According to the appellant herein/petitioner, he was employed as a plumber and was earning averagely a sum of Rs.4,000/- per month. But excepting the Ex.P1 of the petitioner who has deposed P.W.1, there is no other evidence to prove that he was a plumber and he was having an income of not less than Rs.4,000/- per month. Under such circumstances, the method of awarding lumpsum for the permanent disability shall alone be suitable in this case. The appellant herein/ petitioner, according to the petition averments was aged about 25 years at the time of filing of the petition. However, there is no concrete evidence to prove his age. In Ex.P1 - case sheet, his age has been noted to be about 25 years. Taking into account the fact that the accident took place and that the petitioner was aged about 25 years as on the date of accident, this court feels that lumpsum amount of compensation for permanent disability can be awarded at the rate of Rs.1,500/- per one percentage of disability. As it has already been held supra that the appellant herein/petitioner has suffered 35% permanent disability, the lumpsum amount shall be Rs.52,500/-. 13. Though the appellant herein/petitioner has not produced bills evidencing the expenditure incurred by him towards treatment, there are Ex.P4 prescriptions which will show that he might have incurred some amount towards purchase of medicine and other materials in connection with the treatment, which can be assessed at Rs.2,500/-. In view of the fact that the appellant/petitioner sustained fracture on both bones of the left leg, he would have needed complete rest at least for two months, during which period he would have suffered total https://hcservices.ecourts.gov.in/hcservices/ loss of earning. Taking his average monthly earnings at Rs.2,500/-, a sum of Rs.5,000/- is awarded towards loss of income from the date of accident for two months. For pain and suffering awarding a sum of Rs.10,000/- shall be quite reasonable. There is evidence to show that the petitioner took treatment not only at Government Royapettah Hospital but also at Bone Setting Hospital, Puttur, Andhra Pradesh. Therefore, for the transport expenses, awarding a sum of Rs.2,000/- shall be reasonable. A further sum of Rs.3,000/- can be awarded towards expenses for extra nourishment. Thus the total amount of compensation to which the appellant/petitioner shall be entitled is fixed at Rs.75,000/-. At the cost of repetition, once again the details of calculation are furnished as under. Compensation for Permanent disability : Rs.52,500/- Medical Expenses : Rs. 2,500/- Total loss of income for two months from the date of accident : Rs. 5,000/- For pain and suffering : Rs.10,000/- Transport Expenses : Rs. 2,000/- Extra nourishment : Rs. 3,000/- ----------- TOTAL Rs.75,000/- ----------- Taking into account the then prevailing bank rate of interest, the petitioner is held entitled to an interest on the above said amount calculated at the rate of 7.5% from the date of his petition till the date of realisation and a proportionate costs in both the courts. 14. In the result, this appeal is allowed in part. The decree of the Tribunal dated 11.07.2000 is set aside. An award is passed directing the respondents 1 and 2 to jointly and severally pay a sum of Rs.75,000/- to the appellant herein/petitioner as compensation together with an interest at the rate of 7.5% from the date of petition till realisation. The respondents shall also pay proportionate costs to the appellant herein/petitioner in both the courts. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. asr https://hcservices.ecourts.gov.in/hcservices/ To 1) The Motor Accidents Claims Tribunal (II Judge, Small Causes Court), Chennai 2) The Section Officer, V.R.Section, High Court, Madras. + 1 CC to Mr.T.G.Balachandran,Advocate,SR.NO.32774 + 1 CC to Mr.R.Ravichandran,Advocate,SR.NO.33103 C.M.A.No.97/2002 KA(CO) EM/4.2.09 https://hcservices.ecourts.gov.in/hcservices/