IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.06.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.1091 OF 2011 & M.P.No.1 of 2011 The New India Assurance Co. Ltd., No.45, 2nd Line Beach, Moore Street, Chennai – 1. ... Appellant Vs. 1.P.Selvaraj 2.M/s.General Tyre and Tread (P) Ltd., No.145, G.N.T. Road, Madhavaram, Chennai – 600 110. ... Respondents (2nd Respondent herein was the Ist respondent before the tribunal and he remained exparte before the tribunal. Hence summons to the 2nd respondent may be dispensed with) Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Decree and Judgment made in M.C.O.P.No.2009 of 2006, dated 17.11.2009, on the file of the Motor Accidents Claims Tribunal, (II Court of Small Causes), Chennai. For Appellant : Mr.El Veera Ravindran For Respondents: Mr.M.Senthilswamy for M/s.Senthilswamy Associates (for R1) (R2 – Exparte) J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant / The New India Assurance Company Limited against the Decree and Judgment made in M.C.O.P.No.2009 of 2006, dated 17.11.2009, on the file of the Motor Accidents Claims Tribunal, (II Court of Small Causes), Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2.The short facts of the case are as follows:- On 23.12.2005, at about 20.45 hours, while the petitioner was walking on the G.N.T. Road from west to east direction, at that time, the first respondent's vehicle bearing registration No.TN05-Q-4320 coming from Redhills towards Chennai, driven by its driver in a rash and negligent manner, hit against the claimant. In the result, he had sustained grievous injuries including bone fractures. Hence, the claimant had filed the claim petition against the respondents for compensation of a sum of Rs.8,00,000/- with interest. 3.The second respondent / New India Assurance Company had filed a counter statement and refuted the claim petition. The respondent denied the age, income and occupation of the claimant. The respondent further stated that the claimant had claimed compensation under the head of medical expenses, which does not arise since the claimant had undergone treatment at a Government Hospital. The claimant was walking on the middle of the road, in a careless manner, without giving way to the respondent's vehicle and as such the accident had happened. Therefore, contributory negligence is attributed. 4.On the averments of both the parties, the Tribunal had framed four issues for consideration, namely; "(i)Whether the accident had happened due to the rash and negligent driving of the driver of the TATA ACE bearing Registration No.TN05-Q-4320? (ii)Whether the respondents are liable to pay the compensation? (iii)Whether the petitioner is entitled for the compensation? (iv)To what relief?" 5.On the side of the claimants, two witnesses had been examined. The claimant was examined as PW1 and the Doctor was examined as PW2 and 14 documents were marked, viz, 1. Ex.P1 – Discharge Summary issued by Government Stanley Hospital, Chennai; 2. Ex.P2 – Accident Register copy; 3. Ex.P3 – Discharge Summary issued by Government Stanley Hospital, Chennai; 4. Ex.P4 – Discharge Summary issued by Government Stanley Hospital, Chennai; 5. Ex.P5 – OP Note Book; 6. Ex.P6 – OP chits; 7. Ex.P7 – Discharge Summary issued by Government Stanley Hospital, Chennai; 8. Ex.P8 – Copy of First Information Report; 9. Ex.P9 – Copy of Sketch; https://hcservices.ecourts.gov.in/hcservices/ 10.Ex.P10-Handicapped Certificate; 11.Ex.P11 – Prescriptions; 12.Ex.P12 – Ration Card; 13.Ex.P13 – Disability Certificate and; 14.Ex.P14 – X-ray. On the side of the respondents, no witness, no documentary evidence. 6.PW1 / claimant adduced evidence that on 23.12.2005, at about 20.45 hours, when he was walking along the G.N.T. Road, Puzhal, from west to east direction, the first respondent driver had driven the vehicle bearing registration No.TN05-Q-4320, from Redhills to Chennai in a rash and negligent manner and dashed against him. In order to prove the accident, he had marked F.I.R. and rough sketch. PW1 further adduced evidence that the vehicle was insured with the second respondent. He had sustained injuries on both the bones of the left leg, and multiple injuries all over the body. He had taken treatment as inpatient for a period of 25 days at Stanley hospital. During medical treatment period, he had undergone a surgical operation on his left leg and a steel plate was fixed along with a screw in the operated area. Thereafter, he underwent treatment, as an outpatient, for a lengthy period. Again, he was admitted in the same hospital for re-operation to remove the steel plate with screw from his left leg, for which he had undergone treatment as an inpatient at Stanley Hospital. He had further adduced evidence that his urinal system had been affected and therefore he had undergone treatment in urology department at Stanley Hospital. The Orthopaedicaly Hospital, K.K.Nagar had issued a handicapped certificate stating that the claimant is a handicapped person. PW1 further adduced evidence that before the accident, he was doing waste paper business and earning Rs.8,000/- per month. On considering the evidence of the witnesses and on perusal of the documentary evidence, the Tribunal had awarded a sum of Rs.3,11,000/- as compensation together with interest at the rate of 7.5% per annum. The breakup of compensation is as follows:- Loss of earnings - Rs. 96,000 Transport Expenses - Rs. 20,000 Extra Nourishment - Rs. 20,000 Cost of Medical Expenses - Rs. 5,000 Mental agony to the petitioner - Rs. 25,000 Mental agony to wife and children - Rs. 25,000 Attending Charges - Rs. 5,000 Future additional transport expenses- Rs. 10,000 Compensation for pain and suffering- Rs. 50,000 Permanent Disability - Rs. 55,000 -------------- Total compensation of Rs.3,11,000 -------------- https://hcservices.ecourts.gov.in/hcservices/ 7.Aggrieved by the said award, the appellant has filed the above appeal. The learned counsel for the appellant vehemently argued that the tribunal had awarded compensation under the head of loss of earning of a sum of Rs.96,000/-, which is not proper. Further, the Tribunal had awarded Rs.25,000/- under the head of mental agony and another Rs.25,000/- under the head of mental agony to wife and children. The Tribunal awarded Rs.10,000/- under the head of future medical expenses, which is inappropriate in the absence of doctor's evidence and documentary evidence pertaining to the medical records. 8.The learned counsel for the claimant argued that the claimant had sustained 55% disability and he had undergone treatment on three occasions as inpatient at Stanley Hospital. Thereafter, he underwent treatment as an outpatient for a lengthy period. He was earning Rs.8,000/- per month as a waste paper businessman. The Government authorities namely Orthopaedicaly Hospital, K.K.Nagar had issued a handicapped certificate to the claimant and this proves that the claimant has become a permanently disabled person. Therefore, he is entitled to get an adequate compensation after adopting multiplier method formula. This was not considered by the learned Tribunal. The claimant is entitled to get adequate compensation under the head of loss of amenities and comfort, since he was a middle aged man aged 37 years. It was an admitted fact, as per medical record, that the claimant had undergone two operations on his left leg. Considering all aspects, the quantum of compensation is a reasonable one. 9.In view of the facts and circumstances of the case and arguments submitted by the learned counsels on either side and on perusing the impugned award passed by the learned Motor Accidents Claims Tribunal, this Court is of the considered opinion that the learned Tribunal had awarded compensation under the head of future medical expenses, mental agony to the claimants, mental agony to the wife and children and these are all not appropriate. Further, the Tribunal had awarded a sum of Rs.60,000/- under the head of pain and sufferings and this is on the higher side. Therefore, this Court restructures the compensation as follows:- For loss of income due to disability - Rs.1,10,000/- For pain and sufferings - Rs. 25,000/- For transport - Rs. 10,000/- For nutrition - Rs. 10,000/- towards medical expenses - Rs. 10,000/- For attender charges - Rs. 10,000/- towards the loss of income during medical treatment and convalescent period- Rs. 30,000/- towards loss of amenities and comfort - Rs. 75,000/- https://hcservices.ecourts.gov.in/hcservices/ In total, this Court awards a sum of Rs.2,80,000/- which is fair and justifiable in the instant case. Therefore, this Court scales down the compensation from Rs.3,31,000/- to Rs.2,80,000/-. This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. On 12.4.2007, this Court imposed a condition on the appellant to deposit the entire compensation amount with accrued interest thereon. Further, this Court had permitted the claimant to withdraw 50% of the award amount. It is open to the claimant to withdraw the balance compensation amount as per this Court order, lying in the credit of M.C.O.P.No.2009 of 2006, dated 17.11.2009, on the file of the Motor Accidents Claims Tribunal, (II Court of Small Causes), Chennai, after filing a memo along with this order, subject to withdrawals made already. Likewise, the appellant is at liberty to withdraw the excess compensation paid after filing a memo. Accordingly ordered. 10.Resultantly, the above Civil Miscellaneous Appeal is partly allowed. Consequently, the Decree and Judgment, on the file of the Motor Accidents Claims Tribunal, (II Court of Small Causes), Chennai made in M.C.O.P.No.2009 of 2006, dated 17.11.2009, is modified. There is no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar vs To 1. The II Judge, Court of Small Causes, Motor Accidents Claims Tribunal, Chennai. 2. The Registrar, Court of Small Causes, Chennai 1 cc To Mr.Elveera Ravindran, Advocate, SR.36666 1 cc To M/s.Senthilswamy, Advocate, SR.36783 C.M.A.NO. 1091 OF 2011 AND M.P.NO.1 OF 2011 JRG (CO) RH (3.8.11) https://hcservices.ecourts.gov.in/hcservices/