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2007 DIGILAW 2931 (MAD)

S. Neelavanan v. Venkatesan & Another

2007-09-10

P.P.S.JANARTHANA RAJA

body2007
Judgment :- This Civil Miscellaneous Appeal is filed by the claimant against the decree and judgment dated 07.07.1999 made in MCOP No.2808 of 1993 on the file of the Motor Accidents Claims Tribunal (III Court of Small Causes), Madras. 2. The background facts in a nutshell are as follows:- The claimant was injured in a road traffic accident on 21.04.1993 at 2.30 hours. The claimant was travelling in a lorry bearing Registration No.MSL 2775 which was proceeding from south to north. The lorry was driven by its driver in a rash and negligent manner. Another lorry bearing Registration No.TN-04-A-4852 was coming from the opposite direction and the lorry in which the claimant was travelling dashed against the said lorry. As a result of the accident, the claimant sustained injuries by loss of flesh from thigh to right leg lower limb. The claimant claimed a compensation of Rs.2,00,000/-before the Tribunal and the same was resisted by the Insurance Company. After hearing the arguments, the Tribunal framed the following issues:- a) Whether the accident had occurred due to the rash and negligent driving of the driver of the lorry? b) Whether the claimant is entitled to receive compensation? After considering the materials and evidence on record, the Tribunal held that the accident had occurred due to the rash and negligent driving of the lorry bearing Registration No.MSL 2775 and also the claimant is entitled to the compensation of Rs.53,000/- as compensation with interest rate at 12% from the date of petition. Aggrieved by the same, the claimant has filed the present appeal. 3. Learned counsel appearing for the claimant submitted that the Tribunal awarded only a meagre compensation and nothing was awarded towards loss of earning from 22.04.1993 to 210. 1993, transport to hospital, extra nourishment and medical expenses. It is also submitted that the Tribunal has awarded a meagre amount of Rs.10,000/- towards pain and suffering, against the claim of Rs.30,000/-. Therefore it is a fit case for enhancement and the award passed by the Tribunal is not in accordance with law. 4. Learned counsel for the Insurance Company submitted that the Tribunal has considered all the relevant materials and evidence on record and came to the right conclusion and awarded a sum of Rs.53,000/-as compensation which is just, fair and reasonable. Hence the award passed by the Tribunal is in accordance with law. 5. Heard the counsel. 4. Learned counsel for the Insurance Company submitted that the Tribunal has considered all the relevant materials and evidence on record and came to the right conclusion and awarded a sum of Rs.53,000/-as compensation which is just, fair and reasonable. Hence the award passed by the Tribunal is in accordance with law. 5. Heard the counsel. On the side of the claimant, P.W.1 to P.W.3 were examined and Ex.P1 to Ex.P8 were marked. P.W.1 is the claimant. P.W.2 is the Doctor, Thiagarajan. P.W.3 is the Sub-Inspector. Ex.P1 is the Hospital Discharge Note. Ex.P3 is the photographs and negatives. Ex.P4 is the Disability Certificate. Ex.P5 is the X-ray. Ex.P6 is the X-ray report. Ex.P7 is the copy of First Information Report. Ex.P8 is the copy of the sketch. The Tribunal after considering the oral and documentary evidence, awarded a sum of Rs.53,000/- as compensation. The details of the award are as under:- Pain and suffering :Rs. 10,000/- Permanent disability :Rs. 20,000/- Loss of earning power :Rs. 23,000/- Total :Rs. 53,000/- The Tribunal has awarded a sum of Rs.10,000/-towards pain and suffering which is very meagre. Taking into consideration of the nature of the injuries, i.e., Ex.P1, P2, P5 and P6 and that the claimant had underwent two operations and plastic surgery, it would be reasonable and appropriate to award a sum of Rs.20,000/- towards pain and suffering. The Tribunal has not awarded any amount towards loss of earning for the treatment period. The claimant was hospitalised from 21.04.1993 to 14.07.1993 and from 19.07.1993 to 010. 1993. For this hospitalisation, the claimant would have incurred loss of income for which the Tribunal has not awarded any amount. After taking into consideration of the above, it would be appropriate and reasonable to award a sum of Rs.4,000/- under this head. The Tribunal has also not awarded any amount towards transport to hospital. It would be appropriate and reasonable to award a sum of Rs.2,000/- towards transport to hospital. The Tribunal has also not awarded any amount towards extra nourishment. It would be appropriate and reasonable to award a sum of Rs.2,000/- towards extra nourishment. The Tribunal has also not awarded any amount towards medical expenses. It would be appropriate and reasonable to award a sum of Rs.2,000/- towards medical expenses. The Tribunal awarded a sum of Rs.20,000/-towards permanent disability. It would be appropriate and reasonable to award a sum of Rs.2,000/- towards extra nourishment. The Tribunal has also not awarded any amount towards medical expenses. It would be appropriate and reasonable to award a sum of Rs.2,000/- towards medical expenses. The Tribunal awarded a sum of Rs.20,000/-towards permanent disability. In this case, the nature of injury is loss of flesh from thigh to right leg lower limb. Due to this injury, the claimant had undergone operations. Plastic surgery has also been done. Ex.P4 is the Disability Certificate given by the Doctor. From the above, it is seen that the claimant sustained grievous injuries. The Doctor, P.W.2 has also given evidence that the claimant was operated twice. Also the disability was assessed at 60%. In view of the evidence of the Doctor as well as the material and evidence on record, the Tribunal awarded only a sum of Rs.20,000/- towards permanent disability. Taking into consideration the disability of 60%, it would be reasonable to award a sum of Rs.58,000/- towards the head permanent disability. The Tribunal has awarded Rs.23,000/-towards loss of earning power. A Full Bench decision of this Court in the case of Cholan Roadways Vs. Ahmed Thambi, 2006 (4) CTC 433 , held that whenever compensation towards permanent disability is awarded, further amount towards loss of earning power should not be awarded. Applying the principle enunciated in the above Full Bench decision of this Court, the award of the Tribunal in respect of loss of earning power at Rs.23,000/-is not in accordance with law and is therefore set aside. The details of the modified compensation are as follows:- Pain and suffering :Rs. 20,000/- Loss of earning for the treatment period :Rs. 4,000/- Transport to hospital :Rs. 2,000/- Extra nourishment :Rs. 2,000/- Medical expenses :Rs. 2,000/- Permanent disability :Rs. 58,000/- Total :Rs. 88,000/- Therefore, the claimant is entitled to Rs.88,000/-as compensation as against the compensation of Rs.53,000/- awarded by the Tribunal. The interest rate awarded by the Tribunal at the rate of 12% p.a. is excessive. Hence the claimant is entitled only to an interest rate of 7.5%. However, the interest rate of 7.5% is applicable only for the enhanced amount. 6. 88,000/- Therefore, the claimant is entitled to Rs.88,000/-as compensation as against the compensation of Rs.53,000/- awarded by the Tribunal. The interest rate awarded by the Tribunal at the rate of 12% p.a. is excessive. Hence the claimant is entitled only to an interest rate of 7.5%. However, the interest rate of 7.5% is applicable only for the enhanced amount. 6. The Insurance Company is directed to deposit the enhanced award amount of Rs.35,000/- with interest at 7.5% p.a. from the date of petition within a period of six weeks from the date of receipt of a copy of this order. On such deposit, the claimant is entitled to withdraw the same. 7. The Civil Miscellaneous Appeal is disposed of with the above modification. No costs.