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2008 DIGILAW 1506 (MAD)

H. S. Nabi @ H. S. Mohammed Nabi v. Seethalakshmi

2008-05-06

M.VENUGOPAL

body2008
Judgment :- This Civil Miscellaneous Appeal is preferred by the claimant as appellant, as against the award of the Motor Accidents Claims Tribunal, viz., V Judge, Court of Small Causes dated 16.08.2001 passed in M.C.O.P.No.1267 of 1998, awarding a compensation of Rs.25,000/-. 2. The Appellant / Claimant has filed the claim petition claiming a compensation of Rs.1 Lakh (One Lakh only). 3. The short facts of the claim are as follows - On 210. 1994, at about 5 p.m., the claimant was driving Auto bearing No.TN 01 F 6109 along the 100 feet road, near GNT, near Redhills and at that time, the driver of the lorry bearing Registration No.TN 57 2599 drove the same in a rash and negligent manner endangering public safety, came at a dangerous speed from the opposite direction, on the wrong side of the road and dashed against the claimants Auto and thereby caused the accident and as a result thereof, the claimant sustained grievous injuries. Since the accident happened only due to the rash and negligent driving of the driver of the lorry, the first respondent being the owner, the second respondent being the insurer, both are vicariously liable to pay a compensation with interest and costs from the date of the accident. 4. The stand of the second respondent, Insurance Company is that the alleged injuries sustained by the claimant are denied and that the claimant has put to strict proof of the same. In fact, the monthly income and age of the claimant as projected are put to strict proof. In any event, the claimant is excessive and imaginary. 5. Before the Tribunal, witnesses P.W.1 & P.W.2 were examined on the side of the claimants and Ex.P.1 to P.5 were marked. On the side of the respondents, no oral and documentary evidence were adduced. 6. The Tribunal has awarded a sum of Rs.25,000/-(Rupees Twenty Five Thousand Only) with interest @ 9% per annum from the date of petition till the date of deposit as compensation and has directed the second respondent, Insurance Company to pay the same, granting eight weeks time. The Tribunal has fixed the Advocates fee at Rs.1,000/-. 7. In order to prove negligence, the claimant has examined himself as P.W.1. In his evidence, he has deposed that on 210. The Tribunal has fixed the Advocates fee at Rs.1,000/-. 7. In order to prove negligence, the claimant has examined himself as P.W.1. In his evidence, he has deposed that on 210. 94, at about 5 p.m. he was driving the Auto TN 01 F 6109 and at that time, the lorry bearing Registration No.TN 57 2599 came in high speed, on the wrong side and dashed against his Auto as a result of which he sustained injuries. Ex.P.1 is the OP Chit. Ex.P.2 is the certificate dt.212. 94 issued by the Doctor who gave treatment to the claimant. Ex.P.3 is the xerox copy of F.I.R. Ex.P.4 is the disability certificate dt.14.07.2001 issued by the Doctor. Ex.P.5 is the x-ray. 8. The evidence of P.W.1, the claimant as to the manner and happening of the accident is not controverted by the respondents by adducing necessary evidence thereof. Therefore, the evidence of P.W.1 that the lorry TN 57 2599 came in high speed in a wrong direction and hit his Auto driven by him remains unimpeachable and the same is trust worthy and hence accepted by this court. The fact that the claimant has undergone medical treatment for two months with the Doctor as seen from Ex.P.2, strengthens the fact that the claimant has sustained injuries in a Road Traffic Accident. Because of the accident, the claimant has suffered a disability cannot be disputed in the present case in hand. In as much as the P.W.1 has deposed that the lorry bearing Registration No.TN 57 2599 was driven by its driver in a high speed and on a wrong side and dashed against his Auto, this court is in complete agreement with the finding arrived at by the Tribunal that the accident took place because of the negligent act of the driver of the lorry bearing Registration No.TN 57 2599 in a high speed and that the driver of the lorry was primarily responsible for the happening of the accident and the point is answered accordingly. 9. 9. According to the appellant / claimant learned counsel, the Tribunal has awarded only a lumpsum payment of Rs.25,000/-for a sum of Rs.1 Lakh and that the Tribunal has not considered 45% permanent disability sustained by the claimant in the accident and that the Tribunal ought to have awarded 12% interest per annum for the amount instead of granting 9% interest per annum and in any event has prayed for allowing the appeal and award a sum of Rs.1 Lakh as claim towards compensation. In regard to the plea of enhanced compensation, it is to be pointed out that Ex.P.1 OP Chit issued in favour of the claimant refers to the pain, swelling of Lt. Knee, tenderness deformity, etc. The claimant has been advised bed rest for four weeks as per note found in Ex.P.1. From Ex.P.2 certificate dt.212. 94, it transpires that the claimant received treatment initially in Kilpauk Medical Hospital, Chennai from 210. 94 and the claimant sustained injuries of both necks in RTA on 212. 94 and that he has taken treatment for the last two months for fracture femur Lt and Lt Knee Haemo Arthrosis Lt Knee and contusion Rt foot, etc. 10. P.W.2, the Doctor who issued Ex.P.4, disability certificate has deposed that the claimant has sustained 45% disability and that the Lt.thigh bone lower portion after treatment wrongly joined and that in the Rt.knee the claimant got swelling and that the claimant receives blood clot in the Rt. Leg knee and that the claimants Lt. leg joint tissue movements 20 degree reduced and that the claimants Rt. leg knee 4" were torn and blood clotted were removed through surgery and Ex.P.4 is the disability certificate issued by him. 11. The Tribunal has granted Rs.1,000/-towards Medical Hospital expenses, towards nourishment expenses it has granted Rs.1000/-and towards Pain & Suffering, it has awarded a sum of Rs.3,000/-. The Tribunal has awarded a sum of Rs.20,000/-in the head of permanent disability and loss of earning capacity. Thus the Tribunal has awarded a sum of Rs.25,000/-(Rupees Twenty Five Thousand Only) towards compensation for the injuries sustained by the claimant. 12. As a matter of fact, that the strict rules of pleadings and proof as are required in Civil cases are not quite applicable in Motor Accident Claim cases in the considered opinion of this court. Admittedly, the proceedings before the Motor Accident Claims Tribunal are of summary nature. 12. As a matter of fact, that the strict rules of pleadings and proof as are required in Civil cases are not quite applicable in Motor Accident Claim cases in the considered opinion of this court. Admittedly, the proceedings before the Motor Accident Claims Tribunal are of summary nature. No doubt, it is the duty of the Tribunal to award a fair and reasonable compensation which must be a prudent one in the eye of law. For a compound fracture of Right Leg and other injuries, a compensation of Rs.44,800/-has been awarded as per decision of The Oriental Fire and General Insurance Co. Ltd. Vs. Khudiram Dutt & Another in AIR 1979, Calcutta 190. For the shortening of Right Leg, etc., a permanent disability, the Appellate Court has enhanced the award amount from Rs.12,500/- to Rs.42,500/- as per decision of Ayub Yosufbhai Kharawa & Another Vs. Prabhudas Hiralal Prajapati & Others in 1981 ACJ 167 . 13. In the case on hand, the award of Rs.20,000/-towards permanent disability and loss of earning capacity is not adequate bearing in mind of the fact that the claimant has suffered 45% disability. Therefore, this court opines that the claimant should be awarded a further sum of Rs.25,000/-under this head which will meet the ends of justice and to prevent aberration of justice. 14. Accordingly, tis court concludes that the claimant is entitled to receive an enhanced compensation of Rs.25,000/- from the second respondent, Insurance company and in other respects the award of the Tribunal is sustained. It is made clear that no case is made out for the claim of interest at 12% per annum and per contra, this court affirms the award of interest at 9% per annum. The appellant / claimant shall receive the enhanced sum of Rs.25,000/- along with interest at 9% per annum from the date of petition till the date of deposit and the second respondent, Insurance company is directed to pay the same within a period of two months from the date of receipt of copy of this order. The Civil Miscellaneous Appeal is allowed in above terms. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs in this appeal.