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2009 DIGILAW 3455 (MAD)

K. Devi v. M. Anjaneyulu

2009-08-31

P.P.S.JANARTHANA RAJA

body2009
Judgment :- By consent, the main appeal itself is taken up for disposal. 2. The appeal is preferred by the claimant against award dated 26.09.2008 made in MCOP No.3936 of 2003 by the Motor Accident Claims Tribunal (V Fast Track Court) Chennai. 3. Background facts in a nutshell are as follows: The claimant is the injured in the motor vehicle accident that took place on 16.04.2001 at about 7.00 a.m. While the appellant-claimant was standing at the end of Thathamuthaiyappan Street, a lorry bearing registration No.AP-04-T-5785, which belonging to the first respondent and insured with the second respondent, came from East to West to the extreme left for turning left side and dashed against the claimant. Immediately, the claimant was admitted in Government Stanley Hospital, Chennai. She claimed a sum of Rs.1,00,000/- as compensation. The respondents resisted the claim. On pleadings the Tribunal framed the following issues:- "1. Whether the accident had occurred due to the rash and negligent driving of the lorry driver or not? 2. Is the claimant entitled to compensation? If so, to what amount?" After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the driver of the first respondent and awarded a compensation of Rs.30,000/-with interest at 7.5% per annum from the date of petition and the details of the same are as under:- Transport charges Rs. 500/- Extra nourishment Rs. 1,500/- Pain and suffering Rs. 5,000 Permanent disability Rs. 23,000/- Total... Rs. 30,000/-Aggrieved by that award, the appellant has filed the present appeal for enhancement. 4. The learned counsel appearing for the claimant-appellant questioned only quantum of compensation awarded by the Tribunal and submitted that the Tribunal ought to have awarded compensation as claimed by the claimant and the amount awarded under various heads is very low and the Tribunal has not followed the principles of assessment before passing the award and the amount awarded by the Tribunal is very low and meagre and seeks to enhance the compensation. 5. Learned counsel appearing for the respondents submitted that the Tribunal had considered all the relevant materials and evidence on record and came to the right conclusion and awarded a just, fair and reasonable compensation. Hence the order of the Tribunal is in accordance with law and the same has to be confirmed. 6. Heard the counsel. 5. Learned counsel appearing for the respondents submitted that the Tribunal had considered all the relevant materials and evidence on record and came to the right conclusion and awarded a just, fair and reasonable compensation. Hence the order of the Tribunal is in accordance with law and the same has to be confirmed. 6. Heard the counsel. On the side of the claimant, P.Ws.1 and 2 were examined and documents Exs.P1 to P18 were marked. On the side of the respondents no witness was examined and no document was marked to support their claim. P.W.1 is the claimant. PW2 is the Doctor Thiagarajan. Ex.P1 is the copy of the First Information Report. Ex.P2 is the sketch. Ex.P3 is the charge sheet. Ex.P4 is the discharge summary. Exs.P5 and 6 are the photographs with negatives. Ex.P7 is the disability certificate. E.xP8 is the X-ray. After considering the oral and documentary evidence, the Tribunal had given a categorical finding that the accident had occurred only due to the rash and negligent driving of the driver of the lorry belonging to the first respondent and hence, respondents 1 and 2 being the owner and the insurer are vicariously and contractually liable to pay the compensation to the claimant and the finding is based on valid materials and evidence. 7. At the time of the accident, the claimant was aged about 11 years old. She was a student studying V Standard in Christian School in Thambu Chetty Street, Chennai. The driver of the lorry was charge sheeted and a case has been registered against him in Crime No.109/C1/2001 of Traffic Investigation Department, C-2, Elephant Gate Police Station, Chennai. PW1-the claimant deposed in her evidence that she had sustained fracture in right foot as the back wheel of the lorry ran over her right foot. Immediately she was admitted in Stanley Government Hospital, Chennai from 16.04.2001 to 22.05.2001 i.e. 37 days as in patient. She further deposed that plastic surgery was done in the right foot by removing flesh from right thigh and later she was treated as out patient for a period of three months. She further deposed that due to the injuries sustained, she could not stand and walk freely. PW2-Doctor, who examined the claimant has assessed the disability at 40% and issued Ex.P7-disability certificate. She further deposed that due to the injuries sustained, she could not stand and walk freely. PW2-Doctor, who examined the claimant has assessed the disability at 40% and issued Ex.P7-disability certificate. The Doctor deposed in his evidence that the bone in the first toe was fractured and there is mal-union to the measurement of 5 x 3 on the upper part of right foot upto the bottom at the place of plastic surgery and hence, the claimant was limping. The Tribunal, after considering the oral and documentary evidence, has awarded a sum of Rs.500/-towards transport charges. It is clear from Ex.P4 discharge summary that the claimant took treatment at Stanley Government Hospital from 16.04.2001 to 22.05.2001, i.e. for 37 days as in patient and later as out patient for a period of three months. Taking into consideration of the same, the amount awarded under this head is very low and it is reasonable to award a sum of Rs.5,000/- under this head as against Rs.500/- awarded by the Tribunal. The Tribunal has awarded a sum of Rs.1,500/- towards extra nourishment, which I feel is very low. Taking into consideration of the treatment period, it would be reasonable to award a sum of Rs.5,000/-under this head as against Rs.1500/-. The Tribunal has awarded a sum of Rs.5,000/-towards pain and suffering. The learned counsel appearing for the appellant-claimant vehemently contended that the claimant underwent plastic surgery and hence the amount awarded under this head is very low. The claimant was a student and there was a fracture in her right foot. Considering the same, it would be appropriate to award a sum of Rs.15,000/- under this head as against Rs.5,000/-. The Tribunal has awarded a sum of Rs.23,000/-towards 40% disability. Ex.P7 is the disability certificate. Considering the oral evidence of PW2doctor, it would be appropriate to award a sum of Rs.30,000/-under this head as against Rs.23,000/- awarded by the Tribunal. The Tribunal has not awarded any amount towards attendant charges. The claimant was aged about 11 years at the time of the accident and she sustained fracture in her right foot and also took treatment from 16.04.2001 to 22.05.2001 and hence, it would be appropriate to award a sum of Rs.10,000 under this head. The details of the enhanced compensation as per the above discussion are as under:- Transport charges Rs. 5,000/-Extra nourishment Rs. 5,000/-Pain and suffering Rs. 15,000 Permanent disability Rs. The details of the enhanced compensation as per the above discussion are as under:- Transport charges Rs. 5,000/-Extra nourishment Rs. 5,000/-Pain and suffering Rs. 15,000 Permanent disability Rs. 30,000/- Attendant charges Rs. 10,000/- ------------------ Total... Rs. 65,000/- Less: Already awarded amount Rs. 30,000/- ----------------- Enhanced amount Rs. 35,000/- Therefore, the claimant is entitled to the enhanced compensation of Rs.35,000/-with interest at 7.5% from the date of petition. 8. The second respondent-Insurance company is directed to the deposit the enhanced compensation of Rs.35,000/- with interest at 7.5% 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 appellant-claimant is permitted to withdraw the same on proper application. 9. With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs.