Judgment :- The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 28.08.2003, made in M.A.C.T.O.P.No.279 of 2002, on the file of the Motor Accident Claims Tribunal (Subordinate Judge), Krishnagiri, awarding a compensation of Rs.3,10,000/- with 9% interest per annum, from the date of filing petition till the date of payment of compensation. 2. Aggrieved by the said Award and Decree, the appellant/second respondent, The Branch Manager, The New India Assurance Company Ltd., Karaikkal, has filed the above appeal praying to set aside the said award and decree. 3. The short facts of the case are as follows: On 13.09.2001, the minor petitioner and her family members were travelling in the Tamil Nadu Transport Corporation Bus bearing registration No.TN29 N1309, from Salem to Bangalore to attend a function. When the said bus was coming in front of Milk Dairy at Krishnagiri on Dharmapuri to Krishnagiri Main Road, the Lorry bearing registration No.PY02 A5497 belonging to the first respondent and insured with the second respondent and driven by its driver in a rash and negligent manner came in the opposite direction and dashed against the Corporation Bus. Due to the impact, the minor petitioner sustained grievous injuries in bones of her right leg, which were fractured. Due to that the minor petitioner is unable to do any work. She needs assistance for every movement. Her right leg is shortened and twisted. She is unable to walk on her own and depends on attendants for doing any work. 4. Immediately after the accident, she was admitted in the Government Hospital, at Krishnagiri, and treated as in-patient. After discharge, she was taken to bone setting Hospital at Nallampally. Her next best friend, her father has spent a sum of Rs.50,000/-for her treatment so far. Further, she needs Rs.40,000/-for her future medical expenses. 5. The accident was caused by the driver of the lorry bearing registration No.PY02 A5497. As such, the first respondent, the owner, is vicariously liable to pay the compensation to the minor petitioner. The second respondent, the insurer of the said lorry is bound to indemnify the first respondent as per the policy of insurance. Hence, both the respondents are jointly and severally liable to pay the compensation. As such, the first respondent, the owner, is vicariously liable to pay the compensation to the minor petitioner. The second respondent, the insurer of the said lorry is bound to indemnify the first respondent as per the policy of insurance. Hence, both the respondents are jointly and severally liable to pay the compensation. As such, the next friend of the minor petitioner has prayed for a compensation of Rs.7,00,000/-together with interest at the rate of 15% per annum from the date of filing the petition till the date of payment of compensation from the respondents under Section 166 of the Motor Vehicles Act, 1988. 6. Regarding the accident, a criminal case has been filed by the Krishnagiri Police Station, Dharmapuri District, as Crime No.1142/2001, against the driver of the lorry under Sections 279 and 337 of I.P.C. 7. The second respondent in his Counter has resisted the claim denying the manner of the accident as alleged in the claim. He has contended that on 13.09.2001, at about 3.00 a.m. the vehicle bearing registration No.PY02 A5497 was proceeding near Milk Dairy on Dharmapuri to Krishnagiri Main Road and driven by its driver slowly and cautiously and observing all the rules of the road. At that time, the Tamil Nadu Transport Corporation Bus bearing registration No.TN29 N1309, coming in the opposite direction and driven by its driver at a great speed and without putting on dim and dip lights and dashed against the lorry and as a result of the collusion, the minor petitioner travelling in the Corporation Bus sustained very simple injuries. As such, the owner of the Corporation Bus should be impleaded as a party to these proceedings for better appreciation of the claim and hence the respondent is not liable to pay any compensation to the petitioner. 8. Further, the alleged injuries, alleged permanent disability and alleged age of the petitioner was not admitted. Further, it has been submitted that the driver of the first respondents vehicle, bearing registration No.PY02 A5497, did not possess a valid driving licence on the date of the accident. Further, it has been submitted that the claim is excessive and so the second respondent has prayed for dismissal of the claim petition with costs. 9. The Motor Accident Claims Tribunal framed three issues for the consideration namely: (i) Who was responsible for the accident? (ii) Is the petitioner entitled to receive compensation? Further, it has been submitted that the claim is excessive and so the second respondent has prayed for dismissal of the claim petition with costs. 9. The Motor Accident Claims Tribunal framed three issues for the consideration namely: (i) Who was responsible for the accident? (ii) Is the petitioner entitled to receive compensation? (iii) To what other relief is the petitioner entitled to get? 10. On the petitioners side, two witnesses were examined as PW1 and PW2 and six documents were marked as Exs.P1 to P6. On the respondents side, no witnesses were examined and no documents were marked. On the petitioners side, the father of the minor petitioner on being examined as PW1 has adduced evidence that on the date of the accident, the minor petitioner was aged about 5 years and that he, his wife and the minor petitioner were travelling in the said Tamil Nadu State Transport Bus and when it was nearing the Milk Dairy at Krishnagiri, the lorry coming on the opposite side at a great speed and driven by its driver in a rash and negligent manner had dashed against the said Tamil Nadu State Transport Bus. In the accident, seven passengers were injured and his minor daughter suffered grievous injuries and she was taken to Krishnagiri Government Hospital for treatment. He has further stated that the accident was caused only due to the rash and negligent driving of the said lorry driver. In support of his claim, he has marked Ex.P1-FIR; Ex.P2-Wound Certificate; Ex.P3-Copy of the Insurance Policy and Ex.P4-Medical Treatment Summary issued at Nallampalli Hospital. 11. The Tribunal on scrutiny of Ex.P1-FIR and after going through evidence of PW1 were of the view that the accident occurred only due to the rash and negligent driving by the driver of the lorry. Further, the respondents had not countered the evidence of the petitioner through examination of witnesses or letting in of documentary proof to prove otherwise. As such, the Tribunal held that the accident was caused only due to the rash and negligent driving of the driver of the lorry and held that the second respondent, being the insurer of the lorry is liable to pay the compensation to the petitioner. 12. As such, the Tribunal held that the accident was caused only due to the rash and negligent driving of the driver of the lorry and held that the second respondent, being the insurer of the lorry is liable to pay the compensation to the petitioner. 12. The PW1, in his evidence has adduced that his daughter had sustained grievous injuries below her right knee and that her upper thigh bone had been fractured in the accident; that he had taken her to Krishnagiri Government Hospital for treatment and that subsequently she underwent Ayurvedic method of bone setting at Nallampalli; that subsequent to this, his daughter also underwent treatment at a private hospital at Kallakurichi; that she had been treated continuously for a period of six months; that in spite of this she is not able to walk well and her leg has been shortened and twisted; and as such she has sustained permanent disability. 13. The Doctor, who had assessed the disability of the minor petitioner, was examined as PW2. In his evidence, he has adduced that on 29.07.1993, he had examined the minor petitioner; that he had found two bones below the right thigh of the girl had been fractured and that even after treatment, the bones had not set properly and the thigh bones are bent and her right knee has become bloated. Further, he has stated that the minor petitioner has difficulty in stretching her leg and the bone is bent by 20 Degrees as a result of which she would not be able to walk fast. He has further stated that this injury would be detrimental for her future growth and as such had certified that the minor daughter of the petitioner had sustained 50% disability and marked Ex.P5-Disability Certificate and Ex.P6-Xrays. 14. As the Tribunal considered that the disability sustained by the minor petitioner has been proved, it held that the second respondent is liable to pay compensation for the disability suffered by the minor petitioner. The Tribunal awarded a sum of Rs.2,00,000/-to the minor petitioner for disability and consequent loss of future income of the minor petitioner; for pain and suffering, and mental agony suffered by her, the Tribunal awarded a sum of Rs.1,00,000/-; for transport expenses the Tribunal awarded a sum of Rs.5,000/- and for nutrition and medical expenses, the Tribunal awarded a sum of Rs.5,000/-. In total, the Tribunal awarded a compensation of Rs.3,10,000/- to the minor petitioner and directed the second respondent to deposit the above said award with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.A.C.T.O.P.No.279 of 2002, on the file of the Motor Accident Claims Tribunal (Subordinate Judge), Krishnagiri, within a period of one month from the date of its Order. Further, the Tribunal held that the said award granted is inclusive of any interim award granted as relief to the minor petitioner. Further, after such deposit was made, the award amount has to be invested in a Nationalised Bank for three years, as fixed deposit and the petitioner was permitted to receive the interest on such deposit once in six months. The petitioner was directed to pay Court fee for the award amount within a period of one month from the date of its Order. The Advocate fees was fixed at Rs.9,200/-. 15. The learned counsel appearing for the appellant has contended in his appeal that the Tribunal had not discussed the reasons for awarded a huge sum of Rs.2,00,000/-towards loss of earning power and disability of 50%. It has been submitted that the injured claimant was a minor aged about 5 years at the time of the accident and was not earning anything. Further, it has been contended that the injured was treated by a Siddha Doctor and the injured had not taken proper and best treatment available at her place and this had resulted in 50% disability. Further, it was submitted that a sum of Rs.1,00,000/- granted by the Tribunal towards pain and suffering is without any basis, as the claimant has not proved by any documentary evidence that she had taken continuous treatment for injuries sustained by her. As such, the learned counsel for the appellant has contended that the award of Rs.3,10,000/- awarded by the Tribunal is arbitrary and excessive. 16. The learned counsel for the appellant, in support of his case has cited a Judgement made in 2005(5) CTC 745 , Madurai Bench of Madras High Court, M.Bhavathy Vs. As such, the learned counsel for the appellant has contended that the award of Rs.3,10,000/- awarded by the Tribunal is arbitrary and excessive. 16. The learned counsel for the appellant, in support of his case has cited a Judgement made in 2005(5) CTC 745 , Madurai Bench of Madras High Court, M.Bhavathy Vs. Thiruvalluvar Transport Corporation Limited, Pallavan Salai, Madras, rep.by its Managing Director, the headline notes of ".......Claimant sustained injury in accident near her left knee and her leg was broken – Consequently claimants left leg was amputated below the knee – She was unable to do house hold work – Claimant has to engage person to assist in her house hold work by paying salary of Rs.400 per month – Claimant claimed compensation of Rs.1,00,000 – Tribunal awarded Rs.7,000 towards pain and suffering, Rs.3,000 for nourishment and Rs.20,000 for permanent disability assessed 60% and thus awarded total compensation of Rs.30,000 – On appeal to High Court it was held that for non-earning member doing house hold work, notional annual income is Rs.15,000 – For 60% disability Rs.60,000 has to be awarded – Compensation awarded should be a fair compensation, fair both to victim and to tortfeasor – Quality of life had undergone diminishment and there is continued economic loss because of need for assistance to do house hold work – It was held that claimant is entitled to consolatory damages and compensation claimed at Rs.1,00,000/- was held just and reasonable – Amount of compensation Rs.1,00,000/-was directed to be paid with interest at 9% per annum from date of petition till date of realisation." 17. The learned counsel for the respondents argued that the injured person was aged about 5 years at the time of the accident. She is a female child and due to this accident, her physical condition has deteriorated. Her right leg thigh bone has been fractured and the fractured bone has not set properly and hence there is deformity of her legs. Further, the learned counsel for the respondents submitted that the length of injured person leg has been reduced. She has become a handicapped person. So, her marriage prospects have been reduced. As such, the award granted by the Tribunal is reasonable. In future, also, she would not be able to regain her original strength. She is unable to continue her education and she could not take part in any extra curricular activities. She has become a handicapped person. So, her marriage prospects have been reduced. As such, the award granted by the Tribunal is reasonable. In future, also, she would not be able to regain her original strength. She is unable to continue her education and she could not take part in any extra curricular activities. Considering all these aspects, the Motor Accident Claims Tribunal awarded a sum of Rs.3,10,000/- together with interest at the rate of 9% per annum, which is reasonable and fair. 18. For the foregoing reasons, facts and circumstances of the case, arguments advanced by the learned counsels for their respective parties, the Court is of the view that the Tribunal awarded a sum of Rs.2,00,000/-for grievous injuries, distress and loss of earning suffered by the petitioner. Further, the Tribunal had awarded a sum of Rs.1,00,000/- as compensation towards pain and suffering undergone by the petitioner. The Court opines that the award granted under the above heads are not pertinent. Hence, the Court awards compensation as follows: (i) Based on the Doctors assessment of disability of the petitioner, as 50%, this Court awards Rs.1,00,000/- as compensation (1% disability carries Rs.2,000/-, as award as the injured is a minor aged about 5 years), (ii) For pain and suffering undergone by the petitioner, the Court grants a sum of Rs.25,000/- as compensation, (iii) For transportation expenses, the Court grants an award of Rs.10,000/- and as such this award has been enhanced from the award of Rs.5,000/- granted by the Tribunal, (iv) For medical expenses and nutrition, the Tribunal had awarded a sum of Rs.5,000/-under a single head. This Court awards a sum of Rs.10,000/-each as compensation under the heads of medical expenses and nutrition respectively (ie.Rs.20,000/- in total). 19. As the minor petitioners marriage prospects have been affected, the Court grants an award of Rs.20,000/- as non-pecuniary loss to the petitioner. For permanent physical distress of the petitioner, the Court awards a sum of Rs.15,000/-as compensation to the petitioner. 20. This Court, in total awards a sum of Rs.1,90,000/-as compensation to the petitioner, together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment, as the Court considers this as fair and equitable in the circumstances of the case. 21. 20. This Court, in total awards a sum of Rs.1,90,000/-as compensation to the petitioner, together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment, as the Court considers this as fair and equitable in the circumstances of the case. 21. This Court directed the appellant to deposit the entire award amount and cost to the credit of the M.A.C.T.O.P.No.279 of 2002, on the file of the Motor Accident Claims Tribunal (Subordinate Judge), Krishnagiri, within a period of eight weeks. The said amount has been deposited by the appellant. Subsequently, on 16.06.2006, this Court permitted the petitioner to withdraw a sum of Rs.1,00,000/-on behalf of the minor injured petitioner. 22. It is open to the petitioner to withdraw the balance compensation amount of a sum of Rs.90,000/- with accrued interest for the total award amount from the date of filing the compensation petition till the date of payment, by filing necessary payment out application in accordance with law. The appellant is at liberty to withdraw the excess compensation amount deposited by them, into the credit of the M.A.C.T.O.P.No.279 of 2002, on the file of the Motor Accident Claims Tribunal (Subordinate Judge), Krishnagiri, after observing Court formalities. 23. In the result, the above Civil Miscellaneous Appeal is partly allowed. Consequently, the award and decree passed by the Subordinate Judge, Motor Accident Claims Tribunal, Krishnagiri, in M.A.C.T.O.P.No.279 of 2002, is modified. No costs.