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2010 DIGILAW 2132 (MAD)

N. Elumalai v. R. Menaka & Another

2010-05-02

N.KIRUBAKARAN

body2010
Judgment :- Aggrieved by the order of the Motor Accident Claims Tribunal (IV Judge, Court of Small Causes), Chennai dated 16.03.2004 in M.C.O.P.No.3249 of 1999, the appellant has filed this appeal before this Court. 2. The facts of the case are as follows:- The appellant sustained head injuries, bone fracture in the left leg, injury in the right shoulder and other injuries all over the body in the accident occurred on 05.05.1999. The petitioner was hit by a motorcycle driven in a rash and negligent manner and as a result of which, the above injuries were sustained and he was treated as inpatient from 05.05.1999 to 12.05.1999 in Government Stanley Hospital and later in a Private Hospital. For the above injuries, he claimed a compensation to the tune of Rs.1,00,000/-. The said claim of the appellant was contested by the second respondent/Insurance Company herein contenting that the accident occurred only due to the recklessness of the petitioner and that in any event there was contributory negligence on the part of the claimant. 3. On appreciation of the pleadings and evidence on record, the Tribunal found that the accident had occurred because of the rash and negligent riding of the motor cycle. 4. Regarding compensation the Tribunal awarded Rs.55,000/- in the following manner:- Towards disability Rs.35,000/-. Medical expenditure Rs. 5,000/- Further treatment Rs. 5,000/- loss of income Rs. 5,000/- Pain and sufferings Rs. 5,000/- Rs.55,000 Against the said award, the present appeal is preferred by the claimant. 5. Ms.Jothi, learned counsel for the appellant submitted that the claimant was aged about 52 years and was earning about Rs.6,790/-as a monthly salary and he was employed as a conductor in Dr.Ambedkar Transport Corporation and because of the injuries, he could not continue the job and took voluntary retirement when he had six years of service. He further submitted that when the disability was proved at 45%, the Tribunal erroneously awarded a sum of Rs.35,000/-and for loss of income during the treatment for 11 months no amount was awarded and on other heads very low amounts were awarded. Therefore, the learned counsel sought for enhancement of the compensation amount. 6. On the other hand, Mr.S.Manohar, learned counsel for the second respondent submitted that the Tribunal rightly awarded the amount, as per the evidence available on record. Therefore, the learned counsel sought for enhancement of the compensation amount. 6. On the other hand, Mr.S.Manohar, learned counsel for the second respondent submitted that the Tribunal rightly awarded the amount, as per the evidence available on record. There is no evidence on record with regard to loss of income during the treatment and only attendance register was marked, and no documentary evidence was produced to that effect. In fine it is submitted that the amount awarded by the Tribunal is reasonable. 7. A perusal of the pleadings, evidence and award would show that the Tribunal in para 10 of the award rightly concluded that the accident occurred because of the negligence on the part of the rider of the motorcycle. While coming to the said conclusion, the Tribunal took into consideration evidence of PW2 and PW4 and Ex.P14 and P15. There is no contra evidence on the side of the Insurance Company. In any event, there is no appeal by the Insurance Company with regard to the findings on negligence and therefore, it attained finality and therefore, the same is confirmed. 8. It is an admitted fact that the claimant was employed as a conductor in Dr.Ambedkar Transport Corporation and he sustained injuries in the accident. The nature of the injuries namely both bones fracture in the left leg and injury on the right shoulder would make the claimant discontinue as conductor as the work of the conductor is to collect the amount and issue tickets to the passengers. For that he has to negotiate through passengers from one part of the bus to another part of the bus. These injuries resulted in disability and it is impossible for him to continue as a conductor and that was the reason why he took voluntary retirement on 30.04.2000 which was proved by Ex.P5. The most important fact is that he had six years of service left when he took voluntary retirement. 9. It is proved by Ex.P4, the attendance register that the claimant was absent from 05.05.1999 to 30.04.2000, on which date he got voluntary retirement. For 11 months, he could not attend the work and as rightly pointed out by the counsel for the appellant i.e. for 11 months he has to be suitably compensated. 9. It is proved by Ex.P4, the attendance register that the claimant was absent from 05.05.1999 to 30.04.2000, on which date he got voluntary retirement. For 11 months, he could not attend the work and as rightly pointed out by the counsel for the appellant i.e. for 11 months he has to be suitably compensated. Through Ex.P3, it was proved that the claimant was earning Rs.6,790/-and through Ex.P1 it was proved that he was taking treatment for 12 days as inpatient Ex.P2 proved that he continued to take treatment even after discharge and that was the reason why he could not report the duty till the date of voluntary retirement. It is very difficult to get the job in these days and such is the position, no person like the claimant would chose to get voluntary retirement especially, when he had six years of service left. Therefore, this Court comes to the conclusion that the disability alone compelled the claimant to take voluntary retirement. 10. Therefore, this Court awards a sum of Rs.45,000/-as per Ex.P12 disability certificate. Regarding the loss of income during treatment, the claimant is entitled to get compensate hence for 11 months, the claimant is entitled to Rs.6,790/-x11 = Rs.74,690/- Hence Rs.5,000/- the amount already awarded by the Tribunal has to be adjusted from the said amount. Accordingly a sum of Rs.69,790/- is awarded towards loss of income during treatment. For medical treatment and medicine a sum of Rs.5,000/-was awarded by the Tribunal and the same is confirmed. Towards pain and suffering, this Court enhance the said amount to Rs.10,000/-and for extra nourishment a sum of Rs.5,000/- is awarded. 11. Accordingly, the award of the Tribunal is modified is as follows:- Towards loss of income Rs. 69,690.00 Transportation Rs. 2,000.00 Extra Nourishment Rs. 5,000.00 Medical Expenses Rs. 5,000.00 Pain and Suffering Rs. 10,000.00 Permanent disability Rs. 45,000.00 ------------------ 1,36,690.00 12. The Tribunal awarded the interest at 9% p.a and the same is confirmed. The above appeal is partly allowed as stated above. 13. Eventhough, the claimant prayed for Rs.1,00,000/- this Court after re-appreciation of pleadings and evidence awards Rs.1,36,690/-. This Court awards has jurisdiction of powers to award more amount, even though, the lesser amount has been prayed for. The Tribunal awarded the interest at 9% p.a and the same is confirmed. The above appeal is partly allowed as stated above. 13. Eventhough, the claimant prayed for Rs.1,00,000/- this Court after re-appreciation of pleadings and evidence awards Rs.1,36,690/-. This Court awards has jurisdiction of powers to award more amount, even though, the lesser amount has been prayed for. It has been decided by the Honble Supreme Court in Nagappa .vs. Gurthyal reported in 2003 (2) SCC P.274 and National Insurance Company Limited Vs.Saroja and others reported in 2009(1) TNMAC P.619. Apart from that, the provisions of the M.V.Act are beneficial in nature and strict law of pleadings and evidence are not applicable in the proceedings. Even in the absence of appropriate prayer, this Court can award more amount under section 173 r/w sec 151 under article 227 of Constitution of India. Accordingly the amount is enhanced as above. In the enhanced amount this Court awards 7.5% interest.