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2010 DIGILAW 2159 (MAD)

Colleen M. Vail v. D. G. Kannan & Another

2010-05-03

C.S.KARNAN

body2010
Judgment :- 1. The above Civil Miscellaneous Appeal has been filed by the appellant/petitioner against the Award and Decree, dated 24.08.2001, made in M.C.O.P.No.378 of 1999, on the file of the Motor Accident Claims Tribunal, Vth Small Causes Court, Chennai, awarding a compensation of Rs.30,000/-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/petitioner has filed the above appeal praying to set aside the Order passed by the Tribunal and to enhance the compensation to Rs.1,00,000/-. 3. The short facts of the case are as follows: On 25.02.1996, at about 02.30 p.m. while the petitioner was travelling as a pillion rider in the motorcycle, bearing registration No.TMW448, on the 100 Feet road, the autorickshaw bearing registration No.TN01 B7558, driven rashly and negligently by its driver in a manner endangering public safety, came at a high speed, in the same direction and dashed against the motorcycle and caused grievious injuries to the petitioner. As the accident had happened only due to the rash and negligent driving of the vehicle by its driver, the first respondent, as the owner of the vehicle and the second respondent, as the insurer of the vehicle are jointly, vicariously and statutorily liable to pay the compensation as claimed by the petitioner with interest and costs. 4. The petitioner, aged about 67 years was treated as an inpatient at Vijaya Health Centre from 25.08.1996 to 31.08.1996 and was treated as outpatient for more than two months. As a result of the injuries sustained by her, the petitioner has sustained permanent disability and is not able to do her normal work. Hence, the petitioner has claimed a compensation of Rs.1,00,000/-from the respondents under Section 163(A) and Rule 3 of the M.A.C.T.Rules. 5. The first respondent did not enter appearance before the Tribunal. 6. The second respondent, in his counter, has resisted the claim stating that the petitioner has to prove the nature of injuries and disability sustained by her in the accident through documentary evidence. The second respondent has also submitted that the petitioner has to prove that the first respondents vehicle had been covered under a valid policy of insurance with them. The second respondent, in his counter, has resisted the claim stating that the petitioner has to prove the nature of injuries and disability sustained by her in the accident through documentary evidence. The second respondent has also submitted that the petitioner has to prove that the first respondents vehicle had been covered under a valid policy of insurance with them. It has also been submitted that as the accident has not been reported to them by the first respondent, they are not liable to pay any compensation to the petitioner. Hence, the second respondent has stated that the claim petition should be dismissed with costs. 7. The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Who is responsible for the accident? (ii)What is the quantum of compensation, which the petitioner is entitled to get? 8. On the petitioner side, two witnesses were examined as PW1 and PW2 and five documents were marked as Exs.P1 to P5. On the respondents side no witnesses were examined and no documents were marked. 9. The injured petitioner was examined as PW1. The PW1, in her evidence, had stated that on 25.08.1996, at about 02.30 p.m. in the evening, while she was travelling as a pillion rider in the motorcycle bearing registration No.TMW448, on the 100 feet road at Koyambedu, the first respondents auto coming in the same direction had dashed behind the motorcycle and caused injuries to her. She has stated that the accident was due to the fault of the auto driver only. In support of her evidence, she has marked Ex.P3, the FIR. The respondents had not refuted the allegations of the petitioner through oral or documentary evidence. Hence, the Tribunal on considering the fact that no contra evidence had been let in by the respondents to nullity the claim of the petitioner and on scrutiny of Ex.P3, the FIR held that the accident had been caused due to the fault of the first respondents auto driver, and hence held that the compensation assessed by them has to be paid to the petitioner by the second respondent on behalf of the first respondent. 10. 10. The PW1, in her evidence had deposed that she had sustained a fracture of the bone in her right shoulder and also sustained injuries all over her body due to the said accident and that she had taken treatment of Vijaya Hospital, as an inpatient for six days. In support of her evidence, she had marked Ex.P1, the Discharge Summary issued by the said Hospital. In support of her claim of Rs.45,885/- towards medical expenses, she has marked Ex.P2, the medical bills. She had further deposed that surgery had been done wherein steel plates had been fixed to join her fractured bone and that these plates had to be removed only after a period of three years. She had deposed that after the accident, she is not able to walk, stand and so she had employed a person to cook meals, and that as a result of this she has to pay a monthly salary to the cook. 11. The Doctor, who had assessed the disability of the petitioner was examined as PW2. The PW2, in his evidence, had deposed that the petitioner had a surgical operation done on her right arm to set right the fracture of the bone in her right arm; that steel plates had been fixed to the bones and due to this the movements of the petitioners right arm has been reduced by 20 Degrees; that the petitioner is not able to grasp any object firmly using her fingers of her right hand and that she is also not able to lift heavy objects and do work. As such, the Doctor had deposed that the petitioner has sustained 35% disability in the accident and marked Ex.P4, the Disability Certificate. As such, the Tribunal, on consideration of the petitioners age, occupation and nature of injuries sustained by her in the accident granted her an award of Rs.500/-for transport expenses and Rs.500/-for nutrition. The Tribunal, on scrutiny of Ex.P2, the medical bills, awarded a compensation of Rs.15,000/-under the head of medical expenses. The Tribunal further awarded a sum of Rs.4,000/-under the head of pain and suffering and a sum of Rs.10,000/-under the head of permanent disability. The Tribunal, on scrutiny of Ex.P2, the medical bills, awarded a compensation of Rs.15,000/-under the head of medical expenses. The Tribunal further awarded a sum of Rs.4,000/-under the head of pain and suffering and a sum of Rs.10,000/-under the head of permanent disability. In total, the Tribunal awarded a sum of Rs.30,000/-to the petitioner as compensation and directed the respondents to deposit the above said award together 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.C.O.P.No.378 of 1999, on the file of the Motor Accident Claims Tribunal, Vth Small Causes Court, Chennai, with costs, within a period of eight weeks from the date of its Order. Further, after such deposit was made, the award with accrued interest was to be invested in a nationalised bank at Chennai, as fixed deposit for a period three years. The Advocate fees was fixed at Rs.1,500/-. 12. The learned counsel appearing for the appellant has contented in the appeal that the Tribunal while accepting the evidence of the PW1 and PW2 regarding the nature of injuries sustained by the petitioners, which had been marked through Exs.P1, P2 and P4 did not consider the same while awarding compensation. The PW1 has clearly deposed that she had sustained "comminuted fracture shaft of right humerus with radial nerve palsy" and was admitted in MIOT Hospital from 25.08.1996 to 31.08.1996 and was inpatient for six days. During that period, she was operated "under plate osteosynthesis of the right humerus with exploration of the radial nerve on 27.08.1996", which is clearly mentioned in Ex.P1, the Discharge Summary. Due to the said injuries, the petitioner is unable to do her day to day work even today. The PW1 has also marked medical bills series as Ex.P2 for a sum of Rs.45,885/-. There was no evidence let in by the respondent in this aspect. The learned counsel appearing for the appellant has therefore contended that the Tribunal ought to have awarded the entire claim or more as compensation after considering all the above facts. It was also pointed out that the Tribunal, while accepting the disability of the claimant as 35% ought to have awarded more than the claim of Rs.20,000/-made under this head, as the disablement will affect the claimants day to day activities. It was also pointed out that the Tribunal, while accepting the disability of the claimant as 35% ought to have awarded more than the claim of Rs.20,000/-made under this head, as the disablement will affect the claimants day to day activities. As such, the appellants counsel had contended that the Tribunal had erred in awarding only a sum of Rs.10,000/- under the head of permanent disability. It has also been contended that the Tribunal ought to have awarded a sum of Rs.20,000/- under the head of continuing inconvenience, discomfort, disappointment, frustration and mental strain instead of rejecting the claim under this head. It has also been contended that the award of Rs.500/-granted by the Tribunal under the head of transport to hospital and an award of Rs.500/- under the head of extra-nourishment was meagre and has contended that the Tribunal should at least have awarded a sum of Rs.2,000/-as award under each of the above heads, considering the nature of injuries and a period of treatment. 13. As such, the learned counsel appearing for the appellant has prayed to set aside the award and decree passed by the Tribunal and has sought an enhanced compensation of Rs.1,00,000/-. 14. The learned counsel appearing for the second respondent argued that the Tribunal had awarded the compensation on the basis of the age of the claimant and the nature of injuries sustained by her. As the accident happened in the year 1996, the compensation awarded by the Tribunal is reasonable. The Tribunal had awarded compensation under all the pertinent heads. As such, the learned counsel appearing for the second respondent had submitted that the Civil Miscellaneous Appeal is not maintainable. 15. Considering the facts and circumstances of the case and after going through the findings of the Tribunal and after hearing the arguments advanced by the learned counsels on either side, the Court is of the view that the award granted by the Tribunal is on the lower side, since the claimant had sustained grievious injuries. As such, this Court enhances the compensation as follows: 1. For transport expenses, the Tribunal awarded a sum of Rs.500/-. This Court enhances the award granted under this head to Rs.1,000/-. 2. For nutrition, the Tribunal awarded a sum of Rs.500/-. This Court enhances the award granted under this head to Rs.1,000/-. 3. As such, this Court enhances the compensation as follows: 1. For transport expenses, the Tribunal awarded a sum of Rs.500/-. This Court enhances the award granted under this head to Rs.1,000/-. 2. For nutrition, the Tribunal awarded a sum of Rs.500/-. This Court enhances the award granted under this head to Rs.1,000/-. 3. For medical expenses, the Tribunal awarded a sum of Rs.15,000/- on the basis of Ex.P2. This Court enhances the award granted under this head to Rs.45,885/-as per Ex.P2 and also considering that she had been an inpatient at MIOT Hospital for six days. 4. For pain and suffering, the Tribunal awarded a sum of Rs.4,000/-. This Court enhances the award granted under this head to Rs.5,000/-. 5. For disability, the Tribunal awarded a sum of Rs.10,000/-. This Court enhances the award granted under this head to Rs.35,000/-considering the fact that the claimant had sustained 35% disability. 6. For future medical expenses, this Court awards a sum of Rs.5,000/-, that would be incurred by the claimant for removal of steel plates from the operated region of her body. In total, this Court awards a sum of Rs.92,885/-to the claimant as it is found to be fair and equitable. 16. Therefore, this Court directs the second respondent/United India Insurance Company Ltd., to deposit the additional compensation amount of Rs.62,885/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.378 of 1999, on the file of the Motor Accident Claims Tribunal, Vth Small Causes Court, Chennai, within a period of four weeks from the date of receipt of a copy of this Order. 17. As the accident happened in the year 1996, it is open to the claimant to withdraw the additional compensation amount, together with accrued interest, lying in the credit of the M.C.O.P.No.378 of 1999, on the file of the Motor Accident Claims Tribunal, Vth Small Causes Court, Chennai, after filing necessary application, in accordance with law. 18. In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 24.08.2001, made in M.C.O.P.No.378 of 1999, on the file of the Motor Accident Claims Tribunal, Vth Small Causes Court, Chennai, is modified. Consequently, connected miscellaneous petition is closed. There is no order as to costs.