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2010 DIGILAW 2290 (MAD)

Arabinda Medda v. Sri. V. Subba Rao

2010-06-08

P.P.S.JANARTHANA RAJA

body2010
Judgment :- 1. The appeal is preferred by the claimant against the Judgment and Decree dated 01.11.2001 made in M.A.C.T.O.P.No.489 of 1999 on the file of the VI Judge, Motor Accident Claims Tribunal (Court of Small Causes) Chennai. 2. Background facts in nutshell are as follows: The injured-Arabinda Medda met with motor vehicle accident on 18.11.1998 at about 4.10 p.m. While the injured was proceeding in his Motorcycle bearing registration No.TSC 1176 at Luz Church Road, Chennai-600 004, a Maruthi Van bearing Registration No. TN 07 A 8260 belonging to the first respondent came in a rash and negligent manner and hit the claimant. Due to the impact, the claimant sustained grievous injuries. The Maruthi Van belonging to the first respondent was insured with the second respondent/Insurance Company. Though, the claimant/injured claimed a sum of Rs.3,00,000/-, he has restricted his claim to Rs.2,00,000/- as compensation. The 2nd Respondent-Insurance Company 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 1st respondent-Maruthi Van driver or not? 2. Whether the claimant is entitled to any claim? 3. If so, how much?" 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 Maruthi Van belonging to the first respondent and awarded a compensation of Rs.41,000/- with interest at 9% per annum from the date of petition and the details of the same are as under:- Loss of earnings Rs. 1,000/- Transport and Nutrition Rs. 1,000/- Medical expenses Rs. 14,000/- Pain and Suffering Rs. 2,000/- Permanent disability Rs. 20,000/- Loss of earning power Rs. 3,000/- Total... Rs. 41,000/- ========== Aggrieved by that award, the claimant has filed the present appeal for enhancement. 3. The learned counsel appearing for the claimant-appellant submitted that the Tribunal awarded very low and meagre compensation. 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. While awarding compensation towards disability, the Tribunal has not given any reason. Therefore, the order passed by the Tribunal is not in accordance with law and it is the fit case for enhancement. 4. While awarding compensation towards disability, the Tribunal has not given any reason. Therefore, the order passed by the Tribunal is not in accordance with law and it is the fit case for enhancement. 4. The learned counsel appearing for the second respondent/Insurance Company contended 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. 5. Heard the counsel. On the side of the claimant, P.Ws.1 and 2 were examined and documents Exs.P1 to P6 were marked. On the side of the respondents, no one was examined and no documents were marked. P.W.1 is the claimant. He has himself given oral evidence. PW2 is Dr. Thiagarajan, who examined the injured. Ex.P1 is the Discharge Summary. Ex.P2 is the series of bills. Ex.P3 is the Doctors fee bills. Ex.P4 is the First Information Report. Ex.P5 is the copy of Rough sketch. Ex.P6 is the Disability Certificate. After considering the above 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 Maruthi Van and awarded the compensation. The finding is based on valid materials and evidence and the same is confirmed. 6. Now coming to the quantum of compensation, at the time of the accident, the claimant was aged about 35 years. He is a Goldsmith and earning Rs.3,000/- p.m. In his evidence he has stated that the driver of the Maruthi Van, who came behind the claimant in a rash and negligent manner has hit the claimant and due to the same, he sustained the following injuries: "Fracture over right leg ankle, crush and deep cut wound over right leg foot skin pealed off up to bone, blood vessels damaged, nerves cut, skin grafting done and applied over the right leg foot, dislocation of bone over right leg joint and multiple injuries all over the body" Immediately he was admitted in Devaki Hospital, Chennai, where he took treatment as inpatient from 18.11.1998 to 30.11.1998 and thereafter treated as outpatient. According to claimant, due to the injuries, he is unable to walk and stand substantially and not able to do the work as before. According to claimant, due to the injuries, he is unable to walk and stand substantially and not able to do the work as before. The claimant/appellant claimed a sum of Rs.3,000/-as monthly income but no document was produced to substantiate the same. On perusal of the order, the Tribunal awarded only a sum of Rs.1,000/-towards loss of earning. P.W.1-the claimant/appellant deposed that he took treatment as inpatient from 18.11.1998 to 30.11.1998 and later as outpatient and he is unable to do the work as before. Taking into consideration of the above, it is reasonable to award a sum of Rs.4,000/- towards loss of earnings during treatment period as against Rs.1,000/-awarded by the Tribunal. Further, the Tribunal awarded only a sum of Rs.1,000/-towards Transport charges as well as extra nourishment. It is not in dispute that since the claimant took treatment in the hospital form 18.11.1998 to 30.11.1998, he would have certainly incurred expenditure towards transport charges and also extra nourishment. Therefore, I feel that it is reasonable to award a sum of Rs.4,000/-as against Rs.1,000/- awarded by the Tribunal under these heads. In respect of medical expenses, the Tribunal has awarded Rs.14,000/-. Ex.P3 is the series of bills. It is an actual expenditure incurred by the claimant. Therefore, the amount awarded under this head is very reasonable and the same is confirmed. Further, the Tribunal has awarded only a sum of Rs.2,000/- towards pain and suffering. The learned counsel appearing for the claimant vehemently contended that the claimant sustained grievous injuries and also due to the same he is unable to walk and stand substantially and unable to do the work as before. Considering the above submissions and also the facts and circumstances of the case, it is reasonable to award a sum of Rs.10,000/- under this head as against Rs.2,000/- awarded by the Tribunal. Considering the nature of the injuries, the Tribunal has awarded a sum of Rs.20,000/-towards disability. The learned counsel appearing for the appellant/claimant vehemently contended that P.W.2 Dr.Thiagarajan, who examined the claimant had determined the disability at 40%. There is no dispute regarding the nature of the injuries and also the said injuries affected the earning capacity of the claimant. Ex.P6 is the disability certificate. Without considering the same, the Tribunal has awarded a sum of Rs.20,000/- towards disability. P.W.2-doctor deposed that there is a restricted movement in his right leg. There is no dispute regarding the nature of the injuries and also the said injuries affected the earning capacity of the claimant. Ex.P6 is the disability certificate. Without considering the same, the Tribunal has awarded a sum of Rs.20,000/- towards disability. P.W.2-doctor deposed that there is a restricted movement in his right leg. But the Tribunal was of the view that 40% disability is on the higher side. After taking into consideration the facts and circumstances of the case, I feel that it is reasonable to take disability at 25%. Normally, the Courts awarded Rs.1,000/- to Rs.2,000/-per percentage of disability. Considering the same, it would be appropriate to award a sum of Rs.45,000/-towards permanent disability. The Tribunal has awarded a sum of Rs.3,000/- towards loss of earning power. As already awarded compensation under the head disability, I feel that the amount awarded under this head is unwarranted and the same is deleted. The details of the modified compensation as per the above discussion are as under:- Loss of earnings Rs. 4,000/- (during treatment period) Transport to hospital and extra nourishment Rs. 4,000/- Medical expenses Rs. 14,000/- Pain and sufferings Rs. 10,000/- Permanent disability(25%) Rs. 45,000/- Total... Rs. 77,000/- Less: Already awarded amount Rs. 41,000/- -------------- Enhanced amount Rs. 36,000/- ======== Therefore, the claimant is entitled to the enhanced compensation of Rs.36,000/-(Rs.77,000-41,000) with interest 7.5% p.a. The second respondent-Insurance Company is directed to deposit the enhanced compensation of Rs.36,000/-with interest at the rate of 7.5% per annum 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 enhanced amount after making proper application. 7. With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs.