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2010 DIGILAW 2291 (MAD)

A. Thirumalai v. B. Anandan

2010-06-08

P.P.S.JANARTHANA RAJA

body2010
Judgment :- 1. The appeal is preferred by the claimant against the award dated 11.07.2001 made in MCOP No.3323 of 1998 by the Motor Accident Claims Tribunal (II Judges, Small Causes Court) Madras. 2. Background facts in nutshell are as follows: The injured Thirumalai met with Motor Vehicle Accident on 21.02.1998 at about 8.00 A.M. While the appellant/claimant was proceeding in his bicycle on the left side of the road on the Porur Kunrathur Road, at Periya Panicherry, a Van bearing Registration No.TN 51 – 6345 belonging to the first respondent came in a rash and negligent manner and hit the cyclist. Due to the said accident, the injured sustained grievous injuries. The said Van was insured with the second respondent/Insurance Company, who resisted the claim. The appellant/claimant claimed a sum of Rs.3,00,000/- as compensation. On the pleadings the Tribunal framed the following issues:- "1. Whether the accident had occurred due to the rash and negligent driving of the driver of the Van belonging to the second respondent 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 Van and awarded a compensation of Rs.1,36,500/- with interest at 9% per annum from the date of petition and the details of the same are as under:- Loss of earning during treatment period Rs. 12,000/- Transport charges Rs. 1,000/- Extra Nourishment Rs. 2,000/- Damage to the cycle Rs. 500/- Medical Expenses Rs. 34,000/- Pain and Sufferings Rs. 7,000/- Permanent Disability Rs. 60,000/- Loss of earning power Rs. 20,000/- Total... Rs.1,36,500/- =========== 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 has awarded very low compensation and also the Tribunal ought to have awarded compensation as claimed by the claimant. He also submitted that the Tribunal has not followed the principles of assessment and without considering the relevant materials on record, it has awarded very low compensation. Therefore, the award passed by the Tribunal is not in accordance with law and it is the fit case for enhancement. 4. He also submitted that the Tribunal has not followed the principles of assessment and without considering the relevant materials on record, it has awarded very low compensation. Therefore, the award 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 respondent/Insurance Company 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. 5. Heard the counsel. On the side of the claimant, the injured Thirumalai/appellant was examined as P.W3 and Dr.Thiagarajan was examined as P.W.5 and also marked Exs.P8 to P11 and P15. Ex.P8 is the Discharge Certificate. Ex.9 is the Medical Bills. Ex.P10 is the O.P. Slips and Medical Prescriptions. Ex.P11 is the Medical Certificate. Ex.P15 is the disability certificate. On behalf of the Insurance Company no one was examined and no documents were marked. 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 Van and the finding is based on valid materials and evidence. 6. At the time of the accident, the claimant was aged about 30 years. He was a painter and also doing Tiles laying work. He claimed that he is earning of Rs.3,000/- per month. P.W.3, the claimant, in his evidence, he has stated that the accident had occurred due to rash and negligent driving of the driver of the Van and a case has been registered against the driver of the Van in Crime No.113/98 of D6, Mangadu Police Station under Sections 279, 337 and 304A I.P.C. Due to the Accident the claimant/appellant sustained head injury and multiple injuries all over the body and also the cycle was completely damaged. After the accident he took treatment in Ramachandra Hospital, Porur from 21.02.1998 to 24. 03.1998. Though the appellant/the claimant claimed Rs.3,000/-as monthly income, no document was filed to substantiate his claim. Therefore, Tribunal fixed the loss of income during treatment period at Rs.12,000/-, which is based on the valid material evidence and the same is confirmed. After the accident he took treatment in Ramachandra Hospital, Porur from 21.02.1998 to 24. 03.1998. Though the appellant/the claimant claimed Rs.3,000/-as monthly income, no document was filed to substantiate his claim. Therefore, Tribunal fixed the loss of income during treatment period at Rs.12,000/-, which is based on the valid material evidence and the same is confirmed. The Claimant/appellant claimed a sum of Rs.3,000/- towards Transport charges and a sum of Rs.7,500/- towards extra nourishment. There is no dispute that the claimant was admitted in the hospital. But the Tribunal awarded a sum of Rs.2,000/-towards extra nourishment which found to be very low. After taking into consideration of the facts and circumstances of the case, I feel that it is reasonable to award a sum of Rs.5,000/- towards transport charges and also another sum of Rs.5,000/- towards extra nourishment. The Tribunal has also awarded a sum of Rs.500/- towards damage to the cycle which I feel is very reasonable and the same is confirmed. Further the Tribunal has awarded a sum of Rs.34,000/-towards medical expenses. Ex.P9 is the Medical Bills which is an actual expenditure incurred by the claimant. Hence, the amount awarded under this head is very reasonable and the same is confirmed. Further the Tribunal has awarded a sum of Rs.7,000/- towards pain and suffering. The learned counsel appearing for the claimant vehemently contended that due to the injuries, the claimant is getting giddiness very often and he is unable to do his normal work and also unable to walk without support. After taking into consideration of the same, it is reasonable to award a sum of Rs.15,000/- as against Rs.7,000/- awarded by the Tribunal. Further, the Tribunal awarded a sum of Rs.60,000/- towards Permanent Disability and another sum of Rs.20,000/- towards loss of earning power. P.W.3 – Dr.Thiagarajan, who examined the claimant, has determined the disability at 70% and issued Ex.P15 Disability Certificate. 7. The learned counsel appearing for the appellant submitted that though the Doctor has determined the disability at 70%, the Tribunal ought not to have restricted the amount to Rs.60,000/- towards permanent disability and the amount awarded under this head is very low. As per Ex.P15 disability certificate issued by the Doctor, the disability determined at 70%. The Tribunal has not disputed the disability determined by the Doctor but awarded only a sum of Rs.60,000/- towards disability and Rs.20,000/-towards loss of earning power. As per Ex.P15 disability certificate issued by the Doctor, the disability determined at 70%. The Tribunal has not disputed the disability determined by the Doctor but awarded only a sum of Rs.60,000/- towards disability and Rs.20,000/-towards loss of earning power. Normally the Courts award Rs.1000/- to 2000/- per percentage of disability. After taking into consideration the nature of injuries sustained and oral and documentary evidence, it would be appropriate to award Rs.2000/- for 1% disability and Rs.2,000/- is awarded per percentage of disability, the amount works out to Rs.1,40,000/- (Rs.2,000 x 70) as against Rs.60,000/- awarded by the Tribunal. In view of awarding a sum of Rs.1,40,000/- towards permanent disability, it is not necessary to award compensation for loss of earning power and the amount of Rs.20,000/- awarded by the Tribunal is unwarranted and the same is deleted. The details of the modified compensation as per the above discussion are as under:- Loss of Income Rs. 12,000/- Transport to hospital`` Rs. 5,000/- Extra nourishment Rs. 5,000/- Cycle damage Rs. 500/- Medical expenses Rs. 34,000/- Pain and suffering Rs. 15,000/- Permanent disability (70%) Rs. 1,40,000/- Total... Rs. 2,11,500/-Less: Already awarded amount Rs. 1,36,500/- ----------------- Enhanced amount Rs. 75,000/- ========== Therefore, the claimant is entitled to the enhanced compensation of Rs.75,000/- (Rs.2,11,500 – 1,36,500) with interest at 7.5% p.a. from the date of petition. 8. The learned counsel appearing for the second respondent-Insurance Company is directed to the deposit the enhanced compensation of Rs.75,000/- with interest at 7.5% p.a. from the date of petition within a period of eight 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 making proper application. 9. With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs.