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2012 DIGILAW 2865 (MAD)

Rajasekar v. R. Kumar

2012-07-06

R.KARUPPIAH

body2012
Judgment :- 1. This appeal is preferred as against the award and decree dated 26.3.2004 in MCOP No.335 of 2002 on the file of the I Additional District Court, Motor Accident Claims Tribunal, Erode. 2. The petitioner/claimant in the above said OP is the appellant herein. He has filed this appeal for enhancement of compensation amount awarded by the Tribunal. 3. The appellant/petitioner has filed the claim petition for compensation of Rs.5,00,000/-for the injuries sustained by him in the motor accident occurred on 289.2001. Briefly, the case of the petitioner is that on 28.9.2001 at 2.00 A.M., the petitioner was driving the bus bearing Registration No.TN 33 N 1433 via Madurai to Dindigul Road near Pandiarajapuram in front of Tafe Tractor Company and at that time, a lorry bearing Registration No.KA 01 A 1587 belonging to the second respondent, was driven by its driver, namely the first respondent, and was coming from the opposite direction in a rash and negligent manner and hit against the bus and in the above said accident, the petitioner sustained grievous injuries and was admitted in the Government Hospital, Madurai and then at LKM Hospital, Erode and till the date of filing the claim petition, he was taking treatment and in spite of it, he sustained permanent disability and at the time of accident, the petitioner was 32 years and was working as a Driver in TNSTC and earned Rs.8,000/- per month and the first respondent is the driver of the above said lorry and the second respondent is the owner of the lorry and the third respondent is the insurer of the above said lorry and the accident had occurred due to the rash and negligent driving of the first respondent and they are liable to pay compensation. 4. 4. Before the Tribunal, the first respondent, who is the driver of the above said lorry, and the third respondent, who is the insurer of the lorry, remained ex-parte and only the second respondent, who is the owner of the lorry, has filed counter statement and contested the case and the second respondent has stated in his counter, that on 28.9.2001 at 2.00 A.M., near Madurai to Dindigul NH Rajapuram near Tafe Tractor Company, the first respondent drove the lorry bearing Registration No.EA 01 A 1587, in a careful manner and at that time, the bus bearing Registration No.TN 33 N 1433, in which the petitioner travelled, voluntarily dashed the lorry and hence the driver of the bus was solely responsible for the accident and any how, in this case, contributory negligence arose and the second respondent is not answerable to the above said accident. It is further stated in the counter, that the injuries sustained by the petitioner, are simple in nature and there is no grievous injury and the avocation and income of the petitioner are denied and the amount of compensation claimed, is excessive. It is further contended that if any compensation is being awarded, the third respondent alone is liable to pay the same and the second respondent is not liable to pay any compensation. 5. Before the Tribunal, on the side of the petitioner, the petitioner himself has deposed as P.W.1 and also examined one Dr.V.P.Sundaravadivel as P.W.2 and marked 19 documents as Exs.P1 to P19 and on the side of the second respondent, no witness was examined and no document was marked. Considering the above said oral and documentary evidence adduced on the side of the petitioner, the Tribunal has held that the accident has occurred only due to the rash and negligent driving of the first respondent, who is the driver of the second respondent's vehicle and hence the respondents 2 and 3 are liable to pay compensation. 6. Considering the above said oral and documentary evidence adduced on the side of the petitioner, the Tribunal has held that the accident has occurred only due to the rash and negligent driving of the first respondent, who is the driver of the second respondent's vehicle and hence the respondents 2 and 3 are liable to pay compensation. 6. With regard to compensation, considering the age of the petitioner as 32, the monthly income of the deceased as Rs.8,000/-and 35% disability assessed by P.W.2 the Doctor, the Tribunal has assessed the permanent disability as 30% and awarded Rs.45,000/- for permanent disability and also awarded Rs.5,000/- for pain and sufferings and considering the medical bills, awarded for medical expenses Rs.14,295/-as per Ex.P9 medical bills; Rs.35,280/- as per Ex.P11 medical bills; Rs.64,000/-as per Ex.P12 medical bills and Rs.2,165/-as per Ex.P16 medical bills, and totally awarded a sum of Rs.1,65,740/- with 9% interest. 7. The first respondent remained ex-parte in the main OP itself and is also given up in this appeal. There was no representation on behalf of second respondent in spite of service of notice. 8. Heard the learned Counsel for the appellant and learned Counsel for the third respondent Insurance Company. 9. As already stated, the driver of the vehicle, namely the first respondent, and the insurer of the vehicle, namely the third respondent, remained ex-parte before the Tribunal and only the owner of the vehicle, namely the second respondent, has filed counter and contested the case. With regard to negligence aspect, on the side of the petitioner, the injured petitioner himself deposed as P.W.1 and marked Ex.P1, copy of the printed FIR, Ex.P2, copy of observation mahazar, Exs.P3 and P4, copies of M.V. Inspector's reports for both the vehicles and Ex.P7, copy of charge sheet. A perusal of the above said oral evidence of P.W.1 and the above said documents reveals that the accident has occurred only due to the rash and negligent driving of the first respondent, who is the driver of the second respondent's vehicle. No contra evidence is adduced on the side of the respondents. A perusal of the above said oral evidence of P.W.1 and the above said documents reveals that the accident has occurred only due to the rash and negligent driving of the first respondent, who is the driver of the second respondent's vehicle. No contra evidence is adduced on the side of the respondents. Therefore, the Tribunal has correctly held that the accident has occurred only due to the rash and negligent driving of the first respondent, who is the driver of the second respondent's vehicle, and also correctly held that the respondents 2 and 3, who are the owner and insurer of the vehicle respectively, are liable to pay compensation. 10. The appellant herein, who is the petitioner/claimant, has filed this appeal only for enhancement of compensation. Learned Counsel for the appellant has mainly contended that the petitioner has sustained grievous injuries and disability was assessed as 35% and the Tribunal has not considered the above said disability and also the treatment undergone by the petitioner, but wrongly awarded amounts on various heads, which are very low, and hence prayed to enhance the compensation. 11. A perusal of the award reveals that the Tribunal has awarded compensation as under: Rs. Permanent disability 45,000 Pain and sufferings 5,000 Medical expenses as per Ex.P9 14,295 Medical expenses as per Ex.P11 35,280 Medical expenses as per Ex.P12 64,000 Medical expenses as per Ex.P16 2,165 1,65,740 12. Admittedly, the petitioner has sustained grievous injury and considering the evidence of P.W.2, the Doctor, the disability was assessed as 30%. It is also admitted that the petitioner was a Driver in TNSTC. But, on the side of the petitioner, he has not produced any document to prove the fact that after the accident and in view of the injuries sustained by him, the petitioner was not working as before the accident. Nobody was examined to prove the above said fact and therefore, even after the accident, the petitioner was working as before. But, due to injuries sustained by him, and the disability assessed by the Doctor, the petitioner would be certainly suffering and therefore, considering the nature of injuries, disability, age and other factors, this Court is of the view that the award amount for 30% permanent disability is to be enhanced from Rs.45,000/- to Rs.60,000/-, which is just and fair compensation. With regard to pain and sufferings, the Tribunal has awarded only Rs.5,000/-. With regard to pain and sufferings, the Tribunal has awarded only Rs.5,000/-. The petitioner has sustained grievous injuries and was taking treatment for a long period and several medical bills have been produced and the above said fact reveals that the amount awarded for pain and sufferings, namely Rs.5,000/-, is very low and hence it is to be enhanced as Rs.10,000/-. The Tribunal has correctly awarded for medical expenses and no interference needs in the above said finding. 13. Learned Counsel for the appellant has contended that the Tribunal has failed to award amounts for transportation, loss of income during the treatment period, extra nourishment and future medical expenses. Considering the nature of injuries sustained by the petitioner, period of treatment and disability and also considering the future treatment and other factors, this Court is of the view that the following amounts can be awarded as just and reasonable compensation. As already discussed, the amount awarded by the Tribunal for permanent disability, is to be enhanced as Rs.60,000/-and the amount for pain and sufferings is also to be enhanced from Rs.5,000/-to Rs.10,000/-. Apart from that, for transportation Rs.5,000/-; for loss of income during the treatment period Rs.5,000/-; for extra nourishment Rs.5,000/-and for future medical expenses Rs.10,000/- are to be awarded to arrive just and reasonable compensation to the petitioner. 14. From the above said discussion, the award passed by the Tribunal, is modified and enhanced as under: Permanent disability 60,000 Pain and sufferings 10,000 Medical expenses as per Ex.P9 14,295 Medical expenses as per Ex.P11 35,280 Medical expenses as per Ex.P12 64,000 Medical expenses as per Ex.P16 2,165 Transportation 5,000 Loss of income during the treatment period 5,000 Extra nourishment 5,000 Future medical expenses 10,000 Total 2,10,740 Rounded off to: 2,11,000 15. In the result, this civil miscellaneous appeal is allowed and the compensation amount awarded by the Tribunal, is enhanced from Rs.1,65,740/- to Rs.2,11,000/-with 9% interest. The third respondent is directed to deposit the above said award amount to the credit of the MCOP within a period of four weeks from the date of receipt of copy of this judgment and the petitioner/claimant is permitted to withdraw the same on proper application before the Tribunal. No costs.