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2012 DIGILAW 856 (MAD)

District Social Welfare Officer v. R. Aravind

2012-02-17

R.BANUMATHI

body2012
Judgment :- 1. Aggrieved by the award of compensation by the Motor Accidents Claims Tribunal (IV Small Causes Court), Chennai in the judgment dated 13.12.2006 made in M.C.O.P.No.2108 of 2009 for the injuries sustained by the Respondent, the Appellant has preferred this appeal. 2. The brief facts of the case are as follows:- On 23.1.2000 at about 22.45 hours when the Respondent was travelling as pillion rider in motor cycle bearing registration No.TN 05 C 3765 from west to East in II Avenue, Anna Nagar, near the junction of III Main Road, the Jeep bearing registration No. TN 01 G.1113 belonging to Respondent was driven rashly and negligently in high speed from East to West in the same road and turned right without watching the on coming vehicle and hit against the motor cycle in which the Respondent was travelling as a pillion rider and the Respondent was thrown out off his motor cycle and suffered grievous injuries i.e., fracture of Acetate drums right side, right femur, both bones of both legs and multiple injuries all over the body. Immediately, after the accident, Respondent was admitted in Royapettah Government Hospital where he had taken treatment from 24.1.2000 to 16.3.2000 and thereafter as out-patient. Regarding accident a criminal case in Crime No.32/AS3/2000 was registered on the file of K-4 Anna Nagar Police Station, Chennai. Due to the accident, the Respondent was bed ridden and unable to move about and sit nor walk as before. Alleging that the accident was solely due to the rash and negligent driving of Appellant vehicle bearing registration No.TN 01 G 1113, the Respondent has filed Claim Petition claiming compensation of Rs.8,00,000/-. 3. Resisting the claim made by the Respondent, the Appellant filed counter denying the rash and negligent driving of the vehicle by its driver and contended that the driver of the Respondent had driven the jeep TN 01 G 1113 from east to west in a moderate speed and he has turned the jeep on the right side after switching on the right side indicator and also giving hand signal. The rider of the motor cycle TN-05-C-3765 came from west to east in a rash and negligent manner and dashed against the jeep and the driver of the motor cycle is alone responsible for the accident. At the time of accident, the Respondent and the rider of the motor cycle were in a drunken state. The rider of the motor cycle TN-05-C-3765 came from west to east in a rash and negligent manner and dashed against the jeep and the driver of the motor cycle is alone responsible for the accident. At the time of accident, the Respondent and the rider of the motor cycle were in a drunken state. The Respondent has to prove the age, injuries, medical expenses incurred, disability and that he is student in Dr.Krishnaswamy Matriculation School, Anna Nagar, Madras. The claim of the Respondent is excessive and exaggerated one. 4. Before the Tribunal, on behalf of the Respondent/Claimant, P.Ws.1 and 2 were examined and Exs.P1 to P14 were marked. On behalf of the Appellant, RW1-driver of the jeep was examined and copy of judgment in Criminal Case was marked as Ex.R.1. 5. Upon consideration of the oral and documentary evidence adduced on either side, the Tribunal held that the Claimant had sustained injuries due to the rash and negligent driving of the jeep by the driver of the Respondent and has awarded total compensation of Rs.2,22,350/- together with interest at 7.5% per annum from the date of petition and the details of which are as under:- 6. Challenging the award passed by the Tribunal, Mr.M.Venugopal, learned Additional Government Pleader (CS) for appellant contended that the accident had occurred only due to the negligent driving of the rider of the motorcycle and that the rider of the motorcycle does not possess driving licence. Learned Additional Government Pleader would further contend that the Tribunal has erred in fixing the percentage of disability for the simple injury and ought not to have awarded compensation under the head of permanent disability and the compensation awarded is excessive and arbitrary. 7. Considering the defence plea taken by the Appellant that the rider of the motorcycle did not have the valid driving licence, Tribunal held that merely because the rider of the motorcycle did not have the valid driving licence by itself cannot be a reason attributing negligence to the rider of the motorcycle. By perusal of Ex.P12-sketch, it is seen that the motorcycle has already crossed substantive part of the road and that when the jeep taking a "U" turn, the left side of the jeep hit against the two wheeler. The jeep driver who was taking a "U" turn ought to have slow down the vehicle. By perusal of Ex.P12-sketch, it is seen that the motorcycle has already crossed substantive part of the road and that when the jeep taking a "U" turn, the left side of the jeep hit against the two wheeler. The jeep driver who was taking a "U" turn ought to have slow down the vehicle. Pws.1 and 2 have clearly spoken about the negligence of the jeep driver. In Ex.R1-judgment in Criminal Case also the fact that the motorcycle crossed three-fourth of the road has been referred to. As pointed out by the Tribunal, the Criminal Case ended in acquittal mainly on the ground that witnesses were not examined. Acquittal of jeep driver in a Criminal Case would not in any way absolve the liability of the Appellant to pay the compensation. Upon analysis of Ex.P7-FIR, Ex.P8-charge sheet and oral and documentary evidence, Tribunal has rightly held that the accident was due to rash and negligent driving of the jeep driver and the same is confirmed. 8. In the accident, Claimant has sustained fracture of both bones of both legs, right femur and fracture right acetabulum. After the accident, the Claimant was admitted in Bone and Joint Clinic, Anna Nagar, Chennai where he had taken treatment for two days i.e. 23.01.2000 and 24.01.2000. Thereafter, Claimant was admitted in Royapettah Government Hospital where he had taken treatment for nearly two months from 24.01.2000 to 16.03.2000. Even after his discharge, the Claimant continued his treatment as out-patient. The nature of treatment given to the Claimant are elaborated in Ex.P2-discharge summary. 9. At the time of examination, Claimant was studying in 10th standard. In his evidence PW1-Claimant has stated that because of the injuries sustained, he could not continue his studies and could not write his examination. PW1 would further state that even after the accident, he had difficulties in walking. 10. PW2-Dr.Thiagarajan has clinically examined the Claimant and issued Ex.P13-disability certificate. In Ex.P13-disability certificate, it is stated that there is a restricted movement of right knee. Right leg is malunited and because of fracture, right femur is also malunited. Since the movement of lower limb is restricted, PW2-Dr.Thiagarajan had issued Ex.P13-disability certificate estimating the total disability at 80%. 11. The compensation to be awarded must be just to adequately restore the Claimant to the position prior to the accident. Right leg is malunited and because of fracture, right femur is also malunited. Since the movement of lower limb is restricted, PW2-Dr.Thiagarajan had issued Ex.P13-disability certificate estimating the total disability at 80%. 11. The compensation to be awarded must be just to adequately restore the Claimant to the position prior to the accident. It has been consistently held by the Supreme Court that a person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury that is the Claimant has to be compensated for his inability to enjoy the normal amenities which he would have enjoyed but for the injuries. [Vide Arvind Kumar Mishra v. New India Assurance Co. Ltd., 2011 ACJ 2867 (SC); Raj Kumar v. Ajay Kumar, 2011 ACJ 1 (SC); and Govind Yadav v. New India Assurance Co. Ltd., 2012 ACJ 28 (SC)]. 12. Based upon Exs.P3, P5 and P6-medical bills and the evidence of PW1, Tribunal has awarded Rs.61,350/- for "medical expenses". For loss of amenities and for loss of education, Tribunal has awarded Rs.50,000/-and the same are maintained. Tribunal has awarded Rs.25,000/- for pain and suffering and the same is also maintained. Claimant has sustained 80% permanent disability of lower limb with restricted movement and therefore, the compensation of Rs.80,000/-awarded by the Tribunal for "permanent disability" is just and reasonable and the same is maintained. Tribunal has awarded Rs.3000/- for 'transport charges" and Rs.3000/- for "extra-nourishment" and the same is maintained. Thus the total compensation of Rs.2,22,350/- awarded by the Tribunal is just and reasonable warranting no interference. 13. In the result, the compensation of Rs.2,22,350/-awarded by the Tribunal in M.C.O.P.No.3443 of 2000 dated 13.12.2006 on the file of IV Small Causes Court, Chennai is confirmed and the appeal is dismissed. No costs. It was stated before us that as per the order in M.P.No.1 of 2009 dated 27.07.2009, Appellant has deposited 70% of the compensation together with accrued interest and cost and the Claimant has withdrawn the said amount along with proportionate accrued interest. Appellant is directed to deposit the balance 30% of the compensation amount along with proportionate accrued interest within a period of eight weeks from the date of receipt of copy of this judgment. On such deposit, the Claimant is permitted to withdraw the amount along with accrued interest.