Judgment 1. The appellant/2nd respondent has preferred the present appeal in C.M.A. (MD).No.630 of 2008, against the judgment and decree passed in M.C.O.P.No.135 of 2003, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No. I, Tuticorin. 2. The petitioner, has filed the claim in M.C.O.P.No.135 of 2003, claiming a compensation of a sum of Rs.6,00,000/-from the respondents, for the injuries sustained by him in a motor vehicle accident. It was submitted that on 10.09.2002, at about 03.00 p.m., when the petitioner was proceeding on his motor cycle bearing registration No.TN-69E-8749, along with one Kathirvel, as the pillion rider, on the Thoothukudi 1st railway gate to 2nd railway gate main road, on the left side of the road, from west towards east and when the motor cycle was near Bethel hospital, the 1st respondents car bearing registration No.TN-69C-9889, coming from east to west on the same road and driven by its driver at a high speed and in a rash and negligent manner dashed against the motorcycle and caused the accident. In the impact, the petitioner sustained injuries and fractures on bones in their body. As the petitioner sustained injuries, he was not able to file a complaint at the Police Station immediately. The 1st respondent's car driver, in the meanwhile had lodged a false complaint against the petitioner and consequently a criminal case was filed against the petitioner by the Sub Inspector of the Thoothukudi south police station in Crime No.474 of 2002, under section 279, 337 and 338 of IPC. Immediately after the accident, the petitioner was admitted at the Thoothukudi Government Hospital, wherein he received treatment as an inpatient from 10.09.2002 to 12.09.2002. Subsequently, the petitioner took treatment at Thoothukudi AVM Hospital from 12.09.2002 to 25.11.2002 as an inpatient and thereafter took treatment as an outpatient. At the time of accident, the petitioner was aged 24 years and was running a night club near Thoothukudi 1st railway gate and earning Rs.4,000/- per month. Due to the fractures sustained by the petitioner in his spinal cord, the petitioner is unable to sit and walk and unable to do any work. Hence, the petitioner has filed the claim against the 1st and 2nd respondents who are the owner and insurer of the car bearing registration No.TN-69C-9889. 3. Due to the fractures sustained by the petitioner in his spinal cord, the petitioner is unable to sit and walk and unable to do any work. Hence, the petitioner has filed the claim against the 1st and 2nd respondents who are the owner and insurer of the car bearing registration No.TN-69C-9889. 3. The 1st respondent in his counter has submitted that the driver of the car did not drive the car at high speed and in a rash and negligent manner, as alleged in the claim and that the accident had been caused only because of the negligent and rash riding of the motor cycle by the petitioner, who had consumed liquor prior to riding his motor cycle. It was submitted that the 1st respondent's car driver had a valid driving licence to drive the car at the time of accident and that the car was covered under a valid policy of insurance with the 2nd respondent. It was submitted that only the driver of the 1st respondent's car had filed the complaint against the motor cyclist at the Thoothukudi west Police Station and based on this the F.I.R was filed as against the petitioner. The averments in the claim that the petitioner has sustained grievous injury and disability was also not admitted. It was submitted that the claim was excessive and that in the event of compensation being awarded by the tribunal, only the insurer of the 1strespondent's vehicle i.e., the 2nd respondent can be held liable to pay compensation. 4. The 2nd respondent, in his counter has submitted that the petitioner has to prove through oral and documentary evidence that the accident had been caused by the rash and negligent driving by the driver of the 1st respondent's car. The averments in the claim regarding age, income and occupation of the petitioner, nature of injuries sustained, medical treatment period and medical expenses incurred by the petitioner were also not admitted. It was submitted that the 1st respondent's car driver had driven the car carefully and cautiously and that the accident had occurred only due to the rash and negligent riding by the petitioner. It was submitted that even in the F.I.R, the complaint had been lodged only against the petitioner and he has been charged with being rash and negligent in driving while under the influence of liquor. It was submitted that even in the F.I.R, the complaint had been lodged only against the petitioner and he has been charged with being rash and negligent in driving while under the influence of liquor. It was submitted that at the time of accident, the petitioner had only a learners licence. It was submitted that the claim was excessive. 5. The Motor Accident Claims Tribunal framed two issues for consideration in the case namely: (1) Was the accident caused by the rash and negligent driving by the driver of the 1st respondent's car bearing registration No.TN-69C-9869?; (2) Is the petitioner entitled to get compensation?; If so, what is the quantum of compensation he is entitled to get and who is liable to pay the said compensation?. 6. In the said accident, the pillion rider, Kathirvel had also filed a claim in M.C.O.P.No.126 of 2003, claiming compensation of Rs.8,00,000/- from the 1st and 2nd respondents. On the joint memo filed by the counsels of the two petitioners in M.C.O.P.No.135 of 2003 and M.C.O.P.No.261 of 2003, both the claims were taken up for enquiry and a joint trial was conducted and common judgment was passed. 7. On the petitioners side, four witnesses were examined and seventeen documents were marked as Exs.P1 to P17 namely: Ex.P1-F.I.R; Ex.P2-accident register; Exs.P3 and P4-CT scan report pertaining to Samuel dated 11.09.2002; Ex.P5-receipt dated 11.09.2002 for scan taken at Thoothukudi Government Hospital; Ex.P6-Receipt for scan taken at Arthi Advanced CT scan centre, Tirunelveli dated 11.09.2002; Ex.P7-x ray report dated 13.09.2003; Ex.P8-medical bills (series) pertaining to samuel' Ex.P12-disability certificate issued to Samuel dated 07.03.2005; Ex.P13-disability certificate for Samuel; Ex.P14-x ray photo of Samuel; Ex.P15-x ray (series); Ex.P16-disability certificate issued to Kathivel dated 10.03.2005; Ex.P17-medical bills (series). On the respondent's side, two witnesses were examined and eight documents were marked as Exs.R1 to R8 namely: Ex.R1-copy of insurance policy; Ex.R2-investigation report dated 14.03.2005; Ex.R3-copy of charge sheet dated 17.12.2002; Ex.R4-copy of 161(3) I.P.C statement given by Kathirvel dated 10.09.2002; Ex.R5-copy of observation mahazar dated 10.09.2002; Ex.R6-copy of rough sketch dated 10.09.2002; Ex.R7-copy of driving licence of Vedanayagam; Ex.R8-copy of Motor Vehicle Inspector's report dated 11.09.2002. 8. PW.1, the petitioner in M.C.O.P.No.135 of 2003, had adduced evidence, which is corroborative of the statements made by him in the claim and in support of his evidence, he had marked as Ex.P1-F.I.R and Ex.P2-the copy of accident register. 8. PW.1, the petitioner in M.C.O.P.No.135 of 2003, had adduced evidence, which is corroborative of the statements made by him in the claim and in support of his evidence, he had marked as Ex.P1-F.I.R and Ex.P2-the copy of accident register. PW.3-the petitioner in M.C.O.P.No.261 of 2003 had also adduced evidence in similar veins to that the evidence of PW.1, regarding manner of accident. 9. From scrutiny of Ex.P2, it is seen that after the accident, the petitioner in M.C.O.P.No.135 of 2003 and the petitioner in M.C.O.P.No261 of 2003 had been admitted in the Thoothukudi Government Hospital, by one Saravanan. It is also seen on scrutiny of Ex.P2, that the accident had occurred on 10.09.2002 at about 03.00 p.m., near the Bethel Hospital, Thoothukudi and that the petitioners in the above two M.C.O.P's have been admitted at 03.15 p.m., at the Thoothukudi Government Hospital. It is also seen from scrutiny of Ex.P2, that the petitioner in M.C.O.P.No.135 of 2003 had sustained injuries in the said accident. Hence, the Tribunal opined that the mere in non filing of complaint by the petitioners in M.C.O.P.No.135 of 2003 and M.C.O.P.No.261 of 2003, could not be held as a point against them and hence rejected the contention on the respondent's side that the petitioners should be held guilty as they had not preferred a complaint with the police authorities. The Tribunal, observed that the 1st respondents car driver, who was examined as RW.2, had given the complaint at 17.15 hours at the police station, which was very near to the site of occurrence, and that no explanation was offered on the respondents side regarding filing the F.I.R after 2 ½ hours from the time of occurrence of accident. The tribunal further observed that the only the doctor, who had treated the petitioners in M.C.O.P.No.135 of 2003 and M.C.O.P.No.261 of 2003, should have sent the wound certificate of the said petitioners to the concerned police station and that the police should have gone to the hospital and recorded the evidence of the injured petitioners and should have then filed the complaint. The Tribunal observed that in the instant case, passed on the complaint which had been given by the 1st respondents car driver after a delay of 2 ½ hours from the time of accident, the police, without conducting any investigation had registered the complaint against the injured persons and filed the charge sheet. The Tribunal observed that in the instant case, passed on the complaint which had been given by the 1st respondents car driver after a delay of 2 ½ hours from the time of accident, the police, without conducting any investigation had registered the complaint against the injured persons and filed the charge sheet. The tribunal opined that the action of the police in filing the F.I.R against the injured persons was not appropriate. 10. On the 2nd respondents side, one Ganesan, who was the Assistant in the 2nd respondent's firm was examined as RW.1 and through him, the exhibits R3, i.e., the charge, the 161(3) statement given by the petitioner in M.C.O.P.No.261 of 2003 was marked as Ex.R4, the copy of observation mahazar was marked as exhibit R5, the copy of rough sketch was marked as Ex.R6 and the motor vehicle inspector's report was marked as Ex.P8. On scrutiny of Ex.P8, it is seen that the accident had not occurred due to any mechanism defect in the vehicle. However, the tribunal observed that the motor vehicle inspector had not mentioned the date on which the two vehicles involved in the accident had been inspected. The Tribunal further observed after scrutiny of Exs.P5 and P6 that even though it had been mentioned in these exhibits that the place of occurrence of accident had been inspected . On 10.09.2002 at 06.15 p.m., no mention has been made as to whether or not the vehicles involved in the accident were still present at the site of accident. As such the tribunal observed that the exhibits marked as R3, R5, R6 and R8 do not shed any light to determine as to which of the drivers of the two vehicles was negligent and caused the accident. Further, the tribunal on scrutiny of Ex.P2, the copy of accident register used at Thoothukudi Government Hospital observed that no mention had been made by the doctor in the said register to show that the petitioner in M.C.O.P.No.135 of 2003 was in a drunken state and hence rejected the contentions laid down in the respondents side that the said Samuel had driven his motor cycle while he was under the influence of liquor. 11. 11. It was contended on the respondent's side that as per the 161(3) statement given by the petitioner in M.C.O.P.No.261 of 2003 before the Inspector, it was submitted by him that the rider of the motor cycle i.e., the petitioner in M.C.O.P.No.135 of 2003 had been under the influence of liquor and caused the accident. However, the tribunal on observing that in the evidence given by Kathirvel i.e., the petitioner in M.C.O.P.No.261 of 2003, when he was examined as PW.3, he had clearly stated in his evidence as well as in his cross examination refuting the suggestion laid down on the 2nd respondents side that the accident had occurred only due to the drunken driving of the motor cyclist i.e., the petitioner in M.C.O.P.No.135 of 2003. Hence, the Tribunal, on scrutiny of the oral and documentary evidence held that the accident had been caused by the rash and negligent driving by the driver of the 1st respondent's car bearing registration No.TN-69C-9889. 12. PW.1, had further evidence that due to the accident, he had sustained fractures of bones in his spinal cord and left leg and also sustained injuries on his left toe. He deposed that his right leg had become immobilized and that a plate had been fixed in his right leg and that a plate which was fixed in his spinal cord was later removed. He deposed that he had received treatment as an inpatient at Thoothukudi Government Hospital from 10.09.2002 to 12.09.2002 and later on took treatment at A.V.M Hospital from 12.09.2002 to 25.09.2002. 13. PW.2, Dr. Ramaguru, had adduced evidence that the 3 rd rib bone in the petitioners spinal cord had been fractured and that a surgery was conducted and nails were fixed in the fractured area. He deposed that the strength of the petitioners right leg had been reduced and that he had assessed the disability as 10% for the pain experienced by the petitioner in his shoulder and spinal cord and right leg. He deposed that he had assessed the disability due to reduced strength in the petitioners right leg as 15% and also assessed 15% disability for the restricted movements of the joints in his right leg. He deposed that he had assessed the disability due to reduced strength in the petitioners right leg as 15% and also assessed 15% disability for the restricted movements of the joints in his right leg. He had further assessed 5% disability for the inability for the petitioner to sit down and assessed 10% disability for inability of petitioner to run or walk fast and 4% as disability was on his right side of body. He deposed that the petitioner had sustained 59% disability in the said accident and in support of his evidence he had marked as Ex.P13-disability certificate. However, the tribunal on considering that pain cannot be taken as disability, held that the petitioner had sustained only 49% disability in the said accident. The Tribunal observed that the petitioner was aged 24 years as per Ex.P2, accident register and held that the notional income of the petitioner could only be taken as Rs.1,500/- per month, as no documentary evidence had been marked to prove his income. 14. The Tribunal awarded a sum of Rs.49,000/-to the petitioner under the head of disability of 49%. The Tribunal further awarded Rs.6,000/-under the head of loss of earning capacity and loss of income. Rs.5,000/-was awarded under the head of pain and suffering and Rs.2,000/- was awarded towards nutrition. The Tribunal further awarded a sum of Rs.50,000/-towards medical bills as per Ex.P8(series) and Rs.16,000/- for surgical cost towards removal of series as per Ex.P9. In total, the Tribunal awarded a sum of Rs.1,28,000/-as compensation to the petitioner and directed the 2nd respondent, on behalf of the 1st respondent, to deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition till date of deposit within 30 days from the date of its order. 15. Aggrieved by the award passed by the tribunal, the 2nd respondent/National Insurance Company Limited, has preferred the present appeal. The learned counsel for the appellant has contended that the claims tribunal had failed to see that the claimant relied on the F.I.R to prove the factum of accident and that the said F.I.R was laid only against PW.1 and not against the driver of the car. It was contended that no independent witness was examined on the side of the claimant to prove the cause of impugned accident. It was contended that no independent witness was examined on the side of the claimant to prove the cause of impugned accident. It was pointed out that the tribunal failed to note that the point of impact, the positions of the vehicle at place of occurrence of the accident and the damages caused to the vehicles and consequently, the tribunal has failed to hold that capability was wholly on the part of the rider of the motor cycle. It was pointed out that the tribunal failed to note that the accident occurred on the Southern side of the east west road and that the rider of the motor cycle could alone be made responsible for the accident. It was contended that the claims tribunal has also failed to see that the drunkenness and non-possession of driving licence by the rider of the motor cycle might have contributed to the cause of the accident and ought to have held that the rider of the motor cycle had also contributed negligence towards the cause of the accident and ought to have, at least, apportioned the liability equally on the rider and the driver of the car. 16. The learned counsel for the claimant submits that the claimant has sustained bone fracture injuries in his rib bone. The doctor had assessed the disability as 49%. The tribunal had not granted adequate compensation under the relevant heads. After the accident, the claimant is unable to do his avocation of running the night club. 17. On considering the facts and circumstances of the case and the arguments advanced by the learned counsels on either side and on perusing the impugned award of the tribunal, this Court does not find any discrepancy in the said award. As per the records of this Court, it is seen that this Court had directed the appellant to deposit the entire compensation amount with accrued interest thereon. 18. Now, it is open to the claimant to withdraw the entire compensation amount with accrued interest thereon, lying in the credit of M.C.O.P.No.135 of 2003, on the file of the motor accident claims tribunal, Additional District Court, Fast Track Court No. I, Tuticorin, after filing a memo along with a copy of this order, subject to deduction of withdrawals already made, if any. 19. In the result, this Civil Miscellaneous Appeal is dismissed. 19. In the result, this Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed in M.C.O.P.No.135 of 2003, on the file of the motor accident claims tribunal, Additional District Court, Fast Track Court No. I, Tuticorin, is confirmed, dated 31.10.2006. No costs.