The above Civil Miscellaneous Appeal has been filed by the appellant/claimant against the Award and Decree, dated 09.11.2006, made in M.C.O.P.No.4060 of 2002, on the file of the Motor Accident Claims Tribunal, Fast Track Court No.II, Additional District Court, Chennai, awarding a compensation of Rs.1,05,000/- together with 7.5% interest per annum, from the date of filing the claim petition till the date of payment of compensation.
2.Having not been satisfied with the said Award and Decree, the appellant/claimant has filed the above appeal praying additional compensation of Rs.4,95,000/-.
3.The short facts of the case are as follows:
On 21.08.2002, at about 9.45 a.m. the minor petitioner along with his sister was walking along the S.N.Chetty Street from his home on the western side of the road. At that time the motor cycle bearing registration No.TN04 V2241, belonging to the first respondent and insured with the second respondent, came from south to north direction at S.N.Chetty Street in a very high speed and rash and negligent manner and dashed against the minor petitioner. In the result, the minor petitioner sustained multiple fracture injuries. The accident had happened only due to the rash and negligent driving of the first respondent. As such, the petitioner claimed a compensation of Rs.6,00,000/- before the Tribunal.
4.The first respondent in his Counter had resisted the claim petition that the respondent above named denies the entire allegation set out in the claim petition filed by the petitioner and the petitioner alone is put to strict proof of the same. On 21.08.2002, he went to Raghavendra Mandapam, Triplicane by 06.00 a.m. from his residence to change the Punool and while he was returning to his residence at Thiruvottriyur, he was riding his Splendor Motor Cycle in beach Road, ie.S.N.Chetty Street, from south to north direction and after cross N4 Fishing Harbour Police Station, while he was riding his motorcycle in the extreme left hand side of the road observing all traffic rules, on his right hand side, there are number of heavy vehicles namely lorries and containers were going one by one and after crossing the N4 Police Station, a boy aged about 5 years suddenly crossed the road from eastern side to western side of the road along with another female child and though the first respondent tried to stop his vehicle, the child, who was running behind the girl dashed the motor cycle in the front side and fell down. He immediately took the child to the nearby hospital namely J.K.Nursing Home. He only reported accident to the police and thereafter a case was registered against respondent by the N2, Kasimedu Traffic Police Station. As alleged in petition he never drove the vehicle in rash and negligent manner and further the injuries sustained by the child are simple in nature, and as alleged by them, the injuries alleged to have sustained by the petitioner have been exaggerated and the amount claimed towards compensation Rs.6,00,000/- claimed by them is not only exaggerated and also an imaginary figure. As such, he prayed to dismiss the petition with costs.
5.The second respondent in their Counter had resisted the claim petition that the respondent denies all the averments that are contained in the claim petition except those that are specifically admitted herein and put the petitioner to strict proof of the same and the averments that are not admitted by this respondent. This respondent denies the way in which the alleged accident took place as described in claim petition and puts the petitioner to strict proof of the same. On the date of accident as alleged in the claim petition the first respondent vehicle involved in the accident was not all insured with this respondent/insurance company. In any event the petitioner should strict proof of the same. The injured is a minor child aged six years and he could not be walking on the platform on that day and suddenly crossing on the road and the injured himself walked with negligent manner which resulted and contributed to the accident. Hence, Insurance Company is not liable to pay any compensation to the petitioner. In any event the petitioner is put to strict proof of the same. The alleged accident had occurred due to fault on the part of the petitioner's minor child and not due to the negligence of the driver as alleged in the claim petition. In any event the petitioner is put to strict proof of the same. The respondent denies the age, place, date and time of accident as set out in Column Nos.3, 4, 6 and 8 of the claim petition and puts the petitioner to strict proof of the same. The compensation claimed by the petitioner is highly excessive, fanciful, exaggerated and disproportionate to the accident claim as alleged by the petitioner. As such, the second respondent prayed to dismiss the petition with costs.
6.After considering the plea of the petitioner and the counter statements of the first and second respondents, the learned Motor Accident Claims Tribunal framed the following three issues for consideration and passed order as follows:
(i) Whether the accident had happened due to the rash and negligent riding of the first respondent?
(ii) Whether the accident had taken place due to the rash and negligent act of the minor petitioner?
(iii)What is the quantum which the minor petitioner is entitled to receive?
7.On the petitioner's side, Kesavan, father of the minor petitioner was examined as PW1 on behalf of the minor petitioner, Dr.Sai Chandran was examined as PW2 and V.P.Sivaraman was examined as PW3 and six documents were marked as Exs.P1 to P6 namely Ex.P1-Xerox copy of the FIR, Ex.P2-Rough Sketch of the place of occurrence, Ex.P3-Discharge summary issued by Government Stanley Hospital in respect of the minor petitioner, Ex.P4-Disability Certificate issued by the PW2 in respect of the minor petitioner, Ex.P5-X-ray taken for the minor petitioner and Ex.P6-Charge sheet. On the second respondent's side no witnesses were examined and no documents were marked.
8.PW1, father of the minor petitioner had adduced evidence stating that on 21.08.2002 at 09.45 a.m. his son and his daughter were walking at the junction of S.N.Chetty Street and Avoor Muthiah Maistry Street from east to west direction, at that time the motorcycle bearing registration No.TN04 V2241 came with high speed and dashed against his son. In the result of which both bones of his left leg were fractured and he had loss of muscles in his left foot and sustained head injury. Further, he had also sustained injury all over his body. Immediately after the said accident, his son was taken to the Government Stanley Hospital for treatment, wherein he was treated as inpatient from 21.08.2002 to 26.08.2002 and plastic surgery was done in his left foot. Subsequently he was treated in the said hospital as out-patient for two months. He had spent a sum of Rs.3,000/- towards his transport charge, since he was looking after his son. Due to the accident he could not go to work for 1 = month, he was earning a sum of Rs.7,000/- per month and his son was not able to fold his leg and sit and to use Indian toilet. Further, he adduced evidence stating that the motor cyclist is responsible for the accident. As such he has claimed a sum of Rs.6,00,000/- as compensation and FIR, Rough Sketch and Discharge Summary were filed as Exs.P1 to P3 respectively.
9.PW3, V.P.Sivaraman, had adduced evidence stating that he is working as Head Constable in the Traffic Investigation Records Bureau. The case was registered in Cr.No.72/2002 of N2 Kasimedu Police Station, regarding the accident, that charge sheet filed against the motor cyclist Gopinath before the IIIrd Metropolitan Magistrate, on 11.09.2002. On 30.09.2002 the motorcyclist admitted the offence and paid the fine amount of Rs.1,500/- into the Court and the charge sheet is filed as Ex.P6.
10.The learned counsel for the petitioner submitted that the accident had occurred due to the rash and negligent riding of the first respondent. It was contended by the learned counsel for the second respondent that the accident had taken place due to the rash and negligent act of the minor petitioner. The learned counsel for the second respondent cross examined the PW1. He had denied that the accident had occurred due to the mistake of his son. Nothing had been elicited in the cross examination of PW1 that he was speaking falsehood. The cross-examination of the learned counsel for the second respondent has not shattered the creditability and veracity of the evidence of the PW1. The evidence of the PW1 is clear, cogent and natural. His evidence does not suffer from any informity and there is no reason to discard his evidence and therefore his evidence is acceptable.
11.The First Information Report marked as Ex.P1. It has been mentioned in Ex.P1 that on 21.08.2002, at 09.45 a.m. the minor petitioner along his sister was walking along S.N.Chetty Street, that at that time a motorcyclist bearing registration No.TN04 V2241 came at S.N.Chetty Street and dashed against the minor petitioner and that the minor petitioner sustained injury in his left and right leg. It is also seen from Ex.P1 that the accident has taken place on 21.08.2002 at 09.45 a.m. and that complaint has been lodged on 22.08.2002 at 09.00 a.m. It seems that there is no delay in lodging the complaint. Since Ex.P1 is the first document which has been prepared by N.2 Kasimedu Traffic Investigation Wing regarding the accident, the same is acceptable in this case. The rough sketch of the place of occurrence and the charge sheet were filed as Ex.P2 and Ex.P3 respectively. Therefore, on taking into consideration of the evidence of PW1, Exs.P1, P2 and P6, the Tribunal held that the accident was caused due to the rash and negligent riding of the first respondent.
12.The second respondent has not let in any oral and documentary evidence to show that the motor cycle bearing registration No.TN04 V2241 has not been insured with this respondent. Further, the second respondent has not also proved that the terms and conditions of the Insurance Policy were violated by the first respondent. Therefore, the second respondent is vicariously and statutorily liable to pay compensation to the minor petitioner on behalf of the first respondent.
13.PW1 had stated that in his evidence that due to the accident both bones of the left leg of the minor petitioner were fractured, that the minor petitioner had loss of muscles in his left foot, that he has sustained injury in his head all over his body and left elbow, that the minor petitioner was immediately taken to Government Stanley Hospital for treatment and that he has claimed a sum of Rs.6,00,000/- as compensation. The discharge summary issued by the Government Stanley Hospital is filed as Ex.P3. It shows that both bones of the left leg of the minor petitioner were fractured. The doctor who treated the minor petitioner has not given opinion that the minor petitioner has sustained grievous injury. However, Ex.P3 establishes grievous nature. There is no doubt that the minor petitioner had sustained grievous injury.
14.PW2 has stated in his evidence that he examined the minor petitioner on 11.08.2006 for issuing disability certificate, that both bones of the left leg of the minor petitioner were fractured, that the bones were malunited, that the percentage of disability is 30% and that the disability certificate and X-ray are filed as Ex.P5 and Ex.P6 respectively. Therefore, 20% disability is taken for the purpose of this case. Since the minor petitioner had sustained fracture in his left leg, he would have undergone pain and sufferings. Therefore, the minor petitioner is entitled to get Rs.10,000/- for the pain and suffering undergone by him. PW1 has stated in his evidence that the minor petitioner is not able to fold his left leg and sit. It is proved through the above evidence of PW1 that the minor petitioner had loss of amenities. Therefore, the minor petitioner is entitled to get Rs.10,000/- for the loss of amenities. Since the minor petitioner had sustained grievous injury, he would have spent some amount towards transport and extra nourishment charges. Therefore, the minor petitioner is entitled to get Rs.10,000/- towards transport and extra nourishment charges. Since, the minor petitioner had sustained fracture in his left leg, he would have permanent disability. Hence, the minor petitioner is entitled to get Rs.50,000/- towards his permanent disability. It is proved through the evidence of PW1 and Ex.P3 that the minor petitioner had sustained grievous injury. Therefore, on taking into consideration of all the material facts and circumstances, the minor petitioner entitled to get Rs.25,000/- for grievous injuries suffered by him. Totally, the minor petitioner is entitled to get a sum of Rs.1,05,000/- as compensation together with 7.5% interest per annum from the date of filing the claim petition till the date of payment of compensation and the time for payment was two months. After the amount deposited, the minor petitioner share to be invested in a nationalised bank till the minor petitioner attain major. Accordingly ordered.
15.Having not been satisfied with the said Award and Decree, the appellant/claimant has filed the above appeal praying additional compensation of Rs.4,95,000/-.
16.The learned counsel appearing for the appellant argued that the Tribunal awarded a compensation of Rs.1,05,000/- is on lower side. Further, the learned counsel argued that the injured person was aged about 5 years old at the time of accident. He was a school going boy. In the said accident, his left leg had fractured. After the accident, the minor injured boy was unable to participate in sports and games. However, he is unable to continue his studies. PW2 had examined the injured person and verified the medical records and assessed the disability as 30% sustained by the claimant. The learned counsel further argued that the Tribunal had not awarded adequacy compensation under the head of loss of amenities. The Tribunal awarded a sum of Rs.10,000/- under the head of transport and extra nourishment, which is on lower side. Further, the Tribunal failed to consider the attender charges to look after the injured boy. Hence, the learned counsel prays for additional compensation before this Court.
17.The learned counsel appearing for the second respondent/United India Insurance Company Limited has argued that the Tribunal after considering the evidence and exhibits, awarded the compensation and the compensation awarded under the various heads are also reasonable. As such, there is no discrepancy in the award and decree passed by the Tribunal, which is fair and equitable. Therefore, the learned counsel prays before this Court to dismiss the appeal filed by the appellant.
18.After considering the arguments advanced by the learned counsel appearing on either side and award and decree passed by the learned Motor Accident Tribunal, this Court is of the view that the quantum of compensation is on the lower side. Hence, this Court decided to grant additional compensation to the claimant as follows:
i. The Tribunal awarded a sum of Rs.10,000/- under the head of pain and suffering, this Court enhances it to Rs.15,000/-, ii. The Tribunal awarded a sum of Rs.25,000/- under the head of grievous injuries, this Court enhances it Rs.60,000/-, iii. The Tribunal awarded a sum of Rs.10,000/- under the head of transport expenses and nourishment, this Court enhances it to Rs.20,000/-, iv. The Tribunal awarded a sum of Rs.50,000/- under the head of permanent disability, this Court confirms the same as it is pertinent, v. Further, this Court grants a sum of Rs.15,000/- under the head of future prospects of the injured person, In total, this Court awards a sum of Rs.1,60,000/- as compensation, which is fair and equitable. After deducting the original award amount of Rs.1,05,000/-, this Court awards an additional award amount of Rs.55,000/- with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation.
19.Therefore, this Court hereby directs the second respondent/United India Insurance Company Limited to deposit the entire additional compensation amount with accrued interest thereon and costs, as per this Court order, into the credit of the M.C.O.P.No.4060 of 2002, on the file of the Motor Accident Claims Tribunal, Fast Track Court No.II, Additional District Court, Chennai, within a period of six weeks from the date of receipt of a copy of this order.
20.After such deposit being made, it is open to the claimant to withdraw the entire compensation amount with accrued interest thereon and costs, lying in the credit of the M.C.O.P.No.4060 of 2002, on the file of the Motor Accident Claims Tribunal, Fast Track Court No.II, Additional District Court, Chennai, by making proper payment out application, subject to deduction of withdrawal if any and subject to the minor petitioner attaining adulthood, in accordance with law.
21.In the result, this Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 09.11.2006, made in M.C.O.P.No.4060 of 2002, passed by the Motor Accident Claims Tribunal, Fast Track Court No.II, Additional District Court, Chennai, is modified. No costs.
15.09.2010 Index: Yes/No Internet: Yes/No krk To
1.The Motor Accident Claims Tribunal, Fast Track Court No.II, Additional District Court, Chennai,
2. The Section Officer, VR Section, High Court, Madras.
C.S.KARNAN, J.
krk C.M.A.No.310 of 2007 15.09.2010