This Civil Miscellaneous Appeal has been filed against the against the Judgment and Decree passed in M.C.O.P.No.42 of 2006 on the file of Motor Accident Claims Tribunal (Chief Judicial Magistrate), Nagercoil, dated 06.06.2007.
2.It is a case of the appellant/claimant that in an accident, which took place on 04.03.2005 at 07.30 p.m., the claimant/appellant and her husband went to British Bakkery, which is situated in the left of Morries Mathiyas Hospital, Nagercoil and purchased things and while she was proceeding towards South side and proceeding to their house South-West to East, a Qualis Car bearing Registration No.TN-72-H-7101 driven rashly and negligently and without horning by the first respondent and dashed against the claimant. The claimant/appellant fell down and was grievously injured. The appellant was admitted in the nearby Morris Mathiyas Hospital, Nagercoil and took treatment for 15 days and was discharged on 18.03.2005 with an advice to undergo physiotherapy daily in the hospital. A case was registered by the Sub-Inspector of Police, Traffic Investigation Wing, in Crime No.26 of 2005 for the offences under
Sections 279 and
388 of I.P.C. Hence, the claimant filed a claim petition in M.C.O.P.No.42 of 2006, claiming a sum of Rs.4,00,000/- as compensation for the injuries sustained by her.
3.The third respondent filed a counter denying all the averments made by the claimant/appellant. He submitted that the appellant has suddenly crossed the road without seeing the vehicles and hence she was hit by the vehicle bearing Registration No.TN-72-H-7101 and the negligence is only on the appellant's side. The third respondent is not liable to pay any compensation towards the appellant's disability and it is her duty to prove that there existed a valid policy and in the absence of the said policy, the third respondent would not be held liable. The amount claimed by the claimant was exorbitant and hence, sought for dismissal of the claim petition.
4.Before the Tribunal, on the side of the appellant, two witnesses viz., P.W.1 and P.W.2 were examined and eleven documents viz., Exs.P.1 to P.11 were marked and on the side of the respondents, no oral and documentary evidence was marked.
5.The Tribunal, after considering the pleadings, oral and documentary evidence and arguments of the learned counsel for the appellant/claimant and the respondents, by award, dated 06.06.2007 directed the third respondent to pay a sum of Rs.58,500/- to the claimant.
6.Challenging the said award amount, the claimant has filed this Civil Miscellaneous Appeal seeking enhancement of compensation.
7.Heard the learned counsel appearing on either side and perused the materials available on record.
8.The learned counsel appearing for the appellant would submit that the award of the Tribunal is against evidence and the probabilities of the case insofar as the disallowed portion of compensation. He would also submit that the Tribunal is erred in awarding only a sum of Rs.35,000/- towards permanent disability especially when the claimant/appellant has been restricted from doing her usual avocation and also in not awarding a sum of Rs.1,00,000/- towards pain and sufferings, considering the nature of injuries sustained and the total partial permanent disability.
9.It is seen from the evidence of the claimant/P.W.1 that she had sustained head injury, neck bone fracture and also spinal cord injury. P.W.2- Doctor has also deposed that the claimant has fracture in his neck bone and due to which, her spinal cord also damaged and she has paralysis in her left leg and left hand and she suffered with 50% disability. It is also supported by Ex.P.5, wound certificate, wherein it is stated that the claimant has swelling in her forehead and also suffered with left Hemiplegia and cervical spine/injury, which are grievous injuries, and the disability is 50%. Even though the Doctor, who issued Ex.P.5 was not examined, considering the nature of injuries and the age of the deceased, this Court is of the view that the claimant is suffered with 40% permanent disability. Accordingly, by taking Rs.1,500/- for 1% disability, this Court awards a sum of Rs.60,000/- (RS.1,500 X 40) towards permanent disability.
10.In view of the above, this Court modifies the award of the Tribunal by enhancing the compensation as under:
S.No Description Amount awarded by the Tribunal Rs.
Amount awarded by this Court Rs.
Award confirmed or enhanced or granted 1 Pain and Sufferings 3,000 10,000 enhanced 2 Disability 35,000 60,000 enhanced 3 Medical Expenses 20,000 20,000 confirmed 4 Nutrition 500 2,000 enhanced 5 Transport Expenses
-
1,000 granted Total Rs.58,500 Rs.93,000 Modified by Rs.93,000
11.In the result, this Civil Miscellaneous Appeal is partly allowed by enhancing the award passed in M.C.O.P.No.42 of 2006 on the file of Motor Accident Claims Tribunal (Chief Judicial Magistrate), Nagercoil, from Rs.58,500/- to Rs.93,000/-. In other aspects, regarding interest and costs, the order of the Tribunal remains unaltered. The third respondent/Insurance Company is directed to deposit the entire award amount as awarded by this Court with accrued interest and costs of the MCOP within a period of eight weeks from the date of receipt of a copy of this order, less the amount already deposited, if any. On such deposit being made, the claimant is permitted to withdraw the award amount with proportionate interest and costs, after filing formal petition before the Tribunal. No costs. The amount has to be withdrawn only by the said claimant and not by any other person.
To
1.The Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Nagercoil.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
.