R. Singaravel v. V. Vijayakumari & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.12.2009CORAMTHE HONOURABLE MR. JUSTICE. C.S.KARNANC.M.A.No.1500 of 2008R.Singaravel.. AppellantVs1.V.Vijayakumari2.The New India Assurance Co., Ltd., .. Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988,against the Order and Decreetal Order dated 15.06.2007, made inM.C.O.P.No.670 of 2000, on the file of the Motor Accident ClaimsTribunal, Additional District Judge, Fast Track Court-II, Salem.For appellant : Mr.K.KuppusamyFor respondents : Mr.J.Chandran, for R2 No appearance – for R1J U D G M E N TThe above Civil Miscellaneous Appeal has been filed by theappellant/petitioner against the Order and Decreetal Order dated15.06.2007, made in M.C.O.P.No.670 of 2000, on the file of the MotorAccident Claims Tribunal, Additional District Judge, Fast TrackCourt-II, Salem, awarding a compensation of Rs.10,000/- with 7.5%interest per annum from the date of filing the petition till thedate of payment of compensation.2.Aggrieved by the said Order, the appellant/Petitioner,Mr.R.Singaravel, has filed the above appeal praying for enhancedcompensation.3.The short facts of the case are as follows:On 25.08.1999, at about 5.30 a.m., when the petitioner waswalking on the road from the Police Station to Vazhappadi Bus Stand,on the extreme left of the road, the Tata Sumo bearing registrationNo.TN60 6175, came from Attur in a rash and negligent manner anddashed against the petitioner. In the result, the petitionersustained injuries on his left leg, right knee, left side of hip andnose besides other injuries all over his body. He was admitted inthe Salem Government Hospital for treatment. During the time ofaccident, the petitioner was aged 28 years. He was employed as anagricultural coolie and was earning a sum of Rs.2,500/- per month. https://hcservices.ecourts.gov.in/hcservices/ After the accident, he is not able to work as before.4.The Vazhappadi Police has registered a criminal case as CrimeNo.1124/99, against the driver of the said Tata Sumo under Sections279 and 338 of I.P.C. The first respondent, the owner of the TataSumo and the second respondent, the Insurer of the Tata Sumo are bothjointly and severally liable to pay compensation to the petitioner.The petitioner has claimed a compensation of Rs.1,00,000/- withinterest and costs from the respondents.5.The first respondent remained absent in spite of summons andso he was set exparte.6.The second respondent, the New India Assurance Company Ltd.,in its Counter has resisted the claim stating that the said Tata SumoVehicle had not been insured with it at the time of the accident.Further, the age, occupation and income of the petitioner was notadmitted. It has also been averred that the petitioner was agedabout 40 years and that he had no permanent job or income at the timeof the accident. Further, the nature of injuries, disabilitysustained by the petitioner and loss of income has to be proved bythe petitioner through documentary evidence. The manner of theaccident as alleged in the claim was also not admitted. It has beenstated that the accident was caused only due to the fact that thepetitioner had suddenly tried to cross the road and so it was due tonegligence of the petitioner that the accident had occurred.Further, the claim made by the petitioner is excessive and withoutany basis. As such, the second respondent has prayed for dismissalof the petition.7.The Motor Accident Claims Tribunal framed two issues for theconsideration namely:(i)Who was responsible for the accident?(ii)Is the petitioner entitled to receivecompensation? If so, what is the quantum ofcompensation he is entitled to?8.On the petitioner's side, a witness was examined and twodocuments were marked as Exs.P1 and P2. On the respondents side nowitness was examined and no documents were marked. The MotorAccident Claims Tribunal heard the arguments advanced on either sidesand scrutinised the documents.9.The petitioner, was examined as PW1. In his evidence headduced that on 25.08.1999, at about 5.30 a.m. in the morning, whenhe was walking from Vazhappadi Bus Stand towards Vazhappadi PoliceStation on the extreme left of the road, a Tata Sumo bearingregistration No.TN60 6175, driven by its driver with high speed andin a rash and negligent manner, came from the opposite direction andhad dashed against him. As a result, the petitioner sustained https://hcservices.ecourts.gov.in/hcservices/ fracture in his left leg, and injuries on his hip, right leg, noseand that he was treated as an in-patient at Salem Government Hospitalfrom 28.08.1999 to 09.09.1999. In support of his claim, the PW1 hasmarked Ex.P1-FIR and Ex.P2-Medical Treatment Records.10.On a scrutiny of Ex.P1, it is seen that the FIR has beenregistered, based on the complaint given by PW1. In the complaint,it has been stated that on 25.08.1999, at about 5.30 a.m. when thepetitioner was coming back from Attayambadi, after attending amarriage, and when he was walking towards Vazhappadi Bus Stop andnearing Vazhappadi Police Station, the Tata Sumo bearingregistration No.TN60 6175, driven by its driver in a rash andnegligent manner and with high speed, had dashed against thepetitioner, as a result of which he was thrown out on the road andhad sustained fracture on his left leg and right leg palm and thatafter taking treatment, he had given the complaint to the Police on01.09.1999. The Medical treatment records were marked as Ex.P2 andin this, the copy of the Accident Register Sheet marked as 7/99 wasenclosed. It has been mentioned in the medical report that thepetitioner has been treated from 28.08.1999 to 09.09.1999 as in-patient. It has further been mentioned in the report that there wereinjuries on his right leg palm and fracture of his left leg and thathis left leg had looked inflamed.11.Though the second respondent has stated that the accident hadnot happened due to the rash driving by the driver of the firstrespondent and that it has occurred only due to the negligence on thepart of the petitioner, no oral or documentary evidence has beenproduced to prove the same before the Tribunal. Further, nocomplaint has been lodged by the first respondent with the Policeagainst the complaint registered in the FIR and no witness has beenexamined on the respondents side to contradict the version of theaccident as alleged in the FIR and so the Tribunal ignored thearguments advanced on the respondent's side. Based on evidence ofthe PW1 and scrutiny of Exs.P1 and P2, the Tribunal held that theaccident had been caused by the negligence of the driver of the firstrespondent.12.It has been argued on the second respondent's side thatthough the petitioner has stated that he was aged about 28 years andearning income of Rs.2,500/- per month as an agricultural coolie, nodocumentary evidence has been furnished in support of his claim andas such the claim of Rs.1,00,000/- claimed by the petitioner is onthe higher side. Further, it has been contended that as thepetitioner has not produced any medical bills in support of hisclaim, only minimum compensation should be granted by the Tribunal.The Tribunal, on considering the fact that the petitioner has notexamined any Doctor, to prove that the injuries sustained in his legare grievous in nature and that no Doctor Certificate has been markedin support of this and that even in the Ex.P2, it has only beenstated that these are X'rays taken on the petitioner's legs and as ithas not been stated that the third left tibia bone has been fractured https://hcservices.ecourts.gov.in/hcservices/ in the left leg, held that the petitioner is only entitled to receivea lumpsum compensation of Rs.10,000/-. This award of Rs.10,000/- wasgranted by the Tribunal, after, considering the nature of injuries,period of treatment of the petitioner from 28.08.1999 to 09.09.1999,his loss of income during this period, the pain and sufferingundergone by the petitioner and after consideration of thepetitioner's age and income. The Tribunal, then directed the secondrespondent to deposit the award of Rs.10,000/- together with interestat the rate of 7.5% per annum from the date of filing the petitiontill the date of payment of compensation, into the credit of theM.C.O.P.No.670 of 2000, on the file of the Motor Accident ClaimsTribunal, Additional District Judge, Fast Track Court-II, Salem,within a period of two months, from the date of its Order. Thepetitioner was permitted to receive the said deposit, after it wasmade, immediately. The petitioner was directed to pay the Court feeon the award, within a period of two weeks from the date of itsOrder. The Advocate Fees was fixed at Rs.1,000/-.13.The learned counsel for the appellant in his appeal hascontended that the Tribunal had erred in awarding a paltry sum ofRs.10,000/- towards pain and suffering, when the nature of injurysuffered by the appellant is grievous in nature. It has also beencontended that the Tribunal had erred in not awarding any amounttowards loss of income during the period of hospitalisation. It hasalso been contended that the fracture sustained by the appellant inhis left leg has not been considered by the Tribunal. Further, thelearned counsel for the appellant has contended that no amount hasbeen granted by the Tribunal towards nutrition and transportationexpenses. As such, it has been prayed, by the learned counsel forthe appellant, to reconsider the award and decree passed by theTribunal.14.The learned counsel, Mr.J.Chandran, for the second respondentvehemently argued that no Doctor's evidence has been given and noDisability Certificate have been produced. For injury cases, theDoctor is the competent authority to give medical opinion, regardingnature of injuries and medical treatment after inspection of physicalcondition of the injured person. In this case, there is totalabsence of medical evidence. There is Lacuna in the findings of theMotor Accident Claims Tribunal. So, the award passed by the Tribunalis not a well-considered one. As such, the appeal is notmaintainable.15.Considering the facts and circumstances of the case,arguments advanced by the learned counsel for the appellant,Mr.K.Kuppusamy and the learned counsel for second respondent,Mr.J.Chandran, this Court is of the view that there is no disputeregarding the occupation of the claimant namely that he was anagricultural coolie. As per Ex.P1-FIR, it is an admitted fact thatthe claimant was injured in the accident. As per Ex.P2-MedicalTreatment Records, it is seen that the appellant sustained injuriesand so he had been admitted in the Hospital from 28.08.1999 to https://hcservices.ecourts.gov.in/hcservices/

09.09.1999, as an in-patient ie. for a period of about 11 days. Theclaimant had narrated in his evidence that his left leg, right knee,left hip and nose were injured in the accident and so it is anadmitted fact that he has been injured in the accident. But, theTribunal had awarded a sum of Rs.10,000/- as one lumpsum paymentciting lack of Doctor evidence. Even though, the Doctor's evidenceis not available, the Court is of the view, that once a claimantproves an accident and that he had sustained injuries, he can beawarded compensation under proper heads. Accordingly, this Courtawards Rs.20,000/- for pain and suffering; Rs.2,000/- fortransportation and Rs.3,000/- for nutrition. In total, this Courtgrants an award of Rs.25,000/- to the appellant as compensation, asconsidering the medical records, the above award is fair andreasonable.16.The Tribunal awarded a sum of Rs.10,000/- as compensation tothe petitioner, together with interest at the rate of 7.5% per annumfrom the date of filing the petition till the date of payment ofcompensation. Now, this Court has enhanced the compensation fromRs.10,000/- to Rs.25,000/- and the rate of interest is 7.5% perannum. As such, this Court directs the respondent/New IndiaAssurance Co., Ltd., to deposit the entire compensation amount ofRs.25,000/- together with interest at the rate of 7.5% per annum,from the date of filing the petition till the date of payment, withina period of four weeks from the date of his Order, into the credit ofthe M.C.O.P.No.670 of 2000, on the file of the Motor Accident ClaimsTribunal, Additional District Judge, Fast Track Court-II, Salem,subject to deduction of earlier amounts made to the claimant.17.It is open to the appellant/claimant to withdraw the entirecompensation amount with accrued interest and cost, lying the creditof the M.C.O.P.No.670 of 2000, on the file of the Motor AccidentClaims Tribunal, Additional District Judge, Fast Track Court-II,Salem, after filing necessary payment out application, in accordancewith law.18.In the result, the above Civil Miscellaneous Appeal is partlyallowed and the award and decree passed by the Motor Accident ClaimsTribunal, Additional District Judge, Fast Track Court-II, Salem, inM.C.O.P.No.670 of 2000, is modified. No costs.Sd/-Asst.Registrar/True Copy/Sub.Asst.Registrarkrk https://hcservices.ecourts.gov.in/hcservices/ To1.Motor Vehicles Accident Claims Tribunal, Additional District Judge, Fast Track Court-II, Salem.2. The Section Officer, VR Section, High Court, Madras.+ 1 cc to Mr.K.Kuppusamy, Advocate,SR.71179C.M.A.No.1500 of 2008RB(CO)EM/18.1.10