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Judgment
P.P.S. Janarthana Raja, J.—The appeal is preferred by the Appellant-claimant against the judgment and Decree dated 18.09.2008 made in M.C.O.P. No. 61 of 2006 on the file of the Motor Accidents Claim Tribunal, Subordinate Court, Srivilliputtur.
When the matter camp up on 06.03.2009, this Court ordered notice of motion. When the matter came up today for admission, the same was opposed by the learned Counsel appearing for the Respondent-Insurance Company. By consent of the learned Counsel of both the parties, this matter is taken up for final disposal.
Background facts in a nutshell are as follows:
The injured Minor Bhuvaneeswari met with motor traffic accident on 16.10.2005 at about 4.30p.m. The said injured was walking along with her mother on the side of the Nallakutralam street, Srivilliputhur from South to North direction. At that time a lorry belonging to the first Respondent bearing Registration No. TN-I-8209 came in a rash and negligent manner from South to North direction and at high speed and hit the claimant. Due to the said impact, she sustained fracture in left leg thigh and also multiple injuries all over the body. She claimant a sum of Rs. 1,50,000/-as compensation. The said lorry was insured with the second Respondent Insurance Company who resisted the claim. On pleadings, the Tribunal framed the following issues:
On whose negligence the accident had occurred?
Whether the claimant is entitled for compensation? If so, what is the amount and from whom?
After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the driver of the lorry and awarded a compensation of Rs. 63,494/-with interest at 7.5% per annum from the date of petition. The details of the compensation are as under:
For loss due to 25% disability Rs. 25,000/- For medical bills Rs. 22,494/-
For pain and suffering Rs. 10,000/-
For transport and extra nourishment Rs. 5,000/-
For attendant''s charges Rs. 1,000/- ---------- Total Rs. 63,494/- ----------
Aggrieved by that award, the Appellant-claimant has filed the present appeal for enhancement of the compensation awarded by the Tribunal.
Learned Counsel appearing for the Appellant-claimant has submitted that the Tribunal has awarded a very low and meagre sum of compensation and the Tribunal ought to have awarded the amount as claimed by the claimant. The Tribunal has not considered all the relevant materials and it has not followed the principles of assessment before passing the award and it is a fit case for enhancement.
Learned Counsel appearing for the second Respondent-Insurance Company submitted that the Tribunal had considered all the relevant materials and evidence on record and came to the right conclusion and awarded a just, fair and reasonable compensation. Hence the order of the Tribunal is in accordance with law and the same has to be confirmed.
Heard the counsel and perused the materials available on record. On the side of the Appellant-claimant, P.W.1 and P.W.2 were examined and documents Exs.P.1 to P.15 were marked. P.W.1 is the mother of the claimant. P.W.2 is Dr. Ravichandran. Ex.P.1 is the certified copy of F.I.R. Ex.P.2 is the certified copy of Motor Vehicle Inspector''s report. Ex.P.3 is the certified copy of charge sheet. Ex.P.4 is the certified copy of judgment in criminal case. Ex.P.5 is the certified copy of accident register. Ex.P.6 is the original wound certificate. Ex.P.7 is the discharge summary given by R.S. Ortho Hospital, Rajapalayam. Ex.P.8 is the receipt for doctor fees. Ex.P.9 is the medical prescription given by the doctor. Ex.P.10 are the Lab and Medical bills. Ex.P.11 is the O.P. Card given R.S. Ortho Hospital, Rajapalayam. Ex.P.12 are the photos and negatives which are shown the nature of wounds. Ex.P.13 is the X-ray. Ex.P.14 is the X-ray. Ex.P.15 is the disability certificate. On the side of the second Respondent -Insurance Company, no one was examined and no document was marked. After considering the above oral and documentary evidence, the Tribunal had given a categorical finding that the accident had occurred only due to the rash and negligent driving of the driver of the lorry. It is a question of fact and it is based on valid materials and evidence. Therefore the same is confirmed.
The injured minor claimant was 10 years old at the time of accident. She was studying V. Std in St. Heart Middle School, Srivilliputhur. In the evidence of P.W.1, it is stated that it was only the driver of the lorry had caused the accident and the driver was charge sheeted by Srivilliputhur Town Police Station, in Cr. No. 630 of 2005 under Sections 279 and 337 of I.P.C. Immediately after the accident, the injured minor claimant was admitted in Dr. Mary Jenova Private Hospital, Srivilliputhur. Later she was admitted in Government Hospital, Srivilliputhur and then she was treated in Ortho Hospital, Rajapalayam. Due to the accident, she sustained a fracture in the left leg thigh and also grievous and multiple injuries all over the body. P.W.2 is the doctor, who examined the claimant and determined the disability at 35%. Ex.P.15 is the disability certificate. Exs.P.13 and P.14 are X-rays. Ex.P.6 is the wound certificate. In the evidence of the doctor, it is stated that the injured sustained fracture on her left leg and grievous multiple injuries all over the body. Further, it is stated that there is a shortening of leg to the extent of 3.5cm. Due to the injuries, the claimant is unable to walk, stand and climb substantially. After considering the oral and documentary evidence, the Tribunal has reduced the percentage of disability from 35% to 25%. Once the doctor gave the disability certificate, the same cannot be reduced. Therefore, we take the disability at 35%. The Tribunal has awarded a sum of Rs. 1,000/-per percentage of disability and awarded a sum of Rs. 25,000/-towards loss due to 25% disability. Normally the Courts award a sum of Rs. 1,000/-to Rs. 2,000/-per percentage of disability. In the present case, after taking into consideration the fracture in the left leg and other injuries all over the body, I feel that the award amount granted by the Tribunal towards this head is very meagre. If a sum of Rs. 1,400/-awarded for per percentage of disability, the amount towards loss due to 35% disability works out to Rs. 49,000/-(Rs. 1,400/-x 35) and rounded of to Rs. 50,000/-. Accordingly, the claimant is entitled to Rs. 50,000/-towards loss due to 35% disability. The Tribunal has also awarded a sum of Rs. 22,494/-towards medical expenses. Ex.P.10 are the medical bills. It is an actual expenditure. The amount awarded by the Tribunal under this head is very reasonable and hence, the same is confirmed. The Tribunal has also awarded a sum of Rs. 10,000/-towards pain and suffering. Taking into consideration the nature of injuries stated above and the age of the injured, it is reasonable to award a sum of Rs. 15,000/-as against the sum of Rs. 10,000/-awarded by the Tribunal. Hence, the claimant is entitled to a sum of Rs. 15,000/-towards pain and suffering. The Tribunal has also awarded a sum of Rs. 5,000/-towards transport and extra nourishment which are very low. Taking note of the fact that the injured minor claimant had taken treatment for a period of one month and taken treatment in both private and Government hospitals, it is reasonable to award a sum of Rs. 7,500/-towards this head. Hence, the claimant is entitled to a sum of Rs. 7,500/-towards transport and extra nourishment. Further, the Tribunal has also awarded a sum of Rs. 1,000/-towards attendant''s charges. Consideration facts and circumstances of the case, it is reasonable to award a sum of Rs. 2,500/-towards attendant''s charges. Accordingly, the claimant is entitled to a sum of Rs. 2,500/-towards attendant''s charges. The Tribunal has also awarded an interest of 7.5% interest p.a. from the date of petition. After taking note of the date of accident, the date of award and also the prevailing rate of interest during the relevant period, the interest rate fixed by the Tribunal at 7.5%p.a. from the date of petition is very reasonable and hence, the same is confirmed.
The details of the modified compensation as per the above discussion are as under:
For medical expenses Rs. 22,494/- For pain and suffering Rs. 15,000/- For transport and extra nourishment Rs. 7,500/- For attendant''s charges Rs. 2,500/- -------------- Total Rs. 97,494/- Rounded off to Rs. 98,000/- Less the amount awarded by the Tribunal Rs. 63,499/- -------------- Enhanced amount Rs. 34,499/- -------------- Rounded off to Rs. 34,500/- --------------
Therefore, the claimant is entitled to the enhanced compensation of Rs. 34,500/-with interest at 7.5% per annum from the date of petition.
The Appellant Insurance Company is directed to deposit the enhanced compensation of Rs. 34,500/-with 7.5%p.a. from the date of petition, within a period of eight weeks from the date of receipt of a copy of this order. On such deposit being made, since the injured is a minor, the Tribunal is directed to keep the entire award amount in a fixed deposit in Reinvestment Scheme in any Nationalized Bank initially for a period of three years and the same shall be renewed till the minor attains the age of majority. The mother of the minor claimant is permitted to withdraw the accrued interest once in three months on making proper application. If is further directed that if any situation arise with regard to medical treatment of the minor or her studies, the mother of the injured minor claimant shall withdraw the award amount on making proper application.
With the above modification, the Civil Miscellaneous Appeal is disposed of. Consequently, connected Miscellaneous Petition is also closed. No costs.