G. Rajadurai vs M. Bose and The United India Insurance Company Limited

M. Venugopal, J.—This Civil Miscellaneous Appeal is filed by the claimant as appellant aggrieved against the award dated 24.02.2004

passed by the Motor Accident Claims Tribunal - Additional District Sessions Judge, Fast Track Court No. III, Madurai, in M.C.O.P. No. 1303

of 1999 granting a total compensation of Rs. 75,000/- (Rupees Seventy Five Thousand only) together with interest at 9% p.a. from the date of

filing of the petition till date of payment.

The appellant/claimant has filed the claim petition claiming a total compensation of Rs. 2,36,500/- under various heads for the grievous injuries

sustained by him in a road accident and the same has been restricted to a sum of Rs. 2,00,000/- (Rupees Two Lakhs only).

Dissatisfied with the award passed by the Tribunal, the claimant has preferred this appeal before this Court praying for an enhanced

compensation.

The facts of the claim in nutshell are as follows:

On 27.01.1999, when the appellant/claimant was walking along the road on the extreme left side corner of Madurai - Dindigul main road, when he

was nearing Pepsi Company at about 07.30 hours, a Mahindra Maxi cab van bearing Registration No. TN-27-A-2162 belonging to the first

respondent came from west to east was driven by its driver in a high speed rash and negligently and not blowing the horn, dashed against him

heavily resulting in grievous injuries like fracture on his right side mandible bones, cut injuries on the forehead, right eye brow, right lips and injuries

all over the body. Immediately the appellant/claimant was taken to the Madurai Government Rajaji Hospital and admitted as an inpatient on

27.01.1999 for treatment and after treatment, the claimant was discharged and continuing treatment as outpatient in that Hospital. The claimant is

not able to do any work due to the grievous injuries sustained by him.

The first respondent is the owner of the van bearing Registration No.TN-57-A-2162 and the second respondent is an insurer of the said van.

Against the first respondent''s van driver, a case has been registered under Sections 279 and 337 I.P.C by the Samayanallur Police Station,

Madurai District in Cr. No. 64 of 1999 and the same is pending on the file of the learned Judicial Magistrate No. V, Madurai. Hence, for the loss

suffered by the claimant, the claimant claims a sum of Rs. 2,00,000/- (Rupees Two Lakhs only) as compensation.

The first respondent/owner has remained ex-parte before the Tribunal. The second respondent/United India Insurance Company Limited, has

filed a counter inter alia stating that the driver of the van bearing Registration No.TN-57-A-2162, drove the vehicle adhering to the road rules

keeping left side of the road, sounding horn with slow speed at the time of the accident and that the claimant has deliberately alleged in the claim

petition that the accident took place due to the rash and negligent driving on the part of the driver of the van at the time of the accident and that the

claimant has not proved the negligence on the part of the van driver beyond doubt.

It is further plea of the second respondent/Insurance Company that the claimant at the time of the accident, was crossing the road suddenly and

carelessly in a rash and negligent manner by running and that he has invited the risk of the accident and that the van driver was not at all responsible

for the accident and in any event, the huge claim of Rs. 2,00,000/- (Rupees Two Lakhs only) is far excessive and out of proportions.

On the side of the claimant, witnesses P.W.1 to P.W.3 were examined and Exs.P.1 to P.12 were marked before the Tribunal and on the side of

the respondents, no witness was examined and no documents were marked.

Based on the appreciation of oral and documentary evidence, the Tribunal has awarded a total compensation of Rs. 75,000/- (Rupees Seventy

Five Thousand only) along with interest at 9% p.a from the date of filing of the petition till date of payment. The Tribunal has fixed the lawyer''s fee

at Rs. 3,437/-.

To prove negligence, the appellant/claimant has examined himself as P.W.1 before the Tribunal. In his evidence, the claimant as P.W.1 has

deposed that on 27.01.1999, at about 07.30 a.m, he was walking along Madurai - Dindigul road and at that time, the van bearing Registration No.

TN-57-A-2162 belonging to the first respondent, was driven by its driver in a high speed and negligently and dashed against him and caused the

accident, as a result of which he sustained bone fractures, jaw bone fracture, cut injury on the forehead, injury on the right eye brow, right lips and

that he was admitted as an inpatient in the Madurai Government Rajaji Hospital and later on, got discharged and treated as outpatient and that he

could not speak properly because of jaw bone fracture and that he gets pain while taking food and that his right eye vision has been affected and in

the Government Hospital, he remained as inpatient till 10.02.1999 and thereafter, he took treatment for three months as outpatient and in the

Government Hospital, they informed him that he lost his full right eye sight and this has been confirmed by Madurai Arvind Eye Hospital and that

F.I.R is Ex.P.1 and that the van driver is responsible for causing the accident. The father of the claimant, Gurusamy, is the complainant in Ex.P.1,

F.I.R. The name of the accused is mentioned as M.Andavar. The said Andavar is the driver of the van bearing Registration No. TN-57-A-2162,

who has caused the accident.

A perusal of Ex.P.1, F.I.R, indicates that the complainant Gurusamy, the father of the claimant, has clearly stated that on 27.01.1999 at about

07.30 hours in the morning, the van bearing Registration No.TN-57-A-2162 came from west to east driven by its driver in a high speed and

negligently without sounding horn and dashed against his son, Rajadurai, the claimant who was walking along the left side of the road, as a result of

which his son sustained injury on the forehead, right eye brow, right eye, right lip and also blood injuries and that the van driver stopped the van

after passing some distance. Therefore, the evidence of P.W.1, the claimant is unassailable, clear and convincing in regard to the manner and

happening of the accident and the same is accepted as trustworthy by this Court and in that view of the matter, this Court comes to the conclusion

that the accident has occurred because of the negligent driving of the van bearing Registration No. TN-57-A-2162 by its driver in a high speed

and that the driver of the said van, M.Andavar is squarely responsible for causing the accident and answered accordingly.

Coming to the aspect of quantum of compensation, it is to be pointed out that the Tribunal has awarded a sum of Rs. 40,000/- for the injury

sustained by the appellant/claimant in the accident and for the resultant pains and sufferings that he suffered at that time of the accident and during

the course of treatment. Further, the Tribunal has fixed the partial permanent disability at 20% for the fractures suffered by the appellant/claimant

on his face, though P.W.2 Dr. R. Anitha has assessed the disability of the claimant at 30% as per Ex.P.8, disability certificate dated 07.11.2003.

Moreover, the Tribunal has fixed the partial permanent disability of the claimant at 15% notwithstanding the fact that P.W.3, Dr. P. Thiyagarajan

has fixed the disability of the claimant at 30% blindness as per Ex.P.12, disability certificate dated 08.01.2004. In short, the Tribunal has opined

that the appellant/claimant has suffered a partial permanent disability of 35% and has granted a sum of Rs. 35,000/- in this regard and totally, it has

awarded a sum of Rs. 75,000/- (Rs. 40,000/- + Rs. 35,000/- = Rs. 75,000/-) along with interest at 9% from the date of filing of the petition till

date of payment.

According to the learned Counsel for the appellant/claimant, the Tribunal has not appreciated the evidence of medical experts P.W.2 and

P.W.3 in regard to the disabilities suffered by the appellant/claimant and that the Tribunal has committed an error in determining the disabilities

pertaining to the injuries sustained by the appellant/claimant and in any event, the award passed by the Tribunal is meagre and inadequate and

therefore, prays for enhanced compensation.

The learned Counsel for the appellant/claimant cited the decision in United India Insurance Company Ltd., Branch Officer Vs. Veluchamy and

Another, wherein it is observed that ''Courts should approach issue of awarding damages on larger perspective of the justice, equity and good

conscience and eschew technicalities in decision making, etc.''.

P.W.1/Rajadurai/the claimant in his evidence has categorically stated that for the jaw bone fracture and for the injuries sustained in the eye, he

was surgically operated upon and that his right eye vision had been affected and that because of jaw bone fracture, he could not speak properly

and while taking food, he has pains in the jaw and that he had lost his right eye vision fully and that he took treatment in the Government Hospital

as an inpatient till 10.02.1999 and that thereafter, he took treatment for three months as an outpatient.

P.W.2, Dr. R. Anitha, in her evidence has deposed that the claimant involved in the road accident on 27.01.1999 was admitted as inpatient till

10.02.1999 and received treatment for the injuries sustained and that she gave treatment to the claimant in the Hospital and that the claimant came

to her on 07.11.2003 for obtaining the disability certificate and that she has assessed the permanent disability of the claimant at 30% as per Ex.P.8

and the treatment notes is Ex.P.19 and Ex.P.10 is the X-ray.

It is further the specific evidence of P.W.2, Dr. R. Anitha, that the claimant''s right side cheek bone and right side lower jaw bone were not

properly united as a result of which his face presented an ugly picture and that there was no free flow of speech fluency and that in the thirteen days

treatment, all kinds of treatments were over and that in the Government Hospital, the medical treatment is without expenses.

P.W.3, Dr. P. Thiyagarajan, in his evidence has stated that the claimant came to him on 08.01.2004 for obtaining a certificate in regard to the

injuries sustained by him in a road accident and that his sight in the right eye was upto 1.60 metres instead of requirement of full sight of 6/6 metres

and that he could not distinguish the colour using the right eye and that the nerve coming from brain to right eye got damaged and that the pupil in

the right eye was not functioning properly and that he has assessed the partial permanent disability of the claimant at 30% which is permanent and

Ex. P.12 is the disability certificate and Ex. P.11 is the examination certificate in respect of the claimant.

Further, P.W.3, Dr. P. Thiyagarajan in his cross-examination has stated that the claimant has full eye sight on his left eye and that since the

claimant has sight in his right eye to the level of 1 meter, it could be taken as no full vision and that X-ray has been taken on the face of the claimant

and that near right cheek, one bone was broken as seen from the note.

In Ex.P.8, the disability certificate dated 07.11.2003 issued to the claimant, P.W.2, Dr. R. Anitha has opined as ''Malunion of # R Lygomatico

- manillary complex and R angle leading to severe facial disfigurement, inability to speak well and difficulty in chewing food stuffs.'' and has

assessed the break-up disability as ''loss of esthetics - 7.5%, loss of function - 22.5% and the total percentage of disability at 30%'', besides

stating that the disablement is a partial one. In fact, in Ex.P.8, the disability certificate, the nature of the injury is mentioned as ''grievous - # Lefort II

Manilla with midpalatal split and # Mandible R angle''.

At this stage, it is pertinent to point out that in Ex.P.12, the disability certificate dated 08.01.2004, issued to the claimant, P.W.3, Dr. P.

Thiyagarajan, has stated as follows:

RE 1/60

Visual acuity

LE 6/6

No BSV.

RE Not possible

C V

LE Normal.

RE Primary optiz atophy

Findings

LE Normal,

and has assessed 30% blindness. As a matter of fact, in Ex.P.12, disability certificate, P.W.3, Dr. P. Thiyagarajan has stated as ''RE: Indirect optiz

N injury and fracture zygoma.''.

On a perusal of Exs.P.8 and P.12, the disability certificates issued by P.W.2 Dr. R. Anitha and P.W.3, Dr. P. Thiyagarajan, it is evident that

the claimant has suffered partial disability of 30% and another 30% disability of blindness and in all, has suffered a total disability of 60%.

However, the Tribunal has fixed the disability of the claimant at 20% for the fractures suffered by him on his face ignoring the evidence of P.W.2

Dr. R. Anitha and the disability certificate, Ex.P.8.

Likewise, the Tribunal has fixed the partial permanent disability of the claimant at 15% ignoring the evidence of P.W.3, Dr. P. Thiyagarajan

(Ophthalmologist) and the disability certificate, Ex.P.12.

In short, the Tribunal has fixed the partial permanent disability of the claimant in all at 35% and has granted a sum of Rs. 35,000/- in this

regard.

It cannot be gainsaid that when P.W.2, Dr. R. Anitha and P.W.3, Dr. P. Thiyagarajan, have assessed the disability of the claimant as per

Exs.P.8 and P.12 and in all assessed at 60%, then it is not open to the Tribunal to brush aside the medical expert''s evidence and instead substitute

its view in its place. Therefore, this Court holds that partial permanent disability fixed at 35% by the Tribunal is invalid and not proper on the facts

and circumstances of the case. Per contra, this Court accepts the clear cut evidence of P.W.2, Dr. R. Anitha and P.W.3, Dr. P. Thiyagarajan, in

regard to the disability suffered by the claimant and determines the disability suffered by the claimant at 60% to prevent aberration of justice.

Resultantly, this Court fixes a sum of Rs. 1,750/- for 1% of disability and accordingly, for 60% disability suffered by the claimant, the same works

out to Rs. 1,05,000/- (Rs. 1,750/- X 60 = Rs. 1,05,000/-) {Rupees One Lakh and Five Thousand only), to which sum, the appellant/claimant is

entitled to receive in this regard. Towards pain and sufferings, this Court grants a sum of Rs. 10,000/-. The claimant has claimed a sum of Rs.

500/- towards transport expenses. Even though there is no proof in this regard on the side of the claimant, this Court grants the said sum of Rs.

500/- on account of the injuries sustained by the claimant since strict rules of proof and pleadings are not required in the Motor Accident Claims

Tribunal proceedings which are admittedly summary in nature.

The appellant/claimant has claimed a sum of Rs. 6,000/- towards loss of earning for two months from 27.01.1999 to 27.03.1999 in the claim

petition. The claimant''s occupation is mentioned as Salesman on a monthly salary of Rs. 3,000/-. In the claim petition, the name of the employer of

the claimant is mentioned as ''M/s.Vignesh Automobiles, Workshop Road, Madurai-1.'' As a matter of fact, the claimant in his evidence as P.W.1

has not spoken nothing about the loss of income for two months or anything about the receipt of salary, to claim a sum of Rs. 6,000/-. Admittedly,

the appellant/claimant has not produced his salary certificate before the Tribunal. However, he has deposed that he took treatment as an inpatient

in the Government Hospital till 10.02.1999 and thereafter, took treatment for three months as an outpatient. Hence, taking into consideration of the

fact that the appellant/claimant has remained as an inpatient in the Government Hospital for fifteen days (from 27.01.1999 to 10.02.1999) and

bearing in mind the fact that he took treatment for three months, this Court in the absence of satisfactory proof, grants only a sum of Rs. 4,500/-

towards loss of income in the interest of justice.

Since the appellant/claimant has sustained injuries in the road accident, resulting in disability of 60%, towards loss of happiness, a conventional

figure of Rs. 5,000/- is awarded by this Court.

Thus, the appellant/claimant is entitled to receive a total sum of Rs. 1,25,000/- (Rs. 1,05,000/- + Rs. 10,000/- + Rs. 500/- + Rs. 4,500/- +

Rs. 5,000/- = Rs. 1,25,000/-) {Rupees One Lakh and Twenty Five Thousand only), as total compensation. Accordingly, this Court awards a sum

of Rs. 1,25,000/- as total compensation along with interest at 9% p.a from the date of petition till date of payment for the disability suffered by the

claimant payable by the second respondent/Insurance Company and this Court consequently, comes to the resultant conclusion that a sum of Rs.

75,000/- awarded by the Tribunal is inadequate and not proper on the facts and circumstances of the case. The lawyer''s fee is fixed at Rs.

6,000/- (Rupees Six Thousand only) by this Court.

The Tribunal has awarded a sum of Rs. 75,000/- along with interest at 9% p.a from the date of filing of the petition till date of payment to the

claimant. If the sum of Rs. 75,000/- etc, has already been deposited before the Tribunal, then the second respondent/Insurance Company is

directed to pay the balance sum of Rs. 50,000/- (as enhanced compensation) along with interest at 9% from the date of filing of the petition till date

of payment and one month time is granted to the second respondent/Insurance Company to deposit the said amount before the Tribunal from the

date of receipt of a copy of this order.

On such deposit, it is open to the appellant/claimant to receive the balance amount from the Tribunal by filing appropriate application as per the

Civil Rules of Practice in accordance with law. The Motor Accident Claims Tribunal - Additional District Sessions Judge, Fast Track Court No.

III, Madurai, is directed to ensure that appropriate Court Fee is collected from the appellant/claimant as per law.

In the result, the Civil Miscellaneous Appeal is allowed in above terms. Consequently, the award dated 24.02.2004 made in M.C.O.P. No.

1303 of 1999 on the file of the Motor Accident Claims Tribunal - Additional District Sessions Judge, Fast Track Court No. III, Madurai, is

modified. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs in this appeal.