G. Subhaithal Beevi vs S.M.A. Seribjunisha and The Branch Manager and United India Insurance Company Limited

R. Karuppiah, J.—This Civil Miscellaneous Appeal has been filed for enhancement of compensation by the appellant/claimant as against the

award and decree made in MCOP No. 364 of 2003, dated 12.07.2005, on the file of Motor Accident Claims Tribunal cum Additional

Subordinate Court, Tenkasi. The appellant/claimant filed claim petition for compensation of Rs. 5,00,000/- for the injuries sustained by her in the

accident. In the claim petition it is stated that on 30.03.2003 at about 15.45 hrs, the appellant/claimant was walking from South to North by

keeping extreme end of the left side of the road and when she was coming in front of Kadayanallur Telephone Exchange in Tenkasi to Madurai

Main Road, the first respondent''s Hyundai car bearing registration No. 72 W 3300 was driven by its driver with great terrific speed and not

observing the traffic rules from South to North and directly hit the claimant and the claimant has sustained grievous injuries on the left thigh and also

sustained simple injuries on various parts. Further, it is stated that she was taken to Government Hospital, Kadayanallur, where she has taken first

aid treatment and then she was referred to TVMC Hospital and taking treatment as inpatient from 13.03.2003 to 17.05.2003 and after discharge

she was taking treatment as out patient in Private clinic till the date of petition. It is also averred in the claim petition that the age of the injured

claimant is 45 years at the time of the accident and she was doing beedi rolling work and earning a sum of Rs. 3,000/- per month and therefore,

claimed compensation at Rs. 5,00,000/- from the respondents who are the owner and insurer of the above said vehicle.

Before the Tribunal, the first respondent, who is the owner of the above said vehicle, has filed counter, wherein it is stated that the

appellant/claimant should prove that the alleged accident was occurred due to the rash and negligent driving of the first respondent''s vehicle driver

and further stated that the first respondent vehicle was duly insured with the second respondent insurance company under the policy No. 091000-

31-3-05261. Therefore, the second respondent insurance company is liable to pay compensation.

The second respondent insurance company has filed a separate counter in which they denied the manner of the accident alleged in the claim

petition and it is stated that the appellant/claimant should prove the above said fact. They further denied the age, avocation and income of the

appellant/claimant, injury, disability etc., and the injury sustained by the appellant/claimant is simple in nature and she does not suffer disability and

therefore, the compensation claimed is higher and excessive.

Before the Tribunal, on the side of the claimant, two witnesses were examined as PW1 and PW2 and 11 documents were marked as Ex. P1 to

Ex. P11. On the side of the respondent, neither any witness was examined nor any document was marked.

Considering the oral and documentary evidence, the Tribunal has held that the accident occurred only due to the rash and negligent driving of the

first respondent''s vehicle driver and awarded the compensation under various heads as follows:-

For grievous injury and disability Rs./25,000

Loss of income Rs. 5,000

Pain and suffering Rs. 1,500

Extra nourishment Rs. 1,500

Total Rs.33,000

Aggrieved over the above said award of compensation awarded by the Tribunal, the appellant/claimant has filed this appeal for enhancement of

compensation.

With regard to negligence aspect, on the side of the appellant/claimant, the injured herself has deposed as PW1 and also marked 11 documents

more particularly, Ex. P1-First Information report, Ex. P2-Motor Vehicle Inspector''s Report and Ex. P6-copy of charge sheet. A careful perusal

of the above said oral and documentary evidence reveal that the accident was occurred only due to the rash and negligent driving of the first

respondent''s vehicle driver. No contrary evidence was adduced on the side of the respondents. Therefore, the Tribunal has correctly held that the

accident had occurred only due to the rash and negligent driving of the first respondent''s vehicle driver.

The age of the injured claimant at the time of the accident was taken as 45 years and the same is not in dispute. According to the

appellant/claimant, at the time of the accident, she was doing beedi rolling work and also working as coolie and earning a sum of Rs. 3,000/- per

month and due to the disability sustained by the appellant/claimant, she is unable to work.

A perusal of the doctor evidence PW2, and also Ex. A10-Disability Certificate and Ex. A11-X-rays reveals that the doctor has opined that the

injured claimant has sustained fracture injury and assessed the disability at 60% and the doctor also deposed before the tribunal and stated that the

appellant/claimant sustained 60% disability. The oral testimony of PW1 and PW2, and the above said disability certificate, and X-rays, clearly

proved that the claimant sustained fracture injuries and sustained disability at 60%. The Tribunal has not all considered the above said nature of

injuries sustained by the appellant/claimant and the disability assessed by the doctor. The Tribunal has awarded only a meagre amount of Rs.

25,000/- for permanent disability, as rightly contended by the learned counsel for the appellant/claimant. Therefore, from the oral and documentary

evidence, considering the nature of injuries sustained by the claimant, the period of treatment and the disability percentage assessed by the Doctor,

this Court is of the view that Rs. 25,000/- awarded for grievous injury and 60% disability is very meagre and the same is to be enhanced to Rs.

90,000/-.

With regard to loss of income during the period, the appellant/claimant taken treatment from 13.03.2003 to 17.05.2003 and then as out patient,

the Tribunal has awarded only a sum of Rs. 5,000/- for loss of income during the period of treatment. Considering the period of treatment as

inpatient and subsequently as out patient and other factors, Rs. 5,000/- awarded by the Tribunal under the said head is low and therefore, it is to

be enhanced as Rs. 10,000/-.

The Tribunal has awarded Rs. 1,500/- for pain and suffering. As already discussed earlier, the claimant has sustained grievous injuries and

admitted in the hospital from 13.03.2003 to 17.05.2003 as inpatient and also subsequently, taking treatment as outpatient for long period.

Considering the above said facts, the amount awarded towards pain and suffering at Rs. 1,500/- is very low and the same is to be enhanced to Rs.

10,000/-.

The Tribunal awarded a sum of Rs. 1,500/- towards extra nourishment and it is also very low and hence, it is to be enhanced to Rs. 5,000/-.

Further, the Tribunal has not all awarded any amount for future medical treatment and therefore, the appellant/claimant submitted that minimum of

Rs. 5,000/- has to be awarded in the above said head. The learned counsel for the second respondent insurance company submitted that the

appellant/claimant has not all produced any material to show that she has spent huge amount for medical treatment and therefore, she is not entitled

for any amount. Any how, after discharge from the hospital, the claimant should have been taken treatment as out patient, considering the nature of

injuries sustained by the claimant. Rs. 2,000/- is to be awarded towards future medical expenses. Considering the period of treatment, this Court is

inclined to award a sum of Rs. 5,000/- towards transportation. Therefore, the award amount is enhanced from Rs. 33,000/- to Rs. 1,22,000/-

(Rupees one lakh twenty two thousand only) with the same rate of interest as awarded by the Tribunal and details are given below:-

For grievous injury and for 60% disability Rs.90,000

Loss of income Rs.10,000

Pain and suffering Rs10,000

Extra nourishment Rs.5,000

Future medical expenses Rs.2,000

Transportation Rs.5,000

Total Rs.1,22,000

In the result, this Civil Miscellaneous Appeal is partly allowed and the award passed by Tribunal is modified and enhanced from Rs. 33,000/-

to Rs. 1,22,000/- with 9% interest from the date of claim petition with proportionate cost. The second respondent insurance company shall pay the

enhanced amount within a period of 8 weeks from the date of receipt of a copy of this order along with interest and costs.