Nainar(died) vs P. Krishnasamy

V.M. Velumani, J.—This Civil Miscellaneous Appeal is filed for enhancement of compensation. Pending appeal, the sole appellant died and hence the appellants 2 to 6 were impleaded as legal representatives of the deceased sole appellant. The claimants are referred to as the appellants in this Appeal.

The facts of the case are as follows:

The first appellant(deceased) suffered injuries in the accident that took place on 19.05.2002. While he was driving his TVS 50 XL bearing Registration No.TN 69 C 1365 carefully and slowly, the driver of the first respondent drove the Maruthi Car in a rash and negligent manner and dashed against the TVS 50 XL and hit him from behind. In the accident the appellant sustained injuries. His vehicle and milk can got damaged in the accident. He was treated as inpatient in Thoothukudi Medical College Hospital at Thoothukudi, for one day and then he was taken for further treatment at Velayutham Nursing Home at Thoothukudi, for one month. Due to the injury, in-spite of treatment being taken, the appellant was unable to walk and move as before and unable to attend his routine work. A complaint was filed and the same was registered against the driver of the Maruthi Car, which was insured with the second respondent and therefore, the appellant claimed a sum of Rs.10 lakhs as compensation from the respondents 1 and 2.

The first respondent remained ex-parte before the Tribunal.

The second respondent denied all the allegations made in the claim Petition. The second respondent did not admit the fact that the accident took place on 19.05.2002. The second respondent stated that the Insurance Company of the TVS 50 XL is a necessary party and the claim Petition must be dismissed for non-jointer of necessary parties. The second respondent denied the very liability to pay compensation to the claimants and stated that in any event, the compensation claimed by the appellants is very excessive.

The appellant examined himself as P.W.1 and one Dr. Ramaguru, who has given treatment was examined as P.W.2 and 12 documents were marked as Ex.P.1 to Ex.P12. On the side of the respondent, they did not let in any oral or documentary evidence. The Tribunal based on the oral and documentary evidence, held that the accident took place due to the rash and negligent driving of the driver of the Maruthi Car belonging to the first respondent insured with the second respondent and awarded a compensation of Rs.67,000/- with interest at 9% p.a from the date of claim petition till the date of realization. Aggrieved by the said order, the appellants/claimants have come forward with the present Appeal for enhancement of compensation.

The learned counsel for the appellants contended that due to the accident, the appellant suffered a cut injury (vein cut) in the right leg and due to the same, the appellant was unable to walk and move as before and also unable to do his routine work. Further, the Tribunal has reduced the percentage of disability from 60% to 40% and the reason given by the Tribunal, is not a valid one. He would further contend that compensation must be granted taking into consideration the percentage of disability at 60%. The Tribunal has rejected the medical bills, solely on the ground that the name of the appellant is not mentioned in the bills which has to be set aside. The compensation awarded for pain and suffering, extra nourishment must be enhanced taking into consideration the nature of injury sustained by the appellant.

Per contra, the learned counsel for the second respondent would contend that the compensation awarded by the Tribunal is just and proper and there is no reason for enhancement of the same.

The only question to be decided in this appeal is as to whether the compensation awarded by the Tribunal is just and proper or liable to be enhanced?

Heard the learned counsel for the appellants and the learned counsel for the second respondent and perused the materials available on record including the judgement of the tribunal.

The appellant examined the doctor, who treated him and produced document to show that he suffered 60% partial permanent disability. The Tribunal has reduced the same to 40% and granted Rs.40,000.- towards partial permanent disability, on the ground that in the First Information Report marked as Ex.P1, loss of six teethes was not mentioned. This reasoning is not correct. First Information Report is an initial document given by the Police and only when the treatment is taken, the disability can be ascertained. In view of this, the compensation awarded under the head partial permanent disability is enhanced to Rs.60,000/- Further, the award of the Tribunal at Rs.4000/- for loss of earning capacity, Rs.1000/- for loss of income, Rs.2000/- for extra nourishment, Rs.5000/- for pain and suffering. These amounts are too meagre. The Petitioner took treatment for one month. Compensation for pain and suffering and for extra nourishment to be enhanced. The appellant produced Ex.A10-Series of Bill claiming a sum of Rs.34,476.60/- towards medical expenses. Tribunal has granted only Rs. 1500/- Balance amount was rejected on the ground that appellant''s name was not mentioned in Ex.A10.This is not a valid reason.

However, during the argument the learned counsel for the claimants submitted that he restricted his claim for enhancement of compensation to the tune of Rs.33,000/- and hence the compensation awarded by the Tribunal is enhanced from Rs.67,000/- to Rs.1 lakh with interest at 7.5% p.a from the date of claim Petition till the date of realization.

In the result, the Civil Miscellaneous Appeal is allowed and the compensation is enhanced from Rs.67,000/- to Rs.1 lakh with interest at 7.5% from the date of claim Petition till the date of deposit. The Second respondent/Insurance Company is directed to deposit the same within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently connected Miscellaneous Petitions are closed.