JUDGMENT
P. Sathasivam, J.
1. Aggrieved by the award of the Motor Accidents Claims Tribunal, Srivilliputhur, dated 3.1.1996 made in MCOP No. 243 of 1994, the erstwhile Pandian Roadways Corporation Ltd. has preferred the above appeal.
2. In respect of the grievous injuries sustained in a motor vehicle accident that took place on 8.2.1993, the first respondent herein has prayed for compensation of Rs. 1 lakh. Before the Tribunal, the claimant herself was examined as P.W.1 and the Doctor was examined as P.W.2 and marked Exs.P.1 to P.9 documents in support of her claim for compensation. On the side of the Pandian Roadways Corporation Ltd., the driver was examined as R.W.1. No other witness was examined and no document marked by the Pandian Motor Services Private Ltd. The Tribunal, after holding that the accident was caused due to the negligence of the driver of the Pandian Roadways Corporation, passed an award for Rs. 50,500/- with interest at the rate of 15% from the date of the petition till the date of deposit. Questioning the said award, Pandian Roadways Corporation Ltd. alone preferred the present appeal.
3. Heard the learned counsel for the appellant as well as the respondents.
4. After taking us through the impugned award of the Tribunal and the materials placed, the learned counsel for the appellant/Transport Corporation would contend that in the light of the stand taken by the claimant herself that both the drivers were responsible for the accident, the Tribunal had committed an error in holding that the driver of the Pandian Roadways Corporation Ltd. alone was responsible for the accident. On the other hand, the learned counsel for the third respondent/ Insurance Company would contend that in the light of the statement made in Ex.P.1, F.I.R., the Tribunal is justified in holding against the driver of the Pandian Roadways Corporation Ltd. and accordingly, it requires no interference by this Court. Apart from the above contention, the learned counsel for the first respondent herein-claimant, after taking us through the nature of the injury, period of treatment, disability, etc., would contend that even though she has not preferred appeal, she is entitled to higher compensation.
5. Insofar as the contention relating to negligence, there is no dispute that the first respondent/claimant both in the claim petition as well as in her evidence as P.W.1 has stated that the accident was caused due to negligence of the driver of both Pandian Roadways Corporation Ltd. and Pandian Motor Services Private Ltd.. Apart from the specific assertion in the claim petition, the injured claimant as P.W.1 has deposed before the Court that while the Pandian Roadways Corporation Ltd. bus was proceedings on the left side of the bridge, in a rash and negligent manner the other private bus was coming from the opposite side, and both the buses dashed against each other, thereby she sustained grievous injuries. One Subburaj, brother of the claimant, who also travelled in the same bus, made a complaint to the Police. F.I.R. has been marked as Ex.P.1, wherein it is stated that the driver of the Pandian Roadways Corporation Ltd. alone was responsible for the accident. Though Subbaraj, brother of P.W.1 was not examined before the Tribunal, the Tribunal accepted the contents of F.I.R and found that the accident was caused solely due to the negligence of the driver of Pandian Roadways Corporation Ltd. bus. In the light of the said conclusion, we have carefully perused the specific averments in the claim petition, the evidence of P.W.1 and also considered the fact that the said Subbaraj, who made a complaint to the Police, has not been examined and taking note of the entire materials placed before the Tribunal, we are of the view that both the drivers were equally responsible for the accident. Merely because the complaint has been made against Pandian Roadways Corporation’s driver, the assertion made in the claim petition and the evidence of the injured herself as P.W.1 cannot be ignored. The conclusion of the Tribunal merely based on Ex.P.1 cannot be sustained, more particularly, in the light of the case as pleaded by P.W.1 herself. Accordingly, we are satisfied that both the drivers were equally responsible for the accident and apportion their liability by 50:50.
6. Coming to the quantum of compensation determined by the Tribunal, it is seen from the evidence of P.W.1 that she sustained three fractures on her right hand and after taking first aid at Sattur Government Hospital, she was admitted in Government Rajaji Hospital at Madurai. She further deposed that she took treatment therein for a period of 23 days as inpatient. The accident Register has been marked as Ex.P.2 The date mentioned in Ex.P.2 supports the statement of P.W.1. Apart from the evidence of P.W.1, the Doctor Jeyaraman, who assessed her disability, was examined as P.W.2. After examination and after verification, he assessed her total disability in respect of all fractures to the extent of 69%. Disability certificate has been marked as Ex.P.9, X-Ray as Ex.P.8, and Case sheet as Ex.P.7. P.W.1 has also produced medical chit, which has been marked as Ex.P.3, medical bill has been marked as Ex.P.4 and receipt as Ex.P.6. The Tribunal, on the basis of the evidence of P.Ws.1 and 2 and the documents referred to above, fixed Rs. 20,000/- towards disability, Rs. 15000/- towards medical expenses, another Rs. 15000/- towards pain and sufferings and Rs. 500/- towards transport charges. All together, it granted Rs. 50,500/-.
7. By drawing our attention to the nature of the injuries suffered by P.W.1 as explained by P.W.2 and Exs.P.7 and P.9, the learned counsel appearing for the first respondent would contend that she deserves higher compensation. P.W.2, after examining P.W.1 and taking X-Ray, has assessed her disability to the extent of 69%. He deposed before the Court as follows:
“mtUila tyJ ifapy; nky; vYk;g[ nrutpy;iy. mtUila tyJ if K:l;L KGtJkhf ghjpf;fg;gl;L> mirt[fs; ,;y;yhky; ,Ue;jhh;. mtUila tyJ ifapDila mirt[fs; KGtJkhf ghjpf;fg;gl;Ls;sJ. mjw;F fhuzk; me;j jirfs; Muk;g gFjpfs; euk;g[fspd; KGtJkhf ghjpf;fg;gl;oUg;gjhy;> me;j mirt[fs; ,;y;iy. mjdhy; mtUila tyJ ifbfhz;L xU ntiy bra;aKoahJ. tyJ ifahy; rhg;gplKoahJ. nkw;fz;l fhuzj;jpw;fhf ehd; 69% rjtPjk; epue;ju Cdk; vd;W rhd;W bfhLj;Js;nsd;.”
Even in cross examination, he has explained the fractures suffered by P.w.1. We have also perused the case sheet, Ex.P.7 and disability certificate, Ex.P.9. It is also relevant to refer the details mentioned in Ex.P.9, which reads as under:
"1. The Right Humerus is not united - 4%
Shortening Right Humerus - 4%
2. The Right Elbow joint is completely
damaged - 30%
3. There is no active moment in the Right elbow
4. The right hand function is almost nil
because of the damage to the Muscles of
the forearm, elbow and nerves - 27%
5. She cannot eat with her right Hand.
She cannot work with her Right Hand - 4%
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69%
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From Ex.P.9, it clear that with the said disablement, she cannot eat on her right hand and she cannot work with her right hand. Taking note of the evidence of P.W.2, Ex.P.7 and Ex.P.9, we are of the view that the claimant is entitled to further amount towards permanent disability. Accordingly, apart from the amount of Rs. 20,000/- as fixed by the Tribunal, we grant further sum of Rs. 30,000/- under the head ‘permanent disability’. We are inclined to confirm the amount awarded under the other heads.
8. The Tribunal has granted interest at the rate of 15%. The accident had occurred on 8.2.1993. Considering the said aspect, we grant the interest at the rate of 12% for the amount awarded by the Tribunal. In respect of the enhanced compensation of Rs. 30000/-, we grant interest at the rate of 9% per annum from the date of petition till the date of deposit. Though the first respondent/claimant has not filed an independent appeal or cross objection in the present appeal, in the light of what is stated above, more particularly the evidence of P.W.2, Exs.P.7 and P.9, we are inclined to grant further amount of Rs. 30000/-. There is no dispute that under Order 41 Rule 22 of C.P.C., the appellate Court in a deserving case can grant higher compensation even in the absence of the appeal or cross objection.
9. In the light of what is stated above, we pass the following order:
i) Insofar as negligence is concerned, the appellant/Pandian Roadways Corporation Limited and the second respondent herein, namely, Pandian Motor Services (P) Ltd., Aruppukkottai are equally responsible for the accident. In the light of the said conclusion, we apportion their liability by 50:50.
ii) The first respondent herein is entitled to further compensation of Rs. 30000/- with interest at 9% from the date of the petition till the date of deposit.
iii) Insofar as the amount awarded by the Tribunal, the rate of interest has been reduced to 12% instead of 15% as ordered by the Tribunal.
iv) The compensation fixed by the Tribunal and enhanced by us shall be shared by the appellant/Transport Corporation as well as the second respondent/Pandian Motors Services (P) Ltd., Aruppukkottai. The compensation shall be deposited by the respective parties within a period of eight weeks from the date of receipt of copy of this judgment.
10. The appeal is disposed of with the above terms. No costs.