JUDGMENT
A. Ramamurthi, J.
1. The claimant in MACT OP No.2503 of 1998 on the file of Motor Accident Claims Tribunal, IInd Small Causes Court, Chennai, has preferred the appeal aggrieved against the award dated 12.12.2000.
2. The case in brief is as follows:- On 29.12.1997 at about 2.30 p.m.P.W.1 Thanikachalam was proceeding in his motor cycle, Suzuki Samurai in Mount Road from south to north. When he was nearing the signal point, from east to west Kinetic Pride Motor Cycle bearing No.TN 07 C 8854 violating the signal rules came and dashed in the motor cycle and as a result of which, the claimant was thrown out and he sustained injuries. The claimant was taking treatment in the hospital for a period of 3 months and in spite of that, he could not drive the vehicle and claimed a sum of Rs.1,80,000/= by way of compensation.
The 1st respondent is the owner of Kinetic Pride Motor Cycle and the 2nd respondent is the insurance company. They contended that the claimant alone was responsible for this accident and in any view, the claimant has to prove the nature of injuries and the compensation claimed under each head.
The Tribunal on the basis of evidence of P.Ws.1 to 3 and Exs.A-1 to A-15 dismissed the claim petition and aggrieved against this, the claimant has come forward with the present appeal.
3. Heard the learned counsel for the parties.
4. The points that arise for consideration are
(1)Whether the accident was caused due to the rash and negligent driving of Kinetic Pride Motor cycle bearing No.TN 07 C 8854?
(2)Whether the claimant is entitled to any compensation amount and if so, to what amount and from whom ?
4. Points: P.W.1 is the claimant, P.W.2 is the doctor and P.W.3 is the Sub Inspector of Police. The 1st respondent is admittedly the owner of the Kinetic Pride Motor Cycle; but however, at the time of enquiry, she remained ex parte. The 2nd respondent insurance company alone contested the matter, but no evidence has been let in on the side of respondents. P.W.1 categorically stated the manner and circumstances in which the accident took place. P.W.1 fell down and sustained injuries in both legs and he was admitted to Government Hospital at Royapettah. Ex.A-1 is the copy of the accident register. P.W.1 alone gave a complaint under Ex.A-11. The vehicle in question was driven by one Vinodhini and the Sub Inspector of Police after investigation, filed a charge sheet under section 337 IPC and also under section 184 of Motor Vehicles Act in C.C.No.298 of 1998 on the file of IV Metropolitan Magistrate Court, Madras. It is admitted that the said Vinodhini admitted the offence and paid a penalty of Rs.1,200/=. These documents clearly indicate that the vehicle belonging to the 1st respondent was driven by one Vinodhini and she was responsible for the accident. Having admitted the offence, it is clear that P.W.1 was not at fault and, as such, there is no difficulty in coming to the conclusion that P.W.1 was not responsible for the accident as concluded by the tribunal.
5. It is necessary to state that the Tribunal had dismissed the claim on flimsy and extraneous reasons. It appears that P.W.3 during cross examination had stated that during investigation the doctor had informed him that P.W.1 had fell down and sustained injuries and because of this, the tribunal came to the conclusion as if there was negligence on the part of P.W.1. It is necessary to state that the doctor who is said to have given information to P.W.3, was not examined as a witness. Under the circumstance, the evidence of P.W.3 was only hearsay and hence, much weight cannot be attached to the same. Further more, the tribunal ought to have rejected the testimony of P.W.3 in this regard. If really the doctor had informed P.W.3 that P.W.1 alone had fallen down and the accused was not responsible, then what was the necessity for the police to file a charge sheet against the said Vinodhini. Further more, the fact that the said Vinodhini herself had admitted the offence, pleaded guilty and paid the fine is one more circumstance to show that the dismissal of the claim by the tribunal is not proper and correct.
6. Learned counsel for the appellant / claimant further stated that the tribunal erred in rejecting the claim on the ground that there is delay in lodging the first information report totally overlooking the fact that the driver of the 1st respondent’s vehicle had pleaded guilty and paid the fine amount. The tribunal ought to have seen that the 1st respondent even in her counter has admitted the accident. The tribunal erred in relying upon the hearsay evidence of P.W.3 with reference to the alleged statement of the doctor. The learned Judge ought to have considered Exs.A-2 to A-8, the medical bills and Exs.A-9 and A-13 discharge summaries and wound certificate, wherein the doctor has clearly certified that the appellant is faced with 55% disability and ought to have awarded compensation as prayed.
7. P.W.1 was then aged about 51 years and he was working as a Senior Mechanic and drawing a salary of Rs.7,000/= per month. There was fracture in the upper left knee bone and abrasions also throughout the body. The clothes were torn and the vehicle as well as his watch were also damaged. He was taking treatment in the hospital for a period of 3 months and physiotherapy treatment was also continued. He is unable to walk properly. During December 1997 to March 1998 he claimed a sum of Rs.21,000/= towards loss of earning. A sum of Rs.2,000/= was claimed as transport charges. Rs.5,000/= was claimed for extra nourishment, Rs.1500/= was claimed for damages to clothes and articles, towards medical bill a sum of Rs.16,325/= was claimed and necessary bills have also been filed. Ex.A-13 is the disability certificate to the extent of 55%. The doctor also stated that P.W.1 can use the left leg only by 80 degrees. Under this head, P.W.1 is entitled to claim a sum of Rs.55,000/=, for pain and suffering he had claimed a sum of Rs.40,000/= and in my view, it is on the higher side. A sum of Rs.10,000/= can be determined for pain and suffering. P.W.1 had claimed a sum of Rs.35,000/= towards compensation for the loss of earning power. Only for a period of 3 months, he could not do the work. However, it is stated that he could not use the Indian type toilet, unable to climb the staircase and carry heavy articles. But there is nothing to show that he was not attending to the work after 3 months. Under the circumstance, towards the loss of earning power, a sum of Rs.15,000/= can be awarded. Considering the age as well as the injuries and income of P.W.1, a sum of Rs.1,25,825/= can be awarded by way of compensation. Hence, the points are answered accordingly.
8. For the reasons stated above, the appeal is allowed and the claimant is entitled to get a sum of Rs.1,25,825/= by way of compensation from the 2nd respondent insurance company and they are directed to deposit the said amount before the Tribunal in a period of 8 weeks from the date of receipt of a copy of this order, failing which, the appellant would be entitled to claim interest at 9% from the date of petition till date of deposit. On such deposit, the appellant is entitled to withdraw 50% of the amount and the balance amount has to be deposited in a Nationalised Bank only for a period of two years and the appellant would be entitled to collect quarterly interest. No costs.