Point of law : Doctor has assessed the disability as 45%. Without any reasons, the Tribunal has fixed the disability only as 40%. On the side of the second respondent, it is stated that the claimant was a minor girl aged about eight years. There was only one fracture. Only considering all these aspects, the Tribunal has fixed the disability as 40%, which is reasonable.

JUDGMENT :

(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, to set aside the decree and judgment dated 31.10.2013 passed in M.C.O.P.No.1 of 2013 on the file of the Motor Accidents Claims Tribunal/(Chief Judicial Magistrate), Tuticorin.)

1. This Civil Miscellaneous Appeal has been filed against the award passed in M.C.O.P.No.1 of 2013 dated 31.10.2013, on the file of the Motor Accidents Claims Tribunal/(Chief Judicial Magistrate), Thoothukudi.

2. The appellant herein is the petitioner and the respondents herein are the respondents in the claim petition. The appellant herein has filed a claim petition in M.C.O.P.No.1 of 2013, claiming compensation for the injuries sustained by the claimant, in an accident that took place on 31.07.2012. The Tribunal has awarded a sum of Rs.1,19,600/- (Rupees One Lakh Nineteen Thousand and Six Hundred only) as compensation. Against which, the appellant has preferred this appeal.

3. A brief substance of the claim petition in M.C.O.P.No.1 of 2013 is as follows:

On 31.07.2012, at about 04.30 p.m., when the minor claimant was walking along the left side of the road in a slow speed, a car bearing registration no.TN-22-BB-2014 was driven by its driver in a rash and negligent manner dashed against the minor claimant. He sustained grievous injury. Due to the accident, the claimant was not able to continue her education for one year. The toes of the left leg are not functioning properly. There is disfigurement and her marriage prospects is affected. She claimed a sum of Rs.7,00,000/- (Rupees Seven Lakhs only) as compensation.

4. A brief substance of the counter filed by the second respondent therein is as follows:

The injuries are to be proved. It was the minor petitioner, who crossed the road in a negligent manner and invited the accident. The injuries are simple in nature and the claim is excessive.

5. On the side of the petitioner therein, two witnesses were examined and 20 documents were marked. On the side of the respondents therein, no witness was examined and no document was marked. After trial, the Tribunal has awarded a sum of Rs.1,19,600/- (Rupees One Lakh Nineteen Thousand and Six Hundred only) as compensation to be paid by the second respondent herein. Against which, the appellant herein has preferred this Civil Miscellaneous Appeal.

6. On the side of the appellant, it is stated that the accident took place only due to the rash and negligence driving of the respondent driver. The doctor has assessed the disability as 45%. But the Tribunal has reduced the same into 40%. Fixing Rs.40,000/- (Rupees Forty Thousand only) towards permanent disability is very low. The award under various other heads are also low and prayed the compensation to be enhanced to Rs.3,00,000/- over and upon the compensation already awarded.

7. On the side of the appellant, it is further stated that the appellant was studying third standard at the time of accident. The doctor has assessed the disability as 45%. Without any reasons, the Tribunal has fixed the disability only as 40%. On the side of the second respondent, it is stated that the claimant was a minor girl aged about eight years. There was only one fracture. Only considering all these aspects, the Tribunal has fixed the disability as 40%, which is reasonable.

8. The doctor, who gave treatment to the claimant was not examined. P.W. 2, doctor did not give treatment to the claimant and hence, Ex.P19, disability certificate cannot be taken as a conclusive proof. Fixing the disability at 40% by the Tribunal is reasonable. The Tribunal has awarded Rs.1,000/- per percentage of disability. A sum of Rs.3,000/- (Rupees Three Thousand only) per percentage will be reasonable. Hence, it is decided that the claimant is entitled to a sum of Rs.1,20,000/- (Rupees One Lakh and Twenty Thousand only) for the permanent disability. The Tribunal has awarded Rs.10,000/- (Rupees Ten Thousand only) towards pain and suffering and a sum of Rs.10,000/- (R