COMMON JUDGMENT

The appellant herein, the second respondent before the Tribunal has filed this Civil Miscellaneous Appeal against the Judgment and Decree dated 07.02.2014 made in M.C.O.P.No.5631 of 2011 on the file of the Motor Accident Claims Tribunal (V Judge, Court of Small Causes) at Chennai, on the ground of liability and quantum.

2. The first respondent herein namely Mr.M.Gowrishankar sustained injury in the road accident happened on 26.09.2019.

3. The manner of the accident, factum of the accident, rash and negligence on the part of the driver of the offending vehicle are not in dispute.

4. In the counter affidavit filed before the Tribunal, the Appellant Insurance Company has taken a specific plea that at the time of the accident, the driver of the offending vehicle (insured with the Appellant Insurance Company) was not having a valid driving license and the quantum claimed is excessive.

5. Before the Tribunal, the injured namely the first respondent herein has examined himself as PW1 and the Doctor as PW2. Ex.P1 to P9 were marked. On behalf of the Insurance Company, the Sub-Inspector of Police was examined as RW1 and the staff of the Insurance Company was examined as RW2. Ex.R1 to R4 were marked.

6. On consideration of both oral and documentary evidences, the Tribunal has fixed the notional income as Rs.5,000/- per month. As per the judgment of the Hon'ble Supreme Court in the case of Sarla Verma & Others .Vs. Delhi Transport Corporation & another, reported in 2009 (2) TNMAC 1 (SC), the Tribunal fixed the loss of earning power as Rs.2,40,000/- (i.e., Rs. 5000 x 12 x 16 x 25/100 = 2,40,000). Furthermore, the Trial Court granted Loss of income for three months as 15000/-(Rs.5000 x 3), transportation expenses at Rs.5000/-, extra nourishment as Rs.5000/-, damages to clothes as Rs.1000/-, Medical expenses Rs.39,500/-, attender charges Rs. 5000/-, pain and suffering as Rs.75000/- and loss of amenities as Rs. 75000/- totalling to the tune of Rs.4,60,500/-. The Tribunal has awarded a sum of Rs.4,60,500/- with interest.

Hence, this appeal by the Insurance Company.

7. Heard the learned counsel for the parties and perused the materials placed on record.

8. On perusing the nature of injury sustained by the first respondent claimant, I find that the Ex.P2-Discharge summary, issued by Government General Hospital, shows that the petitioner sustained fracture of shaft of humeur left and facial injuries and was treated as inpatient from 26.9.11 to 1.10.11 thereby “U” slab was applied for fracture of shaft of humerus and thereafter referred to Ortho OP for facial injuries. Ex.P4 Discharge Summary issued by Sai Speed Medical Centre Hospitals shows that he was treated as inpatient from 3.10.11 to 6.10.11 in that hospital wherein diagnosed fracture of shaft of humerus with radial nerve palsy and underwent surgery thereby ORIF with NECP was done. In this connection, PW2-Dr.Amarnath R.Sowlee had deposed as under:

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9. It appears from the records that the Tribunal has taken whole body disability and also assessed it as functional disability at the rate of 25%, which I find as excessive and accordingly, it is reduced to 15%. Further, the monthly income is also fixed at Rs.3000 and accordingly, the loss of earning power is reduced to Rs.86,400/- from Rs.2,40,000/- (i.e., 3000 x 12 x 16 x 15/100 =

Rs.86,400/-). Except the a