IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.11.2023 CORAM:

THE HONOURABLE MR. JUSTICE K. RAJASEKAR C.M.A. No. 1843 of 2021 Syed Shabeer Ahmed ... Appellant / Petitioner Vs.

1. Kamal

2. ICICI Lombard General Insurance Co. Ltd., Chottabhai Centre, 2nd and 3rd Floor, Nungambakkam High Road, Nungambakkam, Chennai - 600 034. ... Respondents / Respondents Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Judgment and decree dated 29.01.2019 passed in M.A.C.T.O.P. No. 4341 of 2015 on the file of the Motor Accident Claims Tribunal, Special Sub Court No.1, Motor Accidents Claims Petitions, Small Causes Court, Chennai. For Appellant : M/s. M. Malar For R1 : No Appearance For R2 : M/s. B. Siva Kollappan JUDGMENT This Civil Miscellaneous appeal has been filed by the claimant for enhancement of compensation awarded in M.A.C.T.O.P. No. 4341 of 2015, dated 29.01.2019 on the file of the Motor Accident Claims Tribunal, Special Sub Court No.1, Motor Accidents Claims Petitions, Small Causes Court, Chennai.

2. For the sake of convenience, the parties are referred herein according to their litigative status and rank before the Tribunal.

3. The case of the claimant is that on 01.01.2015 at about 3:00 Hours, while he was walking back side of Gandhi statue, Service Road, Marina Beach, Chennai, a car bearing Registration No.TN-22-CH-0326 belong to the first respondent came from South to North direction, driven by its driver in rash and negligent manner, hit against the claimant causing grievous injuries. A criminal case was also registered against the driver of the first respondent car in Cr.No.3/T1/2015 on the file of the D6, Anna Square Traffic Investigation, Chennai. Due to the injuries sustained, the claimant has come forward with a claim petition seeking compensation for a sum of Rs.15,00,000/- under section 166 of the Motor Vehicles Act and Rule 3 of the Motor Vehicles Rules.

4. The first respondent, who is the owner of the car bearing Registration No.TN-22-CH-0326 has not contested the claim and remained ex-parte. The second respondent - insurance company, who is the insurer of the first respondent car has filed a counter and contended the manner in which the accident was taken place and also disputed the age, occupation, income of the claimant and the nature of injuries. The second respondent - insurance company also stated that the accident was taken place only due to the negligence on the part of the claimant and contended that the compensation claimed under various heads is on the higher side, hence prays to dismiss the claim petition.

5. Before the Tribunal, on the side of the claimant, P.W.1 and P.W.2 were examined and Exs.P.1 to P.9 were marked, on the side of the second respondent, no witnesses were examined and no exhibits were marked.

6. Based on the evidence placed on record, the Tribunal in point no.1, has held that the rash and negligence on the part of the driver of the first respondent car bearing Registration No.TN-22-CH-0326 is responsible for the accident. In point Nos.2 and 3, the Tribunal has quantified and granted compensation for a sum of Rs.88,300/- along with interest @ 7.5% per annum from the date of filing of petition till the date of realization and fixed the liability on the second respondent - insurance company to indemnify the first respondent and to pay the compensation to the claimant.

7. Aggrieved over the quantum of compensation, the claimant has come forward with this appeal seeking enhancement of compensation. 8. The learned counsel appearing for the claimant has submitted that the only grievance in the compensation is that, he has sustained both bone fracture in the left leg and he was also examined by the P.W.2, a private Doctor, who has assessed the disability of the claimant as 30% and the same was not properly appreciated by the Tribunal and it took Suo-moto fixed the disability as 10% and hence prays to modify the same.

9. Per contra, the learned counsel appearin