Research › Search › Judgment

Madras High Court · body

2007 DIGILAW 2989 (MAD)

S. Natesan & Another v. C. Velusamy & Others

2007-09-13

P.P.S.JANARTHANA RAJA

body2007
Judgment : These Civil Miscellaneous Appeals are filed against the Judgment and Award dated 16.03.2007 made in MACTOP No.440 of 2006 on the file of the Motor Accidents Claims Tribunal, (Chief Judge, Court of small causes), Chennai. 2. The background facts in a nutshell are as follows:- The claimant was injured in a motor accident on 111. 93 at ABOUT 11.00 a.m. The claimant was travelling in MGR Transport Corporation Bus Route No.55 from Tambaram to Karumpakkam. When the bus reached Peerkankaranai bus stop to unload the passengers, a lorry bearing Registration No.TNC 7736, driven by its driver in a rash and negligent manner came from the opposite direction and hit the bus. As a result of the accident, the claimant sustained grievous injuries and his right hand got fractured. On the side of the claimant, P.W.1 and P.W.2 were examined and documents Ex.P1 to Ex.P9 were marked. No witnesses examined or no documents marked on the side of the Insurance Company. Originally the claimant claimed a compensation of Rs.2,17,000/-, but restricted to Rs.1,00,000/-, before the Poonamallee Court. Subsequently, it was transferred to Chengalpattu Court and the claimant modified the claim and claimed an enhanced compensation of Rs.5.20 lakhs but restricted to Rs.3,00,000/-. Subsequently once again, the claimant modified the claim petition and claimed Rs.16,00,000/- as compensation before the Chief Judge, Motor Accidents Claims Tribunal, Small Causes Court, Chennai. After considering the witnesses as well as exhibits marked on behalf of the claimant, the Tribunal awarded a compensation of Rs.4,31,000/-with interest at 7.5% p.a. from the date of petition. Aggrieved by the award, both the Insurance Company as well as the claimant have filed the present appeals. 3. Learned counsel appearing for the Insurance Company submitted that the Tribunal awarded excessive compensation and also has not considered the relevant materials and evidence. It is also further submitted that that originally the claimant sought for Rs.2,17,000/- which was restricted to Rs.1,00,000/-, and later the claimant filed another petition for enhancement for a sum of Rs.5.20 lakhs which was restricted to Rs.3,00,000/- and once again by petition dated 11. 2000, the claimant enhanced the compensation to Rs.16,00,000/- from Rs.3,00,000/-after several years. Therefore there are inconsistent claims made by the claimant and hence the order passed by the Tribunal is without basis and justification. 4. Learned counsel appearing for the claimant submitted that the Tribunal awarded only a meagre compensation. 2000, the claimant enhanced the compensation to Rs.16,00,000/- from Rs.3,00,000/-after several years. Therefore there are inconsistent claims made by the claimant and hence the order passed by the Tribunal is without basis and justification. 4. Learned counsel appearing for the claimant submitted that the Tribunal awarded only a meagre compensation. It is also submitted that the Tribunal had not considered the relevant materials and evidence on record and hence this is a fit case for enhancement. 5. Heard the counsel. On the side of the claimant, P.W.1 and P.W.2 were examined and documents Ex.P1 to Ex.P9 were marked. The claimant himself was examined as P.W.1 and one Dr.N. Saichandran was examined as P.W.2. Ex.P1 is the copy of First Information Report. Ex.P2 is the copy of sketch. Ex.P3 and Ex.P4 are Discharge Summaries. Ex.P5 is the photo with negative. Ex.P6 and Ex.P7 are the Disability Certificates. Ex.P8 is the X-ray with report. Ex.P9 is the returned copy application by J.M. Court, Tambaram. No witnesses examined or no documents marked on the side of the Insurance Company. After considering the oral and documentary evidence, the Tribunal awarded a compensation of Rs.4,31,000/-with an interest of 7.5% p.a. from the date of petition. The details of the same are as under: 1. Loss of earning capacity : Rs.2,94,000/- 2. Pain & suffering : Rs. 30,000/- 3. Hardship and mental agony : Rs. 32,000/- 4. Loss of amenities : Rs. 55,000/- 5. Loss of earning for the treatment period : Rs. 10,000/- 6. Extra nourishment : Rs. 5,000/- 7. Transport : Rs. 5,000/- Total : Rs.4,31,000/- The claimant sustained injuries on his right arm. Ex.P3 is the discharge summary, wherein four fractures are noted on the right hand and also there are 4 fractures on the fore arm itself. He was admitted on 111. 1993 in Chengalpattu Government General Hospital and was discharged only on 1. 1994. The details of treatment given to the claimant are mentioned in the discharge summary Ex.P3. Again, the claimant was admitted on 212. 1994 and skin grafting and muscle transmission was done by performing surgeries. Ex.P4 is the discharge summary for the second time admission. He took treatment in his village from a private doctor by name Dr. Murthy. Ex.P5 is the photograph which shows the disfigurement and deformity to his right arm. Again, the claimant was admitted on 212. 1994 and skin grafting and muscle transmission was done by performing surgeries. Ex.P4 is the discharge summary for the second time admission. He took treatment in his village from a private doctor by name Dr. Murthy. Ex.P5 is the photograph which shows the disfigurement and deformity to his right arm. Due to the injuries, the claimant is unable to bend or stretch his fore arm and hence his right hand had become fully disuse. He can only move his shoulder to a limited extent and cannot rotate, bend or move his right hand backwards. To prove the disability suffered by the claimant, the disability certificate issued by Government Institute of Rehabilitation Medicine, Chennai is marked as Ex.P.6, in which the disability of the claimant is assessed as 70%. P.W.2, Dr.Saichandran, an Orthopaedic Surgeon, after examining the claimant also assessed the disability as 70%. The Tribunal, fixed the monthly income of the claimant at Rs.3,500/-. Accordingly, his annual income has been arrived at Rs.42,000/- (Rs.3,500/- x 12). Thereafter, deducting 1/3rd towards personal expenses of the claimant, the Tribunal arrived at Rs.28,000/-as the annual contribution of the claimant to the family. Thereafter, adopting 15 multiplier the Tribunal determined loss of earning capacity as Rs.4,20,000/- (Rs.28,000/-x 15). The Tribunal after taking note of 70% disability and after considering Ex.P16, fixed Rs.2,94,000/- for loss of earning capacity for 70% disability. I feel that the amount awarded by the Tribunal towards loss of earning capacity is reasonable and hence the same is confirmed. The Tribunal awarded a sum of Rs.30,000/-towards pain and suffering which is excessive. After taking into consideration of the injuries sustained by the claimant, Ex.P4, it would be reasonable and appropriate to award a sum of Rs.20,000/- under this head. Considering the disability suffered by the claimant, the Tribunal awarded Rs.55,000/-towards loss of amenities, which is very excessive. Taking into consideration of the facts and circumstances of the case, it would be appropriate and reasonable to award a sum of Rs.20,000/- towards loss of amenities. The Tribunal awarded a sum of Rs.32,000/- towards hardship and mental agony. As already a substantial amount is awarded towards loss of amenities, and taking into consideration the facts and circumstances of the case, it is not necessary to award any amount towards hardship and mental agony. The Tribunal awarded a sum of Rs.32,000/- towards hardship and mental agony. As already a substantial amount is awarded towards loss of amenities, and taking into consideration the facts and circumstances of the case, it is not necessary to award any amount towards hardship and mental agony. Hence the amount awarded towards hardship and mental agony is liable to be set aside and accordingly set aside. The Tribunal awarded a sum of Rs.10,000/- towards loss of earning for the treatment period from 111. 93 to 1. 94. During this period, the claimant was treated by the doctor and there was also evidence to show that the claimant was admitted in the hospital on 111. 1993 in Chengalpattu Government General Hospital and discharged only on 1. 1994. The details of treatment given to the claimant are mentioned in the discharge summary Ex.P3. Again he was admitted on 212. 1994 and skin grafting and muscle transmission was done by performing surgeries. Ex.P.4 is the discharge summary for the second time admission. Taking into consideration of the same, the amount awarded under this head is very reasonable and the same is confirmed. The Tribunal has awarded Rs.5,000/-towards extra nourishment, Taking into consideration of the treatment as well as the nature of injuries it would be appropriate and reasonable to award a sum of Rs.10,000/-under this head. The Tribunal awarded a sum of Rs.5,000/-towards transport expenses. Taking into consideration of the fact that the claimant visited the hospital many times for treatment, it would be just and proper to award a sum of Rs.10,000/- under this head. The details of modified compensation are as under:- 1. Loss of Earning capacity : Rs.2,94,000/- 2. Pain and suffering : Rs. 20,000/- 3. Loss of Amenities : Rs. 20,000/- 4. Loss of earning for the treatment period : Rs. 10,000/- 5. Extra-nourishment : Rs. 10,000/- 6. Transport : Rs. 10,000/- Rs.3,64,000/- Therefore, the claimant is entitled to the modified compensation of Rs.3,64,000/-as against the compensation of Rs.4,31,000/-awarded by the Tribunal. With regard to rate of interest, the Tribunal is wrong in awarding the interest at 7.5% p.a. The claimant filed 3 claim petitions and the last claim petition was filed enhancing the amount on 26.07.2002. Therefore the claimant is entitled to the interest only from 26.07.2002 to 26.07.2007 which works out to Rs.1,36,500/-. The counsel appearing for the claimant has also agreed for the same. Therefore the claimant is entitled to the interest only from 26.07.2002 to 26.07.2007 which works out to Rs.1,36,500/-. The counsel appearing for the claimant has also agreed for the same. The claimant is also entitled to the cost of Rs.15,037/-. The details of the same are as under:- Award Rs.3,64,000/- Interest for the period from 26.07.2002 to 26.07.2007 Rs.1,36,500/- Cost Rs. 15,037/- Rs.5,15,537/- (Rounded off to Rs.5,16,000/-) Thus, totally the claimant is entitled to a consolidated sum of Rs.5,16,000/-. 6. It is submitted that the Insurance Company already deposited a sum of Rs.8,23,716/-. Out of the said amount, the claimant is permitted to withdraw a consolidated sum of Rs.5,16,000/- as stated above. The Insurance company is also permitted to withdraw the balance amount on making proper application. 7. The Civil Miscellaneous Appeals are disposed of with the above modification. No costs. Consequently, connected M.P.Nos.1 and 2 of 2007 in CMA No.1511 of 2007 are closed.