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2010 DIGILAW 3207 (MAD)

The United India Insurance Co. Ltd. v. S. Suresh

2010-07-30

B.RAJENDRAN

body2010
Judgment :- Aggrieved by the Award of the Tribunal in the case of injury in an accident that took place on 27.5.2002, granting compensation of Rs.1,94,731/- with interest at 9% per annum to the respondent/claimant as against the claim of Rs.5,00,000/-, the United India Insurance Company has come forward with this appeal. 2. The main ground of attack by the appellant-United India Insurance Company is that on 27.5.2005 when the first respondent/petitioner was returning by a motor cycle along with the second respondent as a pillion rider in the motor vehicle bearing Registration No.TN 23-E-4764 L.M.L. Plus E.S., the vehicle was driven by the first respondent in a rash and negligent manner and he tried to stear the vehicle from down mud road to the thar road, lost balance and both of them fell down from the vehicle. Due to this, the petitioner and the pillion rider sustained fracture injuries in hands, face, chest and closed long spiral Right Tebia and Closed Right Fibula, Right foot and other part of body. After getting first aid treatment, the petitioner was brought to CMCH Vellore hospital by a van on the same day evening and admitted him in the CMCH emergency/casuality ward in a serious condition, however he was discharged on the same day and advised to take rest. Thereafter, he took treatment at MIOT Hospital and surgery was performed on him for fixing metals on his right leg in three places and he was advised to come to check up every 15 days. He had spent more than 2,00,000/- for his treatment and due to the accident, he is unable to move his leg and he could move only with the help of artificial equipments. He had also lost his income for six months and therefore, he claimed a compensation of Rs.5,00,000/-. 3. Learned counsel for the appellant/Insurance Company specifically contends that the F.I.R. Itself was given three months later, even though the accident took place much earlier and the delay in F.I.R. has not been explained. The treatment meted out in various hospitals are all expensive and the medical bills, which are produced are bogus in nature and are not properly accounted for. There is no serious loss of disability and the disability claimed is high. Therefore, they contested the matter on merits. 4. The treatment meted out in various hospitals are all expensive and the medical bills, which are produced are bogus in nature and are not properly accounted for. There is no serious loss of disability and the disability claimed is high. Therefore, they contested the matter on merits. 4. Heard the learned counsel for the appellant/Insurance Company and the learned counsel for the respondents/claimants and perused the records. 5. On a careful consideration of the evidence let in by the claimants and the documents produced, the short point for consideration in this appeal is whether the amount awarded by the Court below is high and excessive? 6. At the outset, it is pertinent to point out by the learned counsel for the appellant that the F.I.R. has been registered on 18.8.2002 in respect of the accident that occurred on 27.5.2002, but no specific reason is given by the respondent for the delay. Therefore, the delay is caused only by the first respondent/claimant. No doubt the petitioner was admitted in the CMCH Hospital, Vellore and the accident register contains the details of the accident. Yet the complaint has been registered as an F.I.R. after three months. On the same day, the charge sheet is filed and thereafter on the next day, the owner of the vehicle/R1 accepted the offence and paid the fine. Immediately after the accident, the FIR has not been registered. The accident register is maintained by the reputed well known hospital, but there is some discrepancy in respect of the F.I.R. Registration. But even from the accident register, it is very clear that the claimant was admitted for a fracture and then discharged on the next day i.e. 28.5.2002 itself. But thereafter the petitioner would contend that he was readmitted in the MIOT hospital and continued treatment from 28.6.2002 to 17.7.2002 and he was operated for the fracture and he spent about Rs.2,00,000/-. The claimant produced medical bills from MIOT hospital which are disputed by the learned counsel for the appellant. 7. But thereafter the petitioner would contend that he was readmitted in the MIOT hospital and continued treatment from 28.6.2002 to 17.7.2002 and he was operated for the fracture and he spent about Rs.2,00,000/-. The claimant produced medical bills from MIOT hospital which are disputed by the learned counsel for the appellant. 7. When this Court went through the medical bills one by one, it is established that the medical bills are computerized bills and affixed with revenue stamps with signature and the true copies were attested and in one of the bills, the computer date is indicated as 8.3.2002 and that date is struck off and instead, 3.8.2002 is incorporated and coupled with the signature, seal, double seal, true copy etc. These documents were perused to differentiate the bills are not in the usual course. In all the medical bills, there is revenue stamp. 8. As rightly pointed out bythe learned counsel for the appellant, these bills are only bogus. But the Lower Court has simply accepted the bills and granted the entire amount of Rs.1,14,731/-. Therefore, even these bills could not be accepted and there is no specific evidence that because of the accident, he has taken treatment in the hospital. It is also pertinent to point out that it was not the Doctor who has given treatment from MIOT hospital was examined. Therefore, the Doctor examined is not directly aware of the surgeries and he has not given any treatment. The Doctor has also not stated anything about the disability. Whereas P.W.3 Doctor, who was examined did not give treatment earlier and he was not aware of anything about the operation and even then he stated that the claimant was not able to work, stand for a long time and he is still undergoing pain. But he would certify that the disability is 40% on the basis of the X-ray report. But in the cross examination he would admit that after the treatment, the bone has joined correctly. He has also clearly stated in the cross examination i.e. in the year 2004 that the claimant can do all the works normally. Therefore, no reason has been attributed or cause has been given for the actual disability of 40% as given by the Doctor. Even as per the evidence of P.W.1, he has categorically stated that he can walk now. He would complain that he sustained pain during operation. Therefore, no reason has been attributed or cause has been given for the actual disability of 40% as given by the Doctor. Even as per the evidence of P.W.1, he has categorically stated that he can walk now. He would complain that he sustained pain during operation. But the Court below taking into consideration the evidence has categorically stated that Ex.A-10 is the discharge summary of the petitioner issued by the MIOT hospital and they have not revealed that they have done surgery in that hospital. The claimant would only contend that since he had suffered injury, undergone pain and suffering and also incurred heavy expenditure as per the medical bills, the Tribunal considering the same had awarded under the following heads: Towards pain and suffering – Rs.20,000/- Towards the transport to hospital Extra Nourishment and attendants etc. – 10,000/- Towards the permanent disability Fixed at 20% - Rs.25,000/- Towards the loss of earning and earning power – Rs.25,000/- Towards the Medical expenses – Rs.1,14,731/- Total – Rs.1,94,731/- 9. The respondent/claimant was not able to establish by examining any independent evidence or Doctor to show the actual treatment alleged to have been taken by him in MIOT hospital or the operations which were performed on him. Both the doctors who have been examined have neither treated him, nor operated him. So they are not in a position to establish regarding the nature of treatment undergone by the claimant in the hospital or regarding operation. 10. First of all the Lower Court has granted the compensation towards permanent disability at 20% as Rs.25,000/- and another Rs.25,000/- towards loss of earning and earning power. As per the Full Bench decision, compensation under these two heading cannot be granted. Therefore, taking into consideration the petitioner had suffered a fracture and was admitted in the hospital, the amount of Rs.25,000/- granted towards permanent disability is confirmed and the amount of Rs.25,000/- towards loss of earning and earning power is rejected. The amount of Rs.20,000/- towards pain and suffering granted by the Court below is confirmed and of course towards transport to hospitals and extra nourishment, the Lower Court has given only a sum of Rs.10,000/-. The amount of Rs.20,000/- towards pain and suffering granted by the Court below is confirmed and of course towards transport to hospitals and extra nourishment, the Lower Court has given only a sum of Rs.10,000/-. But taking into consideration that claimant was taken to hospital from the accident spot to Vellore CMC hospital and from Vellore to MIOT hospital and thereafter he incurred transport cost, as rightly pointed out by the learned counsel for the respondent/claimant the award passed under this be enhanced to Rs.20,000/-. Therefore, the award is enhanced to Rs.20,000/- towards transport expenses. But towards the medical bills, the Court has passed the entire amount of Rs.1,14,731/-. As stated supra, the bills are not genuine. But on humanitarian consideration after perusing each and every bill, which looks inflated by affixing revenue stamps, especially even date is altered, totally a sum of Rs.30,000/- is reduced from the bills as against Rs.1,14,731/-. Therefore, a sum of Rs.84,731/- is awarded under the head of medical expenses. 11. Hence, the appeal is partly allowed, reducing the compensation amount from Rs.1,94,731/- to Rs.1,49,731/-. The Lower Court has also awarded the interest at the rate of 9% per annum. As per the Supreme Court ruling, the interest ought to have been given at 7.5% per annum and this Court is consistently granting interest only at 7.5% after 2000. Therefore the interest is reduced from 9% to 7.5% per annum from the date of claim petition till the date of realisation. No costs in this appeal. 12. As per the interim orders of this Court the appellant deposits a sum of Rs.1,50,000/-. If any amount still remains in excess towards the payment of the compensation, the appellant/Insurance Company is liable to withdraw the same. But still on the calculation, if any amount is due to be payable, the same will be deposited by the Insurance Company, within a period of eight weeks from the date of receipt of a copy of this order. On such deposit the claimant is entitled to withdraw the same. Appeal against the order of the Motor Accidents Claims Tribunal (Additional District and Sessions Court, Fast Track Court), Vellore dated 7.4.2004, and made in M.A.C.T.O.P.No.13 of 2003. On such deposit the claimant is entitled to withdraw the same. Appeal against the order of the Motor Accidents Claims Tribunal (Additional District and Sessions Court, Fast Track Court), Vellore dated 7.4.2004, and made in M.A.C.T.O.P.No.13 of 2003. DECREE: This Appeal coming on for hearing on this day, upon perusing the grounds of Appeal, the order of the Lower court and the material papers in this case and upon hearing the arguments of Mr. S.J. Jagadev, Advocate for the appellant and of Mr. V. Madhavan, advocate for the Respondent, and the appellant herein having deposited a sum of Rs.1,50,000/- and this court, while allowing this appeal in part and in modification of the award of the Tribunal below, both order and decree as follows: 1. That the appellant herein/Insurance Company do pay the 1st Respondent herein/Claimant a sum of Rs.1,49,731/-(Rupees One Lakh forty nine thousand seven hundred and thirty one only) as total compensation, together with interest at the rate of 7.5% per annum from the date of claims Petition till the date of realization. 2. That if any amount still remains in excess towards the payment of compensation the appellant herein/Insurance Company shall withdraw the same. 3. That on the calculation if any amount is due to be payable, the same shall be deposited by the appellant herein/Insurance company within a period of eight weeks from the date of receipt of a copy of this order: 4. That, on such deposit, the 1st respondent herein/Claimant shall be entitled to withdraw the same and 5. That there be no costs in this appeal.