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2010 DIGILAW 3362 (MAD)

K. S. Rosammal v. S. Shankar

2010-08-05

B.RAJENDRAN

body2010
Judgment :- The claimant has come forward with this appeal as against the award amount of Rs.22,000/- as against the claim of Rs.5,00,000/- and the appeal is restricted to Rs.1,00,000/-. 2. The only grievance of the claimant is that the claimant had suffered a fracture of the right color bone and injury in the right toe. She was admitted in a hospital for four days. She was a sweeper and the Doctor P.W.2 who was examined has certified the disability at 60% and specifically stated that the claimant could not walk. But the lower court taking into consideration, that she was already 50 years old and the disability certificate issued is highly exaggerated failed to accept the disability certificate and has granted only a sum of Rs.10,000/- for the color bone facture and Rs.12,000/- for the foot toe fracture and only awarded a sum of Rs.22,000/- as compensation. 3. Whereas, the appellant would content that even under no fault liability for grievous injury Rs.25,000/- should be awarded which has not been granted by the Court below coupled with the fact that the terms subsisted and she was unable to carry any weight or walk. The lower Court should have taken into consideration, the disability certificate and atleast awarded Rs.1,00,000/- to which the appeal is restricted. 4. The counsel for the respondent Insurance Company would content that the lower court has rightly rejected the contention of the petitioner in discerning the evidence of P.W.2 and the medical certificate on the ground that the Doctor has really exaggerated the claim especially when he certified for a color bone fracture and right toe the claimant was not able to walk is totally is not acceptable. There was no evidence at all to show that the occurrence has prevented her from work. In fact in the evidence, it is stated that she was no more working. Under those circumstances, the lower court was right in disapproving the medical certificate and only rightly granted the compensation. Of course, as far as the statutory compensation amount, the learned counsel was fair enough to submit that instead of Rs.22,000/-, Rs.25,000/- shall be granted. That could be granted. 5. Heard both the parties. 6. The short point for consideration is that whether the claimant/appellant is entitled for enhanced compensation. Of course, as far as the statutory compensation amount, the learned counsel was fair enough to submit that instead of Rs.22,000/-, Rs.25,000/- shall be granted. That could be granted. 5. Heard both the parties. 6. The short point for consideration is that whether the claimant/appellant is entitled for enhanced compensation. On a careful reading of the evidences let in by both the parties and the arguments advanced, at the outset it is very clear that the injury caused to the petitioner is a fracture of color bone and she is in-patient in the hospital only for four days. The injury to the right leg which is in the right toe is also minimal. This is a fracture but the Doctor P.W.2 who was examined has certified that there was a disability of 60% has not given any reason at all in what way the fracture in color bone will affect her walk and this has been rightly pointed out by the lower Court. In fact, the lower Court had the advantage of seeing the party wherein he has concluded that the claimant was already more than 50 years old and in the evidence also she has stated that she was unable to walk and has taken the help of her son even before the occurrence. 7. That being the case, the fact that the accident had affected or prohibited her ability or capacity to walk cannot be sustained. At the same time, the Court also should have taken into consideration that there is a fracture due to an accident which is grievous in nature and taking into consideration the age of the person at the time of the accident was 50 years and being a sweeper, naturally the disability has to be compensated in un-equitable terms for the purpose of compensation. Court can definitely take the disability atleast by 30% half of what the Doctor has certified mainly in respect of the injury to the collar bone and to the injury of toe put together. 8. If 30% disability is taken into consideration and as per the decision of the Hon’ble Supreme Court Rs.1,000/- can be awarded to each percentage of disability. Hence for 30% disability, Rs.30,000/- can be granted. In so far as the disability in respect of fracture in toe the lower Court has granted Rs.12,000/- which could be adopted. 8. If 30% disability is taken into consideration and as per the decision of the Hon’ble Supreme Court Rs.1,000/- can be awarded to each percentage of disability. Hence for 30% disability, Rs.30,000/- can be granted. In so far as the disability in respect of fracture in toe the lower Court has granted Rs.12,000/- which could be adopted. The lower court has not granted any money towards transportation. Hence a sum of Rs.3,000/- can be awarded for transportation charges. The lower court has not awarded any amount towards pain and suffering. Taken into consideration, the old age of the claimant a sum of Rs.10,000/- can be granted for pain and sufferings. The lower court has not awarded any amount for medical expenses and extra-nourishment. Hence, a sum of Rs.5,000/- is awarded for medical expenses and extra-nourishment taking into consideration the old age of the claimant. Thus, totally an amount of Rs.60,000/-could be awarded for the injuries sustained by the petitioner. 9. In the result, the claimant/appellant is allowed to enhanced compensation with interest at 7.5%. 10. The learned counsel for the Insurance Company has stated that already they have deposited the entire amount of compensation of Rs.22,000/-along with the interest of 6% which was granted by the lower court. But the learned counsel for the appellant would plead that normally 7.5% interest would be granted. Considering the fact that the Insurance Company had already deposited the entire amount awarded by the lower court with 5% interest, the enhanced compensation amount of Rs.38,000/- would carry interest at 7.5% from the date of petition till the date of deposit. The enhanced rate of interest would apply only to the enhanced compensation. Thus, the appeal is allowed. No costs. Appeal Against Order 1729 of 2007 Appeal against the order of the Motor Accidents Claims Tribunal (Sub Court) Gudiyatham, Vellore dated 8.2.2007 and made in MCOP No.104 of 2006. Decree: This Appeal coming on for hearing on this day upon perusing the petition of Appeal, the order of the Lower Court and upon hearing the arguments of Mr. V. Parivallal, counsel for the appellant and of Mr. Decree: This Appeal coming on for hearing on this day upon perusing the petition of Appeal, the order of the Lower Court and upon hearing the arguments of Mr. V. Parivallal, counsel for the appellant and of Mr. G. Udaya Sankar, counsel for the second respondent this Court while allowing the appeal and observing that the entire amount of compensation with the interest of 6% was already deposited by the second respondent/insurance company, doth order and decree as follows: (i) that the second respondent/Insurance Company do pay to the appellant/claimant the enhanced compensation of Rs.38,000/- (ii) that the enhanced compensation shall carry an interest at the rate of 7.5% per annum, from the date of petition till the date of deposit. (iii) that the enhanced rate of interest shall apply only to the enhanced compensation. (iv) that in other aspects the award of the Tribunal do stand. (v) that there be no order as to costs in this appeal.