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2011 DIGILAW 1160 (MAD)

Karthikeyan v. G. Vijayalakshmi

2011-03-03

P.P.S.JANARTHANA RAJA

body2011
Judgment :- 1. The appeal is preferred by the claimant against the judgment and decree dated 28.10.2004 made in M.A.C.T.O.P. No.282 of 2003 on the file of the Motor Accident Claims Tribunal & Additional District Court (Fast Track Court No.V), Tirupur. 2. The background facts in a nutshell are as follows:- On 03.11.2002, at about 08.30 a.m., the claimant/appellant met with motor vehicle accident. When the injured was proceeding in his moped, bearing Registration No.TN-39-Q-6487, towards West on the extreme left side of Tirupur-Kangeyam road near Rakkiyapalayam pirivu, a van bearing Registration No.TN-47-7174, belonging to the first respondent herein, came in the same direction in a rash and negligent manner and hit against the moped. Due to the said impact, the appellant/claimant sustained grievous injuries all over the body. Immediately, he was taken to the Government Hospital, Tirupur and later he was referred to Kovai Medical Center and Hospital Limited, Coimbatore for better treatment. The claimant claimed a compensation of Rs.5,00,000/-. The said van was insured with the second respondent-Insurance Company, who resisted the claim. On pleadings, the Tribunal framed the following issues:- "1. Who is responsible for the accident? Whether the claimant is entitled to receive compensation? If yes, who has to pay the compensation? 2. What is the quantum has to be paid?" After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the driver of the van and awarded a compensation of Rs.78,635/- with interest at the rate of 9% per annum from the date of claim petition till date of realisation. The details of the same are as under:- Permanent disability (28%)Rs. 25,000/- Pain and sufferings Rs. 5,000/- Extra nourishment Rs. 3,000/- Medical expenses Rs. 45,635/- ------------------ Total...Rs. 78,635/- ----------------- Aggrieved by that award, the appellant/claimant has filed the present appeal for enhancement. 3. Learned counsel appearing for the appellant/claimant submitted that the award passed by the Tribunal is very low and meagre sum of compensation. It is also further submitted that the Tribunal ought to have awarded compensation as claimed by the claimant and the amount awarded by the Tribunal under various heads is very low and the Tribunal has not followed the principles of assessment before passing the award and it is a fit case for enhancement of compensation. 4. It is also further submitted that the Tribunal ought to have awarded compensation as claimed by the claimant and the amount awarded by the Tribunal under various heads is very low and the Tribunal has not followed the principles of assessment before passing the award and it is a fit case for enhancement of compensation. 4. Learned counsel appearing for the second respondent/Insurance Company submitted that the Tribunal had considered all the relevant materials and evidence on record and come to the right conclusion and awarded a just, fair and reasonable compensation. Hence, the order of the Tribunal is in accordance with law and the same has to be confirmed. 5. Heard the learned counsel on either side. On the side of the claimant/appellant, P.Ws1 to 3 were examined, the claimant was examined himself as P.W.1, Dr.Sachithanadan was examined as P.W.2 and one Jagadeesan is the co-employee of the claimant was examined as P.W.3 and nine documents, Exs.P.1 to P.9 were marked. Ex.P.1 is the copy of First Information Report. Ex.P.2 is the copy of wound certificate. Ex.P.3 is the discharge summary issued by the Kovai Medical Center and Hospital Limited, Coimbatore. Ex.P.4 is the medical bills. Ex.P.5 is the medical report. Ex.P.6 is the salary certificate. Ex.P.7 is the disability certificate. Ex.P.8 is the X-ray. Ex.P.9 is the authorisation letter. On the side of the second respondent/Insurance Company, no one was examined and no document was marked to substantiate their claim. After considering the above oral and documentary evidence, the Tribunal had given a categorical finding that the accident had occurred only due to the rash and negligent driving of the driver of the van and the finding is based on valid materials and evidence. It is a question of fact, the same is confirmed. 6. At the time of the accident, the claimant/appellant was aged about 41 years and he was working as Supervisor in S.K. Knit Apparels, Tirupur and was earning a sum of Rs.5,000/- per month. Further, in his evidence, it is stated that a case has been registered by Tirupur Rural Police Station, in Crime No.597 of 2002. Further, in his evidence, the claimant stated that immediately after the accident, he was admitted in Government Hospital, Tirupur and later he was referred to Kovai Medical Center and Hospital Limited, Coimbatore, for better treatment. Further, in his evidence, it is stated that a case has been registered by Tirupur Rural Police Station, in Crime No.597 of 2002. Further, in his evidence, the claimant stated that immediately after the accident, he was admitted in Government Hospital, Tirupur and later he was referred to Kovai Medical Center and Hospital Limited, Coimbatore, for better treatment. Ex.P.3 is the discharge summary given by the Kovai Medical Center Hospital Limited, Coimbatore. P.W.2 Dr.Sachithanandan, who treated the claimant, stated that the claimant sustained multiple grievous injuries all over the body and dislocation of shoulder and hence, determined the disability at 28%. He further stated that due to the dislocation of shoulder and other grievous injuries sustained by the claimant, he cannot lift any heavy articles and the 28% disability affects the earning capacity of the claimant. Ex.P.7 is the disability certificate and Ex.P.8 is the X-ray. Considering the facts and circumstances of the case, the Tribunal fixed disability at 28% and awarded a sum of Rs.25,000/- under the head of permanent disability. The learned counsel appearing for the appellant/claimant vehemently contended that the claimant sustained multiple grievous injuries all over the body and due to the same, he is unable to do any work and hence the amount awarded under this head is very low. Ex.P.2 is the wound certificate given by the Kovai Medical Center and Hospital Limited, Coimbatore, in which it is stated that the claimant was admitted on 03.11.2002 and discharged on 06.11.2002 and sustained tenderness, deformity in left shoulder, small fracture spine of the scapula. From the above it is very clear that the claimant sustained grievous injuries all over the body. Ex.P.3 is the discharge summary given by the Kovai Medical Center and Hospital Limited, in which it is stated as follows:- "RTA with multiple injuries 1. Avulsion injury left pinna at the root of the Helix with injury to particular cartilage. 2. Deep avulsion injury left cheek exposing the deep muscles. 3. Deep abrasion over the left side of face and left temporal area. 4. Dislocation of the left shoulder joint. 5. Multiple abrasion all over the body. 6. Avulsion injury left pinna at the root of the Helix with injury to particular cartilage. 2. Deep avulsion injury left cheek exposing the deep muscles. 3. Deep abrasion over the left side of face and left temporal area. 4. Dislocation of the left shoulder joint. 5. Multiple abrasion all over the body. 6. Contamination of the facial and ear wounds with glass pieces, stones and mud." Considering the same, it would be reasonable to award a sum of Rs.2,000/- per percentage of disability and the loss due to 28% disability works out to Rs.56,000/- (28 % x Rs.2,000/-) as against Rs.25,000/- awarded by the Tribunal. The Tribunal has awarded a sum of Rs.5,000/- under the head of pain and suffering, which is very low. Considering the nature of injuries sustained by the claimant, it would be reasonable to award a sum of Rs.15,000/- towards pain and sufferings as against Rs.5,000/- awarded by the Tribunal. The Tribunal has awarded a sum of Rs.3,000/- under the head of nutritious food. Considering the facts and circumstances of the case it would be reasonable to award a sum of Rs.5,000/- under the head of nutritious food as against Rs.3,000/- awarded by the Tribunal. The Tribunal has awarded a sum of Rs.45,635/-under the head of medical expenses. Ex.P.4 series is the medical bills produced by the claimant before the Tribunal. It is an actual expenditure incurred by the claimant. Hence it is very reasonable and the same is confirmed. The Tribunal has not awarded any sum towards loss of income during the treatment period and transport expenses. After the accident, the claimant was admitted in various hospitals and took treatment and took rest for a period of more than three months. Considering the same, it would be reasonable to award a sum of Rs.15,000/- (Rs.5,000/- x 3 months) under the head of loss of income during the treatment period. The claimant was residing at Tirupur and took treatment at Coimbatore. Considering the same, it would be reasonable to award a sum of Rs.7,000/- under the head of transport expenses. The Tribunal has awarded interest at the rate of 9% per annum from the date of petition till the date of realisation. The accident was occurred on 03.11.2002. The claimant was residing at Tirupur and took treatment at Coimbatore. Considering the same, it would be reasonable to award a sum of Rs.7,000/- under the head of transport expenses. The Tribunal has awarded interest at the rate of 9% per annum from the date of petition till the date of realisation. The accident was occurred on 03.11.2002. Keeping in view the prevailing rate of interest at the time of the accident and the date of award, I feel that the rate of interest awarded by the Tribunal is very reasonable and the same is confirmed. The details of the modified compensation as per the above discussion are as under:- Permanent disability (20%) Rs.56,000/- Pain and suffering Rs. 15,000/- Nutritious food Rs. 5,000/- Medical expenses Rs. 45,635/- Loss of earning power (during the treatment period) Rs. 15,000/- Transport expenses Rs. 7,000/- ------------------ Total... Rs. 1,43,635/- Already Awarded Rs. 78,635/- ----------------- Enhanced Amount Rs. 65,000/- ----------------- Therefore, the claimant is entitled to the enhanced compensation of Rs.65,000/- with interest at the rate of 7.5% per annum from the date of petition. 7. The second respondent-Insurance Company is directed to deposit the enhanced compensation of Rs.65,000/- with interest at the rate of 7.5% per annum, within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the claimant is permitted to withdraw the enhanced compensation of Rs.65,000/- with accrued interest on making proper application. 8. With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.