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2011 DIGILAW 4384 (MAD)

V. Ramalingam v. Karuppannan

2011-11-01

B.RAJENDRAN

body2011
Judgment :- 1. The claimant has come forward with this appeal aggrieved by the order passed by the Court below dismissing his claim petition, by which he claimed compensation of Rs.1,00,000/- for the injuries sustained by him in the road accident on 19.10.1995. 2. According to the claimant, on 19.10.1995 at 14.00 hours, when he was proceeding in his bicycle in Gandhi Road, Chitlapakkam, Chennai 600 064, the lorry bearing Registration No. TN-21-Z-1031 was driven by its driver in a rash and negligent manner and hit the claimant from behind. In the impact, the claimant sustained grievous injuries in his right hand and multiple injuries all over his body. Immediately, the claimant was admitted in the Government Hospital, Tambaram for treatment, from where he was shifted to Stanley Medical College and Hospital, Chennai. At the time of accident, the claimant was 19 years old, working as a coolie and earning Rs.2,100/- per month. Therefore, for the injuries sustained by the claimant, he claimed Rs.1,00,000/-as compensation. 3. The insurance company resisted the claim petition by filing a counter before the court below. 4. The Court below, after hearing the counsel for both sides, held that the claimant has failed to prove, through documentary evidence, that he sustained injury in his right hand due to the accident. Therefore, the court below dismissed the claim petition. 5. The learned counsel for the claimant would contend that the claimant sustained crush injuries in his right hand wrist in the accident. Further, during the course of the accident, one of his fingers in the right hand has been amputated. Originally, the claimant was admitted in Government Hospital, Tambaram from where, he was shifted to Stanley Medical College and Hospital where he was admitted as an in-patient for 19 days. The claimant also examined a Doctor, PW2, who issued the disability certificate, Ex.P4 assessing the disability of the claimant at 55%. The court below dismissed the claim petition only on the ground that the Accident register as well as the wound certificate were not produced from the Government Hospital, Tambaram. When the claimant was given only initial treatment at Government Hospital, Tambaram and he was referred to Stanley Medical College Hospital, Chennai, the claimant only produced the discharge summary issued by Stanley Medical College Hospital, Chennai to show that he was admitted in the said hospital between 20.10.1995 to 09.11.1995. When the claimant was given only initial treatment at Government Hospital, Tambaram and he was referred to Stanley Medical College Hospital, Chennai, the claimant only produced the discharge summary issued by Stanley Medical College Hospital, Chennai to show that he was admitted in the said hospital between 20.10.1995 to 09.11.1995. The court below failed to take into consideration the discharge summary issued by Stanley Medical College and Hospital on the only ground that he accident register and wound certificate were not produced. In any event, merely because the claimant did not produce the wound certificate or the accident register, the court below ought not to have dismissed the claim petition. Further, the respondent has filed a formal counter merely denying the averments made in the claim petition without producing any contra evidence to show that the claimant has not sustained any injuries at all in the accident. Therefore, he would pray for allowing the claim petition as well as this appeal and to award compensation of Rs.2,50,000/-, for the injuries sustained by the claimant in the road accident, as claimed in this appeal. 6. The learned counsel for the second respondent/insurance company would vehemently contend that the claimant is bound to produce the accident register to prove that he sustained injuries in the accident or otherwise. In the absence of the wound certificate or the accident register produced by the claimant to show that at the first instance, he was admitted in Government Hospital, Tambaram and then referred to Stanley Medical College and Hospital, there is every possibility to suspect the so-called injuries sustained by the claimant in the accident. Mere production of the discharge summary from Stanley Medical College and Hospital will not entitle the claimant to get compensation. Under those circumstance, the court below is right in dismissing the claim petition and he prayed for dismissal of this appeal. 7. I heard the counsel for both sides and perused the materials on record. The claimant would contend that he met with the accident on 19.10.1995 when he was riding the bicycle. Immediately after the accident, he was admitted in Government hospital, from where he was shifted to Stanley Medical College and Hospital, where, during the course of his treatment, one of his fingers was amputated. The claimant would contend that he met with the accident on 19.10.1995 when he was riding the bicycle. Immediately after the accident, he was admitted in Government hospital, from where he was shifted to Stanley Medical College and Hospital, where, during the course of his treatment, one of his fingers was amputated. It is seen from the impugned judgment that the court below disbelieved the very accident on the ground that the claimant did not produce the Accident Register or Wound Certificate issued by the Government Hospital, Tambaram without considering the discharge summary issued by the Stanley Medical College and Hospital, Chennai. As rightly pointed out by the learned counsel for the claimant, in the counter filed by the insurance company before the Court below, a formal denial was made regarding the accident. However, when the claimant was examined as PW1, in the cross-examination, nothing was suggested as to whether the claimant sustained the injuries in the accident or not. 8. The court below, in the impugned judgment, held that it believes the evidence of the PW1, but rejected the claim only due to non-production of Accident Register and Wound Certificate from Government Hospital, Tambaram from where the claimant said to have been referred to Stanley Medical College and Hospital, Chennai. In this context, it is necessary to refer to the discharge summary, Ex.P2. A perusal of Ex.P2 would indicate that the claimant was admitted in Stanley Medical College and Hospital, Chennai on 20.10.1995, namely the next day of the accident. Therefore, the explanation offered by the claimant that he was originally admitted in Government Hospital, Tambaram and from where he was shifted to Stanley Medical College Hospital, Chennai is plausible. Therefore, the Court below ought to have awarded compensation on the basis of Ex.P2 instad of dismissing the claim petition. 9. As rightly pointed out by the learned counsel for the claimant, the insurance company has not taken any steps to disprove the accident. The insurance company has not taken any steps to examine any one concerned with the accident or any proof to show that the claimant did not sustain the injuries in the accident. Under those circumstances, I am of the view that the claimant sustained injuries in the accident that took place on 19.10.1995 and it was proved by production of Ex.P2, discharge summary. 10. Under those circumstances, I am of the view that the claimant sustained injuries in the accident that took place on 19.10.1995 and it was proved by production of Ex.P2, discharge summary. 10. The court below found that the insurance company is liable to pay the compensation on behalf of the first respondent/owner of the vehicle inasmuch as the vehicle was duly insured by the owner with the insurance company and there was no violation of any policy conditions, however, it dismissed the claim petition. Such a finding of the court below fastening liability on the insurance company, has not been questioned by the insurance company and it reached finality. Therefore, I hold that the findings given by the court below regarding the liability of the insurance company to pay compensation to the claimant is valid and justifiable. 11. Now it has to be seen as to what will be the reasonable amount to be awarded as compensation to the claimant. The accident took place on 19.10.1995. As per the evidence of PW2, Doctor, one of the fingers of the claimant was amputated due to the accident and he underwent engrafting. The Doctor assessed the disability of the claimant at 55%. But the disability assessed at 55% cannot be taken as the functional disability. At best, the claimant, being a coolie, might have been prevented from discharging his normal work due to the amputation of one of the fingers and therefore, the functional disability can be assessed at 25%. If the disability of the claimant is assessed at 25%, by awarding a sum of Rs.2,000/-per percentage of disability, a sum of Rs.50,000/- can be awarded to the claimant towards disability, which will be the fair and reasonable compensation. 12. The claimant has lost one of his fingers and the pain and suffering he would have undergone is enormous. Therefore, considering the same, I am inclined to award a sum of Rs.5,000/- towards pain and suffering. 13. In the result, the appeal filed by the claimant is allowed and the insurance company/second respondent herein is directed to pay a sum of Rs.55,000/-as compensation to the claimant with interest at the rate of 9% per annum from the date of filing of the claim petition till the date of deposit. 13. In the result, the appeal filed by the claimant is allowed and the insurance company/second respondent herein is directed to pay a sum of Rs.55,000/-as compensation to the claimant with interest at the rate of 9% per annum from the date of filing of the claim petition till the date of deposit. The second respondent/ insurance company is directed to deposit the compensation amount within eight weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant/appellant is permitted to withdraw the compensation amount with accrued interest.