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2011 DIGILAW 4417 (MAD)

A. M. Abdulla v. R. M. Muthu

2011-11-04

B.RAJENDRAN

body2011
Judgment :- 1. The claimant is the appellant in this appeal. The appellant is aggrieved by the award passed by the Court below granting a sum of Rs.1,68,000/- as compensation for the injuries sustained by him in the road accident that took place on 25.08.2002. 2. The facts which led to the filing of the claim petition was that on 25.08.2002 at about 22.15 hours, when the claimant was proceeding in his motor cycle bering Registration No. TN 09 F 0197 in the 10th Avenue Road, near, 7th Avenue Road Junction, the car bearing Registration No. TN 09 B 9669 was driven by its driver in a rash and negligent manner and dashed against the claimant. In the impact, the claimant sustained severe injuries such as fracture over patella right, lacerated injuries over both hands, abrasions over right leg and multiple injuries all over the body. At the time of accident, the claimant was aged 42 years, Proprietor of a business in the name and style of M/s. Anwar Dresses and earning a sum of Rs.6,000/- per month. Therefore, for the injuries sustained by the claimant, he claimed Rs.3,00,000/- as compensation. 3. The insurance company resisted the claim petition by contending that the amount sought for as compensation is high inasmuch as the claimant had only sustained simple injuries. 4. The Court below, on appreciation of the oral and documentary evidence, awarded a sum of Rs.1,68,000/- as compensation. 5. The learned appearing counsel for the claimant/appellant would contend that the claimant sustained fracture in his right knee and he was hospitalised for a period of 7 days. The claimant was admitted in PDR Orthopaedic Hospital, Chennai – 600 017 between 25.08.2002 to 02.09.2002 for seven days and subsequently taken treatment as an out-patient. During the course of his treatment, he underwent a surgery and plates were inserted. After the surgery, the claimant was advised to undergo physiotheraphy treatment for 2½ months and the claimant also underwent the same. The Court below, without considering the nature of injuries sustained by the claimant has granted only Rs.1,000/- per percentage of disability and awarded Rs.40,000/- towards disability. Even as per the decision of this Court in several cases, a sum of Rs.2,000/- per percentage of disability can be granted, but it was not done. The Court below, without considering the nature of injuries sustained by the claimant has granted only Rs.1,000/- per percentage of disability and awarded Rs.40,000/- towards disability. Even as per the decision of this Court in several cases, a sum of Rs.2,000/- per percentage of disability can be granted, but it was not done. In any event, the amount awarded by the Court below is not in accordance with the nature of injuries sustained by the claimant and therefore he prayed for enhancement. 6. The learned counsel appearing for the respondent/insurance company would contend that the amount awarded by the Court below cannot be said to be unreasonable and in fact, it is excessive. The Court below awarded a sum of Rs.40,000/- and another sum of Rs.40,000/- towards loss of earning capacity, which is impermissible under law. Even the amount awarded towards pain and suffering is on the higher side and he prayed for dismissal of the appeal. 7. I heard the counsel for both sides and perused the materials on record. The insurance company admits the date, time, manner in which the accident occurred as also the liability. This appeal is filed by the claimant seeking enhancement. 8. Admittedly, the claimant sustained a fracture injury in his right knee and hospitalised for seven days. During the course of his hospitalisation, he underwent a surgery and plates were also inserted and it requires another surgery to be performed for removal of the plates. Furthermore, the claimant was advised to take physiotheraphy treatment for a period of 2 ½ months which was also underwent by the claimant. The Doctor, PW2, examined on the side of the claimant assessed the disability at 40%. According to the claimant, he was the proprietor of a clothing shop and he was aged 42 years at the time of accident. The claimant also would contend that previously, he was working in Abu Dhabi and he planned to leave India to Abu Dhabi for his employment and he has also purchased air tickets for his travel, but due to the injuries sustained in the accident, he could not travel as scheduled, which resulted in acute mental agony besides that his future prospects were lost. 9. 9. It is seen from the records that there is no evidence produced to show that the claimant obtained Visa or any Work permit, but he has only purchased air ticket to travel out of India. Merely because the claimant purchased a ticket, he cannot contend that he missed the opportunity to work in Abu Dhabi due to the injuries sustained in the accident or his future prospects were affected and therefore this contention of the claimant was rightly rejected by the Court below. 10. The Court below awarded compensation under the following heads:- Disability : Rs. 40,000.00 Loss of earning capacity : Rs. 40,000.00 Loss of earning during period of treatment : Rs. 36,000.00 Pain and Suffering : Rs. 20,000.00 Transportation charges : Rs. 2,000.00 Extra Nourishment : Rs. 3,000.00 Medical expenses : Rs. 26,500.00 Rs.1,67,500.00 Rounded off to Rs.1,68,000.00 11. As rightly pointed out by the learned counsel for the respondent/ claimant, the Court below, taking into consideration the disability assessed by the Doctor at 40%, awarded Rs.40,000/- , but yet another sum of Rs.40,000/-was awarded towards earning capacity, which is legally impermissible and the sum of Rs.40,000/- awarded by the Court below towards loss of earning capacity is hereby set aside. At the same time, considering the nature of injuries and period of hospitalisation, the Court below ought to have awarded Rs.2,000/- per percentage of disability, but it was not done. Therefore, for disability, the claimant is entitled to Rs.80,000/- at the rate of Rs.2,000/- per percentage of disability. Even though the court below awarded Rs.80,000/-towards disability and earning capacity, the same is modified and the claimant is entitled to Rs.80,000/-towards disability alone. 12. The Court below awarded a sum of Rs.36,000/- at the rate of Rs.6,000/- per month towards loss of income during the period of treatment and I feel the amount under this head is fair and reasonable. 13. Similarly, the Court below awarded Rs.20,000/-towards pain and suffering which is also in consonance with the nature of injuries sustained by the claimant and therefore, I am not inclined to interfere with the same. 14. As rightly pointed out by the learned counsel for the claimant/appellant the amount awarded under the heads transportation, extra nourishment are low. 13. Similarly, the Court below awarded Rs.20,000/-towards pain and suffering which is also in consonance with the nature of injuries sustained by the claimant and therefore, I am not inclined to interfere with the same. 14. As rightly pointed out by the learned counsel for the claimant/appellant the amount awarded under the heads transportation, extra nourishment are low. Considering that the claimant was admitted in the hospital for 7 days, underwent a surgery in which plates were inserted and he had also taken physiotheraphy treatment for a period of 2 ½ months, I am inclined to award a sum of Rs.5,000/- towards transportation charges and Rs.10,000/- towards extra nourishment. 15. As pointed out by the learned counsel for the claimant/appellant, the court below has not awarded any amount towards loss of amenities. Inasmuch as the claimant sustained fracture injuries and also underwent a surgery, he would have confronted difficulty in discharging his normal work atleast for some time. Therefore, for loss of amenities, I award a sum of Rs.5,000/-. 16. The Court below awarded Rs.26,500/- towards medical expenses, which are based on medical bills and therefore, I am not inclined to interfere with the amount awarded under this head. 17. In the result, the appeal filed by the claimant/appellant is allowed enhancing the compensation amount awarded by the Court below from Rs.1,68,000.00 to Rs.1,82,000/- as follows:- Disability : Rs. 80,000.00 Loss of earning during period of treatment : Rs. 36,000.00 Pain and Suffering : Rs. 20,000.00 Transportation charges : Rs. 5,000.00 Extra Nourishment : Rs. 10,000.00 Medical expenses : Rs. 26,500.00 Loss of amenities : Rs. 5,000.00 Rs.1,82,000.00 18. It is represented that the insurance company has deposited the entire amount awarded by the Court below. In view of the enhancement of the compensation amount, the insurance company is directed to deposit the enhanced compensation amount 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 judgment. On such deposit, the claimant/appellant is permitted to withdraw the compensation amount with accrued interest. No costs.