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2012 DIGILAW 3993 (MAD)

Muralidharan @ Murali v. A. Prakasam

2012-09-25

R.BANUMATHI, R.SUBBIAH

body2012
Judgment :- R.BANUMATHI,J. Being dissatisfied with the quantum of compensation of Rs.1,10,556/- awarded in M.C.O.P.No.298 of 2005 on the file of Motor Accident Claims Tribunal, Erode for the personal injuries sustained by the claimant, the appellant/claimant has preferred this appeal. 2. On 27.11.2003, at about 12.15 p.m, claimant -Muralidharan was proceeding in his TVS Victor Motor bike bearing Regn.No.TN 33 AA 0590 along with one Mukesh Lahoti, a pillion rider. When the claimant was proceeding from East to West in Erode - Chithode main road and nearing Mamarathupalayam -Ellappalayam road intersection, the van bearing Regn.No.TN 27H 5346 driven in a rash and negligent manner, came in the opposite direction and hit the claimant along with the bike. Claimant and the pillion rider Mukesh Lahoti were thrown off the bike. Claimant sustained injuries over head, forehead, fracture below the right knee, injuries for left leg, abrasion over right knee, fracture of eight ribs of the left side and grievous injuries all over the body. Claimant and the said Mukesh Lahoti were admitted in C.K.Hospital, Erode, where the claimant was admitted as in-patient in intensive care unit. Operations were conducted and plates were fixed for the fracture in the left leg and the claimant had taken treatment in C.K.Hospital till 16.12.2003. Thereafter the claimant was admitted in K.G.Hospital, where he had taken treatment for various spells. Regarding the accident, a criminal case was registered against the van driver in Crime No.493/2003 under Sections 279 and 337 IPC. At the time of accident, claimant was aged 42 years and was working as a Manager in M/s.Onkar Textiles Limited, Erode and claimant was drawing a salary of Rs.4,500/- per month. Alleging that because of the accident claimant had suffered permanent disability and that the accident was due to rash and negligent driving of the van driver, claimant had filed the claim petition claiming compensation of Rs.20,00,000/-with interest at 9% per annum. 3. The Insurance Company resisted the claim petition contending that the accident was due to the rash and negligent driving the claimant, and not due to the negligence of the van driver as alleged. Insurance Company also disputed the age, avocation, income and nature of injuries sustained by the claimant. 4. 3. The Insurance Company resisted the claim petition contending that the accident was due to the rash and negligent driving the claimant, and not due to the negligence of the van driver as alleged. Insurance Company also disputed the age, avocation, income and nature of injuries sustained by the claimant. 4. Before the Tribunal, onbehalf of the claimant/appellant, the appellant examined himself as P.W.1, the pillion rider was examined as P.W.2, Dr.Periasamy and Dr.K.Krishnasamy, RMO of C.K.Hospital, Erode were examined as P.W.3 and 4 to prove the treatment undergone by the claimant; one Sheshanath Singh was examined as P.W.5 to prove the employment of claimant and Dr.Sekar, Chief Medical Officer, K.G.Hospital was examined as P.W.6 to prove the treatment under gone at K.G.Hospital, Coimbatore. The Claimant marked Ex.A.1 to A.28 including Ex.A.8 medical bills for about Rs.10,00,000/-. No oral or documentary evidence was adduced on the side of respondent Insurance company. Upon consideration of oral and documentary evidence, Tribunal held that the accident was due to rash and negligent driving of the 1st respondent - van driver and held that the 3rd respondent Insurance Company, being the insurer of the van, is liable to pay compensation to the claimant. Tribunal has awarded total compensation of Rs.1,10,500/-and the details of which are as under: Pain and suffering: Rs. 15,000.00 Transport and Extra-: Rs. 5,000.00 nourishment Medical Expenses: Rs. 25,000.00 Permanent disability : Rs. 52,000.00 Loss of earningRs. 13,500.00 Total: Rs. 1,10,500.00 Being aggrieved by the quantum compensation awarded, the claimant has preferred this appeal. 5. Learned counsel for the appellant contended that the Tribunal fell in error in not considering the evidence of P.W.3 -Dr.Periyasami, who examined the appellant. It was further submitted that the Tribunal erred in rejecting Exs.P.6 and P.8, which are medical bills, which alone come to the tune of Rs.10,09,556/-and the award of compensation made by the Tribunal is grossly inadequate and prayed for enhancement of compensation. 6. There is no dispute regarding the finding of the Tribunal that the accident was caused by the rash and negligent driving of the van driver. Only the quantum of compensation is in dispute. In the accident, the claimant had sustained the following injuries: 1. Injury over head; 2. Fracture of 1 to 8 of the left side ribs 3. Haemopneumothorax left. 4. Fracture left clavicle 5. Fracture left foot 1,2, 3, 4 metatarsal bones, 6. Only the quantum of compensation is in dispute. In the accident, the claimant had sustained the following injuries: 1. Injury over head; 2. Fracture of 1 to 8 of the left side ribs 3. Haemopneumothorax left. 4. Fracture left clavicle 5. Fracture left foot 1,2, 3, 4 metatarsal bones, 6. Fracture of Tibia, Fibula left leg, 7. Left renal upper pole contusion, 8. Fracture with displacement at the neck of proximal Phalanx of Left leg. 9. Congestion of lungs, 10. pleural thickening on latest chest wall on the left side, 11. Contusion of Spleen, 12. Contusion of renal upper pole, 13. Developed ARF (Acute renal failure) after trauma." After the accident, claimant was admitted as in-patient in C.K.Hospital, Erode from the date of accident i.e.,, 27.11.2003 to 16.12.2003 for nineteen days. It is stated that in C.K.Hospital, after interlocking nailing surgery was done for fracture of claimant's left tibia and the claimant was put on ventilator. 7. It is further stated that as claimant's breath deteriorated and he could not be weaned from the ventilator and hence he was referred to K.G.Hospital, Coimabtore for further management. Claimant is stated to have taken treatment in K.G.Hospital for different spells as under: "C.K.Hospital: 27.11.2003 to 16.12.2003 K.G.Hospital: 16.12.2003 to 19.02.2004 K.G.Hospital: 25.04.2004 to 5.5.2004 K.G.Hospital: 11.05.2004 to 18.05.2004 K.G.Hospital: 28.07.2004 to 03.08.2004 K.G.Hospital: 22.09.2004 to 1.10.2004" 8. In his evidence, P.W.1 stated that in C.K.Hospital as well as in K.G.Hospital, intensive treatment was given to him and claimant totally spent Rs.10,09,556/-towards medical bills alone. In this regard, claimant had produced Ex.A.8 -medical bills. But the Tribunal seems to have not considered Ex.A.8 -series of medical bills, but awarded only Rs.25,000/- towards medical expenses. 9. In the appeal, learned counsel for appellant has drawn our attention to Ex.P.8 -series of medical bills and prayed for awarding a sum of Rs.10,09,556/-towards past medical expenses and also reasonable amount towards future medical expenses. 10. Per contra, drawing our attention to Ex.P.9 -discharge summary, the learned counsel for Insurance Company submitted that the claimant was a chronic diabetic patient for about five years for which he was on regular treatment. 10. Per contra, drawing our attention to Ex.P.9 -discharge summary, the learned counsel for Insurance Company submitted that the claimant was a chronic diabetic patient for about five years for which he was on regular treatment. The learned counsel for the Insurance Company would further submit that most part of the claimant's treatment in K.G.Hospital was only for Diabetes and that the renal failure was also due to increase in blood sugar and Diabetes and therefore claimant is not entitled to the amount of Rs.10,09,556/- claimed by the claimant towards medical expenses. 11. Ex.P.8 bills contains more than 653 medial bills. By perusal of the available material, it is seen that no proper evidence was adduced as to the medical bills contained in Ex.P.8 series and also details of the treatment given to the claimant. In the absence of any evidence, being the Appellate Court, we are not in a position to examine Ex.P.8 series - medical bills and find out whether the treatment was given to the injuries sustained in the accident or towards the complications of Diabetes. Therefore, it is necessary to give further opportunity to the appellant to adduce evidence as to the injuries sustained by him and the nature of the treatment given to him and also the expenses. 12. The question falling for consideration is whether the Appellate Court can remand the matter back to the Tribunal. Award of the Tribunal is an executable order. The word "decree" used in Order 41 C.P.C. must be given enlarged meaning to take in Awards and Orders of the Tribunal also. When once the appeal is filed in the High Court, it has to be determined according to the rules and practice and procedure of that Court. No special procedure having been prescribed under Motor Vehicles Act for disposal of the appeal. Order 41 C.P.C. prescribes procedure for disposal of the appeal by which judgment or order appealed against, then the Appellate Court has to follow the procedure prescribed under Order 41 C.P.C. Though Appellant has filed as many as 653 medical bills, the same were not considered by the Tribunal. Now it is stated that Appellant is having permanent disablement and incapacitated from carrying on his normal avocation. Now it is stated that Appellant is having permanent disablement and incapacitated from carrying on his normal avocation. In such circumstances, we feel it appropriate that the matter has to be remitted back to the Tribunal for consideration of the matter afresh insofar as the quantum of compensation to be awarded. 13. In the result, the appeal is allowed and the award dated 27.02.2008 made in M.C.O.P.No.469 of 2004 on the file of Motor Accident Claims tribunal (Addl. District Court-cum-Fast Track Court No.I), Erode is set aside and the matter is remitted back to the trial Court for consideration of the matter afresh only in sofar as the quantum of compensation to be awarded to the claimant. The Tribunal shall afford opportunity to the claimant as well as the Insurance Company to adduce further evidence and shall dispose of the matter, preferably within a period of four months from the date of receipt of copy of this judgment. However, there is no order as to costs.