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2022 DIGILAW 2702 (MAD)

M. Premkumar v. M. Palani

2022-08-16

P.T.ASHA

body2022
JUDGMENT (Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the Judgement and Decree dated 20.06.2019 made in MACT.O.P.No.822 of 2007 on the file of the Motor Accidents Claims Tribunal, Chennai, (In the III Court of Small Causes, Chennai). 1. This appeal has been filed by the petitioner seeking an enhancement of the compensation granted by the Motor Accidents Claims Tribunal, III Small Causes Court, Chennai in M.C.O.P.No.822 of 2007. The brief facts are as follows. 2. The appellant herein who at the time of the accident was aged about 11 years had filed the above claim petition seeking compensation of a sum of Rs.10,00,000/- for the injuries sustained by him in a road accident on 22.12.2004. 3. It is the case of the appellant that on the said date, i.e., 22.12.2004, when he was walking on Meenakshi Road keeping to the extreme northern side of the road, a Tata Mini Lorry bearing Registration No.TN 39 D 5965 belonging to the 1st respondent and insured with the 2nd respondent which was driven in a rash and negligent manner and proceeding in the same direction hit the appellant from behind, as a result of which he had sustained multiple fracture and grievous injuries. It is the case of the appellant that the accident had occurred only on account of the lorry driver. 4. The 2nd respondent Insurance Company had filed a counter denying the claim and stating that the appellant was negligent while walking on the road and had also contributed to the accident. Further, the quantum of compensation claimed was very high under the various heads. 5. The Tribunal held that the accident had occurred only on account of the negligence of the driver of the 1st respondent's lorry and held the 1st and 2nd respondents liable to compensate the appellant. Pending the claim petition, the appellant had attained majority and therefore his guardian was discharged and the appellant was declared a major. 6. The Tribunal had awarded a compensation of a sum of Rs.1,86,300/-. The Medical Board had assessed the petitioner's disability at 20%. The Tribunal had granted compensation under the head of Disability at Rs.3,000/- per percentage. Pending the claim petition, the appellant had attained majority and therefore his guardian was discharged and the appellant was declared a major. 6. The Tribunal had awarded a compensation of a sum of Rs.1,86,300/-. The Medical Board had assessed the petitioner's disability at 20%. The Tribunal had granted compensation under the head of Disability at Rs.3,000/- per percentage. The appellant is aggrieved by the fact that the Tribunal has not taken into account the disability and its impact on his day-to-day activities and his earning capacity and has erroneously calculated compensation on percentage basis and not on the multiplier method. This is the primary ground on which the appellant is before this Court. 7. Mr.K.Suryanarayanan, learned counsel appearing on behalf of the appellant would contend that the Tribunal below has not considered Ex.P.2, Ex.P.3, Ex.P.4 and Ex.P.7 from its proper perspective and had the same been taken into account, the Tribunal would have noticed the fact that the appellant had suffered pelvic fracture, for which plates and screws had been inserted and later which had been removed. The learned counsel would submit that there is shortening of the right leg, which is a permanent disablement since the appellant would have to walk with a limp throughout his life. The learned counsel would submit that taking into account the above, the Tribunal ought to have calculated the compensation by adopting multiplier method. The learned counsel for the appellant would further submit that the amount under the head of Pain and Suffering, Transportation and Attender Charges were on the lower side. 8. Mr.M.J.Vijayaraghavan, learned counsel appearing on behalf of the respondent Insurance Company would submit that there is no such disablement as contended by the appellant and the Tribunal has rightly calculated the compensation under various heads and therefore the award of the Tribunal below may be upheld. 9. Heard the learned counsels and perused the records. 10. The primary ground on which the enhancement is sought for that the petitioner had suffered a permanent disablement in the form of the shortening of the leg. The document in which the same is claimed to be reflected is Ex.P.7, which is a xerox copy of the alleged certificate said to have been issued by the Hospital. 10. The primary ground on which the enhancement is sought for that the petitioner had suffered a permanent disablement in the form of the shortening of the leg. The document in which the same is claimed to be reflected is Ex.P.7, which is a xerox copy of the alleged certificate said to have been issued by the Hospital. The said document is not an original and does not contain seal the appropriate signature of the Authorised Signatory to authenticate that the certificate had been issued by the Hospital. The fact that this document cannot not be relied upon is evident from a perusal of Ex.P.2 to Ex.P.4. 11. Ex.P.2 is the Wound Certificate, which is issued by the Hospital on 22.12.2004. Except for stating that the injuries are grievous, no other details of the injuries have been set out. Ex.P.3 is the Discharge Summary which shows that the appellant was an inpatient from 22.12.2004 till 04.01.2005. The certificate would indicate that OR & IF – at the symphysis pubis and (Rt) sacroiliac joint wound debriment of the (Lt) thigh and SSG were done. 12. The operation notes would reflect the following: “Under G.A (Rt) hip, pelvis & abdomen painted. Through an pfestinnal incision and cutting of the Rectus abdominus the pubic bones exposed. Symphysis pubis was open # reduced and fixed with 3 holed semitubular plate and 3 screws. The (Rt) S.I joint disruption was addeessed through an anterior approach. S.I joint reduced and fiseed with 5 holed reconstruction plate and 4 screws. Through wash given. Haemostasis achieved and wound closed in layers with neg suction drain. Through wound debridement of the (Rt) thigh done and SSG taken from the (Rt) thigh and anchored. Sterile dressing done and A/K — Slab applied.” 13. Likewise, Ex.P.4, Discharge Summary would show that the appellant was once again an inpatient from 26.04.2006 to 30.04.2006, where implants were removed and scar excision done. None of these documents would indicate that there has been a shortening of the limb. Even Ex.P.6, which is a certificate dated 06.07.2009 does not talk about a shortening of the right lower limb. It is only in the disputed document, Ex.P.7, that the above statement has been made and therefore no credence can be given to the said document and its  contents cannot be relied upon. 14. Even Ex.P.6, which is a certificate dated 06.07.2009 does not talk about a shortening of the right lower limb. It is only in the disputed document, Ex.P.7, that the above statement has been made and therefore no credence can be given to the said document and its  contents cannot be relied upon. 14. The photographs would show that there is no visible disability and it is only the case of the appellant that he has suffered a loss of earning capacity. The appellant has finished his education and is apparently employed, though details of the same have not been furnished. 15. Therefore, I am of the considered view that the adoption of percentage method by the Tribunal below is very much in order. The appellant has undergone hospitalisation for nearly 17 days and has undergone two surgeries, one for the implanting the plates and screws and secondly for removal of the same. The fact that he has undergone two surgeries and the appellant must have undergone a great deal of pain during the process and thereafter. Therefore, the sum of Rs.20,000/- granted under the head of Pain and Sufferings is on the lower side and the same is enhanced to a sum of Rs.40,000/-. Likewise, for 17 days he has been an inpatient and considering his age there must have been an attender beside him to attend to his needs. Hence, the sum of Rs.4,750/- awarded under the head of Attender charges is enhanced to a sum of Rs.15,000/-. In all other respects, the award remains intact. 16. The award of the Tribunal below is re-worked as follows: Head Award of the Tribunal Award of the High Court Disability Rs.60,000/- Rs.60,000/- Pain and Sufferings Rs.20,000/- Rs.40,000/- Extra Nourishment Rs.7,500/- Rs.7,500/- Transport to Hospital Rs.7,500/- Rs.7,500/- Damages to clothes Rs.1,000/- Rs.1,000/- Attender Charges Rs.4,750/- Rs.15,000/- Medical Expenses Rs.75,550/- Rs.75,550/- Loss of Amenities Rs.10,000/- Rs.10,000/- Total Rs.1,86,300/- Rs.2,16,550/- together with interest at 7.5% p.a. 17. In the result, the Civil Miscellaneous Appeal is partly allowed. No costs.