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2022 DIGILAW 2743 (MAD)

Chandan Dhal v. A. M. Saravanan

2022-08-16

S.SOUNTHAR, V.M.VELUMANI

body2022
JUDGMENT (Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 03.12.2018 made in M.C.O.P.No.85 of 2013 on the file of Motor Accident Claims Tribunal / Chief Judicial Magistrate, Vellore.) V.M. Velumani, J. 1. The Civil Miscellaneous Appeal is filed for enhancement of compensation granted by the Tribunal in the award dated 03.12.2018 made in M.C.O.P.No.85 of 2013 on the file of Motor Accident Claims Tribunal / Chief Judicial Magistrate, Vellore. 2. The appellant is claimant in M.C.O.P.No.85 of 2013 on the file of Motor Accident Claims Tribunal / Chief Judicial Magistrate, Vellore. He filed the said claim petition claiming a sum of Rs.2,00,00,000/- as compensation for the injuries sustained by him in the accident that took place on 10.11.2012. 3. The Tribunal considering the pleadings, oral and documentary evidence, held that the accident has occurred only due to rash and negligent driving by the 1st respondent's bus driver of Bharathi bus bearing registration No.AP-03-W-5125 and directed the 2nd respondent/Insurance Company being insurer of the said vehicle to pay a sum of Rs.29,93,688/- as compensation to the appellant. 4. Not being satisfied with the amounts awarded by the Tribunal, the appellant has come out with the present Civil Miscellaneous Appeal seeking enhancement of compensation. 5. The learned counsel appearing for the appellant contended that due to the injuries sustained in the accident, the appellant's right hand from shoulder was amputated. He took treatment as inpatient for 20 days. The Tribunal failed to consider the documents filed by the appellant and granted a meagre amount, which is not even sufficient to meet the cost of artificial limb. The Tribunal failed to consider the evidence of P.W.3 and Ex.P11. The appellant spent a sum of Rs.22,42,531/- for artificial limb, as mentioned in Ex.P17 is fixed on the appellant. The artificial limb fixed on the appellant is only as per Ex.P16. The Tribunal, without properly appreciating the evidence of P.W.3 with regard to Exs.P16 and Ex.P17, erroneously not granted any amount for artificial limb. The parents of the appellant borrowed money and paid the cost of the artificial limb. The Tribunal, without properly appreciating the evidence of P.W.3, reduced the percentage of disability from 90% to 75%. The Tribunal mechanically reduced the percentage of disability assessed by the Doctor, Christian Medical College Hospital, Vellore. The appellant was an Engineering student. The parents of the appellant borrowed money and paid the cost of the artificial limb. The Tribunal, without properly appreciating the evidence of P.W.3, reduced the percentage of disability from 90% to 75%. The Tribunal mechanically reduced the percentage of disability assessed by the Doctor, Christian Medical College Hospital, Vellore. The appellant was an Engineering student. Due to the injuries, he could not carry out his work as he was doing earlier. The Tribunal failed to award compensation for the loss of marital prospects. There is no rebuttal evidence to the evidence of the appellant and the Tribunal erroneously reduced the percentage of disability from 90% to 75%. The total compensation awarded by the Tribunal is meagre and prayed for enhancement of compensation. 6. The learned counsel appearing for the 2nd respondent Insurance Company submitted that from the materials produced by the appellant, it is seen that, due to the injuries sustained in the accident, his right hand was amputated. The appellant has not produced any material to show that he is totally disabled. The appellant has not let in any evidence to show that he could not continue his studies. P.W.3 is not a reliable witness. He is not the author of the documents produced by him and he admitted that only Accounts department knows the details of the cost of artificial limb. Ex.P16 is only a xerox copy and the same cannot be relied on. Inspite of the objection by the 2nd respondent, the appellant has not produced the original of Ex.P16. In any event, the appellant or P.W.3 have not proved that the said amount was spent by the appellant. The Tribunal has properly appreciated all the materials and the appellant is not entitled for any amount for artificial limb. The total compensation awarded by the Tribunal is excess and the appellant is not entitled for any enhancement and prayed for dismissal of the appeal. 7. Heard Mr.S.P. Yuvaraj, learned counsel appearing for the appellant and Mr.D. Bhaskaran, learned counsel appearing for the 2nd respondent and perused the entire materials on record. 8. From the materials on record, it is seen that, in the accident the appellant sustained injuries and his right hand from shoulder was amputated. The appellant has produced Ex.P6 discharge summary. The appellant examined P.W.2, the Doctor from Christian Medical College Hospital, Vellore. 8. From the materials on record, it is seen that, in the accident the appellant sustained injuries and his right hand from shoulder was amputated. The appellant has produced Ex.P6 discharge summary. The appellant examined P.W.2, the Doctor from Christian Medical College Hospital, Vellore. He is not the Doctor who treated the appellant or an orthopedic surgeon. He produced wound certificate Ex.P15 issued by the Department of Physical Medicine & Rehabilitation, Christian Medical College, Vellore. In the said certificate, it is stated that the appellant suffered 90% partial permanent disability. P.W.2 in his cross examination admitted that all the wounds mentioned in Exs.P6 & Ex.P14 including the place of amputation had healed. He also admitted that there is no calculation available in Ex.P15 disability certificate for arriving at 90% disability. He also admitted that he did not have personal knowledge about the injuries and the treatment given to the appellant. From Ex.P15, it is seen that the disability of the appellant was assessed as 90% partial permanent disability. The contention of the learned counsel for the appellant is that the Tribunal misunderstood the evidence of P.W.3 in respect of Ex.P17. If the artificial limb at the cost of Rs.65,00,000/- is fixed, the appellant can do normal work and lift weight upto 35 kgs. The said artificial limb was not fixed to the appellant and the Tribunal, on erroneous consideration of the evidence of P.W.3, reduced the percentage of disability from 90% to 75%. The appellant was fixed artificial limb as per Ex.P16 at the cost of Rs.22,42,531/-. In view of the same, the appellant is entitled to a compensation for 100% disability. The said contention is not acceptable. As admitted by P.W.2, there is no calculation as to how the percentage of disability has been calculated and 90% disability had been arrived at. P.W.2 did not depose that the appellant is totally disabled and he could not do any work. The Tribunal considering all the above materials and the objection of the 2nd respondent, did not accept 90% disability as assessed in Ex.P15 and fixed the disability suffered by the appellant as 75% and adopted multiplier method for granting compensation. There is no error. The Tribunal considering all the above materials and the objection of the 2nd respondent, did not accept 90% disability as assessed in Ex.P15 and fixed the disability suffered by the appellant as 75% and adopted multiplier method for granting compensation. There is no error. The Tribunal did not reduce the percentage of disability solely relying on the evidence of P.W.3, but, considering the evidence of P.W.2, objection of the 2nd respondent Insurance Company and in the absence of concrete evidence to show that the appellant suffered 90% disability, fixed the disability of the appellant as 75%. There is no error in the said reasoning of the Tribunal warranting interference by this Court. 9. Similarly, on a perusal of Ex.P16, it is seen that the same is only a xerox copy. The learned counsel appearing for the 2nd respondent/ Insurance Company objected to marking of the same when the same was produced by the appellant through P.W.3. The objection was recorded by the Tribunal and inspite of such objection, the appellant and P.W.3 did not produce the original. The appellant has also not explained as to why the original of Ex.P16 has not been produced before the Tribunal. Even before this Court, after taking adjournments for producing the documents to prove the payment, the appellant has not filed any document. P.W.3, in his cross examination, submitted that he received the amount through online payment. P.W.3 as well as the appellant have not produced their bank pass book showing the payment of Rs.22,42,531/- for artificial limb. In view of the same, the appellant is not entitled to any amount for the alleged artificial limb fixed on him. 10. At the time of accident, the appellant was a 2nd year Engineering student and the accident is of the year 2012. The Tribunal fixed notional income of the appellant as Rs.20,000/- per month. The notional income fixed by the Tribunal is excessive. In view of the same, the appellant is not entitled to any enhancement towards future prospects. The appellant has taken treatment as inpatient for 20 days from 11.11.2012 to 30.11.2012. The Tribunal did not grant any compensation for attendant charges. Considering the amputation, medical records and evidence of P.W.2, we are of the opinion that the appellant is entitled to compensation for attendant charges. Considering the period of treatment, a sum of Rs.30,000/- is awarded towards attendant charges. The Tribunal did not grant any compensation for attendant charges. Considering the amputation, medical records and evidence of P.W.2, we are of the opinion that the appellant is entitled to compensation for attendant charges. Considering the period of treatment, a sum of Rs.30,000/- is awarded towards attendant charges. Due to the amputation, the appellant's marital prospects would have been reduced. In view of the same, a sum of Rs.1,00,000/- is awarded towards loss of marital prospects. 11. The contention of the learned counsel for the appellant is that the correct multiplier applicable is 18 and the multiplier adopted by the Tribunal is not correct. In view of the excess notional amount fixed by the Tribunal, he is not entitled for compensation by adopting multiplier 18. The amounts awarded by the Tribunal under other heads are just and reasonable and hence the same are hereby confirmed. Thus the compensation awarded by the Tribunal is modified as follows: S.No. Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted or reduced 1. Loss of Future earnings 28,80,000/- 28,80,000/- Confirmed 2. Pain and suffering 50,000 50,000/-- Confirmed 3. Extra nourishment 20,000 20,000/ Confirmed 4. Transportation 20,000 20,000/- Confirmed 5. Medical bills 18,688/- 18,688/- Confirmed 6. Loss of Personal Belongings 5,000/- 5,000/- Confirmed 7. Attendant charges - 30,000 Granted 8. Loss of marital Prospects - 1,00,000 Granted Total 29,93,688/- 31,23,688/- Enhanced by Rs.1,30,000/- 12. In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.29,93,688/- is hereby enhanced to Rs.31,23,688/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The 2nd respondent/Insurance Company is directed to deposit the award amount now determined by this Court along with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the appellant is permitted to withdraw the award amount now determined by this Court along with interest and costs, less the amount if any, already withdrawn. The appellant is directed to pay necessary Court fee on the enhanced award amount, if any. No costs.