BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18/04/2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.M.A.No.621 of 1997 and Cross Objection No.33 of 2002 The New India Assurance Co., Ltd., Divisional Office, represented by Divisional Manager, 242-B,Kamarajar Salai, Madurai. ... Appellant Vs 1.M.Sakthivel 2.S.P.Muthurajan ... Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, against the judgment and decree made in M.C.O.P.No.6 of 1995, dated 29.10.1996, on the file of the Motor Accidents Claims Tribunal - Additional District and Sessions Court, Ramanathapuram. !For Appellant ... Mr.A.K.Baskarapandian ^For Respondents ... Mr.S.Natarajan :JUDGMENT
This appeal has been preferred against the award passed in M.C.O.P.No.6 of
1995, dated 29.10.1996, on the file of the Motor Accidents Claims Tribunal –
Additional District and Sessions Court, Ramanathapuram. The claimant in
M.C.O.P.No.6 of 1995 has preferred Cross Objection No.33 of 2002.
The short facts of the case relevant for the purpose of deciding this appeal are
as follows:
2. On 12.04.1992, at about 07.00 a.m., while the claimant was riding his
bicycle near Sri Nithyakalyani Textile Mills Gate on the Thiruvadanai –
Devakottai main road, a van bearing Registration No.TCA-3215, belonging to the
first respondent, was driven by its driver in a rash and negligent manner,
dashed against the claimant causing grievous injuries on the right leg and right
knee. The claimant was taken to the Government Hospital, Ramanathapuram where
he was admitted as an inpatient from 12.04.1992 to 10.06.1992 and was admitted
in the Institute of Orthopaedic Research and Accident Surgery at K.K.Nagar,
Madurai as an inpatient from 07.05.1993 to 02.07.1993. An operation was
conducted on 12.05.1993 on his right leg and steel plates were fixed to set
right the fractured bone. The claimant was earning Rs.1,200/- per mensum as a
labourer in Sri Nithyakalyani Textile Mills. The claimant had filed a claim
application claiming Rs.3 lakhs towards compensation.
3. The first respondent remained ex-parte. The second respondent in his
counter has contended that the accident had not occurred due to the rash and
negligent driving of the driver of the van bearing Registration No.TCA-3215, but
only due to the contributory negligence of the claimant, the accident had
occurred. The second respondent in his additional counter has contended that
the claim of compensation is exorbitant.
4. Before the learned Tribunal, P.W.1 to P.W.3 were examined and Exs.P.1
to P.22 were marked on the side of the claimant and on the side of the
respondent, neither oral nor documentary evidence was let in.
5. After going through the available evidence, the learned Tribunal has
come to a conclusion that the accident had occurred only due to the rash and
negligent driving of the driver of the van bearing Registration No.TCA-3215 and
has awarded Rs.1,40,000/- towards compensation.
6. Aggrieved by the award of compensation, the second respondent / New
India Assurance Company Limited has preferred this appeal in C.M.A.No.621 of
1997 and the claimant has preferred Cross Objection No.33 of 2002, contending
that the learned Tribunal has failed to award a compensation of Rs.8,835.85
under Ex.P.14 and that the award passed under the head pain and sufferings is
meagre and the learned Tribunal has not considered the medical expenses to be
incurred in future for removing the steel plates already fixed in the right leg
of the claimant and the learned Tribunal has failed to award any compensation
under the head extra nourishment and transportation charges and the interest
awarded is also low.
7. Now, the points for determination in this appeal are:
1. Whether the award passed in M.C.O.P.No.6 of 1995, dated 29.10.1996, on
the file of the Motor Accidents Claims Tribunal – Additional District and
Sessions Court, Ramanathapuram, is liable to be reduced for the reasons stated
in the Memorandum of appeal in C.M.A.No.621 of 1997?
2. Whether more compensation is to be awarded under medical bills,
Ex.P.14, under the heads pain and sufferings, future medical expenses, extra
nourishment and transportation charges for the reasons stated in Cross Objection
No.33 of 2002?
Point No.1
8. The learned Counsel appearing for the appellant would contend that the
learned Tribunal while assessing the loss of income has fixed the monthly income
of the claimant as Rs.1,200/- and has adopted multiplier 18 and after deducting
40% has arrived at the total loss of income as Rs.1,03,680/- which is erroneous.
9. As held by this Court in United India Insurance Company Limited vs.
Veluchamy and another reported in 2005 (1) TN MAC 87 (DB), that for a permanent
disability of 49%, this Court has awarded Rs.50,000/- towards compensation under
the head permanent disability. The relevant observation in the above said
dictum runs as follows:
“According to him, it would be difficult for him to sit, stand or attend to the
nature’s call and there is a possibility of the injury being worsened and also
got further damaged in the operated portion. Ultimately, he assessed his
disability to the extent of 49 per cent. The disability certificate has been
marked as Ex.P.8 and X-ray as Ex.P.9….
In view of the fact that he sustained disability to the extent of 49 per
cent, as seen from Ex.P.8, as well as the evidence of P.W.2, we grant
Rs.50,000/- for permanent disability….
In the light of our discussion, the claimant is entitled to the following
amounts for the heads noted against them:
1) For permanent
disability - 49% Rs.50,000.00"
10. In New India Assurance Company Limited Vs. R.Loganathan and others
reported in 2005 ACJ 1393, a Division Bench of this Court has held that on the
basis of disability certificate, Ex.P.18, in that case, for a disability of 20%,
the claimant was given an award of Rs.20,000/-. The relevant observation in the
said dictum is as follows:
“The learned Counsel for the cross-objector by pointing out the evidence
of P.W.1, P.W.2 and disability certificate, Ex.P.18, would contend that the
Tribunal ought to have granted separate amount for permanent disability. In the
light of the fact that the doctor has assessed his disability to an extent of 20
per cent, we are of the view that the claimant is entitled to a sum of
Rs.20,000/- towards the same.”
11. In this case, the claimant had sustained a grievous injury on the
right leg which is seen from Ex.P.6, Accident Register. The Doctor, P.W.2, who
had examined the claimant and conducted the surgery, had issued Ex.P.15,
disability certificate, wherein he has assessed the permanent disability as 40%.
There was no amputation and hence the method adopted by the learned Tribunal is
erroneous as decided by this Court in the above said ratios. The learned
Tribunal ought to have fixed the compensation for 40% permanent disability of
the claimant as Rs.40,000/- as rightly contended by the learned Counsel
appearing for the appellant. The claimant is entitled to Rs.40,000/- for 40%
permanent disability. The claimant was in the hospital as an inpatient from
12.04.1992 to 10.06.1992 and also from 07.05.1993 to 27.05.1993 as per Ex.P.2
and Ex.P.16. As per Ex.P.11, salary certificate, the claimant is drawing a
salary of Rs.1,209/- per mensum. The claimant was working as a daily wager in
Sri Nithyakalyani Textile Mills Limited. Admittedly, he was in the hospital as
an inpatient for nearly two months and twenty days. So, under the head, loss of
income, the claimant is entitled to Rs.3,200/- towards compensation. On the
basis of the medical bills, Ex.P.7, Ex.P.9, Ex.P.10, Ex.P.20 to Ex.P.22, the
learned Tribunal has awarded Rs.13,466.65. Ex.P.14, medical receipts were
rejected by the learned Tribunal on the ground that they do not contain neither
the name of the Doctor who had prescribed the medicines nor the patient’s name
for whom the medicines were purchased. Apart from that, there is a manipulation
in the date of issue of those medical bills. I do not find any reason to
interfere with the finding of the learned Tribunal in rejecting Ex.P.14, medical
bills.
12. Under the head pain and sufferings, the learned Tribunal has awarded
Rs.5,000/- which is reasonable. Under the head transport to hospital, the
learned Tribunal has awarded Rs.2,253.35, but this was not based on any bills.
The accident had occurred at Thiruvadanai – Devakottai main road near his
working place, namely, Sri Nithyakalyani Textile Mills, from there he was taken
to the Government Hospital, Ramanathapuram. So, even if the claimant would have
engaged a taxi to go to the Government Hospital, Ramanathapuram and then to
Madurai where he had taken treatment from 07.05.1993 to 27.05.1993 in a private
Nursing Home, and then to his home, certainly he would have incurred a sum of
Rs.2,000/- towards taxi hire charges. Hence, I award Rs.2,000/- as compensation
under the head transport to hospital. The learned Tribunal has not awarded any
compensation under the head damages to cloth and articles. At the time of the
accident, the claimant was riding on his bicycle to his working place. So in
the accident, the bicycle as well as his clothes would have got damaged. On
that score, I award Rs.1,000/- towards compensation. The claimant was in the
hospital as an inpatient for nearly two months and twenty days and he had
sustained a grievous injury in the right leg and it is in evidence that the
surgery was conducted and plates were fixed to set right the fractured bone on
the right leg. So, taking into consideration all the grievous injuries the
claimant had sustained and also the treatment he had taken as an inpatient in
the hospital, Ramanathapuram as well as in the private nursing home at Madurai
and during the stay at hospital, certainly the claimant would have taken
nutritious diet to regain his stamina and vitality, so I award Rs.4,000/- under
the head extra nourishment. During his stay in the hospital for two months and
twenty days as an inpatient, he would have engaged an assistant to help him.
Hence under the head for providing an assistant, I award Rs.3,000/-. The
Doctor, P.W.2, in his evidence, has stated that the plates and screws fixed
during the surgery are to be removed by conducting another surgery and for that
the claimant has to incur a sum of Rs.10,000/-. But the learned Tribunal has
not awarded any amount towards compensation under the head future medical
expenses. Hence, I award Rs.10,000/- towards compensation under the head future
medical expenses. So, the claimant is entitled to a compensation of
Rs.81,666.65 (Rs.40,000/- + Rs.3,200/- + Rs.13,466.65 + Rs.5,000/- + Rs.2,000/-
+ Rs.1,000/- + Rs.4,000/- + Rs.3,000/- + Rs.10,000/- = Rs.81,666.65) [Rupees
Eighty One Thousand Six Hundred and Sixty Six and paise sixty five] only.
13. Hence, I hold on the point No.1 that the award of compensation passed
in M.C.O.P.No.6 of 1995, dated 29.10.1996, on the file of the Motor Accidents
Claims Tribunal – Additional District and Sessions Court, Ramanathapuram, is
liable to be reduced and fixed as Rs.81,666.65 for the reasons stated in the
Memorandum of appeal in C.M.A.621 of 1997.
Point No:2
14. In the Cross Objection, the learned Counsel for the claimant would
state that without any basis, the learned Tribunal has rejected Ex.P.14, medical
bills. But, the learned Tribunal has given reasons in the award for having
rejected Ex.P.14, medical bills. The reason is that the medical bills under
Ex.P.14, do not contain the name of the Doctor or the name of the patient.
Apart from that the date has also been manipulated, and further they are not
relating to the period under which the claimant was taking treatment in the
hospital as an inpatient and most of those bills are relating to the month of
October, November and December’1992 and January 1993 whereas the claimant was
under the treatment during April to June’1992 and May ‘1993. So, the learned
Tribunal has correctly rejected Ex.P.14, medical bills. The learned Tribunal
has fixed the compensation for pain and sufferings as Rs.5,000/- as per Second
Schedule to Section 163 (A) of the Motor Vehicles Act [in Paragraph 4 under the
General Damages in case of injuries and disabilities: i) pain and sufferings (a)
grievous injuries –
Rs.5,000/-]. For future medical expenses, even though the learned Tribunal has
discussed it at paragraph 9, he has failed to award any compensation under the
head future medical expenses. Now, in the appeal, C.M.A.621 of 1997, we have
awarded Rs.10,000/- towards compensation under the head future medical expenses.
For extra nourishment and for transportation charges to hospital, in the appeal
we have awarded compensation. The learned Tribunal has correctly awarded 12%
interest, taking into consideration the prevailing R.B.I rate of interest in the
year 1992. So, in the Cross Objection, the claimant is not entitled to get any
compensation under Ex.P.14, medical bills and also for the enhancement of the
rate of interest. In other aspects, the compensation has been awarded under the
head pain and sufferings, future medical expenses, extra nourishment and
transport charges to the hospital in C.M.A.No.621 of 1997. The point No.2 is
answered accordingly.
15. In the result, the appeal is allowed and the award of compensation
passed in M.C.O.P.No.6 of 1995, dated 29.10.1996, on the file of the Motor
Accidents Claims Tribunal – Additional District and Sessions Court,
Ramanathapuram, is reduced and fixed as Rs.81,666.65 rounded to Rs.81,667/-
(Rupees Eighty One Thousand Six Hundred and Sixty Seven) only. Cross Objection
No.33 of 2002 is partly allowed as above. The claimant has already been
permitted to withdraw Rs.70,000/- from the award amount as per order in
C.M.P.No.51 of 1998 and C.M.P.No.6221 of 1997 in C.M.A.No.621 of 1997, dated
06.02.1998. The balance of the award amount with accrued interest in to be
deposited in any one of the nationalised banks for one year. The claimant is
permitted to withdraw the accrued interest once in three months from the above
said fixed deposit amount. The appellant is permitted to withdraw the
difference of the award amount with proportionate interest and costs. No costs
in C.M.A and Cross Objection.
rsb
To
The Motor Accidents Claims Tribunal –
Additional District and Sessions Court,
Ramanathapuram.