The Manager v. Krishnabharathi

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 18.10.2016

CORAM

THE HONOURABLE MR.JUSTICE T.RAJA C.M.A. No.698 of 2016 & C.M.P. No.9457 of 2016 The Manager, Cholamandalam General Insurance Corporation Limited, Dare House, 2nd Floor, NSC Bose Road, Chennai.

.. Appellant/ 2nd Respondent

Versus

1.Krishnabharathi ...1st Respondent/ Petitioner 2.Rajappan ..2nd Respondent/ 1st Respondent Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the order and decretal order dated 18.09.2012 made in M.C.O.P.No.441 of 2009 on the file of the Motor Accidents Claims Tribunal, (Principal District Judge), Namakkal.

For Appellant :

Mr.N.Vijayaraghavan For Respondents:

Mr.C.Kulanthaivel for R1

J U D G M E N T

The Civil Miscellaneous Appeal has been filed by the Cholamandalam General Insurance Corporation Limited, questioning the correctness of the impugned award dated 18.09.2012 made in M.C.O.P.No.441 of 2009 on the file of the Motor Accidents Claims Tribunal, (Principal District Judge), Namakkal. 2.It is the case of the 1st respondent/claimant that on 05.06.2009 at about 9.00 p.m., when the 1st respondent/claimant was travelling as a pillion rider in a two wheeler bearing Registration No.TN 48 L 8925, which was driven by one Vignaraja from Namakkal to Trichy Road, at that time, a lorry bearing Registration No.

TN 34 H 5087, coming behind the said vehicle in a rash and negligent manner, dashed against him and caused the accident, as a result the first respondent/claimant sustained severe injuries on his left hand wrist, shoulder, forehand and also fracture, for which, he was admitted in CM Hospital at Namakkal for taking treatment. While he was taking treatment, he incurred the medical expenses for Rs.1 lakh. During the period of treatment, skin grafting was done in his left hand and subsequently an operation was performed.

that during the treatment period, he has not done his avocation viz., vessel business. The doctor, who was examined as PW3, has issued a disability certificate certifying the disability at 50% on account of the fracture sustained by the claimant. Considering the age of the victim who was unmarried and on the basis of the disability certificate, the Tribunal has fixed the permanent disability at 50% and awarded the following compensation:

Description Amount in Rs.

Towards 50% permanent disability 50% x 2000 Rs. 1,00,000/- Towards pain and suffering Rs. 1,00,000/- Towards loss of earning power Rs. 2,50,000/- Towards medical expenses as per Ex.P7 Rs.1,76,55/- rounded to Rs.1,80,000/- Total compensation Rs.6,30,000/- Aggrieved by the same, the appellant/Insurance Company has filed the present appeal questioning the quantum of compensation. When the matter was taken up, both parties agreed for the reduction of the amount of compensation.

3. First of all, it has to be seen whether the Tribunal has rightly fixed Rs.1 lakh towards disability. PW2, the first respondent herein has deposed before the Tribunal that he had sustained injuries on his left hand, crush injuries, fracture and nerve cut in the left hand. Therefore, when he sustained severe injuries, he was taking treatment as inpatient for a period of one month and the discharge summary Ex.P8 would reveal that the injured claimant had taken treatment from 06.06.2009 to 08.07.2009. That apart, during the said period, in his left hand, skin grafting was done and also an operation was performed. In view of the injuries sustained by the injured, the Tribunal came to the conclusion that the injured/claimant was not able to carry on his vessel business. On this basis, the Tribunal assessed the disability at 50% and fixed Rs.

2,000/- for each percentage of disability. However, this Court has settled the issue in the case of National Insurance Company Ltd. v. G.Ramesh and another, reported in 2013 (2) TN MAC 583 by awarding a sum of Rs.3,000/- for each percentage of disability. Accordingly, while fixing a sum of Rs.3,000/- for each percentage, a sum of Rs.1,50,000/- (Rs.3000 x 50%) is awarded towards 50% permanent disability.

4. Moreover, the discharge summary dated 08.07.2009, which was marked as Ex.P8, would reveal that the injured/ claimant had taken treatment as inpatient for a period of one month. Since the injured was not in a position to do his vessel business for a period of one month due to the injuries, this Court is inclined to fix a sum of Rs.1,00,000/- towards the loss of earning power, instead of Rs.2,50,000/- awarded by the Tribunal. Further, the Tribunal has rightly awarded a sum of Rs.1,80,000/- under the head 'medical expenses' and hence this Court is not inclined to interfere with the said finding of the Tribunal. As the injured/claimant had taken treatment as inpatient for a period of one month and also sustained crushed injuries in his

left hand, this Court is inclined to award a sum of Rs.30,000/- under the head 'pain and suffering', a sum of 20,000/- under the head 'extra nourishment', a sum of Rs.10,000/- each under the heads 'attendant charges and transport expenses', a sum of Rs.50,000/- under the head 'loss of amenities including affecting marital aspects and a sum of Rs.20,000/- under the head 'future medical expenses. As the appellant and the first respondent/claimant are agreeable to pay/receive the following compensation, the civil miscellaneous appeal is disposed of for an award of Rs.5,70,000/- payable with interest at the rate of 7.5% per annum, under the following heads, instead of Rs.6,30,000/- ordered by the Tribunal.

Disability Rs.1,50,000/- (@ Rs.3000/- per percentage) Loss of earning power Rs.1,00,000/- Pain and suffering Rs. 30,000/- Extra nourishment Rs. 20,000/- Attendant charges Rs. 10,000/- Transport expenses Rs. 10,000/- Medical expenses Rs.1,80,000/- Loss of amenities including affecting marital aspects Rs. 50,000/- Future Medical expenses Rs. 20,000/- ----------------- Total Rs.5,70,000/- ============

5. Since the appellant / Insurance Company has already deposited 50% of the award amount as per the order of this Court, the appellant/Insurance Company is directed to deposit the balance award amount along with interest at the rate of 7.5% p.a. within a period of four weeks from the date of receipt of a copy of this order and on such deposit, the claimant/first respondent is permitted to withdraw the award amount, by moving appropriate application before the Tribunal. No costs.

Consequently, connected C.M.P. is closed.

Sd/- Asst.Registrar (CS V ) /true copy/ Sub Asst. Registrar kal To 1.The Motor Accidents Claims Tribunal, (Principal District Judge), Namakkal

2.The Section Officer, V.R.Section, High Court, Madras.

1 cc to M/s.N. Vijayaraghavan, Advocate, Sr. 58763 1 cc to M/s.C. Kulanthaivel, Advocate, Sr. 58754 C.M.A. No.698 of 2016 & C.M.P. No.9457 of 2016 NRI (CO) kk 26/12