Iyyanar v. T. Ramasamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.04.2018
CORAM:
THE HONOURABLE MR.JUSTICE S.BASKARAN C.M.A.No.75 of 2017 Iyyanar ...Appellant/Petitioner Vs 1.T.Ramasamy 2.Oriental Insurance Company Limited No.7/1502, Vivekananda Cloth Market Korrapaduraod, Proddatur-516 360 Kadappa District, Andhra Pradesh..Respondents/Respondents Civil Miscellaneous Appeal filed against the judgment and decree dated 07.10.2016 passed in MACT.O.P.No.3049 of 2012 on the file of Motor Accidents Claims Tribunal, IV Court of Small Causes, Chennai.
For appellant : : Mr.K.Suryanarayanan for Respondents : : Mr.P.Kandaswamy for R2 R1-Exparte.
J U D G M E N T
This Civil Miscellaneous Appeal is filed by the appellant/Petitioner, challenging the judgment and decree dated 07.10.2016 passed in MACT.O.P.No.3049 of 2012 on the file of Motor Accidents Claims Tribunal, IV Court of Small Causes, Chennai.
2. For the sake of convenience, the parties are referred to as per their litigative status before the Tribunal. It is a case of injury. The case of the petitioner is that on 26.05.2012, at 23.00 hours, while the petitioner was proceeding in a Motor cycle bearing Reg.No.TN-05-X-7231, in E.H.Road, Dr.Ambedkar College Signal Junction, Vyasarpadi, Chennai, a Lorry bearing Reg.No.AP-04-X-3999 came in the same direction at high speed, dashed the motor cycle from behind, in which the petitioner was proceeding, resulting in the petitioner being thrown out and in the process suffered head injury and multiple internal and external injuries all over the body. The further case of the petitioner is that the accident occurred only due to rash and
negligent driving by the driver of the 1st respondent lorry. At that time, the petitioner was aged 30 years and by working in a private concern, as Bill Collector, was earning Rs.9000/-. Due to the injury suffered, he is unable to attend to his normal work, as such, his future prospects is affected. The Petitioner sought for Rs.15,00,000/- as compensation from the respondents.
3. On the other hand, opposing the claim of the Petitioner, by filing counter, the 2nd respondent/Insurance company contends that the accident occurred only due to negligence of the petitioner, who was driving his two wheeler and not due to rash driving by the 1st respondent Lorry driver. The 1st respondent Lorry was not insured with the 2nd respondent at the time of the accident. The 2nd respondent is no way liable to pay any compensation. The claim of the petitioner is exorbitant. Thus, the 2nd respondent sought for dismissal of the petition.
4. Before the Tribunal, the petitioner examined himself as P.W.1 and two others as P.W.2 and P.W.3, produced documents Ex.P.1 to Ex.P.14 to prove his claim. The respondent examined R.W.1 and produced Ex.R.1 to contradict the petitioner's claim. The Tribunal, on the basis of available evidence, found that the negligence on the part of the 1st respondent vehicle driver alone is the cause for the accident, passed an award directing the respondent to pay a sum of Rs.2,29,000/- to the petitioner. Being not satisfied with the quantum of the award passed by the Tribunal, the petitioner has come forward with the present appeal.
5. The learned counsel for the appellant/Petitioner contends that the Tribunal has wrongly concluded that the injury suffered by the petitioner is simple and failed to appreciate the disability certificate and other medical records produced by the petitioner. Even though the doctor fixed the disability at 60%, the Tribunal without any basis reduced the same to 30% and awarded very meagre amount. Thus, the petitioner sought for enhancement of the award amount by entertaining the appeal.
6. On the other hand, the 2nd respondent/Insurance company contends that the nature of injury suffered by the petitioner is not grievous in nature and there is no evidence to show that he suffered functional disability and the award passed by the Tribunal is on the higher side and there is no ground made out to interfere with the award. Thus, the 2nd respondent sought for dismissal of the appeal.
7. The petitioner, who deposed as P.W.1 clearly stated that on 26.05.2012, while he was proceeding in a two wheeler from west to east, the 1st respondent lorry bearing Reg.No.AP-04-X3999 came at high speed in the same direction, dashed in the two
wheeler of the petitioner from behind causing him grievous injuries. The Police also registered Ex.P.1-FIR against the driver of the 1st respondent Lorry only. The contents of Ex.P.1-FIR corroborated the version of P.W.1 evidence. The Petitioner also produced driving licence copy as Ex.P.8. Even though the claim of the petitioner was denied by the 2nd respondent/Insurance company, it is clear from the eyewitness account given by P.W.1 and contents of Ex.P.1-FIR that the accident occurred due to rash and negligent driving of the 1st respondent vehicle driver only. There is no contra evidence let in by the 2nd respondent to disprove the claim of the petitioner. As such, on the basis of P.W.1 evidence and Ex.P.1FIR, the Tribunal is justified in fixing the negligence on the part of the 1st respondent Lorry driver as the cause for the accident.
8. The petitioner who deposed as P.W.1 stated that he suffered injuries over left elbow joint, posterior aspect causing exposure of muscles and loss of skin muscle. According to him, the sensation in the right forearm and muscle power is reduced and movement is also restricted. The disability is permanent and there is no scope for any improvement in the right upper limb. The right hand is deformed and claw in nature, which will affect his earning power. The petitioner also stated that after the accident, he suffered loss of muscle power causing less active movement of the right hand fingers and the same is corroborated by Ex.P.2 copy of the Accident Register. The petitioner underwent treatment as inpatient in Government Stanley Medical College Hospital, Chennai, from 26.05.2012 to 31.05.
2012 and again as inpatient in Right Hospital, Chennai, from 01.11.2012 to 05.11.2012 as evidenced by Ex.P.3 and Ex.P.4-Discharge summary. The petitioner, in order to prove that the disability suffered by him is permanent in nature, examined P.W.2/doctor who assessed disability. According to P.W.2 doctor, on physical examination, as well as by analysing Ex.P.9 to Ex.P.11 concluded that the injury suffered by the petitioner is partial permanent disability in nature and the disability suffered is 60%. Thus, he issued disability certificate, which is marked as Ex.P.10.
9. Disputing the above said assessment of disability, the 2nd respondent/Insurance company contended that the assessment in the disability certificate given by P.W.2, is not supported by calculation or working sheet. It is also pointed out that in Ex.P.3-Discharge summary, the injury stated therein is simple and right elbow was normal. Thus, the 2nd respondent/Insurance company contended that the Tribunal has wrongly fixed the disability at 30% without taking into account the fact that the injuries suffered by the petitioner are simple in nature.
10. However, it is clear from the evidence of P.W.2 doctor and also Ex.P.10-Disability certificate issued by the doctor that the petitioner has suffered grievous injuries causing him partial permanent disability.
The doctor assessed the disability at 60%. Considering the nature of injury and the fact that the petitioner is having less sensation and reduced muscle power in right forearm, this court is of the view that the Tribunal is not right in reducing the disability fixed by the doctor at 60% to 30% . The learned counsel for the Petitioner, in this connection, relied on the decision of this Court reported in 2017 (1) TNMAC 251, [P.Elangovan Vs. S.Murali and others] and 2013(2)TN MAC 669, [M.Thirunavukkarasu Vs. P.T.S.M.Dhasthagir and 2.National Insurance Company Ltd.,], and pointed out that in the absence of any contra evidence, the disability as fixed by the doctor should be accepted. The learned counsel for the Petitioner further contended that due to injury suffered, the petitioner is unable to attend to his normal activities and suffered functional disability, which will affect him, throughout his career. Thus, the Petitioner sought for applying the multiplier method to arrive at the compensation for loss of earning power instead of percentage method.
11. Admittedly, the petitioner was employed as Bill Collector in a Private concern. There is no evidence to show that he suffered any loss in salary or any de-promotion in his company after the accident. Further, the petitioner has not proved that he suffered any functional disability. As such, there is no need to apply multiplier method. In such circumstances, following the above said discussion, this court is inclined to grant the compensation towards 60% disability given by the Petitioner as under:- Rs.3000/- x 60% = Rs.1,80,000/-.
Considering the fact that the petitioner is suffering from loss of sensation and reduced muscle power, it will be appropriate to award Rs.25,000/- towards loss of amenities. Further, taking into account the nature of injury suffered by the petitioner and the period of treatment undergone, it will be appropriate to award Rs.10,000/- each, towards "Extra nourishment", "Transport expenses" and "Attender charges". Nevertheless, keeping in view that the sum of Rs.50,000/- awarded under the head "Pain and suffering" is excessive, this court is inclined to modify it to Rs.25,000/-. Insofar as other heads are concerned, this court finds that the amount awarded by the Tribunal is just and proper and hence, they are confirmed. Accordingly, the modified award passed by this court is as under:-
Sl.
No.
Heads Amount awarded by the Tribunal Amount awarded by this Court 1.
Disability Rs. 90,000/- Rs.1,80,000/- 2.
Pain and suffering Rs. 25,000/- Rs. 25,000/- 3.
Extra nourishment Rs. 2,500/- Rs. 10,000/- 4.
Transport to Hospital Rs. 2,500/- Rs. 10,000/- 5.
Damages to clothes Rs. 500/- Rs. 500/- 6.
Attender charges Rs. 1,600/- Rs. 10,000/- 7.
Medical expenses Rs. 91,012/- Rs. 91,012/- 8.
Future Medical expenses Rs. 2,000/- Rs. 2,000/- 9.
Loss of income Rs. 11,400/- Rs. 11,400/-
10. Loss of amenities Rs. 2,500/- Rs. 25,000/- Total Rs.2,29,012/- Rs.3,64,912/-
12. In the result, (i) The Civil Miscellaneous Appeal is partly allowed; (ii) The appellant/Petitioner is entitled to award amount of Rs.3,64,912/- which carry interest at the rate of 7.5% per annum from the date of petition till the date of realisation; (iii) The 2nd respondent/Insurance company is directed to deposit the award amount of Rs.3,64,912/-[Rupees Three Lakhs, sixty four thousand nine hundred and twelve only] within a period of six weeks from the date of receipt of a copy of this order. On such deposit, the appellant/petitioner is permitted to withdraw the same, by filing necessary application before the Tribunal. No costs.
Sd/- Assistant Registrar(CS-V) //True Copy// Sub Assistant Registrar nvsri
To 1.The Motor Accident Claims Tribunal, IV Court of Small Causes, Chennai.
2.The Section Officer, V.R.Section, High Court, Madras (2 copies) +1cc to Mr.K.SURYANARAYANAN, Advocate, S.R.No. 28642 +1cc to Mr.P.KANDASAMY, Advocate, S.R.No. 28725 C.M.A.No.75 of 2017 SKS(CO) TR(08/05/2018)