Madras High Court
The National Insurance Co.Ltd vs Venkatesh ..R1 In Cma/Cross Objector on 6 July, 2017
Bench: R.Subbiah, A.D. Jagadish Chandira
In the High Court of Judicature at Madras Dated 06.07.2017 Coram The Honourable Mr.Justice R.SUBBIAH and The Honourable Mr.Justice A.D. JAGADISH CHANDIRA C.M.A.No.76 of 2017 and Cross Objection No.22 of 2017 and C.M.P.No.683 of 2017 The National Insurance Co.Ltd., Branch Office, No.78, Thiruvenkatasamy Chetty Street, Erode-638 011. ..Appellant in CMA/R1 in Cross.Obj. ..vs.. 1.Venkatesh ..R1 in CMA/Cross Objector 2.K.P.Senthilkumar 3.Dr.S.Tamizharasi .. R2 & R3 in both CMA & Cross.Obj. Civil Miscellaneous Appeal has been filed under Section 173 of Motor Vehicles Act, 1988, and Cross Objection have been filed under Order 41 Rule 22 of CPC, as against the judgment and decree, dated 15.06.2016, made in M.C.O.P.No.350 of 2013 on the file of the Motor Accidents Claims Tribunal (Special Subordinate Judge), Erode. Appearance_ Mr.J.Chandran, for appellant in CMA and for R1 in Cross.Obj. Mr.R.Nalliyappan, for 1st respondent in CMA and for cross Objector * * * * * JUDGMENT
R. SUBBIAH, J., Challenging the quantum of compensation awarded by the Motor Accidents Claims Tribunal (Special Subordinate Judge), Erode, Tiruttani, in M.C.O.P.No.339 of 2011 by judgment and decree dated 27.01.2011, the Insurance Company has filed the present appeal.
2.Similarly, not being satisfied with the quantum of compensation awarded by the Tribunal, the claimant has filed the Cross Objection seeking enhancement of the compensation amount.
3.Since the quantum of compensation alone is challenged in this appeal, it is not necessary for this Court to go into the other aspects of the award passed by the Tribunal.
4.The case of the claimant before the Tribunal is that on 11.09.2012 at about 3.30 pm, while he was riding his motor-cycle bearing Reg.No.TN 34 H 9641, at a moderate speed on the extreme left side of Pallipalayam-Tiruchengode main road, from west to east direction, a car bearing Reg.No.TN 33 AJ 5883 came from opposite direction in a rash and negligent manner and attempted to overtake another vehicle, which was proceeding ahead; in that process, the said car came to the wrong side of the road and dashed against the motor-cycle of the petitioner, as a result of which, the petitioner fell down and sustained grievous injuries. Immediately, the claimant was taken to nearby Pallipalayam Alagiri Hospital, where first-aid was given to him. Thereafter, he was taken to Kovai Medical Centre & Hospital, Coimbatore, where he took treatment as inpatient from 11.09.2012 to 03.10.2012. On account of the accident, the claimant sustained the following injuries_
1.Bone fracture at right femur
2.C5-6, Anterior cervical discectomy spinal fusion bone graft.
3.Grievous injury on left leg
4.Right middle 1/3 shaft of femur fracture
5.Right distal radius fracture
6.Left leg food dorsum
7.Grievous injury on head
8.Laceration all over the body The claimant underwent operations and CR & 'K' wire were implanted to the claimant. Bone grafting and harvesting also done. The claimant had spent Rs.15 lakhs towards his medical expenses alone. The claimant has been taking treatment as out-patient. Further operation has to be performed, for which the claimant requires money to the tune of Rs.10 lakhs towards future medial expenses. The claimant has sustained permanent disability due to the accident. The motor-cycle of the claimant was also damaged in the accident, which worth about Rs.25,000/-. At the time of accident, the claimant was aged 35 years and he was hale and healthy. He was doing Textile Commission Agent in the name and style of Sri.Kandhan Tex, Commission Agent, Kamachiamman Kovil Street, Kandipur, Pallipalayam, from which he was earning not less than a sum of Rs.35,000/-. That apart, he was also doing real-estate brokerage business, from which he was earning not less than a sum of Rs.10,000/- and totally, he was earning not less than a sum of Rs.45,000/- per month. Hence, the claimant has initially made a claim for a sum of Rs.20 lakhs as compensation. Subsequently, the claimant has also filed an application for amendment of the claim petition for enhancement of compensation amount of Rs.50 lakhs.
5.In order to prove the claim, on the side of the claimant, the claimant examined himself as P.W.1 besides examining four other witnesses, including three Doctors, and marked 35 documents as Ex.P.1 to Ex.P.35, to speak about the nature of injuries and disability suffered by the claimant. On the side of the Insurance Company, neither the oral evidence nor the documentary evidence was adduced.
6.The Tribunal, after analysing the entire evidence, has awarded a sum of Rs.39,04,100/- as compensation. The breakup details of the compensation amount awarded by the Tribunal are as follows_
1)Loss of Income -Rs. 96,000-00
2)Transport expenses -Rs 50,000-00
3)Extranourishment - Rs. 1,00,000-00
4)Damages for clothes and Articles -Rs. 500-00
5)Medical Expenses and others -Rs.16,17,600-00
6)Pain and Sufferings and othes -Rs. 3,00,000-00 7)Disability -Rs. 3,00,000-00
8)Loss of earning power -Rs.14,40,000-00 _______________ Total Rs.39,04,100-00 _______________
7.Now, it is the main submission of the learned counsel appearing for the Insurance Company that the amount awarded by the Tribunal under different heads is on the higher side. In this regard, the learned counsel for the Insurance Company submitted that the Tribunal has fixed disability suffered by the claimant at 100% and awarded a sum of Rs.14,40,000/- under the head of Loss of Earning Power. That apart, the Tribunal has awarded a sum of Rs.3 lakhs each under the heads of Pain & Sufferings and Disability. According to the learned counsel for the Insurance Company, the amounts awarded under the above said heads are liable to be reduced by way of recalculation.
8.Per contra, the learned counsel for the claimant submitted that the compensation amount awarded by the Tribunal under various heads cannot be said to be adequate compensation, hence, the same needs proper enhancement.
9.Keeping in mind the submissions made on either side, We have carefully gone through the entire materials available on record. A perusal of the materials on record would show that the claimant/victim has sustained multiple injuries all over the Body. In order to prove the nature of injuries and the disability suffered by the claimant, three doctors were examined on the side of the claimant as P.W.2, 3 & 5. As per the Wound Certificate-Ex.P.6, the claimant has sustained the following injuries_
1)Cervical spine injury with quadreparesis, CT/MRI-Gr-I anterolisthesis of C5 over C6. Fracture postero inferior aspect of C5 vertebral body. Traumatic disc protrusion at C5, C6 level contusion with cord edema C3 to C7.
2)Head injury - CT showed diffuse traumatic subarachnoid haemorrhage (L) cerebral hemisphere tiny haemorrhagic foci in mid brain.
3)Swelling, deformity (R) thigh, X-rays - Inter trachgantric fracture (R) femur with fracture midshaft of (R) femur. (4)Swelling deformity (R) wrist. X-rays - Fracture distral Radius (R). (5)Lacerated wound 6 x 3 cm (L) leg. Abrasions both feet. (6)Multiple lacerated wounds (R) arm / (R) elbow / forearm.
Further, during the course of treatment, the claimant has also undergone surgical procedures, with regard to C5-C6 Anterior Cervical discectomy spinal fusion using bone graft iliac bone graft harvest - 13.09.2012 recon nailing for right femur + CR and K-wire fixation right distal radious on 20.09.2012 multiple debridement / suturing - left leg and foot.
10.Therefore, the nature of injuries sustained by the claimant and the evidence of the Doctors would show that the claimant has become totally immobilized and he cannot carry on his normal avocation. Hence, considering all these aspects, the Tribunal has correctly fixed the disability at 100%.
11.Further, evidence on record would show that the claimant cannot do his personal works without the assistance of a third persons. Considering all these aspects as well as the disability certificate marked as Ex.P.23, the Tribunal has awarded a sum of Rs.3,000/- per a percentage of disability and awarded a sum of Rs.3 lakhs.
12.With regard to the loss of earning power, the Tribunal by fixing a sum of Rs.8,000/- as monthly income of the claimant, by applying multiplier of 15 based on the age of the claimant, who was 36 years at the time of accident, has awarded a sum of Rs.14,40,000/-. Considering the nature of the injuries and the disability suffered by the claimant, the compensation amount awarded by the Tribunal under the above said heads cannot be said to be excessive.
13.Similarly, considering the long duration of treatment underwent by the claimant, a sum of Rs.50,000/- for transportation expenses and a sum of Rs.1,00,000/- for extranourishment, also cannot be said to be on the higher side. A sum of Rs.16,17,600/- awarded by the Tribunal towards medical expenses is supported by the documentary evidences like Ex.P.6, Ex.P.11 -14 & Ex.P.21 to 25. The said amount also cannot be said to be excessive.
14.Hence, looking at any angle, considering the nature of the injuries and the disability suffered by the claimant, the total compensation amount of Rs.39,04,100/- cannot be said to be on the higher side. Hence, the contention of the learned counsel for the Insurance Company that the compensation amount awarded by the Tribunal is on the higher side, cannot be accepted.
15.Similarly, the claimant/cross objector has also not made out any case for enhancement of the compensation amount, since the Tribunal on proper appreciation of evidence has correctly passed the award. Hence, We are not inclined to interfere with the award passed by the Tribunal.
16.Accordingly, both the appeal and Cross Objection are dismissed. The Insurance Company is directed to deposit the entire compensation amount as awarded by the Tribunal, if not deposited so far, before the Tribunal within a period of six weeks from the date of receipt of a copy of this order. On such deposit, the claimant is permitted to withdraw the same by making necessary application before the Tribunal.
Consequently, connected Miscellaneous Petition is closed. No costs.
(R.P.S.J.,) (A.D.J.C.J.,) 06-07-2017 Internet : Yes / No Index : Yes / No ssv Copy to The Motor Accidents Claims Tribunal, (Special Subordinate Judge), Erode. R.SUBBIAH, J., AND A.D. JAGADISH CHANDIRA,J., C.M.A.No.76 of 2017 and Cross Objection No.22 of 2017 and C.M.P.No.683 of 2017 06-07-2017