Madras High Court

R.Appavoo vs R.Karthik on 1 April, 2021

                                                                 C.M.A.No.3041 of 2017

          IN THE HIGH COURT OF JUDICATURE AT MADRAS

                               Dated:01.04.2021

                                    Coram:

         THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN

                            C.M.A.No.3041 of 2017
R.Appavoo                                                .. Appellant

                                    /versus/

1.R.Karthik
(The first respondent remained exparte
before the Tribunal. Hence, notice may be
dispensed with)

2.The Branch Manager,
M/s National Insurance Company Limited,
Divisional Office,
No.127, Aruvi Block, First Floor,
Bharathiyar Salai,
St.Pauls Complex,
Triuchirapalli 620 001.                                  .. Respondents

Prayer:- Civil Miscellaneous Appeal has been filed under Section 173 of the
Motor Vehicles Act, 1988, against the order and decreetal order in
M.C.O.P.No.100 of 2016, dated 08.08.2017 on the file of the Motor Accident
Claims Tribunal/Chief Judicial Magistrate, Perambalur.
                  For Appellant   :Mr.S.Kamadevan
                  For Respondents :Mr.D.Baskaran for R2
                                   R1-Exparte
                                   -----

1/9
                                                                  C.M.A.No.3041 of 2017



                                JUDGMENT

(This case has been heard through Video Conferencing)

This appeal filed by the claimant seeking enhancement of compensation

awarded by the Tribunal for the injury sustained in the road accident.

2.The case of the claimant/appellant is that on 16.10.2015 at about 06.15

p.m., while he was riding his Splender two motorcycle bearing Reg.No.TN-46 E-

5320 along Perumbalur-Attur main road from east west near Koneripalayam Bye-

pass Rountana, a Eicher lorry bearing Reg.No.TN-45-BF-5793 proceeding from

west to east driven rash and negligently dashed the motorcycle and caused the

injury to him.

3.In the accident the claimant sustained fracture on anterior wall of right

frontal sinus, fracture both bones in right leg, fracture of left hand galeazzi and

fracture in left hand forearm, lacerated wound in left hand and left knee, fracture

of nasal bone, fractures in left chest 5th and 6th ribs with small pleural

effusion/hemothorax. The claimant was admitted at Government Hospital,

Perumbalur. Thereafter, he was shifted to ABC hospital, Trichy. He was treated as

C.M.A.No.3041 of 2017

in-patient between 16.10.2015 and 23.10.2015. At the time of the accident, the

claimant was 58 years old, working as Foreman in T.N.E.B., Poolambadi.

Claiming compensation of Rs.20,00,000/-, the claim petition was filed against the

owner of the Eicher lorry and its insurer.

4.The Insurance Company/2nd respondent herein has filed counter wherein

the claim was resisted on the ground that the Eicher lorry bearing Reg.No.TN-45-

BF-5793 was not insured under the insurance company and the income of the

claimant and the nature of the injury which he sustained are not the manner in

which the claimant had narrated. Infact, the claimant drove his motor cycle in a

hectic speed in the middle of the road in the Koneripalayam Bye-pass Rountana

without following the rules and met with the accident. He had no valid driving

license to ride the motorcycle. The sketch prepared by the Investigating Officer

show that the accident caused due to the negligence of the claimant. Therefore,

the claimant is not entitled for any compensation.

5.Before the Tribunal, the claimant had examined himself as PW-1. He was

submitted to Medical examination by the Board and the Board has certified that

the claimant had sustained 7.5% partial permanent disability. The disability

C.M.A.No.3041 of 2017

certificate issued by the Board marked as Ex.C1. Besides, the petitioner has

marked 20 documents to support of his case.

6.The Tribunal taking note of the salary certificate of the claimant marked

as Ex.P15 and the medical records like CT-scan, discharge certificate and X-Ray

had awarded a sum of Rs.1,58,086/- and from which, 10% has been deducted for

his contributory negligence.

7.The said award is under challenge on the ground that the Tribunal failed

to take note of the fact that the accident occurred solely due to the negligence of

the Eicher lorry driver and the case was registered against him under the First

Information Report marked as Ex.P1. Therefore, the reduction of 10% towards

contributory negligence is uncalled for and unjustified. The Tribunal failed to

consider the nature of the injury and disability caused due to the injury. The

period of treatment and medical expenses supported by bills has not been

considered by the Tribunal. Rejection of medical bills on the ground that they are

photocopy and non-mentioning of the hospital name in which he underwent the

treatment is very flimsy and therefore, the award has to be interfered.

C.M.A.No.3041 of 2017

8.The learned counsel appearing for the 2nd respondent/Insurance Company

would submit that the Tribunal after taking note of the discharge certificate given

by the Medical Board, had awarded a sum of Rs.22,500/- towards partial

permanent disability fixing Rs.3000/- per unit disability. Further, it has also

awarded a sum of Rs.95,386/- for the loss of income during the treatment period,

which is excessive and double payment, since there is no proof to show that the

claimant was not paid during the treatment period. Having employed in TNEB, he

had been paid his salary even during the medical leave and his medical expenses

were reimbursed. Therefore, learned counsel appearing for the 2nd

respondent/Insurance company submits that there is no reason to interfere with the

award of the Tribunal.

9.This Court, on considering the evidence, finds that though the First

Information Report, which is marked as Ex.P1, was registered against the lorry

driver, inspite of specific defence that the claimant has no driving license, to

disprove it, the claimant has produced his driving license and he has only

produced the driving licence of the offending lorry driver, which is marked as

Ex.B20. Therefore, for want of driving licence, the reduction of 10% as

contributory negligence is justifiable and needed. Hence, this Court finds nothing

C.M.A.No.3041 of 2017

error in deducting 10% towards contributory negligence.

10.As far as the pain and suffering is concerned, the Tribunal has awarded

Rs.10,000/- and Rs.25,200/- towards transportation, which is fair and reasonable.

So, needs no interference. The Tribunal has disbelieved the medical bills marked

as Ex.P11 and Ex.P12 on the ground that they are either photocopy or not from the

hospital from which the claimant took treatment. Furthermore, the Tribunal has

also taken note of the fact that the claimant had got the reimbursement of medical

expenses under the medical insurance coverage and therefore, rejected the bills

produced by the claimant which are marked Ex.P11 and Ex.P12. This Court take

note of the fact that the claimant in the said accident had suffered united fracture

of both bones in right leg and united fracture isolated radius left. The Board has

assessed 7.5% disability. It is true that the claimant has not produced any contra

evidence to disbelieve the presumption that the medical expenses were reimbursed

under the medical insurance policy. That is the reason why he has not produced

the original bill but has produced only photocopy. At the same time, this Court

also take note of the fact that the claimant, who was admitted in the hospital as in-

patient for the injury, had taken treatment for about 8 days and X-ray and CT scan

had taken to diagnose the nature of the injury sustained by him. Though the

C.M.A.No.3041 of 2017

claimant has claimed nearly Rs.1,20,000/- for medical expenses, which is not

properly supported by original bills, this Court is of the view that even if that

expenses had been reimbursed, he would have spent some money towards

medicine which could not be covered under reimbursement scheme. Therefore,

taking note of the nature of the injury and period of hospitalisation, this Court is

of the view that the claimant shall be paid another sum of Rs.10,000/- towards

medical expenses.

11.The modified award of this Court reads as below:-

Sl.      Head of the awards            Award passed by Award of this    Reduced/
No.                                    the Tribunal    Court            Enhanced/
                                                                        Confirmed/
                                                                        awarded

1.       Loss of income                95,386-00       95,386-00        Confirmed
         47,693x2
2.       Pain and sufferings           10,000-00       10,000-00        Confirmed
3.       Extra nourishment and         5,000-00        5,000-00         Confirmed
         attender charges
4.       Disability 3000x7.5           22,500-00       22,500-00        Confirmed
5.       Transport charges             25,200          25,200-00        Confirmed
                               Total 1,58,086-00       1,58,086-00

10% deducted for contributory negligence of the 1,42,277-00 claimant 10,000-00 Awarded Total 1,52,277-00

C.M.A.No.3041 of 2017

12.The Insurance Company/2nd respondent is directed to deposit the

enhanced award amount with interest at the rate of 7.5% p.a, from the date of

petition till the date of realisation, within a period of eight weeks, from the date of

receipt of a copy of this order. On such deposit, the claimant/appellant is

permitted to withdraw the said amount on filing appropriate application.

13.With this enhancement, this Civil Miscellaneous Appeal is partly

allowed. No order as to costs.

01.04.2021

Index:yes/no Speaking order/non speaking order ari

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