Madras High Court
Sivakumar vs R.Mohan Ganesh on 1 July, 2021
C.M.A.No.2880 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.07.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
C.M.A.No.2880 of 2015
Sivakumar ... Appellant
Vs
1.R.Mohan Ganesh
(Since R1 remained exparte before the Tribunal his presence may be
dispensed with).
2.HDFC ERGO General Insurance Co. Ltd.,
New No.528, Old No.559,
2nd Floor, Anna Salai,
Teynampet, Chennai – 600 018. ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act against the Judgment and Decree dated 16.07.2015 and made
in MACTOP.No.2847 of 2010 on the file of the Motor Accident Claims
Tribunal and Special Sub Court No.II to deal with MCOP cases, Chennai.
For Appellant : Ms.A.Subadra
for Ms.M.Malar
For Respondent 2 : Mr.J.Michael Visuvasam
R1 - Exparte
1/12
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C.M.A.No.2880 of 2015
JUDGMENT
This Appeal has been filed by the claimant seeking enhancement of
compensation under the impugned award dated 16.07.2015 passed by the
Motor Accident Claims Tribunal (Special Sub Ordinate Court-II, Chennai)
in MCOP.No.2847 of 2010.
2. Heard Ms.A.Subadra, learned counsel representing Ms.M.Malar,
learned counsel for the Appellant and Mr.J.Michael Visuvasam, learned
counsel for the second respondent. The first respondent has remained
exparte both before the Tribunal as well as this Court.
3. The Appellant/claimant unsatisfied with the quantum of
compensation awarded by the Tribunal has preferred this Appeal seeking
enhancement of compensation. The details of the compensation awarded by
the Tribunal to the Appellant/claimant are as follows:
Heads Award Amount
(Rs.)
For 30% partial and 90,000/-
permanent disability at the
rate of Rs.3,000/- per
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C.M.A.No.2880 of 2015
Heads Award Amount
(Rs.)
percent
Pain and Suffering 50,000/-
Transportation charges 6.000/-
Extra nourishment 3,000/-
Cost of Attender 2,000/-
Loss of income for 3 months 20,000/-
Loss of future prospects 50,000/-
Loss of Amenities 50,000/-
Medical Expenditure 4,000/-
Total 2,75,000/-
4. According to the Appellant, as seen from the claim petition, he
sustained head injury, fracture in his right shoulder, dislocation of his left
wrist, dislocation in his left knee, cut injury in left side hip and injuries all
over the body. He has also pleaded in his claim petition that he took first aid
treatment in the Government Hospital Villupuram from 22.12.2009 to
24.12.2009 and also took treatment at Puthur bone setting hospital and that,
he has been taking treatment till the date of the claim petition. He has also
pleaded that due to the injury sustained by him, he has been unable to do his
normal work as before. The Appellant/claimant claims that he was an
agricultural coolie and aged 32 years at the time of the accident and was
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C.M.A.No.2880 of 2015
earning Rs.500 per day. In the claim petition, he has sought for a
compensation of Rs.6,00,000/- from the respondents. The second
respondent insurance company has also filed a counter before the Tribunal
wherein they have disputed the contention of the Appellant/claimant. They
have disputed the age, occupation and income of the Appellant/claimant.
They have also disputed the nature of injuries alleged to have been
sustained by the Appellant/claimant and the period of hospitalisation. They
have also pleaded that the compensation claimed by the Appellant/claimant
is inflated and excessive.
5. Before the Tribunal, the Appellant/claimant filed five documents
which were marked as Ex.P1 to Ex.P5 namely Ex.P1-Attested xerox copy of
FIR, Ex.P2 – O.P. chit issued by the Government Hospital, Villupuram,
Ex.P3 – Prescriptions with a receipt, Ex.P4 - Disability certificate, Ex.P5 –
X-Ray and two witnesses were examined namely the Appellant/claimant
himself as PW1 and the Doctor who is alleged to have been examined the
Appellant as PW2. On the side of the respondent Insurance company neither
any document was filed nor any witness examined, before the Tribunal.
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C.M.A.No.2880 of 2015
6. As seen from the evidence placed on record by the
Appellant/claimant, it is not in dispute that the Appellant/claimant was
hospitalised only for a period of two days from 22.12.2009 to 24.12.2009.
As seen from the O.P.chit issued by the Government Hospital, Villupuram,
which was marked as Ex.P2 before the Tribunal, the Appellant/claimant did
not undergo any surgery as a result of the injuries sustained by him. The
genuineness of the O.P.chit issued by the Government Hospital, Villupuram
which has been marked as Ex.P2 has been disputed by the second
respondent insurance company before the Tribunal, as seen from the cross
examination of PW1 by the insurance company.
7. This court has also perused and examined the O.P.chit and finds
that it is a small piece of paper where the details of the alleged injuries
sustained by the Appellant/claimant has been handwritten. There is also no
signature found in the O.P.chit. No date is also mentioned in the O.P.chit,
though the date of admission and the date of discharge of the patient has
been mentioned. The signature of the medical officer who has issued the
O.P.chit is also not found and the name of the Doctor who issued the
O.P.chit is also not mentioned. Under the normal circumstances, a patient
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C.M.A.No.2880 of 2015
who has been admitted in the hospital and discharged thereafter, there
would have been a discharge summary issued by the hospital. In the case on
hand, admittedly, no discharge summary has been filed by the
Appellant/claimant before the Tribunal. The person who has issued the
O.P.chit which has been marked as Ex.P2 has not been examined as a
witness before the Tribunal. The piece of paper which has the seal of
Government Hospital, Villupuram which the Appellant/claimant has
produced claiming the same to be a O.P.chit issued by the Hospital is
unbelievable to this Court.
8. The Doctor who assessed the disability of the Appellant/claimant
in his disability certificate issued to the Appellant/claimant which has been
marked as Ex.P4 before the Tribunal, it is observed as follows:
(a) 25% disability for headache, giddiness, tremors on left hand and
leg, memory deficit and cannot carry head loads,
(b) 20% for the malunited fracture of right scapula fibrosis muscles,
abduction 80 degree, IRER 50 degree limited and difficulty to work and
carry weight with right hand.
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C.M.A.No.2880 of 2015
(c) 50% for the left wrist fibrosis, DEPF 50 degree limited and
difficulty to carry weight,
(d) 25% for left knee fibrosis avulsion ACL treated, that flexion 80
degree and
(e) Totally the Doctor has assessed the disability of the
Appellant/claimant at 75% partial and permanent disability.
9. The Tribunal under the impugned award has taken note of the fact
that the Appellant/claimant has been treated only conservatively and also
has taken note of the fact that the Appellant/claimant has not produced the
discharge summary or wound certificate to prove his further treatment and
only thereafter has fixed the disability at 30%. The Tribunal has also taken
note of the fact that the Appellant/claimant has produced only a set of
prescriptions along with a certificate issued by a Siddha Doctor in respect of
his further treatment. The Tribunal has also taken note of the fact that even
as per the Appellant/claimant's own statement, he has suffered fracture of
scapula bone and dislocation of left wrist and all other injuries sustained by
him are only in the nature of simple injuries. This Court is of the considered
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C.M.A.No.2880 of 2015
view that since the Appellant/claimant has taken only conservative
treatment and has also not produced the discharge summary issued by the
Hospital and has also not undergone any surgery and hence, the disability
fixed by the Tribunal at 30% is a correct assessment.
10. The Appellant/claimant has sought for enhancement of
compensation on the following grounds namely (a) Despite the Doctor
having assessed the disability of the Appellant/claimant at 75%, the
Tribunal has erroneously reduced the disability to 30%, (b) the disability
compensation awarded by the Tribunal is too low and (c) The
compensation awarded by the Tribunal under the heads of transportation,
extra nourishment, attender charges and medical expenses is low.
11. The Tribunal has awarded disability compensation of Rs.90,000/-
calculated at Rs.3,000/- per percentage of disability for 30% disability. The
accident happened in the year 2009. Since the disability assessed by the
Tribunal is a correct assessment as observed earlier, the disability
compensation awarded by the Tribunal at Rs.90,000/- calculated at
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C.M.A.No.2880 of 2015
Rs.3,000/- per percentage of disability is also a correct assessment. With
regard to the compensation awarded by the Tribunal towards pain and
suffering at Rs.50,000/-, Transportation charges at Rs.6,000/-, Extra
nourishment at Rs.3,000/-, cost of attender at Rs.2,000/-, Loss of income for
3 months at Rs.20,000/-, Loss of future prospects at Rs.50,000/-, Loss of
amenities at Rs.50,000/- and medical expenditure at Rs.4,000/- though may
be on the higher side, this Court is not inclined to interfere with the same in
view of the fact that no appeal has been filed by the second respondent
insurance company challenging the quantum of compensation fixed by the
Tribunal. For example, the Tribunal has awarded a sum of Rs.50,000/- as
compensation towards loss of future prospects, though admittedly the
Appellant/claimant has not underwent any surgery and was admitted in the
hospital only for a period of two days.
12. For the foregoing reasons, there is no merit in this appeal.
Accordingly, this civil miscellaneous appeal is dismissed. No costs. The
second respondent Insurance company is directed to deposit the
compensation awarded by the Tribunal, after deducting the amount already
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C.M.A.No.2880 of 2015
deposited if any, together with interest at the rate of 7.5% per annum from
the date of claim till the date of deposit and costs, to the credit of
MCOP.No.2847 of 2010 within a period of four weeks from the date of
receipt of a copy of this Judgment. On such deposit being made, the
Tribunal shall transfer the amount lying to the credit of MCOP.No.2847 of
2010 to the bank account of the Appellant/claimant through RTGS within a
period of one week thereafter. No costs.
01.07.2021
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Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
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C.M.A.No.2880 of 2015
To
1. The Special Sub Court No.II to deal with MCOP cases, Chennai
2.The Section Officer
V.R.Section, High Court of Madras.
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C.M.A.No.2880 of 2015
ABDUL QUDDHOSE, J.
nl
C.M.A.No.2880 of 2015
01.07.2021.
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