Madras High Court
U.Michael Rua vs A.Jaggir Hussain on 26 July, 2021
CMA.No.1376 of 2016
In the High Court of Judicature at Madras
Dated : 26.7.2021
Coram
The Honourable Mr.Justice ABDUL QUDDHOSE
Civil Miscellaneous Appeal No.1376 of 2016
U.Michael Rua ...Appellant
Vs
1.A.Jaggir Hussain
2.Bajaj Allianz General Insurance
Company Ltd., Chennai-41. ...Respondents
APPEAL under Section 173 of the Motor Vehicles Act, 1988
against the fair and decretal order dated 20.4.2015 in MCOP.No.506 of
2011 on the file of the Motor Accidents Claims Tribunal (V Judge, Small
Causes Court), Chennai.
For Appellant : Mr.F.Terry Chella Raja
For Respondent-2 : Mr.R.V.Sivaraj
Respondent-1 : served and no appearance
JUDGMENT
I have heard the learned counsel for the appellant and the
learned counsel appearing for the second respondent.
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CMA.No.1376 of 2016
2. This appeal has been filed by the appellant herein – claimant
seeking enhancement of compensation under the impugned award
dated 20.4.2015 passed in MCOP.No.506 of 2011 on the file of the
Motor Accidents Claims Tribunal (V Judge, Small Causes Court),
Chennai (hereinafter called the Tribunal).
3. The appellant herein – claimant, unsatisfied with the quantum
of compensation awarded by the Tribunal, has preferred this appeal
seeking enhancement.
4. The details of compensation awarded to the appellant herein -
claimant under the impugned award are as follows :
“a. Transportation : Rs. 12,500/-
b. Nourishing food and
miscellaneous expenditure : Rs. 15,000/-
c. Loss of income : Rs. 52,104/-
d. Medical expenses : Rs. 53,400/-
e. Attender charges : Rs. 10,000/-
f. Disability : Rs.1,50,000/-
g. Damages for pain, suffering
and trauma : Rs. 30,000/-
f. Loss of amenities : Rs. 25,000/-
_________________
Total :
Rs.3,48,004/-”
_________________
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CMA.No.1376 of 2016
5. Before the Tribunal, the appellant herein – claimant filed 24
documents, which were marked as Ex.P1 to Ex.P24 and two witnesses
were examined on his side including the appellant herein – claimant as
PW1 and the doctor, who examined him as PW2. On the side of the
respondents, six documents were filed, which were marked as Ex.R1 to
Ex.R6 before the Tribunal and one witness was examined as RW1
namely the official of the insurance company.
6. The appellant herein – claimant sustained the following
injuries on 07.12.2009 as a result of the accident caused by a vehicle
owned by the first respondent and insured with the second
respondent:
“a. acetabular fracture on his right side;
b. soft tissue injury in his right knee;
and
c. minor injuries all over his body.”
7. The appellant herein – claimant was hospitalized for a total
period of 46 days as seen from the discharge summaries issued by the
hospitals, which were marked as Ex.P2 to Ex.P4. The nature of injuries
sustained by the appellant herein – claimant and the period of
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CMA.No.1376 of 2016
hospitalization have not been disputed by the respondents as seen
from the evidence available on record. The doctor, who was examined
as PW2, assessed partial permanent disability of the appellant herein –
claimant at 60% as seen from the disability certificate – Ex.P23.
However, the Tribunal, under the impugned award, has, without any
basis and without assigning any reasons, reduced the disability of the
appellant herein – claimant to 50% though the doctor assessed it at
60%.
8. The learned counsel appearing for the second respondent
herein vehemently opposes the assessment of disability as fixed by the
doctor at 60% and would contend that the Tribunal rightly reduced the
disability to 50%, as, according to him, no medical records were
produced by the appellant herein – claimant before the Tribunal to
prove that he was taking medical treatment after the date of accident
till the date of filing the claim petition.
9. However, this Court has perused and examined the medical
records, which were marked as exhibits before the Tribunal. As seen
from the hospital bills for example Ex.P18, the appellant herein –
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CMA.No.1376 of 2016
claimant had taken treatment even as late as 24.11.2012 whereas the
claim petition was filed in the year 2011 itself. Apart from the medical
bills referred to supra, the other documents filed by the appellant
herein – claimant before the Tribunal also reveal that treatment was
taken by the appellant herein – claimant for the injuries sustained by
him upto the date of claim petition.
10. Hence, the contention of the learned counsel appearing for
the second respondent that no treatment was taken between 2009 and
2011 when the claim petition was filed is rejected by this Court.
Therefore, this Court is of the considered view that the Tribunal ought
not to have reduced the disability of the appellant herein – claimant to
50% without assigning any reason and without any basis despite the
fact that the doctor, who was examined as PW2, assessed the disability
of the appellant herein – claimant at 60%. Accordingly, this Court fixes
the disability of the appellant herein – claimant as fixed by the doctor
at 60% and not 50% as fixed by the Tribunal.
11. The accident occurred in the year 2009. The Tribunal rightly
awarded the disability compensation at Rs.3,000/- per percentage of
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CMA.No.1376 of 2016
disability. However, since the disability is re-fixed by this Court at 60%,
the disability compensation payable to the appellant herein – claimant
shall be Rs.1,80,000/- and not Rs.1,50,000/- as fixed by the Tribunal.
The disability compensation fixed by this Court at Rs.1,80,000/- is
calculated at Rs.3,000/- per percentage for 60% disability of the
appellant herein – claimant as assessed by this Court.
12. Admittedly, the appellant herein – claimant was hospitalized
for a period of almost 46 days. In support of the same, he filed several
medical records including discharge summaries issued by the
respective hospitals, which were marked as Ex.P2 to Ex.P4. The
Tribunal ought to have given due consideration to the nature of injuries
sustained by the appellant herein – claimant before assessing the loss
of income during the period of taking treatment. The Tribunal has
come to the conclusion that for a period of six months, the appellant
herein – claimant would have been unable to perform his regular
avocation and based on such a conclusion, awarded a compensation of
Rs.52,104/- calculated at Rs.8,684/- per month for a period of six
months. However, this Court is of the considered view that the said
assessment is an erroneous assessment.
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CMA.No.1376 of 2016
13. In the considered view of this Court, when the appellant
herein – claimant was hospitalized for a period of 46 days and has
been taking regular treatment, it was not possible for him to rejoin
work within a period of six months from the date of accident. Hence,
this Court is of the considered view that at least for a period of nine
months, the appellant herein – claimant would have been unable to do
his regular avocation. Accordingly, the compensation towards loss of
income during the period of the appellant herein – claimant taking
treatment is re-fixed by this Court at Rs.8,684/- X 9 = Rs.78,156/-
instead of Rs.52,104/- erroneously fixed by the Tribunal.
14. In so far as the other heads of compensation awarded by the
Tribunal under the impugned award, namely transportation to the tune
of Rs.12,500/-, extra nourishment to the tune of Rs.15,000/-, medical
expenses to the tune of Rs.53,400/-, attender charges to the tune of
Rs.10,000/-, damages for pain and suffering to the tune of
Rs.30,000/- and loss of amenities to the tune of Rs.25,000/- are
concerned, the same cannot be considered to be inadequate as alleged
by the appellant herein – claimant. Accordingly, the same are
confirmed by this Court.
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CMA.No.1376 of 2016
15. For the foregoing reasons, the above civil miscellaneous
appeal is allowed and the total compensation awarded by the Tribunal
is enhanced from Rs.3,48,004/- to Rs.4,04,056/- as detailed
hereunder :
“a. Transportation : Rs. 12,500/-
b. Nourishing food and
miscellaneous expenditure : Rs. 15,000/-
c. Loss of income : Rs. 78,156/-
d. Medical expenses : Rs. 53,400/-
e. Attender charges : Rs. 10,000/-
f. Disability : Rs.1,80,000/-
g. Damages for pain, suffering
and trauma : Rs. 30,000/-
f. Loss of amenities : Rs. 25,000/-
_______________
Total : Rs.4,04,056/-”
_______________
16. The second respondent - Insurance Company is directed to
deposit the entire award amount as determined by this Court in this
appeal together with interest and costs at the rate of 7.5% per annum
from the date of petition till date of realization less the amount
already deposited to the credit of the claim petition within two weeks
from the date of receipt of a copy of this judgment. The Tribunal itself,
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CMA.No.1376 of 2016
at the time of passing the award, permitted the appellant herein –
claimant to withdraw 50% of the award amount after deposit of the
award amount by the second respondent – Insurance Company. It is
made clear that on deposit of the entire award amount to the extent
indicated in this judgment, the Tribunal is directed to transfer the
balance award amount together with interest lying to the credit of the
claim petition directly to the bank account of the appellant herein -
claimant through RTGS within two weeks thereafter. No costs.
26.7.2021
To
The Motor Accidents Claims Tribunal (V Small Causes Court), Chennai.
RS
https://www.mhc.tn.gov.in/judis/
CMA.No.1376 of 2016
ABDUL QUDDHOSE,J
RS
CMA.No.1376 of 2016
26.7.2021
https://www.mhc.tn.gov.in/judis/
