Madras High Court

Rajaprakash vs M.Shanmugavel (Driver) Set ... on 8 April, 2022

C.M.A.No.1728 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 08.04.2022

CORAM

THE HON'BLE MR. JUSTICE C.V.KARTHIKEYAN

C.M.A.No.1728 of 2018

Rajaprakash ... Appellant
Vs.

1. M.Shanmugavel (Driver) Set exparte

2. R. Karnan

3. The New India Assurance Co. Ltd,
Rep. By its Branch Manager,
1st Floor, Maja Apartment,
149, Bharathiar Road,
Karaikal. ... Respondents

Prayer: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, to call for the records pertaining to the award
passed in MACTOP.No.53 of 2011 dated 18.01.2012 on the file of the
Motor Accident Claims Tribunal (District Judge) at Karaikal and
enhance the amount of compensation of Rs.7,78,180/- with 7.5% interest
from the date of petition dated 22.02.2011 to the extent of disallowed
amount of compensation of Rs.7,78,180/- out of the total compensation
claimed of Rs.9,50,000/- by modifying the award passed in MACTOP
No.53 of 2011 dated 18.01.2012 with costs.

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C.M.A.No.1728 of 2018

For Appellant : Mr.R.Natarajan

For Respondents : Ms.D.Helen Margaret Deepa
for Mr.K.Thirunavukarasu for R3
R2 & R2 - Exparte

JUDGMENT

The claimant in MACTOP.No.53 of 2011 on the file of the Motor

Accident Claims Tribunal at Karaikal / District Court at Karaikal is the

appellant herein.

2.He is aggrieved by the compensation granted by award dated

18.01.2012 for injuries suffered in an accident, which had occurred on

04.05.2010 at around 09.00 a.m. at Thillai Nagar, Thirunallar Road,

Karaikkal and caused by a Mahindra Van bearing registration No.PY-02-

C-0257.

3.The nature of the injuries suffered by him are as follows:

“Multiple Injury all over his body, Fracture of right leg ankle communities, Fracture of both bone of his right leg, Cervical spine injury, four teeth were broken front inciser broken, Right hand fingers injury. Its continuing effect is Physical Disability.”

4.In this connection, an FIR in Crime No.34 of 2010 under

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C.M.A.No.1728 of 2018

Sections 279 & 338 of I.P.C. had been registered by the Karaikkal

Traffic Police Station, Karaikkal. On consideration of the evidence

produced and the medical bills produced, the Tribunal had finally

granted a total compensation of Rs.1,71,820/-. The break-up is as

follows:

                                        For pain and sufferings       Rs.25,000/-
                                        For extra nourishment         Rs. 5,000/-
                                        For permanent disability      Rs.30,000/-
                                        For loss of income            Rs.22,000/-
                                        For medical expenses          Rs.86,820/-
                                        For transportation charges    Rs. 3,000/-
                                                                   --------------------
                                                                      Rs.1,71,820/-
                                                                  ----------------------

5.Expressing grievance over the quantum granted, the claimant

had filed the present appeal.

6.Heard the learned counsels.

7.The contention of the learned counsel for the appellant is that the

Tribunal had misdirected itself in determining the disability at 30%, even

though P.W.2 / Medical Professional had examined the claimant and

determined the disability at 45%. It is contended by the learned counsel

that this reduction in disability requires to be revisited by this Court and

interfered with.

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C.M.A.No.1728 of 2018

8.The learned counsel pointed out that the claimant was working

as a Security Officer in District Court at Karaikkal and had also qualified

himself by studying M.Sc., M.B.A. It was therefore, stated that there is a

possibility that he would prosper further and earn increased salary in the

future. It was also pointed out that though medical bills had been

produced, not all of them had been considered by the Tribunal and in

some of the medical bills have been rejected owing to the fact that the

name of the claimant was not given.

9.Learned counsel pointed out that all of the medical bills

produced as documents relate only to the claimant and for the treatment

of the injuries suffered by him. It was also pointed out by the learned

counsel that even after the award, there was necessity for taking

treatment and in this connection, produced several medical bills in the

form of a typed set before this Court. The learned counsel therefore,

urged that the expenses incurred towards medical treatment subsequent

to the date of the award should also be considered.

10.The learned counsel for the appellant also generally assailed the https://www.mhc.tn.gov.in/judis

C.M.A.No.1728 of 2018

quantum of compensation granted under the other conventional heads

and more particularly, also the fact that having determined the disability

at 30%, the Tribunal had taken just Rs.1,000/- per percentage and stated

that this also requires revisitation by this Court.

11.The learned counsel for the respondent however justified the

award and stated that the Tribunal had actually taken into consideration

several medical bills, for which, they were no prescriptions and for

which, the name of the claimant was also not found. It was therefore,

urged that the amounts granted towards the medical bills will have to be

re-considered by this Court by subtracting the amounts in certain medical

bills and adding amounts in certain medical bills, which have been

omitted to be considered by the Tribunal. The determination of disability

at 30% was justified by the learned counsel for the respondent, who

pointed out the cross-examination of P.W.2/Medical Professional, who

stated that if proper physiotherapy is conducted, then there was every

possibility of the disability being reduced by 10 to 15%. The learned

counsel also pointed out that the compensation granted under other heads

are just and require no interference.

12.With respect to the future medical treatment said to have been https://www.mhc.tn.gov.in/judis

C.M.A.No.1728 of 2018

undertaken by the claimant and production of medical bills, it had been

stated that producing these documents before the Appellate Court cannot

be considered, as those documents have to be proved in manner known to

law. It was also pointed out that some of the medical bills now produced

were of the year 2011 prior to the date of the award of the Trial Court

and stated that no reason has been advanced as to why they were not

produced before the Trial Court during the course of Trial.

13.I have considered the arguments put forth.

14.It is a fact that the claimant/appellant had suffered injuries,

owing to a motor accident which took place on 04.05.2010, when he was

riding his motor cycle from his village to his work place at Vanjur at

Thirunallar - Karaikkal Main Road. When he was near Thillai Nagar, a

Mahindra van bearing registration No.PY-02-C-0257, apparently driven

in a rash and negligent manner had dashed against the motor cycle of the

claimant and the claimant had suffered the injuries, which had been

extracted above. It is the contention that he had been treated by various

doctors at Vinodhagan Memorial Hospital at Thanjavur and also at

Sugam Priya Hospital at Karaikkal.

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C.M.A.No.1728 of 2018

15.During the course of trial, the claimant had examined himself as

P.W.1 and had examined as P.W.2, Dr.Saravanan who had assessed the

disability. He also marked exhibits P1 to P19. The relevant documents

would be Ex.P1, the copy of the First Information Report, Ex.P3, the

copy of the Insurance Certificate, Ex.P8 and Ex.P9 (series) which relate

to the medical bills produced by the claimant, Ex.P12, which was the

discharge summary of Vinodhagan Memorial Hospital at Thanjavur,

Exs.P14, 15, 16 & 17 which relate to the prescription of the Doctors.

The claimant had also produced his salary certificate as Ex.P11 and also

the disability certificate as Ex.P13.

16.On the side of the respondents, neither were any witnesses

examined nor were any documents produced.

17.The claimant had also produced Ex.P10 series, which was the

expenses occurred due to the traveling from his place to the Hospitals for

undertaking treatment for the injuries suffered.

18.The Tribunal during the course of discussion had taken up https://www.mhc.tn.gov.in/judis

C.M.A.No.1728 of 2018

Point No.1, which was with respect to the nature of accident which had

occurred and observed that the petitioner was driving his motor cycle on

the left hand side and that the Mahindra Van bearing registration No.PY-

02-C-0257 was driven in a rash and negligent manner and had dashed

against the motorcycle of the claimant and therefore, determined that the

negligence was on the part of the driver of the Mahindra Van. I would

affirm that particular finding.

19.The Tribunal then proceeded to determine the compensation to

be granted and whether the respondent/insurance company can be made

liable to pay the compensation. With respect to the compensation, the

Tribunal took into consideration Ex.P12, the discharge summary wherein

it was stated that the claimant had sustained multiple injuries including

fracture in both bones in the right leg and had been admitted in

Vinodhagan Memorial Hospital at Thanjavur on 04.05.2010 and had

been discharged on 26.05.2010. During this long period as an in-patient,

the prescriptions of the Doctors and the medical bills for purchase of the

medicines had been produced as documents. In some of the medical

bills, the name of the claimant was given, in some of the bills, the name

of the claimant was not given.

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C.M.A.No.1728 of 2018

20.Let me not enter into a microscopic inspection of the various

medical bills produced owing to the fact that while the claimant was an

inpatient, it is to be generally understood and accepted that whoever was

attending to him, could have gone over to the Pharmacist and purchased

the medicines. At that particular point of time, that particular individual

who had purchased the medicines would not even have imagined that the

medical bills given by the shop keeper would have to be produced before

a Court of law and would be scrutinized by a Court of law, to be admitted

as having been genuinely incurred or having been prepared to inflate the

claim. Therefore, I would take on record the medical bills as presented.

The Tribunal had granted, a sum of Rs.86,820/- towards the medical bills

and I would, affirm the same.

21.Mr.R.Natarajan, learned counsel for the appellant stated that

even subsequently the appellant had incurred expenses towards

treatment. Since the documents produced today will have to be subjected

to proof, I would give credence to the fact that subsequent expenses had

been incurred for treatment and grant an amount of Rs.15,000/- towards

the additional medical expenses which could have been incurred by the https://www.mhc.tn.gov.in/judis

C.M.A.No.1728 of 2018

appellant owing to the injuries suffered.

22.The Tribunal had taken a sum of Rs.1,000/- per percentage and

taking into consideration the fact that he had been quite substantially

qualified by studying M.Sc., M.B.A., and there was also a prospect that

he might shift his employment, and if he so does, there would be

difficulty in discharging that particular work, let me compensate that

particular fact by increasing the amount per percentage to Rs.3,000/-.

23.The disability determined is retained at 30% in view of the

evidence of P.W.2 in cross-examination that a responsibility had been

cast on the appellant to do proper physiotherapy and if he does so, the

disability would reduce. Therefore, towards the permanent disability, a

sum of Rs.3,000 X 30 = Rs.90,000/- is granted. Additionally, I would

grant a sum of Rs.5,000/- towards attender charges. Let me not interfere

with any of the other heads granted under compensation. The total

compensation granted now is as follows:-

                                                     Heads                     Amounts
                                   For Pain and Suffering                 Rs.25,000/-

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                                                                                    C.M.A.No.1728 of 2018

                                                        Heads                        Amounts
                                   For extra nourishment                        Rs.5,000/-
                                   For permanent disability(3000 X 30)          Rs.90,000/-
                                   For loss of income                           Rs.22,000/-
                                   For medical expenses                         Rs.86,820/-
                                   For transportation charges                   Rs.3,000/-
                                   For attender charges                         Rs.5,000/-
                                   For further medical expenses                 Rs.15,000/-
                                                                          Total Rs.2,51,820/-

24.The Civil Miscellaneous Appeal is allowed to that extent

enhancing the compensation which had been determined as Rs.1,71,820/-

to Rs.2,51,820/-. The Insurance company shall deposit the difference in

compensation amount i.e., Rs.80,000/-, less the amount, if any already

deposited, with interest at 7.5% from the date of filing of the petition till

the date of deposit within a period of eight weeks from the date of receipt

of a copy of this order. On such deposit, the appellant is permitted to

withdraw the same. No order as to costs. Consequently, connected

miscellaneous petition is closed.

08.04.2022

mp/kkn Index:Yes/No Speaking Order : Yes/No

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