Madras High Court

Bala @ Balamurugan vs Palani on 30 March, 2022

                                                                                CMA No.1931 of 2018

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                             Reserved on : 25.03.2022

                                               DATED:     30.03.2022

                                                    CORAM:

                                  THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

                                              CMA No. 1931 of 2018


                     Bala @ Balamurugan                                ... Petitioner/Appellant

                                                        Vs

                     1. Palani

                     2. Reliance General Insurance Co. Ltd.,
                        “RAI's Tower”,
                        Plot No. 2054, 2nd Avenue
                        2nd Floor,
                        (next to Senthil Nursing Home)
                        Anna Nagar,
                        Chennai – 600 040.                  ... Respondents/Respondents

                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of the M.V.
                     Act, 1988 against the Judgment and Decree dated 18.02.2015 and made in
                     M.A.C.T.O.P.No. 95 of 2011 on the file of the Motor Accident Claims
                     Tribunal and in the Court of IV Additional District Judge, Thiruvallur,
                     Ponneri.


                     1/14


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                                                                                  CMA No.1931 of 2018




                                           For Appellant      : Mr.F.Terry Chella Raja

                                           For 1st Respondent : Exparte

                                           For 2nd Respondent: Mr. S. Arun Kumar

                                                    JUDGMENT

The claimant in M.C.O.P.No. 95 of 2011 on the file of the IV

Additional District Court, Ponneri, Motor Accident Claims Tribunal, is the

appellant herein.

2. Necessity to file the claim petition before the Tribunal arose

since, the appellant Bala @ Balamurugan, who was aged 19 years and

working as Cleaner in a Lorry bearing Registration No. TN – 22-C-3445

had suffered injuries on 25.12.2010 at around 5.00 a.m., when he was giving

reverse signal to the lorry bearing Registration No. TN-59-M-3971 at

Lakshmanan Salai, Kandhanchavadi, Chennai. At that time, the lorry driver

is said to have reversed the vehicle in over speed and had dashed against the

claimant. The claimant sustained injuries, which were as follows:-

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“1. Traumatic disphragmatic hernia; 2. Left phemothoram with

fracture rib 1 to 3.3. Pelvi fracture. 4. Both left and right flack eye blood

clot n both ears both nasal certies. 5. Abrasion over anterior abdominal

wall 6. ICB insertion on leftside done. 7. Inclusion upper midline

lapaertion incision and multiple abrasion and confusion injuries all over

the body grevious in nature.”

3. The first respondent was the owner of the lorry bearing

Registration No. TN-59-M-3971 and the respondent was the insurer of the

said lorry. The claimant claimed that the accident occurred only due to the

rash and negligent manner, in which, the driver of the lorry reversed the

lorry and dashed against him.

4. A counter was filed by the second respondent denying the

averments made. It was stated that the injuries suffered, did not warranted

the compensation sought. It was also stated that the respondent should be

provided with leave to defend, the claim on all grounds as are available

under Section 170 of the Motor Vehicles Act, 1988.

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5. During the course of trial, on the side of the claimant, two

witnesses were examined. PW-2 was the Doctor, who provided the disability

certificate. The claimant also marked Exs. P-1 to P-11. Ex.P-2 is the copy

of the Accident Register, Ex.P-3 is the discharge summary, Ex.P-4 is the

O.P. Chit, Ex.P-7 was the C.T. Scan, Exs.P-8 & P-11 were the X-rays and

Ex.P-10 was disability certificate.

6. The Tribunal first took up for consideration the issue of

negligence. It was found that the claimant, as a Cleaner of a Lorry was

giving directions to the driver of the Lorry while he, the driver, took the

vehicle in reverse. The driver had reversed at high speed and had dashed

against the petitioner, who sustained injuries. It was therefore held that the

accident occurred only due to the negligence of the driver of the Lorry. It

was also stated that owing to the fact that the Lorry was insured with the

second respondent, the second respondent should be called upon to pay the

compensation if ordered to the petitioner.

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7. The Tribunal then took up the issue of compensation to be

granted. In this connection, it was noted that the claimant was aged about

19 years old. He was working as a Cleaner and earned daily wages of

Rs.200/- per day. The Doctor, who examined him was examined as PW-2.

He gave a certificate that the claimant had suffered 90% permanent

disability since he had sustained injuries over the chest region and over the

cheek. He was not able to walk or sit properly. He had disability in the left

eye. The disability certificate and the X-rays were marked as Exs. P-10 and

P-11.

8. The Tribunal however determined the disability at 80%. The

Tribunal determined that grant of Rs.2,000/- per percentage would meet the

ends of justice. Accordingly, the Tribunal granted compensation of

Rs.1,60,000/- ( 2000 x 80) towards 80% disability. The Tribunal also

granted compensation on other heads, which were as follows:-







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                                                                                    CMA No.1931 of 2018

                                  (i) Loss of income                : Rs.30,000/-

(ii) Loss of pain and suffering : Rs.50,000/-

                                  (iii) Extra nourishment           : Rs.15,000/-

                                  (iv) Transport Charges            : Rs.10,000/-

9. The total compensation granted by the Tribunal was

Rs.2,65,000/-.

Questioning that particular Judgment, the claimant had filed the

present Civil Miscellaneous Appeal.

10. Heard arguments advanced by Mr. F.Terry Chella Raja,

learned counsel for the appellant and Mr. S. Arun Kumar, learned counsel

for the second respondent / Insurance Company.

11. Mr. F.Terry Chella Raja, learned counsel for the appellant

took the Court through Ex.P-3 discharge summary and pointed out the

injuries suffered by the appellant and stated that he had suffered fracture in

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the chest and more particularly in the ribs and pointed out the discomfort of

the appellant in view of such injuries. The learned counsel therefore stated

that the appellant should have been considered to suffer 90% disability,

drawn the attention of this Court to the evidence of PW-2 in this regard and

stated that more than sufficient evidence had been adduced before the Court

to sh ow that the appellant had actually suffered serious injuries, and

suffered disability at 90%.

12. Mr.S.Arun Kumar, learned counsel appearing for the second

respondent however disputed these contentions. It was the contention of the

learned counsel that Ex.P-3 itself cannot be believed because it was a note

book in which entries have been made and the learned counsel stated that it

was not at all a discharge summary relating to the petitioner. The learned

counsel also stated that the X-ray conveyed nothing since there were no

reports accompanying the X-rays. The learned counsel also stated that the

accident had occurred in the year 2010 and therefore stated that the

determination of Rs.2,000/- per percentage of disability was reasonable and

the learned counsel stated that in view of these facts, interference of this

Court with the compensation granted is not required.

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13. I have carefully considered the arguments advanced.

14. The disability certificate Ex.P-10 had been issued by PW-2.

The records available with the Court show that Ex.P-2 is the accident

15. Mr. S.Arun Kumar, learned counsel had questioned the

genuinity of Ex.P-3 document. But I would rather, take into consideration

the fact that Ex.P-3 had passed the tests of admissibility and relevancy

during the course of trial and had been taken on file by the Tribunal. Its

admissibility should have been questioned during the course of trial. It is

not improbable that records in a Government hospital would have been

maintained in a note book and the note book would be handed over to the

patient when he was discharged.

16. The nature of injuries had been extracted above and a perusal

of the same shows that the injuries a place where indicated there had been a

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blood clots in both the ears and in the naval cavities and there were also

injuries with fracture in the chest region and in the ribs. The Doctor had

determined disability as 90% disability.

17. In the course of the order, the Tribunal had determined that

the disability would 80%. The age of the appellant, at the time of the

accident, was aged about 19 years. Naturally with advancement of age, the

possibility of him overcoming the injuries which he had suffered is high.

There has been no materials presented before this Court regarding the actual

discomforts which the appellant as on date suffers.

18. In the discharge certificate, it had been stated that a review

would be required after two weeks and with respect to other aspects only if

required. He was advised bed rest for one month. The nature of the

injuries, affect not only the breathing of the individual and if the rib bone

had been broken as stated there would also be difficulties in digestion owing

to the fact that the abdominal area would have been injured due to the

accident. PW-2 had assessed the disability at 90%. The Tribunal had

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however taken into account 80%. The appellant has not come forward to

produce documents or any materials to show the suffering he had to undergo

owing to the accident over the past 10 years.

19. In the absence of the such materials, which could have been

produced as additional documents even before this Court, it would not be

proper on my part to interfere with a finding of fact that the disability can be

determined at 80%.

20. The Tribunal had determined the disability at 80%. It must be

kept in mind that the Tribunal had an opportunity of viewing the claimant in

person when he tendered evidence. In his chief examination, he had only

stated about his avocation, the injuries which he suffered owing to the

accident on 25.12.2010, the treatment which he took and was undergoing

and the compensation that he sought. He stated that at the time of filing, the

proof affidavit in the year 2014, he was not able to go to any work. He

stated that he was taking treatment as out patient. During his cross

examination, he stated that he took treatment as an inpatient for one week in

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Government General Hospital. He also stated that the bones in his hip had

been broken.

21. To substantiate the disability, if the records produced before

the trial Court are examined, X-rays had been produced and CT Scan had

been produced but the accompanying reports had not been produced

indicating the nature of the fractures as found in the X-rays and the result of

the CT Scan. Merely placing on record, the X-rays and the photographs of

the CT Scan, cannot advance the case of the petitioner. For reasons best

known, the accompanying reports have not been filed. In view of these

facts, I hold it would be highly impossible on the part of this Court to

interfere with the order of the Tribunal on the issue of disability. In the

order, the Tribunal had also granted Rs.2,000/- per disability. I would rather

not enter into any further discussion on that aspect and affirm that finding.

22. The Tribunal had also granted a sum of Rs.10,000/- towards

transport charges, Rs.15,000/- towards extra nourishment, Rs.50,000/-

towards pain and suffering and Rs.30,000/- towards loss of income. In view

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of the statement during the evidence that the claimant was not able to do any

work even in the year 2014, I would increase the loss of income from

Rs.30,000/- to Rs.50,000/-. Since the claimant had been in hospital, for

considerable period of time and also had necessity to revisit the hospital and

had stated in evidence that he is taking treatment even till date as an out

patient, I would grant compensation under the attender charges to a sum of

Rs.5,000/-. The other heads cannot be interfered with since they have been

properly addressed by the Tribunal.

23. In view of the same, the compensation now granted is as

follows:-

                                  (i) Loss of income                :
                                                              Rs.50,000/-
                                  (ii) Loss of pain and suffering   :
                                                              Rs. 50,000/-
                                  (iii) Extra nourishment           :
                                                              Rs. 15,000/-
                                  (iv) Transport Charges            :
                                                              Rs. 10,000/-
                                  (v) Attended charges              :
                                                              Rs. 5,000/-
                                  (vi) Disability 80%               :
                                                              Rs.1,60,000/-
                                                              ----------------
                                                              Rs.2,90,000/-
                                                              -----------------

This would mean that there has been an enhancement of

Rs.25,000/- to the compensation already granted. The total compensation is

at Rs.2,90,000/-.

24. In fine, the Appeal is allowed to the above extent. No costs.

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The award is modified. The compensation award is enhanced to

Rs.25,000/-.

25. The Insurance Company is directed to deposit the enhanced

amount less the amount already deposited, if any, with interest at the rate of

7.5% per annum from the date of petition till the date of realisation within a

period of six weeks from the date of receipt of a copy of this order. On such

deposit, the appellant/claimant is permitted to withdraw the award amount,