Madras High Court

G.Chellapandi vs A.Sutha on 8 January, 2024

                                                                                C.M.A.(MD)No.1345 of 2012


                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                        RESERVED ON              : 14.12.2023



                                       PRONOUNCED ON : 08.01.2024

                                                    CORAM:

                           THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI

                                          C.M.A.(MD)No.1345 of 2012



                    G.Chellapandi                                                 ... Appellant


                                                           Vs.

                    1.A.Sutha

                    2.The Divisional Manager,
                      United India Insurance Company
                        Limited,
                      Goodshed Street,
                      Madurai.

                    3.The Managing Director,
                      Tamilnadu State Transport Corporation
                       Limited,
                      Byepass Road,
                      Karaikudi.                                                ... Respondents

                    (R1 set exparte before the Tribunal)




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https://www.mhc.tn.gov.in/judis
                                                                                C.M.A.(MD)No.1345 of 2012




                    PRAYER: Civil Miscellaneous Appeal filed under Order 173 of Motor
                    Vehicles Act, 1988, against the Judgment and decree dated 05.03.2012 in
                    M.C.O.P.No.821 of 2007 on the file of the Motor Accident Claim Tribunal,
                    4th Additional Sub Judge, Madurai.



                                             For Appellant    : Mr.R.Pon Karthikeyan

                                             For R-2          : Mr.Rengananda Kumar

                                             For R-3          : Mr.A.V.B.Krishnakanth



                                                        JUDGMENT

This Civil Miscellaneous Appeal has been filed by the

claimant/petitioner in M.C.O.P.No.821 of 2007 on the file of the Motor

Accident Claims Tribunal, Madurai, seeking to enhance the compensation

awarded by the Tribunal on 05.03.2012.

2. For the sake of convenience, the parties are referred herein as per

their rank before the Trial Court.

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3. The brief facts of the case in a nutshell are as follows:

(i) This is a case of injury. On 03.01.2007 at about 18.00 hours, the

claimant was travelling in the 3rd respondent bus bearing Registration No.

TN/63N 0946 which was driven by its driver in a rash and negligent

manner. When the bus was crossing near Chinnaperumalpatti at Sivagangai

to Thirupathur main road, the 1st respondent's van bearing Registration

No.TN 31 T 8363 dashed the bus. As a result of which, the petitioner

sustained multiple injuries all over the body and he also sustained fracture

in his right hand. Immediately, he was taken to Government Hospital, at

Sivagangai and was re-admitted at Government Hospital, Madurai as

inpatient from 03.01.2007 to 06.04.2007. Thereafter, he took further

treatment as out patient in Venkateswara Hospitals, Kovilpatti from

13.04.2007 to 04.08.2008. The claimant had filed M.C.O.P.No.821 of

2007, seeking compensation for the said accident and the third respondent

had filed counter before the Tribunal as against the allegations stated in the

claim petition. Three witnesses were examined and Ex.P1 to Ex.P12 were

marked on the side of the petitioner. One witness was examined on the side

of the 3rd respondent. After hearing the rival submissions of both the

parties and on the basis of the oral and documentary evidence, the Tribunal

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came to the conclusion that the accident occurred due to the rash and

negligent driving on the part of the driver of the 1st respondent's van.

Thereafter, considering the age of the petitioner and the avocation of the

petitioner, the Tribunal has fixed the monthly income of the petitioner at

Rs.4,500/- (Rupees Four Thousand Five Hundred only) per month

notionally and Rs.2,000/- (Rupees Two Thousand only) per percentage of

partial disability.

(ii) The Tribunal had considered the evidence given by one

Dr.Shanmugam who was examined as P.W-3. Ex.P-11 is the disability

certificate issued by the said doctor for the fracture sustained in the right

hand of the petitioner. The percentage of disability as stated by the said

doctor is as follows:

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S.No. Nature of Disability Percentage of Disability

1. Mal-united of fractured bones 6%

2. Moderate pain existing on the right 6% hand

3. Disablility for insensitive scar 4%

4. Disability for Ankylosis on right 20% hand 5, Ulno nuro paralysis 15%

6. Reduce of fore arm muscle power 11% Total 62%

(iii) From the above, the percentage of total disability is

arrived at 62%. However, considering the Ankylosis on right hand and

ulno nuro paralysis of bones as one and the same, the Tribunal had reduced

partial permanent disability by 15% and it was fixed totally at 47% partial

permanent disability. In view of the above, the Tribunal has decided that

the petitioner was entitled to get total compensation for the injuries

sustained due to the accident, as follows:

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S.No. Description Amount

1. Loss of earning during treatment Rs. 10,000/-

period

2. Transport to Hospital Rs. 3,000/-

3. Extra nourishment Rs. 15,000/-

4. Medical expenses (as per Ex.P5) Rs. 5,587/-

5. Pain and Suffering Rs. 50,000/-

6. For Partial Permanent disability Rs. 94,000/-

(2000*47) Total Rs.1,77,587/-

Challenging the same, the present Civil Miscellaneous Appeal has been

filed by the claimant.

4. The learned Counsel appearing for the appellant has submitted

that the Tribunal has reduced the permanent disability from 62% to 47%

without any rational basis without any expert opinion. The Tribunal ought

not have calculated Ankylosis on right hand and ulno nuro paralysis of

bones were the same. That apart, the learned Tribunal ought to have fixed

the compensation at Rs.3,000/- (Rupees Three Thousand only) per

percentage of permanent disability. On that basis, the claimant sought

enhancement of compensation.

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5. Per contra, the learned Counsel appearing for the 2 nd respondent

has submitted that the accident happened in the year 2007 and hence, the

compensation awarded by the Tribunal need not be enhanced. However, for

seeking an appropriate clarification from the medical experts whether the

Ankylosis on right hand and ulno nuro paralysis of bones are the same or

not. Hence, he sought time on 07.12.2023. Accordingly, this case was

adjourned to 14.12.2023.

6. On 14.12.2023, the learned Counsel appearing for the claimant

further submitted that the medical literature with respect to ulno nuro

paralysis runs all the way from shoulder to little finger and manages the

muscles that allow to make fine movements with the fingers. The same has

been explained in the circulated literature placed before this Court with

appropriate supporting medical documents.

7. Per contra, the learned Counsel appearing for the 2 nd respondent

further submitted that Ankylosis is the result of the ulno nuro paralysis.

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Hence, the observation of the learned Tribunal is reasonable and the same

is need not be interfered.

8. The medical conditions suffered by the claimant would reveal that

the Ankylosis and the ulno nuro paralysis are not one and the same. Hence,

the learned Tribunal is not correct in considering that both medical

condition of the Ankylosis and the ulno nuro paralysis are one and the

same and reducing the partial permanent disability from 62% to 48%. In

view of the same, I am inclined to enhance the partial permanent disability

from 48% to 62%. That apart, the learned Counsel for the appellant has

relied upon the judgment of this Court in C.M.A.(MD)No.392 of 2012

dated 10.02.2022. In the similar case, percentage of partial permanent

disability has been increased to Rs.3,000/- (Rupees Three Thousand

only). By following the said Judgment, the partial permanent disability is

hereby enhanced from Rs.2,000/- per percentage to Rs.3,000/- per

percentage.

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9. Considering all the above circumstances, the award passed by the

Tribunal is modified as follows:

                       S.         Description            Amount       Amount     Award
                       No.                               awarded by awarded by confirmed
                                                         the Tribunal this Court or
                                                         Rs.          Rs.        enhanced

1. Loss of earning Rs. 10,000/- Rs. 10,000/- confirmed during treatment period

2. Transport to Rs. 3,000/- Rs. 3,000/- confirmed Hospital

3. Extra nourishment Rs. 15,000/- Rs. 15,000/- confirmed

4. Medical expenses Rs. 5,587/- Rs. 5,587/- confirmed (as per Ex.P5)

5. Pain and Suffering Rs. 50,000/- Rs. 50,000/- confirmed

6. For Partial Rs. 94,000/- Rs.1,86,000/- enhanced Permanent disability Total Rs.1,77,587/- Rs.2,69,587/- Enhanced

10. In the result, this Civil Miscellaneous Appeal is partly allowed

and the compensation awarded by the Tribunal at Rs.1,77,587/- (Rupees

One Lakh Seventy Seven Thousand Five Hundred and Eighty Seven only)

is hereby enhanced to Rs.2,69,587/- (Rupees Two Lakhs Sixty Nine

Thousand Five Hundred and Eighty Seven only).

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