Partly allowed

Vijayalakshmi v. D.Kumari

Madras HC24 Jun 2019CMA/2509/2015

Case brief

AI extract

What is this about?

In this Motor Accident Claims appeal, the court reviewed quantum of compensation awarded Rs 4,80,000 for injuries sustained in a 2002 road accident. Appellant sought enhancement citing multiple surgeries and 60% disability. Court reduced total award by Rs 35,000 from pain and sufferings and Rs 20,000 from loss of income, dismissing appeal to quash but ordering modified amount.

What did the court decide?

Appeal dismissed; compensation reduced from Rs. 4,80,000 to Rs. 4,45,000; interest at 7.5% per annum awarded; respondents directed to deposit modified amount.

Vijayalakshmi Vs D.Kumari — Medical Negligence | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 24.06.2019

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CORAM:

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THE HONOURABLE MRS.JUSTICE S. RAMATHILAGAM

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C.M.A.No.2509 of 2015

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Vijayalakshmi ... Appellant/Petitioner

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Vs.

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1.D.Kumari 2.P.Unnikrishnan

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3.The Divisional Manager, United India Insurance Company Limited, No.46-51, Kadpadi Road, Vellore. ... Respondents/Respondents Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, challenging the judgment and decree dated 05.08.2011, made in M.C.O.P.No.550/2004 on the file of the Motor Accident Claims Tribunal (Chief Judicial Magistrate), Thiruvannamalai.

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For Appellant: Mr.B.Jawahar
For R-3 : Mr.J.Chandran
J U D G M E N T

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This Civil Miscellaneous Appeal has been preferred by the Appellant/Claimant aggrieved against the judgment and decree dated 05.08.2011, made in M.C.O.P.No.550/2004, on the file of the Motor Accident Claims Tribunal (Chief Judicial Magistrate), Thiruvannamalai.

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2.The brief facts regarding the claim application is that the appellant is the claimant in M.C.O.P.No.550 of 2004, claiming a sum of Rs.12,00,000/- as compensation for the injuries sustained by her in a road accident. The appellant sustained injuries due to the accident occurred on 18.04.2002, at about 06.30 a.m., when the appellant and her brother in law were proceeding from Vandavasi to Vellore by car bearing Reg.No.TN.01-E-5914. At that time, bus bearing Reg.No.TN 25-X3544 came in an opposite direction with rash and negligent manner with high speed and dashed the car. The driver of the said car died on the spot and the petitioner and her brotherin-law were sustained grievous injuries and they were taken to the Government Hospital at Vellore and then referred to the https://hcservices.ecourts.gov.in/hcservices/ Christian Medical College Hospital at Vellore. The petitioner

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has sustained severe injuries and she was treated as inpatient in the Government Hospital at Vellore for a number of days and surgery was also done to her and she has sustained permanent disability and she claimed a sum of Rs. 12,00,000/- as compensation.

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3.The 3^rd respondent/Insurance Company in the counter statement denied the mode of accident has made by the claimant in the claim application by stating that the accident had occurred only due to the rash and negligent act of the driver of the car. The car involved in the said accident was not used as own vehicle of the petitioner nor used as taxi. The driver of the car namely Sivagnanam used as a public career for transporting the petitioner and one Madhivanan. Therefore, the driver of the car used the vehicle against the policy condition and hence the 3^rd respondent/Insurance Company is not liable to pay any compensation.

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4.Before the Tribunal, on the side of the Claimant/Appellant, witnesses P.W.1 to P.W.4 were examined and exhibits Ex.P.1 to Ex.P.20 were marked and on the side of the Respondents, no one was examined and no exhibits were marked.

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5.The tribunal on analyzing the evidence and documents has given a finding that the accident occurred only due to the rash and negligence on the part of the driver of the Bus. By verifying FIR and also the motor vehicle Inspector's report, tribunal has given a finding that only the driver of the 1^st respondent vehicle is responsible for the said accident. While determining the compensation, the tribunal has verified the documents relating to the injuries referred in the Accident Register and also the Discharge Summary and awarded a sum of Rs.4,80,000/- (Four Lakhs Eighty Thousand Only) as total compensation under various heads.

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6.Not being satisfied with the said award, the Claimant/appellant has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988, for enhancement of compensation, by stating that the injuries sustained by the claimant were grievous in nature i.e., four fracture injuries and she underwent 15 surgeries on thirteen occasions, which are all very much proved by P.W.3/doctor and P.W.4. Further the evidence of P.W.4/doctor, that the claimant has to undergo future surgery was also not considered by the tribunal. The other grievance of the appellant is that in spite of the disability assessed by the Doctor at 60%, the tribunal has not adopted the multiplier method for arriving the loss of income, and as such the sum awarded is very much meager. The tribunal ought to have considered the future expenditure to be incurred and the disability at 60% are awarded reasonable compensation.

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7.Heard the learned counsel appearing for the appellant as well as the 2^nd respondent and perused the https://hcservices.ecourts.gov.in/hcservices/ materials available on record.

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8.It is vehemently argued by the learned counsel that the appellant sustained grievous injuries and she was admitted in the hospital on several days and surgery was also done to her and the documents also prove the same. But the tribunal has failed to assess in that aspect. It is further argued by the appellant that the appellant was doing tailoring work and was earning Rs.2,400/- per month and after the accident, she could not even walk without walker. At the time of accident, the claimant has taken first aid treatment in the Vellore Government Hospital, subsequently CMC Hospital at Vellore. She was also treated as inpatient for 12 days and underwent 9 surgeries. When she was admitted for the second time also, she underwent 4 surgeries and in the year 2003, 2 surgeries were done to her. In spite of these surgeries done to her on various occasions, her health could not be restored to as before. Hence, it is argued by the appellant that because of the number of fractures and injuries sustained by her and also number of surgeries underwent by her, the sum awarded by the tribunal under various heads is very much on the meager side.

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10.The Tribunal by observing the evidence and discussions in detail, has stating that at the first instance, she was admitted in the Vellore Government Hospital and then referred to the Vellore CMC Hospital for further treatment. She was treated as inpatient from 18.04.2002 to 20.04.2002 in Government Hospital at Vellore and surgery was also done to her. By verifying Ex.P14, the nature of injury sustained by her and the date of admission by the claimant as inpatient on 11.06.2004 was also verified by the tribunal and the treatment given to her in the CMC Hospital at Vellore for the third time on 20.03.2003. Subsequently on 21.03.2003 and 24.03.2003, she under went two surgeries and she was discharged on 24.03.2003 and patient Record Ex.P.14 also filed before the tribunal. Even in the year 2007, again she was admitted in the Chennai Miyad Hospital and one surgery was done to her and the same was Ex.P.16 and the medical expenses incurred by her of Rs.8,597/- based on Ex.P6 and Rs.66,500/- based on Ex.P7 and Rs.52,830/- and also verifying the evidence of P.W.4 the tribunal has awarded a total sum of Rs.3,50,000/- against the https://hcservices.ecourts.gov.in/hcservices/ medical bills claimed by the claimant by filing the proof of

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documents at Rs.2,07,505/-.

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11.On the other hand the 3^rd respondent/Insurance Company has admitted that when the claim of the claimant for medical expenses at Rs.2,07,505/-, the tribunal has awarded a huge sum of Rs.3,50,000/- which is very much on the higher side. But on perusal of the said sum it is seen that the Tribunal has awarded a sum of Rs.3,50,000/- therefore this Court is not inclined to interfere with the said amount.

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12.The sum awarded by the Tribunal for partial permanent disability at Rs.40,000/- by considering the evidence of P.W.3 is proper and does not require any modification. Further, in view of the deposition of the claimant that she herself attended the Tribunal for many years, this Court inclined to reduce the amount awarded for pain and sufferings. Accordingly a sum awarded at Rs.50,000/is reduced to Rs.35,000/-. Similarly, the loss of income awarded by the Tribunal at Rs.40,000/- is also reduced to Rs.20,000/-. The sum awarded under other heads are remains unaltered. The sum modified by this court is as follows:

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S. Description Amount Amount Amount No awarded by awarded by confirmed Tribunal this Court or enhanced (Rs) (Rs) or granted 1. Medical Bills, Rs.3,50,00 Rs.3,50,00 Confirmed Transport Charges & 0/0/Attender Charges 2. Pain and Sufferings Rs.50,000/ Rs.35,000/ Reduced - - 3. Disability Rs.40,000/ Rs.40,000/ Confirmed - - 4. Loss of income Rs.40,000/ Rs.20,000/ Reduced - - Total Rs.4,80,00 Rs.4,45,00 Reduced by 0/0/Rs.35,000/-

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13.Though the claimant has preferred this appeal for enhancements, this Court by considering its pleadings on both sides and on perusal of the evidence and documents has reduced the compensation awarded by the Tribunal.

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14.In the result, this Civil Miscellaneous Appeal is dismissed and the compensation awarded by the Tribunal is at Rs.4,80,000/- is reduced to Rs.4,45,000/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit.

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15.Both the 1^st respondent as well as the 3^rd respondent/Insurance Company are directed to deposit the modified award amount along with interest and costs now https://hcservices.ecourts.gov.in/hcservices/ determined by this Court, jointly and severally, less the

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amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the appellant/claimant is permitted to withdraw the award amount along with proportionate interest and costs, less the amount if any, already withdrawn. Both 1^st respondent as well as 3^rd respondent/Insurance Company are permitted to withdraw the excess amount lying in the deposit to the credit of M.C.O.P.No.550/2004, if the entire amount has already been deposited by them. No costs.

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Sd/-
Assistant Registrar (CS-V)
//True Copy//
Sub Assistant Registrar
ssi
To
1. The Chief judicial Magistrate,
Thiruvannamalai.
Copy To
The Section Officer,
V.R. Section, High Court,
Madras.
+1cc to Mr.J.Chandran, Advocate, S.R.No. 51873
C.M.A.No.2509 of 2015
VG II(CO)
GN(24/01/2020)

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https://hcservices.ecourts.gov.in/hcservices/

Vijayalakshmi v. D.Kumari

Case brief

What is this about?

What did the court decide?

Vijayalakshmi v. D.Kumari

Case brief

What is this about?

What did the court decide?

What the court decided

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