Partly allowed

United India Insurance Company v. Elumalai

Madras HC17 Aug 2020CMA/82/2015

Case brief

AI extract

What is this about?

High Court modified the Motor Accident Claims Tribunal award by rejecting uncorroborated disability evidence and excessive future medical claims. The disability component was retained, but pain and suffering and future medical expenses were reduced to Rs. 3,68,453 total.

What did the court decide?

The Tribunal's award was modified to Rs. 3,68,453 by reducing pain and suffering to Rs. 30,000 and future medical expenses to nil. Insurance company directed to deposit the amount.

United India Insurance Company Vs Elumalai — Motor Accident Claims | Madras HC (2020)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 07.08.2020 PRONOUNCED ON : 17.08.2020

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CORAM

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THE HON'BLE DR.JUSTICE G.JAYACHANDRAN Civil Miscellaneous Appeal No.82 of 2015 & M.P.No.1 of 2015 in CMA No.82 of 2015 and Cross Objection No.21 of 2016 C.M.A.No.82 of 2015:M/s.United India Insurance Company Ltd., No.19, Andiappan Gramani Street, Royapuram, Chennai – 600 013. .... Appellant/R2 vs 1.Mr.Elumalai, S/o Subramani No.47, Lakshmipuram, Vadapalani, Chennai – 600 026. ....R1/Petitioner 2.Mr.A.Shagul Hameed, S/o Ansari, Old No.86, N.No.70, Pallivasal Street, Edailkazhinadu, Cheyyur Taluk, Kanchipuram District. ... R2/R1 (R2-exparte, hence notice dispensed with)

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Prayer:- Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the decree and judgment dated 09.10.2014 passed in M.C.O.P.No.2695 of 2013 on the file of the Motor Accidents Tribunal (IV SCC), Chennai.

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Cross Objection No.21 of 2016:Mr.Elumalai, S/o Subramani No.47, Lakshmipuram, Vadapalani, Chennai – 600 026. ... Cross Objector/R1 vs 1.M/s.United India Insurance Company Ltd., No.19, Andiappan Gramani Street, Royapuram, Chennai – 600 013. ...R1/Appellant 2.Mr.A.Shagul Hameed, S/o Ansari, Old No.86, N.No.70, Pallivasal Street, Edailkazhinadu, Cheyyur Taluk, Kanchipuram District. .. R2/R2 Prayer:- This Cross objection is filed against the award dated 09.10.2014 made made in M.C.O.P.No.2695 of 2013 on the file of the Motor Accident Claims Tribunal IV Judge, Small Causes Court, Chennai. For Cross Appellant : Mr.V.Velu For R.1 : Mr.G.Udaya Sankar For R.2 : Exparte COMMON JUDGMENT

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Elumalai s/o Subramani aged about 32 years claiming compensation of Rs.10 lakhs for the grievous injuries sustained due to the motor accident on 24/09/2012 had preferred MCOP.No.2695 of 2013 before the Motor Accident Claims Tribunal, ( IV Small Causes Court), Chennai.

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In the claim petition, it was contended that, on 24/09/2012 at about 16.00 hours at E.C.R. Road, Palaiyar Madam, vilambbur, Kancheepuram District, while he was travelling as a pillion rider in the two wheeler bearing Registration No. TN-19 X 7808, the rider of the two wheeler rash and negligently drove the vehicle in zigzag manner and dashed the right side road

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wall. Seated on the pillion he sustained multiple grievous injuries. At the time of accident, he was self – employed earning a sum of Rs.20,000/- pm as Carpenter. He was admitted in Pondicherry Institute of Medical Science (PIMS) Hospital, Pondicherry on 24/09/2012 then, referred to Chettinad Hospital, Kelambakkam. From 25/09/2012 to 30/09/2012, he was treated as inpatient. The respondents who are the owner of the vehicle and its insurer are liable to pay compensation since, the accident occurred due to the rash and negligence of the two wheeler driver.

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3.The second respondent Insurance Company denied the manner of the accident and its responsibility to indemnify the vehicle owner. As per the FIR, the accident occurred due to the fault of the two wheeler Driver, in which, the claimant was travelling as pillion rider. There is no evidence to show the rider had valid driving license. Further, the accident has not caused any permanent disability to the claimant. He sustained lacerated wound and recovered within 7 days on treatment. Hence, the claim is excessive and exorbitant.

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4.Before the Tribunal, the claimant, in support the claim petition, the Doctor who gave the disability certificate and the employer of the claimant were examined as PW-1 to PW-3 respectively. 12 exhibits were marked through them. Based on the FIR ( Ex.P-1) and the evidence of the victim PW-1, the Tribunal held the accident was due to the rash and negligent driving of the driver of the two wheeler. Relying upon the medical records like OP treatment record, discharge summary, lab reports, and the disability certificate based on X-ray given by PW-2 - Doctor who clinically examined the claimant and fixed the claimant had sustained 45% partial permanent disability. Based on the evidence of the employer PW-3, the income of the claimant was fixed at Rs.10,000/- per month. Taking note of pain and suffering and other conventional loss, the Tribunal awarded Rs.5,38,453/- with interest at the rate of 7.5% (except Rs.1,00,000/- awarded towards future medical expenses) from the date of numbering the claim petition (03/06/2013) till the date of realization.

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5.The heads of compensation under which the Tribunal passed award is given below:

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Disability Rs.90,000/Pain and suffering Rs.1,00,000/Extra nourishment Rs.50,000/Attender charges Rs.50,000/Transportation Rs.25,000/-

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Damages towards Rs.3,000/clothing Loss of income Rs.60,000/Future medical Rs.1,00,000/expenses Loss of amenities Rs.50,000/Medical expenses Rs.10,453/TOTAL Rs.5,38,453/-

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6.The claimant as well as the Insurance company are not satisfied with the award passed by the Tribunal. Therefore, they are before this Court with this Appeal and Cross appeal respectively.

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7.The Insurance Company has preferred C.M.A.No.82 of 2013 alleging that the Tribunal has erred in accepting the disability certificate given by the Doctor who never treated the claimant and not even seen the claimant at the time of accident. His disability certificate contains injuries which were not sustained by the claimant in the said accident. The Tribunal failed to consider and appreciate documents like the OP slip of PIMS hospital ( Ex P-4), the Discharge summary (Ex P-2 and Ex P- 3). The Tribunal erred in fixing the disability based on Ex P-9 given by the Doctor who never treated the claimant. That apart, the award of Rs.1,00,000/- under the head of pain and suffering is disproportionate to the injury. Without any medical record Rs.1,00,000/- has been awarded for future treatment. The income of the claimant exorbitantly fixed at Rs.10,000/- pm without any acceptable evidence.

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8.Contrarily, the claimant who has preferred the cross objection, contend that, the claimant had sustained fracture injuries on his 6^th , 7^th ,8^th ,9^th , 10^th ribs. After treatment, it was malunited. In the accident, the lungs bone came to the skin hence, as an alternative, the chest was holed to remove air, blood and water. PW-2 who examined the claimant has spoken about these injuries and also deposed that the basement of the lungs is tightened. The claimant is having difficulty to breath and to do hard work. His left eye is oozing tears due to the crush injuries in the left eye. Therefore, the Tribunal ought to have given more compensation under the head of disability. The award for transport to hospital, extra nourishment, mental agony, attender's charge and medical expenses ought to to enhanced.

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9.Heard the learned counsel for the Claimant and the learned counsel for the Insurance Company. Records perused.

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10.According to the claimant, the accident happened on 24/09/2012 at about 16.00 hrs. Whereas, Ex P-1 is the FIR given by one Shagul Hameed, after two days i.e., on 26/09/2012. The informant is the vehicle owner. He is the first respondent in the claim petition. In his complaint, he has stated that he gave his two wheeler TVS Appachi TN 19 X 7808 to his friend Ravi. He along with Elumalai while proceeding to Ceyyur Taluk Office, hit the right side wall of the bridge while trying to avoid the cattles crossing the road near Palaiyar Madam Mosque. The reason for belated FIR not known also whether the said Ravi who was driving the two wheeler had a valid driving license or not, could not be ascertained since, his driving license not marked as exhibit. The reason for belated FIR not known.

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11.As far as the claimant is concerned, immediately after the accident, he was taken to PIMS Hospital at Pondicherry. He was medically examined and treated for his injuries. Ex P-2 issued by the PIMS hospital reveals that the patient has reported that he sustained injuries due to self skid and fall on the road. The clinical finding indicate that in the alleged road traffic accident, the claimant has sustained laceration on infra arbitral region 6^th ,7^th and 8^th ribs. A Laceration on forehead 1 x1 cm and a abrasion of right Great Toe 2 x 2 cm. The radiology investigation through X ray (chest) indicate fractures of 6^th 7^th and 8^th ribs right side and Right side subcutaneous emphysema. For the lacerations, suture done and against the medical advice, the claimant victim has left the hospital.

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12.Ex P-3 is the discharge summary given by the Chettinad Hospital. In this hospital, the claimant was admitted as inpatient on 25/09/2012 and discharged on 30/09/2012. In Ex P- 3 , it is recorded that, he fell from the bike when dog crossed the road. He was advised to come on Wednesday for follow up. Accordingly, when the claimant went to the hospital on 03/102012, the suture on infra-arbital region removed and advised to take the medicines prescribed for 5 days. These facts are found in Ex P-4.

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13.Ex.P-2, Ex P-3 and Ex P-4 consistently indicate that the patient sustained lacerated injuries on infra-arbital region and forehead region alone and those injuries were sutured and the patient recovered after 10 days treatment. Whereas, PW-2 , the Doctor who has not treated the claimant and not seen the patient any time immediately after the accident, without any reference to Ex.P-2 to Exs.P-4, had given the disability certificate Ex P-9 assessing permanent disability as 50%. He admits in the cross examination that no surgery was done to the

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claimant for his injuries. Also he admits that the injury refered near the eye for which he has estimated 15% disability does not find place in any of the medical records. He also admit in the cross examination, the injuries have not caused any disfigurment or impairment of vision. Thus, the disability certificate Ex P-9 has been established by the respondent as an embellished document carrying injuries not sustained in the said accident. Therefore, this Court finds that the Tribunal has been carried away by the evidence of PW-2 and the certficate - Ex P-9 , which are not consistent with Ex.P-2, Ex P-3 and Ex P-4. These documents issued by the hospital which treated the injured. They are contemporaneous and more reliable. The documents issued by the hospital indicated that the injuries sustained by the accident victim has caused only temporary disability and not 50% permanent disability as wrongly assessed by PW-2. Therefore, what is paid for disability by the Tribunal is not based on proper appreciation of evidence.

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14.In the instant case, this Court also finds that the award of Rs.1,00,000/- for future medical expenses is not warranted for the reasons stated under:-

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(i)During the treatment as inpatient, the claimant has incured medical expenses of Rs.10,453/- and the same had been awarded based on the medical bills. After his discharge on 30/09/2012, he had gone to the hospital once again on 03/10/2012 for suture removal. There is no evidence to show he incurred any further medical expenditure for the injuries, thereafter. There is also no evidence to indicate that he required any future medical care. Therefore, the award of Rs.1,00,000/- under the head of future medical expenses necessarily to be interference.

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(ii)Like wise, the claimant was in the hospital for 10 days. Thereafter, there is no material to show he was in need of any Attender. The Tribunal has awarded Rs.50,000/- for attender charges and another Rs.50,000/- for loss of amenities. Besides it has also awarded Rs.1,00,000/- for pain and sufferings. When the total period of hosptialisation was only 10 days and the injuries were rib bone fracture with lacerations, which were sutured and cured without surgery, estimation of Rs.1,00,000/for pain and suffering is on th higher side.

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15.Having held so, taking note of the time lapse, except the award of Rs.1,00,000/- for pain and sufferring and Rs.1,00,000/- for future medical expenses being baseless, very excessive and unfair, this Court confirms the award under the other heads, even though they are high.

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Accordingly, the award of the Tribunal dated 09/10/2014 is modified as under:-

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Under the Heads Amount Disability Rs.90,000/Pain and suffering Rs.30,000/Extra nourishment Rs.50,000/Attender charges Rs.50,000/Transportation Rs.25,000/Damages towards Rs.3,000/clothing Loss of income Rs.60,000/Loss of amenities Rs.50,000/Medical expenses Rs.10,453/TOTAL Rs.3,68,453/-

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17.It is brought to the notice of this Court that on 09.02.2015, in M.P.No.1 of 2015 in C.M.A.No.82 of 2015, this Court directed the appellant Insurance Company to deposit the entire award amount passed by the Tribunal with permission to the respondent/claimant to withdraw 50% of the amount. Further, this Court also directed the Tribunal to deposit the remaining 50% of the amount in any one of the Nationalised Bank, in interest bearing fixed deposit, initially for a period of three years and thereafter, it can be renewed periodically, till further orders from this Court.

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18.As per the direction of this Court on 09.02.2015, in M.P.No.1 of 2015 in C.M.A.No.82 of 2015, if any amount is withdrawn by the claimant, he shall be entitled for the difference amount with interest @ 7.5 % per annum. If any amount is deposited in the Nationalised Bank account, the Insurance Company is entitled to withdraw it along with accrued interest.

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19.In view of the above, the Insurance Company is directed to deposit the above modified award amount of Rs.3,68,453/- in the account of M.C.O.P.No.2695 of 2013 with interest @ 7.5% per annum commencing from 03.06.2013, less the amount already withdrawn by the claimant, if any, within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit being made, the claimant is permitted to withdraw the same by filing appropriate petition before the Tribunal. The Insurance Company is permitted to withdraw any amount deposited in the Nationalised Bank along with the accrued interest as per the direction of this Court in M.P.No.1 of 2015 in C.M.A.No.82 of 2015 dated 09.02.2015.

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20.In the result, CMA No.82 of 2015 is partly allowed and
the Cross Objection No.21 of 2016 is dismissed. No order as to
costs. Consequently, connected miscellaneous petition is closed.
Sd/-
Assistant Registrar(CCC)
//True Copy//
Sub Assistant Registrar
jbm
To
The IV Judge,
The Motor Accident Claims Tribunal,
IV, Small Causes Court, Chennai.
Copy to: The Section Officer,
VR Section,
High Court, Madras-600 104.
+1cc to Mr.G.Udaya Sankar, Advocate SR.26793
C.M.A.No.82 of 2015 and
Cross Objection No.21 of 2016
EV(CO)
CB(11/01/2021)

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United India Insurance Company v. Elumalai

Case brief

What is this about?

What did the court decide?

United India Insurance Company v. Elumalai

Case brief

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What did the court decide?

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