MADURAI INSURANCE CO Vs. BALASUBRAMANIAM

JUDGEMENT

(1.) THIS is an appeal filed by the appellant Insurance Co, against the decision of the motor Accidents Claims Tribunal, Madras in M. A. C. T. O. P. 157 of 1966. There was an accident at about 7-40 a. m. on 21-2-1966 in front of premises No. 43 moore Street, Madras, when the lorry M D A 297 hit against a lamp post which in turn hit the right leg of the first respondent herein. Thereby the first respondent sustained injuries, namely, deep and extensive laceration of the sole of foot heel and the back of right ankle joint with bleeding. He was an inpatient in the General hospital for some time. He claimed a compensation of Rs. 30,500 for the injuries sustained by him. The compensation of Rs. 30,500 claimed comprised of Rs. 15000 for loss of work, physical impairment and loss of future prospects and Rs. 500 for expenses incurred. The claim was resisted by the appellant Insurance Co. , as well as the second respondent herein, the owner of the lorry, on various grounds. They denied that the accident was as a result of any rash and negligent driving on the part of the driver of the lorry. They alleged that the accident was due to the negligence of the first respondent herein and that, in any event, the first respondent was guilty of contributory negligence. It was also pleaded by them that the lorry never came into direct contact with the first respondent but he was injured on account of the fall of the worn out lamp post which was slightly hit by the lorry. They also pleaded that the compensation claimed was highly exaggerated. The Tribunal had found on consideration of the materials adduced before it that the accident had occurred only due to the rash and negligent driving of the lorry and that the first respondent was not guilty of any contributory negligence. On the quantum of compensation the Tribunal held that a sum of Rs. 12000 had to be awarded for physical impairment and loss of future prospects, that further sums of rs. 2000 and Rs. 500 are payable as compensation for pain and suffering and towards medical expenses respectively. Thus, the total compensation awarded came to Rs. 14500.

(2.) IN this appeal filed by the insurer, the question of its liability for compensation has not been canvassed. The learned counsel for the insurer fairly conceded that the finding given by the Tribunal that the driver of the lorry caused the accident by his rash and negligent driving and that there was no contributory negligence on the part of the first respondent cannot be successfully challenged. Hence this court has to proceed on the basis that the liability of the insurer to pay compensation to the first respondent has been established. The only question therefore, is whether the compensation awarded by the Tribunal is just and reasonable.

(3.) THE learned counsel for the appellant brings to my notice certain facts the significance of which was neither noted or considered by the Tribunal and contends that if those facts are kept in mind the compensation awarded by the Tribunal will be found to be dis-proportionate to the legal liability of the insurer. It is necessary, therefore, to consider the facts referred to by the learned counsel which are not in much controversy. The accident occurred on 21-2-1966. and the first respondent got himself admitted in the General Hospital immediately after the accident and he was an inpatient there till 10-3-1966. From 11-3-1966 till 14-4-1966 the first respondent is said to have been treated by a private doctor as per the directions given by the doctors in the General Hospital. Since the wound did not heal properly, he again got himself admitted in the General hospital on 15-4-1966 where he was an inpatient till 15-5-1966. In the first week of July 1966 he was found unsuitable and as a result ulcers developed. Once again he got himself admitted in the General hospital on 22-1-1966 where he remained as an inpatient till 7-12-1966. P. W. 3. the Plastic Surgeon in the General Hospital who attended on the petitioner from 15-4-1966 to 15-5-1966 and once again from 22-7-1966 to 7-12-1966 has stated that when the first respondent come to the hospital on 15-4-1966 he recovered the wound with skin graft to have the ulcer healed, that on the second occasion he had to cover the same area with full thickness skin, that he advised the first respondent to wear surgical shoe, that the first respondent cannot walk without a specially padded shoe and that the disability is a permanent one. He has, however, admitted in cross-examination that when the first respondent came to the hospital on 15-4-1966, he found the wound was infected and that there would not have been infection if the tissues had been cut and operated earlier. P. W. 4 an Assistant Surgeon in the General Hospital who treated the first respondent during the period from 22-2-1966 to 10-3-1966 stated that the first respondent was admitted for injuries over his right foot at that stage, that he had extensive laceration over the sole of the right foot heel and back of right ankle joint, that he stitched the wound, that the first respondent was discharged on 10-3-1966 at his own request even though the wound was not completely healed, on the representation that he would take further treatment as an outpatient, and that but for his request he would not have discharged having regard to the nature of the wound. the evidence of P. W. 3 shows that if the first respondent had remained in the General hospital as an inpatient for continuous treatment of the wound, it would have been healed and the wound would not have been infected leading to the skin grafting and to the necessity to wear surgical shoe. The fact is clear that the first respondent got himself discharged from the hospital at his own request even though the wound was not completely healed, much against the wishes of the doctors in the General hospital. Though the first respondent is said to have been treated by a private doctor between 11-3-1966 and 14-4-1966, no material has been placed before the court as to who was the person who treated him and what was the treatment that was taken by him. if really the wound was treated by a private doctor, it would not have become infected as was found at the time when he was readmitted in the General Hospital for the second time. if really the first respondent had neglected to take the proper treatment having got himself discharged from the General Hospital at his own request, he should be held partly responsible for the wound becoming infected and necessitating a more serious treatment. In this case, at the initial stage when the first respondent was treated in the General Hospital between 22-2-1966 and 10-31966, the wound was not so serious and that is why he was discharged when he represented that he would take treatment as an out-patient. The first respondent admittedly did not take any treatment as an out-patient from the General Hospital after he was discharged on 10-3-1966. But his case was that he was being treated by a private doctor. No evidence is forthcoming as to what happened after 10-31966 till 15-4-1966 when he was readmitted in the hospital with the wound very much infected.