T.THANGAPPAN Vs. R.KANNAPPAN

JUDGEMENT

(1.) The Civil Miscellaneous Appeal is filed by the appellant/claimant seeking enhancement of compensation granted by the Tribunal in the award dated 22.12.2016 made in M.C.O.P.No.2240 of 2012 on the file of the Motor Accident Claims Tribunal, II Court of Small Causes, Chennai.

(2.) The appellant is claimant in M.C.O.P.No.2240 of 2012 on the file of the Motor Accident Claims Tribunal, II Court of Small Causes, Chennai. He filed the said claim petition claiming a sum of Rs.25,00,000/- as compensation for the injuries sustained by him in the accident that took place on 20.12.2011. The Tribunal, considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of the van belonging to the 1st respondent and directed the 2nd respondent/Insurance Company being insurer of the said van to pay a sum of Rs.9,47,000/- as compensation to the appellant. Not being satisfied with the amount awarded by the Tribunal, the appellant has come out with the present appeal seeking enhancement of compensation.

(3.) The learned counsel appearing for the appellant/claimant contended that the appellant sustained grievous injuries in the accident and due to the injuries, he went into coma stage. The appellant took treatment in various hospitals as in-patient for 102 days. He has taken treatment as in-patient at Apollo Hospital, Chennai, from 20.12.2011 to 12.01.2012 and has taken treatment as in-patient for "Traumatic brain injury with Polytraums" at Global Hospital and Health City from 12.01.2012 to 05.03.2012. He has taken further treatment as in-patient at ESIC Hospital, K.K.Nagar, from 05.03.2012 to 09.03.2012 for multiple fractures of the body & head injury and further admitted as in- patient at Government General Hospital from 09.03.2012 to 31.03.2012 for treatment of post traumatic sequlae, hydro cols and VP shunt. Three Doctors assessed the disability of the appellant as 90%, 60% and 30% respectively. PW3/Doctor, who deposed about the head injury sustained by the appellant, has assessed that the appellant suffered 60% partial permanent disability and issued Ex.P15/disability certificate. Through PW3/Doctor, report by clinical Psychologist Mr.K.Vijayan was marked as Ex.P14. PW2/Orthopaedic Doctor certified that the appellant suffered 90% disability. PW4/Dentist deposed that due to neck of mandible Lt.side, appellant is having TM joint fibrosis, inability to open and close the mouth, restricted lower jaw movement, midline shift to right side, deranged occlusion causing mastigatory dysfunction and disfigurement. PW4 examined the appellant and assessed 30% partial and permanent disability. The Tribunal erroneously reduced the percentage of disability to 30% and has not given any reason for reducing the percentage of disability. As per the judgment of the Hon'ble Apex Court, the claims Tribunal or High Court has no power to reassess the disability assessed by expert Doctors. The Tribunal ought to have awarded compensation for 100% disability. The Tribunal has granted meagre amounts towards pain & suffering, loss of earning, partial loss of earning, medical attendance, transport, extra nourishment, damage to clothes and articles and loss of amenities. The Tribunal has not awarded any amount towards mental agony, loss of expectation of life and compensation for continuing permanent disability. Due to the injuries and disability, the appellant could not stand without help of others and he is not able to do his daily routine work. The Tribunal failed to consider that the appellant lost his memory. The Tribunal ought to have considered that the appellant lost 100% earning capacity. The appellant was aged 47 years at the time of the accident and was working as a milling operator in F1 Auto Components Private Limited and was earning a sum of Rs.14,275/- per month. The Tribunal ought to have granted 30% enhancement towards future prospects. After the accident, the appellant was terminated from his service on the ground that he was unable to do his work. To prove the same, Ex.P9/copy of the termination certificate issued by the company was marked and prayed for enhancement of compensation.