D. Sampath v. United India Insurance Co. Ltd. & Anr.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7824 of 2011. From the Judgment & Order dated 12.04.2010 of the High Court of Judicature at Madras in Civil Miscellaneous Appeal No. 2098 of 2002. Vivek Sharma, P.B. Suresh. Temple Law Firm for the Appellant. K.L. Nandwani fer the Respondent. The Judgment of the Court was delivered by H.L. DATTU, J.

1Leave granted.

2This appeal is directed against the Judgment and Order passed by the High Court of Judicature at Madras in Civil Miscellaneous Appeal No. 2099 of 2002 dated 12.04.2010. By the impugned judgment, the Court has modified the compensation awarded by the Motor Accident Claims Tribunal, Chennai (for short, "the Tribunal") in MCOP No.1971 of 1998 dated 12.02.2002.

3The facts are not in dispute. Claimant was a pillion rider of a motor cycle which was driven by one A. Sridhar. It met with an accident due to oil spill on the road on 14.01.1998 at about 7.10 P.M. The claimant and the driver of the vehicle sustained injuries. Both of them were treated in the hospital for the injuries sustained by them. The vehicle was insured with United India Insurance Company Ltd. - respondent No.1 by the owner of the vehicle - respondent No.2. The claimant filed claim petition before the Tribunal inter-alia requesting to award D. SAMPATH v. UNITED INDIA INSURANCE CO. LTD. & ANR. [H.L. DATTU, J.] compensation at a sum of '12,00,000/- (Rupees Twelve lakhs only) under various heads. Claimant had examined himself as PW-2 and other witnesses, including Dr. J.R.R. Thiagarajan - PW-3, who had assessed the disability sustained by the claimant at 75%.

The Tribunal, after considering the various factors, including the medical evidence, had quantified the compensation payable by the Insurance Company at a sum of Rs.3,50,000/-. Being aggrieved by the compensation so awarded by the Tribunal, the claimant had preferred Civil Miscellaneous Appeal No.2099 of 2002, before the High Court of judicature at Madras. The Court, after re-considering ttie c claim of the claimant and re-appreciating the evidence on record, has enhanced the compensation to Rs.4,90,000/- from Rs.3,50,000/- awarded by the Tribunal. It is this judgment and order which is called in question in this appeal.

4We have heard learned counsel for the parties to the lis and perused the records.

5We do not intend to disturb the judgment and order passed by the High Court except to a limited extent. The High Court, while assessing the compensation payable to the claimant, has arrived at the loss of earning capacity in a sum of Rs. 8,16,000/- and, thereafter, though the Doctor has assessed 75% disability, has taken into account 50% disability while calculating the loss of income without any rhyme or reason. In our view, this is a mistake committed by the High Court. It is no doubt true that, while making assessment, there is an element of guess work, but that guess work again must have reasonable nexus to the available material/evidence and the quantification made. In the instant case, the claimant had not only examined himself to sustain the claim made in the petition but also Dr. J.R.R. Thiagarajan, PW-3, who has stated that the claimant has suffered 75% disability, by referring to the Disability Certificate issued by a competent Doctor who had treated the claimant.

Though the Doctor is cross-examined at length by learned Advocate for the Insurance Company, nothing A adverse to the interest of the claimant is elicited. Therefore, the Tribunal has rightly accepted the evidence of the Doctor- PW-3. However, the High Court has taken 50% disability into account while calculating the loss of income. This, in our view, is the mistake committed by the High Court. We hastened to B add that we are not saying that under all circumstances, the Court has to blindly accept the Disability Certificate produced by the claimant. The Court has the discretion to accept either totally or partially or reject the Certificate so produced and marked in the trial but, that, can be done only by assigning c cogent and acceptable reasons. In this view of the matter, we take the disability suffered by the claimant at 75% and calculate the loss of income of the claimant keeping in view the loss of earning capacity of the claimant assessed by the High Court.

Accordingly, we arrive at the loss of earning capacity of the 0 claimant at Rs. 6, 12,000/-.

6In the result, the appeal 1s partly allowed. We direct the Insurance Company to deposit a sum of Rs. 6, 12,000/- after deducting the amount already paid or deposited with accrued interest of 6% from the date of filing of the claim petition till its . E payment before the Tribunal within two months from today. On such deposit, the Tribunal is directed to release the amount to the claimant. No order as to costs. N.J. Appeal partly allowed.