D.Sampath vs United India Ins.Co.Ltd.& Ors

D. Sampath .............. Appellant

versus

United India Insurance Co. Ltd. & Anr. ..............Respondents

J U D G M E N T

H.L. DATTU, J.

1. Leave granted.

2. This 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.

3. The 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 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 `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 the claim of the claimant and re-appreciating the

evidence on record, has enhanced the compensation to `4,90,000/-

from `3,50,000/- awarded by the Tribunal. It is this judgment and

order which is called in question in this appeal.

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

perused the records.

5. We 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 ` 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 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 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 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 claimant at

`6,12,000/-.

6. In the result, the appeal is partly allowed. We direct the

Insurance Company to deposit a sum of `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 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.

.............................J.

[G.S. SINGHVI]

.............................J.

[H.L. DATTU]

New Delhi,

September 13, 2011.