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Madurai Insurance Co. Ltd. Vs. Balasubramaniam and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Insurance
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 171 of 1968
Judge
Reported inAIR1972Mad13; [1971]41CompCas924(Mad); (1971)2MLJ400
AppellantMadurai Insurance Co. Ltd.
RespondentBalasubramaniam and anr.
Excerpt:
motor vehicles - compensation - whether compensation awarded by tribunal just and reasonable - appellant contended that liability for compensation cannot extend to things that had happened as result of respondent's negligence to treat wound and making it much more serious than before - respondent got himself discharged from hospital at his own risk even though wounds were not completely healed and against wishes of doctor - cannot be said that appellant liable for all that happened subsequent to accident - held, quantum of compensation fixed excessive as physical impairment of respondent as exists today was not entirely due to accident. - - , as well as the second respondent herein, the owner of the lorry, on various grounds......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.....
Judgment:

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 10-3-1966, 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 10-3-1966 till 15-4-1966 when he was readmitted in the hospital with the wound very much infected.

4. The learned counsel for the appellant contends that though the first respondent is entitled to compensation for such injury as has been caused as a result of the accident, the liability for compensation cannot extend to all things that had happened as a result of the first respondent neglecting to treat the wound and making it much more a serious one than it was before. There is some force in the contention put forward by the learned counsel. If the first respondent had continued to remain in the General Hospital after 10-3-1966 for treatment of the wound, the wound would have healed without much difficulty. The wound became infected requiring a much more serious treatment than it was necessary originally and the first respondent was the cause for such a state of things. It cannot, therefore, be said that the appellant was liable for all that has happened subsequent to the accident.

5. The learned counsel then contends that the fixation of Rs. 12000 as damages for the physical impairment and loss of future prospects and for being necessitated to go every day in a taxi to his office was not justified. it is pointed out that the compensation cannot be paid for the physical impairment, as is found now, which was not entirely due to the injury caused by the accident and that as such, the entirety of the compensation of Rs. 12000 for physical impairment cannot be directed to be borne by the insurer. As regards the loss of future prospects it is urged, there is no material to show that the first respondent had any prospects and that he lost those prospects because of the physical impairment of his leg. It is the evidence of P. W. 1 that he can walk and even climb up the stairs and this evidence if referred to show that he attends to his nominal activities and there is no evidence to show that the first respondent has suffered any loss of emoluments, that the first respondent was working as cashier receiving a salary of Rs. 475 p.m. at the time of this accident, and that he continues to be in the same job even now.

6. On a due consideration of the matter. I consider that the fixation of Rs. 12000 as compensation for physical impairment and loss of future prospects is somewhat excessive, especially when the physical impairment of the first respondent as it exists today was not entirely due to the accident. The first respondent was also to blame for getting away from the hospital without the wound being properly healed and neglecting it for nearly a month without proper treatment, resulting the wound becoming infected leading to a more serious treatment. Though it is not possible to apportion the responsibility between the first respondent and the person who caused the accident, I think it is reasonable to fix a sum of Rs, 6000 as the appellant's liability towards the compensation for the physical impairment and loss of future prospects if any. However, in respect of the other two heads, that is, pain, suffering and shock, and for medical expenses, there is no room for interference from this court. The award under those heads are, therefore, accepted.

7. In the result, the appeal is partly allowed and the total compensation payable by the appellant is fixed at Rs, 8500 in modification of the compensation awarded by the Tribunal. there will be no order as to costs in this appeal.

8. Appeal Partly allowed.


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