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2008 DIGILAW 516 (MAD)

Tmt. Kalaiselvi v. S. Shanmugam & Another

2008-02-12

R.BANUMATHI

body2008
Judgment :- Being dissatisfied with the quantum of compensation, the claimant has preferred this appeal. .2. Brief facts which are necessary for disposal of this appeal are as follows:- .On 35. 2000 at about 3.15 p.m., when the claimant was alighting from Sivasakthi bus bearing Registration No. T.N. 25-A 5757 from the rear side at Chengam Bus Stop in Thiruvannamalai, since the driver of the bus has started it rashly and negligently, the tyre, kept in top-portion of the bus fell upon the claimant due to which, the claimant sustained fracture at her back side of the neck. After the accident, the Claimant had taken initial treatment at Government Hospital, Thiruvannamalai and subsequently at a private Nursing Home, Chennai. The Claimant was working as Health Assistant in Primary Health Centre, Arattavadi. Alleging that the accident was occurred due to rash and negligent driving of the bus driver, the Claimant has filed Petition U/s.166 of M.V.Act claiming compensation of Rs.2,00,000/- for the injuries sustained by her. 3. Opposing the claim and denying the accident, the Insurance Company has filed counter stating that the accident was solely due to the lack of care of the Claimant and therefore, the Insurance Company is not liable to pay any compensation. The Insurance Company has also disputed the age, income of the Claimant and nature of injuries sustained by her and percentage of disability. 4. Before the Tribunal, the Claimant examined herself as P.W.1. Dr.Ravindran was examined as P.W.2. Exs.P1 to P4 were marked. No evidence was adduced on the side of the Respondents. Upon consideration of oral and documentary evidence and laying emphasis upon the recitals in Ex.P1 FIR, the Tribunal held that the accident was due to rash and negligent act of the driver of the bus and held that the Insured and the Insurer are jointly and severally liable to pay compensation. The Tribunal observing that the Claimant has not adduced any evidence to prove her percentage of disability, awarded compensation of Rs.25,000/- for Permanent Disability and loss of expectation of life; Rs.3500/- for Pain and Suffering and another Rs.3500/- for Extra nourishment and a total compensation of Rs.32,000/-. 5. The Tribunal observing that the Claimant has not adduced any evidence to prove her percentage of disability, awarded compensation of Rs.25,000/- for Permanent Disability and loss of expectation of life; Rs.3500/- for Pain and Suffering and another Rs.3500/- for Extra nourishment and a total compensation of Rs.32,000/-. 5. Challenging, the quantum of compensation, the Learned counsel for the Appellant has submitted that the Claimant has sustained fracture injury in C3 bone and she has suffered 40% disability and while so, the Tribunal has awarded only Rs.25,000/- for permanent disability and loss of earning capacity. It was further submitted that the claimant was a Health Assistant in Primary health Center and while taking treatment, she was not getting her salary and the Tribunal ought to have awarded compensation for loss of income. It was also submitted that the quantum of compensation awarded under the heads pain and suffering and extra nourishment are abysmally low and are to be enhanced. 6. Supporting the findings of the Tribunal and quantum of compensation, the learned counsel for the second Respondent – Insurance Company has submitted that the compensation awarded by the Tribunal is just and reasonable and the same cannot be interfered with. .7. This appeal is seeking for enhancement of quantum of compensation. The manner of the accident and as to who is responsible for the accident and the liability of Respondents are not in dispute. While the claimant was alighting from the bus, Stepney tyre kept on the top of the bus had fallen on the head of the Claimant and the Claimant sustained head and neck injury. Due to the accident, the Claimant sustained fracture injury on the neck and C3 bone was fractured. 8. In her evidence, P.W.1 has stated that after the accident, she had taken initial treatment at Government Hospital, Tiruvannamali and thereafter, she had taken treatment in a private hospital at Chennai and for medical expenses, she has spent about Rs.40,000/-. The Claimant has been working as Assistant in Primary Health Center. P.W. 1 has further stated that even after treatment, she is not in a position to move her neck and she experienced pain while so moving. 9. P.W.2, Dr. Ravindran had examined the Claimant on 211. 2001 and assessed permanent disability at 40% and issued Ex.P3 disability Certificate. The Claimant has been working as Assistant in Primary Health Center. P.W. 1 has further stated that even after treatment, she is not in a position to move her neck and she experienced pain while so moving. 9. P.W.2, Dr. Ravindran had examined the Claimant on 211. 2001 and assessed permanent disability at 40% and issued Ex.P3 disability Certificate. In his evidence, P.W. 2 has stated that he had noticed fracture of C3 bone and that the claimants neck movements are restricted. P.W. 2 had also noticed that the claimant suffering from pain due to C3 bone fracture and P.W. 2 has opined that the claimant would continue to suffer from neck pain. 10. Though P.W. 2 has assessed the permanent disability, the Tribunal, observing that the percentage of disability has not been satisfactorily proved, awarded only Rs.25,000/- for permanent disability and loss of earning power. The assessment of damages in personal injury cases raises great difficulties. It is not easy to convert the physical and mental loss into monitory terms. But money has to be awarded so as to compensate the injuries sustained by the claimant. 11. In (1874) 4 QBD 406 (Phillips v. Western Railway Co.), Field, J., while emphasizing that damages must be full and adequate, held thus: "you cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation once and for all. He has done no wrong, he has suffered a wrong at the hands of defendants and you must take care to give him full and fair compensation for which he has suffered." .12. In 1980 ACJ 55 (SC) (Concord of India Insurance Co. Ltd. v. Nirmala Devi) the Apex Court held: ."2. ... the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales...." .13. In 2006 (4) CTC 433 (Cholan Roadways Corporation Limited v. Ahmed Thambi). In 1980 ACJ 55 (SC) (Concord of India Insurance Co. Ltd. v. Nirmala Devi) the Apex Court held: ."2. ... the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales...." .13. In 2006 (4) CTC 433 (Cholan Roadways Corporation Limited v. Ahmed Thambi). Full Bench of this Court observing that the compensation awarded is to be just, fair and adequate has held as follows: ."The Supreme Court and this Court repeatedly held and reiterated that the compensation to be awarded by the Tribunals under any head should not be a token compensation, but it should be adequate and reasonable to achieve the statutory goal. The Tribunals are well advised to take into account the facts and circumstances of the individuals case, the age of the injured or the deceased on the date of the accident, social and economic status of the deceased or injured, the prospects of the deceased/injured earning more income if the accident had not taken place. The Courts and Tribunals, in bodily injury cases while assessing compensation should take into account all relevant circumstances, evidence, legal principles governing quantification of compensation". .14. Having regard to the nature of injuries and the avocation of the claimant and the evidence of P.Ws. 1 and 2, in my considered view, the quantum of compensation awarded by the Tribunal is abysmally low and the same has to be enhanced. The compensation amount of Rs.32,000/- is enhanced to Rs.75,000/- as under:- 15. The Tribunal appears to have awarded interest at the rate of 12% p.a. from the date of petition till the date of order and subsequently at the rate of 9% till realisation. The interest rate for the compensation amount of Rs.32,000/- is modified as 9% p.a. from the date of petition till the date of realisation. 16. In the result, The Order of the Motor Accidents Claims Tribunal (Additional District Judge-cum-Chief Judicial Magistrate) Tiruvannamalai District, dated 112. 2001 in MCOP No. 104 of 2001 is modified and this C.M.A. is allowed in part. The compensation amount payable to the Claimant is enhanced from Rs.32,000/- to Rs.75,000/-. 16. In the result, The Order of the Motor Accidents Claims Tribunal (Additional District Judge-cum-Chief Judicial Magistrate) Tiruvannamalai District, dated 112. 2001 in MCOP No. 104 of 2001 is modified and this C.M.A. is allowed in part. The compensation amount payable to the Claimant is enhanced from Rs.32,000/- to Rs.75,000/-. The Compensation amount of Rs.32,000/- awarded by the Tribunal is payable with interest at the rate of 9% p.a. The enhanced compensation of Rs.43,000/- shall be payable by the second Respondent/ Insurance Company with interest at the rate of 7.5% from the date of Petition. The second Respondent – Insurance Company has to deposit the enhanced amount along with accrued interest before the Tribunal to the credit of MACTOP No. 104 of 2001 on the file of the Motor Accidents Claims Tribunal (Additional District Judge-cum-Chief Judicial Magistrate) Thiruvannamalai, within a period of three months from the date of receipt of a copy of this order. On such deposit, the Claimant is entitled to withdraw the entire award amount along with accrued interest on his filing necessary application before the Tribunal. In the circumstances of the case, there is no order as to costs in this appeal.