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2008 DIGILAW 724 (MAD)

Major P. Manickam v. Manjunath & Others

2008-02-28

R.BANUMATHI

body2008
Judgment :- Being dissatisfied with the quantum of compensation of Rs.1,25,000/- for the injuries sustained by him in the Road Traffic Accident, the injured-Claimant has preferred this Appeal. .2. Brief facts which are necessary for disposal of this Appeal are as follows:- .The Claimant was working as Subedar Major in the Defence Service in M.R.C., Wellington. On 17. 1998 when the Claimant was coming from Coonoor to Wellington in his motorcycle bdearing registration No.TSL 8742 and was proceeding near Wellington around 9.15 A.M., opposite to Wellington Contonment Hospital, a Tata Sumo Jeep bearing registration No.KA-09-M-3543 coming in the opposite direction in a rash and negligent manner and dashed against the Claimant. Due to the accident the Claimant sustained grievous injuries in the right leg and thigh and his motorcycle was also suffered damages. The Claimant was admitted in Military Hospital, Wellington where he had taken treatment as in-patient. Alleging that the accident was due to the rash and negligent driving of the Jeep driver, Claimant has filed Petition U/s.166 of M.V. Act claimaing compensation of Rs.10,00,000/-. 3. Opposing the claim and denying the accident, Insurance Co., has filed counter stating that the Appellant was riding the motorcycle in the middle of the road while Tata Sumo was coming on the extreme left side of the road and the accident was due to the negligent driving of the motorcycle by the Appellant and therefore, the Insurance Co., is not liable to pay any compensation. The Insruance Co., also disputed the age, income of the Claimant and also the nature of injuries sustained by the Claimant and Permanent Disability. 4. Before the Tribunal the Claimant was examined himself as P.W.1. Dr.Perumal was examined as P.W.2. Exs.A.1 to A.8 were marked. On the side of the third Respondent-Insurance Co., the Investigating Officer was examined as R.W.1 and his report was marked as Ex.B1. Upon consideration of oral and documentary evidence, Tribunal held that the accident was due to rash and negligent driving of the Jeep driver and held that the Insured and Insurer are jointly and severally liable to pay the compensation. Based on the evidence of P.W.1 and P.W.2 and upon Ex.A.6 Disability Certificate, the Tribunal has fixed the disability at 30% and awarded lump sum compensation of Rs.1,25,000/-. .5. Based on the evidence of P.W.1 and P.W.2 and upon Ex.A.6 Disability Certificate, the Tribunal has fixed the disability at 30% and awarded lump sum compensation of Rs.1,25,000/-. .5. Challenging the impugned Order, the learned counsel Thiru.S.K.Raghunathan, appearing for the Appellant-Claimant has submitted that the Claimant was a Army person and was earning the monthly salary of Rs.15,000/-and due to the accident he was relieved from the job and the same was not taken into consideration by the Tribunal. It was further submitted that the Tribunal erred in arriving at the compensation of Rs.1,25,000/- without any basis and without taking into consideration the Permanent Disability suffered by the Claimant and also the Loss of future prospects of earning by the Claimant. It was further contended that the Tribunal erred in not awarding any compensation for Pain and Suffering caused to the Appellant due to the accident. 6. It is not necessary to narrate the entire facts in detail as to how the accident had occurred, who is responsible for the accident and who is liable to pay the compensation, it is for the reason the Tribunal has recorded the findings in favour of the Claimant. Further, these findings are not under challenge. Only the quantum of compensation is in dispute. 7. In the accident the Claimant has suffered fracture in the right femur shaft and compound fracture of tibia and fibula and multiple abrasions all over the body. At the time of accident, the Claimant was working as Subedar Major. After the accident the Claimant had taken treatment as in-patient in Military Hospital, Wellington and thereafter, he was shifted to Air Force Command Hospital, Bangalore. Again the Claimant was admitted as in-patient in Military Hospital, Wellington and he was treated for the fracture and dislocation of thigh. 8. In his evidence, P.W.1 has stated that even after the treatment, he is not in a position to walk and that he had been discharged from Military service in 1999. At the time of accident, he was aged 50 years. P.W.1 has further stated but for the accident, he would have continued in service for ten years. 9. P.W.2 Dr. Perumal had examined the Claimant on 18.06.2001. P.W.2 has noticed malunited fracture shaft of right femur and malunited fracture of both bones of right leg and the restriction of flexion movement at hip and knee. P.W.1 has further stated but for the accident, he would have continued in service for ten years. 9. P.W.2 Dr. Perumal had examined the Claimant on 18.06.2001. P.W.2 has noticed malunited fracture shaft of right femur and malunited fracture of both bones of right leg and the restriction of flexion movement at hip and knee. There was also restriction of dorsi flexion of right ankle. P.W.2 has noticed shortening of right lower limb by 6cms and there was cosmelic disfigurement over the right leg due to crush injury. P.W.2 had assessed the Permanent Disability at 50%. The Tribunal has taken the disability at 30%. 10. From Ex.A.6, it is seen that inspite of treatment, there was malunion fracture shaft of right femur and both bones of right leg and restriction of right hip. The Claimant who was in short service commission in the Army service was discharged in 1999 because of the Permanent disability in the right lower limb. It is stated that because of physical impairment in the right leg the Claimant could walk only with crutches. Had Claimant served the entire 10 years of Military service, the Claimant would have been entitled to the benefits and he would have earned the income as Subedar. Having regard to the nature of injuries, I am of the considered view that the Tribunal ought to have taken the Permanent Disability as 50% and not as 30%. 11. Observing that the Claimant had not produced any documents to show that he was relieved from Army service and that there was no loss of earning, the Tribunal has awarded lump sum compensation of Rs.1,25,000/-. To ensure transparency and to avoid confusion, it is always desirable that the Tribunals should itemise the compensation in personal injury cases. 12. In 2006 (4) CTC 433 (Cholan Roadways Corporation Limited v. Ahmed Thambi), the Full Bench of this Court has held as under: "19. In order to avoid any future confusion and to bring more clarity and transparency in the award of damages, it is necessary that the Tribunal, while awarding damages, should itemise the award under each of the head namely, pecuniary losses and nonpecuniary losses. In order to avoid any future confusion and to bring more clarity and transparency in the award of damages, it is necessary that the Tribunal, while awarding damages, should itemise the award under each of the head namely, pecuniary losses and nonpecuniary losses. In the non-pecuniary losses the Tribunal shall consider: (a) pain and suffering, (b) loss of amenity, (c) loss of expectation of life, hardship, mental stress, etc., (d) loss of prospect of marriage and under the head pecuniary losses, the Tribunal shall consider loss of earning capacity and loss of future earnings as one component apart from medical and other expenses and loss of earning, if any from the date of accident till the date of trial. When loss of earning capacity is compensated as also the nonpecuniary losses under (a) to (d), permanent disability need not be separately itemized." 13. It is not possible to discern the quantum of compensation under various heads. As noted earlier, the claimant had taken treatment at three spells of time in Military hospital, Wellington and in Air Force Command Hospital, Bangalore. The Tribunal ought to have awarded the compensation for Pain and Suffering, Extra nourishment and Transport charges. Having regard to the percentage of disability and since the Claimant was discharged from the Military service, Tribunal ought to have awarded just compensation for Permanent disability and for loss of future income. 14. The Court has to make a judicious attempt to award damages, so as to compensate the Claimant for the loss suffered by him. Such compensation is what is termed as "just compensation". The Court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. The Supreme Court and this Court had repeatedly held that in bodily injury cases while assessing compensation, the Court should take into account all the relevant circumstances, evidence and the legal principles governing quantification of compensation. The compensation or damages assessed for the personal injuries should be substantial damages to compensate the injured for the deprivation suffered by him throughout his life. They should not be only token damages. 15. The Claimant had also appeared in this Court along with his son. The Court has noticed that the Claimant is totally crippled and is unable to stand or walk. They should not be only token damages. 15. The Claimant had also appeared in this Court along with his son. The Court has noticed that the Claimant is totally crippled and is unable to stand or walk. The Court has also noticed that he could walk only with crutches and has great difficulty even for standing. In future also, the Claimant might require the assistance of others for going out and for traveling. Having regard to the physical impairment, it will be appropriate to award Rs.25,000/- as attendant charges to be met by the Petitioner in future. 16. Having regard to the nature of injuries, duration of treatment and percentage of disability, the compensation amount of Rs.1,25,000/- is enhanced to Rs.2,75,000/-under the following heads: Transport Charges .... Rs. 10,000/- Pain and Suffering .... Rs. 30,000/- Extra nourishment .... Rs. 10,000/- Permanent Disability and Loss of earning .... Rs.2,00,000/- Attendant charges .... Rs. 25,000/- Total Rs.2,75,000/- 17. In the result, (i) The quantum of compensation of Rs.1,25,000/-awarded by the Tribunal in M.C.O.P.No.51 of 1999 dated 01.08.2001 on the file of the District Judge, Motor Accident Claims Tribunal, Uthagamandalam is enhanced to Rs.2,75,000/- and this C.M.A. is allowed in part. (ii) The compensation amount of Rs.1,25,000/-awarded by the Tribunal is payable with interest at the rate of 9% p.a. (iii) The Claimant is entitled to withdraw the compensation amount of Rs.1,25,000/-along with accrued interest already deposited to the credit of M.C.O.P.No.51 of 1999 immediately. .(iv) The enhanced compensation of Rs.1,50,000/-is payable with interest at the rate of 7.5% p.a. from the date of Petition till the date of deposit. .(v) The third Respondent-Insurance Co., shall deposit the enhanced compensation of Rs.1,50,000/- along with accrued interest within a period of three months from the date of receipt of copy of this Judgment. .(vi) On such deposit, the Claimant is entitled to withdraw the enhanced compensation amount along with accrued interest on filing necessary application before the Tribunal. (vii) There is no order as to costs in this Appeal.