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2011 DIGILAW 1451 (MAD)

K. Lakshmi v. M. Dharmaraj

2011-03-15

ARUNA JAGADEESAN

body2011
Judgment :- 1. This Civil Miscellaneous Appeal is filed by the Claimant against the Judgment and Decree dated 28.2.2005 made in M.C.O.P. No.2188 of 2000 by the learned VI Judge (MACT) (Court of Small Causes) Chennai for enhancement of the claim amount. 2. Shortly stated factual conspectus are as under: On 23.4.2000 at about 23.00 hours, while the Appellant/Claimant was traveling in an Auto bearing Reg.No.TN-01-P-5609 from north to south in east Coast Road, near Muthumariamman Koil, Palavakkam, the Car bearing Reg.No.PY-01-9531 driven in a rash and negligent manner coming on the opposite direction dashed against Auto, due to which, the Claimant sustained multiple fractures and injuries. Hence, the Claimant claimed a total compensation of Rs.17,00,000/- before the Tribunal. The Tribunal awarded a compensation of Rs.5,25,000/- under various heads. Hence, this Civil Miscellaneous Appeal has been filed by the Claimant of enhancement. 3. According to the Claimant, she suffered multiple injuries viz., fracture on left thigh bone, dislocation of left knee joint, fracture on left knee cap and fracture on left hip bone and she also sustained injuries on her shoulder, chest and head in the accident and her left thigh bone was broken into pieces. She was taken to Government Hospital, Royapettah and she took treatment as an impatient from 24.4.2000 to 9.6.2001 i.e., for a period of 412 days. She also claimed to have taken treatment till she filed the Claim Petition and undergone several surgeries. The Medical records disclose that the external fixations were fixed to her four times. Ex.P2-Discharge Summary disclosed that she was again admitted in the Government Hospital, Royapettah on 18.9.2003 and was discharged on 25.9.2003 that is for eight days. According to the Claimant, during the interregnum period, she has taken treatment in the Government Hospital, Royapettah as an out-patient. As she was the resident of Kattankulathur, she was coming to the Government Hospital, Royapettah by special mode of transport, as she was unable to walk due to the fracture sustained by her. According to the Claimant, there was only minimal movements in her knee and right ankle was stiffened, due of which, she could walk only by pressing the toes. 4. PW2, Dr.JRR Thyagarajan, who examined the Appellant, assessed the permanent disability at 83% and stated in Ex.P8-Disability Certificate the following: 1. Malunited # BB(L) leg and both (L) ankle 2. 5” x 5” (L) knee in Extension – Nil Flexion 3. 4. PW2, Dr.JRR Thyagarajan, who examined the Appellant, assessed the permanent disability at 83% and stated in Ex.P8-Disability Certificate the following: 1. Malunited # BB(L) leg and both (L) ankle 2. 5” x 5” (L) knee in Extension – Nil Flexion 3. (L) Ankle – NIL DF (L) foot 4. Head 4” above ground level shortening and walks on forefoot – support in required. 5. Malunited # both pubic superior and inferior (4) bones 6. 5” (R) rib malunited – pain on deep conscription – difficulty to do hard work. According to the Claimant, she was doing independent business dealing in sale of village – made house hold articles and aged 30 years at the time of the accident and was earning Rs.7,500/- p.m. 5. Mr. Swamikannu, the learned Counsel for the Appellant has submitted that the amount of compensation awarded by the Tribunal is inadequate and would contend that by virtue of the formula provided under the Second Schedule to the Motor Vehicle Act under which any claim made even in respect of non-fatal accident, an assessment of loss of earning can be made by applying the appropriate multiplier. 6. The learned Counsel for the Appellant would submit that the Claimant was earning income by selling village-made household articles and that apart, the services rendered by her as a home maker should also be taken into consideration while determining the monthly income of the deceased. 7. The learned Counsel for the Appellant placed reliance on the decision of the Honourable Supreme Court reported in Arun Kumar Agrawal and another v. National Insurance Company Limited and others, 2010 (2) TN MAC 129 (SC) : 2010 (7) MLJ 811 (SC), and the decision of this Court reported in National Insurance Company Limited v. Minor Deepika, 2009 (1) TN MAC 671 (DB) : 2009 (6) MLJ 1005 , wherein it is held that the services rendered by a home maker cannot be equated with the services of an employee and it is virtually impossible in terms of money the loss of personal care and attention suffered by the husband and children on the demise of the housewife. The Honourable Supreme Court held that the dependents, who are husband and children are entitled to adequate compensation in lieu of the lost gratuitous services rendered by the deceased. 8. On the other hand, Mr. The Honourable Supreme Court held that the dependents, who are husband and children are entitled to adequate compensation in lieu of the lost gratuitous services rendered by the deceased. 8. On the other hand, Mr. C. Ramesh Babu, the learned Counsel for the 2nd Respondent supported the impugned award and contended that the Tribunal after taking into consideration the entire evidence placed on record awarded a sum of Rs.5,25,000/-, which is just and reasonable and does not require any enhancement. 9. I have considered the submissions of the learned Counsel on either side and also perused the entire materials placed on record. 10. From the evidence of P.W.2-Doctor, it is disclosed that the Claimant suffered multiple fractures on leg and hip. Considering the deformities by her, PW2, assessed the permanent disability at 83%. PW2 has deposed that as a consequence of the fractures, she will be not be able to bend her knee and she cannot sit continuously and has pain at the time of taking deep breath, which would prevent her from doing any hard work. He would state that due to the fracture the right foot got stiffened and raised to 4” as a result of which there is shortening of foot and she could walk only by using the front portion of the toe. 11. The evidence of the Doctor itself indicates that the Claimant had suffered considerable injuries of lasting nature and that she will also suffer in future and will not be a normal healthy person again. The avocation she was carrying on involves lot of traveling and walking which she cannot do after the accident. The Claimant has suffered a permanent disability as a result of injuries and it would definitely affect her earning capacity. 12. Though there is no material evidence to prove the income of the Claimant, applying the principle laid down by the Honourable Supreme Court, the loss of income can be quantified at Rs.3,000/- and loss of annual dependency would be Rs.36,000. Considering the medical evidence, the loss of earning capacity could be assessed as 75%. Therefore, by applying the multiplier of 17, the Loss of Future Earning would be Rs.4,59,000/- ((3,000 x 12) x (75/100)x17). 13. The medical records disclosed that she had been treated as an inpatient for more than 412 days and again for eight days. Considering the medical evidence, the loss of earning capacity could be assessed as 75%. Therefore, by applying the multiplier of 17, the Loss of Future Earning would be Rs.4,59,000/- ((3,000 x 12) x (75/100)x17). 13. The medical records disclosed that she had been treated as an inpatient for more than 412 days and again for eight days. Accordingly to her, she has been taking treatment as out-patient during the interregnum period also. Therefore, the Loss of Income for nearly two years during the period of treatment is arrived at Rs.72,000/-. Considering the prolonged treatment, a sum of Rs.10,000/- towards Transportation and of Rs.10,000/- towards Nutrition can be awarded. Considering the nature of injuries, a sum of Rs.50,000/- towards Pain and Suffering and Rs.25,000/- towards Attender Charges can be awarded. Considering the nature of injuries and period of treatment, though there is no material to prove the medical expenses incurred by the Claimant, a sum of Rs.10,000/- towards medical expenses can be awarded. A sum of Rs.10,000/- towards Loss of Conjugal Relations can be awarded, Rs.25,000/- towards the loss of amenities and Rs.1,000/- towards Damage to Clothes can be awarded. In all, the Claimant is entitled to a sum of Rs.76,72,000/- as compensation. 14. In the result, this Civil Miscellaneous Appeal is allowed and the impugned award is enhanced to the extent mentioned above. The Claimant is entitled to a Total Compensation of Rs.6,72,000/- (Rupees six lakhs seventy two thousand only) (Rs.4,59,000/- towards the Loss of Future Income due to the loss of Permanent Disability + Rs.72,000/- towards Loss of Income during the Period of Treatment + Rs.10,000/- towards Transportation + Rs.10,000/- towards Nutrition + Rs.50,000/-towards Pain and Suffering + Rs.25,000/- towards Attender Charges + Rs.10,000/-towards Medical Expenses + Rs.10,000/- towards Loss of Conjugal Relations +Rs.25,000/- towards the loss of amenities + Rs.1,000/- towards Damages to Clothes) with interest 7.5% p.a. for the enhanced amount. The Insurance Company is directed to deposit the enhanced award with interest at 7.5% p.a. within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the Claimant is entitled to withdraw the entire award amount with interest. No costs.