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2011 DIGILAW 3130 (MAD)

R. Madanagopal v. A. Suseelabai

2011-07-01

ARUNA JAGADEESAN

body2011
JUDGMENT :- 1. Since these Civil Miscellaneous Appeals arise against one and the same accident and the award, they are heard together and disposed of by this common judgement. 2. These Civil Miscellaneous Appeals are filed by the claimants against the Judgement and Decree dated 31.8.2005 made in MCOP.Nos.5217/2000, 6/2001 and 112/2001 by the learned Chief Judge (MACT) Court of Small Causes, Chennai. 3. The claimants in MCOP.Nos.5217/2000, 6/2001 and 112/2001 filed the above claim petitions, claiming a compensation of Rs.50,86,000/-, Rs.56,00,000/- and Rs.50,76,000/- respectively under various heads before the Tribunal for the injuries sustained by them in the motor accident that took place on 30.09.2000 at about 8.30 hours. The Tribunal awarded a sum of Rs.1,96,920/-, Rs.1,16,478 and Rs.3,35,950/- to the claimants in MCOP.Nos.5217/2000, 6/2001 and 112/2001 respectively as compensation under various heads. As against the same, these Civil Miscellaneous Appeals have been filed by the claimants for enhancement of the compensation. 4. This court heard the submissions of the learned counsel on either side and also perused the materials placed on record. 5. Mr.M.Swamikkannu, the learned counsel for the Appellants submitted that the compensation awarded by the Tribunal is very meagre. According to him, the Tribunal has not worked out the compensation in accordance with the principles laid down by this court. 6. On the other hand, Mr.P.S.Sankaranarayanan, the learned counsel for the 2nd Respondent Insurance Company supported the impugned award and submitted that the compensation awarded by the Tribunal is just and reasonable. 7. CMA.No.4009/2005:- a. The claimant R.Madanagopal in MCOP.No.5217/2000 suffered injury on his right eye, fracture in the right shoulder, fracture in the fingers, fracture in the left leg and injury on the right knee. He was admitted in the Government Hospital, Villupuram and thereafter, referred to Apollo Hospital, Chennai. He was hospitalised from 30.9.2000 to 13.10.2000 and subsequently, he was treated as an out patient at M.N.Nursing Home for the injuries and thereafter, treated at Hunday Hospital for the injury in the right eye. Ex.P9, the accident register copy issued by the Government Hospital, Villupuram shows the injuries suffered by him as follows:- i. fracture of mid shaft left tibia ii. communited fracture clavicle iii. IDK right knee iv. right maxilla and zygomatic v. left fracture radial and ulna styloid process b. He had undergone interim nailing right tibia, open reduction and internal fixation of the right clavicle. communited fracture clavicle iii. IDK right knee iv. right maxilla and zygomatic v. left fracture radial and ulna styloid process b. He had undergone interim nailing right tibia, open reduction and internal fixation of the right clavicle. At the time of discharge, he has been advised to take bed rest and physiotherapy treatment. The claimant has examined himself as PW.1 and deposed that he suffered disability in the accident and he could walk only with difficulty. He has stated that it is not possible for him to bend the legs as before and he is not able to open his mouth and unable to eat hard food substances and unable to hold articles by using right hand fingers. c. PW.4, Dr.Thiagarajan, a retired professor in General Surgery and Traumotology, Government Stanley Hospital, Chennai and a private practitioner, has examined the claimant on 14.12.2003 and assessed the disability as follows:- i. 20% disability for the deformities suffered by the claimant, namely, fracture on the right side of the nose, the bones were not properly united, contusion and pain while eating food substances and unable to open the mouth normally. ii. 30% disability for the deformities suffered by the claimant, viz., fracture on the right clavicle bone, steel plates were fixed, the bones were not properly united and the movements are restricted and since the nerves are affected, the function of the right arm to hold the articles with fingers is reduced and difficulty to drive the vehicles and to write continuously. iii. 10% disability for the deformities suffered by the claimant, namely, legament injury in the right and difficulty in walking. iv. 25% disability for the deformities suffered by the claimant, namely, fracture in the left tibia bone, nailing was done and the movements of the left knee is restricted to 90 degree and difficulty to climb staircase and walk with speed. In all, PW.4 assessed the permanent disability as 85 percent. d. As per the directions of this court in CRP.No.470/2004 dated 24.6.2004, Dr.N.Mayilvahanan, an orthopedic surgeon, who treated the claimant, was examined as CW.1 and he has assessed the disability as 20 per cent permanent and partial. His evidence indicated that he noticed the injury in both the legs and the range of movements in the knee was restricted to 100 degree. His evidence indicated that he noticed the injury in both the legs and the range of movements in the knee was restricted to 100 degree. In view of the restricted movements of knee, the claimant found difficulty in squatting and sitting and on the basis of the guidelines mentioned by Dr.Ramar Book on disability values, he assessed the disability as above. Ex.C1 is the disability certificate issued by CW.1. e. As per the evidence of PW.1, he was a Graduate and was employed as a Senior Manager in M/s.RPG Cellular Limited on the date of the accident. There is no dispute that he continued in the same employment and admittedly, subsequent to the accident, he was duly promoted as a General Manager. Therefore, there was no loss of service or reduction of emoluments. As admitted by him, he has been promoted to a higher cadre for more salary. However, from the evidence adduced by the claimant supported by PW.2, PW.4 and CW.1, it is seen that on account of the injuries sustained by the claimant, he has difficulty to hold article, lift weight, pull or push and the movements of limps are restricted and also painful. According to PW.4, union of bones at the fractured site are not proper, as a result of which, the claimant has suffered permanent disability. Keeping in view the evidence of PW.1, PW.4 and CW.1, it could be held that the claimants suffered from unhappiness to some extent while doing normal activities. f. Taking the evidence of PW.4 into consideration, I am constrained to observe that the award passed by the Tribunal, fixing the permanent disability at 20 per cent, thus accepting the assessment made by CW.1, is very low and not in consonance with the principles enunciated by the Honourable Supreme Court reported in 1995-ACJ-366 (R.D.Hattangadi Vs. Pest Control (India) Pvt. Limited) wherein the Honourable Supreme Court, speaking about the heads of compensation, held thus:- "9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non pecuniary damages are those which are incapable of being assessed by arithmetical calculations. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant; (i) medical attendance; (ii) loss of earning profit up to the date of trial; (iii) other material loss. So far as non pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters. i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life." g. The principles with regard to the determination of just compensation contemplated under the Motor Vehicles Act are well settled. Injuries cause deprivation to the body which entitle the claimant to claim damages. The damages may vary according to the gravity of the injury sustained by the claimant in an accident. On account of the injuries, the claimant may suffer consequential loss, such as, loss of earnings, expenses on treatment, loss or diminution to the pleasures of life by a loss of a particular part of the body, loss of future earning capacity. The damages can be pecuniary as well as non pecuniary, but all have to be assessed in rupees and paise. It is impossible to equate human suffering and personal deprivation with money. However, this is what the Motor Vehicles Act enjoins upon the courts to do. The court has to make a judicious attempt to award damages, so as to compensate the claimant for the loss suffered by him. Such a compensation is what is termed as just compensation. h. The court, while assessing the compensation, should have regard to the degree of deprivation and the loss caused by such deprivation. 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 just token damages. h. The court, while assessing the compensation, should have regard to the degree of deprivation and the loss caused by such deprivation. 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 just token damages. It is also well settled that in disablement cases, compensation has always to be higher than even in cases of death, since it is given to the living victim of the accident both for his personal loss and for economic loss. Due to the injury he may suffer loss of enjoyment of life or full pleasures of living. i. Turning to the evidence in the present case, PW.4 Doctor has assessed the permanent disability as 85 per cent, but, whereas CW.1 Doctor has assessed it as 20 per cent. When it could be said that the assessment made by PW.4 is on the higher side, but at the same time, the assessment made by CW.1 is also on the lower side. From the evidence of the Doctors, it is apparent that the claimant has difficulty in squatting, sitting for a long time and driving the vehicle and he could do normal activities only with certain difficulty. Considering the injuries suffered by him and the permanent disability assessed by the Doctors, I am of the view that he can be granted a sum of Rs.1,50,000/- as compensation for the permanent disability suffered by him. j. PW.1's evidence indicated that he is an income tax assessee and the income was deducted at source. In Ex.P15 salary certificate, net salary is shown as Rs.26,660/- p.m. The Tribunal taking his monthly as Rs.26,660/- has awarded Rs.79,980/- towards loss of income during the period of treatment, which is reduced to Rs.60,000/- taking Rs.20,000/- as loss of income per month. The award amount of Rs.10,000/- towards transportation expenses, Rs.10,000/- towards extra nourishment, Rs.1,000/- towards damages to clothes and Rs.30,000/- towards pain and suffering awarded by the Tribunal are just and proper compensation and the same are retained. As per Ex.P8, medical reimbursement certificate, the claimant has received Rs.73,798/- from the employer and apart from the said medical reimbursement, the claimant has spent a sum of Rs.45,938.29/- towards medical expenses as per Ex.P13 medical bills and the Tribunal awarded Rs.45,940/- towards medical expenses, which is also retained. As per Ex.P8, medical reimbursement certificate, the claimant has received Rs.73,798/- from the employer and apart from the said medical reimbursement, the claimant has spent a sum of Rs.45,938.29/- towards medical expenses as per Ex.P13 medical bills and the Tribunal awarded Rs.45,940/- towards medical expenses, which is also retained. In addition to that, a sum of Rs.25,000/- towards attendant charges and Rs.20,000/-towards loss of amenities are awarded. In all, the claimant in MCOP.No.5217/2000 (CMA.No.4009/2005) is entitled to a sum of Rs.3,51,940/- as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization. 8. CMA.No.4010/2005:- a. The minor claimant in MCOP.No.6/2001 had sustained bleeding injuries in the nose and ears in the accident and was admitted in the Government Hospital, Villupuram. Subsequently, he was admitted in the Apollo Hospital, Chennai and again in the Apollo Speciality Hospital for further treatment. He had suffered blood clot in the brain and there was an injury on the right hand also. The medical records disclosed that plastic surgery was conducted and he was in unconscious stage for about 10 days and he was hospitalised for about 30 days. According to the minor claimant, even after the treatment, there is loss of power of hands and legs and was unable to run with speed and he has lost his confidence. It is further stated that he was unable to participate in sports. Ex.P18 the accident register copy reveals the injuries sustained by him as stated above and the discharge summary Ex.P19 shows that he has taken treatment at Apollo Speciality Hospital as an inpatient from 30.9.2000 to 25.10.2000. He was treated by the Neuro Surgeon and the CT Scan report of the brain showed thin subdual haemotoma on the right fronto parietal and he was kept in observation in ICU. On one occasion, during the period of treatment, he fell down while walking and sustained scalp laceration and recovered fully. In view of the subdual haemotoma on the right front parietal, he had weakness on left upper limb and has been treated with medicines. On one occasion, during the period of treatment, he fell down while walking and sustained scalp laceration and recovered fully. In view of the subdual haemotoma on the right front parietal, he had weakness on left upper limb and has been treated with medicines. b. RW.1 Dr.Dharmarajan, a nuero surgeon, who examined the minor claimant, has though stated that the minor claimant has not suffered any disability, but during the cross examination, he admitted that due to the head injury, there is a possibility of convulsion development at a later stage and it has to be treated with medicines. He has also admitted that if the minor claimant did not take adequate rest and if he had over strain, it may develop such convulsion and he was a student at the time of the accident. c. As per the evidence of PW.4, the minor claimant gets post traumatic headache and there is restriction of movements of facial muscle. Considering that he had difficulty to run and participate in games and the deformities suffered by him, PW.4 assessed the disability at 40 per cent. The nature of injuries were grievous in nature and as per the evidence of RW.1, the minor claimant has been treated for brain injury. Even as per the evidence of CW.1, there is every possibility of convulsion development at a later stage. He was a school student, studying II Standard at the time of the accident. It appears that he is only an average student. On considering the above evidence and the disability suffered by him as narrated above, a sum of Rs.70,000/- is awarded for the permanent disability suffered by the minor claimant. d. The award amount of Rs.5,000/- towards transportation expenses, Rs.10,000/-towards extra nourishment, Rs.500/- towards damages to clothes and Rs.50,000/- towards pain and suffering awarded by the Tribunal are just and proper compensation and the same are retained. Apart from that, a sum of Rs.20,000/- towards attendant charges is awarded. The award of amount of Rs.50,978, which is born out by Ex.P21 medical bills, awarded by the Tribunal is rounded off to Rs.51,000/-. In all, the minor claimant in MCOP.No.6/2001 (CMA.No.4010/2001) is entitled to a sum of Rs.2,05,500/-as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization. 9. The award of amount of Rs.50,978, which is born out by Ex.P21 medical bills, awarded by the Tribunal is rounded off to Rs.51,000/-. In all, the minor claimant in MCOP.No.6/2001 (CMA.No.4010/2001) is entitled to a sum of Rs.2,05,500/-as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization. 9. CMA.No.4011/2005:- a. The claimant in MCOP.No.112/2001 sustained injuries on her face, fracture on nasal bone and also fracture in her right wrist and fracture in her left little finger and pain on hip. She was admitted at Government Hospital, Villupuram and subsequently, admitted in the Apollo Hospital and thereafter, Apollo Speciality Hospital, Chennai. She has suffered loss of one tooth and she was hospitalised from 30.9.2000 to 13.10.2000 at Apollo Speciality Hospital and she has taken treatment at M.N.Orthopaedic Hospital, where the steel plates already fixed were removed by conducting surgery. Below her eye surgery was conducted and plates were fixed for the fracture sustained in the face. According to her, she is unable to bend her right hand towards back side and she has difficulty in eating food substances. She also has suffered headache and also swelling on her face and she complained that she has loss of memory power. b. The claimant is employed as a Lecturer at Vishnava College. According to her, she finds difficult to attend the domestic duties and unable to use her right hand for writing in black board and the appearance of face is also affected. c. PW.4 has assessed her permanent disability as 30 per cent for the neurological problem and 10 per cent for the disability in hand and 10 per cent for other facial deformities. In all, he assessed the permanent disability at 80 per cent. CW.1, who treated the claimant, has deposed that she had a facial fracture, fracture of right fore arm, fracture of metacarpal left hand and he has assessed permanent disability as 30 per cent permanent and partial. Though the assessment of permanent disability made by PW.4 is excessive, but, at the same time, the permanent disability assessed by CW.1 is also on the lower side. CW.1 has not taken into consideration the other neurological problems and the facial deformities in making the assessment. Though the assessment of permanent disability made by PW.4 is excessive, but, at the same time, the permanent disability assessed by CW.1 is also on the lower side. CW.1 has not taken into consideration the other neurological problems and the facial deformities in making the assessment. Taking into consideration the nature of injuries and the deformities suffered by her, more particularly, the neurological problem and facial deformities, a sum of Rs.1,40,000/- is awarded for the permanent disability suffered by her. d. As there is no evidence for loss of earning capacity and there is also no proof for the loss of emoluments, no amount is awarded for the loss of earning power. She has been under treatment for about six months and she was working as a Lecturer and her monthly salary was Rs.8000/- p.m. The claimant has deposed as PW.2 that she was unable to attend the college for three months. Therefore, the Tribunal has awarded a sum of Rs.24,000/- for the loss of income during the period of treatment, which is just and reasonable and the same is retained. The award amount of Rs.10,000/- towards transportation expenses, Rs.20,000/- towards extra nourishment and Rs.70,000/-towards pain and suffering awarded by the Tribunal are just and proper compensation and the same are retained. The award of amount of Rs.1,36,949.02, which is born out by Ex.P29 medical bills and rounded off to Rs.1,36,950/-, as awarded by the Tribunal is retained. A sum of Rs.25,000/- towards loss of amenities and Rs.25,000/- for attendant charges are awarded. In all, the claimant in MCOP.No.112/2001 (CMA.No.4011/2001) is entitled to a sum of Rs.4,55,950/- as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization. 10. In the result, these Civil Miscellaneous Appeals are allowed . The impugned award is enhanced from Rs.1,96,920/- to Rs.3,51,940/-, from Rs.1,16,478 to Rs.2,05,500/- and from Rs.3,35,950/- to Rs.4,55,950/- in the respective appeals as mentioned above. 10. In the result, these Civil Miscellaneous Appeals are allowed . The impugned award is enhanced from Rs.1,96,920/- to Rs.3,51,940/-, from Rs.1,16,478 to Rs.2,05,500/- and from Rs.3,35,950/- to Rs.4,55,950/- in the respective appeals as mentioned above. The claimant in MCOP.No.5217/2000 (CMA.No.4009/2005) is entitled to a sum of Rs.3,51,940/- (Rupees three lakhs fifty one thousand nine hundred and forty only) as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization as detailed below:- The minor claimant in MCOP.No.6/2001 (CMA.4010/2001) is entitled to a total compensation of Rs.2,05,500/- (Rupees two lakhs five thousand and five hundred only) with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization as detailed below:- The claimant in MCOP.No.112/2001 (CMA.No.4011/2001) is entitled to a sum of Rs.4,55,950/- (Rupees four lakhs fifty five thousand nine hundred and fifty only) as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization as detailed below:- The 2nd Respondent/Insurance Company is directed deposit the enhanced award amounts in each appeal as mentioned above with interest at 7.5% p.a. from the date of the claim petition till the date of deposit within a period of eight weeks from the date of receipt of a copy of this order and on such deposit being made, the claimants in MCOP.Nos.5217/2000 and 112/2001 are entitled to with draw their respective award amount with proportionate interest. The award amount of the minor claimant in MCOP.No.6/2001 shall be invested in any one of the Nationalised Banks till he attains majority and the claimant in MCOP.No.5217/2000, who is the father and guardian of the minor claimant in MCOP.No.6/2001, is entitled to withdraw the accrued interest from the share of the minor claimant once in three months. No costs.