Judgment :- 1. In the accident, which occurred on 12.04.2005, an interior decorator, aged about 22 years and stated to have earned Rs.3,000/- and sustained a Grade III Compound Fracture of both bones in the left leg and other injuries, claimed compensation of Rs.4,00,000/-. He was a pillion rider, in a motorcycle, bearing Registration No. TN 09 AF 8430, which was driven by one Prakash Pandian. In the accident, both the rider and pillion rider sustained injuries. They made separate claim petitions. As both the claim petitions arose out of the same accident, a joint trial has been held. Though the 2nd respondent-Insurance Company, disputed the manner of accident and its liability, the Claims Tribunal, upon consideration of oral and documentary evidence, fixed negligence on the driver of the Mahendra Van, bearing Registration No. TN 10 C 9559, in causing the accident and accordingly, awarded compensation in the claim petitions. 2. Insofar as the appellant-pillion rider is concerned, the Claims Tribunal, upon perusal of Exs.P2 and P3 – Discharge Summaries and Ex.P12 – Disability Certificate, found that the appellant has sustained a Grade III Compound Fracture in both bones left leg. Having regard to the avocation as an interior decorator, fixed the monthly income at Rs.3,000/-. PW.2, Doctor, who clinically examined the appellant/claimant, with reference to Ex.P13 – X-Ray, assessed the disability at 40% and issued Ex.P12 – Disability Certificate. He was hospitalised for 11 days. However, taking into consideration the period of time, between the accident and date on which, the disability certificate has been issued, ie., after three years, the Claims Tribunal came to the conclusion that the extent of disablement assessed by PW.3, Doctor, was excessive and therefore, reduced the same to 32%. Considering the nature of injuries, the Tribunal has awarded a compensation of 1,19,370/- under the following heads, Disability Compensation : Rs. 32,000/- Pain and Suffering : Rs. 10,000/- Transportation : Rs. 1,000/- Extra Nourishment : Rs. 3,000/- Medical Expenses : Rs. 58,370/- Loss of Earning : Rs. 15,000/- ------------------- Total : Rs.1,19,370/- 3. Contending inter alia that the compensation awarded by the Tribunal is inadequate, the injured has preferred this appeal. 4. Seeking enhancement of compensation, Mr. 32,000/- Pain and Suffering : Rs. 10,000/- Transportation : Rs. 1,000/- Extra Nourishment : Rs. 3,000/- Medical Expenses : Rs. 58,370/- Loss of Earning : Rs. 15,000/- ------------------- Total : Rs.1,19,370/- 3. Contending inter alia that the compensation awarded by the Tribunal is inadequate, the injured has preferred this appeal. 4. Seeking enhancement of compensation, Mr. V.Mohan Chaudary, learned counsel for the appellant submitted that the Claims Tribunal went wrong in reducing the disability from 40% to 32% and the reasons assigned by the Claims Tribunal should be rejected, as disability may set in, even after a considerable period of time. According to him, merely because, disability certificate has been issued after three years from the date of accident, the assessment cannot be found fault with. He also submitted that the Claims Tribunal has not properly considered the gravity of the injuries, viz., Grade III Compound Fracture of both bones in the left leg, which would seriously affect the work of an interior decorator, as the very nature of the job requires standing continuously. He therefore submitted that when the Claims Tribunal has chosen to award compensation under the head, loss of earning for five months, it has failed to advert to the fact that the extent of disablement in the leg would also affect the earning capacity of an interior decorator. 5. Learned counsel for the appellant further submitted that even if sufficient documentary evidence has not produced, as regards avocation, the Claims Tribunal ought to have awarded adequate compensation under the head, loss of future earning. He further submitted that the quantum of compensation under the heads, pain and suffering, transportation and extra nourishment, is less. Hence, he prayed for suitable enhancement. 6. Per contra, learned counsel for the 2nd respondent-Insurance Company submitted that considering the nature of injuries, determination of the extent of disablement, cannot be said to be erroneous. He further submitted that the overall quantum of compensation, is adequate and prayed for dismissal of the appeal. Heard the learned counsel for the parties and perused the materials available on record. 7. Before adverting to the issue, as to whether, the appellant is entitled to, any enhanced compensation, this Court deems it fit to consider the nature of injuries and the treatment underwent by the appellant. There are two discharge summaries, Ex.P2 and P3. Heard the learned counsel for the parties and perused the materials available on record. 7. Before adverting to the issue, as to whether, the appellant is entitled to, any enhanced compensation, this Court deems it fit to consider the nature of injuries and the treatment underwent by the appellant. There are two discharge summaries, Ex.P2 and P3. There is no dispute that the appellant has sustained a Grade III Compound Fracture of both bones in the left leg. As per Ex.P2 – Discharge Summary, he has been admitted in Parvathy Ortho Hospital, Chennai, on 12.04.2005. The diagnosis is Grade III Compound Fracture of both bones in the left leg. He has underwent a surgery on 13.04.2005, wherein, IL nailing with Fasciocutaneous flap has been done. At the time of admission, the doctors have noticed a lacerated wound in the left forehead, measuring 3 x 1 cms; below left eye, measuring 3 x 2 cms; inner aspect of lower lip, measuring 3 x 1 cms and left knee, measuring 5 x 3 cms. He has been discharged on 20.4.2005. The said Discharge Summary further reads as follows: “Patient complains of pain, swelling, over the left leg due to RTA, X-Ray Skull taken which showed fracture zygoma, X-Ray left leg showed fracture both bone. All the routine investigations were done. Case was seen by Dr.S.Muthukumar (Orthopaedic surgeon) and advised surgery. On 13.04.2005 under SA, IL nailing with fasciocutaneous flap done. Patinet was also seen by Dr. Tamilselvan (Plastic surgeon) advised flap cover. The same was done on 13.04.2005 under SA. Patient was treated Post operative period uneventful. Patient recovered well and is now discharged with the following advise.” 8. The advice of the Doctors, at the time of discharge is that there should be non-weight bearing crutch walking. The appellant has been advised to review with Dr. Tamilselvan (Plastic Surgeon) on 26.04.2005 at 02.00 P.M. After nearly a month, the appellant has been once again admitted in the same hospital on 29.05,2006. Another surgery has been performed on 29.05.2006, by which, the implant has been removed. He has been discharged on 30.05.2006. The discharge summary reads as follows: “A known case of compound fracture both bone of left leg – IM Nailing done, now admitted for removal of metal implant. Not a known case of DM/HT/IHD. Another surgery has been performed on 29.05.2006, by which, the implant has been removed. He has been discharged on 30.05.2006. The discharge summary reads as follows: “A known case of compound fracture both bone of left leg – IM Nailing done, now admitted for removal of metal implant. Not a known case of DM/HT/IHD. On examination : Patient GC fair, afebrile conscious, Pulse rate : 84/min BP : 130/80mm of Hg CVS/RS/PA : NAD Patient a known case of Compound fracture both bone of left leg – IM nailing done, now admitted for removal of mental implant. On 29.05.2006, under SA, through old incision locking screw removed. Through old incision patella tendon split tibial interlocking nail identified and removed. Saline wash given. Wounds closed. Dressing applied. Patient was treated with antibiotics, analgesics, vitamins and other supportive measures.” 9. The appellant has been advised for review after one week for suture removal. Thus, from the reading of Exs.P2 and P3, Discharge Summaries, it could be deduced that the appellant/claimant had underwent two surgeries and hospitalised for 11 days, in two different spells. The discharge summaries also reveal that the appellant has been advised non-weight bearing crutch walking, which makes it clear that due to the gravity of Grade III Compound fracture of both bones left leg, the appellant had a partial disablement during the period of treatment. 10. As per the medical text, “Outlines of Fractures” by John Crawford Adams, 10th Edition, a fracture is closed or simple, when there is no communication between the site of fracture and the exterior of the body. A fracture is open or compound when there is a wound of the skin surface leading down to the site of fracture. It must be stressed that the presence of a wound of the skin in association with a fracture does not necessarily mean that the fracture is an open fracture : it is classed as open or compound only when a direct communication exists between the body surface and the fractured bone ends. The communication may be through an open wound, but it may be no more than a puncture wound or even an area of bruised and devitalised skin. The communication may be through an open wound, but it may be no more than a puncture wound or even an area of bruised and devitalised skin. The distinction between closed and open fractures is important, because an open fracture is liable to be contaminated by organisms introduced from without and may therefore, become infected, whereas a closed fracture is free from that risk. 11. It is a common feature in Motor Accident Claims, the disability certificate is obtained only at the time, when it is required for production before the Claims Tribunal. Therefore, just because there is a time gap between the accident and the date on which, the disability certificate, is issued, it cannot be concluded that the extent of disablement assessed by the Doctor, is excessive. The process of healing and union of bones, depends upon the nature of injuries, general condition of the injured and many factors. Mal-union implies union of the fragments in an imperfect position. Thus the fragments may have united with angulation, rotation, loss of end-to-end apposition, or overlap and consequent shortening. To a slight degree mal-union occurs in many fractures, but in practice the term is reserved for cases in which the resulting deformity is of clinical significance. 12. At this juncture, this Court deems it fit to extract from the medical text, as to what are the cases of malunion and non-union of bones and the treatment given by the Doctors. “A malunion is a broken (fractured) bone that has healed in an unacceptable position that causes significant impairment. A nonunion is a fracture that has failed to heal after several months. In malunion, the bone may have healed at a bent angle (angulated), may be rotated out of position, or the fractured ends may be overlapped causing bone shortening. Malunion may be caused by inadequate immobilization of the fracture, misalignment at the time of immobilization, or premature removal of the cast or other immobilizer. Nonunion has several causes. The broken ends of bone may be separated too much (overdistraction), which can occur if excess traction was applied. There could have been excessive motion at the fracture site, either from inadequate immobilization after the injury or from having a cast removed prematurely. Muscle or other tissue caught between the fracture fragments also can prevent healing, as can the presence of infection or inadequate blood supply to the fracture site. There could have been excessive motion at the fracture site, either from inadequate immobilization after the injury or from having a cast removed prematurely. Muscle or other tissue caught between the fracture fragments also can prevent healing, as can the presence of infection or inadequate blood supply to the fracture site. Bone disease (e.g., bone cancer) also can prevent healing. There are two types of nonunions: fibrous nonunion and false joint (pseudarthrosis). Fibrous nonunion refers to fractures that have healed by forming fibrous tissue rather than new bone. Pseudarthrosis refers to nonunions in which continuous movement of the fracture fragments has led to the development of a false joint. Certain types of fractures are associated with a high risk of nonunion, such as fractures of the wrist (carpus), including scaphoid bone; certain fractures of the foot, including navicular fractures and Jones (diaphyseal) fractures of the fifth metatarsal; shoulder long bone fractures (proximal humerus fractures); and some shin bone (tibial) fractures. The severity of the injury is a strong factor in the healing process. Individuals who have had a severe traumatic fracture, large displacement between fracture fragments, and fractures where the bone was broken into many pieces (comminuted fracture) are at an increased risk of nonunion. Open or compound fractures also are at risk of malunion or nonunion. A condition called compartment syndrome can occur when sever trauma leads to such a degree of swelling that the blood supply is compromised. The result is muscle death around the fracture site and inadequate bone repair. Risk: Certain lifestyle and health factors may interfere with bone healing. These include smoking, excessive alcohol use, poor nutritional status, poor general health, fitness deficits, and diabetes. Other factors contribute to loss of bone strength and make healing more difficult. These include use of nonsteroidal anti-inflammatory drugs (NSAIDs), use of corticosteroid drugs, other drugs such as anticonvulsants, and the thyroid hormone replacement, thyroxine. Individuals of European or Asian ancestry who have increased risk for osteoporosis and elderly individuals are at increased risk for poor bone healing. Women who have experienced early menopause, late menarche, or the loss of their ovaries, are at increased risk for bone weakness. Diagnosis History: History is of a fracture that may or may not have been treated by a physician. The individual may report pain, swelling (edema), instability, or deformity at the site of a previously broken bone. Women who have experienced early menopause, late menarche, or the loss of their ovaries, are at increased risk for bone weakness. Diagnosis History: History is of a fracture that may or may not have been treated by a physician. The individual may report pain, swelling (edema), instability, or deformity at the site of a previously broken bone. If the fracture was in a lower extremity, the individual may report difficulty bearing weight through the limb. Physical exam: The exam reveals the deformity of a malunion or the instability of a nonunion. Touching with the hands (palpation) may reveal tenderness. Tests: Plain x-Rays demonstrate the fracture malunion or nonunion. CT Scan, MRI, or bone scan may help further define the condition. Treatment: Most malunions and nonunions require open surgery to realign the fracture fragments into their normal anatomical position (open reduction) and stabilize the fracture by use of metal plates, rods, screws, and/or wires (internal fixation). Bone graft material may be placed in the surgical site to stimulate fracture healing. Some cases, whether treated surgically or with noninvasive techniques (closed reduction), benefit from the use of electrical, electromagnetic, or ultrasonic stimulation to promote fracture healing and bone growth. Electrical stimulation may be administered by a self-contained device surgically implanted internally at the fracture site or by multiple electrodes placed over the skin near the fracture site. In some studies of fractures of the radius, lateral malleolus, and tibia, low-intensity pulsed ultrasound treatments administered through the skin adjacent to the fracture site have been shown to speed healing. Malunion is treated by surgically breaking the malunion (osteotomy), followed by ORIF. Infection requires surgical removal of any infected bone or tissue (débridement), followed by intensive antibiotic treatment. Treatment of nonunion may be complemented with a synthetic bone graft or one that is obtained from the individual (autograft, autogenous graft), from another individual (allograft, homogeneous graft), or from an animal (xenograft, heterogeneous graft). Newer approaches are using recombinant bone morphogenic protein and bone marrow aspirates. Bone marrow may be harvested from the individual's hip bone (iliac crest) and injected directly into the fracture site guided by external imaging (fluoroscopy). Treatment of pseudarthrosis involves removal (resection) of the false joint tissue before placement of the bone graft. Treatment of delayed unions and nonunions may also include functional bracing of the fracture site. Bone marrow may be harvested from the individual's hip bone (iliac crest) and injected directly into the fracture site guided by external imaging (fluoroscopy). Treatment of pseudarthrosis involves removal (resection) of the false joint tissue before placement of the bone graft. Treatment of delayed unions and nonunions may also include functional bracing of the fracture site. In some instances (e.g., some fractures of scaphoid), nonunion causes only slight problems, and the condition is left untreated. Likewise, malunion may be left untreated if it causes little or no functional deficit. For example, clavicle fractures may be allowed to heal in an imperfect but acceptable alignment (“bayonet” apposition) without resulting functional loss. Similarly, mild angulation of a humerus fracture does not impair use of the upper extremity. Prognosis: Treatment of malunion by ORIF usually has a good outcome. Osteotomy can reduce deformity and relieve functional impairment, but this places the bone at risk of fracture. Minor degrees of malunion are common and may not have a significant effect on function or appearance. Bone grafting usually is a successful treatment for nonunion, especially in the long bones of the body. Electrical and electromagnetic bone growth stimulators continue to progress and are especially advantageous in management of infected nonunions and in situations where surgery is not advisable. Low-frequency ultrasound therapy may decrease fracture-healing time in lower extremity nonunions by as much as two months. Bone marrow injection into the site of nonunion may resolve the nonunion without need for further surgery. Complications: A malunion can result in a functional impairment with limited mobility. Any malunion can put increased stress on other joints causing pain and/or accelerated wear. Major degrees of malunion can cause impairment in function and significant deformity and can lead to degenerative arthritis. Malunion in a finger can interfere with the use of other fingers. Nerve damage can occur, especially with an elbow fracture. A malunion in a leg can result in an abnormal gait. A nonunion may be painless, but the fracture will be unstable and the bone less strong. Nonunions in a lower extremity may result in reliance upon assistive devices (e.g., crutches, wheelchairs) for mobility. Return to Work (Restrictions/ Accommodations): The restrictions and accommodations are determined by the specific fracture, the severity of the malunion or nonunion, and job requirements. A nonunion may be painless, but the fracture will be unstable and the bone less strong. Nonunions in a lower extremity may result in reliance upon assistive devices (e.g., crutches, wheelchairs) for mobility. Return to Work (Restrictions/ Accommodations): The restrictions and accommodations are determined by the specific fracture, the severity of the malunion or nonunion, and job requirements. If surgical correction is necessary, work duties may need to be modified temporarily to avoid use of the affected limb. 13. As per the Medical Texts, some of the aspects to be taken note by a Doctor, in the case of failure to recover are, Regarding diagnosis: Does individual have a malunion or a nonunion? Does individual report pain, instability, or deformity at the site of a previous fracture? Has malunion or nonunion been confirmed by x-rays, bone scan, or other imaging studies? Have conditions with similar symptoms been ruled out? Regarding treatment: Was adequate time allowed for bone to heal? Did individual require functional bracing of the limb? Did individual require ORIF? Was bone graft done? Bone marrow injection? Did individual use low-intensity ultrasound? Electrical bone stimulation? Was rehabilitation program prescribed? Was individual compliant? Regarding prognosis: Does individual continue to have risk factors for delay of fracture healing (e.g., corticosteroid use, smoking, malnutrition)? What are individual's functional limitations as a result of the malunion/nonunion? Is individual active in physical therapy or rehabilitation program? Does individual have any comorbid conditions that could influence length of disability (e.g., diabetes, bone cancer, osteoporosis)? Has individual experienced any complications, such as nerve damage, abnormal gait, or degenerative arthritis? Is individual's employer able to accommodate necessary restrictions and work modifications?” 14. Merely cause the disability certificate has been issued after three years, from the date of accident, it cannot be concluded that the assessment made by the Doctor as excessive. Considering the nature of injuries, the surgeries underwent by the appellant, this Court is of the view that the reason assigned for reducing the percentage of partial and permanent disablement, cannot be accepted and therefore, this Court deems it fit to restore the extent of disablement assessed by PW.3, Doctor, to 40% and following the decisions in M.D., T.N.S.T.C. Ltd., v. S. Kannappan reported in 2007 (2) TNMAC 1 and Prahalath Jasmathiya v. V. Sankaran reported in 2009 (5) MLJ 1549 (Mad-NOC), awarded a sum of Rs.80,000/- (Rs.2,000/- per percentage of disability). 15. 15. Admittedly, the appellant has underwent two surgeries. At the time of accident and during the course of treatment and convalescence, the appellant would have experienced severe pain and suffering. He was just 21 years old. Disablement to the extent of 40% has been assessed by the Doctor. Considering the same, the appellant would find it difficult to walk freely and thus, it can be presumed that the appellant/claimant would have lost the amenities, which as per the decision of the Full Bench of this Court in Cholan Roadways Corporation Ltd., Kumbakonnam vs. Ahmed Thambi and others reported in 2006 (4) CTC 433 , means, "deprivation of the ordinary experiences and enjoyment of life and includes loss of the ability to walk or see, loss of a limb or its use, loss of congenial employment, loss of pride and pleasure in one's work, loss of marriage prospects and loss of sexual function" In the light of the decision, this Court is inclined to award Rs.10,000/- under the head, loss of amenities. 16. Considering the nature of injury, Grade III Compound Fracture of both bones in the legs, two surgeries underwent by the appellant, the compensation of Rs.10,000/-awarded under the head, pain and suffering, is inadequate and therefore, it is enhanced to Rs.20,000/-. So also, compensation of Rs.1,000/-awarded under the head, transportation is inadequate and considering the fact that the appellant/claimant has sustained a Grade III Compound Fracture of both bones in the left leg and advised for periodical review, the compensation under the said head, is enhanced to Rs.5,000/-. 17. A person, who had underwent two surgeries and advised non-weight bearing crutch walking, would have taken the assistance of an attendant, for which, no compensation has been awarded. Therefore, this Court is inclined to award Rs.5,000/- under the head, 'attendant charges'. When the claims Tribunal has observed that the appellant could not have attended his work for five months, after undergoing two surgeries to unite a Grade III Compound Fracture of both bones in the left leg, the compensation of Rs.3,000/-awarded towards extra nourishment is inadequate and hence, it is enhanced to Rs.5,000/-. Compensation of Rs.20,000/- and Rs.58,370/-awarded towards medical expenses and loss of income, is retained. 18. Compensation of Rs.20,000/- and Rs.58,370/-awarded towards medical expenses and loss of income, is retained. 18. In view of the above, the appellant/claimant is entitled to Rs.1,98,370/-, with interest at the rate of 7.5% per annum, from the date of claim, under the following heads, Disability Compensation : Rs. 80,000/- Pain and Suffering : Rs. 20,000/- Medical Expenses : Rs. 58,370/- Loss of Earning : Rs. 15,000/- Loss of Amenities : Rs. 10,000/-Transportation : Rs. 5,000/- Extra Nourishment : Rs. 5,000/- Attendant Charges : Rs. 5,000/- Total : Rs.1,98,370/- 19. In the result, the Civil Miscellaneous Appeal is allowed. The appellant/claimant is entitled to an enhanced compensation of Rs.79,000/-, with interest at the rate of 7.5% per annum. The second respondent-Insurance Company is directed to deposit the amount, now determined by this Court, with proportionate accrued interests and costs, less the amount, awarded by the Tribunal, to the credit of M.C.O.P.No.2016 of 2005, on the file of Motor Accident Claims Tribunal (II Small Causes Court), Chennai, within a period of six weeks from the date of receipt of the copy of this order. No costs.