IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.04.2010 CORAM THE HONOURABLE MRS.JUSTICE R.BANUMATHI AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.M.A. (NPD) No.694 of 2005 1.United India Insurance Co. Ltd., Branch Office, No.91, Rajaji Salai, Karur, Trichy District. 2.United India Insurance Co. Ltd., Branch Office, 10-143, Thirupathi Road, Renugunta. ... Appellants Vs. 1.R.Vijayakumar 2.S.Rathinam 3.K.Shanmugam 4.M.Puliyuran 5.Ravi Yadav 6.M/s.Nagar Finance & Investments, No.51, G.N.Chetty Road, T.Nagar, Chennai 600 017. ... Respondents Appeal filed under Section 173 of the Motor Vehicles Act 1988 against the judgment and decree in M.C.O.P.No.93 of 1993 dated 25.09.2003 on the file of the Motor Accidents Claims Tribunal, Subordinate Court, Dharmapuri. For Appellants :Mr.N.Vijayaraghavan For Respondents : Mr.N.Manokaran for R1 for M/s.M.T.Arunan R2 to R5-NDW R6-Given up J U D G M E N T
(Judgment of the Court was delivered by M.VENUGOPAL,J.)
The Appellants/Respondents 3 and 7 has projected this Civil Miscellaneous Appeal as against the Award dated 25.09.2003 in M.C.O.P.No.93/1993 passed by the Motor Accidents Claims Tribunal viz., Sub Court, Dharmapuri.
2.The Claims Tribunal viz., the Sub Court, Dharmapuri had passed an Award in the Claim Petition filed by the First Respondent/Claimant directing the Respondents 2, 3/Respondents 1, 2 and the First Appellant/Third Respondent to pay 50% of the Award amount of Rs.19,97,385/- and also the Respondents 4, 5 and the Second Appellant/Insurance Company to pay the balance of 50% of the Award amount of Rs.19,97,385/- jointly and severally together with interest at 9% per annum from the date of filing of the petition till the date of realisation without costs and dismissed the claim against the Sixth Respondent, etc.,
3. Before the Tribunal, on the side of the First Respondent/Claimant, witnesses P.Ws.1 to 4 were examined and Exs.P1 to P26 were marked. On the side of the Respondents, noone was examined and no documents were marked.
4. Dissatisfied with the quantum of compensation awarded by the claims Tribunal viz., the Sub Court, Dharmapuri, the Appellants/Respondents 3 and 7 have projected this appeal before this Court.
5. According to the Learned counsel for the Appellants/Respondents 3 and 7, the Award passed by the Tribunal is contrary to Law, weight of evidence and probabilities of the case and indeed, the Tribunal had committed an error in awarding a sum of Rs.1,00,000/- under the caption of Pain and Suffering, Rs.15,60,000/- under the Head, Permanent Disability and Loss of Earning Power which were not borne out by evidence on record.
6. It is the further contention of the Appellants that in the absence of any proof in regard to the income of the First Respondent/Claimant, the tribunal had erroneously assumed imaginary figures or applied the multiplier as if there was a permanent loss of income. Also, the Disability being only 20%, the Tribunal was not correct in adopting the multiplier method for determining the compensation.
7. Continuing further, it is the plea of the Appellants that Ex.P23 Doctor Certificate dated 22.01.2003 issued in favour of the First Respondent/Claimant showed that the fracture had united well, within the acceptance of Permanent Disability at 20% by the Tribunal was an incorrect one.
8. Moreover, the rate of interest awarded by the Tribunal at 9% per annum from 1993 was an erroneous one based on the facts and circumstances of the case. Lastly, on behalf of the Appellants, it is contended that in any event the Award of Rs.19,97,385/- granted by the Tribunal as compensation under different heads without acceptable oral and documentary evidence was liable to be interfered with by this Court sitting in Appeal and resultantly, the Appellants/Respondents 3 and 7 prayed for allowing the appeal in furtherance of substantial cause of justice.
9. The Tribunal on an appreciation of the evidence of P.Ws.1 to 3 coupled with Ex.P1 First Information Report came to the resultant conclusion that the Driver of the Third Respondent/Second Respondent viz., the Second Respondent/First Respondent and the Fifth Respondent’s Car Driver viz., the Fourth Respondent were responsible for happening of the occurrence on 21.09.1992 because of their fast speed, negligence and rash driving of the vehicles and we are in complete agreement with the view taken by the Tribunal in this regard and since the happening of the occurrence and the finding arrived at by the Tribunal was not disputed or challenged by the Appellants/Respondents 3 and 7, we are not going into the manner of occurrence in an elaborate manner.
10. In regard to the quantum compensation to be awarded, it is to be pointed out that the First Respondent/Claimant in the Claim Petition had claimed a total compensation of Rs.26,75,500/-, but restricted the claim to Rs.25,00,000/- only. The restricted claim of Rs.25,00,000/- in break up figures as claimed by the First Respondent/Claimant is as follows:-
a) Loss of Earning from 21.09.1992
to 20.12.1993 - Rs.7,75,000/-
b) Partial Loss of Earnings - Rs.5,00,000/-
c) Transport to Hospital
(i)Dharmapuri to Madras Rs.2,500
(ii)Madras to Bangalore
flight Service Rs.6,500
(iii)Madras to Lusangels Rs.2,50,000 - Rs,2,59,000/-
d) Extra Nourishment - Rs. 10,000/-
e) Damages to clothing and articles - Rs. 15,500/-
f) Others; Medical Expenses - Rs.1,25,000/-
g) Compensation for Pain and sufferings-Rs.5,00,000/-
h) Compensation for continuing
Permanent Disability if any - Rs.5,00,000/-
i) Compensation for Loss of Earning
Power
---------------------
Total Rs.26,75,500.00/-
----------------------
The claim is restricted to Rs.25,00,000/-
11. It is the evidence of P.W.1 (First Respondent/Claimant) that because of the accident, when he was travelling in the car on 20.09.1992 starting from Vellore at 9 p.m. And when the car was giving slowly near Kundalapatti in Krishnagiri-Dharmapuri Road early morning in the opposite direction, a lorry came in a fast speed, negligent manner, zig zag and he directed his driver to slow down his car and while travelling he would not slip and at that time, the lorry which came in the opposite direction dashed against his car the accident took place in a lighting speed.
12. It is further evidence of P.W.1/Claimant that his car was dragged in the occurrence and that he lost his conscience for 10 to 15 minutes without knowing details as to what happened and when he opened his eyes, he saw glass pieces on his face and that his left hand was broken and found hanging and that he was caught underneath his car and that he sustained injuries on the left foot, knee and on his back.
13. P.W.1/First Respondent/Claimant’s Make Up man called another vehicle showing hand sign because of the fact his own car driver was also injured in the accident and in that vehicle, he was taken to Dharmapuri, Kamalam hospital for getting immediate treatment and was given treatment and that his family at Madras was given the relevant information and subsequently, for further treatment, he was taken to Manipal hospital at Bangalore where he remained as inpatient for 8 days since his left hand bone in entirety was broken, a surgery was performed on him and two plates were fixed. Also, because of the fact his ribs were broken in large numbers, etc., he was taken to Vijaya hospital, Chennai for further treatment and he had difficulty in breathing and therefore a surgery of his ribs were performed by Dr.Sezhian who removed the blood clots and later, he could breath properly. Moreover, he removed the sutures put on him at Manipal hospital in Suriya Hospital at Chennai. He remained as inpatient for 10 days at Vijaya Hospital, Chennai.
14. The evidence of P.W.4/Claimant is to the effect that since he sustained grievous injuries, he heard the talk that he could not pursue his Actor avocation and therefore, he suffered mental agony in an untold fashion. Inasmuch as he sustained numerous injuries, he could not act any new films and further he could not perform his part as per agreements entered into by him and he suffered mental agony for three months. P.W.1/Claimant on the advice of Expert/Specialist Dr.Marthanda went to America in March 1993 for treatment and in New York University hospital, he remained as an inpatient for 15 days where he was looked after by his brother and his wife.
15. P.W.1/Claimant for his trip to America along with his brother and wife had spent a sum of Rs.2,50,000/- towards Transport Expenses. Towards Medical Expenses in America, he had spent a sum of Rs.1,50,000/-.
16. That apart, it is the evidence of P.W.1/First Respondent/Claimant that per year, he used to act in 10 or 12 Films. At the time of accident, he was 48 years and at the time of accident, he received offers for acting in more Films since he had acted in fight scenes in large numbers on earlier Films and after the accident, noone came forward to enter into agreement in connection with the new Films and even after they had come, he had expressed his inability to act in the same and that he had suffered a disability of 60% and though he had estimated his loss towards Pain and Suffering, Medical Expenses and damage to his avocation as an Actor at a sum of Rs.60,00,000/-, he had claimed a sum of Rs.25,00,000/- as compensation.
17. P.W.2 Dr P.Subramanian in his evidence had deposed that on 21.09.1992 at about 05 o’ clock in the morning, the First Respondent/Claimant (P.W.1) was brought to his nursing home for immediate treatment and P.W.1 and another informed him that on the same date, at about 02.30 a.m. in the morning at Kundalapatti raised ground (medu), his car and the lorry which came in the opposite side dashed, as a result of which he suffered the injuries and along with P.W.1 his Make -Up Man Jayaram also came to the hospital and he examined P.W.1/Claimant and gave Ex.A24 Wound Certificate to P.W.1.
18. P.W.3 (Manager of P.W.1/First Respondent/Claimant) in his evidence had stated that his jobs are to obtain call sheet of P.W.1/Claimant entered into Film Agreement, to receive money from the Film Company and to deposit the same in the Bank and during 1991-92, P.W.1/Claimant was doing 15 Films and in the year 1993, P.W.1 acted in four Films and since P.W.1 met with an accident, he could not act in the films properly and therefore he had no booking of films and thereby sustained loss of income.
19. Added further, P.W.3 in his evidence had further stated that at the time of accident for one film P.W.1 used to earn a sum of Rs.50,000/- and since P.W.1/Claimant went to hospitals frequently, the Film Producers had not entered into any Film Agreement with him and the injuries sustained by P.W.1/Claimant are presently a permanent one and currently, on an average, P.W.1/Claimant was acting two or three films.
20. The evidence of P.W.4 Dr.G.Ashok Kumar is to the effect that on 07.08.2003, he examined P.W.1/Claimant at his house in connection with the grant of Disability Certificate and on his examination, P.W.1 had taken treatment at Manipal Bangalore hospital
for the two bones fracture on left forearm and 7, 8 bone fracture of left ribs and presently, the left forearm bone fracture slightly malunited in a bending fashion, etc., and further because of his left ribs bone fracture, P.W.1/Claimant was facing difficulty while bending properly and bending while acting during fighting scenes and therefore, he had given a Certificate of total Disability at 50% as per Ex.A26.
21.The Learned counsel for the Appellants submits that in the present case, there was no evidence to show that the P.W.1/Claimant in how many films he could not act because of the injuries he sustained in the accident and as a matter of fact, no income tax assessment of P.W.1/Claimant was not produced to show his income and in the absence of necessary proof or document in this regard, the finding of the Tribunal that per film in a year, P.W.1/Claimant would have earned a sum of Rs.50,000/- was purely in the realm mark speculation and the same ought not to be accepted.
22.The Learned counsel for the Appellants cites the decision of the Hon’ble Supreme Court SYED BASHEER AHAMED AND OTHERS
V. MOHD. JAMEEL AND ANOTHER, 2009 (1) CTC 743 at page 744, wherein it is held as follows:-
“Section 168 of the Act enjoins the Tribunal to make an award determining “the amount of compensation which appears to be just”. However, the objective factor, which may constitute the basis of compensation appearing as just, have not been indicated in the Act. Thus, the expression “which appears to the just” vests a wide discretion in the Tribunal in the matter of determination of compensation. Nevertheless, the wide amplitude of such power does not empower the Tribunal to determine the compensation arbitrarily, or to ignore settled principles relating to determination of compensation. Similarly, although the Act is a beneficial legislation, it can neither be allowed to be used as a source of profit, nor as a windfall to the persons affected nor should it be punitive to the person(s) liable to pay compensation. The determination of compensation must be based on certain data, establishing reasonable nexus between the loss incurred by the dependants of the deceased and the compensation to be awarded to them. In nutshell, the amount of compensation determined to be payable to the claimant(s) has to be fair and reasonable by accepted legal standards.”
23.He also cites the decision NEW INDIA ASSURANCE CO. LTD., V. CHARLIE, 2005 ACJ 1131, wherein ‘the Tribunal in respect of the injured, 100% Permanent Disability awarded a sum of Rs.2,88,000/- for Loss of Earnings, Rs.1,18,975/- for Medical Expenses, Rs.15,000/- for Pain and Suffering, Rs.40,000/- for Permanent Disability and Rs.6,850/- for Transportation, Damage to Clothes and Nourishing Diet.’
24.Yet another decision M.S.LUTHUFULLAH AND ANOTHER V. S.BALU, 2005 (3) TNLJ (CIVIL) 580 is relied on the side of the Appellants to the effect that “…not in all occasions the Court concur with the opinion of the medical officer when the obliquely or patently, there is some dissimilarity between the percentage of the disability and seriousness of the injury and disagreeing the Medical Officer, the Court can also reduce the disability on the basis of various factors, the quantum of compensation was fixed at Rs.2,00,000/- instead of Rs.9.19,000/-.”
25. He also draws the attention of this Court to the order of this Court (DB) dated 29.04.2009 in C.M.A.No.3854 of 2004, wherein
at paragraph No.7, it is among other things observed as follows:-
” …..The Tribunal has quantified some amount as the economic loss and therefore there could be no award under the head of disability, in view of Full Bench decisions in CHOLAN ROADWAYS CORPORATION LTD., V. AHMED THAMBI (2006 (4) CTC 433), wherein it was held that when loss of earning capacity is already compensated, permanent disability need not be separately itemised. Therefore the award of Rs.1 lakh under the head of disability is deleted. For transport expenses and extra nourishment a total sum of Rs.50,000/- has been awarded. We reduce this to Rs.25,000/-, since we are unable to comprehend how much extra nourishment a person, who had suffered fracture will need, even if we assume that he stacked his room with bottles of Horlicks. For pain and suffering, the award of Rs.50,000/- is confirmed..”
26. The Learned counsel for the First Respondent/Claimant cites the decision of the Hon’ble Supreme Court VIDHYADHAR V. MANIKRAO AND ANOTHER, (1999) 3 SUPREME COURT CASES
573, at page 583, at paragraph No.17, wherein it is held as follows:-
“Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in SARDAR GURBAKHSH SINGH V. GURDIAL SINGH (AIR 1927 PC 230:32 CWN 119). This was followed by the Lahore High Court in KIRPA SINGH V. AJAIPAL SINGH (AIR 1930 LAH 1 :ILR 11 LAH 142) and the Bombay High Court in MARTAND PANDHARINATH CHAUDHARI V. RADHABAI KRISHNARAO DESHMUKH (AIR 1931 BOM 97:32 BOM LR 924. The Madhya Pradesh High Court in GULLA KHARAGJIT CARPENTER V. NARSINGH NANDKISHORE RAWAT (AIR 1970 MP 225 : 1970 MPLJ 586) was followed and the Privy Council decision in Sardar Gurbakhsh Singh case (AIR 1927 PC 230:32 CWN 119). The Allahabad High Court in Arjun Singh V. Virendra Nath (AIR 1971 ALL 29) held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass V. Bhishan Chand (AIR 1974 P&H 7) drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box.”
27. He also relies on the decision of the Hon’ble Supreme Court A.P.S.R.T.C., Rep. By its CHIEF LAW OFFICER V. M.PENTAIAH CHARY, 2007 (2) TNMAC 152 (SC) wherein the Hon’ble Supreme Court has among other things held that ‘Application of multiplicative factor should also be considered from that angle and Susamma Thomas does not lay down any law in absolute terms and therefore, as laid down in Krishna Bala’s case, 2006 (6) SCC 249, the amount of compensation will have to be determined having regard to fact as to what capital sum, if invested at a rate of interest appropriate to a stable economy, could yield multiplicand by way of annual interest, etc.,’
28. He brings it to the notice of this Court yet another decision of the Hon’ble Supreme Court SUNIL KUMAR V. RAM SINGH GAUD AND OTHERS, (2008) 2 MLJ 865 (SC) wherein it is held that ‘After the fracture of tibia, it is doubtful if the appellant can even drive again. The disability suffered would surely reduce his earning capacity. Therefore, the appellant is required to be compensated for the loss of earning due to the injuries suffered.”
29. Also, he relies on the decision of this Court in S.ACHUTHAN AND ANOTHER V. M.GOPAL AND ANOTHER, 2004 (2) TN MAC 36 (DB), wherein it is held that ‘…in Appeal, taking into all aspects into consideration this Court granted the following amounts over and above granted by the Tribunal.’
30. The Tribunal had awarded a total compensation of Rs.19,97,385/- and the break up details for the same is under:-
i)Loss of Income - Rs.15,60,000.00
ii)Loss of Amenity - Rs. 1,00,000.00
iii)Pain and Suffering - Rs. 1,00,000.00
iv)Air Travel Expenses - Rs. 1,40,000.00
v)Medical Expenses - Rs. 59,885.00
vi)Extra Nourishment - Rs. 10,000.00
vii)Transportation Expenses - Rs. 2,500.00
viii)Damage to clothing - Rs. 5,000.00
ix)Future Medical Expenses - Rs. 20,000.00
-----------------------
Total Rs. 19,97,385.00/-
-----------------------
31. The Learned counsel for the Appellants/Insurance Company raised a serious dispute in regard to the Permanent Disability mentioned in Exs.A23 and A26 Disability Certificates dated 24.02.1993 and 07.08.1993 issued by Sooriya Hospital, Chennai and the witness P.W.4 and therefore, this Court on 18.03.2010 passed an order referring the First Respondent/Claimant to the Medical Board, Government Hospital, Chennai for assessment of his Permanent Disability and his continued Permanent Disability due to the injuries sustained by him in the accident.
32. The Medical Board of Government General Hospital, Chennai-3 submitted a Report dated 09.04.2010 in respect of the First Respondent/Claimant whereby it was mentioned that ‘there was malunited fracture both bones (L) Forearm C Limitation or supination and proaction of forearm pain-moderate unhealthy scare (L) forearm and chronic pain on the (L) lower ribs and determined the disability at 40% based on the Workmen Compensation Act.
33. The learned counsel for the Appellants produced a Certificate dated 16.03.2010 issued by the Director of the Teja Hospital wherein it was mentioned that the First Respondent/Claimant who sustained multiple fracture of the left hand ribs in 1993 is still having steel rod with bolts in his left arm and he is unable to use it to its full capacity and that it is time that the steel rod and bolts should be removed as his capacity to use the hand in film shooting is less than 50% of its original strength.
34. In Ex.A3, Disability Certificate dated 24.02.1993 issued by the Sooriya Hospital, Chennai, the Ortho Doctor has mentioned that the First Respondent/Claimant had fractured both bones left forearm and fracture 7th and 8th ribs left side due to a Road traffic accident in September 1992 and also, he had plueral effusion sequlae to injury and his permanent disability was at 50%.
35. Though in the present case before the Tribunal, P.W.4 Dr.Ashok Kumar had deposed in his evidence (in cross-examination) that the permanent disability of 50% was in relation to left forearm and left ribs and in respect of the whole body, permanent disability would be at 20-25%. Therefore by taking into account of evidence of P.W.4 doctor that the Disability of the whole body of the First Respondent/Claimant would be at 20-25%, this Court determines the Permanent Disability on the whole body of the First Respondent/Claimant at 20%.
36. However, on the side of the Appellant/Insurance Company, it is contended that the First Respondent/Claimant towards Medical Bills is entitled to claim a sum of Rs.50,000/-, for Future Medical Expenses, he is entitled to claim a sum of Rs.50,000/- and towards 20% Disability, he is entitled to claim a sum of Rs.50,000/- and for Pain and Suffering, he is entitled to claim a sum of Rs.20,000/- and towards Extra Nourishment and Transportation, he is entitled to claim a sum of Rs.20,000/-, towards Loss of Income, he is entitled to a sum of Rs.30,000/- and towards Future earning, he is entitled to receive a sum of Rs.30,000/- and in all, he is entitled to receive a total compensation of Rs.2,50,000/- together with interest at 9% p.a. for the period from 16.09.1993 to 26.04.2005 amounting to Rs.2,70,000/- and except these amounts, he is not entitled to any other amounts.
37.It is to be pointed out that the damages awarded should not be mean or extravagant, but it must be a sensible and fair one. It is the duty of a Court of Law/Tribunal to award as perfect a sum as is within its power. Also, one cannot brush aside an important fact that the money may be awarded as compensation in case of an injury so that something tangible may be procured to replace of like nature which has been destroyed or lost. Further more, what is the pecuniary consideration which will not make good to the sufferer as far as money can do so the loss which he has suffered as the natural result of wrong done to him.
38.As far as the present case is concerned, though the injured First Respondent/Claimant was examined as P.W.1 and in his evidence, he had stated that he used to earn Rs.50,000/- per month at the time of accident and in fact, he used to earn Rs.4,00,000/- per year, to substantiate the same no documentary evidence was filed by him before the Claims Tribunal to show his exact income. Likewise, both P.W.3 his Manager had stated in his evidence that P.W.1 at the time of accident per film on an average used to earn Rs.50,000/- no document was marked before the Tribunal to show that P.W.1 was actually in receipt of Rs.50,000/- per film on an average. As a matter of fact, even the Income Tax assessment document in respect of the First Respondent/Claimant was not marked in M.C.O.P. Petition before the Tribunal. In short, there was absence of income proof of the First Respondent/Claimant. At the same time, one cannot ignore an important fact that the First Respondent/Claimant is an Actor whose avocation is to act in films. In deciding M.C.O.P. Claim petition, in the absence of documentary evidence pertaining to the real income of a person then considering the occupation and status of a person, we are of the considered view that little amount of conjecture is possible. Therefore, this Court fixes the monthly income of the First Respondent/Claimant by acting in films at Rs.20,000/- per month and because of injury sustained, the Loss of Income per year works out to Rs.2,40,000/- (Rs.20,000 X 12). Since at the time of accident, the First Respondent/Claimant was aged about 49 years, this Court adopts a reasonable multiplier of 10. Therefore, the Loss of Income of the First Respondent/Claimant in respect of 20% Disability works out to Rs.4,80,000/- (Rs.2,40,000/- X10X20/100) and therefore, this Court determines the Loss of Income due to permanent disability of the First Respondent/Claimant to a sum of Rs.4,80,000/-. Towards Pain and Suffering, this Court awards a sum of Rs.1,00,000/-.
39. Though the Tribunal had awarded a sum of Rs.1,40,000/- to the First Respondent/Claimant in connection with Foreign tour (visiting America on a Tourist Visa as informed by the Appellants/Insurance Company), this Court is not inclined to award the said sum of Rs.1,40,000/- and we delete the said sum of Rs.1,40,000/- from the amount of compensation awarded by the Claims Tribunal because of the fact that the First Respondent/Claimant was on a Foreign Tour to United States of America, Malaysia and Singapore as per the letter dated 06.03.1993 of U.K.Travels (P) Ltd., Chennai. In this connection, though on the side of the First Respondent/Claimant much reliance was placed on to Ex.A10, Certificate issued by Beth Israel Medical Centre dated 21.11.2002 mentioning that the First Respondent/Claimant was treated and was discharged home, etc., in view of the fact that the First Respondent/Claimant’s visit to America and other countries along with his brother and wife was on a Tourist Visa, we are not awarding any amount towards his Travel Expenses to America.
40. Since the First Respondent/Claimant had incurred Medical Expenses of Rs.45,554/- as per Ex.A11 Receipt, a sum of Rs.3,730/- as Medical Expenses as per Ex.A12 Series and a further Medical Treatment Expenses of Rs.10,600/- as per Ex.A13 Receipts (Series), we award a sum of Rs.59,885/- as a rounded of figure under the caption Medical Expenses. Towards Extra Nourishment, we award a sum of Rs.10,000/-. Towards Transportation Charges, we grant a sum of Rs.2,500/- and towards Damages to clothing, we award a sum of Rs.5,000/-. Although on the side of the First Respondent/Claimant, Ex.A14 Hospital Certificate dated 24.02.2003 was filed to the effect that the First Respondent/Claimant was advised to undergo plate removal and the approximate cost for hospitalisation and Surgery was estimated to around Rs.50,000/-, considering the nature of injuries sustained by the First Respondent/Claimant arising out of the accident and in view of the fact that his Permanent Disability was assessed and determined by this Court at 20%, towards Future Medical Expenses, we grant a sum of Rs.50,000/-.
41. Since this Court had awarded a sum of Rs.1,00,000/- towards Pain and Suffering to the First Respondent/Claimant, we are of the considered view that the Award of Rs.1,00,000/- towards the Loss of Amenity granted by the trial Court was an incorrect one and therefore, we set aside the same.
42. Thus, we award a total compensation of Rs.7,07,385/- (Rupees Seven Lakhs Seven Thousand Three Hundred and Eighty five only) with interest at 9% per annum from the date of accident till date of payment with pro costs payable by the Appellants/Insurance Company (being the insurer of Lorry No.5485 and the Car Premier A.B.26/2525-offending vehicles) to the First Respondent/Claimant as compensation for the injuries sustained by him in a road accident that took place on 21.09.1992 and the break up figures of the same is mentioned hereunder:-
i)Loss of Income - Rs.4,80,000.00 ii)Pain and Suffering - Rs.1,00,000.00 iii)Medical Expenses - Rs. 59,885.00 iv) Extra Nourishment - Rs. 10,000.00 v)Transport Expenses to Hospital (at the time of accident) - Rs. 2,500.00 vi)Damage to Clothing - Rs. 5,000.00 vii) Future Medical Expenses - Rs. 50,000.00 ---------------------- Total Rs.7,07,385.00/- ---------------------- 43. Per contra, the Award of the Tribunal in granting a sum of Rs.19,97,385/-, etc., was certainly an excessive one, in our considered view.
44. Earlier, this Court in C.M.P.No. 3759 of 2005 in C.M.A.No.694 of 2005 on 16.04.2005 has passed an order of interim stay on condition that the Petitioner/Appellant deposits 50% of the balance compensation amount including interest and cost to the credit of M.C.O.P.No.93 of 1993 on the file of Subordinate Judge, Dharmapuri. Further in C.M.P.No.3759 of 2005 on 21.05.2006, on being informed that the condition order 50% of the balance compensation amount including interest and costs were deposited by the Appellants/Insurance Company the interim stay was made absolute. In C.M.P.No.8018 of 2005 on 21.04.2006, this Court permitted the First Respondent/Claimant to withdraw a consolidated sum of Rs.5,00,000/- only from and out of the amount already in deposit and directed the Tribunal to invest the remaining amount in any nationalised Banks falling within its jurisdiction initially for a period of three years to start with and thereafter to renew periodically at the instance of either of the parties before it and permitted him to withdraw the interest accruing thereon once in three months till the disposal of the appeal.
45. In the result, the Civil Miscellaneous Appeal is allowed in part, leaving the parties to bear their own costs. Resultantly, the Award passed by the Tribunal viz., the Subordinate Judge, Dharmapuri in M.C.O.P.No.93 of 1993 is set aside by this Court for the reasons assigned in this appeal.
46.The First Respondent/Claimant is entitled to withdraw the amount to which he is entitled to (less the amount already withdrawn if any) by filing necessary payment out application before the trial Court in the manner known to law. The Appellants/Insurance Company are entitled to receive the excess amount if any lying to the credit of M.C.O.P.No.93 of 1993 on the file of the Sub Court, Dharmapuri by filing necessary payment out application before the Tribunal in the manner known to law and the Tribunal is directed to pass appropriate orders thereto on merits. The Advocate fees is fixed at Rs.12,000/-.
vri
To
1.The Subordinate Judge,
Dharampuri.
2.The Record Keeper,
High Court,
Madras