IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 03 / 03 /2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.2850 of 2005 1.M/s.Patel K.N.R., (VR), NH 46, Package 3, (K.R.1) Camp, Opposite to Government Engineering College, Bargur Post, Krishnagiri Taluk, Dharmapuri District. 2.Branch Manager, National Insurance Company Limited., Branch Office, No.333, Anuradha Complex, 3rd Floor, Bangalore Road, Krishnagiri. ... Appellants Versus K.Angayarkani ... Respondent Prayer: This appeal is preferred against the award and decree dated 28.09.2004 made in O.P.No.342 of 2004 on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate Court No.2), Krishnagiri. For Appellants : Mr.D.Bhaskaran For Respondent : Mr.U.Karunakaran - - - J U D G M E N T
The above appeal has been filed by the appellants / M/s.Patel K.N.R., (VR), NH 46, Package 3, (K.R.1) Camp and National Insurance Company Limited, against the award and decree dated 28.09.2004 made in M.C.O.P.No.342 of 2004 on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate Court No.2), Krishnagiri.
2.The short facts of the case are as follows:
On 12.10.2003 at around 11.30 a.m., the petitioner and her daughter were standing at the B.D.O. bus stop on the Krishnagiri to Bargur National Highways Road, at that time the first respondent’s vehicle, namely, Mahendra Jeep bearing Registration No.TN 29 P 7212 driven by its driver in a rash and negligent manner and dashed against the petitioner and her daughter besides a few others, in the result the petitioner had sustained grievous injuries. Hence, she has filed the compensation petition against the respondents for a sum of Rs.4,50,000/- with interest.
3.The first respondent had filed a counter statement and resisted the claim. The respondent denied the age, income and occupation of the claimant. The respondent further denied that the first respondent driver had committed the accident in a reckless manner, but he admits that the offending vehicle was insured with the Insurance Company, the second respondent in the claim petition.
4.The second respondent had filed a counter statement and opposed the claim petition stating that the offending vehicle was not insured with the corporation. The driver of the jeep had driven the vehicle in a slow and cautious manner. The respondent also denied the age, income and occupation of the claimant.
5.The Tribunal had framed three issues for consideration, namely;-
(i)Who was responsible for the accident?
(ii)Whether the claimant is entitled to receive compensation?
(iii)Whether further relief to the claimant?
6.On the side of the claimant two witnesses were examined, namely, PW1-claimant and PW2-Dr.AshokKumar and five documents were marked, namely, PW1-Copy of the policy, PW2-Wound Certificate, PW3-Discharge Medical Summary, Ex.P4-Medical expenses receipt, Ex.P5-Disability Certificate. On the side of the respondents no witness was examined and no document was marked.
7.PW1 stated that she had sustained bone fracture injury on her left leg which also got crushed. Immediately, after the accident she had been taken to the Government Hospital, Krishnagiri for preliminary treatment, thereafter she had undergone treatment at St.John’s Hospital, Bangalore, wherein she had undergone a surgical operation on her left leg, as such her leg got shortened and the fractured bone remained un-united besides being bent. PW2-Doctor had adduced evidence that he had examined the claimant and verified the medical records and assessed the disability as 50%. The doctor further stated that the claimant’s 1 to 3 metadosal bone had fractured and bent, the left leg is shortened by 2.5 cms than the normal leg, as such the claimant is unable to walk and stand for a long time.
8.On considering the evidence of the witnesses, the Tribunal had awarded Rs.2,86,111/- as compensation with interest at the rate of 9% per annum. Comprising of Rs.2,16,000/- towards loss of income, Rs.25,000/- towards grievous injuries, Rs.5,000/- towards pain and suffering, Rs.3,000/- as against Nutrition, Rs.35,611, towards medical expenses and Rs.1,500/- for transport.
9.Aggrieved by the said award the appellant has filed the above appeal.
10.The learned counsel for the appellant argued that the claimant had sustained simple injuries, but the Doctor had assessed the disability as 50%, which is not an appropriate one. The claimant is a tailor by profession, but no documentary evidence to prove the same. The Tribunal had adopted the multiplier method and awarded the compensation a sum of Rs.2,16,000/- under the head of ‘loss of income’ which is not pertinent in the instant case, since the claimant’s normal job was not affected.
11.The learned counsel for the claimant argued that she had undergone treatment at a private hospital for a period of 40 days as an in-patient. She had sustained bone fracture injuries besides her leg got crushed and her leg was shortened by 2.5 cms. Therefore, she is unable to walk normally and unable to perform her normal avocation as a tailor. This aspect is well considered by the Tribunal and awarded the compensation after adopting a multiplying method, as such there is no discrepancy in the said award. The learned counsel further argued that the Tribunal had not considered the compensation for the crucial heads, namely, attender charges, loss of income during the treatment period and loss of earning capacity.
The learned counsel for the appellant has cited this judgment:-
(i) Kaluram Rathore v. Neelam Chand Kiar & Another reported in 2004(2)TN MAC 16
DISABILITY – Permanent/partial disability – Mere fracture of bones and its re-union will not amount to permanent total disablement or permanent partial disablement, unless doctor examined claimant and assessed percentage of disability after performing scientific tests – without performing scientific tests, bald statement of doctor and certificate inadmissible in evidence – Visual opinion of doctor has no evidentiary value – Claims Tribunal must assign reasons in arriving at conclusion in case of permanent/partial disablement – In absence of evidence regarding scientific tests to determine percentage of disability, Claims Tribunals should take guidance from Schedule of Workmen’s Compensation Act.
(ii) Raj Kumar v. Ajay Kumar reported in 2010 (2) TN MAC 581 (SC)
DISABILITY PERMANENT DISABILITY LOSS OF EARNING CAPACITY Ascertainment Principles to be followed Tribunal to first decide whether disability is Permanent Disability? – If it is not Permanent Disability, no question of proceeding further to determine Loss of Earning Capacity But, if on basis of medical evidence, disability is found to be Permanent Disability, Tribunal has to determine whether such Permanent Disability affected earning capacity Ascertainment of effect of Permanent Disability on actual earning capacity involves three steps: – Firstly, Tribunal to ascertain what activities Claimant could carry on, in spite of Permanent Disability and what he could not to do as a result of Permanent Disability Secondly, to ascertain avocation, profession and nature of work before accident and injured / Claimant’s age Thirdly, to find out whether (i) Claimant totally disabled from earning any kind of livelihood or (ii) whether in spite of Permanent Disability Claimant could still effectively carry on activities and functions which he was earlier carrying on, or (iii) Whether he was prevented / restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities or functions so as to continue to earn his livelihood Percentage of Permanent Disability with reference to whole body of a person cannot be assumed to be percentage of Loss of Earning Capacity Loss of Earning Capacity is something that will have to be assessed by Tribunal with reference to evidence in entirely Same Permanent Disability may result in different percentage of Loss of Earning Capacity in different persons depending upon nature of profession, occupation or job, age, education and other factors Illustrated.
The learned counsel for the respondent has cited this judgment:-
(iii)B.T.Krishnappa v. D.M., United India Insurance Co.Ltd., reported in 2010 ACJ 1971
Quantum Injury Leg and head compound fractures in tibia and fibula bones of right leg and injuries on head and all over body Injured was hospitalised for 14 days and remained under treatment for 6 months Injured aged 50, a mason Doctor opined that injured suffered 48 per cent disablement and he cannot work as mason and do any other manual work Tribunal accepted 48 per cent disablement but assessed loss of earning capacity at 20 per cent and awarded Rs.1,55,000 High Court accepted Tribunal’s assessment of whole body disability at 20 per cent and observed that Tribunal has paid compensation under the heads ‘loss of amenities and enjoyment of life and loss of earnings during laid up period’ on the lower side High Court allowed further Rs.34,000 for future medical expenses but did not deal with the aspect of future loss of earnings Apex Court observed that injured had suffered an irreversible damage to his right leg which will pose difficulties for him in carrying out his avocation as a mason and also drew attention to its views expressed in several judgments about compensation payable to injured persons Case remanded to the High Court for consideration of the matter afresh for enhancement of compensation.
12.On considering the facts and circumstances of the case, the arguments submitted by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the considered view that the doctor assessed the disability as 50%, which is on higher side. The claimant’s assertion that she being a tailor was not established by way of documentary evidence. As such the multiplier method is not relevant, therefore, this Court finds it necessary to interfere with the quantum of compensation, accordingly, this Court modifies the compensation as follows:-
Rs.60,000/- towards disability for 30%;
Rs.35,611/- towards medical expenses;
Rs.15,000/- for pain and suffering;
Rs.10,000/- against transport expenses;
Rs.10,000/- for nutrition;
Rs.10,000/- for attender charges;
Rs.45,000/- for loss of earning capacity
Rs.15,000/- towards loss of earning during the medical treatment period and convalescing.
In total this Court awards a sum of Rs.2,00,611/- with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation, which is fair and equitable. Therefore, this Court scales down the compensation from Rs.2,86,111/- to Rs.2,00,611/- as compensation.
13.Therefore, this Court hereby directs the appellant / National Insurance Company Limited, to deposit the compensation amount fixed by this Court with accrued interest thereon, to the credit of M.C.O.P.No.342 of 2004 on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate Court No.2), Krishnagiri within a period of six weeks from the date of receipt of copy of this order, subject to deductions, if any already deposited. After such a deposit, being made it is open to the claimant to withdraw the compensation fixed by this Court with accrued interest thereon lying in the credit of M.C.O.P.No.342 of 2004 on the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court No.2, Krishnagiri, after filing necessary payment out of application in accordance with law, subject to withdrawals if any made already.
14.In the result, this Civil Miscellaneous Appeal is partly allowed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal, on the file of Chief Judicial Magistrate Court No.2, Krishnagiri, made in M.C.O.P.No.342 of 2004, dated 28.09.2004 is modified. There is no order as to costs.
r n s
To
The Motor Accidents Claims Tribunal
Chief Judicial Magistrate Court No.2),
Krishnagiri