BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22/06/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.(MD).No.92 of 2000 and C.M.A.(MD).Nos.93 and 94 of 2000 The Managing Director, Tamil Nadu State Transport Corporation, (Kumbakonak Division II), Ltd., Trichy. .. Appellant in all C.M.As. Vs. Chinathambi .. Respondent in C.M.A.No.92/2000 Srinivasan .. Respondent in C.M.A.No.93/2000 R.Parameswari .. Respondent in C.M.A.No.94/2000 Civil Miscellaneous Appeals filed under Section 173 of the Motor Vehicles Act against the Judgment and Decree dated 05.08.1999 made in M.C.O.P.Nos.2642,2673 of 1997 and 185 of 1998 on the file of the Motor Accidents Claims Tribunal, (IIIrd Additional Sub Court), Trichy. !For Appellant ... Mr.D.Sivaraman, For Mr.Rajnish Pathiyil ^For Respondents ... Mr.Saravanan :COMMON JUDGMENT By a common Judgment dated 05.08.1999, the Motor Accidents Claims Tribunal (IIIrd Additional Sub Court), Trichy disposed of three M.C.O.Ps., namely, M.C.O.P.Nos.2642 of 1997, 2673 of 1997 and 185 of 1998 and based on the common Judgment, separate awards were passed. 2. These appeals, namely, C.M.A.Nos.92 to 94 of 2000 are directed against the awards passed in M.C.O.P.Nos.2642 of 1997, 2673 of 1997 and 185 of 1998 respectively. Therefore, all the three appeals were jointly heard and a common Judgment is pronounced. 3. This Judgment shall govern C.M.A.No.92 of 2000 filed against the award passed in M.C.O.P.No.2642 of 1997, C.M.A.No.93 of 2000 filed against the award passed in M.C.O.P.No.2673 of 1997 and C.M.A.No.94 of 2000 filed against the award passed in M.C.O.P.No.185 of 1998. 4. Tamil Nadu State Transport Corporation, Kumbakonam Division II, Trichy which figured as the sole respondent in all the three M.C.O.Ps. has brought forth these appeals challenging the common Judgment and awards passed by the Tribunal on 05.08.1999. 5. The facts leading to the filing of these appeals can be briefly stated as under: (i) The passenger bus belonging to the appellant Transport Corporation and bearing registration No.TN-45-N-0396 met with an accident on 20.05.1997 at about 09.15 a.m., as it drifted from the road and hit a road side tamarind tree at a place near Government Arts College, Vadugapatty, on its trip from Thuraiyur to Musiri. Three of the injured persons, namely Chinnathambi, Srinivasan and Parameswari preferred claim petitions M.C.O.P.Nos.2642 of 1997, 2673 of 1997 and 185 of 1998 respectively against the appellant Transport Corporation on the file of the Motor Accidents Claims Tribunal (IIIrd Additional Sub Court), Trichy. All the three claimants in their respective claim petitions made uniform averments to the effect that the driver of the bus was at fault and it was due to his rash and negligent driving of the bus, it hit the road side tamarind tree. In addition to the above said common plea regarding the manner in which the accident took place, Chinnathambi, the claimant in M.C.O.P.No.2642 of 1997 contended that he was aged about 53 years and was having a monthly income of Rs.3,000/- in his occupation as a mason; that as a result of the accident, two of his teeth were broken and he sustained multiple grievous injuries all over the body and that the same resulted in permanent disability despite proper treatment. Based on the above said pleading, he prayed for an award against the appellant Transport Corporation for a sum of Rs.50,000/- together with future interest and cost. (ii) Srinivasan, the claimant in M.C.O.P.No.2673 of 1997 claimed to have earned a sum of Rs.3,000/- per month in his occupation as a coolie in a mat factory, alleged injury to two teeth, right leg and all over the body which according to him resulted in permanent disability despite proper treatment and prayed for an award against the appellant Transport Corporation for a sum of Rs.50,000/- together with future interest and cost. (iii) Similarly Parameswari, the claimant in M.C.O.P.No.185 of 1998 claiming to have earned a sum of Rs.1,500/- per month as a teacher in Mid-day Meals Centre at Musiri and alleging that she suffered multiple grievous injuries all over the body including fracture at the right shoulder, resulting in permanent disability, prayed for an award against the appellant Transport Corporation for a sum of Rs.1,00,000/- with future interest and cost. (iv) In the joint trial conducted before the Tribunal, all the three claimants were examined as P.Ws.1,3 and 4 respectively. Two doctors who issued disability certificates to the claimants were examined as P.Ws.2 and 5. In addition, the claimants relied on seven documents marked as Exs.A.1 to A.7. (v) The claims were resisted by the appellant Transport Corporation by filing separate counter statements in all the three M.C.O.Ps. containing almost similar averments in denial of the petition averments regarding the question of negligence, age, occupation and income of each one of the claimants, the injuries and the alleged disability sustained by each one of them. It was contended further that on seeing a lorry coming in the opposite direction at an uncontrollable speed, in an attempt to avoid head on collision with the said lorry, the driver of the bus swerved the bus to the left; that while doing so, he could not stop the bus before it proceeded further and hit the road side tamarind tree and that the accident became inevitable beyond the control of the driver of the bus. With the further contention that the amount claimed in each one of M.C.O.Ps. was highly excessive and exorbitant, the appellant Transport Corporation had prayed for dismissal of all the three M.C.O.Ps. with cost. (vi) The driver of the bus was examined as the sole witness (R.W.1) and no document was marked on the side of the appellant Transport Corporation which figured as the respondent in all the three M.C.O.Ps. (vii) At the conclusion of enquiry, the Tribunal by a common Judgment dated 05.08.1999 held that the driver of the bus was at fault, fixed the liability on the appellant Transport Corporation and awarded a sum of Rs.50,000/- each to the claimants in M.C.O.P.Nos.2642 and 2673 of 1997 and a sum of Rs.90,000/- to the claimant in M.C.O.P.No.185 of 1998 with future interest at the rate of 12% per annum from the date of claim till realisation and costs. 6. Aggrieved by the same, the appellant Transport Corporation has brought forth all these three appeals before this Court. 7. It is true that the appellant Transport Corporation has incorporated a number of grounds in the memorandum of appeal, challenging the finding of the Tribunal on the question of negligence holding the driver of the bus to be at fault and thus fastening the liability on the appellant Transport Corporation to pay damages to the claimants. But when the appeal was taken up for hearing, the learned counsel for the appellant fairly conceded that he could not advance any argument attacking the said finding and confined his arguments to the grounds of attack on the award in respect of quantum of compensation alone. Therefore, there is no need for traversing the pleading and evidence in respect of the question of negligence and the finding of the Tribunal in this regard shall have to be confirmed. 8. The learned counsel for the appellant submitted that the Tribunal fixed the amount of compensation in each one of M.C.O.Ps. arbitrarily without following the recognised methods of assessment of compensation; that the award of a sum of Rs.10,000/- to the claimant in M.C.O.P.No.2642 of 1997 and a sum of Rs.15,000/- to the claimant in M.C.O.P.No.2673 of 1997 towards medical expenses in the absence of production of any medical bill could not be sustained; that the award of a sum of Rs.15,000/- to the claimant in M.C.O.P.No.185 of 1998 towards medical expenses was not supported by any medical bill or voucher; that the claimant in M.C.O.P.No.185 of 1998 herself gave evidence to the effect that she spent only a sum of Rs.5,000/- towards medical expenses and hence the award of a sum of Rs.15,000/- towards medical expenses could not be justified; that the amounts awarded for permanent disability to the claimants were highly excessive and exorbitant besides being arbitrary and that hence the total amount of compensation awarded to each one of the claimants deserved drastic reduction in the hands of this Court. 9. The learned counsel for the respondents/claimants would admit that the amounts awarded as compensation for medical expenses could not be sustained, as the same are not supported by evidence. But at the same time, he would contend that a lesser amount could be awarded towards medical expenses instead of disallowing the claim in its entirety; that the deficit amount could be made-up by enhancing the amounts awarded towards pain and suffering which according to him are very low and not commensurate with the nature of injuries; that the amounts awarded towards permanent disability require no reduction, as they represent reasonable compensation and that if such adjustments are made, the awards passed by the Tribunal can be sustained without any reduction or modification. 10. Let us now consider whether the amount awarded as compensation to each one of the claimants should be reduced in the light of the rival submissions made on either side?. The amount claimed by Chinnathambi, the claimant in M.C.O.P.No.2642 of 1997 is Rs.50,000/-. The Tribunal awarded compensation as prayed for and directed the appellant Transport Corporation to pay a sum of Rs.50,000/- with the following details: Compensation for permanent disability = Rs.35,000/- Compensation for medical expenses = Rs.10,000/- Compensation for pain and suffering = Rs. 3,000/- Compensation for expenditure incurred on extra-nourishment = Rs. 2,000/- -------------
Total = Rs.50,000/-
————-
11. P.W.1 as per his own statement was aged about 53 years as on the date
of claim. P.W.5 clinically examined P.W.1 and on such a clinical examination,
certified that two teeth on the upper jaw and one molar on the lower jaw were
found missing and altogether seven teeth (three in the upper jaw and four in the
lower jaw) had lost their grip and were found with mobility. Ex.A.6 is the
disability certificate issued by P.W.5 for P.W.1 – Chinnathambi, the claimant in
M.C.O.P.No.2642 of 1997. He has assessed the disability suffered by P.W.1 at 30%
and certified it to be permanent. At the same time, P.W.5 would admit that as
per wound certificate only two teeth were found missing. Ex.A.2 is the wound
certificate in which loss of two teeth alone has been noted. The loss of one
more tooth and the mobility found in seven more teeth can be attributed to old
age or any other costs. Hence this Court is of the considered opinion that
assessing the permanent disability caused by the accident at 20% shall meet the
ends of justice. As the claimant was aged about 53 years as on the date of
accident, awarding a sum of Rs.20,000/- for permanent disability (at the rate of
Rs.1,000/- per 1% of disability) shall be reasonable. On the other hand, the
Tribunal has awarded a sum of Rs.35,000/- as compensation for permanent
disability which requires reduction to Rs.20,000/-. Hence the same shall be
reduced to Rs.20,000/-. A sum of Rs.2,000/- awarded by the Tribunal towards
extra-nourishment is quite reasonable and the same does not require any
revision. On the other hand, the award of a sum of Rs.3,000/- for pain and
suffering is slightly on the lower side and the same can be enhanced to
Rs.5,000/-.
12. It is true that P.W.1 – Chinnathambi has not produced any medical bill
or voucher evidencing any amount spent for medical treatment. Even then, the
claim for compensation under the head of medical expenses cannot be negatived
altogether. Ex.A.2 – wound certificate shows that he was given treatment at the
Government Hospital free of cost. Despite the said fact, it can be assumed that
some of the medicines could have been purchased at private medical shops.
Calculating a sum of Rs.1,000/- for the same shall be quite reasonable. As it is
evident from Ex.A.2 that P.W.1 lost two teeth in the accident, the necessity to
fix denture can be taken note of, awarding a sum of Rs.5,000/- for the same
shall be quite reasonable. Altogether a sum of Rs.6,000/- alone shall be the
reasonable compensation for medical expenses. Hence a sum of Rs.10,000/- awarded
by the Tribunal towards medical expenses shall be reduced to Rs.6,000/-. The
Tribunal has not awarded any amount towards loss of earning from the date of
accident during the period required for treatment and rest. Taking into
consideration, the nature of injuries sustained by P.W.1, it can be assumed that
he might have needed rest for a period of two months during which period he
would have incurred total loss of income. P.W.1 claims to have earned a sum of
Rs.3,000/- per month at the rate of Rs.100/- per day before the accident in his
occupation as a mason. No one on earth can be assumed to work without periodical
rest. Assuming that P.W.1 might have required five days’ rest per month, his
monthly income prior to the accident could be assessed at Rs.2,500/-.
Consequently, a compensation for loss of income for two months from the date of
accident is assessed at Rs.5,000/-. In all, the total amount of compensation
that can be awarded to P.W.1 is fixed at Rs.38,000/-.
13. For the foregoing reasons, this Court comes to the conclusion that the
compensation awarded by the Tribunal to P.W.1 is liable to be reduced to
Rs.38,000/- from Rs.50,000/-. To this extent, C.M.A.No.92 of 2000 succeeds and
the award of the Tribunal in M.C.O.P.No.2642 of 1997 deserves to be modified to
the extent indicated above. In all other respects, subject to the above said
modification, the award of the Tribunal in M.C.O.P.No.2642 of 1997 deserves to
be confirmed.
14. So far as P.W.3 – Srinivasan, the claimant in M.C.O.P.No.2673 of 1997
is concerned, the Tribunal has awarded compensation as prayed for and directed
the appellant Transport Corporation to pay a sum of Rs.50,000/- as compensation
together with interest and cost with the following details:
Compensation for permanent
disability = Rs.30,000/-
Compensation for medical
expenses = Rs.15,000/-
Compensation for pain and
suffering = Rs. 3,000/-
Compensation for expenditure
incurred on extra-nourishment = Rs. 2,000/-
————-
Total = Rs.50,000/-
————-
15. Ex.A.4 is the wound certificate. Three injuries have been noted in
Ex.A.4. They are:
“(i) Bleeding in the gum on the right side of the lower jaw;
(ii) first and second incisors (upper jaw or lower jaw has not been
specified) were found shaking; and
(iii) severe pain on the lower jaw.”
Out of the three injuries noted in the wound certificate, injury No.2
alone has been certified to be grievous and the other two injuries have been
certified to be simple in nature. P.W.5, who clinically examined P.W.3 on
17.06.1999, found two molars on the upper jaw missing and three teeth on the
lower jaw were found with mobility and issued the disability certificate marked
as Ex.A.7 certifying that P.W.3 – Srinivasan had suffered permanent disability
to the tune of 20%. No doubt, the teeth certified to be found shaking in Ex.A.4
do not correspond to the teeth certified to be missing in Ex.A.7. But as Ex.A.4
– wound certificate reveals the injury to the gum and severe pain on the jaws,
the loss of two molars as a consequence of the injuries sustained in the
accident cannot be disbelieved. Therefore, the assessment of disability at 20%
made by P.W.5, a qualified dentist, has got to be accepted.
16. Admittedly, P.W.3 – Srinivasan had crossed the age of 40 even on the
date of accident. Therefore, awarding a sum of Rs.20,000/- for permanent
disability (at the rate of Rs.1,000/- per 1% of disability) shall be reasonable.
The Tribunal on the other hand, without assigning any reason awarded a sum of
Rs.30,000/- under the head of compensation for permanent disability. Hence the
same is definitely excessive and deserves to be reduced to Rs.20,000/-. A sum
of Rs.2,000/- awarded by the Tribunal towards extra-nourishment is quite
reasonable and the same does not require any revision. On the other hand, the
award of a sum of Rs.3,000/- for pain and suffering is slightly on the lower
side and the same can be enhanced to Rs.5,000/-.
17. It is true that P.W.3 – Srinivasan has not produced any medical bill
or voucher evidencing any amount spent for medical treatment. Even then, the
claim for compensation under the head of medical expenses cannot be negatived
altogether. Ex.A.4 – wound certificate shows that he was given treatment at the
Government Hospital free of cost. Despite the said fact, it can be assumed that
some of the medicines could have been purchased at private medical shops.
Calculating a sum of Rs.1,000/- for the same shall be quite reasonable. As it is
evident from Ex.A.4 that P.W.3 lost two molars in the accident, the necessity to
fix denture can be taken note of. Awarding a sum of Rs.5,000/- for the same
shall be quite reasonable. Altogether a sum of Rs.6,000/- alone shall be the
reasonable compensation for medical expenses. Hence a sum of Rs.15,000/- awarded
by the Tribunal towards medical expenses shall be reduced to Rs.6,000/-.
18. The Tribunal has not awarded any amount towards loss of earning from
the date of accident during the period required for treatment and rest. Taking
into consideration the nature of injuries sustained by P.W.3, it can be assumed
that he might have needed rest for a period of two months, during which period
he would have incurred total loss of income. P.W.3 claims to have earned a sum
of Rs.3,000/- per month before the accident in his occupation as a coolie. No
one on earth can be assumed to work without periodical rest. Assuming that P.W.3
might have required five days’ rest per month, his monthly income prior to the
accident could be assessed at Rs.2,500/-. Consequently, a compensation for loss
of income for two months from the date of accident is assessed at Rs.5,000/-. In
all, the total amount of compensation that can be awarded to P.W.1 is fixed at
Rs.38,000/-.
19. For the foregoing reasons, this Court comes to the conclusion that the
compensation awarded by the Tribunal to P.W.3 is liable to be reduced to
Rs.38,000/- from Rs.50,000/-. To this extent, C.M.A.No.93 of 2000 succeeds and
the award of the Tribunal in M.C.O.P.No.2673 of 1997 deserves to be modified to
the extent indicated above. In all other respects, subject to the above said
modification, the award of the Tribunal in M.C.O.P.No.2673 of 1997 deserves to
be confirmed.
20. P.W.4 – Parameswari, the claimant in M.C.O.P.No.185 of 1998 had
claimed a sum of Rs.1,00,000/- as compensation as against which the Tribunal has
awarded a sum of Rs.90,000/- with the following details:
Compensation for permanent
disability = Rs.70,000/-
Compensation for medical
expenses = Rs.15,000/-
Compensation for pain and
suffering = Rs. 3,000/-
Compensation for expenditure
incurred on extra-nourishment = Rs. 2,000/-
————-
Total = Rs.90,000/-
————-
21. Ex.A.5 is the wound certificate of P.W.4 – Parameswari. A contusion
over the left shoulder measuring 2 cm x 2 cm involving the fracture of the left
clavicle and pain in the left shoulder are the two injuries noted in the wound
certificate. Out of them, the first alone has been certified to be grievous in
nature. From Ex.A.5, it is obvious that after first aid treatment on the date of
accident at Government Hospital, Musiri, she was referred to the Government
Hospital, Trichy. From the evidence of P.W.4, it is clear that she got admitted
in the Government Hospital, Trichy and took treatment there as an inpatient for
three days. Even though P.W.4 in her evidence claimed to have taken treatment at
a private hospital after having been discharged from the Government Hospital,
Trichy, except the interested testimony of P.W.4, no other evidence is
available in proof of her claim that she got treatment in any private hospital.
No medical bill or voucher has been produced to support her claim for damages on
the head of medical expenses. In spite of the fact that no medical bill has been
produced, the Tribunal seems to have awarded a sum of Rs.15,000/- as
compensation for medical expenses which cannot be sustained as rightly contended
by the learned counsel for the appellant. Even P.W.4 herself would state in her
evidence that she spent only a sum of Rs.5,000/- for her treatment in the
private hospital. Therefore, the submissions made by the learned counsel for the
appellant that the Tribunal has arbitrarily awarded a sum of Rs.15,000/- as
compensation for medical expenses to P.W.4 has got to be countenanced. While
holding that the Tribunal has committed an error in awarding a sum of
Rs.15,000/- as compensation for medical expenses without the claim being
supported by any medical bill or voucher, this Court is of the considered view
that the claim under the said head cannot be rejected altogether. If the nature
of injuries sustained by P.W.4 is taken into consideration, it can be assumed
that some medicines which were not available in the Government Hospital would
have been purchased at private medical stores, even though the treatment was
provided at the Government Hospital free of cost. P.W.4 has sustained fracture
of the left clavicle. Therefore, compensation for medical expenses to P.W.4 –
Parameswari can be awarded to the extent of Rs.5,000/- alone as spoken to by
herself in her testimony. Hence a sum of Rs.15,000/- awarded by the Tribunal
towards medical expenses shall be reduced to Rs.5,000/-.
22. Though the fracture found on the left clavicle has been cured after
treatment, there is mal-union and restriction of shoulder-movements as certified
by P.W.2 in Ex.A.3 – disability certificate. The movement of the left shoulder
is restricted to 0 to 85 as against the normal flexion of 0 to 180. P.W.2 has
certified the same to be permanent disability and assessed the same at 36%. The
restriction of movement of the left shoulder found at present can be rectified
to some extent by doing proper physical exercise and physiotherapy treatment.
Therefore, the assessment of disability at 36%, according to the opinion of this
Court, is slightly on the higher side and that fixing the permanent disability
at 30% shall be just and proper in this case.
23. The Tribunal, as rightly pointed out by the learned counsel for the
appellant, has arbitrarily fixed the amount of compensation for permanent
disability at Rs.70,000/-. It has failed to assign any reason. As per her own
evidence, she was aged about 25 as on the date of accident. In case of award of
lump sum payment for permanent disability, age of the claimant shall have an
important role to play. Awarding compensation at a fixed rate in all cases
without taking into account the age of the claimant shall result injustice, as
the same will amount to treating unequals equally. The compensation for
permanent disability in a given case may range from Rs.1,000/- to Rs.2,000/- per
1% of disability depending upon the age of the claimant. The lower rate shall be
applied in case of aged persons and the higher rate shall be applied in case of
younger persons. Therefore, in respect of P.W.4 – Parameswari, compensation for
permanent disability can be awarded at the rate of Rs.2,000/- per 1% of
disability. So the reasonable amount that can be awarded for permanent
disability to P.W.4 shall be Rs.60,000/-. Therefore, the same can be reduced to
Rs.60,000/- from Rs.70,000/-.
24. A sum of Rs.2,000/- awarded by the Tribunal towards extra-nourishment
is quite reasonable and the same does not require any revision. P.W.4 sustained
fracture of left clavicle. Therefore, she might have endured great pain and
suffering during treatment due to the fracture. The movement of left shoulder is
restricted and painful. Therefore, in future also the pain and suffering will
continue. If all these factors are taken into account, one can come to a
definite conclusion that the award of a sum of Rs.3,000/- for pain and suffering
is inadequate. Enhancing the same to a sum of Rs.7,000/- shall meet the ends of
justice. As per the evidence of P.W.4 – Parameswari, she was in receipt of a sum
of Rs.935/- per month as a nursery school teacher, the same can be rounded to
Rs.1,000/- and a monthly income prior to the accident can be taken as Rs.1,000/-
. Assuming that P.W.4 – Parameswai would have needed at least two months’ time
for treatment and complete rest, some amount would have been awarded for the
same. Hence, awarding a sum of Rs.2,000/- towards total loss of income during
the said period shall be reasonable.
25. For the foregoing reasons, this Court comes to the conclusion that the
compensation awarded by the Tribunal to P.W.4 is liable to be reduced to
Rs.76,000/- from Rs.90,000/-. To this extent, C.M.A.No.94 of 2000 succeeds and
the award of the Tribunal in M.C.O.P.No.185 of 1998 deserves to be modified to
the extent indicated above. In all other respects, subject to the above said
modification, the award of the Tribunal in M.C.O.P.No.185 of 1998 deserves to be
confirmed.
26. In the result,
(i) C.M.A.No.92 of 2000 is allowed in part and the award of the Tribunal
passed in M.C.O.P.No.2642 of 1997 is hereby reduced to Rs.38,000/- from
Rs.50,000/-. In all other aspects, subject to the above said modification, the
award of the Tribunal shall stand confirmed. There shall be no order as to
payment of costs.
(ii) C.M.A.No.93 of 2000 is allowed in part and the award of the Tribunal
passed in M.C.O.P.No.2673 of 1997 is hereby reduced to Rs.38,000/- from
Rs.50,000/-. In all other aspects, subject to the above said modification, the
award of the Tribunal shall stand confirmed. There shall be no order as to
payment of costs.
(iii) C.M.A.No.94 of 2000 is allowed in part and the award of the
Tribunal passed in M.C.O.P.No.185 of 1998 is hereby reduced to Rs.76,000/- from
Rs.90,000/-. In all other aspects, subject to the above said modification, the
award of the Tribunal shall stand confirmed. There shall be no order as to
payment of costs.
SML
To
The Motor Accidents Claims Tribunal,
(IIIrd Additional Sub Court),
Trichy.