IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14-11-2008
CORAM
THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH
C.M.A.No.3375 of 2003
K. Sankara Namasivayam ... Appellant
vs.
1. C. Ponnusamy
2. N. Periasamy
3. National Insurance Company Ltd.,
1st Floor, Mettur Main Raod,
Erode 638 011.
4. The New India Assurance Co. Ltd.,
Mettur Road,
Erode 638 011. ... Respondents
Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the Judgment and Award of the learned Motor Accident Claims Tribunal (Principal Subordinate Judge, Erode) in M.C.O.P.No.525 of 1997 dated 13.3.2000.
For Appellant : Mr. M. Krishnamoorthy
For Respondents : Mr. K.S. Narasimhan
[for R-3]
JUDGMENT
While the appellant/claimant was proceeding in his motor cycle from Erode Bus Terminus on 13.02.1997 at 9.30 a.m., a passenger bus bearing Registration No.TCG 2772, came behind his motor cycle in a rash and negligent manner and dashed against the claimant’s vehicle, by means of which his right leg was fractured and his bike also got damaged. The claimant was removed to L.K.M. Hospital, Erode, and had taken treatment till 24.02.1997 as inpatient. He was working as Medical Representative in Food Drugs & Chemicals Ltd., Hence a sum of Rs.1,50,000/- is claimed.
2. In the Counter filed by the 3nd respondent/National Insurance Co. Ltd., Erode, it is stated that the claimant drove his vehicle in the restricted area and the accident had taken place due to his carelessness and negligence of the claimant. In the counter filed by the 4th respondent/New India Assurance Co. Ltd., Erode it is stated that the accident took place only due to the rash and negligent driving by the first respondent. The age, income and avocation of the claimant are denied and the claim is exorbitant.
3. The lower Court had come to the conclusion of fixing the responsibility for the cause of accident on the third respondent the Insurance Company. The lower court had fixed the quantum of compensation at Rs.40,000/- with interest at 12% p.a. from the date of petition till the date of realisation against the claim of Rs.1,50,000/-.
4. Heard both sides in full.
5. The learned counsel for the appellant/claimant would submit in his argument that the lower court had without considering the sufferings and the plight of the claimant due to the injuries sustained by him in the accident, awarded a sum of Rs.40,000/- only. A sum of Rs.25,000/- has been awarded towards permanent disability caused due to the grievous injuries sustained by him. Rs.8,000/- towards Medical Expenses; Rs.1,500/- towards Extra Nourishment; Rs.5,000/- towards Pain and Sufferings and Rs.500/- towards transport charges have been granted. He would also submit in his argument that the lower court had not considered the compensation for loss of amenities and the compensation on other categories which are liable to be paid to the claimant. Moreover, the Lower court had not considered that the claimant was working as Medical Representative in a private company and he was removed from the employment after he sustained permanent disability due to the injuries. He would therefore request the court to fix the compensation for permanent disability at 25%, is a total disablement and enhance the compensation as prayed for. He would also request the court to allow the appeal.
6. Learned counsel appearing for the third respondent/National Insurance Co. Ltd., would submit in his argument that the lower court had correctly adopted the method of calculating compensation for permanent disability and since there was no loss of employment proved by the claimant it had not fixed a higher compensation and what actually sustained by the claimant was compensated by awarding a sum of Rs.40,000/-. He would request the Court to maintain the award passed by the lower court and to dismiss the appeal.
7. I have given anxious thoughts to the submissions made by both sides. On a careful perusal of the records, documents and other evidence produced before the lower court we could see that the claimant was involved in the accident in which he had sustained a fracture of his femur bone and due to the said injuries sustained by him he was treated as inpatient for 10 days and thereafter he had taken treatment for three months as out patient. The Lower Court had considered the wound Certificate produced by him and the time taken for treatment and other relevant documents relating to the treatment and come to the conclusion of awarding a sum of Rs.5,000/- towards pain and sufferings. The lower court had also awarded a sum of Rs.8,000/- towards medical expenses considering the period of treatment despite the claimant was stated to have spent more than Rs.15,000/- as it was without the support of any documents. Further, the Lower Court had awarded a sum of Rs.500/- only for transport charges. The said compensation is certainly too low when compared with the period of treatment taken by the claimant. Therefore, it would be just to fix at Rs.1,500/- instead of Rs.500/-. The claimant had adduced oral evidence to the effect that he was removed from service after he sustained permanent disability of 25% caused by the injuries from out of the accident. No documentary evidence was produced for such purpose. He could produce the termination certificate from the said company in order to prove the same. But he did not elect to do it. However, he produced the Income Tax Form-16 given to him in respect of his income deducted for the whole year. That would show that the claimant was earning a sum of Rs.5,787/- per month as calculated out of the total annual salaried income. Admittedly the claimant was taking treatment as out patient for two months. For those two months he is entitled for a sum of Rs.11,500/- (Rs.5787 x 2= Rs.11,566/- rounded off to Rs.11,500/-), towards temporary loss of income, such compensation was not awarded by the lower court and therefore it has to be awarded to the claimant. Since there was no proof of loss of employment, the correct method of calculation of compensation would be to adopt the calculation of Non-pecuniary loss. Accordingly, a sum of Rs.1000/- per every 1% of disablement could be awarded as compensation. The Doctor has certified 25% of permanent disability due to shortening of right leg. Therefore the compensation to be awarded for the permanent disability is Rs.25,000/- for the 25% permanent disability.
8. The claimant should continue his remaining part of life with disability and with inconvenience due to the shortening of his right leg. For that this Court is awarding a sum of Rs.15,000/- towards loss of amenities. On an overall calculation of the compensation awarded by this Court we could see that a sum of Rs.67,500/- could be arrived at and accordingly it has to be awarded to the claimant. Whereas the lower court had awarded only a sum of Rs.40,000/- which is not in accordance with law. Therefore, the claimant is entitled to a total compensation of Rs.67,500/- with the following headwise details:
For Medical Expenses Rs. 8,000/-
Pain and Suffering Rs. 5,000/-
Permanent Disability Rs. 25,000/-
Transport Charges Rs. 1,500/-
Extra Nourishment Rs. 1,500/-
Loss of income Rs. 11,500/-
Loss of amenities Rs. 15,000/-
----------------
Total Rs. 67,500/-
----------------
The Claimant is entitled to a sum of Rs.27,500/- with interest at 7.5% p.a. from the date of petition till the date of realisation for the enhanced compensation.
Accordingly the appeal is partly allowed with proportionate costs.
ggs
To
1. The Principal Subordinate Judge,
(Motor Accident Claims Tribunal),
Erode.
2. National Insurance Company Ltd.,
1st Floor, Mettur Main Raod,
Erode 638 011.
3. The New India Assurance Co. Ltd.,
Mettur Road,
Erode 638 011