IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.06.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE B.RAJENDRAN Civil Miscellaneous Appeal Nos.2189 & 2304 of 2006 Murugan ... Appellant in CMA.No.2189/06 Minor Sarath Kumar rep. by next-friend and guardian father Murugan ... Appellant in CMA.No.2304/06 vs. The Managing Director, State Express Transport Corporation Ltd., (Thiruvalluvar Transport Corporation Ltd.) Pallavan House, Chennai. ... Respondents in both appeals. Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles Act, 1988 against the common Order dated 17.09.2005 made in M.C.O.P.Nos.548/2003 and 94/2004 on the file of Motor Accident Claims Tribunal [Fast Track Court No.II], Tindivanam. For Appellants in both appeals : Mr.K.M.Ramesh For Respondent in both appeals : Mr.S.S.Swaminathan COMMON JUDGMENT R.BANUMATHI,J Being dissatisfied with the quantum of compensation, Claimants have preferred these Appeals for enhancement of compensation. Since, the Appeals arise out of the same accident and the Appellants being father and son, both the Appeals were taken up together and disposed of by this Common Judgment. 2. Brief facts are that on 07.02.2001, Claimant Murugan and his son Minor Sarath Kumar [Appellant in CMA.No.2304/2006] were travelling in the Respondent bus bearing registration No.TN-01 N 6024 from Theni to Villupuram. At about 05.30 hours, when the bus was nearing in between Bahgur Name Board and North of Bridge at Trichy to Chennai Main Road, the driver of the bus drove the same in a rash and negligent manner and dashed on the back side of the stationed lorry. In the accident, Claimant Murugan sustained closed fracture both bones right leg; displaced fracture of the left lateral tibial condyle; closed statice inter locking intramedullary nailing right tibia and also sustained multiple injuries all over the body. Claimant Minor Sarath Kumar sustained avulsion injury to the left knee, injury on the upper 1/3rd left leg. After the accident, both the Claimants were admitted in Virudachalam Government Hospital. Thereafter, they have taken treatment in Jipmer Hospital, Pondicherry and Sri Ramachandra Hospital, Porur respectively. Regarding the accident, criminal case in Crime No.37/2001 of Vepur Police Station was registered. Alleging that the accident was due to rash and negligent driving of Respondent-State Express Transport Corporation bus, Claimants have filed Claim Petitions claiming compensation of Rs.20,00,000/- and Rs.1,50,000/- respectively. 3. Resisting the Claim Petitions, Respondent-State Express Transport Corporation filed counter stating that when the bus nearing Kallur in between Thozhupedu and Vapur at about 5.30 A.M., a lorry was coming from the opposite direction with bright lights at a high speed. In order to avoid head on collision, the driver of the bus had slowed the bus and moved on its extreme left side of the road. At that time, the lorry which was stationed on the left side of the road without any indication has moved on its reverse and dashed against the bus. Therefore, the accident occurred due to the negligence of lorry driver and hence Respondent-Transport Corporation is not liable to pay compensation to the Claimants. 4. Before the Tribunal, Claimant in MCOP.No.548/2003 was examined as PW1. Dr.Sekar was examined as PW2 on the side of Claimants. One Kumaravel, driver of Respondent-Transport Corporation bus was examined as RW1. No documents were marked on the side of the Respondents. 5. Upon consideration of oral and documentary evidence, Tribunal held that the accident was due to rash and negligent driving of the driver of Respondent-Transport Corporation bus and held that Respondent-Transport Corporation is liable to pay compensation to the Claimants. Tribunal further held that it has been proved that at the time of accident Claimant-Murugan was employed in Indian Bank and his eligible salary was Rs.216.80 per day. Since, Claimant-Murugan [MCOP.No.548/2003] is entitled to get reimbursement of his medcal expenses and rejecting the claim of medical expenses, Tribunal awarded total compensation of Rs.1,67,600/- as under:- Pain and suffering : Rs. 20,000.00 Permanent disability : Rs. 75,000.00 Loss of earning : Rs. 50,000.00 Transport charges : Rs. 2,600.00 Extra-nourishment : Rs. 20,000.00 -----------------
Total : Rs.1,67,600.00
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In so far, Minor Sarath Kumar [MCOP.No.94/2004], Tribunal held that Claimant-Minor Sarath Kumar sustained only lacerated injury and awarded total compensation of Rs.29,000/-.
6. It is not necessary to elaborate upon the manner of accident, negligence and fastening of liability, since they are not under challenge. These Appeals are filed at the instance of the Claimants for enhancement of compensation.
7. C.M.A.No.2189 of 2006 [MCOP.No.548/2003] – PW1-Murugan in MCOP.No.548/2003 was aged 35 years at the time of accident and has been working as sub staff in Indian Bank and was getting salary of Rs.4,513.26 in February 2001. In July 2005, he was getting salary of Rs.6,504.22 per month. In the accident, Claimant-Murugan sustained fracture injuries on his right leg and skin muscle torned on his left leg below the knee and also sustained injuries on his right side hip and right thigh. Immediately after the accident Claimant was admitted in Virudhachalam Government Hospital and he was referred to other hospitals for further management and treatment. Claimant had taken treatment in Sri Ramachandra Hospital, Porur from 08.02.2001 to 09.04.2001 [Ex.A10]. Claimant had also taken treatment in Jipmer Hospital, Pondicherry from 11.05.2001 to 16.05.2001 [Ex.A12]. Again, Claimant-Murugan had taken treatment in Sri Ramachandra Hospital, Porur from 26.06.2001 to 20.12.2001 [Exs.A13, A16, A18 and A20]. Claimant had also taken treatment in Chenthil Nursing Home, Madurai from 24.03.2002 to 20.06.2003 [Exs.A21, A23, A25, A27, A29, A31]. Claimant had taken treatment in Karthik Hospitals from 29.06.2004 to 01.12.2004 [Ex.A33, A35, A37]. Thereafter, Claimant had taken treatment in Srivatsav Orthocare, Madurai from 07.12.2004 to 20.12.2004 [Ex.A39].
8. Ex.A55-discharge certificate would show various treatment given to the Claimant for the fracture of right leg which he sustained. During treatment, his left leg was amputated below the knee at Karthik Hospitals, Madurai. Claimant-Murugan is able to walk only with the aid of elbow crutches. Claimant had sustained Grade-3B injuries and fracture of both bones of left leg and fracture of left lateral tibial condyle.
9. To ascertain the disability caused due to the fracture, PW2-Dr.Sekar was examined before the Tribunal. In his evidence, PW2-Dr.Sekar has stated that he examined the Claimant on 12.10.2004 and again on 21.07.2005 to assess the permanent disability due to the injuries sustained by the Claimant in the accident. He had also examined the medical records given in various hospitals. During his examination, PW2-Dr.Sekar has found minimal deformity of the right leg operated scar on the interior aspect of right knee and on the lower aspect of leg. PW2 had also noticed an operated scar on both iliac crest and its irregular and painful. SSG taken from both thighs left latissmus dorsi flap scar from the left axilla to the back, dorsiflexion of ankle joint restricted by 20 degrees power of knee joint and ankle joint 4/5. PW2-Dr.Sekar had also found irregular papery scar on the left leg with ulcer on the lower aspect. From the middle of the leg to the foot is oedematous. Knee flexion restricted by 40 degrees. There was restricted movement and PW2 noticed amputation below the knee stump and Claimant was able to walk with artificial limb. There was pain and prolonged standing and walking. X-ray was taken on 21.07.2005 and it was noticed that there was osteoraportic clump with arthritic changes of knee joint. Upon examination of the Claimant-Murugan and various medical records, PW2 assessed the permanent disability at 75%.
10. Claimant-Murugan has claimed compensation of Rs.20,00,000/- for the injuries sustained by him. Tribunal has awarded a sum of Rs.20,000/- for pain and suffering. As pointed out earlier, Claimant had taken continuous treatment from February 2001 to June 2003. Thereafter, he had taken treatment in Karthik Hospitals where his left leg was amputated below the knee joint. Having regard to the period of treatment and considering the nature of injuries and the amputation of left leg, in our considered view, the compensation of Rs.20,000/- awarded by the Tribunal for pain and suffering is very meagre and the same is enhanced to Rs.2,00,000/-. Tribunal awarded Rs.2,600/- for transport charges. Since, Claimant had taken treatment in various hospitals nearly 12 occasions, certainly he would have incurred more amount towards transport charges. Considering the facts and circumstances and the period of treatment, compensation of Rs.2,600/- awarded by the Tribunal for transport charges is enhanced to Rs.20,000/-. Tribunal has also awarded Rs.20,000/- for extra-nourishment and the same is maintained.
11. As pointed out earlier, Claimant was working as sub staff in Indian Bank and getting salary of Rs.4513.26 in February 2001. In July 2005, he was getting the salary of Rs.6504.22 per month. Even though, Claimant had sustained fracture injuries and his left leg was amputated below the knee joint, as such he has not lost the job and there is no loss of income. However, because of the amputation below the knee joint, there is gross deformity of the lower end of left leg and the ankle joint. Claimant is not able to walk and could walk only with the aid of elbow crutches. Claimant has put up with a shattered physical frame throughout his life. Because of the deprivation of the left lower limb, Claimant is unable to walk, sit and his public activities would be greatly restricted and the movement of the Claimant for public activities would be very much restricted. Having regard to the nature of injuries and amputation of left leg below the knee joint, compensation of Rs.75,000/- awarded by the Tribunal for permanent disability/loss of amenities is enhanced to Rs.3,00,000/-.
12. Claimant was actually taking treatment from 07.02.2001 till 20.12.2001 and thereafter intermittently in various hospitals. Tribunal has calculated the period of absence from duty as 10 months and awarded Rs.50,000/- for loss of earning during the period and the same is maintained.
13. Claimant has sought for Rs.5,00,000/- for medical expenses. Claimant being sub staff working in Indian Bank, the medical expenses would have been reimbursed by him. Claimant has not produced any certificate from its employer-bank to show that he has not made any claim for reimbursing the medical bills. Pointing out that Claimant had reimbursed the medical expenses from his employer, Tribunal has disallowed the medical expenses. In the absence of any evidence to show that the medical expenses was not reimbursed, we are not inclined to interfere with the finding of the Tribunal in disallowing the medical expenses.
14. In modification, the total compensation of Rs.1,67,600/- awarded by the Tribunal is enhanced to Rs.5,90,000/- rounded to Rs.6,00,000/- as under:-
Pain and suffering : Rs.2,00,000.00 Permanent disability/ loss of amenity : Rs.3,00,000.00 Loss of earning : Rs. 50,000.00 Transport charges : Rs. 20,000.00 Extra-nourishment : Rs. 20,000.00 ----------------- Total : Rs.5,90,000.00 ----------------- Rounded off to : Rs.6,00,000.00 The Tribunal has awarded interest at the rate of 7.5% p.a. and the same is maintained.
15. C.M.A.No.2304 of 2006 [MCOP.No.94/2004] – In the accident, Claimant-Murugan’s son minor Sarth Kumar [Claimant in MCOP.No.94/2004], aged 9 years also sustained injuries on his left thigh and was admitted in Government Hospital, Virudhachalam and then he was admitted in Nallam Clinic, Pondicherry and thereafter, admitted in Jipmer hospital, Pondicherry. PW1 has also stated that inspite of treatment the puss is coming from the left leg knee of minor Claimant and he could not go out and play like others. Ex.A45 is the Accident Register issued by the Government Hospital, Virudhachalam and Ex.A46 is the discharge slip showing the treatment in Nallam Clinic, Pondicherry and Ex.A48 is the discharge summary issued by Jipmer hospital, Pondicherry. PW2-Dr.Sekar also examined the minor Claimant and noticed irregular scar on the anterior aspect of knee joint to the medial side of knee. PW2 has assessed the permanent disability at 9% and issued Ex.P57-disability certificate. Tribunal has awarded Rs.29,000/- as total compensation. Having regard to the nature of injuries, the compensation of Rs.29,000/- awarded by the Tribunal is enhanced to Rs.50,000/- as under:-
Pain and suffering : Rs.20,000.00 Permanent disability : Rs.20,000.00 Extra-nourishment : Rs.10,000.00 --------------- Total : Rs.50,000.00 --------------- Tribunal has awarded interest at the rate of 7.5% p.a. and the same is maintained.
16. C.M.A.Nos.2189 and 2304 of 2006:- In the result, the compensation awarded by the Tribunal in M.C.O.P.No.548/2003 [CMA.No.2189/2006] is enhanced to Rs.6,00,000/-. Like wise, the compensation awarded by the Tribunal in M.C.O.P.No.94/2004 [CMA.No.2304/2006] is also enhanced to Rs.50,000/- payable with interest at the rate of 7.5% p.a. from the date of Claim Petitions and these Civil Miscellaneous Appeals are partly allowed.
Respondent-Transport Corporation is directed to deposit the enhanced compensation in MCOP.No.548/2003 and Rs.50,000/- in MCOP.No.94/2004 along with accrued interest within a period of eight weeks from the date of receipt of copy of this Judge. On such deposit, the Claimant-Murugan [MCOP.No.548/2003] is entitled to withdraw the entire compensation along with accrued interest. The entire compensation in respect of minor Claimant-Sarath Kumar [MCOP.No.94/2004] is ordered to be invested in a nationalised bank till he attains majority. Claimant-Murugan is permitted to withdraw the accrued interest once in three months.
In the circumstances of the case, there is no order as to costs in these Appeals.
(R.B.I., J.) (B.R., J.) 30.06.2010 Index: Yes/No Internet: Yes/No bbr To The Fast Track Court No.II, Tindivanam. R.BANUMATHI, J. and B.RAJENDRAN,J bbr Common Judgment in CMA.Nos.2189 & 2304 of 2006 30.06.2010