IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.01.2011 CORAM THE HONOURABLE MR.JUSTICE B. RAJENDRAN C.M.A. Nos. 2909 and 2910 of 2007 National Insurance Company Limited Branch Office, 1st Floor No.37/2-E, Salem Main Road Mettur R.S., Mettur Taluk Salem District-636 402 ... Appellant in both the appeals Versus 1.B.Rayappan 2.R.K.Seenivasan ... Respondents in
C.M.A.No.2909 of 2007
1.Manikkam
2.R.K.Seenivasan … Respondents in
C.M.A.No.2910 of 2007
Appeals filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree in M.C.O.P.Nos.1389 and 1390 of 2002, dated 07.04.2006, on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.1,Salem.
For appellants : Mr. N. Vijayaraghavan in both the appeals For respondents : Mr. K. Kuppusamy for R1 in both the appeals COMMON JUDGMENT
These appeals are preferred by the Insurance Company against the Award and Decree passed in M.C.O.P. Nos. 1389 and 1390 of 2002 dated 07.04.2006 on the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court No.1,Salem.
2. The facts which gave rise for filing of C.M.A. No. 2909 of 2007, arising out of M.C.O.P.No.1389 of 2002, is that on 19.02.2001 at about 04.00 pm when the claimant namely Rayappan was traveling with his friend Manickam in his TVS Suzuki Motor Cycle bearing Registration No.TN 27 W 5428 from Mettur to Erode, near Ammapet to Chinnapallam, the Tanker lorry bearing Registration No.TN 27 F 5405 driven by its driver in a rash and negligent manner and dashed against the TVS Suzuki motor Cycle. Due to the accident, the claimant had sustained grievous injuries namely
(1) A fracture in the right side of the hip
(2) A fracture in the right thigh and
(3) Fracture in both bones in the right leg
3. The pillion rider Manickam also sustained multiple injuries. After the accident, the claimant was admitted in the Government Hospital, Mettur for initial treatment, from where he was shifted to Gokulam Hospital, Salem and then to Ganga Hospital, Coimbatore for further treatment and surgeries. The claimant had also taken treatment as inpatient in Ganga Hospital, Coimbatore from 28.05.2001 to 23.07.2001; from 03.02.2002 to 16.02.2002; 29.10.2003 to 31.10.2003 and 22.01.2004 to 07.02.2004. Totally he was admitted as inpatient in the hospital for a period of 98 days. During the period of treatment, the claimant had underwent four distinctive surgeries. According to the claimant, even after his discharge, he continued his treatment at least for a period of three years but inspite of such treatment, the bones have not joined properly and the movements in his right leg knee and ankle were totally restricted. The Doctor has certified the disability at 60% inasmuch as he is unable to move the right knee and the joining has taken place with tilted position at 15: degrees. Even the toes in the right foot also tilted and he is unable to lift the toes. He sustained injuries in the hip and leg as well. Therefore, the permanent disability is peculiar in nature for which he was admitted for about 5 years. Even in the Wound Certificate, it is very clearly stated that all the four injuries are grievous injuries. Ex.A.28 is the X-Rays (41 in Numbers). Ex.A.29 is the Scan reports (3 in numbers). According to the claimant, the injuries sustained by him are peculiar in nature inasmuch as he is unable to do his normal work and therefore, it warrants awarding of compensation by adopting multiplier method. The accident occurred only on account of rash and negligent act of driver of the Tanker lorry. He therefore claimed a sum of Rs.20,00,000/- as compensation.
4. The appellant corporation resisted the claim of the claimant in MCOP No. 1389 of 2002. After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the first respondent driver and awarded a compensation of Rs.10,83,200/- with interest at 7.5% per annum from the date of petition.
5. The case of the claimant in M.C.O.P.No.1390 of 2002, (CMA No. 2910 of 2007) is that when he was traveling with his friend as Pillion rider in TVS Suzuki Motor Cycle to Erode, the Tanker lorry bearing Registration No.TN 27 F 5405 driven by its driver in a rash and negligent manner from North to South direction dashed against the TVS Suzuki motor Cycle. Due to the accident, the claimant had sustained grievous injuries. Immediately, the claimant was admitted in the Government Hospital, Mettur for initial treatment, then shifted to Gokulam Hospital, Salem and then to Ganga Hospital, Coimbatore for further treatment and surgeries. The claimant also undergone four distinctive surgeries and still undergoing treatment. The accident occurred only on account of rash and negligent act of driver of the Tanker lorry. Therefore, the claimant claimed a sum of Rs.15,00,000/- as compensation.
6. The appellant Insurance Company resisted the claim of the claimant in MCOP No. 1390 of 2002. After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the first respondent driver and awarded a compensation of Rs.4,42,000/- with interest at 7.5% per annum from the date of petition.
7. The learned counsel appearing for the appellant/insurance company admits the date, time and manner in which the accident had occurred, as also the liability, but they only question the quantum of compensation awarded by the Tribunal. The learned counsel appearing for the appellant would contend that the amount awarded by the Tribunal in MCOP No. 1389 of 2002 (CMA No. 2909 of 2007) is excessive, exorbitant, without any basis and justification. The Tribunal has wrongly adopted the multiplier method in a case of injury. Even though there are various multiple fractures sustained by the claimants, the injuries by itself will not empower the court below to grant relief by adopting multiplier method which is contrary to the decision of the Division Bench of this Court as well as the Apex Court. Further, he would contend that apart from granting compensation by adopting multiplier method, the lower court has also granted a sum of Rs.2,75,000/- under the head of loss of earning capacity which is contrary to the decision of the Full Bench of this Court. Further, the Court below granted a sum of Rs.59,000/- towards transportation charges, which is exorbitant and higher Further, the learned counsel for the appellant submitted that the Lower Court has awarded a sum of Rs.2,00,000/- towards loss of income during the treatment period of six months, whereas as per the documentary evidence produced to show the income, he is earning only a sum of Rs.60,000/- per annum i.e., Rs.5,000/- per month. Therefore, the amount awarded at Rs.2,00,000/- towards loss of income during the period of treatment is excessive. Even in respect of Pain and Sufferings, the Tribunal granted a sum of Rs.1,00,000/- which is also on the higher side. In those circumstances, the award amount granted by the Lower Court is excessive and without any basis and therefore the learned counsel for the appellant prayed for setting aside the same.
8. As far as C.M.A. No. 2910 of 2007 is concerned, the learned counsel for the appellant would contend that the claimant suffered only fracture in the right leg and he was aged about 34 years at the time of the accident. Even the Doctor assessed the disability of the claimant at 40%. Even though the court below has taken the percentage of disability at 25%, by applying multiplier method, the Court below granted an exorbitant amount of Rs.1,92,000/- towards disability. Apart from the above, the court below granted Rs.1,75,000/- under the head Loss of earning capacity which is against the Full Bench decision of this Court. Similarly, a sum of Rs.75,000/- was awarded under the head Pain and Sufferings for having hospitalised for 45 days, which is again on the higher side. The court below further granted Rs.50,000/- towards loss of income during the period of treatment in the absence of any evidence to sustain the same. In any event, the amount of Rs.4,42,000/- awarded by the Court below is arbitrary, unreasonable and exorbitant and prayed for setting aside the award of the court below.
9 In the case of C.M.A.No. 2909 of 2007, the learned counsel appearing for the claimant/first respondent would contend that the claimant had suffered multiple injuries and sustained fracture on his right femur neck and communited fractures of his whole femur which disabled him permanently in sitting, standing, walking frequently and comfortly. Further, he sustained fracture on his right leg above the knee and also communited fractures on his right leg. He also sustained grievous injuries on his face resulting disfiguration apart from multiple grievous simple injuries all over his body. The learned counsel for the first respondent further submitted that the claimant had spent Rs.6,00,000/- towards his hospital and medical expenses and underwent four distinctive surgeries for fixing steel plates. In other words, the claimant had sustained permanent and physical disability at 100%. Therefore, the learned counsel for the first respondent would justify the compensation awarded by the court below and prayed for dismissing the appeal.
10. In the case of C.M.A.No.2910 of 2007, the learned counsel appearing for the claimant/first respondent would contend that the claimant had suffered fracture of both tibia and fibula of his right leg which disabled him permanently to walk, sit, stand frequently and comfortly. He had also sustained communited fractures in his right leg and grievous injuries on his forehead resulting in fracture of bones. The learned counsel further submitted that the claimant had spent Rs.4,00,000/- towards his medical expenditures and underwent four distinctive surgeries for fixing steel plates. The learned counsel appearing for the first respondent submitted that the Tribunal had considered all the relevant materials and evidence on record and awarded reasonable compensation, hence, he prayed for dismissal of the appeal.
11. Heard the learned counsel on either side. In M.C.O.P.No.1389 of 2007, at the time of accident, the claimant was aged about 30 years old. He was a Contractor in T.W.A.D. Board and earning Rs.30,000/- per month. Due to injuries sustained over his right femur, right thigh and four composite fractures on his right leg and grievous injuries on left leg and his face resulting in disfiguration, he could not continue his contract work as before.
12. It is seen from the record that both the claimants met with an accident that took place on 19.02.2001 at about 04.00pm. One of the claimants is the owner of the TVS Suzuki Motor Cycle and the other claimant was the pillion driver. They were traveling in TVS Suzuki Motor Cycle bearing Registration No.TN 27 W 5428 from Mettur to Erode. At that time, the Tanker lorry bearing Registration No.TN 27 F 5405 driven by its driver in a rash and negligent manner from North to South direction dashed directly against the TVS Suzuki motor Cycle. Due to the accident, the claimants had sustained grievous injuries. It is fairly submitted by the Insurance Company that they are only disputing the quantum in both the appeals.
13. Admittedly, in both the cases, the court below adopted multiplier method to award the compensation, especially in a case of a injury, which is contrary to the decision of the Supreme Court. It is no doubt true that even in case of injury, if the percentage of injury is 100% or 90% or it results in total deprivation of the earning capacity of the claimant, the Courts are justified in resorting to award compensation by adopting multiplier method, but in this case, the question of awarding compensation by adopting multipler method will not arise.
14. In the first case namely CMA No. 2909 of 2007, it is a peculiar and unfortunate case where the claimant had sustained multiple fracture both in the head as well as in the leg. In fact, there is a fracture in the hip, tibia and fibula. He had taken treatment in the hospital for about 98 days. It is also pertinent to note that the Doctor, who was examined as PW3, had indicated that the bones have not joined properly, there is malunion of the fracture and even the bone is precluded, which results in permanent disability. The claimant is unable to walk and sit. In fact, due to the accident, the movements in the right knee is restricted to 30: and there is a restriction of 70: through out his life. The doctor has also certified that there was a plate inserted in the hip as well as in the leg and in the medical certificate, it is clearly stated that four wounds are grievous in nature. The documents under Ex.A.8, Ex.A.10, Ex.A.14 and Ex.A.27 are all produced to show that he has been treated as inpatient and he has also undergone four distinctive surgeries. The claimant has also produced Ex.A.28 (41 X-rays) and Ex.A.29 (3 scans) which would indicate the gravity of the injuries sustained by the claimant.
15. No doubt, the Honourable Supreme Court has categorically held that normally in a case of a injury, multiplier method cannot be adopted. In this case, the claimant in MCOP No. 1389 of 2002 (CMA No. 2909 of 2007) is a Contractor in a Firm. Inspite of the injuries, as a Contractor, he can continue to do the contract work. However, in a contract work, unless there is personal involvement like inspection, verification and taking note of the day to day affairs, it will be difficult to execute the contract. Inasmuch as the claimant had sustained grievous injuries and underwent four surgeries, it cannot be expected that the claimant could execute the contract awarded in his favour with much ease. Therefore, this is a fit case where I feel that apart from normal compensation, something more has to be awarded because the claimant sustained very serious injuries including multiple fracture and malunion of the bone, which is a continuing one.
16. In MCOP No. 1389 of 2002 (CMA No. 2909 of 2007), the Doctor had assessed the disability of the claimant at 60%, however, the court below fixed the percentage of disability at 40% and by taking the monthly income at Rs.4,000/- per month, applied multiplier ’15’ and arrived at Rs.2,88,000/- towards disability. Since the claimant had taken prolonged treatment and considering the facts and circumstances of this particular case, a notional amount can be fixed at Rs.2,35,000/- towards disability instead of applying the multiplier method. Accordingly, a notional sum of Rs.2,35,000/- is hereby awarded towards disability as against Rs.2,88,000/- awarded by the court below.
17. Insofar as the amount awarded towards future loss of income of Rs.2,75,000/- is concerned, as rightly pointed by the learned counsel for the appellant, it is not inconsonance with the Full Bench decision of this Court and the Court below ought not to have granted Rs.2,75,000/- towards future loss of income apart from granting amount under the head of disability. Therefore, the amount of Rs.2,75,000/- granted by the court below is hereby set aside.
18. As far as the amount awarded towards medical expenses to the tune of Rs.3,89,200/- is concerned, it is supported by medical bills and therefore, the same is hereby confirmed.
19. It is seen from the records that the Court below has not granted any amount towards future medical expenses even though the Doctor has categorically stated that the claimant has to incur amount for his treatment in future. Therefore, a sum of Rs.50,000/- is hereby awarded under the head of Future medical expenditure.
20. The Court below had granted Rs.59,670/- for transportation. Inasmuch the claimant was shifted from one hospital to the other for the purpose of taking treatment for the injuries sustained by him, which are also covered by Ex.P17, bills, the amount awarded under this head is reasonable and it is hereby confirmed.
21. As far as Pain and Suffering is concerned, the Court below has granted Rs.1,00,000/- taking into consideration the prolonged treatment which the claimant had undergone. However, in my opinion, the amount awarded under this head in one lumpsum has to be reduced to Rs.75,000/- considering the over all facts and circumstances of the case. Accordingly, the amount awarded under this head is reduced to Rs.75,000/- as against Rs.1,00,000/- granted by the Court below.
22. Insofar as the amount awarded under the heading loss of income during the treatment period, the Court below had granted Rs.2,00,000/- for a period of six months, which in my opinion is exorbitant. As per the documents available on record, the Income of the claimant is lesser than Rs.60,000/- per annum. Therefore, even if Rs.5,000/- per month is taken as the monthly income, for six months, a sum of Rs.30,000/- can be awarded and at best this amount can be rounded off to Rs.50,000/-. Therefore, the amount awarded by the court below under the head loss of income during the period of treatment is reduced from Rs.2,00,000/- to Rs.50,000/-.
23. In the result, CMA No. 2909 of 2007 is partly allowed and the amount awarded by the Court below at Rs.10,83,200/- is reduced to Rs.8,60,000/-, as mentioned below:-
Disability : Rs.2,35,000.00 Medical Expenses : Rs.3,89,200.00 Future Medical Expenses : Rs. 50,000.00 Transportation Charges : Rs. 59,670.00 Pain and Suffering : Rs. 75,000.00 Loss of income during the period of treatment : Rs. 50,000.00 --------------------- Total Rs.8,58,870.00 Rounded off to : Rs.8,60,000.00 --------------------
24. As far as the second case is concerned namely C.M.A.No.2910 of 2007, the claimant had sustained fracture of both tibia and fibula of his right leg. According to the Doctor, there is a restriction in the right knee to 10: and the movement is restricted. He assessed the disability of the claimant at 40% under Ex.A.48. The claimant had taken treatment from 11.06.2001 to 16.06.2001, then from 05.07.2001 to 06.08.2001 and 21.08.2001 to 03.12.2001 in the hospitals at Salem as well as Chennai. Due to the accident, he is unable to walk freely and there is a difference in the leg. The main contention of the insurance company is that the case on hand does not warrant awarding compensation by resorting to multiplier method and therefore the amount awarded is exorbitant.
25. As rightly pointed out by the learned counsel for the appellant, in a case of injury of this nature, the court below ought not to have awarded compensation by resorting to multiplier method. However, as per the decision of the Division Bench of this Court, a maximum sum of Rs.2,000/- per percentage of disability can be awarded. In this case, the Doctor had assessed the disability of the claimant at 40% and therefore, even if a maxium of Rs.2,000/- is awarded per percentage of disability, the claimant is entitled to get Rs.80,000/- (Rs.2,000/- X 40%) as against Rs.1,75,000/- awarded by the court below, which will be the just and fair compensation, which the claimant is entitled to under the heading Disability.
26. When once the Court below awarded compensation under the heading Disability, awarding compensation under the heading loss of earning capacity does not arise and it is contrary to the decision of the Division Bench of this Court. Therefore, the amount of Rs.1,75,000/- awarded by the court below under the heading loss of earning capacity is legally impermissible and therefore it is hereby set aside.
27. The Court below awarded a sum of Rs.1,17,000/- towards medical expenses, for which medical bills were produced by the claimant. Therefore, the amount awarded by the court below under this heading is hereby confirmed.
28. The Court below awarded a sum of Rs.25,000/- towards transportation charges. Inasmuch as the claimant had initially taken treatment at Salem and then shifted to a hospital to Chennai, the amount awarded under this head is justifiable and therefore the same is hereby confirmed.
29. For pain and suffering, the Court below awarded a sum of Rs.75,000/- and it appears to be on the higher side. Considering the over all facts and circumstances, the period of hospitalisation and the nature and extent of the injuries sustained by the claimant, I am of the view that the claimant shall be awarded a sum of Rs.50,000/- under this head. Accordingly, a sum of Rs.50,000/- is hereby awarded to the claimant as against Rs.75,000/- awarded by the court below.
30. As far as loss of income during the period of treatment is concerned, the Lower Court awarded Rs.50,000/-. Even as per the evidence of the claimant, he was earning only Rs.5,000/- per month. Taking into consideration the period of hospitalisation and the earning capacity of the claimant, a sum of Rs.5,000/- can be awarded for four months towards loss of income during the period of treatment, as against Rs.50,000/- awarded by the court below. Accordingly, the claimant is entitled to a sum of Rs.20,000/- towards loss of income for the period of treatment.
31. In the result, CMA No. 2910 of 2007 is partly allowed and the compensation amount of Rs.4,42,000/- awarded by the Court below is reduced to 3,00,000/- as mentioned below Disability : Rs. 80,000.00 Medical Expenses : Rs.1,17,000.00 Transportation charges : Rs. 25,000.00 Pain and Suffering : Rs. 50,000.00 Loss of income during the period of treatment : Rs. 20,000.00 --------------------- Total Rs.2,92,000.00 Rounded off to Rs.3,00,000.00 ---------------------
32. In the result, both the appeals filed by the Insurance Company are partly allowed. No costs. It is represented by the learned counsel for the appellant that in both the cases, the insurance company had deposited the entire amount awarded by the court below. In view of the determination of the compensation amount in these appeals, the appellant/insurance company is permitted to withdraw the excess amount along with accrued interest. The claimants are also permitted to withdraw the balance amount with accrued interest, as determined by this Court.
mps/rsh
To
The Motor Vehicles Accident Claims Tribunal,
(Fast Track Court),
Tirupur,
Coimbatore