IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.02.2010
CORAM
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
C.M.A.No.1195 of 2005
Tmt. M. Rajakili
W/o. Mahendran,
Kathalampattu Village & Post,
Now residing at No.33, Bajanai,
Koil Street, Walaja,
Vellore District. ... Appellant
vs.
The Managing Director
Tamil Nadu Transport Corporation
Rangapuram Vellore 9. ... Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act 1988, against the judgement and decree dated 15.12.2004 made in M.C.O.P.No.107/2003 on the file of Subordinate Judge (Motor Accidents Claims Tribunal) Ranupet, Vellore District.
For Appellant : Mr. V. Jaganathan
For Respondent : Mr. A. Babu
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JUDGMENT
The appeal has been preferred by the claimant aggrieved by award of Rs.1,42,260 as against her claim of Rs.5,00,000/-.
2. The case of the claimant is that she sustained grievous injuries in the accident occurred on 23.12.2002 when the claimant was traveling along with her husband in the bus belonging to the respondent corporation which was hit by another bus belonging to the respondent transport corporation, driven rash and negligently as a result of the accident. The claimant sustained the grievous injuries including amputation of both legs. For the said injuries she filed the claim petition which was contested by the respondent corporation. However it is stated in paragraph 4 of the counter statement that both the busses belonging to the respondent corporation dashed against each other because of a Tata Sumo, which overtook one of the busses and it is admitted that because of the accident, passengers traveling in both busses sustained injuries.
3. Considering the pleadings and evidence the Tribunal came to the conclusion that the accident occurred because of the rash and negligent driving of the respondent transport corporation bus which hit another respondent transport corporation bus in which the claimants and her husband travelled. For the injuries the Tribunal awarded a sum of Rs.1,42,260/-. Aggrieved by the compensation award the claimant is before this court.
4. Mr. V. Jaganathan, learned counsel for the appellant submitted that the number of injuries and the nature of injuries would prove that they were very serious and the claimant became completely immovable because of the amputation of both legs and she is unable to walk. The appellant was claiming 80% disability but the Tribunal fixed 70% disability. For loss of income only Rs.30,000/- was awarded and for disability Rs.70,000/- was awarded and therefore he sought for enhancement.
5. On the other hand Mr. A. Babu learned counsel for respondent counsel submitted that the award of the Tribunal is reasonable and based on the evidence only, 70% disability was fixed and accordingly, awarded under various headings.
6. The learned counsel for the respondent submits that for amputation cases as per Schedule 1 annexed to Workmen Compensation Act as Item No.19 it is stated as follows;
“Amputation below middle thigh to below knee”
7. Based on that, the learned counsel stated that the injuries caused to the claimant in the present case is only 60% disability. However as stated above both the legs were amputated and various serious injuries were caused and she has to depend upon others for day today activities also, as she became immobile. Therefore this Court determines the disability at 100%.
8. A perusal of the pleadings and evidence and award would go to show that the accident occurred because of the rash and negligent driving of bus bearing No.TN 23 N 1482 which dashed against another respondent corporation bus in which claimant and her husband travelled. Considering the fact that the FIR filed against the said bus driver and based on the evidence of P.W.1, the Tribunal rightly found that the accident occurred because of rash and negligent driving of respondent corporation bus namely TN 23 N 1482. Therefore, the said finding is confirmed. It is to be noted that there is no appeal filed by the corporation and therefore, it attained finality.
9. As stated above a perusal of the evidence especially documentary evidence shows that the claimant sustained very serious injuries and completely became immovable because of the amputation of both the legs. Ex.P2 wound certificate is extracted as follows;
“1. Closed comminuted left distal radius fracture.
2. Left public ramus inferior and superior fracture.
3. Right leg 2 lacerations 3 cm transverse anteriorly.
4. 4 cm laceration medially on right feet.
5. 10cm transverse oblique laceration anteriorly from first web space to 5th metatarsal joint.
6. All externser tendons to lateral 4 tees cut right feet.
7. 2nd tee near total amputation right feet.
8. Type 3B open fracture 2,3,4,5th metatarsals right.
9. Open fracture shaft or right tibia.
10. Closed segmental fracture right fibula.
11. Left ankle type 3B fracture and dislocation associated with vascular injury, tendons and nerve damage (near total amputation).
12. Open fracture head of left fibula.
13. Open fracture medical malleolus left.
14.15 x 12 cm laceration with exposed tendons, vessels and nerves, posterior lower left thigh and popliteal space left.
15. Anterior 5 cm wide and 16 cm long laceration with tissue loss left thigh and knee.
16. Type 3 cm omminuted open fracture distal radius with vascular compromise.”
10. When the person losses parts of both the legs it is certain that she could not move about and even attend her own day today activities. Therefore even though Ex.P10 and P.W.2 Doctors, deposed that, 80% disability was caused to the claimant, that would cause 100% disability to the claimant and substantially reducing the quality of life. A person with both the legs amputated cannot do any work. Assuming that she is a house wife, the functions and duties of the house wife, very elaborately and pragmatically considered in the judgment of the Hon’ble Supreme Court Lata Wadhwa and others v. State of Bihar and Others reported in 2001 ACJ 1735. In that case for the death of house wife Rs.3,000/- was awarded. Moreover, the accident occurred in the said case in 1988 whereas, the case on hand in which the accident occurred on 23.12.2002. The Hon’ble Supreme Court in another case in New India Assuarance Company Ltd. v. Kalpana (Smt) And Others reported in 2007 3 SCC 538 fixed the monthly contribution after deduction of 1/3rd towards personal expenses, Rs.3,000/- was determined.
11. Considering the case of Lata Wadhva vs. State of Bihar and others, this Court takes Rs.3,000/- as monthly income and deducts 1/3rd towards personal income and takes monthly income as Rs.2,000/-. The age of the appellant at the time of the accident was 37 years and the appropriate multiplier according to the schedule is 16. The loss of income would be Rs.2,000x12x16 = Rs.3,84,000/-. As far as pain and sufferings is concerned a sum of Rs.10,000/- was awarded and the same is enhanced to Rs.15,000/-. Since the amount towards loss of income has been awarded as per the second schedule, the amount awarded towards disability namely Rs.70,000/- and loss of income Rs.13,000/- are deleted. As far as nourishment is concerned the Tribunal awarded only Rs.500/- and the same is enhanced to Rs.15,000/-. The other amounts are reconfirmed.
13. The award of the Tribunal Rs.1,42,260/- is enhanced to Rs.4,32,760/- in the following manner;
1. Loss of Income = Rs.3,84,000/- 2. Pain and Sufferings = Rs. 15,000/- 3. Extra Nourishment = Rs. 15,000/- 4. Transportation = Rs. 1,500/- 5. Medical Expenses = Rs. 17,260/- ------------------- Total = Rs.4,32,760/- =========== The Tribunal awarded an interest of 9%, however this court awards 7.5% for order as to costs. prm To The Managing Director Tamil Nadu Transport Corporation Rangapuram Vellore 9