Madras High Court
P.Dinesh vs The Managing Director on 14 July, 2023
C.M.A.No.3692 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.07.2023
CORUM
The Hon'ble Mr.Justice Krishnan Ramasamy
C.M.A.No.3692 of 2021
and
CMP.No.21863 of 2022
P.Dinesh ... Appellant
Vs.
The Managing Director,
Tamil Nadu State Transport Corporation Ltd.,
Villupuram Division, Villupuram.
...Respondent
Civil Miscellaneous Appeal has been filed under Section 173 of Motor
Vehicles Act 1988 against the judgment and decree dated 23.01.2021, in
M.C.O.P.No.6843 of 2014, and the rejection Docket Order passed in the
Review Petition, dated 20.04.2021, on the file of the IV Small Causes Court,
Chennai/Motor Accident Claims Tribunal, Chennai.
Appearance
For Appellant : Mr.R.S.Anandan
For Respondent : Mrs.S.Shanthakumari
JUDGMENT
Not being satisfied with the quantum of compensation awarded by
the Motor Accident Claims Tribunal cum IV Judge, Court of Small Causes,
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Chennai (henceforth, referred to as 'the Tribunal') in and by its award dated
23.01.2021, in M.C.O.P.No.6843 of 2014, and the rejection Docket Order
passed in the Review Petition, dated 20.04.2021, the present Civil
Miscellaneous Appeal has been filed by the claimant, seeking enhancement
of compensation.
2. On 10.03.2013, at about 11.00 hours, when P.Dinesh, (claimant
herein) was travelling as a Passenger in a Bus, bearing Registration No.TN-
21-N-1517, which was proceeding from Adyar, Chennai to Venngupattu
and when the bus was nearing Perumanancherry Bridge, Kalpakkam,
Sadras Police Limit, the driver of the bus attempted to overtake another bus,
and in the process, he drove the bus in a rash and negligent manner, as an
aftermath, the Bus hit across another Van, (registration number not known)
which came in the opposite direction, and thus, caused the accident. In the
said accident, the claimant sustained grievous fracture injury.
3. At the time of the accident, the claimant was a Bachelor, aged
about 22 years and he was working as an Office Assistant, in a Private
Concern, viz., Trioship Company, situated at T.Nagar, Chennai and earning
a sum of Rs.6,000/- per month. Hence, he made claim in a sum of
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Rs.30,00,000/- as compensation against the driver of the offending Vehicle,
viz., Bus and the respondent, Tamil Nadu State Corporation Ltd., as they
being the owner of the Vehicle, they are vicariously and statutorily liable to
pay compensation.
4. Before the Tribunal, the claimant examined himself as P.W.1.
and marked 26 documents, as Exs.P.1 to P.26. On the side of the
respondent, the driver of the Bus, viz., A.P.Arumugam was examined as
R.W.1, however, no documents were exhibited.
5. The Tribunal on evaluation of both oral and documentary
evidence placed on record came to the conclusion that the accident had
occurred owing to the rash and negligent driving of the driver of the Bus,
belonging to the respondent/State Transport Corporation. By coming to
such a conclusion, Tribunal made calculation under different heads and
passed an award for a total compensation amount of Rs.6,88,000/-.
5.1. The break up details of the compensation amount awarded by
the Tribunal are as follows :-
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S.No Head Amount
granted
1. Functional Disability Rs.4,14,375/-
2. Pain and Suffering Rs. 20,000/-
3. Extra Nourishment Rs. 15,000/-
4. Transportation Rs. 15,000/-
5. Damage to clothes Rs. 1,000/-
6 Attender Charges Rs. 17,000/-
7 Medical Expenses Rs.1,95,333/-
8 Loss of Amenities Rs. 10,000/-
Total Rs.6,87,708/-
rounded off
Rs.6,88,000/-
6. Finding the compensation amount as insufficient, the present
Appeal has been filed by the appellant/claimant, as stated above.
7. As the present Appeal is filed only questioning the quantum of
compensation awarded by the Tribunal, this Court is not traversing into the
other aspects of the award passed by the Tribunal.
8. Mr.R.S.Anandan, learned counsel appearing for the
appellant/injured claimant would submit that due to the accident, he has
sustained compound fracture in right hand humerous (shaft), right arm
degloving injury, skin avulsion exposing muscle, tendon bone and also
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C.M.A.No.3692 of 2021
sustained multiple injury all over the body. Immediately, after the accident,
i.e. on 10.03.2013, appellant was given first aid at Sadras Hospital,
thereafter, he got admitted at Chettinad Hospital and later, referred to Miot
Hospital, where, he was treated as in-patient from 10.03.2013 to 10.04.2013
(i.e. for a period of one month). The learned counsel submitted that since
the fracture injury sustained by the claimant is grievious in nature, he was
given treatment at MIOT Hospital for nearly one month and even thereafter,
he took treatment as outpatient at various Hospitals for nearly one year. The
appellant in support of his claim made towards disability, marked Ex.P.21,
Disability Certificate issued by Institute of Rehabilitation Medicine,
K.K.Nagar, Chennai – 83, wherein, disability sustained by the injured was
assessed at 90% and and Ex.P.22, certificate issued by the Commissionerate
for Welfare of the Differently abled, certifying that the injured cannot travel
without the assistance of another person. However, Tribunal, while
determining compensation towards Functional Disability, regardless of
Exs.P.21 and P.22 has taken the disability only at 25% by citing the reason
that, Exs.P.21 and P.22 are only photostat copies, and as per the guidelines
issued by the High Court, only Medical Board could assess the disability.
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8.1 The learned counsel contended that, at the time of marking
Exs.P.21 and P.22, the respondent/State Transport Corporation raised no
objection and hence, Tribunal ought to have relied on those unimpeachable
evidence, viz., Exs.P.21 and P.22 and fixed the disability at 90%. The
learned counsel further submitted that since the Disability Certificate was
issued by the Government Institute of Rehabilitation Medicine, and the same
was required by the appellant to avail other disability benefits from the
schemes introduced by the Government, the appellant was not in a position
to mark the originals, however, the learned counsel has produced the
original Disability Certificate before this Court and sought permission to
mark the said additional document and thereupon, to award just and fair
compensation towards Functional Disability.
8.2. Further, the learned counsel referred to Workmen's
Compensation Act, and submitted that as per Schedule I Part I of the said
Act, wherein, list of injuries deemed to result in, were mentioned, and in the
said list, disability that would occur due to loss of hand is mentioned in
Serial No.2 as 'permanent total disablement'. Therefore, the learned counsel
prayed that the disability may be fixed at 90%. It is his further submission
that the Tribunal, while determining the compensation towards Functional
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Disability has added only 25% towards future prospects, which also resulted
in awarding an inadequate compensation of Rs.4,14,375/- towards
functional disability. The learned counsel, in support of his contention that
40% should be added towards Future Prospects, has placed reliance on the
ratio laid down by the Honourable Supreme Court, in re National
Insurance Company Limited Vs. Pranay Sethi and others reported in
2017 (2) TN MAC 601. Therefore, the learned counsel prayed for
appropriate enhancement of compensation towards Functional Disability.
8.3 The learned counsel for the appellant contended that
appellant/injured apart from the treatment taken at MIOT Hospital, has also
taken treatment at number of Hospitals, so as to get rid of the pain and
sufferings due to the fracture sustained in his right hand and spent a sum of
Rs.6,00,000/-, however, he sought for compensation under the head of
'Medical Expenses', at Rs.5,00,000/- and produced medical bills issued by
MIOT Hospital, for a sum of Rs.3,92,115/- which was marked as Ex.P.14
(series). However, the Tribunal has granted only a sum of Rs.1,95,333/- by
assigning the same reason as it assigned with regard to Exs.P.21 and P.22,
that Ex.P.14 (series) are also photostat copies. The learned counsel
submitted that at the time of marking medical bills also, no objection was
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C.M.A.No.3692 of 2021
raised by the respondent/State Transport Corporation, and in the absence of
same, it is totally unfair on the part of the Tribunal to fix lowest
compensation at Rs.1,95,333/- towards Medical Expenses.
8.4 The learned counsel further submitted that, Ex.P.14 (series) viz.,
the medical bills issued by MIOT Hospital would show that appellant has
incurred a total medical expenses of Rs.3,92,115, out of which, a sum of
Rs.1,05,000/- was reimbursed to the Hospital by the New India Assurance
Company, through the Medi Assist Health Care Service based on the
Employer's (Trioship Company) Medical Assistant Scheme, where, the
appellant was working, however, therefore, balance sum of Rs.2,87,115/-
paid by him has to be awarded. The learned counsel submitted that finally,
claimant took treatment at Ramachandra Hospital, and spent a sum of
Rs.90,000/- and therefore, prayed that said amount also has to be taken into
consideration while awarding compensation towards Medical Expenses.
The learned counsel also produced the original bills issued by the MIOT
Hospital and Ramachandra Hospital before this Court for proof and
reference and prayed for awarding reasonable compensation towards
medical expenses.
8.5 It is further contended by the learned counsel for the
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appellant/claimant that at the time of the accident, the claimant was working
as Office Assistant and earning monthly income of Rs.6,500/- and due to the
accident, he is unable to do any work, however, the Tribunal failed to award
any amount towards Loss of Future earning capacity. .
8.6 The learned counsel contended that the compensation awarded
by the Tribunal under other head 'Pain and Suffering' is also low, since due
to the fracture sustained by the appellant at his right hand, he is suffering
till today, had his right hand got fully amputated, he would not have suffered
much, however, since the same is in hanging condition, he has to suffer
throughout his life and he cannot use the same for any purpose. Similarly,
the compensation awarded by the Tribunal under other heads, viz., i) Extra
Nourishment at Rs.15,000/-, iii) Transportation at Rs.15,000/-,and iii) Loss
of Amenities at Rs.10,000/- are also very meager and it requires appropriate
enhancement.
9. Per contra, Mrs.S. Shanthakumari, the learned counsel for the
respondent/State Transport Corporation made her submission supporting the
award passed by the Tribunal. She submits that, normally, Tribunal, while
determining compensation in cases pertaining to motor accident, would rely
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on only the Disability Certificate issued by the Medical Board and in the
present case, the appellant/claimant produced only the photostat copy of the
Disability Certificate issued by the Doctor attached to the Institute of
Rehabilitation Medicine, K.K.Nagar, Chennai – 83, based on which, the
Tribunal fixed the disability at 25%. She further submitted that though the
claimant examined himself as P.W.1 and stated that due to the accident he
has disability at 100%, however, the Doctor, who examined the
appellant/injured and issued Ex.P.21 was not examined, and in such
circumstances, the Tribunal fixed the disability at 25%, which is correct.
However, since the learned counsel for the appellant produced the original
disability certificate before this Court, learned counsel for the
respondent/State Transport Corporation submitted that disability may be
taken as 80%.
9.1 As regards the compensation to be awarded under the head of
medical expenses is concerned, the learned counsel submitted that since the
medical bills adduced by the appellant/claimant for a value of Rs.3,92,115/
are also xerox copies, and as it has been admitted by the appellant/claimant
that out of the said amount, a sum of Rs.1,05,000/- was reimbursed to him
under medical insurance coverage, and the appellant has paid only
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C.M.A.No.3692 of 2021
Rs.2,87,115/- the Tribunal has awarded a reasonable sum of Rs.1,95,333/-
as compensation towards medical expenses and the same cannot be found
fault with. However, since it is submitted by the learned counsel for the
appellant that the appellant has spent a sum of Rs.90,000/- at Ramachandra
Hospital for treatment of his right hand and the appellant also produced the
original medical bills issued by both MIOT (for a value of Rs.3,92,115/-)
and Ramachandra Hospital (for Rs.90,000/-) she submitted that some
reasonable compensation may be awarded towards medical expenses.
9.2 As regards the compensation awarded by the Tribunal under
other heads are concerned, the learned counsel submitted that the same
requires no interference as the compensation awarded thereunder are just
and fair compensation .
10. I have given due considerations to the submissions made by the
learned counsel for the appellant/claimant and the learned counsel for the
respondent/State Transport Corporation and also perused the materials
placed on record, including the Original Disability Certificate produced by
the appellant before this Court, which is taken on record and marked as
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C.M.A.No.3692 of 2021
Ex.P.27 and the Medical Bills issued by both MIOT and Ramachandra
Hospitals respectively.
i) Disability :-
11. I find due force in the submissions made by the learned counsel
for the appellant/claimant. It appears that on account of the accident, the
appellant/claimant had sustained the following fracture, as could be seen
from Ex.P.2/Discharge Summary issued by Miot Hospital:-
a) Compound Grade III B fracture right distal humerus, proximal
ulna and promimal radius.
b) Side swipe injury right elbow.
c) Right acromion process fracture.
d) Median and Ulnar nerve palsy
e) Skil avulsion exposing muscle tendon bone
f) And also sustained multiple injuries all over the body as the glass
pieces pierced and sprinkled all over the body.
11.1 Today, the claimant also appeared before this Court and as far
as his physical appearance is concerned, it is an eyesore that his right hand
is totally nonfunctional, as there appears to be a disconnection between
elbow and upper limb, due to which, his right hand is in hanging condition,
an owing to such disability, appellant has to suffer throughout his life and he
cannot carryout his day to day work by his own and for each and everything
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C.M.A.No.3692 of 2021
he has to depend on others, and in particular, his life has become a question
mark and only God alone can pacify him, and he cannot be assuaged by
mere grant of money that he would receive as compensation.
11.2 Therefore, as rightly pointed out by the learned counsel for the
appellant, the disablement sustained by the appellant would amount to
permanent total disablement, as mentioned in Serial No.2 of Schedule I Part
I of Workmen's Compensation Act. Therefore, this Court, by taking into
consideration of the original Disability Certificate issued by Institute of
Rehabilitation Medicine, K.K.Nagar, Chennai – 83, which has also been
verified by the learned counsel for the respondent/State Transport
Corporation, and considering the present plight of the appellant in person, is
inclined to fix disability at 80%.
11.3 As far as future prospects is concerned, the Tribunal has added
only 25%, and as per the ratio laid down by the Honourable Supreme Court,
in Pranay Sethi's (referred to supra)for the age group of 23 years, 40%
has to be added towards Future Prospects. Since the appellant/claimant was
aged 22 years at the time of the accident and was earning a sum of
Rs.6,500/- per month, this Court is inclined to fix monthly income of the
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C.M.A.No.3692 of 2021
injured as it is, i.e. at Rs.6,500/-. So far as multiplier aspect is concerned, as
per the ratio laid down by the Hon'ble Supreme Court in the case of Sarala
Verma Vs. Delhi Transport Corporation, reported in [(2009) 5 LW 561]
, the multiplier applicable herein is '18' and the same is adopted.
11.4 Thus, by fixing the monthly income of the injured at Rs.6,500/-;
adding 40% towards future prospects; applying multiplier of '18' (since the
injured is aged 22 years) and disability at 80%, the total loss of income due
to functional disability of the injured works out to Rs.15,72,480/-, in the
manner as hereunder:-
Rs.6,500/- + 40% (Rs.2,600) x 18 x 12 x 80% = Rs.15,72,480/-
11.5 Consequently, the sum of Rs.4,14,375/- awarded by the
Tribunal under the head 'Functional Disability' is hereby modified and
enhanced to Rs.15,72,480/-
11.6 Since this Court awarded compensation of Rs.15,72,480/-
towards Functional Disability, there is no need to award any compensation
under the separate head, Loss of future Earning Power, as the Loss of
Income due to Functional Disability and Loss of Future Earning Power are
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C.M.A.No.3692 of 2021
intertwined.
ii) Medical Expenses:-
12. It is seen that claimant made a claim of Rs.5,00,000/- towards
medical expenses by marking Exs.P.14 (Series) whereas, the Tribunal has
awarded only a sum of Rs.1,95,333/- by citing the reason that Ex.P.14
(series) are only xerox copies. Today, the learned counsel for the appellant
also produced original medical bills issued by the MIOT Hospital for a value
of Rs.3,92,115/- as well as the original medical bill issued by Ramachandra
Hospital, for a sum of Rs.90,000/- and the same is also verified by the
learned counsel for the respondent/State Transport Corporation. Therefore,
it is clear that due to the fracture and injury sustained by the claimant, he
was admitted in MIOT Hospital, and final bill issued by the MIOT Hospital
would show that a sum of Rs.3,92,115/- was payable by the claimant, out of
which, a sum of Rs.1,05,000/-was reimbursed to the Hospital by way of
medical insurance coverage by the New India Assurance Company, and the
balance sum of Rs.2,87,115/- which was paid by the appellant, has to be
paid as compensation.
12.1 It is further seen that the appellant/injured despite completion of
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C.M.A.No.3692 of 2021
out-patient treatment at MIOT Hospital, since the pain and suffering due to
fracture sustained by him at the right hand still persisted, he undertook
treatment at the hands of various Orthopedic Doctors for a period of one
year apart from taking indigenous medicine and finally, the appellant took
treatment at Ramachandra Hospital, and spent a sum of Rs.90,000/- and the
appellant also produced original medical bill issued by the said Hospital.
Therefore, this Court is of the view that the said amount of Rs.90,000/- has
also to be taken into consideration while awarding compensation towards
medical expenses. Consequently, the sum of Rs.1,95,333/- awarded by the
Tribunal under the head of 'Medical Expenses' is hereby modified and
enhanced to Rs.3,77,115/-(viz., the amount spent by the appellant at MIOT
Hospital at Rs.2,87,115 and the amount spent at Ramachandra Hospital at
Rs.90,000/-)-
12.2 Insofar as the compensation awarded by the Tribunal under
other heads are concerned, viz., i) Pain and Suffering, ii) Extra Nourishment
and iii) Transportation, iv) Damages to Clothes, v) Attender Charges and Loss
of Amenities, the same remains unaltered.
13. Thus, the total compensation payable to the appellant/claimant is
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C.M.A.No.3692 of 2021
as hereunder:-
S.N Head Amount
o granted
1. Loss of income due to Functional Rs.15,72,480/-
Disability
2. Pain and Suffering Rs. 20,000/-
3. Extra Nourishment Rs. 15,000/-
4. Transportation Rs. 15,000/-
5. Damage to clothes Rs. 1,000/-
6 Attender Charges Rs. 17,000/-
7 Medical Expenses Rs.3,77,115/-
8 Loss of Amenities Rs. 10,000/-
Total Rs.20,27,595/-
13.1 Consequently, the total compensation amount of Rs.6,88,000/-
awarded by the Tribunal is hereby modified and enhanced to
.Rs.20,27,595/- which shall carry interest at the rate of 7.5% per annum
from the date of claim petition till the date of deposit.
14. In the result, the Civil Miscellaneous Appeal is partly allowed on
following terms:-
https://www.mhc.tn.gov.in/judis i) The respondent, Tamil Nadu State Transport Corporation Ltd., is
C.M.A.No.3692 of 2021
directed to deposit the entire amount awarded by this Court along with
interest and costs before the Tribunal within a period of eight weeks from
the date of receipt of a copy of this judgment, after deducting the amount
already deposited, if any.
ii) It is made clear that if the respondent/State Transport Corporation
fails to make payment within the stipulated time, they are liable to pay
interest for the delayed payment.
iii) On such deposit being made by the Transport Corporation, the
Tribunal is directed to transfer the award amount to the
appellant's/claimant's bank account directly, by way of RTGS, within a
period of three weeks from the deposit being made or from date of
furnishing the RTGS particulars by the appellant/claimant, whichever is
later. On such deposit, the appellant is permitted to withdraw the entire
award amount along with interest accrued thereon
iv) Though at the time of filing this Appeal, the appellant/claimant is
exempted from payment of Court fee, vide order, dated 20.12.2021, made in
C.M.P.No.20914 of 2021, since this Court has now enhanced the
compensation awarded by the Tribunal, the appellant/claimant is directed to
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C.M.A.No.3692 of 2021
pay the necessary Court fee, thereupon, Registry shall draft the decree.
v) However, there shall be no order as to costs.
14.07.2023
Internet : Yes / No
Index : Yes / No
sd
On the side of Appellants :
Ex: A.1. Disability Certificate issued by
Institute of Rehabilitation Medicine,
K.K.Nagar, Chennai – 83
To
IV Jude of Small Causes Court,
The Motor Accident Claims Tribunal, Chennai.
Krishnan Ramasamy, J.,
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C.M.A.No.3692 of 2021
sd
C.M.A.No.3692 of 2021
14.07.2023
C.M.P.No.21863 of 2022
in
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C.M.A.No.3692 of 2021
C.M.A.No.3692 of 2021
Krishnan Ramasamy,J.,
Allowed.
14.07.2023
sd
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