S. Kamalakannan v. M. Mani

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12.08.2010CORAMTHE HON'BLE MRS. JUSTICE R.BANUMATHIandTHE HON'BLE MR. JUSTICE G.M.AKBAR ALIC.M.A.No.1303 of 2007S.Kamalakannan..Appellant/PetitionerVs.1.M.Mani2.The New India Assurance Co.Ltd., Motor Third Party Cell, No.46, Moore Street, Chennai – 1...Respondents/RespondentsAppeal against the judgment and decree dated 05.02.2007 madein M.A.C.T.O.P.No.1437 of 2002 on the file of the Motor AccidentsClaims Tribunal (II Court of Small Causes), Chennai.For appellant.. Mr.N.M.MuthurajanFor respondents.. Mr.N.Vijayaraghavan for R2 R1 – No appearance (exparte) JUDGMENT(Judgment of the Court was delivered by R.BANUMATHI, J.)Being dissatisfied with the quantum of compensation ofRs.10,11,470/- awarded in M.A.C.T.O.P.No.1437 of 2002 for theinjuries sustained by the claimant, the claimant has come forwardwith this appeal seeking for enhancement.2.The brief facts are that on 12.01.2002 at about 21.30 hours,when the claimant was travelling as a pillion rider in themotorcycle bearing Registration No.TN 21 D 3043 from Kancheepuram to https://hcservices.ecourts.gov.in/hcservices/ Sunkuvarchatram along Grand West Trunk Road (NH4), near the junctionof Keranallur Village Road, the lorry bearing Registration No.MDG3381 driven by its driver in a rash and negligent manner came fromthe opposite direction and dashed against the motorcycle in whichthe claimant was travelling and then against another car. In theaccident, the claimant sustained grievous injuries. The claimant wasimmediately taken to Government Hospital, Sriperumpudur and givenfirst aid. Thereafter, he has taken treatment in Sri RamachandraMedical College Hospital as inpatient. A criminal case wasregistered in Crime No.17 of 2002 on the file of SunkuvarchatramPolice Station. The claimant was aged 30 years at the time ofaccident. The claimant has been doing Photo framing and Book bindingwork. Alleging that the accident was due to the rash and negligentdriving of the lorry driver, the claimant had filed claim petition,claiming compensation of Rs.34 lakhs.3.In the Tribunal, the claimant examined himself as P.W.1.Mother of the claimant-Meenakshi was examined as P.W.2.Dr.N.Saichandran was examined as P.W.3. Exs.P1 to P16 were marked onthe side of the claimant. No oral or documentary evidence wasadduced on the side of the respondents.4.Upon consideration of the oral and documentary evidence, theTribunal held that the accident was due to the rash and negligentdriving of the lorry driver and the respondents are jointly andseverally liable to pay compensation. Based upon the evidence ofP.W.3 Dr.N.Saichandran and Ex.P12-disability certificate, theTribunal has fixed the permanent disability at 70%. The Tribunal hasawarded compensation of Rs.10,11,470/- as under: https://hcservices.ecourts.gov.in/hcservices/ Continuing permanent disability..Rs. 70,000.00Pain and suffering..Rs. 50,000.00Extranourishment..Rs. 5,000.00Medical expenses..Rs. 5,09,025.00Medical expenses forthe period from 22.05.2002to 31.05.2002..Rs. 8,860.00Expenses for purchase of medicines..Rs. 3,520.00Rs. 20,765.00Expenses for X ray andother tests..Rs. 9,300.00Future medical expenses..Rs. 50,000.00Attendant charges..Rs. 50,000.00Transport expenses..Rs. 10,000.00Loss of income duringthe period oftreatment..Rs. 25,000.00Loss of earning powerand mental agony etc.,..Rs. 2,00,000.00= = = = = = = =TotalRs.10,11,470.00= = = = = = = =5.Challenging the quantum of compensation, learned counsel forthe appellant submitted that even after treatment, the right knee ofthe claimant is totally stiffened and that he cannot bend his kneeand right leg is shortened by 8 c.m. and while so, the Tribunalerred in awarding only Rs.70,000/- for continuing permanentdisability and Rs.2,00,000/- as compensation for the loss of earningpower. It was further submitted that from the photo framing and bookbinding work, the claimant was earning Rs.6,000/- per month and thecompensation of Rs.2 lakhs awarded for loss of earning power andRs.70,000/- for permanent disability is very much less. It wasfurther submitted that the claimant has to take future medicaltreatment and while so, the Tribunal has awarded very less amount of https://hcservices.ecourts.gov.in/hcservices/ Rs.50,000/-. Learned counsel has also submitted that the Tribunalhas not awarded any compensation for future transport expenses,mental agony due to the mal-functioning of the right leg andexpenses for the attendants in future. 6.We have also heard Mr.N.Vijayaraghavan, learned counsel forthe second respondent-insurance company. Learned counsel hassubmitted that the quantum of compensation awarded by the Tribunalis fair and reasonable and the same has to be maintained. Insofar asthe future medical expenses, learned counsel for the secondrespondent submitted that there is no evidence forthcoming that theclaimant has to incur expenses to the tune of Rs.2 lakhs for futuremedical expenses.7.In the accident, the claimant suffered closed communitedsupracondylar fracture. After the accident, the claimant wasadmitted as inpatient in Sri Ramachandra Medical College Hospitalwhere he has taken treatment from 13.01.2002 to 09.03.2002. Theclaimant had incurred total medical expenses of Rs.5,09,025/- andother medical expenses of Rs.8,860/-, Rs.3,520/-, Rs.20,765/- andRs.9,300/- totalling to Rs.5,51,470/-, which the Tribunal hasawarded and the same is maintained.8.Insofar as future medical expenses, the Tribunal has awardedRs.50,000/- as against the claim of Rs.2 lakhs. In his evidence,P.W.1 has stated that after his treatment in Adithya Hospital, hewas advised that he has to undergo another operation, for which, hemight have to spend about Rs.2 lakhs. In Ex.P6-estimate, the doctorhas opined that the claimant has to undergo surgery for therectification of deformity and the claimant has to undergo totalreplacement and the procedure might cost more than Rs.2 lakhs. Asagainst the future medical expenses, the Tribunal has awarded onlyRs.50,000/-. Having regard to the evidence of P.W.1 and the natureof disability and Ex.P6 estimation of medical expenses, the futuremedical expenses awarded by the Tribunal at Rs.50,000/- is enhancedto Rs.1,00,000/-. 9.In his evidence, P.W.1/claimant has stated that even aftertreatment, he is not in a position to fold his right leg and that heis unable to carry on his normal avocation of Photo framing and Bookbinding. The claimant has also stated that he is also not able tosit cross-legged and he is unable to walk. The claimant has statedthat he can walk only with the support of stick and with the help ofothers. The claimant has also stated that his wife is dumb andbecause of the disability, he is not in a position to effectivelyshare the responsibilities of his wife in taking care of thefamily.10.In his evidence, P.W.3-Dr.Saichandran had stated that he has https://hcservices.ecourts.gov.in/hcservices/ examined the claimant and also the medical records. In his evidence,P.W.3 has stated that the right femur bone is malunited in a bentposition and right patella has been removed. P.W.3 has stated thatthe claimant could walk only with the support of others. P.W.3 hasalso deposed that the right leg of the claimant is shortened by 3c.m. and the right knee is totally stiffened. Upon examination ofthe claimant and the medical records, P.W.3 has assessed thepermanent disability at 75% and the Tribunal has taken the permanentdisability at 70% and we confirm the same.11.As we pointed out earlier, the claimant has been doing photoframing and book binding work. In his evidence, P.W.1 has statedthat he has been earning Rs.6,000/- per month. We do not find anydocumentary evidence to support that the claimant was earningRs.6,000/- per month. Having regard to the avocation of theclaimant, the income is taken at Rs.3,000/- per month. As held bythe Division Bench in United India Insurance Company Limited,Thiruchengode Vs. Veluchamy and another (2005 (1) CTC 38), even inpersonal injury cases, in appropriate cases, the Court can adoptmultiplier method. The claimant has sustained 70% disability due tocommunited supracondylar fracture right femur with inter condylarextension and closed communited fracture right patella. Havingregard to the nature of injuries, in our considered view, this is anappropriate case where we could adopt multiplier method. 12.Based upon the evidence of P.W.3, the Tribunal has fixed thepermanent disability at 70% and we also adopt the same. The claimantwas aged 30 years at the time of accident. As per the SecondSchedule, it would be appropriate to adopt multiplier 17. Thecompensation for continuing permanent disability and loss of earningpower is calculated at Rs.4,28,400/- (Rs.3,000/- x 12 x 17 x 70/100= Rs.4,28,400/-). The Tribunal has awarded Rs.70,000/- ascompensation for permanent disability and Rs.2 lakhs for loss ofearning power, put together Rs.2,70,000/-. Compensation for loss ofearning power and continuing permanent disability is enhanced fromRs.2,70,000/- to Rs.4,28,400/-.13.Insofar as the loss of earning, as pointed out earlier, theclaimant had taken treatment as inpatient in Sri Ramachandra MedicalCollege Hospital from 13.01.2002 to 09.03.2002 and thereafter asinpatient in Adithya Hospital, Kilpauk, Chennai from 22.05.2002 to31.05.2002. The period of treatment as inpatient is about 2-3months. The Tribunal has awarded Rs.25,000/- for actual loss ofearning during the period of treatment, taking the monthly income ofRs.6,000/-. In our considered view, the amount of Rs.25,000/-awarded for loss of earning is quite reasonable and the same ismaintained.14.The Tribunal has awarded Rs.50,000/- towards compensation https://hcservices.ecourts.gov.in/hcservices/ for pain and suffering and the same is maintained. Insofar as thetransport to hospital and extranourishment, the Tribunal has awardedRs.10,000/- and Rs.5,000/- respectively and we find no ground forenhancement.15.The compensation amount awarded to the claimant inM.A.C.T.O.P.No.1437 of 2002 is enhanced to Rs.12,19,870/-. Theenhanced compensation amount of Rs.2,08,400/- is payable withinterest at the rate of 7.5% per annum from the date of petitiontill the date of deposit. It was stated before us that the secondrespondent-insurance company has already deposited entirecompensation amount of Rs.10,11,470/- and the claimant had alsowithdrawn the compensation amount along with accrued interest. Thesecond respondent-insurance company is directed to deposit theenhanced compensation of Rs.2,08,400/- with interest at 7.5% perannum within a period of eight weeks from the date of receipt of acopy of this judgment. On such deposit, the claimant is permitted towithdraw the same. 16.In the result, the Civil Miscellaneous Appeal is partlyallowed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarmmiTo1.The II Court of Small Causes (Motor Accidents Claims Tribunal), Chennai. 2.The Section Officer, V.R.Section, High Court, Madras.+1cc to Mr.N.Vijayaraghavan, Advocate Sr 59250+2ccs to Mr.N.M.Muthurajan, Advocate Sr 59274KJI(CO)km/4.10.C.M.A.No.1303 of 2007