M. Bakthavatsalam v. The Commissioner, Corporation of Chennai, Chennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30.9.2008CORAM:- The Hon'ble Mr. Justice R. SUDHAKARC.M.A.No.2237 of 2004............M. Bakthavatsalam .. Appellant/ PetitionerVs.1. The Commissioner, Corporation of Chennai, Chennai.3. 2. The United India Insurance Co. Ltd., rep. by its Divisional Manager, Third Party Claims Cell, 3rd floor, south India Co-operative Building, No.38 Anna Salai, Chennai.2. .. Respondent/Respondents Appeal filed under Section 173 of M.V. Act against theaward and decree dated 9.9.2002 in MCOP No.222 of 1998 on thefile of the Motor Accidents Claims Tribunal (II Judge, Court ofSmall Causes), Chennai.For Appellant : Mr. PL. NarayananFor Respondent : Mr. V. Bharathidasan – R1 No Appearance - R2 --------JUDGMENTThe claimant has filed this appeal seeking enhancementof compensation. 2. It is a case of injury. The first respondent isthe owner of the offending vehicle and the second respondent isthe insurer of the offending vehicle. Both the respondents have https://hcservices.ecourts.gov.in/hcservices/ been served and appear through counsel. On 29.9.2008, when thematter was listed, there was no representation on behalf of therespondents. Today i.e. On 30.9.2008, when the matter is listed,the learned counsel for the first respondent is present. There isno representation for the second respondent.3. The accident in this case happened on 9.2.1997 at12.00 noon. The injured claimant Bakthavatsalam, aged 34 years,working as a lorry driver in the first respondent corporation,was moving on his by-cycle inside the corporation lorry shed whenhe was hit by a lorry belong to the first respondent corporationdriven by its driver in a rash and negligent manner. In thataccident, the said Bakthavatsalam suffered the followinginjuries. (i) Fracture of left acetabulam with central dislocation of left hip.(ii) fracture of 7,8 and 9th left side ribs.(iii) fracture of right side tibia.4. He was admitted in the Government General Hospitalon 9.2.1997 and treated till 17.3.1997. On 9.2.1997, laprotomyprocedure was done Then on 6.3.1997 orthotomy was done. Bloodtransfusion was also done. At the time of discharge, there wassevere fluid discharge with blood mixed. He was also treated atR.S.R.S. Trinity Acute Care Hospital from 17.3.1997 to 19.3.1997.On the next occasion, he was treated at Ramachandra Hospital from15.4.1997 to 19.4.1997. The diagnosis of Ramachandra Hospitalreads as follows:-" Sciatic left side – inpingement of the leftsciatic nerve due to fracture left acetabulam."Thereafter, he was once again admitted on 28.6.1997 anddischarged on 15.7.1997 and the nature of treatment given and theadvice on discharge reads as follows:-" Treatment Given:-A cemented total hip replacement with a reinforcement ringon the acetabular cup done on 29.6.97. Suture removal done on 10POD.Advice on discharge:-* Arm chair life.* To use western commode only.* To avoid lying right lateral, squatting, sitting crosslegged.* To continue walking with the help of walker.* Tab. Ponstan SOS.* Tab. Vitamic C1 bd.* Review with Prof. S.S.K. Marthandam after 1 month." https://hcservices.ecourts.gov.in/hcservices/ Thereafter, in the month of August, the claimant went to the samehospital for medical management. Again, he was admitted on22.11.1997 for left knee pain and discharged on 23.11.1997. Fromthe various medical records which were marked as Exs.A1 to A9,the nature of complaint of the injured claimant is as follows:-DIAGNOSIS:-Chronic Arthritis of left hip secondary centraldislocation of left hip.This 32 year old male has come with c/o of painleft hip for the past three months. Pain increasing onwalking and movements of the left hip radiating uptothe left knee. No other significant medical history.Patient was previously involved in an RTA on 9.2.97 inwhich he had sustained a fracture of the acetabulamwith central dislocation of the left hip and septicarthritis of the left knee with fracture right tibia.ON EXAMINATION:Both Asis at the same level. Left hip in neutralposition. Knee in extension. Ankle in plantarposition. Multiple Abrasions seen all over the leftlower limb. Left side greater trochanter elevated.Bitrochanteric distance from the cubic symphysis isreduced on the left side. All movements of the lefthip painfully restricted.X-ray left hip shows healed fracture."5. From the documents filed as Ex.A6, it is apparentthat he was admitted and discharged in the years 1998, 1999 and2000. Ex.P10 shows that the medical management done by way ofhip replacement failed and the injured claimant suffered furtherinjuries when he fell down. Subsequently also, he was treated inthe hospital. All these records have been filed as documentsExs.A10 and A11. The injured claimant, as stated earlier, hassuffered serious disability. The disability has been assessedat 75% by the Doctor, who was examined as P.W.2. On behalf ofthe respondents, no oral and documentary evidence was let in. Asagainst the claim of Rs.6,50,000/-, the Tribunal granted thefollowing amount as compensation with interest at the rate of 9%p.a. Sl.No.HeadAmount grantedby the Tribunal1Loss of income during the period oftreatmentRs. 1,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmount grantedby the Tribunal2Future loss of incomeRs. 10,000/-3Extra nourishmentRs. 1,000/-4Medical expensesRs.1,32,000/-5Pain and sufferingRs. 10,000/-6Permanent disability at 75%Rs. 30,000/-TotalRs.1,84,000/- 6. The claimant seeks enhancement of compensation statingthat the nature of injury suffered is grievous in nature. He wasadmitted in the hospital more than 10 times and several surgicalprocedures have been done. Hip replacement done to him failed.He has suffered severe pain and suffering throughout the periodof treatment. It is also stated that the pain and sufferingcontinues even today. He has spent huge amount for travellingto the hospital for the purpose of treatment. It is not indispute that the injured claimant was in hospital for 123 days onvarious occasions and thereafter, he was medically managed for afurther period of 100 days as out patient. Further, it isfairly submitted by the learned counsel for the appellant thathe has been given desk job by the Corporation, since his abilityto work as before has been severely affected.7. The learned counsel for the appellant contended that forthe permanent disability at 75%, a meager sum of Rs.30,000/- hasbeen granted. For the pain and suffering undergone, the meagersum of Rs.10,000/- granted by the Tribunal is a pittance. Noamount has been granted for attender charges as he needs to besupported by another person through out the treatment period.The counsel stated that the amount granted for extra nourishmentis also paltry. The claimant has suffered fracture of the hipjoint and the multiple injuries are causing great discomfort inhis day to day life. He is not able to sit or stand as beforeand therefore, there is a loss of amenities which has to becompensated.8. The learned counsel for the first respondent –corporation stated that they have no say insofar as the quantumis concerned as the award is against the second respondentinsurance company. 9. The nature of injuries and the prolonged period oftreatment which has already been extracted above, certainlyrequires just compensation. But the Tribunal has granted apaltry sum on various heads except medical expenses. Insofar as https://hcservices.ecourts.gov.in/hcservices/ the enhancement of compensation is concerned, since thedisability has been assessed at 75%, which has not been disputed,in view of the Division Bench decision of the Madurai Bench ofthis Court in Bhagavathy.M. - vs. - Thiruvalluvar TransportCorporation Limited reported in 2005(5) C.T.C. 745 for thedisability assessed at 75%, the claimant is entitled toRs.75,000/-. The Supreme Court in the decision reported in R.D.Hattangadi – Vs. - Pest Control India Pvt. Ltd., (1995 (1) SCC551) held as follows:-" Broadly speaking while fixing an amount ofcompensation payable to a victim of an accident, thedamages have to be assessed separately as pecuniarydamages and special damages. Pecuniary damages arethose which the victim has actually incurred and whichare capable of being calculated in terms of money;whereas non-pecuniary damages are those which areincapable of being assessed by arithmeticalcalculations. In order to appreciate two conceptspecuniary damages may include expenses incurred by theclaimant: (i) medical attendance; (ii) loss of earningof profit up to the date of trial; (iii) other materialloss. So far non-pecuniary damages are concerned, theymay include (i) damages for mental and physical shock,pain and suffering, already suffered or likely to besuffered in future; (ii) damages to compensate for theloss of amenities of life which may include a varietyof matters i.e. On account of injury the claimant maynot be able to walk, run or sit; (iii) damages for theloss of expectation of life, i.e., on account of injurythe normal longevity of the person concerned isshortened; (iv) inconvenience, hardship, discomfort,disappointment, frustration and mental stress in life." 10. Considering the long period of treatment, continuesmedical management taken by the injured claimant, the pain andsuffering undergone during the period of treatment i.e. 4 monthsas inpatient, and further period of treatment for three monthsas out patient, the claimant is entitled to Rs.75,000/- towardspain and suffering. The number of episodes of travel to hospitalfor taking treatment, the claimant would have spent huge amounttowards transport expenses. Therefore, he is entitled to a sumof Rs.40,000/- towards transport expenses. In view of seriousnature of injuries, the claimant requires sufficient amount forextra nourishment to recover. Therefore, as against Rs.1,000/-granted by the Tribunal, the claimant is entitled to Rs.20,000/-towards extra nourishment. The claimant has suffered hip injuryand the replacement of hip has failed. His movement was restrictand the same is supported by the evidence of the Doctor.Therefore, for loss amenities, the claimant will be entitled to a https://hcservices.ecourts.gov.in/hcservices/ sum of Rs.50,000/- as this will continue till the end of hislife. The injured claimant would need the support of anattender during the period treatment and medical management andthat has to be suitably compensated. Therefore, a sum ofRs.20,000/- is granted towards attender charges. The sum ofRs.1,32,000/- granted for medical expenses on the basis of thedocuments and a sum of Rs.11,000/- grated for loss of income areconfirmed. In view of the various documents filed showing thetreatment as inpatient and out patient, the claimant will beentitled to a sum of Rs.30,000/- for future medical expenses ashe will have to take physiotherapy to maintain mobility. The saidsum of Rs.30,000/- will bear no interest. Accordingly, theaward of the Tribunal stands enhanced as follows:-Sl.No.HeadAmountgranted bythe TribunalAmountgranted bythis Court 1Loss of income during theperiod of treatmentRs. 1,000/-Rs. 10,000/-2Future loss of incomeRs. 10,000/- ---3Extra nourishmentRs. 1,000/-Rs. 20,000/-4Medical expensesRs.1,32,000/-Rs.1,32,000/-5Pain and sufferingRs. 10,000/-Rs. 75,000/-6Permanent disability at 75%Rs. 30,000/-Rs. 75,000/-7Transport charges ---Rs. 40,000/-8Attender charges ---Rs. 20,000/-9Loss of amenities ---Rs. 30,000/-10Future medical expenses ---Rs. 30,000/-TotalRs.1,84,000/-Rs.4,32,000/-Since the accident happened in the year 1997 and the awardwas passed in the year 2002, the interest granted by the Tribunalat 9% stands confirmed.11. In the result, the civil miscellaneous appeal ispartly allowed as follows:-(i) The award of the Tribunal is enhanced to Rs.4,32,000/-from Rs.1,84,000/-.(ii) The enhanced award amount of Rs. 2,48,000/- will bearinterest as follows:- Rs.2,18,000/- will carry interest at therate of 7.5% p.a. from the date of filing of the petition to tillthe date of deposit. Rs.30,000/- for future medical expenses willbear no interest. https://hcservices.ecourts.gov.in/hcservices/ (iii) The second respondent is permitted to deposit theaward amount with interest within a period of eight weeks fromthe date of receipt of this order.(iv) On such deposit, the claimant is entitled to withdrawthe same as per the order of this Court.(v) There shall be no order as to costs.(vi) Consequently, M.P.No. 1 of 2008 is closed.RaSd/Deputy Registrar/true copy/Sub Asst.RegistrarTo1. The Motor Accidents Claims Tribunal, (II Judge, Court of Small Causes), Chennai2.The Record Keeper, , VR Section, High Court, Madras.+ 1 cc to Mr. V. Bharathidasan, Advocate, SR No.56647+ 1 cc to Mr. P. L. Narayanan, Advocate, SR No.56487CMA No. 2237 of 2004NTK(CO)SR/9.1.2009