Sukumar James v. Minor Hakeem Sheriff & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 07-11-2008CORAMTHE HONOURABLE MR.JUSTICE S. PALANIVELUC.M.A.(N.P.D.) Nos.834 and 1031 of 2001C.M.A.(NPD)No.834 of 2001Sukumar James ... Appellant/Petitionervs.1. Minor Hakeem Sheriff [rep. by mother T.K. Fathima]2. The Oriental Insurance Company, Ranipettai.3. Tamilnadu State Transport Corporation Vellore Division, Vellore. ... Respondents/RespondentsC.M.A.(NPD)No.1031 of 20011. Tamilnadu State Transport Corporation (Villupuram Division II) Ltd., rep. By its Managing Director Vellore. ... Appellant/3rd Respondentcause title accepted as per orderdated 25.7.01 in CMP.11261/01 vs.1. Sukumar James 2. Minor Hakeem Sheriff ... Respondent/Petitioner [rep. By mother T.K. Fathima]3. The Oriental Insurance Company, Ranipettai. ... Respondents/Respondents 1 & 2 Civil Miscellaneous Appeals are filed under Section 173 of MotorVehicles Act, 1988, against the Judgment dated 10.8.2000 made in MCOPNo.296 of 1992 on the file of the Subordinate Judge, Motor AccidentClaims Tribunal, Ranipet. For appellant in C.M.A.(NPD) No.834 of 2001 and for 1st Respondent in C.M.A.(NPD) No.1031 of 2001 : Mr. S. Udhayakumar https://hcservices.ecourts.gov.in/hcservices/ For 3rd Respondent in C.M.A.(NPD) No.834 of 2001 and for Appellant in C.M.A.(NPD) No.1031 of 2001 : Mr. A.Babu For R1 in C.M.A.No.(NPD)834/01 and for R2 in C.M.A.No.1031/01: Mr.J.ChandranCOMMON JUDGMENTOn 05.05.1989 at about 9.50 a.m. while the claimant wastravelling in Pattukottai Azhagiri Transport Corporation Bus bearingRegistration No.TML 2914 along Vellore to Chennai Highways, near ArcotNenthiyalam Village, a private bus belonging to first respondent insuredwith second respondent came in a rash manner from opposite side dashedagainst it, resulting in head on collision, in which both the busdrivers died. Many of the passengers in both the buses sustainedinjuries among whom the claimant was also one. He was removed to C.M.C.Hospital, Vellore and was treated. He was earning Rs.3,000/- p.m. byworking as mechanic in Crane Manufacturing Company Private Limitedsituated at Kolar, Karnataka State. He was aged about 36 years.Respondents are responsible for the accident and hence he claimedRs.6,00,000/- as compensation. 2. In the counter filed by the first respondent it is stated thatthe first respondent is a minor and hence all the averments mentioned inthe petition have to be proved by the claimant himself. 3. In the counter filed by the second respondent it is statedthat the accident occurred due to the rash and negligent driving of theTransport Corporation Bus Driver and hence the liability has to befastened on the third respondent. The amount claimed is excessive andhence the petition has to be dismissed. 4. The third respondent in his counter has alleged that while theCorporation bus was proceeding near Nanthiyalam village, a lorry camefrom opposite direction and a private bus was overtaking the said lorryand on seeing it the driver of the Corporation Bus drove it slowly,however, the private bus has overtaken the lorry and dashed against theTransport Corporation bus. The accident took place only due to thenegligence and rashness on the part of the first respondent driver. Theamount claimed is excessive. Hence the petition has to be dismissed. 5. Considering the evidence available on record, the Tribunal hascome to the conclusion that both the drivers were at fault at the timeof accident. The theory of res ipsa loquitur applies to the veryhappening of the accident eventually depicting that both the driverswere responsible for the accident since it was a head on collision. Ifboth the drivers or any one of them were cautious enough, the gruesomeaccident could have been avoided. In this regard, the observation https://hcservices.ecourts.gov.in/hcservices/ recorded by the Tribunal is confirmed.6. As far as the quantum of compensation is concerned both theappellants are aggrieved. The claimant would contend that having losthis left leg below knee after amputation and suffered grievous injuriesincluding numerous fractures in his body, the award amount ofRs.1,60,000/- is very meagre.7. P.W.2 Doctor, who has issued Wound Certificate to the claimantwould say that the claimant suffered fractures in both the femurs, leftpelvic bone, and also in the right calvicle bone. It is his furtherevidence that in left ankle too, a fracture was found. In the hospital,surgeries were conducted to unite the fractures by fixing rods andscrews. They also examined the blood flow by doppler process and foundthat below the left knee the major blood vessels lost the functions andthere was no blood supply below knee, which compelled them to amputatebelow knee.8. On 27.5.1989 further treatment was given. On 15.6.1989 theyconducted skin grafting on the right ankle. On 19.10.1989, plate andscrews fitted in right leg were removed, so also rod fixed on the leftfemur. On 5.12.1989 so also on 01.06.1993 two surgeries were undertakento fix the rods and remove the rods on the pelvis area on the left femurrespectively. Again rod was fixed in left femur on 1.11.2004 sinceanother fracture occurred there. It is in his evidence that still pusis oozing from the femur bones resulting his inability to walk. Thedoctor says that the right ankle is fused and artificial leg is to befixed for left leg and the possibility for walking is only 30%. Thedoctor has assessed permanent disability at 80%.9. The medical evidence is sufficient to show that thesufferings experienced by the claimant do have grave repercussion to hisavocation. P.W.1. The claimant deposes that even though he has spentRs.1,24,000/- he produced medical bills only for Rs.98,804/-. As perhis evidence he was working as Mechanic in Crane Manufacturing CompanyPrivate Limited, Kolar and was earning Rs.3,000/- per month. He furthersays that he took contract from various sugar mills at Bangalore andthereby he was earning Rs.5,000/- to Rs.6,000/- p.m. and that he couldnot undertake any avocation after the accident. He states that if hecontinuous to pursue those avocations he would have been earningRs.9,000/- to 10,000/- p.m.10. The Tribunal awarded a sum of Rs.20,000/- towards pain andsufferings; Rs.80,000/- for permanent disability and Rs.60,000/- formedical expenses. In view of this Court the quantum of compensationfixed as above is very low. 11. Learned counsel for the claimant would garner support fromthe Division Bench decision of this Court reported in 1999 ACJ 366[M.Jaganathan vs. Pallavan Transport Corporation Ltd.] where the https://hcservices.ecourts.gov.in/hcservices/ identical facts are available. In that case the claimant aged about 45years, was amputated left leg above knee and was drawing a sum ofRs.1,400/- p.m. as technician in the Railways. The Tribunal has awardedRs.6,00,000/-, Division Bench modified it to Rs.4,50,000/-. Pertinent itis to state that Honourable Supreme Court has confirmed the above saiddecision of this High Court, by the Judgment reported in 2001 ACJ 5[Pallavan Transport Corporation Ltd., vs. M. Jagannathan]. The Lordshipsare of the view that the High Court has considered various items of theclaim giving reasons.12. In 2001 ACJ 488 [K. Shankar vs. Pallavan TransportCorporation Ltd.,] a single Judge of this Court while dealing withamputation of right leg of a claimant against the award of Rs.1,47,000/-by the Tribunal, enhanced in appeal to Rs.4,50,000/-. In 2007(1) TN MAC499 [The Managing Director, Metropolitan Transport Corporation Ltd.,(Chennai Division-I), Chennai vs. Manikandan] this Court afterconsidering various decisions on the subject, awarded a sum ofRs.4,73,442/- to a victim of Motor Vehicles Accident, who sufferedfractures in vertebra (spinal cord) and other injuries. 13. A Division Bench of the Karnataka High Court in a decision in2003 ACJ 332 [Bhaskar Rao and others vs. Arunkumar] while dealing withthe case of amputation of left leg above knee of a person, aged about 28years, Sales Officer in a Private firm, drawing Rs.4,500/- per monthhaving permanent disability to the tune of 75%, awarded Rs.6,00,000/-against the award of Rs.8,50,000/- by the Tribunal. In 2003 ACJ 1444[New India Assurance Co. Ltd., vs. K. Kartheeswaran and another] aDivision Bench of this Court in a case of amputation of right leg aboveknee has awarded Rs.13,90,000/- as compensation. In 2003 ACJ 1822[Prahlad Rai v. Pradeep Kumar and others] the High Court of Rajasthan atJodhpur awarded Rs.5,00,000/- to the claimant, who suffered amputationof left leg above knee, aged about 25 years having permanent disablementof 70%. 14. It can be observed that the disabilities and the result ofthe other injuries has definitely disabled the claimant from pursuinghis avocation as before. Hence, in this case it is more appropriate toadopt multiplier method. 15.Considering the evidence on record, this Court is of theconsidered opinion that for the purpose of granting compensation hismonthly income could be fixed at Rs.2,750/-. As such, the annual lossof income is Rs.33,000/-. The Division Bench of this Court as decidedin 2007 (2) TNMAC 399, Oriental Insurance Company, Puducherry Vs.K.Balasubramanian & Others, that in the case of injury resulting thetotal permanent disability, the question of deducting one third amountfrom the income of the injured will not arise. In this case also, it ispatent that the claimant has been disabled to a larger extent inengaging himself any kind of avocation on account of amputation of leg.Applying the principle as laid down in the said decision, there is no https://hcservices.ecourts.gov.in/hcservices/ need to deduct one third in non-fatal cases since he is sufferingpermanent disability to the extent of 80%. Hence compensation awardableunder the head Permanent Disability and loss of earning power isRs.2,64,000/-. For Pain and Sufferings Rs.50,000/- could be awarded.He has lost his left leg, resultantly he has to loose enjoyments andamenities in his life. So it is appropriate to award a sum ofRs.50,000/- towards loss of amenities. For Medical Expenses theTribunal has allowed Rs.60,000/- which can be added to the compensation.Rs.10,000/- each for Extra Nourishment and Transport Expenses may beallowed. Rs.10,000/- may be considered and granted to him for theexpenses incurred for paying to the persons who attended him during thetreatment period. In all, the claimant is entitled for Rs.4,54,000/- ascompensation. 16. Learned counsel for Transport Corporation would submit thatgrant of rate of interest at 12% is not proper on the part of theTribunal, for which learned counsel for the claimant resisted vehementlyarming with a Division Bench decision of this Court reported in 2007 (1)332 (DB) [National Insurance Company Ltd., Neyveli vs. William JenifarAjitha and others] in which learned Judges have confirmed the grant ofinterest at the rate of 12% for the award of compensation towards anaccident which took place in the year 1994. The accident in the presentcase took place in the year 1989. Hence there is no wrong on the partof the Tribunal in having awarded interest at the rate of 12%. In fine, C.M.A.No.834 of 2001 is allowed in part enhancingcompensation to Rs.4,54,000/- and the second and third respondents haveto pay to the tune of 50% each along with interest at the rate of 7.5%for the enhanced compensation within eight weeks from the date of thisorder, before the Tribunal. C.M.A.No.1031 of 2001 is dismissed. In bothappeals no order as to costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ggs / ssmToThe Subordinate Judge, Motor Accident Claims Tribunal,Ranipet. 2.The Section Officer, V.R.Section, High Court, Madras.+ 1 CC to Mr.S.Vijaya Kumar,Advocate,SR.NO.62751C.M.A.(NPD)No.834 of 2001KA(CO)and 1031 of 2001EM/4.2.09