National Insurance Company Limited 89, Pulla Avenue, Shenoy Nagar Chennai-30 v. R. Sivakumar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.04.2009CORAM: THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVANANDTHE HONOURABLE MR.JUSTICE T.S.SIVAGNANAMC.M.A.NO.3854 of 2004& 534 of 2005 National Insurance Company Limited89, Pulla Avenue, Shenoy NagarChennai-30. ... Appellant in both C.M.As.-Vs.-1. R.Sivakumar2. P.L.Narasimhan... Respondents in CMA No.3854/041. R.Kamalakannan2.B.L.Narasimhan... Respondents in CMA No.534/05Prayer:- Civil Miscellaneous Appeals against the judgment and decreedated 30.4.2004 passed in M.C.O.P.No.584/2001 & 276/2001 on the fileof the Motor Accidents Claims Tribunal, Fast Track Court No.IV,Madras.For Appellant : Mr. N. VijayaraghavanFor Respondents : Mr. M.Swamikkannu for R.1J U D G M E N T(Judgment of the Court was delivered by Prabha Sridevan, J)The Tribunal awarded a sum of Rs.18 lakhs for fracture of Tibia(CMA No.3854 of 2004) and Rs.3,40,000/- for fracture of the left toe(CMA No.534 of 2005) respectively. According to the appellantInsurance Company, the awards are unreasonable and excessive.C.M.A.No.3854 of 20042. When the claimant was going as a pillion-rider on the motor-cycle driven by his brother, an auto-rickshaw dashed against him andhe sustained injuries. He made a claim of Rs.46 lakhs ascompensation against the owner of the insurer of the Auto-rickshaw. https://hcservices.ecourts.gov.in/hcservices/ The Tribunal awarded, as stated earlier, Rs.18 lakhs as compensation.3. The learned counsel for the appellant submitted that thedecision of this Court in 2005(3) TLNJ (Civil) 580 (M.S.LUTHUFULLAHAND ANOTHER v. S.BALU) would squarely apply to this case, where theDivision Bench set aside the award of Rs.9,19,000 for a fracturedclavicle disapproving the approach. The Division Bench observed thatthis kind of approach is not a juridical approach and it can only bedeprecated. 4. In the present case, the injured was a third year B.E. CivilEngineering Student. The Tribunal observed that a Civil Engineer willeasily receive a salary of Rs.10,000/- per month in any ordinaryPrivate Company or in the Government and because of the accident, theclaimant was working as a Clerk in the lathe work shop of his sisterand therefore fixed the loss of earning capacity at 50% and adoptingthe multiplier of 18, the loss of earning capacity was quantified atRs.11 lakhs. The Tribunal also awarded a sum of Rs.50,000/- towardspain and suffering, Rs.30,000/- for transportation, Rs.20,000/- forextra nourishment and Rs.1 lakh for loss of income for familymembers, additional transportation and medical expenses. 5. P.W.4 - Dr.R. Thiagarajan in his evidence has stated thatthere is malunion in the fractured tibia and therefore there may berestriction in his bending and straightening the leg and certifiedthe disability at 60%. The claimant was an inpatient from 7.10.2000to 16.10.2000 (i.e.) ten days and he has also undergone surgery.Ex.P.9 is the evidence for the medical expenses and on the basis ofthis, a sum of Rs.1 lakh was awarded. In addition to this, theTribunal decided to award Rs.3 lakhs for incapacity of the claimantto reach a good position in society and according to the Tribunal,the injured had spent one year continuously in treatment for whichthe Tribunal decided to award Rs.1 lakh. In all, a totalcompensation of Rs.18 lakhs was awarded.6. We are astonished by the award. The Law relating to accidentclaims requires the court to award compensation which is just andreasonable and it is better for the Claims Tribunal to bear this inmind. They should neither be niggardly while awarding compensationto somebody, who is totally paralysed and who comes to court claimingthat because of this accident he is reduced to living death position.At the same time, the accidents claim petition is not an occasion forbonanza for persons, who have sustained fractures. The injurysustained must always be co-related to the avocation of the injuredto assess the degree of disability or loss of earning capacity as thecase may be. We may usefully refer to R.D. Hattangadi Vs. M/s. PestControl (India) Pvt. Ltd., (1995) 1 SCC 551 : (1995 AIR SCW 243: AIR1995 SC 755), where the Supreme Court had held as follows: https://hcservices.ecourts.gov.in/hcservices/ "Broadly speaking while fixing anamount of compensation payable to a victimof an accident, the damages have to beassessed separately as pecuniary damages andspecial damages. Pecuniary damages arethose which the victim has actually incurredand which is capable of being calculated interms of money; whereas non-pecuniarydamages are those which are incapable ofbeing assessed by arithmetical calculations.In order to appreciate two conceptspecuniary damages may include expensesincurred by the claimant; (i) medicalattendance; (ii) loss of earning of profitup to the date of trial; (iii) othermaterial loss. So far non-pecuniary damagesare concerned, they may include; (i) damagesfor mental and physical shock, painsuffering, already suffered or likely to besuffered in future; (ii) damages tocompensate for the loss of amenities of lifewhich may include a variety of matters,i.e., on account of injury the claimant maynot be able to walk, run or sit; (iii)damages for the loss of expectation of life,i.e., on account of injury the normallongevity of the person concerned isshortened; (iv) inconvenience, hardship,discomfort, disappointment, frustration andmental stress in life."7. The injured had, in this case, a mere fracture on his righttibia. We will even accept the Doctor's evidence that there isslight difficulty in straightening the leg and therefore there issome incapacity to walk fast. We will also accept the Doctor'sevidence that there is slight bending and shortening of the leg. Wecannot accept that this injury had in any way resulted in loss ofstatus for the injured in the society and that he had suffered mentalagony on account of such status loss. This is an imaginary head ofaward and we straightaway delete the sum of Rs.3 lakhs awarded by theTribunal. Instead, we will award a sum of Rs.50,000/- as loss ofamenities for the difficulties he may face in movement and thepossible diminishment of securing a bride. The Tribunal has awardeda sum of Rs.1 lakh for the assistance given to the claimant by hisfamily for one year for his continuous treatment and the possiblefuture transport expenses etc. Since the award for transport expensesis already on the high side and there is no evidence that the injuredspent one year in the hospital, we may safely delete this award of https://hcservices.ecourts.gov.in/hcservices/ Rs.1 lakh under this head. It is already seen from para 10 of theaward that the claimant was in the hospital from 7.10.2000 to16.10.2000 and thereafter on 24.10.2000. Therefore the conclusion ofthe Tribunal that he took treatment for one year appears to beunjustified. The medical expenses of Rs.1 lakh is confirmed, inview of Ex.P.9. The Tribunal has quantified some amount as theeconomic loss and therefore there could be no award under the head ofdisability, in view of Full Bench decisions in CHOLAN ROADWAYSCORPORATION LTD. v. AHMED THAMBI (2006 (4) CTC 433), wherein it washeld that when loss of earning capacity is already compensated,permanent disability need not be separately itemised. Therefore theaward of Rs.1 lakh under the head of disability is deleted. Fortransport expenses and extra nourishment a total sum of Rs.50,000/-has been awarded. We reduce this to Rs.25,000/-, since we are unableto comprehend how much extra nourishment a person, who had sufferedfracture will need, even if we assume that he stacked his room withbottles of Horlicks. For pain and suffering the award of Rs.50,000/-is confirmed.8. The erratic manner in which disability is assessed forfractures and other injuries which are not as grievous as loss oflimbs or amputation is neither fair nor just. We feel that thereshould be some consistency and some uniformity. It pains us to seeextravagant awards, for what is really not a major disability. Thepain that the injured feels is not something we are ignoring but whatwe have to assess is the diminishment of his capacity to work and tothe loss of earning capacity.9. The starting salary the claimant might be receiving as aCivil Engineer is fixed at Rs.7,500/-. Since he is a Civil Engineer,he might have to stand for long time in the open on the site andfracture of the tibia might affect him in that regard. But at thesame time, it is difficult for us to accept 50% as the disability,since we find in Schedule I Part II of the Workmen's CompensationAct, 1923, even for amputation below knee with stump exceeding 12.70cms the percentage of disability is only 50%. In that case, mobilityis reduced and they may have to use some other assistance for theloss of limb below the knee. The claimant's predicament in this caseis not that serious. Therefore we are totally unable to justify theTribunal taking 50% as disability for the fracture of Tibia. Buttaking note of the nature of his education and his expertise and thepossibility that he might have to stand for a long time to pursuehis avocation, we fix the disability at 20%. 10. In "A Critique on Motor Vehicles Laws" (by Justice K.Kannan& N.Vijayaraghavan, Advocate, 13th Edition, 2008), it is preciselythis predicament that is referred to. They observed that the expertwitnesses or Doctors, who appear before the Tribunals are stockwitnesses. They know no standards, do not conform to any uniform https://hcservices.ecourts.gov.in/hcservices/ practices. They do not follow any criteria. The Tribunals are alsounder work pressure and therefore, they just accept or slightlymodify the disability as certified by those Doctors. In 2005 (ACJ)344 (AP) (M. JAYANNA'S CASE), the unhealthy practices in this fieldare referred to. In this book, there is a reference to theNotification issued by the Ministry of Social Justice and Empowermentdated 1.6.2001 for applying consistency and uniformity in theassessment of permanent disability. Guidelines have been drawn andif it is adopted, the falsification of the degree of disability maybe avoided. The authors of this book have made a salutary suggestionwhich is that, a Medical Board shall be constituted in each Districtand as a matter of rule, the injured shall appear before the MedicalBoard and the disability shall be assessed by the Board and thecertificate of disability by the Medical Board shall normally beaccepted as binding on the Tribunal without need for examination ofthe author of the same. They have also suggested that a clause may beintroduced in the Motor Vehicles Act itself so that some uniformpractice is achieved. We hope the Parliament will take note of this.11. We take Rs.7,500/- as the starting salary for a person ofhis qualification. We will not interfere with the multiplier adoptedby the Tribunal. We fix 20% as his disability and if so, we arrive ata sum of Rs.3,24,000/- as loss of earning capacity. Therefore thetotal compensation would be as follows:-Loss of earning capacity = Rs. 3,24,000.00Loss of amenities = Rs. 50,000.00 Medical Expenses = Rs. 1,00,000.00Transport andextra nourishment = Rs. 25,000.00Pain and suffering = Rs. 50,000.00 ----------------- Rs. 5,49,000.00 -----------------It is rounded off to Rs.5,50,000/-. We are informed that, by virtueof the interim orders passed by this court, the claimant has alreadywithdrawn a sum Rs.14,97,775/-. It is open to the appellant to adoptsuch steps as are necessary in view of our reduction incompensation. C.M.A.No.3854 of 2004 is allowed as above.C.M.A.No.534 of 2005:-12. In this case, the left toe of the claimant was fractured.P.W.4 – Dr. R.Thiagarajan had certified the disability of the injuredat 25% as there was malunion of the second and fifth toe. Theinjured had obtained Diploma in Fitter in the Gemini Institute ofTechnology and also had a driving licence. He had registered a SmallScale Industry under the name "Ramalakshmi Industries" which is seen https://hcservices.ecourts.gov.in/hcservices/ from Ex.P.6. The Tribunal was of the opinion that by the fracture ofthe toe, earning capacity of the injured was considerably reduced.We are afraid, we are unable to follow the reasoning for this.Thereafter the Tribunal has awarded as follows:-Transport and Extra Nourishment - Rs. 20,000/-Medical Expenses - Rs. 25,000/-pain and suffering - Rs. 20,000/-Disability - Rs. 30,000/-Loss of earning - Rs. 20,000/-Thereafter the Tribunal chose to adopt the multiplier method for aperson who has sustained fracture of a toe and assessed the loss ofearning capacity at 1000/- per month and arrived at a loss of earningat Rs.2,16,000/- and rounded it off to Rs.2,25,000/-. To this if weadd the earlier heads of awards, we arrive at a sum of Rs.3,40,000/-.13. The Tribunal had awarded a sum of Rs.25,000/- towardsmedical expenses. We are unable to see where the Tribunal haddiscussed this. But since it is a small amount, we confirm it. Theaward of a sum of Rs.20,000/- towards pain and suffering is alsoconfirmed. The amount of Rs.20,000/- awarded towards Extranourishment and transportation is also confirmed. The award of a sumof Rs.20,000/- for loss of income is deleted, since there is noevidence for the same. The sum of Rs.30,000/- awarded towardsdisability is also deleted, since the Tribunal has awardedRs.2,16,000/- under economic loss. There is no evidence that becauseof this fracture, the claimant was unable to continue his Small ScaleIndustry. So we are unable to appreciate the award of Rs.2,25,000/-for loss of earning capacity. It is seen that for amputation of toesthe II Schedule of the Workmen's Compensation Act fixed thedisability at 30%. There is no evidence as to how his earningcapacity stands reduced. However we will notionally award a sum ofRs.50,000/- under this head and the total compensation would be asfollows:-Medical expenses= Rs. 25,000.00Pain and suffering= Rs. 20,000.00Loss of earning capacity= Rs. 50,000.00Extra Nourishment andTransportation= Rs. 20,000.00 ------------------- Rs.1,15,000.00 ------------------- https://hcservices.ecourts.gov.in/hcservices/ We are informed that, by virtue of the interim orders passed by thiscourt, the claimant has already withdrawn 50% of the amountdeposited. It is open to the appellant to adopt such steps in viewof our reduction in compensation. C.M.A.No.534 of 2005 is allowed. Nocosts.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTr/ToThe Motor Accidents Claims Tribunal, Fast Track Court No.IV, Madras.copy toThe Section Officer,V.R.Section, High Court, Madras.2 cc To Mr.M.Swamikkannu, Advocate, SR.18877, 18876.2 cc To Mr.N.Vijayaraghavan, Advocate, SR.19450, 19451.C.M.A.NO.3854 of 2004& 534 of 2005 RSN(CO)RVL 14.07.2009