Madras High Court
National Insurance Company Ltd vs T. Kunhikuttan Nair - Air 1970 Sc 376 on 22 April, 2014
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 22.04.2014 CORAM: THE HONBLE MR. JUSTICE S. MANIKUMAR C.M.A.Nos.542 and 755 of 2010 National Insurance Company Ltd., No.378, Mini Street, Sowcarpet, Chennai 600 079. ... Appellant in CMA.No.542/2010 2nd Respondent in CMA.No.755/2010 v. 1.D.Bhuvanesh 1st Respondent in CMA.542/2010 Appellant in CMA.No.755/2010 2. D.Senthil Kumar ... 2nd Respondent in CMA.542/2010 (Set ex-pate before the Tribunal) 1st Respondent in CMA.755/2010 The Civil Miscellaneous Appeals are filed under Section 173 of the Motor Vehicles Act against the award & Decree dated 09.11.2009 made in M.A.C.T.O.P.No.5791 of 2005, on the file of the Motor Accidents Claims Tribunal (II Court of Small Causes), Chennai. For Appellant : Mr.D.Bhaskaran For 1st Respondent : Mr.M.Swamikkannu COMMON JUDGMENT
In the accident, which occurred on 26.11.2005, Mr.D.Bhuvanesh, the 1st respondent herein, said to have worked as a Clerk in Corporation Bank, Mint Street Branch, Chennai-79, has suffered injuries. At the time of accident, he was aged 37 years. He has made a claim for compensation of Rs.7,00,000/-. The Claims Tribunal, after considering the materials on record, awarded compensation of Rs.1,88,000/-, as hereunder:
Loss of Earning : Rs. 33,000/-
Transport Expenses : Rs. 7,000/- Extra Nourishment : Rs. 25,000/- Dress Materials & Articles : Rs. 1,000/- Medical Expenses : Rs. 2,000/- Pain and Suffering to the loss of income to the family member in attending the claimant : Rs. 30,000/- Mental Agony and Torture due to limping : Rs. 20,000/- Additional Transport expenses : Rs. 15,000/- Compensation for pain and suffering : Rs. 25,000/- Permanent Disability : Rs. 30,000/- ------------------- Total : Rs.1,88,000/- -------------------
Being aggrieved by the quantum of compensation, National Insurance Company has filed C.M.A.No.542 of 2010. Not satisfied with the quantum of compensation, the injured filed C.M.A.No.755 of 2010. As both the appeals involve the dispute over the determination of compensation, they are taken up together and disposed of by a common order.
2. In the accident, the respondent/claimant is stated to have been sustained compound and communited fracture of both bones in the right leg, at 1/3rd length from ankle, injury in the back skull, leading to concussion of brain and severe injury in the chest and abdomen and other multiple injuries, all over the body. PW.2, Doctor, who examined the respondent/claimant, with reference to the medical records, has supported the contentions of the respondent/claimant that he has sustained the abovesaid injuries and took treatment in Apollo Hospital, Chennai, between 26.11.2005 and 30.11.2005. Ex.P2 Discharge Summary issued by Apollo Hospital, Chennai, has been produced. PW.2, Doctor, upon perusal of Ex.P7 X-Ray, assessed the extent of disablement at 30% and issued Ex.P6 Disability Certificate, for which, the Claims Tribunal has awarded only Rs.30,000/- as disability compensation.
3. Assailing the quantum of compensation as excessive, Mr.D.Bhaskaran, learned counsel for the National Insurance Company Ltd., Chennai, submitted that a sum of Rs.25,000/- awarded under the head, extra nourishment, is on the higher side. He further submitted that though an injured person is entitled to be compensated for pain and suffering, due to the injuries and the consequential disablement, if any, in the case on hand, when the injured had already been awarded compensation of Rs.25,000/- under the head, pain and suffering, a further sum of Rs.30,000/- towards pain and suffering and loss of income to the family members in attending the injured, amounts to double compensation, under the very same head and hence, it is unsustainable and at any rate, no compensation can be awarded for pain and suffering to the family members.
4. Learned counsel for the Insurance Company further submitted that in addition to a compensation of Rs.25,000/- awarded under the head, pain and suffering, a further sum of Rs.20,000/- has also been awarded under the head, mental agony and torture, due to limping and that the same is erroneous. It is the further contention of the learned counsel for the Insurance Company that when no document has been filed to prove that the injured had lost his employment or earning capacity, the Tribunal has not committed any manifest illegality, in not applying the multiplier method, to compute the compensation, under the head, loss of future income. He also submitted that being an employee of a Bank, the injured would have been compensated, during the period of leave availed by him, for the treatment and in such circumstances, a sum of Rs.33,000/- awarded under the head, loss of earning, during the period of treatment, requires reduction.
5. Inviting the attention of this Court to the date of accident, learned counsel for the Insurance Company further submitted that when the injured has been already granted compensation of Rs.7,000/- for transportation expenses, a further compensation of Rs.15,000/- towards additional transportation expenses, is not supported by any evidence, nor the injured has produced any evidence, to prove that he required engagement of any motorised vehicle, to attend to his work or for any other purpose. It is also his submission that though the injured has claimed a sum of Rs.29,000/- towards medical expenses, he has produced Ex.P5 (series) Medical Bills, only for a sum of Rs.1,524/-, by which, the Tribunal has granted a sum of Rs.2,000/-. Even assuming that the injured could have incurred some more expenses for treatment in Apollo Hospitals, Chennai, it would have been reimbursed by the employer, viz., Corporation Bank, Chennai.
6. For the reasons, stated supra, learned counsel for the Insurance Company sought for reduction in the quantum of compensation. However, considering the nature of injuries and extent of disablement, he fairly submitted that the injured has to award with a reasonable compensation, under the head, loss of amenities.
7. Per contra, Mr.M.Swamikkannu, learned counsel for the injured, submitted that the Claims Tribunal has failed to apply the multiplier method in computing the loss of earning power. In this context, he relied on a decision of this Court in M.Jagannathan v. Pallavan Transport Corporation Ltd., reported in 1999 ACJ 366.
8. He further submitted that in every case, where there is a permanent disablement, it would affect the earning capacity of the injured and therefore, prayed for application of multiplier method. In support of his contention, he submitted that when the correctness of the orders passed in C.M.As., were tested, the Apex Court, following a decision in K.Suresh v. New India Insurance Company reported in 2012 (12) SCC 274, held that the compensation can be payable, both for loss of earning capacity, as well as, for the disability suffered by the injured and further submitted that in the above reported case, the Apex Court remanded the matter back to the High Court, to consider the issue afresh. For the same proposition, he relied on a decision of the Supreme Court in Civil Appeal Nos.9203 and 9204 of 2013, dated 18.10.2013 [M.Gopalakrishnan v. The United India Insurance Company Ltd.,].
9. Justifying the compensation of Rs.33,000/-, awarded under the head, loss of earning, during the period of treatment, Mr.Swamikannu, learned counsel for the respondent/claimant, submitted that even if the injured was paid leave salary, yet there should not be any reduction in the quantum of compensation awarded under the head, loss of earning, during the period of treatment. Placing reliance on a decisions of this Court in P.N.Palani v. Mico Plast Industries and another reported in 2001 ACJ 1007 and B.Anandhi v. R.Latha reported in 2002 ACJ 233, he submitted that the leave salary is different from loss of earning.
10. To sustain the award of Rs.7,000/- under the head, transportation and a further sum of Rs.15,000/- towards additional transportation expenses, learned counsel for the claimant further submitted that the Claims Tribunal has failed to consider that considering the nature of injuries and the extent of disablement, engaging in a motorised vehicle for visiting hospitals, is inevitable and therefore submitted that the Claims Tribunal ought to have awarded a sum of Rs.15,000/- towards additional transportation expenses.
11. To support the award of Rs.30,000/-, under the head, pain and suffering and loss of income to the family members of the claimant, in attending the injured, learned counsel for the claimant submitted that when a person is injured, persons, near and dear to him, would certainly undergo pain and suffering and therefore, a sum of Rs.30,000/- awarded under the abovesaid head, does not require any reduction. It is also his contention that the Claims Tribunal has erred in awarding Rs.2,000/- for medical expenses, even though a major portion of the same, has been reimbursed by the employer.
12. According to the learned counsel, the Claims Tribunal ought not to have awarded a lesser compensation of Rs.30,000/-, under the head, mental agony and torture and that the Tribunal ought to have awarded Rs.50,000/- as compensation, under the said head. It is also his contention that the Tribunal has erred in not awarding a reasonable compensation under the head, loss of amenities and loss of expectation of life. For the abovesaid reasons, he prayed for enhancement.
Heard the learned counsel for the parties and perused the materials available on record.
13. Before adverting to the merits of this case, let me consider the principles, stated in Rajkumar v. Ajay Kumar reported in 2011 ACJ 1 (SC), relating to awarding compensation in injury cases. At paragraphs 4 to 14, the Supreme Court has explained with illustrations, as to how the extent of loss of earning capacity has to be assessed, "General Principles relating to compensation in injury cases:
4. The provision of the Motor Vehicles Act, 1988 (`Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376, R. D. Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 and Baker vs. Willoughby - 1970 AC 467).
5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case.
Assessment of future loss of earnings due to permanent disability
6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.
8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567).
9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an 12 active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.
12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.
13. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.
14. The assessment of loss of future earnings is explained below with reference to the following illustrations:
Illustration `A': The injured, a workman, was aged 30 years and earning Rs.3000/- per month at the time of accident. As per Doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows:
a) Annual income before the accident : Rs.36,000/-
b) Loss of future earning per annum (15% of the prior annual income) : Rs. 5400/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (5400 x 17) : Rs. 91,800/-
Illustration `B': The injured was a driver aged 30 years, earning Rs.3000/- per month. His hand is amputated and his permanent disability is assessed at 60%. He was terminated from his job as he could no longer drive. His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. The Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows:
a) Annual income prior to the accident : Rs.36,000/-.
b) Loss of future earning per annum (75% of the prior annual income) : Rs.27000/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/-
Illustration `C': The injured was 25 years and a final year Engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70%. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning capacity was also assessed as 70%. The calculation of compensation will be as follows:
a) Minimum annual income he would have got if had been employed as an Engineer : Rs.60,000/-
b) Loss of future earning per annum (70% : Rs.42000/- of the expected annual income)
c) Multiplier applicable (25 years) : 18
d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/-
[Note : The figures adopted in illustrations (A) and (B) are hypothetical. The figures in Illustration (C) however are based on actuals taken from the decision in Arvind Kumar Mishra (supra)]."
14. Reverting back to the case on hand, as regards the contention that the claimant is entitled for loss of earning, during the period of treatment, this Court has no hesitation to agree with the same. This Court is of the view that a permanent employee is also entitled to earned leave salary, as he has been constained to take that leave, which could be surrendered lateron and reimbursed. The decisions made in P.N.Palani v. Mico Plast Industries and another reported in 2001 ACJ 1007 and B.Anandhi v. R.Latha reported in 2002 ACJ 233, support the case of the claimant. Hence, the respondent/claimant is entitled to Rs.33,000/- towards loss of earning, on earned leave salary.
15. The claimant is assessed to have suffered 30% disablement. Loss of amenities as per the Full Bench decision of this Court in Cholan Roadways Corporation Ltd., Kumbakonnam vs. Ahmed Thambi and others reported in 2006 (4) CTC 433, is as follows:
"deprivation of the ordinary experiences and enjoyment of life and includes loss of the ability to walk or see, loss of a limb or its use, loss of congenial employment, loss of pride and pleasure in one's work, loss of marriage prospects and loss of sexual function"
A sum of Rs.20,000/- has been awarded under the head, mental agony and torture due to limping. The claimant was aged 37 years, at the time of accident. There is a compound and communited fracture of both bones, in the right leg at 1/3rd length from ankle, resulting in 30% functional disablement. Considering the medical evidence, this Court is inclined to enhance the same to Rs.40,000/- and apportion the same, under the head, loss of amenities.
16. The accident has occurred on 26.11.2005. Material on record shows that he was hospitalised between 26.11.2005 and 30.11.2005. A sum of Rs.7,000/- has been awarded for transportation expenses. A further sum of Rs.15,000/- has also been awarded for additional transportation expenses. Before the Claims Tribunal, the claimant has produced seven documents. Though he has not produced any document to prove that he had incurred transportation expenses, considering the fact that he had sustained grievous injuries of compound and communited fracture of both bones in the right leg at 1/3rd length from ankle, it could be reasonably presumed that he would have engaged some motorised vehicle to visit the hospitals, for further treatment. The submission of the learned counsel for the claimant that the requirement of engaging a vehicle, in future, cannot be brushed aside, but at the same time, no documents have been filed by the claimant, that from 2005 till the filing of the claim petition, which culminated into an award on 09.11.2009, the claimant had incurred transportation expenses, to the tune of Rs.15,000/-. In the absence of any materials, this Court is inclined to reduce the same to Rs.10,000/-, without any interest. Likewise, the compensation of Rs.7,000/- awarded under the head, transportation is reduced to Rs.5,000/-. Compensation of Rs.25,000/- awarded under the head, extra nourishment, is slightly on the higher side and therefore, the same is reduced to Rs.20,000/-.
17. Pain and suffering to the family members, in attending the claimant, awarded at Rs.30,000/-, cannot be approved, except to the extent of compensating towards attendant charges. The Claims Tribunal, has committed an error. In the humble opinion of this Court, the Claims Tribunal has introduced a new factor in awarding compensation, under the head, pain and suffering to the family members. This Court has already extracted the parameters, to be taken into consideration, while awarding compensation to the injured, from the decision of the Apex Court in Rajkumar v. Ajaykumar reported in 2011 ACJ 1 (SC). In the light of the principles of law and the parameters to be taken into consideration, for assessment of pecuniary and non-pecuniary losses, award under the head, pain and suffering to the family members, in attending the injured, is reduced to Rs.10,000/- and it is apportioned under the attendant charges.
18. Considering the nature of injuries, the claimant would have undergone severe pain, at the time of accident, during the period of treatment and even at a later point of time. Pain is one, which is experienced momentarily, but it may continue even for a longer period, depending upon the gravity and situs of the injury, whereas, suffering is loss of happiness, on account of the same. Pain has no difference between Rich and Raff. The extent of disability at 30% in the right leg, would cause suffering and therefore, a sum of Rs.25,000/-, is enhanced to Rs.40,000/-.
19. At the time of accident, the claimant was employed in Corporation Bank and he continued to do so. It is well known that the employees of the scheduled bank, are entitled to treatment in reputed hospitals. In the case on hand, the claimant has been treated in Apollo Hospitals, Chennai. The contention of the Insurance Company that the major portion of the medical expenses would have been reimbursed by the employer, has not been disputed, nor any representative from the Bank, has been examined by the claimant, to rebut the said contention. However, only a sum of Rs.2,000/- alone has been awarded for medical expenses.
20. The claim petition has been filed in the year 2005. The award has been passed on 09.11.2009. Except Ex.P5 Medical Bills, no document has been filed to prove that there was a continuous medical expenditure. Nevertheless, considering the nature of injuries, it could be presumed that the claimant would have incurred some medical expenses, after discharge from the hospital. In Nesamony Transport Corporation v. Senthilnathan reported in (I) 2000 ACC 332, this Court held that if there is evidence to show that the injured was hospitalised, then it could be presumed that the injured would have incurred considerable medical expenses. Hence, this Court is inclined to Rs.5,000/- under the head, medical expenses.
21. PW.2, Doctor, upon perusal of Ex.P7 X-Ray, has assessed the extent of disablement at 30% and issued Ex.P6 Disability Certificate, for which, the Claims Tribunal has awarded only Rs.30,000/- as disability compensation. Following the decisions in Prahalath Jasmathiya v. V.Sankaran reported in 2009 (5) MLJ 1549 (Mad-NOC) and M.D., T.N.S.T.C.Ltd., v. S.Kannappan reported in 2007 (2) TNMAC 1, this Court is inclined to award Rs.60,000/- as disability compensation (Rs.2,000/- per percentage of disability).
22. The decision relied on by the learned counsel for the injured in Civil Appeal Nos.9203 and 9204 of 2013, dated 18.10.2013 [M.Gopalakrishnan v. The United India Insurance Company Ltd.,], is not applicable, in strict sense, to the facts of this case, as it cannot be said that the permanent disablement at 30%, assessed by PW.2, Doctor, would affect the earning capacity of the injured, as he continued to serve.
23. In the result, the injured claimant is entitled to Rs.2,57,000/-, with interest at the rate of Rs.7.5% per annum (excluding the compensation of Rs.10,000/- awarded under the head, future transportation), from the date of claim, till the date of realisation, as apportioned hereunder:
Loss of Earning (including leave salary) : Rs. 66,000/-
Transport Expenses : Rs. 5,000/- Extra Nourishment : Rs. 20,000/- Dress Materials & Articles : Rs. 1,000/- Medical Expenses : Rs. 5,000/- Attendant Charges : Rs. 10,000/- Mental Agony and Torture due to limping (loss of amenities) : Rs. 40,000/- Additional Transport expenses : Rs. 10,000/- Pain and suffering : Rs. 40,000/- Permanent Disability : Rs. 60,000/- ------------------- Total : Rs.2,57,000/- -------------------
24. Hence, C.M.A.No.755 of 2010 is allowed and C.M.A.No.542 of 2010 is dismissed. The Insurance Company is directed to deposit the award amount along with the enhanced compensation of Rs.69,000/-, now determined by this Court, with proportionate accrued interests and costs, less the amount already deposited, to the credit of M.A.C.T.O.P.No.5791 of 2005, on the file of the Motor Accidents Claims Tribunal (II Court of Small Causes), Chennai, within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made, the injured-claimant is permitted to withdraw the same, by making necessary applications before the Tribunal. No costs.
22.04.2014 Index: Yes S. MANIKUMAR, J.
skm To The Motor Accident Claims Tribunal, (II Court of Small Causes), Chennai.
C.M.A.Nos.542 and 755 of 2010 22.04.2014