Madras High Court
P.Elangovan vs The Tamil Nadu State Transport ... on 30 March, 2010
Bench: R.Banumathi, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.03.2010 CORAM: THE HON'BLE MRS.JUSTICE R.BANUMATHI AND THE HON'BLE MR.JUSTICE M.VENUGOPAL C.M.A.NO.164 of 2005 P.Elangovan .... Appellant Vs. The Tamil Nadu State Transport Corporation Limited, represented by its The Managing Director, Kancheepuram. .... Respondent Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act against the Order dated 17.7.2003 made in M.C.O.P.No.637 of 2000 on the file of Motor Accident Claims Tribunal Tiruvannamalai. For Appellant : Mr.V.Subramani For Respondent : Mr.S.S.Swaminathan JUDGMENT
R.BANUMATHI,J.
Being dissatisfied with the quantum of compensation of Rs.7,91,634/- awarded in M.C.O.P.No.637 of 2000 on the file of Motor Accident Claims Tribunal Tiruvannamalai for the personal injuries sustained by the claimant, the claimant has filed this appeal praying for enhancement of compensation.
2. On 27.7.1997, at 8.30 A.M, when the claimant was returning from Chennai to Vandavasi in his Suzuku Samurai motor bike bearing Registration No.TN.25 Z 5281 in the Vandavasi B.Erikkarai Road, the Respondent Corporation bus bearing Registration No.TN-21-N-O177 driven by its driver in a rash and negligent manner from the opposite side and dashed against the motor cycle and the claimant sustained grievous injuries on right knee with bone and joint exposed, right shoulder, bleeding from right nose, right elbow, right hand, right eye brow above eye, compound fracture on right patella, compound fracture of femoral condyle right, compound fracture on right plateau.
3. At the time of accident, claimant was aged 25 years and he was the final year student of B.S.M.S.Degree at Government Siddha Medical College, Arumbakkam, Chennai. A criminal case was registered against the bus driver in Crime No.578 of 1997 of Vandavasi police station under Sections 279 and 338 IPC. The claimant had taken treatment as in-patient in various Hospitals C.M.C.Hospital, Vellore, Sri Ramachandra Medical College, Porur, Billroth Hospital and other Hospitals. Alleging that the accident was due to rash and negligent driving of the bus driver, claimant had filed the Claim Petition M.C.O.P.No.637 of 2000 claiming compensation of Rs.30,00,000/- under various heads.
4. Before the Tribunal, claimant examined himself as P.W.1 and one Palani was examined as P.W.2. The doctors P.W.3 S.Premkumar and P.W.4 G.Balakrishnan were examined on commission, who have deposed as to the permanent disability sustained by the claimant. On the side of Respondent, R.Ws.1 to 3 were examined.
5. Upon consideration of oral and documentary evidence, the Tribunal held that the accident was due to rash and negligent driving of the bus driver and held that the Respondent Transport Corporation is liable to pay the compensation. At the time of accident, claimant was a final year student of B.S.M.S.Degree Course at Government Siddha Medical College, Arumbakkam and he completed his Degree at the time of trial of the case. The Tribunal has taken monthly income of the claimant at Rs.5,000/- and accordingly taken the annual income at Rs.60,000/-. Based upon Exs.A.29, A.30 and A.42 - disability certificates, Tribunal has taken permanent disability of the claimant at 90 percent and the Tribunal had calculated Rs.9,72,000/- as compensation for permanent disability and thereafter again restricted the same to 60% and awarded Rs.5,50,000/- for permanent disability. As the claimant was aged 25 years, taking multiplier 18, Tribunal has awarded compensation of Rs.7,91,634/- as under:
Permanent disability : Rs. 5,50,000/-
and loss of earning power Medical expenses and : Rs. 1,80,834/ transport charges Pain and suffering :Rs. 60,000/- ------------------ Total :Rs.7,91,634/- -----------------
6. Learned counsel for Appellant/claimant contended that the Tribunal erred in fixing monthly income notionally at Rs.5,000/- and totally ignored the future prospects and the compensation amount awarded is very meagre amount. Drawing our attention to the nature of injuries and intensive treatment given to the claimant, learned counsel for Appellant further submitted that the Appellant having sustained 87 percent plus 30 percent permanent disability he cannot lead a normal life and the Tribunal has failed to consider that the Appellant needs to be compensated for his permanent disability. It was further argued that the Tribunal having assessed 90 percent permanent disability was not justified in restricting it once again to 60 percent.
7. We have heard Mr.Swaminathan, learned counsel appearing for the Respondent Corporation. Learned counsel for Respondent Corporation submitted that notwithstanding the injuries, claimant has completed his Degree and absolutely there is no evidence that the claimant cannot carry on normal pursuits in life and while so the quantum of compensation awarded by the Tribunal in a sum of Rs.7,91,634/- is quite reasonable warranting no interference.
8. P.W.1 has spoken about the negligence of the driver of the bus. A criminal case in Crime No.578 of 1997 of Vandavasi Police Station under Sections 279 and 338 of IPC was also registered against the bus driver. The police have neither charge-sheeted the driver nor filed the final report in the Magistrate's Court within a period of six months and Judicial Magistrate has closed the proceedings under Section 468(2) of Cr.P.C., and certified copy of the order was marked as Ex.A.7. Excepting the interested version of R.Ws.1 and 2, no other evidence was adduced by the Respondent Corporation. Based upon the evidence of P.W.1, the Tribunal has rightly held that the accident was due to negligent driving of the bus driver. In fact, the finding recorded by the Tribunal as to negligence of bus driver and fastening of liability upon the Respondent Corporation is not under challenge.
9. At the time of accident, claimant was aged 25 years and he was a final year student in B.S.M.S.Degree at Government Siddha Medical College, Arumbakkam. In the accident, claimant sustained grievous injuries on right knee with bone and joint exposed, right shoulder, bleeding from right nose, right elbow, right hand, right eye brow above eye, compound fracture on right patella, compound fracture of femoral condyle right and compound fracture on right plateau. After the accident, the claimant was admitted in C.M.C., Vellore, where he had taken treatment as in-patient for nearly one month from 27.7.1997 to 25.8.1997. During the course of treatment, surgery was performed to the right knee and three metal screws were fitted. Ex.A.12 is the case summary and discharge card issued by C.M.C.Hospital, Vellore. By perusal of Ex.A.12, it is seen that the claimant was advised exercises to whole of right upper arm, rest in a triangular sling. Medical gastrenemius flap rotated to cover exposed patella and split skin-grafting was done over right flap and groin to ankle casting right lower limb was done.
10. After discharge from C.M.C.Hospital, the Appellant had taken further treatment in Government General Hospital, Chennai from 1.9.1997 to 18.11.1997. Again the Appellant had taken treatment in Ramachandra Hospital, Porur from 19.11.1997 to 25.11.1997. In Ramachadnra Hospital, on examination, it was noticed that the Brachial plexus of C.5, C.6 and C.7 nerves were cut and damaged at the root level of the spinal cord and there was adduction in the right arm. Therefore, Brachial Plexus operation was recommended. The Appellant was also advised further treatment. The Appellant underwent treatment in Billroth Hospital, Chennai from 10.12.1997 to 22.12.1997. It was noticed that there was near total avulsion in C.5, C.6 nerves and C7 had complete division with neuroma. An accessory nerve transfer operation was performed to connect C.5, C.6 and C.7 nerves and 5 cables were put. The wound on right inner neck was closed in two layers by micro surgery. Ex.A.21 is the discharge summary issued by Billroth Hospital elaborating the nature of treatment given to the Appellant/claimant. In his evidence, P.W.1 has also stated that there was near total avulsion in C.5, C.6 nerves. He had also underwent treatment as out-patient with eminent neuro surgeons - Dr.B.Ramamoorthy and B.Narendiran.
11. P.W.3 Dr.Prem Kumar is M.S.Ortho working in Billroth Hospital, Chennai, who was examined on commission. In his evidence, P.W.3 has stated that he has clinically examined the claimant and also perused the discharge summary and nature of treatment. Assessing the permanent disability of the claimant in respect of right knee at 30 percent, P.W.3 has opined (i) fracture of lateral tibial plateou (right), fracture patella (right), fracture lateral condyle femur (right) (ii) FFD of right knee 5 degrees, (iii) range of motion of right knee 5 degrees to 70 degrees. Evidence of P.W.3 is also strengthened by Ex.P.29 permanent disability certificate issued by him. In his evidence, P.W.3 has further stated that the claimant would have difficulties in pursuing his normal pursuits; that the claimant cannot sit cross legged or squat and while he is walking, there will be mild limping. P.W.3 has also stated that the claimant would have pain if he has to walk for a long distance and P.W.3 has assessed permanent disability at 30%.
12. P.W.4 - Dr.Balakrishnan, a Plastic surgeon working in Government Stanley Hospital was also examined on commission. P.W.4 has stated that while he was working in Billroth Hospital, he has admitted Appellant/claimant and that due to brachila plexus injury on his right upper-arm, the claimant has been permanently disabled to an extent 87%. P.W.4 has opined that due to that injury claimant's right hand has become useless. P.W.4 has also opined that there will be continuous pain due to cut of neck nerves C.5, C.6 and C.7. P.W.4 has also deposed that even though accessory nerve was dissected upto distal to branch to trapezius and sutured to suprascapular left sural nerve graft taken cable grafting was done between C5 - remaining fibres and C.7 fibres distally to C.5-C6 stump 5 cable grafts were put. Pain of the neck was reduced and the Appellant continued to have pain. P.W.4 has further stated that inspite of physio therapy exercises the right hand of the Appellant/claimant has become useless and that he is continuing to have increased pain. Assessing the permanent disability at 87 percent, P.W.4 issued Ex.A.30 permanent disability certificate.
13. Nature of injuries and treatment details are evident from Exs.A.12, A.13 and A.18 to A.23. In Exs.A.29, A.30 and A.42, the permanent disability of the claimant is assessed at 30 percent plus 87 percent. In his evidence, P.W.1 has stated that inspite of intensive treatment, he is not in a position to use his right hand and that he is dependent on others. Claimant has also stated that there is shortening of right leg and that he could walk slowly only for short distance. Even though the claimant is said to have completed his Siddha Degree course, the claimant appears to have been rendered useless because of immobilisation of his right hand. The Tribunal had taken notional monthly income of the claimant at Rs.5,000/- per month and the annual income at Rs.60,000/-. Tribunal has taken 90 percent disability and after adopting multiplier 18 calculated compensation of Rs.9,18,000/- as compensation for loss of earning power and permanent disability. Even though the Tribunal has taken the percentage of permanent disability at 90 percent and after calculating the compensation at Rs.9,18,000/- the Tribunal has committed an error in again restricting that amount by way of 60 percent and reducing the compensation to Rs.5,50,800/- towards permanent disability and loss of earning power. Absolutely there is no rationale for restricting the compensation by another 60 percent and in our considered view, the compensation of Rs.5,50,800/- awarded by the Tribunal for loss of earning power and permanent disability is very low.
14. As discussed earlier, Appellant/claimant was a final year student of B.S.M.S.Degree at Government Siddha Medical College, Arumbakkam. Even though the Appellant has completed his degree, since the right hand of the claimant is crippled, it may not be possible for the claimant to pursue his career as a Siddha doctor. P.Ws.3 and 4 in Exs.A.29 and A.30 have assessed the permanent disability at 30 percent plus 87 percent - totally 117 percent. We are of the view that having regard to the injuries and that the right hand of the claimant is totally crippled, and considering the evidence of P.Ws.3 and 4, we are of the view that the total permanent disability of the claimant has to be taken at 100 percent.
15. The physical frame of the claimant has been shattered and money cannot compensate what has been shattered. No amount of compensation can restore the lost limp of the claimant. In (1874) 4 QBD 406 (PHILLIPS VS. WESTERN RAILWAY CO.), Field,J., while emphasising that damages must be full and adequate, it was held thus:
"you cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation once and for all. He has done no wrong, he has suffered a wrong at the hands of defendants and you must take care to give him full and fair compensation for which he has suffered."
16. In 1980 ACJ 55 (SC) (CONCORD OF INDIA INSURANCE CO.LTD. VS. NIRMALA DEVI), the Supreme Court held as follows:
"2. ...... the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales. ..."
17. Emphasizing the principle of restitutio in integrum, in Sapna v. United India Insurance Co. Ltd.,(2008) 7 SCC 613, the Supreme Court held as under:
"8. The principles governing a claim petition for assessing the damages in case of bodily injury suffered is that while awarding the compensation, the Tribunal should consider all relevant factors so as to enable the insured to be put in the same position as if he had not sustained any injury. The principle of restitutio in integrum may be applied in a case of this nature. Pecuniary loss and non-pecuniary loss are required to be pressed under certain heads. So far as the pecuniary loss is concerned, the same can be ascertained. What is required to be done is a balancing act by awarding such sum which, on the one hand, shall take care of the loss suffered by the claimant for the present time and future pecuniary benefits and, on the other, pecuniary advantages which from whatever source comes to them by reason of such injuries. So far as non-pecuniary loss is concerned, the same has to be assessed broadly under certain heads, namely, damages for physical pain, mental suffering, etc. besides the amount spent on medical treatment, if any."
18. In State of Haryana v. Jasbir Kaur,(2003) 7 SCC 484, the Supreme Court held as under:
"7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense damages which in turn appears to it to be just and reasonable. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be just and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be just compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of just compensation which is the pivotal consideration. Though by use of the expression which appears to it to be just a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression just denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just."
19. At the time of accident, the claimant was a student. The Tribunal had taken the monthly income at Rs.5,000/- notionally and the same is maintained. As discussed earlier, claimant had taken treatment in various hospitals in different spells of time. Going by the Second schedule, Tribunal has taken the multiplier as 18.
20. The learned counsel for Respondent contended that in a personal injury case the Tribunal was not justified in adopting multiplier method. In (2009) 1 TNMAC 40 (SC) (ASRAF ALI V. NAVEEN HOTELS LTD. AND ANOTHER), the Hon'ble Supreme Court in similar circumstances held that in computing the amount of compensation, the Court may in a given case take the benefit of structured formula as envisaged in the Second Schedule of the Motor Vehicles Act, 1988. In 2005 (1) CTC 38 (UNITED INDIA INSURANCE CO.LTD, TIRUCHENGODE VS. VELUCHAMY AND ANOTHER), the Division Bench of this Court held that in personal injury cases, for ascertaining compensation for permanent disability' and 'loss of earning power', Court could adopt multiplier method. With right hand restriction, the claimant is totally crippled and future is overshadowed by his physical disability and this is a fit case to adopt multiplier method.
21. Taking the monthly income of the Appellant at Rs.5,000/- and taking his percent of disability at 100 percent, the compensation awarded for permanent disability and loss of earning power is enhanced to Rs.10,80,000/- (Rs.5,000 x 12 x 18). The Tribunal has awarded Rs.1,80,834/- for medical expenses and the same is maintained. For pain and suffering, Tribunal has awarded Rs.60,000/-. As discussed earlier, the claimant had taken intensive treatment in various hospitals for different spells of time. The compensation of Rs.60,000/- awarded by the Tribunal for pain and suffering is enhanced to Rs.1,00,000/-. For extra-nourishment, the compensation amount of Rs.25,000/- is awarded. The total compensation awarded to the claimant is enhanced to Rs.13,85,834/- as under:
For permanent disability and loss of : Rs.10,80,000/-
Earning power For medical expenses : Rs. 1,80,834/- For pain and suffering : Rs. 1,00,000/- For extra-nourishment : Rs. 25,000/- ---------------- Total : Rs.13,85,834/- -----------------
22. The compensation awarded to the claimant in M.C.O.P.No.637 of 2000 is enhanced to Rs.13,85,834/-. The Tribunal has awarded interest at the rate of 9 percent per annum from the date of claim petition till the date of payment and the same is maintained in respect of the compensation amount awarded by the Tribunal i.e., Rs.7,91,634/-. Insofar as the enhanced compensation of Rs.5,94,200/- (Rs.13,85,934/- minus Rs.7,91,634/-), the same shall be payable with interest at the rate of 7.5 percent from 2.11.2000, i.e., the date on which the claim petition was taken on file, though the claimant had filed the claim petition on 16.8.2000. The compensation amount awarded by the Tribunal in M.C.O.P.No.637 of 2000 - Rs.7,91,634/- is enhanced to Rs.13,85,834/- with the rate of interest as indicated above and the Civil Miscellaneous Appeal is allowed accordingly. The Respondent Transport Corporation is directed to deposit the balance compensation amount along with accrued interest within a period of eight weeks from the date of receipt of copy of this judgement. On such deposit, the claimant is permitted to withdraw the entire compensation amount along with accrued interest. However, there is no order as to costs.
usk Copy to:
The Motor Accident Claims Tribunal Tirunvannamalai