Madras High Court
M.Bhagavathy vs Thiruvalluvar Transport Corporation on 2 March, 2005
Bench: P.K. Misra, Prabha Sridevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/03/2005 CORAM THE HONOURABLE MR.JUSTICE P.K. MISRA AND THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVAN C.M.A.No.803 of 1997 M.Bhagavathy .. Appellant. Vs Thiruvalluvar Transport Corporation Limited, Pallavan Salai, Madras, re. by its Managing Director. .. Respondent. For Appellant : No Appearance For Respondent : No Appearance Prayer Appeal against the judgment and decree of the learned Subordinate Judge, Ariyalur dated 22.12.1993 and made in M.C.O.P.No.230 of 1991. :JUDGMENT
The Judgment of the Court was delivery by PRABHA SRIDEVAN,J The claimant is the appellant. The appellant sustained an injury in the accident that took place on 11.09.1990 on the Trichy Chennai National highway. The accident occurred on account of the negligence of the bus belonging to the respondent. The appellant claimed compensation of Rs.1,00,000/-. The Motor Accidents Claims Tribunal awarded Rs.30,000/- and therefore, this appeal has been filed.
2. The respondent though served has not entered appearance. Hence after perusing the grounds and the other connected papers filed along with it, we pass the following order.
3. It is clear from the award that the appellant had been injured near her left knee and her leg was broken and thereafter, her left leg was amputated below the knee. It is her case that she is unable to do household work. P.W.3 is the claimant and because of the injury she has engaged a person to assist her in the household work by paying a salary of Rs.400/- per month. P.W.2 is the Doctor. He has given the wound certificate, Ex.P-4. It is his evidence that he administered the treatment to the appellant and the appellant's leg was crushed in the accident and therefore, her leg was amputated below her knee. He has assessed the percentage of disability as 60%. The court below considering the evidence of P.W.2, P.W.3 and Ex.P-4 awarded Rs.1000/- towards pain and suffering, Rs.3,000/- for nourishment and Rs.20,000/- for permanent disability assessed at 60%.
4. The disability is permanent in nature. Therefore, the quality of life itself has undergone a drastic change. However, the court below had held there is no evidence to show that the appellant was earning any income. But, for a non-earning member, the notional annual income is Rs.15,000/-. It is undeniable that the appellant is permanently incapacitated from even taking care of her own personal needs or attending to ordinary household work. Usually, for 60% disability, Rs.60,000/- is awarded. The trial Court had awarded Rs.7,000/- for pain and suffering and Rs.3,000/- for nourishment.
5. In the circumstances of the case, when the appellant has given evidence that she has to engage a person for household work by paying Rs.400/- per month, the economic loss so suffered can also be taken into account.
6. In Wise V. Kaye (1958-65 ACJ 208) (Sellers,LJ) it is held thus:
"The first element.. is the physical injury itself.. the physical injury itself has always.. been a head of claim which has justified and required in law an award of damages according to the extent, gravity and duration of the injury".
7. In V.M.Koya Vs. A.R.Mohan (1991 ACJ 140), the claimant was a boy who suffered a catostropic injury, which resulted in permanent disability which included loss of memory, impaired nervous system etc., and the Division Bench of the Kerala High Court held that in personal injury case, there are three categories of general damages, which include consolatory damages. Consolatory damages are awarded for the pain and suffering of the claimant and the mental distress to console the plaintiff for having to suffer a condition which cannot be altered, which was caused by the accident.
8. It was observed therein that when the natural gifts, faculties and capabilities of a human being are deprived, damages should be assessed on the following basis:
(1) One should consider the gravity and degree of the deprivation. (2) Duration of the deprivation and (3) the Court should consider whether something extra should be given for the degree of awareness of deprivation. English courts have approved mental anxiety or compensation neurosis as a prope head for damages".
9. In Armsworth V. South Easter Railway Co. (1847 11 Jur 758 at 760), it is held as follows:
"Scarcely any sum could compensate a labouring man for the loss of a limb, yet you do not in such a case give him enough to maintain him for life... You are not to consider the value of existence as if you were bargaining with annuity office.... I advise you to take a reasonable view of the case and give what you consider fair compensation."
10. So, the question is, what is a just and reasonable compensation. In the same judgment cited above, the Division Bench observed that the victim or the claimants of the victim are only entitled to what is, in the circumstances, a fair compensation, fair both to the victim and to the tortfeasor. In a way the respondents should not be treated as wrongdoers. Some of them are only vicariously liable. When the amount is paid by the insurance company and the statute insists so, we have to consider the impact of the same.
11. In the present case we have seen that the claimants leg was crushed. The quality of her life has definitely undergone a diminishment and therefore, the claim of one lakh made by her cannot be said to be excess. Taking into account the percentage of disability, the continued economic loss that she suffers because she needs assistance and the consolatory damages that she is entitled, we are of the opinion that the claim made by the appellant for a compensation of Rs.1,00,000/- is just and reasonable. This amount will carry interest at 9 per cent per annum from the date of petition till realisation. Accordingly, the appeal is allowed.
12. The claim petition is ordered as prayed for.
To The Subordinate Judge, Ariyalur.
Copy to The Record keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.