Madras High Court
K.Kesavan vs Metropolitan Transport Corporation ... on 16 March, 2007
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.03 .2007 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.(NPD-S) No.450 OF 2001 K.Kesavan Appellant Vs. Metropolitan Transport Corporation Ltd., Chennai Division -1, Rep. by its Managing Director, Pallavan Salai, Chennai 600 002. Respondent Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award, dated 23.11.2000 in O.P.No.350 of 1996 on the file of Motor Accidents Claims Tribunal, V Judge, Small Causes Court, Chennai. For Appellant : Mr.T.G.Balachandran For Respondent : Mr.A.Babu J U D G M E N T
The claimant sustained crush injuries in an accident, which occurred on 22.11.1995. He was a mason, aged 35 years and claimed compensation of Rs.1,50,000/-. The Tribunal on evaluation of pleadings and evidence awarded compensation of Rs.72,000/- with interest at the rate of 12% per annum. Aggrieved by the quantum, he has preferred this appeal for enhancement of compensation.
2. Heard Mr.T.G.Balachandran, learned Counsel appearing for the appellant and Mr.A.Babu, learned Counsel appearing for the Transport Corporation.
3. Learned Counsel for the appellant/claimant submitted that the appellant was treated as inpatient in Government Royapettah Hospital between 23.11.1995 and 26.01.1996 for a period of 64 days. He contended that the Tribunal has failed to consider that the appellant has sustained 70% disability due to the left foot fracture and avulsion of skin of left foot. Considering the nature of injuries and period of treatment, he contended that the compensation of Rs.7,000/- for pain and suffering is inadequate.
Learned Counsel for the appellant further contended that the appellant was also treated as inpatient in R.S.P. Hospital, Chennai between 04.02.1996 and 18.02.1996 for the left foot avulsion injury. He submitted that the appellant could not engage himself as a mason atleast for a period of four months from 23.11.1995 to 18.02.1996 and therefore, lost his income during the period of treatment, for which the appellant has to be suitably compensated.
4. Learned Counsel for the respondent submitted that the Tribunal has awarded a just and reasonable compensation and it does not warrant enhancement.
5. It is evident from Ex.P6-Discharge Summary that appropriate treatment has been given to the appellant for the fracture and that for the avulsion and crush injury in the left foot, skin grafting was done on 09.01.1996. When the appellant was discharged from the hospital on 26.01.1996, he was advised to come for review after 2 days. Ex.P7, O.P. Treatment Sheet also supports the case of the appellant that he was put on antibiotics and continuous treatment was given for the avulsion injury.
For the disability of 70% assessed by the Doctor, the appellant has claimed compensation of Rs.50,000/-, for which the Tribunal has awarded Rs.25,000/-. Evidence shows that the appellant was treated in the hospital for a period of four months between 22.11.1995 and 18.02.2006. As a mason, there would be difficulty in climbing the building and engaging himself in the avocation. The crush injury, avulsion injury and fracture of calcaneum would have certainly disabled the appellant in engaging himself as a mason and he would have lost his earning atleast for a period of six months. Therefore, the award of Rs.15,000/- towards loss of earning is reasonable.
6. The Tribunal has awarded Rs.500/- as transportation charges as against the claim of Rs.1,000/-. Since the injury is in the knee and in the left foot, it could be presumed that he would have engaged a vehicle to go to the hospital and therefore, transportation charges is enhanced to Rs.1,000/-.
7. Considering the nature of injuries, period of treatment, the appellant would have certainly experienced pain and suffering at the time of accident and during the treatment for four months. Therefore, the award of Rs.7,000/- is enhanced to Rs.10,000/-.
8. The assessment of disability by P.W.2, Doctor at 70% has not been questioned before the Tribunal. The evidence of the Doctor has not been shattered. Following the decision in M.Bhagavathy vs. Thiruvalluvar Transport Corporation reported in 2005 (5) CTC 745, the appellant would be entitled to Rs.70,000/- as disability compensation.
9. A Full Bench of this Court in Cholan Roadways Corporation Ltd., Kumbakonnam vs. Ahmed Thambi and others in paragraph 19 has held as follows :
In order to avoid any future confusion to bring more clarity and transparency in the award of damages, it is necessary that the Tribunal, while awarding damages, should itemize the award under each of the head namely, pecuniary losses and non-pecuniary losses. In the non-pecuniary losses the Tribunal shall consider (a) pain and suffering, (b) loss of amenity, (c) stress, etc., (d) loss of prospect of marriage and under the head pecuniary losses, the Tribunal shall consider loss of earning capacity and loss of future earnings as one component apart from medical and other expenses and loss of earning, if any from the date of accident till the date of trial. When loss of earning capacity is compensated as also the non-pecuniary losses under (a) to (d), permanent disability need not be separately itemized. Following the above decision, the compensation of Rs.15,000/- for loss of earning power is liable to be deducted. The compensation under other heads shall remain unaltered.
10. In the result, the appellant/claimant is entitled to compensation of Rs.1,05,500/-, as apportioned hereunder :
(i) Loss of earning : Rs. 15,000.00
(ii) Transportation expenses: Rs. 1,000.00
(iii)Damages to clothes : Rs. 300.00
(iv) Medical expenses : Rs. 3,000.00
(v) Private medical treatment: Rs. 5,200.00
(vi) Extra nourishment : Rs. 1,000.00
(vii)Disability compensation: Rs. 70,000.00
(viii)Pain and suffering : Rs. 10,000.00
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Total : Rs.1,05,500.00
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The enhanced compensation of 48,500/- shall carry an interest of 7.5% interest per annum. The respondent is directed to deposit the enhanced compensation with proportionate accrued interest from the date of claim till the date of realisation, within a period of two months from the date of receipt of a copy of this order. The Civil Miscellaneous Appeal is disposed of accordingly. No costs.
Abe Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To
1. The Motor Accidents Claims Tribunal, V Judge, Small Causes Court, Chennai.
2. The Section Officer, V.R.Section, High Court of Madras, Chennai.
+ one cc to Mr. T.G. Balachandran, Advocate sr o. 16748 + one cc to M/s. A.Babu, Advocate sr no. 16705 AKR(CO) NM(14.05.07) C.M.A.(NPD-S) No.450 OF 2001