IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07-11-2008 CORAM THE HONOURABLE MR.JUSTICE S. PALANIVELU C.M.A.(N.P.D.) Nos.834 and 1031 of 2001 C.M.A.(NPD)No.834 of 2001 Sukumar James ... Appellant/Petitioner vs. 1. Minor Hakeem Sheriff [rep. by mother T.K. Fathima] 2. The Oriental Insurance Company, Ranipettai. 3. Tamilnadu State Transport Corporation Vellore Division, Vellore. ... Respondents/Respondents C.M.A.(NPD)No.1031 of 2001 1. Tamilnadu State Transport Corporation (Villupuram Division II) Ltd., rep. By its Managing Director Vellore. ... Appellant/3rd Respondent cause title accepted as per order dated 25.7.01 in CMP.11261/01 vs. 1. Sukumar James 2. Minor Hakeem Sheriff ... Respondent/Petitioner [rep. By mother T.K. Fathima] 3. The Oriental Insurance Company, Ranipettai. ... Respondents/Respondents 1 & 2 Civil Miscellaneous Appeals are filed under Section 173 of Motor Vehicles Act, 1988, against the Judgment dated 10.8.2000 made in MCOP No.296 of 1992 on the file of the Subordinate Judge, Motor Accident Claims Tribunal, Ranipet. For appellant in C.M.A.(NPD) No.834 of 2001 and for 1st Respondent in C.M.A.(NPD) No.1031 of 2001 : Mr. S. Udhayakumar https://hcservices.ecourts.gov.in/hcservices/ For 3rd Respondent in C.M.A.(NPD) No.834 of 2001 and for Appellant in C.M.A.(NPD) No.1031 of 2001 : Mr. A.Babu For R1 in C.M.A.No.(NPD)834/01 and for R2 in C.M.A.No.1031/01 : Mr.J.Chandran COMMON JUDGMENT On 05.05.1989 at about 9.50 a.m. while the claimant was travelling in Pattukottai Azhagiri Transport Corporation Bus bearing Registration No.TML 2914 along Vellore to Chennai Highways, near Arcot Nenthiyalam Village, a private bus belonging to first respondent insured with second respondent came in a rash manner from opposite side dashed against it, resulting in head on collision, in which both the bus drivers died. Many of the passengers in both the buses sustained injuries among whom the claimant was also one. He was removed to C.M.C. Hospital, Vellore and was treated. He was earning Rs.3,000/- p.m. by working as mechanic in Crane Manufacturing Company Private Limited situated at Kolar, Karnataka State. He was aged about 36 years. Respondents are responsible for the accident and hence he claimed Rs.6,00,000/- as compensation. 2. In the counter filed by the first respondent it is stated that the first respondent is a minor and hence all the averments mentioned in the petition have to be proved by the claimant himself. 3. In the counter filed by the second respondent it is stated that the accident occurred due to the rash and negligent driving of the Transport Corporation Bus Driver and hence the liability has to be fastened on the third respondent. The amount claimed is excessive and hence the petition has to be dismissed. 4. The third respondent in his counter has alleged that while the Corporation bus was proceeding near Nanthiyalam village, a lorry came from opposite direction and a private bus was overtaking the said lorry and on seeing it the driver of the Corporation Bus drove it slowly, however, the private bus has overtaken the lorry and dashed against the Transport Corporation bus. The accident took place only due to the negligence and rashness on the part of the first respondent driver. The amount claimed is excessive. Hence the petition has to be dismissed. 5. Considering the evidence available on record, the Tribunal has come to the conclusion that both the drivers were at fault at the time of accident. The theory of res ipsa loquitur applies to the very happening of the accident eventually depicting that both the drivers were responsible for the accident since it was a head on collision. If both the drivers or any one of them were cautious enough, the gruesome accident could have been avoided. In this regard, the observation https://hcservices.ecourts.gov.in/hcservices/ recorded by the Tribunal is confirmed. 6. As far as the quantum of compensation is concerned both the appellants are aggrieved. The claimant would contend that having lost his left leg below knee after amputation and suffered grievous injuries including numerous fractures in his body, the award amount of Rs.1,60,000/- is very meagre. 7. P.W.2 Doctor, who has issued Wound Certificate to the claimant would say that the claimant suffered fractures in both the femurs, left pelvic bone, and also in the right calvicle bone. It is his further evidence that in left ankle too, a fracture was found. In the hospital, surgeries were conducted to unite the fractures by fixing rods and screws. They also examined the blood flow by doppler process and found that below the left knee the major blood vessels lost the functions and there was no blood supply below knee, which compelled them to amputate below knee. 8. On 27.5.1989 further treatment was given. On 15.6.1989 they conducted skin grafting on the right ankle. On 19.10.1989, plate and screws fitted in right leg were removed, so also rod fixed on the left femur. On 5.12.1989 so also on 01.06.1993 two surgeries were undertaken to fix the rods and remove the rods on the pelvis area on the left femur respectively. Again rod was fixed in left femur on 1.11.2004 since another fracture occurred there. It is in his evidence that still pus is oozing from the femur bones resulting his inability to walk. The doctor says that the right ankle is fused and artificial leg is to be fixed for left leg and the possibility for walking is only 30%. The doctor has assessed permanent disability at 80%. 9. The medical evidence is sufficient to show that the sufferings experienced by the claimant do have grave repercussion to his avocation. P.W.1. The claimant deposes that even though he has spent Rs.1,24,000/- he produced medical bills only for Rs.98,804/-. As per his evidence he was working as Mechanic in Crane Manufacturing Company Private Limited, Kolar and was earning Rs.3,000/- per month. He further says that he took contract from various sugar mills at Bangalore and thereby he was earning Rs.5,000/- to Rs.6,000/- p.m. and that he could not undertake any avocation after the accident. He states that if he continuous to pursue those avocations he would have been earning Rs.9,000/- to 10,000/- p.m. 10. The Tribunal awarded a sum of Rs.20,000/- towards pain and sufferings; Rs.80,000/- for permanent disability and Rs.60,000/- for medical expenses. In view of this Court the quantum of compensation fixed as above is very low. 11. Learned counsel for the claimant would garner support from the Division Bench decision of this Court reported in 1999 ACJ 366 [M.Jaganathan vs. Pallavan Transport Corporation Ltd.] where the https://hcservices.ecourts.gov.in/hcservices/ identical facts are available. In that case the claimant aged about 45 years, was amputated left leg above knee and was drawing a sum of Rs.1,400/- p.m. as technician in the Railways. The Tribunal has awarded Rs.6,00,000/-, Division Bench modified it to Rs.4,50,000/-. Pertinent it is to state that Honourable Supreme Court has confirmed the above said decision of this High Court, by the Judgment reported in 2001 ACJ 5 [Pallavan Transport Corporation Ltd., vs. M. Jagannathan]. The Lordships are of the view that the High Court has considered various items of the claim giving reasons. 12. In 2001 ACJ 488 [K. Shankar vs. Pallavan Transport Corporation Ltd.,] a single Judge of this Court while dealing with amputation of right leg of a claimant against the award of Rs.1,47,000/- by the Tribunal, enhanced in appeal to Rs.4,50,000/-. In 2007(1) TN MAC 499 [The Managing Director, Metropolitan Transport Corporation Ltd., (Chennai Division-I), Chennai vs. Manikandan] this Court after considering various decisions on the subject, awarded a sum of Rs.4,73,442/- to a victim of Motor Vehicles Accident, who suffered fractures in vertebra (spinal cord) and other injuries. 13. A Division Bench of the Karnataka High Court in a decision in 2003 ACJ 332 [Bhaskar Rao and others vs. Arunkumar] while dealing with the case of amputation of left leg above knee of a person, aged about 28 years, Sales Officer in a Private firm, drawing Rs.4,500/- per month having permanent disability to the tune of 75%, awarded Rs.6,00,000/- against the award of Rs.8,50,000/- by the Tribunal. In 2003 ACJ 1444 [New India Assurance Co. Ltd., vs. K. Kartheeswaran and another] a Division Bench of this Court in a case of amputation of right leg above knee has awarded Rs.13,90,000/- as compensation. In 2003 ACJ 1822 [Prahlad Rai v. Pradeep Kumar and others] the High Court of Rajasthan at Jodhpur awarded Rs.5,00,000/- to the claimant, who suffered amputation of left leg above knee, aged about 25 years having permanent disablement of 70%. 14. It can be observed that the disabilities and the result of the other injuries has definitely disabled the claimant from pursuing his avocation as before. Hence, in this case it is more appropriate to adopt multiplier method. 15.Considering the evidence on record, this Court is of the considered opinion that for the purpose of granting compensation his monthly income could be fixed at Rs.2,750/-. As such, the annual loss of income is Rs.33,000/-. The Division Bench of this Court as decided in 2007 (2) TNMAC 399, Oriental Insurance Company, Puducherry Vs. K.Balasubramanian & Others, that in the case of injury resulting the total permanent disability, the question of deducting one third amount from the income of the injured will not arise. In this case also, it is patent that the claimant has been disabled to a larger extent in engaging himself any kind of avocation on account of amputation of leg. Applying the principle as laid down in the said decision, there is no https://hcservices.ecourts.gov.in/hcservices/ need to deduct one third in non-fatal cases since he is suffering permanent disability to the extent of 80%. Hence compensation awardable under the head Permanent Disability and loss of earning power is Rs.2,64,000/-. For Pain and Sufferings Rs.50,000/- could be awarded. He has lost his left leg, resultantly he has to loose enjoyments and amenities in his life. So it is appropriate to award a sum of Rs.50,000/- towards loss of amenities. For Medical Expenses the Tribunal has allowed Rs.60,000/- which can be added to the compensation. Rs.10,000/- each for Extra Nourishment and Transport Expenses may be allowed. Rs.10,000/- may be considered and granted to him for the expenses incurred for paying to the persons who attended him during the treatment period. In all, the claimant is entitled for Rs.4,54,000/- as compensation. 16. Learned counsel for Transport Corporation would submit that grant of rate of interest at 12% is not proper on the part of the Tribunal, for which learned counsel for the claimant resisted vehemently arming with a Division Bench decision of this Court reported in 2007 (1) 332 (DB) [National Insurance Company Ltd., Neyveli vs. William Jenifar Ajitha and others] in which learned Judges have confirmed the grant of interest at the rate of 12% for the award of compensation towards an accident which took place in the year 1994. The accident in the present case took place in the year 1989. Hence there is no wrong on the part of the Tribunal in having awarded interest at the rate of 12%. In fine, C.M.A.No.834 of 2001 is allowed in part enhancing compensation to Rs.4,54,000/- and the second and third respondents have to pay to the tune of 50% each along with interest at the rate of 7.5% for the enhanced compensation within eight weeks from the date of this order, before the Tribunal. C.M.A.No.1031 of 2001 is dismissed. In both appeals no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ggs / ssm To The Subordinate Judge, Motor Accident Claims Tribunal,Ranipet. 2.The Section Officer, V.R.Section, High Court, Madras. + 1 CC to Mr.S.Vijaya Kumar,Advocate,SR.NO.62751 C.M.A.(NPD)No.834 of 2001 KA(CO) and 1031 of 2001 EM/4.2.09 https://hcservices.ecourts.gov.in/hcservices/