IN THE HIGH Court OF JUDICATURE AT MADRAS DATED : 29.07.2010 C O R A M THE HONOURABLE Mr.JUSTICE B.RAJENDRAN CMA NO.441 of 2007 K.Govindaraj ... Appellant Vs 1.K.Thangavel 2.K.Mahalingam 3.The United India Insurance Company Limited, Represented by its Branch Manager, Dharapuram, Erode District. ... Respondents Prayer : Appeal filed under Section 173 of Motor Vehicles Act 1988 against the Judgment and Decree dated 19.07.2006 in M.C.O.P. No.329/2005 passed by the Motor Accident Claims Tribunal (Chief Judicial Magistrate Court) Erode. For Appellant : Mr.R.Nalliyappan For Respondent : Mr.K.S.Narasimhan J U D G M E N T This appeal is filed by the claimant against the Judgment and Decree dated 19.07.2006 in M.C.O.P. No.329/2005 passed by the Motor Accident Claims Tribunal (Chief Judicial Magistrate Court) Erode. 2. In the claim petition, it is stated that on 31.07.2005 at about 1.30 p.m. the appellant / claimant was travelling as a pillion rider in Bajaj CD 100 motor cycle bearing Regn.No.TN 33 AX 2703 which was driven by one Moorthy on the Erode to Poondurai Main Road, from east to west direction in a moderate speed and on the extreme left side of the road and a Mini Dor Auto bearing Regn. No.TN 33 AZ 3220 hailing from opposite direction namely west to east direction driven by the first respondent in a rash and negligent manner dashed against the claimant's motor cycle. In the result, the claimant and the rider of the motor cycle were thrown out of the road and sustained multiple grievous injuries. In the accident, the claimant sustained the following injuries - https://hcservices.ecourts.gov.in/hcservices/ [a] Lacerated crush injury right knee 5" x 4" x 1" with loss of skin and soft tissues over the anterior aspect ; [b] Compound communited shattered fracture patella with loss of segment of patella bone; [c] Compound communited fracture lateral condyle of femur with loss of bone fragments; [d] Total damage of articular suzaces patella and femur and was admitted to L.K.M. Hospital, Erode and he had been taking treatment continuously due to the damage at the right knee and bone fracture. Operations were performed and he could not attend the work for nearly six months. At the time of accident, the claimant was working as Pack Sizer at Kumar Sizing Mill, Manickkampalayam, Erode and earning a sum of Rs.5,000/- per month and as per his work, he has to necessarily stand for long time and because of the knee damage, the claimant was unable to work and his permanent disability has occurred only due to the accident. The doctor who examined him has assessed 38% permanent disability and taking into consideration this aspect, the tribunal as against the claim of Rs.4,00,000/-, has awarded only a sum of Rs.1,28,000/- under the following heads - [1] Pain & Suffering ... Rs. 15,000/- [2] Permanent disability ... Rs. 38,000/- [3] Loss of income ... Rs. 10,000/- [4] Loss of future earning capacity ... Rs. 25,000/- [5] Medical expenses ... Rs. 40,000/- ------------------- Total ... Rs.1,28,000/- ==========--------- Aggrieved against this very minimal compensation, the appellant/claimant has preferred appeal before this Court. 3. The learned counsel appearing for the respondent/Insurance Company would mainly contend that the claim of compensation for Rs.4,00,000/- is very high and the tribunal has granted not only for disability but also for loss of earning capacity and as per the Full Bench decision of this Court, the same is legally not sustainable. Further more, he would only contend that the award granted is not reasonable but in so far as the liability is concerned, it is admitted and the accident is also admitted. Only the quantum is disputed. But the Insurance company has not preferred any appeal as against the award granted by the tribunal. Therefore, he would contend that the award already granted by the tribunal could be confirmed. https://hcservices.ecourts.gov.in/hcservices/ 4. Heard both sides. 5. The only point for consideration in the appeal is whether the appellant/claimant is entitled for an enhanced compensation ? 6. From the evidence of the claimant as well as the evidence of the doctor, it is very clear that due to the accident the claimant has sustained multiple grievous injuries especially fractured injuries and as per the doctor certificate, the permanent disability is assessed at 38%, especially the injury which has caused to the knee and taking into consideration the nature of work the claimant was doing for long years in the sizing mills and by virtue of the accident has created a big trouble in doing his work. In so far as the claim of the claimant under the head loss of permanent disability for which he has claimed a sum of Rs.1,00,000/-, but the tribunal has awarded a sum of Rs.38,000/-. Without going into the multiplier method even on the basis of the report of the doctor itself, when we accept that there is 38% permanent disability, considering the age of the claimant that he is only 24 years, the compensation of Rs.2,000/- per percentage of disability could be easily ascertained. So, for 38% disability, Rs.76,000/- (38 x 2000) rounded of to Rs.80,000/- could be awarded. Therefore, Rs.38,000/- awarded under the head permanent disability is enhanced to Rs.80,000/-. In so far as the loss of earning during the treatment period, as per the evidence the claimant could not go to work for a period of five months. Therefore, loss of income during the treatment period Rs.15,000/- (Rs.3,000 x 5). But the tribunal has awarded a sum of Rs.10,000/- which is now enhanced to Rs.15,000/-. The tribunal has awarded a sum of Rs.25,000/- towards loss of earning capacity. The Full Bench decision has categorically held that when there is an amount granted under the head disability, there cannot be any duplication by awarding compensation under the head loss of earning capacity. Therefore, the grant of Rs.25,000/- awarded by the tribunal under the head loss of earning capacity is deleted. For pain and suffering, the tribunal has awarded a sum of Rs.15,000/- which is just and reasonable and the same is confirmed. In so far as the extra nourishment and transport charges is concerned, the tribunal has not awarded anything. Hence, an amount of Rs.5,000/- each is granted under the heading extra nourishment and transport charges respectively. Towards attender charges, the tribunal has not awarded anything and a sum of Rs.10,000/- is awarded under this head. The appellant/claimant has incurred medical expenses to the tune of Rs.90,000/- whereas the tribunal has awarded only a sum of Rs.40,000/- under this head. In the evidence of the doctor, he would say that the claimant requires further medical treatment and hence a further sum of 35,000/- could be awarded towards future medical expenses and the balance of the actual medical expenses. In fine, the award of the tribunal is enhanced to Rs.2,05,000/-, break-up as follows - https://hcservices.ecourts.gov.in/hcservices/ [1] Permanent disability ... Rs. 80,000/- [2] Pain & Suffering ... Rs. 15,000/- [3] Extra nourishment ... Rs. 5,000/- [4] Transport charges ... Rs. 5,000/- [5] Attender charges ... Rs. 10,000/- [6] Medical expenses and future medical expenses Rs. 75,000/- [7] Loss of income during the treatment period ... Rs. 15,000/- ------------------- Total ... Rs.2,05,000/- ========= 7. In the result, the Civil Miscellaneous Appeal is allowed enhancing the compensation from Rs.1,28,000/- to Rs.2,05,000/- alongwith interest @ 7.5% per annum from the date of petition till the date of deposit. The 3rd Respondent/Insurance company is directed to deposit the enhanced compensation amount within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the appellant/claimant is permitted to withdraw the same. It is represented by both sides that the award of the tribunal had already been deposited by the Insurance company and the same has been withdrawn by the appellant/claimant alongwith interest. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rgr To 1. The Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Erode. 2. The Section Officer, VR Section, High Court, Madras-104 1 cc To Mr.K.S.Narasimhan, Advocate, SR.55766 1 cc To Mr.R.Nalliyappan, Advocate, SR.56158 Judgment in CMA NO.441 of 2007 SGL (CO) RH (25.8.10) https://hcservices.ecourts.gov.in/hcservices/