IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.01.2011 C O R A M THE HONOURABLE MR. JUSTICE B.RAJENDRAN C.M.A. No. 974 to 977 of 2008 Mookan .. Appellant in CMA No. 974} Duraisamy .. Appellant in CMA No. 975} Rathinam .. Appellant in CMA No. 976} Natesan .. Appellant in CMA No. 977} Claimants Versus 1. M/s. Koti Orthopetic and Trauma Care Speciality Hospital Chairman Chidambaram Street Villupuram – 605 602 2. M/s. United India Insurance Co Ltd Villupuram 3. P. Ganesan 4. The New India Assurance Co Ltd. .. Respondents in all the appeals/ Trichy Respondents (Since R3 & R.4 was dismissed before the Tribunal, they are given up) Appeals filed under Section 173 of the Motor Vehicles Act, 1988 against the Order and Decreetal Order dated 18.09.2007 made in MCOP No. 279, 284, 289 and 290 of 2006 on the file of the Motor Accident Claims Tribunal/Principal District Judge, Perambalur. For Appellant : Mr. S. Kamadevan in all the appeals For Respondents : Mr. S.J. Jagadev for R2 in all the appeals R.1 : No Appearance COMMON JUDGMENT All these appeals arise out of the common judgment dated 18.09.2007 passed by the court below in MCOP No. 279, 284, 289 and 290 of 2006 filed by the claimants/appellants herein. The appellants in all these appeals are seeking enhancement of compensation for the injuries sustained by them in one and the same accident. Therefore, by consent of counsel for both sides, all these appeals are taken up together and disposed of by this common judgment. https://hcservices.ecourts.gov.in/hcservices/ 2. In all these cases, the insurance company admits the date, time and manner in which the accident had occurred as also the liability to pay the compensation amount. The insurance company has not preferred any appeal as against the compensation awarded by the court below in favour of the claimants/ appellants herein. 3. C.M.A. No. 974 of 2008 arises out of M.C.O.P. No. 279 of 2006 filed by the claimant Mookan. The claim petition was filed on the ground that on 26.03.2005 when the claimant was traveling in the Ambulance vehicle bearing Registration No. TN 31 A 4521 as a passenger along with others, in the Chennai – Trichy NH 45 road near Kallur bridge, the driver of the ambulance attempted to over take an on-going bus. At that time, the driver of the the lorry bearing Registration No. TN-51-A-1194 came in the opposite direction in a rash and negligent manner and in order to avoid a head-on-collision, the driver of the ambulance attempted to divert the vehicle, but the ambulance was hit against a tamarind tree. Due to the accident, the claimant sustained injuries in his left eye brow, left leg, chest and fracture in his hip. The claimant was immediately taken to Government Hospital, Vridachalam, where after first-aid, he was referred to Government Hospital, Trichy, and admitted as an in- patient there for seven days. At the time of accident, the claimant was aged 35 years, a cloth merchant and earning Rs.4,500/- per month. Therefore, for the injuries sustained by the claimant, the claim petition was filed claiming compensation of Rs.3,00,000/-. 4. In order to substantiate the claim petition for compensation, the claimant in MCOP No. 279 of 2006 examined himself as PW2 and deposed that due to the accident, he sustained injuries on his left side of the eye and his eye sight was affected; his cheek bone was disfigured and right hip bone fractured. He also deposed that he was totally admitted as an in-patient for 11 days in the hospital and spent nearly Rs.10,000/- for medical expenses. PW11, Doctor was examined, who assessed the disability of the claimant at 40% under Ex.P33. According to the claimant, even though the wound certificate issued by the Doctor was produced wherein the disability sustained by him was assessed at 40%, the court below granted only a meager amount of Rs.41,620/- as against Rs.3,00,000/- claimed in the claim petition, hence, the present appeal. 5. C.M.A. No. 975 of 2008 arises out of M.C.O.P. No. 284 of 2006 filed by the claimant Duraisamy. The claim petition was filed claiming compensation for the injuries sustained in the very same road accident that took place on 26.03.2005 when he was traveling in the Ambulance vehicle as a passenger along with others. Due to the accident, the claimant sustained fracture in the right leg ankle and chest. The claimant was immediately taken to Government Hospital, Vridachalam, where after first-aid, was referred to Government Hospital, Trichy, where he was admitted as an in-patient for 15 days. At the time of accident, the claimant was aged 37, a cloth merchant and earning Rs.4,500/- per month. Therefore, for the injuries sustained by the claimant, the claim petition was filed claiming compensation of Rs.3,00,000/-. 6. In order to substantiate the claim petition, the claimant in MCOP No. 284 of 2006 examined himself as PW4 and deposed that due https://hcservices.ecourts.gov.in/hcservices/ to the accident, he sustained fracture injuries on his right knee bone for which a surgery was performed and steel plates were inserted. He also sustained injuries in his left thigh. He also deposed that he was totally admitted as an in-patient for 21 days in the hospital and spent nearly Rs.40,000/- for medical expenses. PW11, Doctor was examined, who deposed that the claimant sustained fracture atBB middle 1/3 right leg with interlocking nail was malunited; right knee flexion is reduced at 45 degree and ankle dorsiflexion is reduced by 30 degree; plantar flexion is reduced by 30 degree; the claimant will find it difficult to sit cross legged, squat, walk for long distance and stand for a long time. Therefore, he assessed the disability of the claimant at 46% under Ex.P35. According to the claimant, even though the wound certificate issued by the Doctor was produced wherein the disability sustained by him was assessed at 46%, the court below granted only a meager amount of Rs.74,000/- as against Rs.3,00,000/- claimed in the claim petition, hence, the present appeal. 7. C.M.A. No. 976 of 2008 arises out of M.C.O.P. No. 289 of 2006 filed by the claimant Rathinam. The claim petition was filed claiming compensation for the injuries sustained in the very same road accident that took place on 26.03.2005 when he was traveling in the Ambulance vehicle as a passenger along with others. Due to the accident, the claimant sustained multiple and grievous injuries all over the body, including fracture in the left chest and hip. The claimant was immediately taken to Government Hospital, Vridachalam, where after first-aid, was referred to Government Hospital, Trichy, where he was admitted as an in-patient for 5 days. Thereafter, the claimant also has taken treatment at a private nursing home. At the time of accident, the claimant was 44 years old, a cloth merchant and earning Rs.4,500/- per month. Therefore, for the injuries sustained by the claimant, the claim petition was filed claiming compensation of Rs.3,00,000/-. 8. In order to substantiate the claim petition, the claimant in MCOP No. 289 of 2006 examined himself as PW6 and deposed that in the accident, he sustained fracture on his shoulder bones; his chest was disfigured; suffered injuries in his hip. Further, due to ribs bone fracture, he suffers from normal breathing. He also deposed that he was totally admitted as an in-patient for 5 days in the hospital and also taken treatment privately. PW11, Doctor was examined, who deposed that the claimant sustained left side clavical at junction m2/3 and L1/3 was malunited; fracture at left side ribs from 3rd to 7th malunited; left shoulder abduction is reduced at 60 degree and rotation is reduced by 15 degree; left lung expansion is reduced by 1.5 cm; tenderness at left side chest; fracture of rib site; overhead abduction is not possible. Therefore, the claimant will have difficulty in lifting and carrying heavy weight with the help of left hand. Therefore, he assessed the disability of the claimant at 49% under Ex.P37. According to the claimant, even though the wound certificate issued by the Doctor was produced wherein the disability sustained by him was assessed at 49%, the court below granted only a meager amount of Rs.51,815/- as against Rs.3,00,000/- claimed in the claim petition, hence, the present appeal. 9. C.M.A. No. 977 of 2008 arises out of M.C.O.P. No. 290 of https://hcservices.ecourts.gov.in/hcservices/ 2006 filed by the claimant Natesan. The claim petition was filed claiming compensation for the injuries sustained in the very same road accident that took place on 26.03.2005 when he was traveling in the Ambulance vehicle as a passenger along with others. Due to the accident, the claimant sustained multiple and grievous injuries all over his body, fracture injuries on his left chest ribs, hip and left leg. The claimant was immediately taken to Government Hospital, Vridachalam, where after first-aid, was referred to Government Hospital, Trichy, where he was admitted as an in-patient for 15 days. Thereafter, the claimant also taken treatment at a private nursing home. At the time of accident, the claimant was 60 years, a cloth merchant and earning Rs.3,500/- per month. Therefore, for the injuries sustained by the claimant, the claim petition was filed claiming compensation of Rs.3,00,000/-. 10. In order to substantiate the claim petition, the claimant in MCOP No. 290 of 2006 examined himself as PW7 and deposed that in the accident, he sustained injuries on his left legs, knee, left shoulder joint damaged and fracture in both ribs bone. PW11 Doctor was examined, who deposed that the claimant sustained fracture in the 2nd to 8th left side ribs which was malunited; chest expansion is reduced by 1.5 cm; tenderness at fracture site. Therefore, the claimant will have difficulty in forward bending, lifting weight and in doing his day to day activities. Therefore, he assessed the disability of the claimant at 39% under Ex.P35. According to the claimant, even though the wound certificate issued by the Doctor was produced wherein the disability sustained by him was assessed at 35%, the court below granted only a meager amount of Rs.28,025/- as against Rs.3,00,000/- claimed in the claim petition, hence, the present appeal. 11. The learned counsel appearing for the claimants/appellants would contend that the compensation awarded by the court below is not in consonance with the nature and extent of injuries suffered by the claimant. The court below, without regard to the disability certificate issued by the Doctors in favour of the claimants had award a very meager amount as compensation and therefore, he seeks for enhancement of the compensation. 12. Per contra, the learned counsel for the insurance company would contend that though the claimants have suffered fracture, they have been hospitalised for a shorter period. All the claimants have claimed themselves as cloth merchants and they have not filed any documentary evidence to prove their monthly income. In the absence of any evidence to prove the monthly income, the compensation amount awarded by the court below is fair and reasonable and he prayed for dismissal of the appeals. 13. Heard the counsel for both sides. The point for consideration in these appeals are whether the compensation amount awarded by the court below is meager and liable to be enhanced, as prayed for by the claimants/appellants. CMA No. 974 of 2009:- 14. At the time of accident, the claimant was aged 35 years, a https://hcservices.ecourts.gov.in/hcservices/ cloth merchant and earning Rs.4,500/- per month. For the injuries sustained by the claimant, he was hospitalised for 11 days as an in- patient. The claimant examined himself as PW2 and deposed that due to the accident, he sustained injuries on his left side of the eye and his eye sight was affected; his cheek bone was disfigured and right hip bone fractured. He also deposed that he spent nearly Rs.10,000/- for medical expenses. PW11, Doctor was examined, who assessed the disability of the claimant at 40% under Ex.P33. In his evidence, PW11 would categorically depose that the claimant sustained fracture at superior, interior portion of the public ramus and it was malunited; the right hip flexion is reduced at 30 degree and rotation is reduced at 15 degree. The claimant also sustained fracture at 6th ribs on left side and the chest expansion is reduced by 1 cm. Therefore, the claimant will find it difficult in sitting cross legged and squat, walk for long distance and to stand for a long time. The Doctor assessed the disability at 40% under Ex.P33. 15. Taking into consideration the over all evidence available on record, the court below reduced the disability from 40% to 30% by stating that the claimant is unable to fully satisfy the Court as regards his actual sufferings which hampered his earning capacity. Even though the court below is justified in reducing the percentage of disability to 30%, the court below awarded Rs.1,000/- per percentage of disability and awarded only Rs.30,000/- which is not only meager but not in consonance with the nature and extent of injuries sustained by the claimant. As held by the Division Bench of this Court, the court can grant a maximum sum of Rs.2,000/- per percentage of disability and if the maximum sum of Rs.2,000/- is awarded, the claimant is entitled to (Rs.2,000 X 30) Rs.60,000/- towards disability, which will be the fair and reasonable amount. 16. The Court below awarded Rs.616/- towards medical bills, which are based on medical bills produced and therefore, the same is hereby confirmed. 17. The Court below awarded Rs.2,000/- for extra nutrition and Rs.2,000/- for transportation. Considering the nature of injuries sustained by the claimant and period of hospitalisation the amount awarded under this head has to be enhanced and accordingly, the claimant is entitled to Rs.5,000/- each towards extra nutrition and transportation. 18. Similarly, the court below awarded Rs.2,000/- for loss of income. Even though the claimant had not produced any proof of his income, as per the decision of the Honourable Supreme Court, even a coolie can earn a sum of Rs.3,000/- per month and taking into consideration of the same, I award a sum of Rs.5,000/- to the claimant towards loss of income for the period of treatment. 19. For pain and suffering, Rs.5,000/- was awarded. The claimant was hospitalised for 11 days and sustained grievous injuries and the disability was also assessed by the Doctor at 40%. Therefore, considering all the above aspects, the amount under this head is enhanced to Rs.15,000/-. 20. The court below has not awarded any amount towards https://hcservices.ecourts.gov.in/hcservices/ amenities. Considering the over all facts and circumstance of the case, I am inclined to award Rs.4,000/- towards amenities. 21. In the result, CMA No. 974 of 2008, arise out of MCOP No. 279 of 2006 is partly allowed and the claimant is entitled to a total compensation of Rs.95,000/- as against the sum of Rs.41,620/- awarded by the court below, as follows:- Disability : Rs. 60,000.00 Medical Expenses : Rs. 616.00 Extra Nutrition : Rs. 5,000.00 Transportation : Rs. 5,000.00 Loss of income during treatment period : Rs. 5,000.00 Pain and Suffering : Rs. 15,000.00 Amenities : Rs. 4,000.00 ------------------ Rs. 94,616.00 Rounded off to : Rs. 95,000.00 ------------------ C.M.A. No. 975 of 2008 22. The claimant was aged 37 at the time of accident. He examined himself as PW4 and deposed that due to the accident, he sustained fracture injuries on his right knee bone. He was admitted as an in-patient for 21 days in the hospital. The claimant had also taken treatment at a private hospital namely Annai Hospital and the discharge summary issued by the said hospital is Ex.P16. During the course of his hospitalisation, a surgery was performed on 02.07.2005 and steel plates were inserted. PW11, Doctor was examined, who deposed that the claimant sustained fracture at BB middle 1/3 right leg with interlocking nail was malunited; right knee flexion is reduced at 45 degree and ankle dorsiflexion is reduced by 30 degree; plantar flexion is reduced by 30 degree; the claimant will find it difficult to sit cross legged, squat, walk for long distance and stand for a long time. Therefore, he assessed the disability of the claimant at 46% under Ex.P35 as the movement of the claimant is restricted due to the fracture injury. 23. Even though the court below accepted the percentage of disability as assessed by the Doctor at 46%, the court below awarded only Rs.1,000/- per percentage of disability and awarded Rs.46,000/- which is not only meager but not in consonance with the nature and extent of injuries sustained by the claimant. As held by the Division Bench of this Court, the court can grant a maximum sum of Rs.2,000/- per percentage of disability and if the maximum sum of Rs.2,000/- is awarded, the claimant is entitled to (Rs.2,000 X 46) Rs.92,000/- towards disability, which will be the fair and reasonable amount. 24. The Court below awarded Rs.3,000/- for extra nutrition and Rs.3,000/- for transportation. Considering the nature of injuries sustained by the claimant and period of hospitalisation the amount awarded under this head has to be enhanced and accordingly, the claimant is entitled to Rs.10,000/- towards extra nutrition and Rs.5,000/- towards transportation. https://hcservices.ecourts.gov.in/hcservices/ 25. The court below awarded Rs.4,000/- for loss of income during the period of treatment. Even though the claimant had not produced any proof of his income, as per the decision of the Honourable Supreme Court, even a coolie can earn a sum of Rs.3,000/- per month and taking into consideration of the same, I award a sum of Rs.10,000/- to the claimant towards loss of income for the period of treatment taking into consideration that the claimant had underwent a surgery and hospitalised for more than 21 days and he could not have worked for atleast three months. 26. The claimant produced medical bills to the tune of Rs.35,125/-. Even though the medical bills were produced, the court below reduced the compensation under the head medical expenses to Rs.18,000/- on the ground no Doctor was examined to prove the same. Merely because no Doctor was examined and in the absence of any contra evidence to show that the medical bills are not genuine, the court below ought not to have reduced the compensation under this head. Therefore, I hold that the claimant is entitled to a sum of Rs.35,125/- as medical expenses, which are based on medical bills filed by him. 27. In the result, CMA No. 975 of 2008, arise out of MCOP No. 284 of 2006 is partly allowed and the claimant is entitled to a total compensation of Rs.1,52,000/- as against the sum of Rs.74,000/- awarded by the court below, as follows:- Disability : Rs. 92,000.00 Medical Expenses : Rs. 35,125.00 Extra Nutrition : Rs. 10,000.00 Transportation : Rs. 5,000.00 Loss of income during treatment period : Rs. 10,000.00 -------------------- Rs.1,52,125.00 Rounded off to : Rs.1,52,000.00 -------------------- C.M.A. No. 976 of 2008 28. The claimant was 44 years old, a cloth merchant and earning Rs.4,500/- per month. The claimant examined himself as PW6 and deposed that in the accident, he sustained fracture on his shoulder bones; his chest was disfigured; suffered injuries in his hip. Further, due to ribs bone fracture, he suffers from normal breathing. The claimant was admitted as an in-patient for 5 days in the hospital and also taken treatment privately. PW11, Doctor was examined, who deposed that the claimant sustained left side clavical at junction m2/3 and L1/3 was malunited; fracture at left side ribs from 3rd to 7th malunited; left shoulder abduction is reduced at 60 degree and rotation is reduced by 15 degree; left lung expansion is reduced by 1.5 cm; tenderness at left side chest; fracture of rib site; overhead abduction is not possible. The claimant will have difficulty in lifting and carrying heavy weight with the help of left hand. Therefore, the Doctor had assessed the disability of the claimant at 49% under Ex.P37. 29. The Court below reduced the disability at 35%, but awarded only Rs.1,000/- per percentage of disability and a sum of Rs.35,000/- https://hcservices.ecourts.gov.in/hcservices/ was granted towards permanent disability, which is not only meager but not in consonance with the nature and extent of injuries sustained by the claimant. As held by the Division Bench of this Court, the court can grant a maximum sum of Rs.2,000/- per percentage of disability and if the maximum sum of Rs.2,000/- is awarded, the claimant is entitled to (Rs.2,000 X 35) Rs.70,000/- towards disability, which will be the fair and reasonable amount. 30. The claimant produced medical bills to the tune of Rs.14,313/- and the same was ordered by the court below, hence, it is hereby confirmed. 31. The court below awarded Rs.500/- for loss of income during the period of treatment, which is very meager. Even though the claimant had not produced any proof of his income, as per the decision of the Honourable Supreme Court, even a coolie can earn a sum of Rs.3,000/- per month and taking into consideration of the same, I award a sum of Rs.5,000/- to the claimant towards loss of income for the period of treatment. 32. For pain and suffering, the amount awarded by the court below at Rs.500/- is very meager. Taking into consideration of the nature and extent of injuries sustained by the claimant, I enhance the amount awarded under this head to Rs.5,000/-. 33. The Court below awarded Rs.500/- for extra nutrition and Rs.1,000/- for transportation. Considering the nature of injuries sustained by the claimant and period of hospitalisation the amount awarded under these heads has to be enhanced and accordingly, the claimant is entitled to Rs.10,000/- towards extra nutrition and Rs.5,000/- towards transportation. 34. In the result, CMA No. 976 of 2008, arise out of MCOP No. 289 of 2006 is partly allowed and the claimant is entitled to a total compensation of Rs.1,10,000/- as against the sum of Rs.51,815/- awarded by the court below, as follows:- Disability : Rs. 70,000.00 Medical Expenses : Rs. 14,313.00 Extra Nutrition : Rs. 10,000.00 Transportation : Rs. 5,000.00 Pain and Suffering : Rs. 5,000.00 Loss of income during treatment period : Rs. 5,000.00 -------------------- Rs.1,09,313.00 Rounded off to : Rs.1,10,000.00 -------------------- C.M.A. No. 977 of 2008 35. At the time of accident, the claimant was 60 years, a cloth merchant and earning Rs.3,500/- per month. Due to the accident, the claimant sustained multiple and grievous injuries all over his body, fracture injuries on his left chest ribs, hip and left leg. He was admitted as an in-patient for 15 days and subsequently taken treatment at a private nursing home. The claimant examined himself as PW7 and deposed that in the accident, he sustained injuries on his https://hcservices.ecourts.gov.in/hcservices/ left legs, knee, left shoulder joint damaged and fracture in both ribs bone. PW11 Doctor was examined, who deposed that the claimant sustained fracture in the 2nd to 8th left side ribs which was malunited; chest expansion is reduced by 1.5 cm; tenderness at fracture site. The claimant will have difficulty in forward bending, lifting weight and in doing his day to day activities. Therefore, he assessed the disability of the claimant at 39% under Ex.P35. 36. The Court below accepted the disability assessed by the Doctor at 25%, but awarded only Rs.1,000/- per percentage of disability and a sum of Rs.25,000/- was granted towards permanent disability, which is not only meager but not in consonance with the nature and extent of injuries sustained by the claimant. As held by the Division Bench of this Court, the court can grant a maximum sum of Rs.2,000/- per percentage of disability and if the maximum sum of Rs.2,000/- is awarded, the claimant is entitled to (Rs.2,000 X 25) Rs.50,000/- towards disability, which will be the fair and reasonable amount. 37. The claimant produced medical bills to the tune of Rs.526/- and the same was ordered by the court below, hence, it is hereby confirmed. 38. The Court below awarded Rs.500/- for extra nutrition and Rs.1,000/- for transportation. Considering the nature of injuries sustained by the claimant and period of hospitalisation