IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 31-10-2011 Coram THE HONOURABLE MR. JUSTICE B. RAJENDRAN C.M.A. No. 1649 of 2011 and Cross Objection No. 167 of 2011 and M.P. No. 1 of 2011 --- C.M.A. No. 1649 of 2011 The Branch Manager New India Assurance Company Limited No.16-A, G.S.T. Road Chengalpattu .. Appellant/2nd Respondent Versus 1. Murugammal 2. Soman .. Respondents/Claimant & (R2 remained exparte before the Tribunal) 1st Respondent Cross Objection No. 167 of 2011 Murugammal .. Cross Objector/Claimant Versus 1. The Branch Manager New India Assurance Company Limited No.16-A, G.S.T. Road Chengalpattu 2. Soman . Respondents/Respondents R2 remained exparte before the Tribunal) CMA No. 1649 of 2011:- Appeal filed under Section 173 of the Motor Vehicles Ac,t 1988 against the Judgment and Decree dated 15.03.2010 made in M.C.O.P.No. 266 of 2007 on the file of Motor Accident Claims Tribunal and Court of Chief Judicial Magistrate, Chengalpattu. Cross Objection No. 167 of 2011:- Cross Objection filed under Order 41 Rule 22 of CPC against the Judgment and Decree dated 15.03.2010 made in M.C.O.P.No. 266 of 2007 on the file of Motor Accident Claims Tribunal and Court of Chief Judicial Magistrate, Chengalpattu. https://hcservices.ecourts.gov.in/hcservices/ CMA No. 1649 of 2011 For Appellant : Mr. S. Manohar For Respondents : Mr. UM. Ravichandran for R1 Cross Objection No. 167 of 2011 For Cross Objector : Mr. UM. Ravichandran For Respondents : Mr. S. Manohar for R1 COMMON JUDGMENT The insurance company has come forward with the appeal questioning the correctness of the quantum of compensation awarded by the court below in favour of the claimant/first respondent in the appeal. The claimant has filed Cross Objection seeking enhancement of the compensation amount awarded by the Court below. 2. The claim petition was filed by the claimant contending that on 22.05.2007 at about 12.30 hours, when she was walking in the extreme left side portion of the road at Kuttanaicken Street, Ramapalayam, Chengalpattu, the driver of the lorry bearing Registration No. T.A.N. 1269, while taking reverse of the vehicle, hit the claimant without noticing her. In the impact, the claimant sustained multiple grevious injuries and admitted to Government Hospital, Chengalpattu and later she had also taken treatment at private hospitals. The claimant was admitted from 22.05.2007 to 06.07.2007 and continued to take treatment for the injuries. During the course of treatment, the right leg below the knee was amputated. The claimant was aged 33 at the time of accident and claims to be earning Rs.4,000/- per month through her self-employment. Therefore, for the injuries sustained in the accident, the claimant claimed Rs.7,00,000/- as compensation. 3. The insurance company resisted the claim petition by contending that the claim made under various heads are excessive, exorbitant and disproportionate. The court below, upon considering the oral and documentary evidence, awarded a sum of Rs.5,85,800/- as compensation to the claimant. Aggrieved by the same, the insurnace company has filed the appeal. Not satisfied with the quantum of compensation awarded,the claimant has filed Cross Objection for enhancement of the compensation amount. 4. The learned counsel appearing for the appellant/Insurance Company would contend that no doubt the injuries sustained by the claimant resulted in amputation of her right leg below knee. However, the Court below taken the monthly income of the claimant at Rs.4,500/- but even in the claim petition, the claimant herself has claimed only Rs.4,000/-. Therefore, the amount of Rs.4,500/- taken as income of the claimant per month by the court below is unsustainable and without any legal evidence. It is also not open to the court below to take the monthly income of the claimant at Rs.4,500/- contrary to the one pleaded by the claimant in the claim petition. Further, the Court below, by taking the disability sustained by the claimant at 60% applied multiplier method and awarded compensation. According to the https://hcservices.ecourts.gov.in/hcservices/ learned counsel for appellant, even as per the Workmen Compensation Act, for amputation of leg or loss of limb, the disability can be assessed only at 50%. Therefore, the appellant/ insurance company questions the amount of compensation awarded by the court below in favour of the claimant. 5. The learned counsel appearing for the claimant/Cross-Objector would contend that even though the Court below had taken the monthly income of the claimant at Rs.4,500/- the Court below has not awarded any amount towards loss of income during the period of treatment inasmuch as the claimant was hospitalised for a period of 1 ½ months in three different hospitals and even after discharge,the claimant was taking treatment for the injuries sustained by her. The Court below has not granted any amount towards future medical expenses inasmuch as the claimant's right leg below the knee was amputated, which requires replacement of caliper and constant medical attention. It is further stated that the court below has not awarded any amount towards attendant charges especially when the injuries sustained by the claimant had resulted in amputation of her right leg. The amount awarded under the heading pain and suffering is also very meager and therefore he prayed for enhancing the compensation amount. 6. I heard the counsel for both sides. The insurance company admits the date, time, manner in which the accident had taken place and also the liability to pay the compensation amount. The insurance company only questions the quantum of compensation awarded by the Court below. 7. As far as quantum is concerned, the Court below, taking into consideration that the injuries sustained by the claimant, being a lady, had resulted in amputation of her right leg below knee, had assessed the disability at 60%. The only argument of the counsel for the appellant/insurance company is that even as per the Workmen Compensation Act, for loss of leg or limb, the disability can be assessed only at 50% and therefore, the Court below is not right in taking the disability of the claimant at 60%. In this case, the claimant's right leg was amputated which had resulted in functional disability. Therefore, towards functional disability, the Doctor has stated she is unable to do the work as before. A lady, having lost her leg, definitely the functional disability can be 60%. In any event, the plea of the counsel for appellant to fix 50% disability in all cases cannot be accepted and it depends on facts and circumstances of each case. 8. The leanred counsel appearing for appellant pointed out that the Court below, without any evidence fixed the monthly income of the claimant at Rs.4,500/- when the claimant herself, in the claim petition, claimed that she was earning only a sum of Rs.4,000/- per month. Contra, the learned counsel for the claimant would contend that the claimant marked Ex.C10 dated 01.05.2007, salary certificate to show that she was earning Rs.4,500/- per month and therefore dehors the claim made by the claimant in the claim petition, the Court below is justified in taking the monthly income of the claimant at Rs.4,500/- per month based on Ex.C10. https://hcservices.ecourts.gov.in/hcservices/ 9. A perusal of the claim petition would reveal that the claimant herself claimed in the claim petition that she was earning Rs.4,000/- per month. Even though the claimant marked Ex.C10, salary certificate, as rightly pointed out by the counsel for appellant, the employer of the claimant or any one of the co-workers were not examined before the Court below to prove the same. Therefore, I hold that the court below is not justified in fixing the monthly income of the claimant at Rs.4,500/- per month. 10. The insurance company is not questioning the multiplier '17' adopted by the Court below. Therefore, if Rs.4,000/- is fixed as income of the claimant per month, the claimant is entitled to a sum of Rs.4,89,600/- (Rs.4,000 X 12 X 60/100 X17) rounded off to Rs.4,90,000/-, as against a sum of Rs.5,50,800/- awarded by the Court below. 11. The court below awarded Rs.25,000/- towards pain and sufering, which in my view is fair and reasonable and hence it is hereby confirmed. 12. The court below awarded a consolidated sum of Rs.10,000/- towards extra nourishment and medical expenses. Taking into consideration the claimant was hospitalised for more than 1 ½ months and taken treatment thereafter in private hospitals, I am inclined to award a sum of Rs.10,000/- towards extra nourishment alone. 13. For transportation charges, the court below has not awarded any amount. Taking into consideration that the claimant was taking treatment in 3 different hospitals for a period of 1 ½ months and also the nature and extent of treatment taken by her, I award a sum of Rs.10,000/- towards transportation charges. 14. As rightly pointed out by the counsel for claimant, the claimant being a lady, whose right leg was amputated below knee, the Court below ought to have awarded some amount towards attendant charges. I find force in the submission of the counsel for the claimant. At the time of accident, the claimant was 33 years, a lady engaged in coolie work and due to the accident, her right leg was amputated below knee. Therefore, during the period of treatment, the claimant should have been assisted by an attendant in discharging her normal chores. Therefore, I award a sum of Rs.20,000/- towards attendant charges, which will be fair and reasonable. 15. The learned counsel for the claimant would vehemently contend that the court below ought to have awarded future medical expenses especially when her right leg was amputated below knee. I accept the submission of the counsel for the claimant. Since the claimant was a young lady of 33 years at the time of accident and the amputation of her right leg below knee necessiated her to be in constant medical attention besides changing the caliper at regular interval, it is just and proper to award some amount towards future medical expenses. In this context, the learned counsel for the claimant also relied on the decision of this Court reported in (Sri Kumaresh vs. The Divisional https://hcservices.ecourts.gov.in/hcservices/ Manager, National Insurance Co. Ltd & another) 2011 (2) TN MAC 10 (SC) wherein the Honourable Supreme Court Court awarded a consolidated sum of Rs.1 lakhs towards medical expenses for whole life in an identical case of amputation of leg leg below knee. Therefore, following the decision of the Honourable Supreme Court mentioned supra and the other attendant facts and circumstance of the case, I award a sum of Rs.50,000/- towards medical expenses. 16. The learned counsel for the claimant brought to the notice of this Court that the court below has not awarded any amount towards amenities. Having regard to the fact that the claimant was a lady and her right leg was amputated below the knee at the age of 33 years, certainly, she will find it difficult to attend to her normal routine work with ease and comfort. Therefore, I award a sum of Rs.10,000/- towards loss of amenities. 17. Similarly, the court below has not awarded any amount towards loss of income during the period of treatment. Admittedly, the claimant was hospitalised for a period of 1 ½ months and she also taken treatment thereafter for a period of four months. Therefore, atleast for three months, she would not have attended to her work and lost her wages. Therefore, a sum of Rs.12,000/- (Rs.4,000 X 3) is hereby awarded towards loss of income during the period of treatment. 18. In the result, the appeal filed by the insurance company is dismissed and the Cross Objection filed by the claimant/Cross Objector is allowed enhancing the compensation awarded by the Court below from Rs.5,85,800/- to Rs.6,27,000/- as follows:- Disability : Rs.4,89,600.00 Pain and Suffering : Rs. 25,000.00 Future Medical expenses : Rs. 50,000.00 Extra Nourishment : Rs. 10,000.00 Transportation charges : Rs. 10,000.00 Loss of income during treatment period : Rs. 12,000.00 Attendant charges : Rs. 20,000.00 Loss of amenities : Rs. 10,000.00 --------------------- Rs.6,26,600.00 Rounded off to : Rs.6,27,000.00 --------------------- 19. The learned counsel appearing for the insurance company brought to the notice of this Court that since future medical expenses is awarded at Rs.50,000/- which is meant to be utilised by the claimant for her future treatment, the same need not carry any interest. Such an argument is plausible. Further, there is no evidence available to show that as on date, the claimant has purchased any caliper or the existing caliper has been removed. Therefore, I hold that the insurance company need not pay any interest for the sum of Rs.50,000/- awarded towards future medical expenses. The amount of Rs.50,000/- will however carry interest from the date of award till the deposit. 20. In view of the enhancement of the compensation amount, the https://hcservices.ecourts.gov.in/hcservices/ insurance company is directed to deposit the enhanced amount with interest at the rate of 7.5% per annum from the date of claim petition till the date of accident, except for Rs.50,000/- awarded towards future medical expenses, which will carry interest from the date of award namely 15.03.2010 till deposit. The enhanced compensation amount shall be deposited by the insurance company within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant/Cross Objector is permitted to withdraw the compensation amount with accrued interest. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rsh To The Chief Judicial Magistrate Motor Accident Claims Tribunal Chengalpattu +1cc to Mr.UM.Ravichandran, Advocate Sr 65764 +1cc to Mr.S.Manohar, Advocate Sr 65855 CK(CO) km/12.11. CMA No. 1649 of 2011 Cross.Obj. 167 of 2011 https://hcservices.ecourts.gov.in/hcservices/