IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.08.2010 C O R A M THE HONOURABLE MR. JUSTICE B.RAJENDRAN C.M.A. No. 1382 of 2007 and M.P. Nos. 2 and 3 of 2007 The Managing Director State Express Transport Corporation Ltd Pallavan Salai, Chennai .. Appellant/Respondent Versus Arumugam @ Kandhan .. Respondent/Petitioner Appeal under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 26.04.2006 made in M.A.C.T.O.P. No. 1131 of 2004 on the file of the Motor Accidents Claims Tribunal (Principal District Judge) at Pondicherry For Appellant : Mr.M.Krishnamoorthy For Respondent : Mr.V.Ajayakumar JUDGMENT The transport corporation has come forward with this appeal against the grant of a sum of Rs.4,50,000/- awarded by the court below in favour of the claimant/respondent herein as against a sum of Rs.6,00,000/- claimed in the claim petition. 2. The facts of the case was that on 26.03.2004 at about 9.30 pm when the claimant was riding the motor cycle bearing Registration No. PY 01 T 1108 along with one Rajavel, near ICICI Bank at Periya Mudaliarchavadi, driver of the bus bearing registration No. TN-01-N- 6076 belonging to the corporation was driven in a rash and negligent manner and dashed against the claimant. In the impact, the claimant sustained greivous injuries all over his body, fracture of the left knee, right leg, right hand wrist, little finger fracture, head injury near right ear. Immediately, he was taken to Government General Hospital, Pondicherry from where he was taken to Krupa Hospital, Pondicherry for better treatment and admitted on 27.03.2004. According to the claimant, at the time of accident, he was 36 years old and a pawn broker by profession. Therefore, for the injuries sustained in the road accident, the claimant claimed a compensation of Rs.6,00,000/-. 3. Before the court below, the claimant examined himself as PW1, Dr. R.V. Krishnakumar as PW2 and Exs. P1 to P21 were marked. On behalf of the Corporation, one Chinnadurai was examined as RW1 but no https://hcservices.ecourts.gov.in/hcservices/ documents were marked. The Court below, after consideration of the oral and documentary evidence as well as the fracture sustained by the claimant in his leg and hand,, awarded a sum of Rs.4,50,000/- as compensation to the claimant/ respondent herein which is questioned in this appeal by the insurance company. 4. The learned counsel for the appellant would submit that the corporation is not disputing the liability or the date, time and manner in which the accident had occurred, but only the quantum is questioned. The learned counsel for the appellant mainly would contend that the court below committed a gross error in awarding the compensation by applying multiplier method in a case of injury, which is legally not sustainable in law. 5. The learned counsel for the claimant specificically pleaded that the claimant sustained multiple injuries all over his body, including fracture and he was hospitalised from 26.03.2004 to 07.04.2004 for 13 days initially. Due to the accident, the movement of the claimant was totally restricted. Again, from 15.02.2005 to 22.02.2005, he was hospitalised which is evident that at the age of 36, he had undergone the ordeal of pain and suffering which is enormous. The claimant is engaged in pawn broking business. His main work is to collect the money advanced to the borrowers as loan and because of the accident, he was unable to perform his pawn broking business. Furthermore, in one of the legs, plates were inserted and he was totally immobilised. Even at the time of giving evidence before the Court below, he was assisted by attendants. Furthermore, the Doctor, PW2 has issued the disability certificate assessing his disability at 50%, however, the Tribunal has taken the disability only at 40% and awarded a meager compensation. The learned counsel for the claimant would specifically plead that already the claimant had underwent two surgeries and he has to undergo one more surgery for removal of the plates which were inserted. The Doctors have opined that at present the third surgery is not possible because the nails of the claimant in his legs are protruding and the surgery will result in enormous pain and suffering. According to the learned counsel for the claimant, this is not an ordinary case where the claimant sustained simple injuries, but the injuries sustained by the claimant is extraordinary which resulted in deprivation of his avocation and loss of earning power. Therefore, the learned counsel for the claimant prayed for confirming the award passed by the court below. 6. Heard both sides. The short point for consideration in this appeal is as to whether the award passed by the court below is fair and reasonable. 7. The only grievance put forth by the learned counsel for the appellant is that the court below, in a case of injury, ought not to have adopted multiplier method to arrive at the compensation amount. In this connection, the learned counsel for the appellant relied on the decision of the Division Bench of this Court reported in (M. Virudhagiri and others vs. Elangovan) 2004 (1) TN MAC 83 (DB) and an unreported decision of the Division Bench of this Court made in C.M.A. (NPD) No. 4034 of 2005 dated 21.03.2007. In both the cases, even though the disability was assessed at 38% and 70% respectively, https://hcservices.ecourts.gov.in/hcservices/ still, the Division Bench of this Court awarded compensation under the heading 'disability' at the rate of Rs.2,000/- per percentage of disability. In fact, in the second case, the Division Bench of Court dealt with a case relating to amputation and even in that case, the Division Bench fixed the compensation only by awarding Rs.2,000/- per percentage of disability. In this case, the claimant is only doing pawn broking business and by reason of the accident, the claimant has not lost his business and it could be continued with the help of others. Therefore, the learned counsel for the appellant prayed for reduction of the compensation amount. 8. The learned counsel for the respondent relied on the judgment of the Court below to show that the claimant was subjected to untold pain and hardship. In para-11 of the judgment of the court below, it was stated as follows:- "11. ....It is further stated in Ex.A7 that the injuries are grievous in nature and that x-ray of right thigh discloses fracture of femur and x- ray of right hand discloses fracture of 4th and 5th metacarpal bone and x-ray chest shows no fracture. The petitioner has taken treatment as inpatient for one day on 26.03.2004 at General Hospital, Pondicherry. Ex.A8 is the discharge summary, issued by Sri Sai Krupa Hospital, Pondicherry which discloses that the petitioner took treatment at Sri Sai Krupa Hospital, Pondicherry from 27.03.2004 to 07.04.2004 and operation was performed on 31.03.2004 and it has been disagnosed that the petitoner has suffered comminuted fracture shaft of femur-right side and fracture 5th and 4th metacarpal right side. Ex.A8 further goes to shows that surgery was performed on 31.03.2004 and under SA with continuous nasal oxygen support, fracture shaft of femur junction of upper 2/3rd and 1/3rd communition + two small pieces wee avascular and hence removed and the same was stabilized with 12 hole plate. PW1 has further given evidence that even after discharge, the doctor visited his house to give treatment and nearly after one year, the petitioner again complained of pain on the right femur and it was diagnosed that the surgery performed about a year back for the fracture of shaft of right femur has met with implant failure. The petitioner was therefore admitted in Sri Sai Krupa Hospital on 15.02.2005 where a surgery was performed on 16.02.2005 and he was discharged on 22.02.2005. Ex.A9 is the second discharge summary issued by the Sri Sai Krupa Hospital, Pondicherry, which discloses that though plating was done for the fracture of shaft of right femur and despite warnings, the petitioner started weight bearing early and started driving two wheelers, as a result of which, the implanted plate started bending, which in turn resulted in delayed union of the fracture (hypertrophic type). X-ray of https://hcservices.ecourts.gov.in/hcservices/ right thigh was taken and it showed that the implanted plate was getting further loosened and it was therefore planned to remove the implanted plate. Accordingly, on 16.02.2005 under general anesthesia, the implant was removed and the fracture was found to have fibrous union and hence, the fracture was stablized with interlocking nail and bone grafting was done. Thus, from Ex.A9 it is clear that even after one year, the fractured thigh bone has not united." 9. Further, in para-12, the Court below observed as follows:- "12. .....PW2 has assessed the permanent disability of 50%. There is shortening of right leg by 2 cms due to which, the petitioner limbs while walking. Even when the petitioner came to Court, he walked using walking stick and he was unable to stand and give evidence. Therefore, he gave evidence by sitting on one chair. The petitioner sustained fracture not only on shaft of right femur, but also on the 4th and 5th metacarpal bones, due to which, the fingers on the right hand of the petitioner has become crippled and the petitioner finds difficult to move about freely. Though the accident occurred in the year 2004, the petitioner is still unable to walk independently without any support and he finds difficult to squat. The movements in the hip and knee have also reduced, due to dislocation and mal-union of the right femer. 10. Relying on the aforesaid portion of the judgment of the court below, the learned counsel for the claimant contend that the claimant had undergone tremendous pain and suffering, loss of discomfort and his suffering still continues. The claimant is constrained to walk only with the help of an attender and with the help of walking stick. Under those circumstances, as the whole life of the claimant has changed drastically after the accident, he contended that the award passed by the court below is in consonance and commensurate with the pain and suffering undergone by the claimant. Even though the claimant was a pawn broker by profession necessarily he has to go around and collect the money lent to the borrowers and in the absence of which his entire pawn broking business will be adversely affected. Therefore, the learned counsel for the claimant would submit that even though the court below has adopted the multiplier theorey, it cannot by itself vitiates the award. 11. Even though the pain and suffering undergone by the claimant is enormous, as per the dictum laid down by the Honourable Supreme Court and the Division Bench of this Court mentioned supra, in a case of injury, adoption of multiplier method is impermissible. As rightly pointed out by the learned counsel for the appellant, in a case of injury, in order to determine the compensation amount, awarding a sum of Rs.2,000/- maximum per percentage of disability will be the fair and reasonable compensation. If a sum of Rs.2,000/- https://hcservices.ecourts.gov.in/hcservices/ per percentage of disability is granted, the claimant will be entitled to a sum of Rs.1,00,000/- and accordingly, the claimant is entitled to Rs.1,00,000/- for the disability he suffered. 12. As far as pain and suffering is concerned, the court below has awarded only Rs.15,000/-. Considering the nature of injuries sustained by the claimant, period of hospitalisation and two surgeries undergone by him, I am inclined to award a sum of Rs.60,000/- in favour of the claimant towards pain and suffering as against Rs.15,000/- awarded by the court below. 13. For extra nourishment, the court below granted only Rs.4,000/-. Taking into consideration the age of the claimant, period of treatment and the injuries sustained by him, I am inclined to enhance the amount under this head and accordingly, the claimant is entitled to a sum of Rs.15,000/- towards extra nourishment. 14. The court below awarded only Rs.6,000/- towards attendant charges as well as transportation charges. Considering the fact that by reason of the accident the claimant requires an attendant, particularly when the claimant uses a walking stick as an aid for his movement and the fact that transportation will be a difficult task for the claimant for the purpose of attending to his medical needs, I am inclined to award a sum of Rs.10,000/- for transportation charges and another Rs.10,000/- for attendant charges, which will be the fair and reasonable amount. 15. The Court below found that the claimant has produced medical bills to the tune of Rs.1,18,756/- but restricted it to Rs.1,18,000/-. This amount has to be sustained because already the claimant had undergone two surgeries and one more surgery has to be performed. Therefore, the sum of Rs.1,18,756/- claimed by the claimant has to be granted. 16. It is seen from the records that the court below has not granted any amount towards loss of income during the treatment period. The claimant has established that he is earning his livelihood as a pawn broker. While so for the loss of income during the period of treatment, the claimant has to be compensated. Therefore, I am inclined to award a lumpsum amount of Rs.25,000/- towards loss of income during the period of treatment. 17. The Court below has granted Rs.20,000/- under the head 'future inconvenience' which is not in consonance with law and therefore it is hereby set aside. Instead, the claimant is entitled to Rs.20,000/- towards loss of amenities, which the Court below failed to award. 18. In the result, the appeal filed by the transport corporation is partly allowed. No costs. Consequently, connected miscellaneous petitions are closed. The award passed by the Court below is reduced from Rs.4,50,000/- to Rs.3,60,000/- as mentioned below:- https://hcservices.ecourts.gov.in/hcservices/ Disability Rs.1,00,000.00 Pain and suffering Rs. 60,000.00 Extra Nourishment Rs. 15,000.00 Transportation charges Rs. 10,000.00 Attendant charges Rs. 10,000.00 Medical expenses Rs.1,18,756.00 Loss of income during treatment period Rs. 25,000.00 Loss of amenities Rs. 20,000.00 --------------------- Total Rs.3,58,756.00 Rounded off to Rs.3,60,000.00 --------------------- 19. It is stated that the transport corporation has deposited the entire amount. In case, if there is any excess amount over and above Rs.3,60,000/- with accrued interest at 7.5% per annum, the corporation is permitted to withdraw the same. The claimant is also permitted to withdraw the amount as determined by this Court in this appeal. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rsh To The Principal District Judge Motor Accidents Claims Tribunal Union Territory of Puducherry 1 cc To Mr.M.Krishnamoorthy, Advocate, SR.62086 1 cc To Mr.V.Ajaykumar, Advocate, SR.61665 CMA No. 1382 of 2007 KK (CO) RH (5.10.10) https://hcservices.ecourts.gov.in/hcservices/