IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.9.2008 CORAM:- The Hon'ble Mr. Justice R. SUDHAKAR C.M.A.No.2237 of 2004 ............ M. Bakthavatsalam .. Appellant/ Petitioner Vs. 1. The Commissioner, Corporation of Chennai, Chennai.3. 2. The United India Insurance Co. Ltd., rep. by its Divisional Manager, Third Party Claims Cell, 3rd floor, south India Co-operative Building, No.38 Anna Salai, Chennai.2. .. Respondent/Respondents Appeal filed under Section 173 of M.V. Act against the award and decree dated 9.9.2002 in MCOP No.222 of 1998 on the file of the Motor Accidents Claims Tribunal (II Judge, Court of Small Causes), Chennai. For Appellant : Mr. PL. Narayanan For Respondent : Mr. V. Bharathidasan – R1 No Appearance - R2 -------- JUDGMENT The claimant has filed this appeal seeking enhancement of compensation. 2. It is a case of injury. The first respondent is the owner of the offending vehicle and the second respondent is the insurer of the offending vehicle. Both the respondents have https://hcservices.ecourts.gov.in/hcservices/ been served and appear through counsel. On 29.9.2008, when the matter was listed, there was no representation on behalf of the respondents. Today i.e. On 30.9.2008, when the matter is listed, the learned counsel for the first respondent is present. There is no representation for the second respondent. 3. The accident in this case happened on 9.2.1997 at 12.00 noon. The injured claimant Bakthavatsalam, aged 34 years, working as a lorry driver in the first respondent corporation, was moving on his by-cycle inside the corporation lorry shed when he was hit by a lorry belong to the first respondent corporation driven by its driver in a rash and negligent manner. In that accident, the said Bakthavatsalam suffered the following injuries. (i) Fracture of left acetabulam with central dislocation of left hip. (ii) fracture of 7,8 and 9th left side ribs. (iii) fracture of right side tibia. 4. He was admitted in the Government General Hospital on 9.2.1997 and treated till 17.3.1997. On 9.2.1997, laprotomy procedure was done Then on 6.3.1997 orthotomy was done. Blood transfusion was also done. At the time of discharge, there was severe fluid discharge with blood mixed. He was also treated at R.S.R.S. Trinity Acute Care Hospital from 17.3.1997 to 19.3.1997. On the next occasion, he was treated at Ramachandra Hospital from 15.4.1997 to 19.4.1997. The diagnosis of Ramachandra Hospital reads as follows:- " Sciatic left side – inpingement of the left sciatic nerve due to fracture left acetabulam." Thereafter, he was once again admitted on 28.6.1997 and discharged on 15.7.1997 and the nature of treatment given and the advice on discharge reads as follows:- " Treatment Given:- A cemented total hip replacement with a reinforcement ring on the acetabular cup done on 29.6.97. Suture removal done on 10 POD. Advice on discharge:- * Arm chair life. * To use western commode only. * To avoid lying right lateral, squatting, sitting cross legged. * To continue walking with the help of walker. * Tab. Ponstan SOS. * Tab. Vitamic C1 bd. * Review with Prof. S.S.K. Marthandam after 1 month." https://hcservices.ecourts.gov.in/hcservices/ Thereafter, in the month of August, the claimant went to the same hospital for medical management. Again, he was admitted on 22.11.1997 for left knee pain and discharged on 23.11.1997. From the various medical records which were marked as Exs.A1 to A9, the nature of complaint of the injured claimant is as follows:- DIAGNOSIS:- Chronic Arthritis of left hip secondary central dislocation of left hip. This 32 year old male has come with c/o of pain left hip for the past three months. Pain increasing on walking and movements of the left hip radiating upto the left knee. No other significant medical history. Patient was previously involved in an RTA on 9.2.97 in which he had sustained a fracture of the acetabulam with central dislocation of the left hip and septic arthritis of the left knee with fracture right tibia. ON EXAMINATION: Both Asis at the same level. Left hip in neutral position. Knee in extension. Ankle in plantar position. Multiple Abrasions seen all over the left lower limb. Left side greater trochanter elevated. Bitrochanteric distance from the cubic symphysis is reduced on the left side. All movements of the left hip painfully restricted. X-ray left hip shows healed fracture." 5. From the documents filed as Ex.A6, it is apparent that he was admitted and discharged in the years 1998, 1999 and 2000. Ex.P10 shows that the medical management done by way of hip replacement failed and the injured claimant suffered further injuries when he fell down. Subsequently also, he was treated in the hospital. All these records have been filed as documents Exs.A10 and A11. The injured claimant, as stated earlier, has suffered serious disability. The disability has been assessed at 75% by the Doctor, who was examined as P.W.2. On behalf of the respondents, no oral and documentary evidence was let in. As against the claim of Rs.6,50,000/-, the Tribunal granted the following amount as compensation with interest at the rate of 9% p.a. Sl.No . Head Amount granted by the Tribunal 1 Loss of income during the period of treatment Rs. 1,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl.No . Head Amount granted by the Tribunal 2 Future loss of income Rs. 10,000/- 3 Extra nourishment Rs. 1,000/- 4 Medical expenses Rs.1,32,000/- 5 Pain and suffering Rs. 10,000/- 6 Permanent disability at 75% Rs. 30,000/- Total Rs.1,84,000/- 6. The claimant seeks enhancement of compensation stating that the nature of injury suffered is grievous in nature. He was admitted in the hospital more than 10 times and several surgical procedures have been done. Hip replacement done to him failed. He has suffered severe pain and suffering throughout the period of treatment. It is also stated that the pain and suffering continues even today. He has spent huge amount for travelling to the hospital for the purpose of treatment. It is not in dispute that the injured claimant was in hospital for 123 days on various occasions and thereafter, he was medically managed for a further period of 100 days as out patient. Further, it is fairly submitted by the learned counsel for the appellant that he has been given desk job by the Corporation, since his ability to work as before has been severely affected. 7. The learned counsel for the appellant contended that for the permanent disability at 75%, a meager sum of Rs.30,000/- has been granted. For the pain and suffering undergone, the meager sum of Rs.10,000/- granted by the Tribunal is a pittance. No amount has been granted for attender charges as he needs to be supported by another person through out the treatment period. The counsel stated that the amount granted for extra nourishment is also paltry. The claimant has suffered fracture of the hip joint and the multiple injuries are causing great discomfort in his day to day life. He is not able to sit or stand as before and therefore, there is a loss of amenities which has to be compensated. 8. The learned counsel for the first respondent – corporation stated that they have no say insofar as the quantum is concerned as the award is against the second respondent insurance company. 9. The nature of injuries and the prolonged period of treatment which has already been extracted above, certainly requires just compensation. But the Tribunal has granted a paltry sum on various heads except medical expenses. Insofar as https://hcservices.ecourts.gov.in/hcservices/ the enhancement of compensation is concerned, since the disability has been assessed at 75%, which has not been disputed, in view of the Division Bench decision of the Madurai Bench of this Court in Bhagavathy.M. - vs. - Thiruvalluvar Transport Corporation Limited reported in 2005(5) C.T.C. 745 for the disability assessed at 75%, the claimant is entitled to Rs.75,000/-. The Supreme Court in the decision reported in R.D. Hattangadi – Vs. - Pest Control India Pvt. Ltd., (1995 (1) SCC 551) held as follows:- " Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. On account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life." 10. Considering the long period of treatment, continues medical management taken by the injured claimant, the pain and suffering undergone during the period of treatment i.e. 4 months as inpatient, and further period of treatment for three months as out patient, the claimant is entitled to Rs.75,000/- towards pain and suffering. The number of episodes of travel to hospital for taking treatment, the claimant would have spent huge amount towards transport expenses. Therefore, he is entitled to a sum of Rs.40,000/- towards transport expenses. In view of serious nature of injuries, the claimant requires sufficient amount for extra nourishment to recover. Therefore, as against Rs.1,000/- granted by the Tribunal, the claimant is entitled to Rs.20,000/- towards extra nourishment. The claimant has suffered hip injury and the replacement of hip has failed. His movement was restrict and the same is supported by the evidence of the Doctor. Therefore, for loss amenities, the claimant will be entitled to a https://hcservices.ecourts.gov.in/hcservices/ sum of Rs.50,000/- as this will continue till the end of his life. The injured claimant would need the support of an attender during the period treatment and medical management and that has to be suitably compensated. Therefore, a sum of Rs.20,000/- is granted towards attender charges. The sum of Rs.1,32,000/- granted for medical expenses on the basis of the documents and a sum of Rs.11,000/- grated for loss of income are confirmed. In view of the various documents filed showing the treatment as inpatient and out patient, the claimant will be entitled to a sum of Rs.30,000/- for future medical expenses as he will have to take physiotherapy to maintain mobility. The said sum of Rs.30,000/- will bear no interest. Accordingly, the award of the Tribunal stands enhanced as follows:- Sl.No . Head Amount granted by the Tribunal Amount granted by this Court 1 Loss of income during the period of treatment Rs. 1,000/- Rs. 10,000/- 2 Future loss of income Rs. 10,000/- --- 3 Extra nourishment Rs. 1,000/- Rs. 20,000/- 4 Medical expenses Rs.1,32,000/- Rs.1,32,000/- 5 Pain and suffering Rs. 10,000/- Rs. 75,000/- 6 Permanent disability at 75% Rs. 30,000/- Rs. 75,000/- 7 Transport charges --- Rs. 40,000/- 8 Attender charges --- Rs. 20,000/- 9 Loss of amenities --- Rs. 30,000/- 10 Future medical expenses --- Rs. 30,000/- Total Rs.1,84,000/- Rs.4,32,000/- Since the accident happened in the year 1997 and the award was passed in the year 2002, the interest granted by the Tribunal at 9% stands confirmed. 11. In the result, the civil miscellaneous appeal is partly allowed as follows:- (i) The award of the Tribunal is enhanced to Rs.4,32,000/- from Rs.1,84,000/-. (ii) The enhanced award amount of Rs. 2,48,000/- will bear interest as follows:- Rs.2,18,000/- will carry interest at the rate of 7.5% p.a. from the date of filing of the petition to till the date of deposit. Rs.30,000/- for future medical expenses will bear no interest. https://hcservices.ecourts.gov.in/hcservices/ (iii) The second respondent is permitted to deposit the award amount with interest within a period of eight weeks from the date of receipt of this order. (iv) On such deposit, the claimant is entitled to withdraw the same as per the order of this Court. (v) There shall be no order as to costs. (vi) Consequently, M.P.No. 1 of 2008 is closed. Ra Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar To 1. The Motor Accidents Claims Tribunal, (II Judge, Court of Small Causes), Chennai 2.The Record Keeper, , VR Section, High Court, Madras. + 1 cc to Mr. V. Bharathidasan, Advocate, SR No.56647 + 1 cc to Mr. P. L. Narayanan, Advocate, SR No.56487 CMA No. 2237 of 2004 NTK(CO) SR/9.1.2009 https://hcservices.ecourts.gov.in/hcservices/