IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 4.9.2008 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR C.M.A.No.2717 of 2008 and M.P.No.1 of 2008 The Managing Director, Tamilnadu State Transport Corporation Ltd., Coimbatore Division-II, Chennimalai Road, Erode-1. ... Appellant/Respondent vs. M.Ashwin Kumar. ... Respondent/Petitioner Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 26.10.2007 passed in M.C.O.P.No.119 of 2006 on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate Court), Tiruvallur. For appellant : Mr.N.Anand ----- JUDGMENT State Transport Corporation is on appeal challenging the award dated 26.10.2007 passed in M.C.O.P.No.119 of 2006 on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate Court), Tiruvallur. 2. At the time of admission, the only contention canvassed by the learned counsel for the appellant is on the quantum of compensation. https://hcservices.ecourts.gov.in/hcservices/ 3. The finding of negligence on the part of the driver of the appellant transport corporation and the liability fixed on the appellant to compensate the claimant is not seriously disputed by the counsel for the appellant and the same confirmed. 4. It is a case of injury. The brief facts of the case are as follows:- The accident in this case happened on 12.5.2004. The injured claimant Ashwin Kumar, aged 19 years, a student, was travelling by a van from Kodaikanal to Chennai. The said van was hit by the appellant transport corporation bus driven by its driver in a rash and negligent manner. In that accident he suffered fracture of both bones on the right forearm, for which he took initial medical attention at City Medical Hospital, Dindigul. Thereafter, he was taken to Apollo Hospital, Chennai. After surgical proceedings, he was again medically managed at City Medical Hospital, Dindugul. He claimed that several surgeries were performed to rectify the fracture suffered by him. Further, as a consequence of the accident, the main nerve of the right hand was cut and therefore, he lost his ability to use his right hand as before. According to the injured claimant, it has affected his ability to write examination and pursue his higher studies. The injured claimant further stated that he is unable to get employment also because he is not able to use his right arm. Therefore, the injured claimant filed a claim for compensation in a sum of Rs.10,12,800/-. 5. In support of the claim, the injured claimant was examined as P.W.1. One Doctor Thiyagarajan was examined as P.W.2. The following documents were marked:- Ex.P-1 is the F.I.R., Ex.P-2 is the discharge summary, Ex.P-3 is the neurology report, Ex.P-4 is the disability certificate, Ex.P-5 are the medical bills, Ex.P-6 are the receipts for transportation expenses, Ex.P-7 is a letter, Ex.P-8 is the mark list, Ex.P-9 is the account details, Ex.P-10 is the photo, Ex.P-11 is the X-Ray and Ex.P-12 is the disability certificate. One Jagannathan, Inspector, Accident Section, Transport Corporation was examined as R.W.1. On behalf of the appellant transport corporation no document was marked. https://hcservices.ecourts.gov.in/hcservices/ 6. In view of the injuries as above, considering the age, the long period of treatment, which is almost a month and the number of surgeries performed and the disability assessed at 90% as per Ex.P- 12, the disability certificate, the Tribunal awarded the following amounts as compensation with interest at 7.5%:- Sl.N o. Head Amount granted by the Tribunal 1 Medical Expenses Rs.2,65,200/- 2 Pain and suffering Rs. 50,000/- 3 Extra nourishment Rs. 4,000/- 4 Loss of amenities and discomfort Rs. 50,000/- 5 Transportation expenses Rs. 7,500/- 6 Disability assessed at 90% Rs. 90,000/- Total Rs.4,66,700/- 7. The contention of the counsel for the appellant is that for the disability assessed at 90%, the compensation granted by the Tribunal at Rs.90,000/- is on the higher side and the compensation is excessive. The sum of Rs.50,000/- granted towards loss of amenities and discomfort, cannot be justified. He also stated that the sum of Rs.50,000/- granted for pain and suffering is on the higher side. 8. The court has to keep in mind the decision of the Apex Court in R.D.Hattangadi – vs. - Pest Control (India) Pvt. Ltd., reported in 1995 ACJ 366, wherein the Apex Court held as follows:- "Broadly speaking, while fixing the 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 as non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be https://hcservices.ecourts.gov.in/hcservices/ suffered in the 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." The above said decision of the Apex Court is followed by a Division Bench of this Court in United India Insurance Co. Ltd., - vs. - Veluchamy and another (P.SATHASIVAM,J., as he then was) reported in 2005 ACJ 1483. 9. Keeping in mind the above decision of the Apex Court, this court is not inclined to interfere with the quantum of compensation and reduce the compensation for the following reasons:- (i) The major component of the compensation is for the medical expenses in a sum of Rs.2,65,200/- and that is not disputed. (ii) The disability assessed at 90% was not seriously objected to before the Tribunal and that is recorded by the Tribunal in paragraph 8 of the award. (iii) The injured claimant has suffered fracture of both bones on the right arm and the nerve has been cut off thereby the capacity to use his right arm has been totally lost and consequently he is unable to use his right hand and also is unable to use his right hand for the purpose of writing examination. (iv) The injured claimant has undergone some surgical procedures and treatment at Dindigul and at Chennai. Therefore, there will be pain and suffering during the course of treatment and at the time of recovery and the pain will continue to the right hand throughout his life time. Therefore, the sum of Rs.50,000/- granted towards pain and suffering is justified. (v) Since there is a fracture on the right hand and the nerve is cut which has resulted in inability to use the right hand, there will be loss of amenities and discomfort. Hence, the injured claimant is entitled to compensation for loss of amenities and for discomfort, which will be for his life time. https://hcservices.ecourts.gov.in/hcservices/ (vi) In this case no amount has been granted towards attender charges and no amount has been granted for future medical expenses, like physiotherapy, etc., so as to help the young boy to recover partially though not fully. (vii) Meagre amount has been granted for extra nutrition in a sum of Rs.4,000/-. (viii) Even if the sum of Rs.50,000/- granted for loss of amenities and discomfort is marginally higher, the said sum can be adjusted for attender charges, future medical expenses and for extra nutrition. (ix) Considering the nature of injuries suffered at the young age of the claimant, the award of the Tribunal does not require further reduction. 10. Since the accident happened in the year 2004 and the award is of the year 2007, the interest granted at 7.5% stands confirmed. 11. Finding no merit, the Civil Miscellaneous appeal is dismissed at the admission stage. Counsel for the appellant transport corporation prays eight weeks time to deposit the award amount and is granted. On such deposit claimant is entitled to withdraw the same as per order of the Tribunal. Consequently, connected miscellaneous petition is closed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar ts To 1.The Chief Judicial Magistrate, (Motor Accidents Claims Tribunal) Tiruvallur. +1 cc to Mr.N.Anand, Advocate, SR.No.50022 C.M.A.No.2717 of 2008 4.9.2008 TEJ(CO) BK(24/10/2008) https://hcservices.ecourts.gov.in/hcservices/