IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.11.2008 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR C.M.A.Nos.3686 to 3690 of 2008 and M.P.No.1 of 2008 in all the appeals C.M.A.No.3686 of 2008:- United India Insurance Co. Ltd., Salem-7. ... Appellant/2nd Respondent in Tribunal below lower court vs. 1.Ganesan, 2.Balasubramaniam @ P.P.L.Mani. ... Respondents/Petitioner and 1st respondent in Tribunal below lower court C.M.A.No.3687 of 2008:- United India Insurance Co. Ltd., Salem-7. ... Appellant/2nd Respondent in Tribunal below lower court vs. 1.Jayam, 2.Balasubramaniam @ P.P.L.Mani. ... Respondents/Petitioner and 1st respondent in Tribunal below C.M.A.No.3688 of 2008:- United India Insurance Co. Ltd., Salem-7. ... Appellant/2nd Respondent in Tribunal below vs. 1.Saraswathi, 2.Balasubramaniam @ P.P.L.Mani. ... Respondents/Petitioner and 1st respondent in lower court Tribunal below. C.M.A.No.3689 of 2008:- United India Insurance Co. Ltd., Salem-7. ... Appellant/2nd Respondent in Tribunal below https://hcservices.ecourts.gov.in/hcservices/ vs. 1.Minor Deepana Soopiya, represented by her next friend mother Mohana. 2.Balasubramaniam @ P.P.L.Mani. ... Respondents/Petitioner and 1st respondent in Tribunal below C.M.A.No.3690 of 2008:- United India Insurance Co. Ltd., Salem-7. ... Appellant/2nd Respondent vs. 1.Mohana. 2.Balasubramaniam @ P.P.L.Mani. ... Respondents/Petitioner and 1st respondent in Tribunal below All the five Civil Miscellaneous Appeals are filed under Section 173 of Motor Vehicles Act, 1988 against the common award and decrees dated 28.12.2006 passed in M.C.O.P.Nos.12, 13, 14, 15 and 16 of 2003 respectively, on the file of the Motor Accidents Claims Tribunal (Sub Court), Attur. For appellant in all the appeals : Mr.S.Arunkumar For 1st respondent in all the appeals : Mr.P.Jagadeesan COMMON JUDGMENT United India Insurance Company has filed these appeals challenging the common award dated 28.12.2006 passed in M.C.O.P.Nos.12, 13, 14, 15 and 16 of 2003 respectively, on the file of the Motor Accidents Claims Tribunal (Sub Court), Attur. 2. At the time of admission, Mr. Mr.P.Jagadeesan, counsel appears for the first respondent/caveator in all the appeals. 3. All the five appeals relate to claim for injuries suffered by the claimants while they were travelling in an Ambassador Car, insured with the appellant insurance company. https://hcservices.ecourts.gov.in/hcservices/ 4. The brief facts of the cases are as follows:- The accident in these cases happened on 27.9.2002. Five persons, belonging to a family, who are claimant in these cases, were travelling in an Ambassador Car bearing Registration No.TN 27-Q-7187. They were proceeding from Attur to Thirupathi on pilgrimage. When they were nearing Attur to Kallakurichi main road at about 4.30 a.m., the Ambassador Car hit a stationary lorry bearing Registration No.TNF-7120. In that accident, the occupants of the Ambassador Car and the driver sustained grievous bleeding injuries. They were initially treated at Government Hospital, Attur and thereafter at Government Mohan Kumara Mangalam Medical College Hospital, Salem. Subsequently, some of them were treated at various private hospitals, Salem. Each one of the injured persons claimed compensation for the injury suffered in the accident. The injured occupants of the Ambassador Car filed claims for compensation against the owner and insurer of the Ambassador Car stating that the driver of the Ambassador Car was rash and negligent in driving the Ambassador Car and was responsible for the accident. The details of the claimants, their age, occupation, period of treatment, injury suffered, monthly income, etc., are set out hereunder:- MC OP No. CMA No. Name of the injured claimant and nature of injury suffered Age of the injured claim- ant Occu- pation of the injured claim-ant Period of treat-ment Monthly income of the injured claimant Total Compensation claimed by the injured claimant 12 of 2003 3686 of 2008 Ganesan – (1) Left Clavicle fracture, (2) Dislocation of left hip joint and other injuries 39 years Driving school instruc- tor owning a driving school 27.9.02 to 22.10.02 at Attur Govern- ment Hospital and R.L. Hospital Rs.7,000/- Rs.5,00,000/- 13 of 2003 3687 of 2008 Jayam – (1)Bleeding injuries on the left foot, nose, right hand and left forehead, (2)Cut injuries 5 cm x ½ cm above the left eye brow, (3)Fracture at compal bone and skull and (4)Both eyes are swelling. 51 years Agricul- turist and Milk vendor 27.9.02 to 9.10.02 at Attur Govern- ment Hospital and R.L. Hospital Rs.6,000/- Rs.5,00,000/- https://hcservices.ecourts.gov.in/hcservices/ MC OP No. CMA No. Name of the injured claimant and nature of injury suffered Age of the injured claim- ant Occu- pation of the injured claim-ant Period of treat-ment Monthly income of the injured claimant Total Compensation claimed by the injured claimant 14 of 2003 3688 of 2008 Saraswathi - (1)Bleeding injuries at forehead, nose, left eye and left chin, (2)Grievous injuries at bilateral frontal lobe haemoragic contusion, (3) Maxilla bone fracture, (4)Mandible bone fracture, (5)Depressed and communited fracture frontal bone (6)Bifrontal SDHC Phenmonphalar (7)Loss of 3 teeth in the lower jaw. 49 years Agricu- lturist and Milk vendor 27.9.02 to 9.10.02 at Attur Govern- ment Hospital and R.L. Hospital Rs.6,000/- Rs.10,00,000/- 15 of 2003 3689 of 2008 Minor Deepana Soopiya – (1)Deep cut injury over the thyroid region, (2)Multiple lacerations over the neck, (3)Deep cut injury over the chin, (4)Deep cut injury over the scalp, (5)Lacerated wound over the left elbow joint, (6) Lacerated wound over the left shoulder joint, (7) Laceration over the left forearm 10 years, Student 27.9.02 to 9.10.02 at Attur Govern- ment Hospital and R.L. Hospital --- Rs.3,50,000/- https://hcservices.ecourts.gov.in/hcservices/ MC OP No. CMA No. Name of the injured claimant and nature of injury suffered Age of the injured claim- ant Occu- pation of the injured claim-ant Period of treat-ment Monthly income of the injured claimant Total Compensation claimed by the injured claimant 16 of 2003 3690 of 2008 G.Mohana – (1)Cut injury 8 cm length x ½ cm delp over the right side fore head (2) Laceration 10 cm x 3 cm over the left leg below the knee joint 29 years Tailor 27.9.02 to 29.9.02 at Attur Govern- ment Hospital and R.L. Hospital Rs.5,000/- Rs.1,50,000/- 5. In support of the claims, the injured claimants Ganesan, Jayam, Saraswathi and Mohana were examined as P.Ws.1, 2, 3 and 4 respectively. One of the claimants, is a minor aged 10 years represented by her mother Mohana P.W.4. The Doctors were examined as P.Ws.5 to 8, they spoke about the injury and the disability. Exs.A-1 to A-62 were marked on behalf of the claimants. On the part of the appellant, the second respondent before the Tribunal, no oral or documentary evidence was let in. 6. As regards the negligence, the claimants placed before the Tribunal, the F.I.R., Ex.A-1, rough sketch Ex.A-5, charge-sheet Ex.A-6 and the judgment of the criminal court Ex.A-7 in which it is held that the driver of the Ambassador Car pleaded guilty and paid the fine. Therefore, the Tribunal came to the conclusion that the negligence was on the part of the driver of the Ambassador Car and the liability was consequently fixed on the appellant insurance company. No oral or documentary evidence was let in on behalf of the appellant insurance company, the second respondent before the Tribunal. Therefore, the finding of the Tribunal on negligence and liability stands confirmed. 7. At the time of admission, the only contention raised by the learned counsel for the appellant in all the appeals is on the quantum of compensation awarded by the Tribunal. 8. Based on the oral and documentary evidence filed on behalf of the claimant, in support of the plea for compensation, the Tribunal granted the following amounts as compensation with interest at 7.5%:- https://hcservices.ecourts.gov.in/hcservices/ MCOP No. CMA No. Amount granted by the Tribunal 12 of 2003 3686 of 2008 Injuries Rs. 17,000/- Permanent disability assessed to 30% Rs. 51,000/- Loss of future earning power Rs. 70,000/- Pain and sufferings Rs. 20,000/- Extra nourishment Rs. 15,000/- Medical expenses Rs. 20,000/- Loss of income Rs. 15,000/- Transport expenses Rs. 2,000/- Total Rs. 2,10,000/- 13 of 2003 3687 of 2008 Injuries Rs. 16,000/- Pain and sufferings Rs. 20,000/- Disability assessed at 20% Rs. 42,000/- Loss of income Rs. 15,000/- Loss of future earning power Rs. 60,000/- Transport expenses Rs. 2,000/- Extra nourishment Rs. 15,000/- Medical expenses Rs. 15,000/- Total Rs. 1,85,000/- 14 of 2003 3688 of 2008 Injuries Rs. 28,000/- Pain and sufferings Rs. 25,000/- Permanent disability assessed at 80% (35% by the dentist and 45% by the neurologist Rs. 91,000/- Medical expenses Rs. 1,02,025/- Loss of income Rs. 28,000/- Transport expenses Rs. 11,150/- Extra nourishment Rs. 20,000/- Loss of future earning power Rs. 60,000/- Total Rs. 3,65,175/- https://hcservices.ecourts.gov.in/hcservices/ MCOP No. CMA No. Amount granted by the Tribunal 15 of 2003 3689 of 2008 Injuries Rs. 7,000/- Pain and sufferings Rs. 17,000/- Medical expenses Rs. 20,000/- Transport expenses Rs. 1,000/- Extra nourishment Rs. 5,000/- Total Rs. 50,000/- 16 of 2003 3690 of 2008 Injuries Pain and sufferings Medical expenses Loss of income Transport expenses Extra nourishment Total Rs. 2,000/- Rs. 20,000/- Rs. 5,000/- Rs. 5,000/- Rs. 1,000/- Rs. 2,000/- Rs. 35,000/- 9. C.M.A.No.3686 of 2008:- In this case, the contention of the learned counsel for the appellant is that for the disability assessed at 30% in respect of the self employed driving school instructor, the amount granted under the head of permanent disability and loss of earning power cannot be sustained, in view of the Full Bench decision of this Court in Cholan Roadways Corporation Ltd., -v.- Ahmed Thambi reported in 2006(4)C.T.C. 433. The separate compensation for injury is not justified as suitable compensation is granted for disability. 10. Counsel for the claimant stated that if the amount under loss of earning power and injuries is disputed, then, reasonable compensation should be granted on other heads. 11. Based on the nature of injuries suffered and the period of treatment and for the disability assessed at 30%, the Tribunal has granted Rs.51,000/- towards disability. The marginally higher compensation granted for disability will compensate for the shortfall on other heads. However, the sum of Rs.70,000/- granted towards loss of future earning power and Rs.17,000/- for injuries is set aside in view of the Full Bench decision of this Court cited supra. No amount was granted by the Tribunal for attender charges, hence a sum of Rs.7,500/- is granted on this head. Accordingly, the award of the Tribunal is modified as follows:- https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Head Amount granted by the Tribunal Amount granted by this Court 1 Injuries Rs. 17,000/- --- 2 Permanent disability assessed to 30% Rs. 51,000/- Rs. 51,000/- 3 Loss of future earning power Rs. 70,000/- --- 4 Pain and sufferings Rs. 20,000/- Rs. 25,000/- 5 Extra nourishment Rs. 15,000/- Rs. 15,000/- 6 Medical expenses Rs. 20,000/- Rs. 20,000/- 7 Loss of income Rs. 15,000/- Rs. 15,000/- 8 Transport expenses Rs. 2,000/- Rs. 5,000/- 9 Attender charges --- Rs. 7,500/- Total Rs. 2,10,000/- Rs. 1,38,500/- 12. C.M.A.No.3687 of 2008:- In this case, the contention of the learned counsel for the appellant is that for the disability assessed at 20% in respect of the self employed agriculturist and milk vendor, the amount granted under the head of permanent disability and loss of earning power cannot be sustained, in view of the Full Bench decision of this Court in Cholan Roadways Corporation Ltd., -v.- Ahmed Thambi reported in 2006(4)C.T.C. 433. The sum of Rs.16,000/- granted for injuries is not justified as compensation under disability is granted. 13. Counsel for the claimant stated that if the amount under loss of earning power and injury is disputed, then, reasonable compensation should be granted on other heads. 14. On going through the nature of injuries suffered and the period of treatment and for the disability assessed at 20%, the Tribunal granted a sum of Rs.42,000/- towards disability. Therefore, the marginally higher compensation for disability will compensate for the shortfall to any other head. However, the sum of Rs.60,000/- granted towards loss of future earning power and the sum of Rs.16,000/- granted for injuries is set aside in view of the Full Bench decision of this Court cited above. However, considering the number of injuries which the claimant suffered on the head and the eye brow area and the period of treatment undergone, the claimant will be entitled to further sum of Rs.10,000/- towards pain and sufferings. Towards transport expenses, a further sum of Rs.3,000/- is granted. Towards attender charges, a sum of Rs.7,500/- is granted. Accordingly, the award of the Tribunal is modified as follows:- https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Head Amount granted by the Tribunal Amount granted by this Court 1 Injuries Rs. 16,000/- --- 2 Pain and sufferings Rs. 20,000/- Rs. 30,000/- 3 Disability assessed at 20% Rs. 42,000/- Rs. 42,000/- 4 Loss of income Rs. 15,000/- Rs. 15,000/- 5 Loss of future earning power Rs. 60,000/- --- 6 Transport expenses Rs. 2,000/- Rs. 7,500/- 7 Extra nourishment Rs. 15,000/- Rs. 15,000/- 8 Medical expenses Rs. 15,000/- Rs. 15,000/- 9 Attender charges --- Rs. 7,500/- Total Rs. 1,85,000/- Rs. 1,32,000/- 15. C.M.A.No.3688 of 2008:- In this case, the claimant is a self employed agriculturist and milk vendor. She suffered fracture on the head and jaw and loss of teeth. The disability has been assessed at 35% by the dentist and 45% by the neurologist. 16. In this case, the only contention of the learned counsel for the appellant is that the Tribunal has granted compensation both for permanent disability and loss of future earning power, which cannot be sustained, in view of the Full Bench decision of this Court in Cholan Roadways Corporation Ltd., -v.- Ahmed Thambi reported in 2006(4)C.T.C. 433. The further compensation for injuries is not justified as compensation for disability is granted. 17. Counsel for the claimant on the other hand stated that the injuries suffered by the claimant is serious. There is injury to the jaw and there is loss of teeth also. The claimant is unable to work as an agriculturist and milk vendor as before and there is difficulty in chewing food, because of the jaw injuries. The disability has been assessed at 35% by the dentist and at 45% by the neurologist which shows that she cannot lead a normal life and earn as a normal person. He pleaded that the compensation may be granted as one component taking into consideration the disability and loss of earning capacity by following the multiplier. If multiplier of 5 is adopted and income is taken as Rs.3,000/- per month, then based on multiplier method, the loss of earning capacity will be almost the same as of the two heads if added together. Therefore, the sum of Rs.91,000/- granted towards permanent disability and the sum of Rs.60,000/- granted towards loss of future earning power is granted as one component i.e., towards loss of earning power in the future. The sum of Rs.28,000/- granted towards injuries cannot be separately sustained in view of the above and it is set aside. All the other amounts are not disputed. Accordingly, the award of the https://hcservices.ecourts.gov.in/hcservices/ Tribunal is modified as follows:- Sl. No. Head Amount granted by the Tribunal Amount granted by this Court 1 Injuries Rs. 28,000/- --- 2 Pain and sufferings Rs. 25,000/- Rs. 25,000/- 3 Permanent disability assessed at 80% (35% by the dentist and 45% by the neurologist Rs. 91,000/- --- 4 Loss of earning capacity Rs. 60,000/- --- 5 Permanent disability coupled with loss of earning power --- Rs.1,51,000/- 6 Medical expenses Rs. 1,02,025/- Rs. 1,02,025/- 7 Loss of income Rs. 28,000/- Rs. 28,000/- 8 Transport expenses Rs. 11,150/- Rs. 11,150/- 9 Extra nourishment Rs. 20,000/- Rs. 20,000/- Total Rs. 3,65,175/- Rs. 3,37,175/- 18. C.M.A.No.3689 of 2008:- In this case, the injured claimant is a minor aged 10 years. He suffered deep cut injury over thyroid region, lacerated injury in the neck, cut injury over the chin and scalp and elbow joint. Considering the young age of the claimant, the quantum of compensation appears to be just and reasonable as the major component is only towards medical expenses and it is as per the records. Therefore, the sum of Rs.50,000/- granted as total compensation stands confirmed. 19. C.M.A.No.3690 of 2008:- In this case, 29 years old self employed tailor suffered injuries. The injuries are simple in nature and there is actually no disability. Considering these aspects, for pain and suffering as against Rs.20,000/-, the claimant is entitled to Rs.10,000/-. The other amounts are not disputed. Accordingly, the award of the Tribunal is modified as follows:- Sl. No. Head Amount granted by the Tribunal Amount granted by this Court 1 Injuries Rs. 2,000/- Rs. 2,000/- 2 Pain and sufferings Rs. 20,000/- Rs. 10,000/- 3 Medical expenses Rs. 5,000/- Rs. 5,000/- 4 Loss of income Rs. 5,000/- Rs. 5,000/- 5 Transport expenses Rs. 1,000/- Rs. 1,000/- 6 Extra nourishment Rs. 2,000/- Rs. 2,000/- Total Rs. 35,000/- Rs. 25,000/- https://hcservices.ecourts.gov.in/hcservices/ 20. In all cases, the interest at 7.5% granted by the Tribunal stands confirmed, since the accident happened in the year 2002 and the award is of the year 2006. 21. C.M.A.No.3686 of 2008:- In the result, the Civil Miscellaneous Appeal is allowed in part as follows:- (i) The award of the Tribunal is reduced to Rs.1,38,500/- from Rs.2,10,000/-. (ii) The interest granted by the Tribunal at 7.5% is confirmed. (iii) Counsel for appellant seeks for eight weeks' time to deposit the balance award amount and it is granted. (iii) On such deposit, the counsel for the claimant prays for withdrawal of the award amount as determined by this Court and it is granted. (iv) There will be no order as to costs. (v) Consequently, connected miscellaneous petition is closed. 22. C.M.A.No.3687 of 2008:- In the result, the Civil Miscellaneous Appeal is allowed in part as follows:- (i) The award of the Tribunal is reduced to Rs.1,32,000/- from Rs.1,85,000/-. (ii) The interest granted by the Tribunal at 7.5% is confirmed. (iii) Counsel for appellant seeks for eight weeks' time to deposit the balance award amount and it is granted. (iii) On such deposit, the counsel for the claimant prays for withdrawal of the award amount as determined by this Court and it is granted. (iv) There will be no order as to costs. (v) Consequently, connected miscellaneous petition is closed. 23. C.M.A.No.3688 of 2008:- In the result, the Civil Miscellaneous Appeal is allowed in part as follows:- (i) The award of the Tribunal is reduced to Rs.3,37,175/- from Rs.3,65,175/-. https://hcservices.ecourts.gov.in/hcservices/ (ii) The interest granted by the Tribunal at 7.5% is confirmed. (iii) Counsel for appellant seeks for eight weeks' time to deposit the balance award amount and it is granted. (iii) On such deposit, the counsel for the claimant prays for withdrawal of the award amount as determined by this Court and it is granted. (iv) There will be no order as to costs. (v) Consequently, connected miscellaneous petition is closed. 24. C.M.A.No.3689 of 2008:- In the result, this Civil Miscellaneous Appeal is dismissed at the admission stage. Counsel for the appellant seeks for eight weeks' time to deposit the award amount. On such deposit, the claimant can withdraw the amount as per order of the Tribunal. There will be no order as to costs. Consequently, connected miscellaneous petition is closed. 25. C.M.A.No.3690 of 2008:- In the result, the Civil Miscellaneous Appeal is allowed in party as follows:- (i) The award of the Tribunal is reduced to Rs.25,000/- from Rs.35,000/-. (ii) The interest granted by the Tribunal at 7.5% is confirmed. (iii) Counsel for appellant seeks for eight weeks' time to deposit the balance award amount and it is granted. (iii) On such deposit, the counsel for the claimant prays for withdrawal of the award amount as determined by this Court and it is granted. (iv) There will be no order as to costs. (v) Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar ts https://hcservices.ecourts.gov.in/hcservices/ To 1. The Subordinate Judge, (The Motor Accidents Claims Tribunal) Attur. + 1 CC to Mr.P.Jagadeesan,Advocate,SR.66957 + 5 CC to Mr.S.Arunkumar,Advocate,SR.67235 to 67239 Copy to : The Record Keeper, V.R.Section, High Court, Madras. C.M.A.Nos.3686 to 3690 of 2008 JP(CO) EM/17.2.09 https://hcservices.ecourts.gov.in/hcservices/