Sowndaram v. Thangamuthu

J U D G M E N T The claimant, not being satisfied with quantum of compensation awarded by the Tribunal has filed this appeal against an award dated

20.06.2022 made in M.C.O.P.No.973 of 2019 on the file of the Motor Accident Claims Tribunal and Special Sub Court No.1, Salem.

¶2The case of claimant is that on 05.12.2018, she was standing near Senathipathipalayam Bus Stop and at about 10.30 a.m. the offending vehicle was driven in a rash and negligent manner and it dashed on the claimant. As a result, the claimant sustained the following injuries: "1. Traumatic anterior diaphragmatic hernia, pericardial tear splenic laceration with active bleeding.

¶2Left Superior and inferiour pubic rami fracture with fracture pubis.

¶3Fracture left sacrum zone II.

¶4Bilateral multiple rib fractures with left lung hemothorax.

¶5D2 to D9 & L1 to L5 spinous process fracture.

¶6L1 to L5 transverse process fracture left side."

¶3The claimant underwent treatment as inpatient for nearly 18 days and the Medical Board assessed permanent disability at 40%. It is under these circumstances, the claim petition came to be filed before the Tribunal seeking for payment of compensation.

¶4The Tribunal, on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, came to a conclusion that accident had taken place only due to the rash and negligent driving of the offending vehicle viz., a two wheeler belonging to first respondent. Having rendered such a finding, the Tribunal proceeded to fix the total compensation at Rs.5,72,309/- under various heads and this compensation was directed to be paid along with interest at the rate of 7.5% per annum.

¶5The claimant not being satisfied with the quantum of compensation awarded by the Tribunal has filed the present appeal seeking for enhancement of compensation.

¶6Heard Mr.S.P.Yuaraj, learned counsel on record for appellant and Mr.S.Arunkumar, learned counsel on record for second respondent / Insurance Company.

¶7This Court has carefully considered the submissions made on either side and materials available on records.

¶8This Court has also carefully gone through the award passed by the Tribunal.

¶9The injuries sustained by the claimant in this case are quite severe and it is evident from the injuries that have been extracted supra. The Discharge Summary which was marked as Ex.P7 shows that the claimant initially underwent operation on 05.12.2018 and the following has been noted in the Discharge Summary. "Diagnosis : Traumatic anterior diaphragmatic hernia, pericardial tear splenic laceration with active bleeding. Procedure : Diaphragmatic repair with mesh splenetomy Findings:

¶1Anterior diaphragm tear - 15cm with herniation of stomach, transverse colon & splenic flexure with spleen & proximal jejunum.

¶2Peircaridal tear with visible heart (ventricle).

¶3No myocardial injury. Liver normal.

¶4Splenic laceration 1 x 1 cm near bilum with active spurt.

¶5Hemothroax 500 ml.

¶6Stomach fundus hematoma (+), jejuna / mesenteric, hematoma present, no bowel injury."

¶10Thereafter, the claimant underwent another operation on

15.12.2018 and recording in the Discharge Summary is extracted hereunder. "Diagnosis : Fracture left sacrum zone II. Procedure : Left percutaneous iliosacral screw fixation. Findings : Anterior ring - left superior and inferior rami fracture + fracture pubis - undisplaced. Left sacral fracture zone II."

¶11The Medical Board which assessed the disability of the claimant found that claimant is suffering from 40% permanent disability. In the Disability Certificate it has been noted as follows: 'nkw;go tpgj;jpy;. kDjhuUf;F Flypwf;fk; Vw;gl;Ls;sjhft[k;. kz;zPuy; rpije;j fhaKk;. ,lJ gf;f SPR IPR Pubis vYk;g[ Kwpt[k;. KJF jz;oy; L1 Kjy; L5 vYk;g[fs; Kwpt[k;. L1 Kjy; L5 tiu cs;s gFjpfspy; vYk;g[fs; Kwpt[k; Vw;gl;Ls;sjhft[k;. mjdhy; mtUf;F Fj;j itg;gjpYk;. FWf;F fhy; nghl;L mkUtjpYk; rpukKk;. gof;fl;Lfspy; VWtjpYk;. rhpthd gFjpfspy; elg;gjpYk; rpukKk;. tapW kw;Wk; ,Lg;gpy; typ Vw;gl;Ls;sjhft[k;. fdkhd bghUl;fis Jhf;Fk; nghJ KJfpy; typ Vw;gl;Ls;sjhft[k;. kDjhuUf;F kUj;Jtkidapy; 40% epue;ju

,ayhik

,Ug;gjhf Cdr;rhd;wpjHpy; Fwpg;gplg;glL cs;sJ/'

¶12The Tribunal has chosen to adopt per percentage method and has fixed Rs.5,000/- per percentage. In the considered view of this Court, the gravity of the injuries that have been sustained by the claimant is quite serious and the claimant has suffered functional disability and therefore, the Tribunal ought to have adopted multiplier method. This Court is inclined to fix the functional disability and loss of earning capacity of the claimant at 30%.

¶13The Tribunal has fixed the age of the claimant at 70 years based on the medical record. However, it is evident from the Aadhar Card which was marked as Ex.P9 that the age of the claimant was 62 years. Hence, this Court fixes the age of the claimant at 62 years.

¶14The accident had taken place in the year 2018 and avocation of the claimant is milk vendor and agriculturist. Therefore, this Court can safely fix the notional monthly income at Rs.10,000/-. In view of the above, the total compensation under the head of disability can be fixed at Rs.2,52,000/- (Rs.10,000/- x 12 x 7 x 30%).

¶15The Tribunal has given a sum of Rs.30,000/- towards pain and suffering. Considering the gravity of the injuries sustained by the claimant, this Court is inclined to increase the same to Rs.1 Lakh.

¶16The claimant has undergone treatment as inpatient for nearly 18 days and she underwent two operations. Therefore, this Court is inclined to fix extra nourishment at Rs.25,000/- and attendant charges at Rs.25,000/-. This Court is also inclined to increase the transport charges to Rs.6,000/-.

¶17Considering the nature of the injuries sustained by the claimant, she has to undergo regular treatment and she will be incurring future medical expenses also, this Court is inclined to fix the same at Rs.20,000/- towards future medical expenses.

¶18In the light of the above discussion, the compensation fixed by the Tribunal is modified as follows: Sl. No. Compensation awarded under the head Amount (in Rs.)

¶1Disability 40% (Income taken as Rs.10,000/-10,000/-x 12 x 7 x 30%) Rs.2,52,000/-

¶2Medical Expenses Rs.3,04,309/-

¶3Pain and Sufferings Rs.1,00,000/-

¶4Transportation Rs. 10,000/-

¶5Extra Nourishment Rs. 25,000/-

¶6Attendant Charges Rs. 25,000/-Damages to Clothes Rs. 1,000/-Future Medical Expenses Rs. 20,000/-Total 7,37,309/-

¶19The compensation fixed by the Tribunal at Rs.5,72,309/- is enhanced to Rs.7,37,309/-, which is rounded off to Rs.7,38,000/-. This amount shall be paid along with interest at the rate of 7.5% per annum.

¶20It is brought to the notice of this Court that whatever compensation was fixed by the Tribunal, has already been deposited by the Insurance Company. Therefore, the enhanced compensation of a sum of Rs.1,65,691/- (Rs.7,38,000/- - Rs.5,72,309/-) shall be deposited with interest at the rate of 7.5% per annum within a period of four weeks from the date of receipt of a copy of this order.

¶21If any deficit Court fee is to be paid, the same shall also be paid by the claimant. The other directions issued by the Tribunal with regard to the mode of payment of compensation remain unaltered. In the result, this Civil Miscellaneous Appeal is allowed in the above terms. There shall be no order as to costs.

26.04.2024 Speaking Judgment/Non-speaking Judgment Index :Yes/No mk

N.ANAND VENKATESH, J.

mk To The Motor Accident Claims Tribunal, Special Sub Court-1, Salem.

26.04.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.04.2024 CORAM THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH Sowndaram ... Appellant Vs. 1. Thangamuthu S/o.Dhandapani 2. M/s.National Insurance Co. Ltd., Divisional Office - I L.R.N. Complex, Salem-7. ... Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 20.06.2022 made in M.C.O.P.No.973 of 2019 on the file of the Motor Accident Claims Tribunal and Special Sub Court No1, Salem. For Appellant : Mr.S.P.Yuaraj For Respondents : Mr.S.Arunkumar, for R2 *****