P. Elangovan vs Tamil Nadu State Trans. Corpn. Ltd.

R. Banumathi, J.—Being dissatisfied with the quantum of compensation of Rs. 7,91,634 awarded in M.C.O.P. No. 637 of 2000 on the file of Motor Accidents Claims Tribunal, Tiruvannamalai for the personal injuries sustained by the claimant, the claimant has filed this appeal praying for enhancement of compensation. On 27.7.1997, at 8.30 a.m., when the claimant was returning from Chennai to Vandavasi on his Suzuki Samurai motor cycle bearing registration No. TN 25-Z 5281 in the Vandavasi B. Erikkarai Road, the respondent-Corporation bus bearing registration No. TN 21-N 0177 driven by its driver in a rash and negligent manner came from the opposite side and dashed against the motor cycle and the claimant sustained grievous injuries on right knee with bone and joint exposed, right shoulder, bleeding from right nose, right elbow, right hand, right eyebrow above eye, compound fracture on right patella, compound fracture of femoral condyle right, compound fracture on right plateau.

At the time of accident, claimant was aged 25 years and he was the final year student of B.S.M.S. Degree at Government Siddha Medical College, Arumbakkam, Chennai. A criminal case was registered against the bus driver in Crime No. 578 of 1997 at Vandavasi Police Station under sections 279 and 338, Indian Penal Code. The claimant had taken treatment as inpatient in various hospitals--C.M.C. Hospital, Vellore, Sri Ramachandra Medical College, Porur, Billroth Hospital and other hospitals. Alleging that the accident was due to rash and negligent driving of the bus driver, claimant had filed the claim petition M.C.O.P. No. 637 of 2000 claiming compensation of Rs. 30,00,000 under various heads.

Before the Tribunal, claimant examined himself as PW 1 and one Palani was examined as PW 2. The doctors, PW 3, S. Premkumar, and PW 4, G. Balakrishnan, were examined on commission, who have deposed as to the permanent disability sustained by the claimant. On the side of respondent, RWs 1 to 3 were examined.

Upon consideration of oral and documentary evidence, the Tribunal held that the accident was due to rash and negligent driving of the bus driver and held that the respondent Corporation is liable to pay the compensation. At the time of accident, the claimant was final year student of B.S.M.S. Degree course at the Government Siddha Medical College, Arumbakkam and he completed his degree at the time of trial of the case. The Tribunal has taken monthly income of the claimant at Rs. 5,000 and accordingly taken the annual income at Rs. 60,000. Based upon Exhs. A29, A30 and A42, disability certificates, Tribunal has taken permanent disability of the claimant at 90 per cent and the Tribunal had calculated Rs. 9,72,000 as compensation for permanent disability and thereafter again restricted the same to 60 per cent and awarded Rs. 5,50,800 for permanent disability. As the claimant was aged 25 years, taking multiplier 18, Tribunal has awarded compensation of Rs. 7,91,634 as under:

Permanent disability and loss of earning power

Rs. 5,50,800

Medical expenses and transport charges

Rs. 1,80,834

Pain and suffering

Rs. 60,000

Total

Rs. 7,91,634

Learned counsel for the appellant-claimant contended that the Tribunal erred in fixing monthly income notionally at Rs. 5,000 and totally ignored the future prospects and the compensation amount awarded is very meagre amount. Drawing our attention to the nature of injuries and intensive treatment given to the claimant, learned counsel for appellant further submitted that the appellant having sustained 87 per cent plus 30 per cent permanent disability cannot lead a normal life and the Tribunal has failed to consider that the appellant needs to be compensated for his permanent disability. It was further argued that the Tribunal having assessed 90 per cent permanent disability was not justified in restricting it once again to 60 per cent.

We have heard Mr. Swaminathan, learned counsel appearing for the respondent Corporation. The learned counsel for the respondent Corporation submitted that notwithstanding the injuries, claimant has completed his degree and absolutely there is no evidence that the claimant cannot carry on normal pursuits in life and while so the quantum of compensation awarded by the Tribunal in a sum of Rs. 7,91,634 is quite reasonable warranting no interference.

PW 1 has spoken about the negligence of the driver of the bus. A criminal case in Crime No. 578 of 1997 at Vandavasi Police Station under sections 279 and 338 of the Indian Penal Code was also registered against the bus driver. The police have neither charge-sheeted the driver nor filed the final report in the Magistrate''s Court within a period of six months and Judicial Magistrate has closed the proceedings u/s 468 (2) of Criminal Procedure Code and certified copy of the order was marked as Exh. A7. Except the interested version of RWs 1 and 2, no other evidence was adduced by the respondent Corporation. Based upon the evidence of PW 1, the Tribunal has rightly held that the accident was due to negligent driving of the bus driver. In fact, the finding recorded by the Tribunal as to negligence of bus driver and fastening of liability upon the respondent Corporation is not under challenge.

At the time of accident, the claimant was aged 25 years and he was a final year student in B.S.M.S. Degree at Government Siddha Medical College, Arumbakkam. In the accident, claimant sustained grievous injuries on right knee with bone and joint exposed, right shoulder, bleeding from the right nose, right elbow, right hand, right eyebrow above eye, compound fracture on right patella, compound fracture of femoral condyle right and compound fracture on right plateau. After the accident, claimant was admitted in C.M.C., Vellore, where he had taken treatment as inpatient for nearly one month from 27.7.1997 to 25.8.1997. During the course of treatment, surgery was performed to the right knee and three metal screws were fitted. Exh. A12 is the case summary and discharge card issued by C.M.C. Hospital, Vellore. By perusal of Exh. A12, it is seen that the claimant was advised exercises to whole of right upper arm, rest in a triangular sling. Medical gastrenemius flap rotated to cover exposed patella and split skin-grafting was done over right flap and groin to ankle casting right lower limb was done.

After discharge from C.M.C. Hospital, appellant had taken further treatment in Government General Hospital, Chennai from 1.9.1997 to 18.11.1997. Again appellant took treatment in Ramachandra Hospital, Porur from 19.11.1997 to 25.11.1997. In Ramachandra Hospital, on examination, it was noticed that the brachial plexus of C-5, C-6 and C-7 nerves were cut and damaged at the root level of the spinal cord and there was adduction in the right arm. Therefore, brachial plexus operation was recommended. The appellant was also advised further treatment. The appellant underwent treatment in Billroth Hospital, Chennai from 10.12.1997 to 22.12.1997. It was noticed that there was near total avulsion in C-5, C-6 nerves and C-7 had complete division with neuroma. An accessory nerve transfer operation was performed to connect C-5, C-6 and C-7 nerves and 5 cables were put. The wound on right inner neck was closed in two layers by micro surgery. Exh. A21 is the discharge summary issued by Billroth Hospital elaborating the nature of treatment given to the appellant-claimant. In his evidence, PW 1 has also stated that there was near total avulsion in C-5, C-6 nerves. He had also underwent treatment as an outpatient with eminent neurosurgeons, Dr. Ramamoorthy and Dr. B. Narendiran.

PW 3, Dr. Prem Kumar, is M.S. Ortho working in Billroth Hospital, Chennai, who was examined on commission. In his evidence, PW 3 has stated that he has clinically examined the claimant and also perused the discharge summary and nature of treatment. Assessing the permanent disability of the claimant in respect of right knee at 30 per cent, PW 3 has opined that (i) fracture of lateral tibial plateau (right), fracture of patella (right), fracture lateral condyle femur (right), (ii) FFD of right knee 5 degrees, (iii) range of motion of right knee 5 degrees to 70 degrees. The evidence of PW 3 is also strengthened by Exh. P29, permanent disability certificate issued by him. In his evidence, PW 3 has further stated that the claimant would have difficulties in pursuing his normal pursuits; that the claimant cannot sit cross-legged or squat and while he is walking, there will be mild limping. PW 3 has also stated that the claimant would have pain if he has to walk for a long distance and PW 3 has assessed permanent disability at 30 per cent.

PW 4, Dr. Balkrishnan, a Plastic Surgeon working in Government Stanley Hospital, was also examined on commission. PW 4 has stated that while he was working in Billroth Hospital, he has admitted appellant-claimant and that due to brachial plexus injury on his right upper-arm, the claimant has been permanently disabled to an extent of 87 per cent. PW 4 has opined that due to that injury claimant''s right hand has become useless. PW 4 has also opined that there will be continuous pain due to cut of neck nerves C-5, C-6 and C-7. PW 4 has also deposed that even though accessory nerve was dissected up to distal to branch to trapezius and sutured to suprascapular left sural nerve graft taken cable grafting was done between C-5 -remaining fibres and C-7 fibres distally to C-5 - C-6 stump 5 cable grafts were put. Pain of the neck was reduced and the appellant continued to have pain. PW 4 has further stated that in spite of physiotherapy exercises the right hand of the appellant-claimant has become useless and that he is continuing to have increased pain. Assessing permanent disability at 87 per cent, PW 4 issued Exh. A30, permanent disability certificate.

Nature of injuries and treatment details are evident from Exhs. A12, A13 and A18 to A23. In Exhs. A29, A30 and A42, the permanent disability of the claimant is assessed at 30 per cent plus 87 per cent. In his evidence, PW 1 has stated that in spite of intensive treatment, he is not in a position to use his right hand and that he is dependent on others. Claimant has also stated that there is shortening of right leg and that he could walk slowly only for short distance. Even though the claimant is said to have completed his Siddha Degree course, the claimant appears to have been rendered useless because of immobilization of his right hand. The Tribunal had taken notional monthly income of the claimant at Rs. 5,000 and the annual income at Rs. 60,000. Tribunal has taken 90 per cent disability and after adopting multiplier 18 calculated compensation of Rs. 9,18,000 for loss of earning power and permanent disability. Even though the Tribunal has taken permanent disability at 90 per cent and after calculating the compensation at Rs. 9,18,000, the Tribunal has committed an error in again restricting that amount by way of 60 per cent and reducing the compensation to Rs. 5,50,800 for permanent disability and loss of earning power. Absolutely there is no rationale for restricting the compensation by another 60 per cent and in our considered view, the compensation of Rs. 5,50,800 awarded by learned Tribunal for loss of earning power and permanent disability is very low.

As discussed earlier, appellant was a final year student of B.S.M.S. Degree at Government Siddha Medical College, Arumbakkam. Even though the appellant has completed his degree, since the right hand of the claimant is crippled, it may not be possible for the claimant to pursue his career as a Siddha doctor. PWs 3 and 4 in Exhs. A29 and A30 have assessed the permanent disability at 30 per cent plus 87 per cent, totalling to 117 per cent. We are of the view that having regard to the injuries and that the right hand of the claimant is totally crippled, and considering the evidence of PWs 3 and 4, we are of the view that the total permanent disability of the claimant has to be taken at 100 per cent.

The physical frame of the claimant has been shattered and money cannot compensate what has been shattered. No amount of compensation can restore the lost limb of the claimant. In Phillips v. Western Railway Co., (1874) 4 QBD 406, Field, J., while emphasising that damages must be full and adequate, has held thus:

You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation once and for all. He has done no wrong, he has suffered a wrong at the hands of defendants and you must take care to give him full and fair compensation for which he has suffered.

In Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi and Others, the Supreme Court held as follows:

(2)...the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales...

Emphasising the principle of restitutio in integrum, in Sapna Vs. United India Insurance Co. Ltd. and Another, the Supreme Court held as under:

(8) The principles governing a claim petition for assessing the damages in case of bodily injury suffered is that while awarding the compensation, the Tribunal should consider all relevant factors so as to enable the insured to be put in the same position as if he had not sustained any injury. The principle of restitutio in integrum may be applied in a case of this nature. Pecuniary loss and non-pecuniary loss are required to be pressed under certain heads. So far as the pecuniary loss is concerned, the same can be ascertained. What is required to be done is a balancing act by awarding such sum which, on the one hand, shall take care of the loss suffered by the claimant for the present time and future pecuniary benefits and, on the other, pecuniary advantages which from whatever source comes to them by reason of such injuries. So far as non-pecuniary loss is concerned, the same has to be assessed broadly under certain heads, namely, damages for physical pain, mental suffering, etc. besides the amount spent on medical treatment, if any.

In State of Haryana and Another Vs. Jasbir Kaur and Others, the Supreme Court held as under:

(7) It has to be kept in view that the Tribunal constituted under the Act as provided in section 168 is required to make an award determining the amount of compensation which is to be in the real sense ''damages'' which in turn appears to it to be ''just and reasonable''. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be ''just'' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be ''just'' compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of ''just'' compensation which is the pivotal consideration. Though by use of the expression ''which appears to it to be just'' a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression ''just'' denotes equitability, fairness and reasonableness and non-arbitrariness. If it is not so it cannot be just.

At the time of accident, the claimant was a student. The Tribunal had taken the monthly income at Rs. 5,000 notionally and the same is maintained. As discussed earlier, claimant had taken treatment in various hospitals in different spells of time. Going by the Second Schedule, Tribunal has taken the multiplier as 18.

The learned counsel for respondent contended that in a personal injury case the Tribunal was not justified in adopting multiplier method. In Asraf Alli Vs. Naveen Hotels Ltd. and Another, , Hon''ble Supreme Court in similar circumstances held that in computing the amount of compensation, the court may in a given case take the benefit of structured formula as envisaged in the Second Schedule to the Motor Vehicles Act, 1988. In United India Insurance Company Ltd., Branch Officer Vs. Veluchamy and Another, , the Division Bench of this court held that in personal injury cases, for ascertaining compensation for ''permanent disability'' and ''loss of earning power'', court could adopt multiplier method. With restriction in right hand, claimant is totally crippled and future is overshadowed by his physical disability and this is a fit case to adopt multiplier method.

Taking the monthly income of the appellant at Rs. 5,000 and his disability at 100 per cent, the compensation awarded for permanent disability and loss of earning power is enhanced to Rs. 10,80,000 (Rs. 5,000 x 12 x 18). The Tribunal has awarded Rs. 1,80,834 for medical expenses and the same is maintained. For pain and suffering, Tribunal has awarded Rs. 60,000. As discussed earlier, the claimant had taken intensive treatment in various hospitals for different spells of time. The compensation of Rs. 60,000 awarded by the Tribunal for pain and suffering is enhanced to Rs. 1,00,000. For extra nourishment, the compensation amount of Rs. 25,000 is awarded. Total compensation awarded to the claimant is enhanced to Rs. 13,85,834 as under:

For permanent disability and loss of earning power

Rs. 10,80,000

For medical expenses

Rs. 1,80,834

For pain and suffering

Rs. 1,00,000

For extra nourishment

Rs. 25,000

Total

Rs. 13,85,834

The compensation awarded to the claimant in M.C.O.P. No. 637 of 2000 is enhanced to Rs. 13,85,834. The Tribunal has awarded interest at the rate of 9 percent per annum from the date of claim petition till the date of payment and the same is maintained in respect of the compensation amount awarded by the Tribunal, i.e., Rs. 7,91,634. Insofar as the enhanced compensation of Rs. 5,94,200 (Rs. 13,85,934 - Rs. 7,91,634), the same shall be payable with interest at the rate of 7.5 per cent from 2.11.2000, i.e., the date on which the claim petition was taken on file, though claimant had filed the claim petition on 16.8.2000. The compensation amount awarded by the Tribunal in M.C.O.P. No. 637 of 2000 - Rs. 7,91,634, is enhanced to Rs. 13,85,834 with the rate of interest as indicated above and the civil miscellaneous appeal is allowed accordingly. The respondent Corporation is directed to deposit the balance compensation amount along with accrued interest within a period of 8 weeks from the date of receipt of copy of this judgment. On such deposit, claimant is permitted to withdraw the entire compensation amount along with accrued interest. However, there is no order as to costs.