1. CMA. No: 1151 of 2001 has been preferred by the insurer as against the award and decree dated 19th December, 2000 made in MCOP. No. 3939 of 1997 on the file of the Motor Accidents Claims Tribunal, (IV Court of Small Causes) Madras, while the claimant has lodged Cross Objection NO. 8 of 2002 for enhanced of compensation.
2. CMA.No:1152 of 2001 has been preferred by the insurer as against the award and decree dated 19th December, 2000 made in MCOP. No. 3940 of 1997 on the file of the Motor Accidents Claims Tribunal, (IV Court of Small Causes) Madras, while the claimant has lodged Cross Objection NO. 9 of 2002 for enhanced of compensation.
3. CMA.No:1153 of 2001 has been preferred by the insurer as against the award and decree dated 19th December, 2000 made in MCOP. No. 3941 of 1997 on the file of the Motor Accidents Claims Tribunal, (IV Court of Small Causes) Madras, while the claimant has lodged Cross Objection NO. 10 of 2002 for enhanced compensation.
4. CMA.No:1154 of 2001 has been preferred by the insurer as against the award and decree dated 19th December, 2000 made in MCOP. No. 4031 of 1997 on the file of the Motor Accidents Claims Tribunal, (IV Court of Small Causes) Madras, while the claimant has lodged Cross Objection NO. 11 of 2002 for enhanced compensation.
5. CMA.No: 1155 of 2001 has been preferred by the insurer as against the award and decree dated 19th December, 2000 made in MCOP. No. 4049 of 1997 on the file of the Motor Accidents Claims Tribunal, (IV Court of Small Causes) Madras, while the claimant has lodged Cross Objection NO. 12 of 2002 for enhanced compensation.
6. For convenience, the parties will be referred as claimants, owner of the vehicle (Respondent No. 1) and insurer of the vehicle (Respondent No. 2) as arrayed before the Tribunal below.
7. The claimant in the respective Claim Petition being close relatives or family members or relatives claimed that they travelled by a Taxi bearing Registration No. TN-07-C-3280 from Madras to Thirunallar on 14.6.1997. According to the claimants the said vehicle near Kothadai Bus stop off Pudhuchattiram, in Chidambaram Taluk around 5.30 a.m., driven rashly and negligently by the Driver of the Taxi and at a high speed, dashed against a culvert and fell into the river upside down as a result of which the claimants who are the occupants of the Car sustained injuries. It is alleged that the accident has been caused by the rash and negligent driving of the vehicle owned by the first respondent, which vehicle has been insured with the second respondent-insurer. The claimant in the respective claim petitions examined himself/herself as witness besides Dr. J.R.R. Thiagarajan and Dr. Rajappa. The claimants also marked Exs.P.1 to P.39 to prove the injuries/fractures sustained by each one of them. The owner of the vehicle remained absent. The insurer of the vehicle moved the Tribunal below under Section 170 of the Motor Vehicles Act to raise and defend the claim, which leave was granted by the tribunal below on 4.12.2000 by orders passed in separate miscellaneous applications. It has to be pointed out that the insurer has not let in any evidence to the contra, nor, produced any documents to demonstrate that no such accident has occurred as claimed by the claimants. In fact there is no cross examination of the witnesses examined by the claimants with respect to the accident in which the respective claimants sustained injuries/fractures as the case may be. There was no cross examination with respect to the manner of accident as has been deposed by the claimants. However, at the time of argument, it was contended that no such accident had occurred, besides pointing out certain improbabilities according to the insurer with respect to the alleged accident.
8. The Tribunal below framed the following three points for consideration in all the Claim Petitions:-
(i) Whether the accident has been caused by the rash and negligent driving of the vehicle belong to the first respondent driven by the driver?
(ii) Whether the claimants were occupants of the vehicle which met with the accident?
(iii)Whether the claimants are entitled to compensation? If so how much each claimant is entitled to claim?
9. On the first point, the tribunal below held that the accident has been caused by the rash and negligent driving of the first respondent's driver. On the second point, the tribunal concluded that all the claimants were the occupants of the ill-fated taxi cab which met with the accident at the date and time as detailed by the claimants. On the third point, the tribunal awarded a total compensation of Rs. 96,000/= with 12% interest to M. Usharani claimant in MCOP. No: 3939/97, Rs. 1,96,500/= with 12% interest to M. Roopasundari, claimant in MCOP. No. 3940 of 1997, Rs. 63,000/= with 12% interest to D. Shyam Sundar, claimant in MCOP. No. 3941 of 1997, Rs. 90,500/= with 12% interest to J.R. Narasimha Rao, claimant in MCOP.No:4031 of 1997, and Rs. 3,41,500/= with 12% interst to G. Hemasundari, claimant in MCOP. No: 4049 of 1997.
10. Challenging the said Award, the insurer of the vehicle preferred the above appeals contending that the insured vehicle was not involved in the accident, that there is no proof about the involvement of the first respondent's vehicle as alleged in the accident, that the award of compensation is highly disproportionate and excessive, that the claim of the respective claimants that he/she sustained injuries or fractures etc., is not true, nor they have suffered any grievous injury, nor there is any material to show that the disability was permanent, that in any event being injuries of simple nature, the claimants are not entitled to compensation as claimed or as awarded by the tribunal below, that the claimants have not suffered disability and in any event, the award of compensation is highly disproportionate, excessive and the award has to be set aside.
11. Per contra, the respective claimants preferred Cross Objections in the respective appeals claiming enhanced compensation in each case contending that the compensation awarded by the tribunal below is neither fair, nor just, that the tribunal ought to have awarded compensation as claimed by the claimant in its entirety.
12. In these appeals, the following points arise for consideration:-
(i)Whether the alleged accident is true?
(ii) Whether the accident has been caused by the rash and negligent driving of the first respondent's vehicle (Taxi cab) by its driver?
(iii) Whether the claimants have suffered injuries in the alleged accident?
(iv) Whether the award of the Tribunal in each of the MCOP to the respective claimants is liable to be interfered as disproportionate or excessive and liable to be interfered?
(v) What is the fair and reasonable quantum of compensation if at all, the claimant in each of the Claim Petition is entitled to?
(vi) To what relief the appellant is entitled to?
(vii)To what relief the cross objectors are entitled to?
13. The learned counsel appearing for the appellant took the court through the evidence of P.Ws 1 to 11 as well as Exs.P.1 to P.39. The learned counsel for the respondents-Cross objectors also made his submissions in detail. In the light of the oral and documentary evidence let in by the claimants, the above points have to be considered. The first three points could be considered together as the claimants in each one of the claim Petitions claimed that they were passengers in the vehicle belong to the first respondent, which met with the accident consequent to the rash and negligent driving of its driver and suffered injuries.
14. M.Usha Rani, claimant in MCOP.No:3939 of 1997 who has examined herself as P.W.1 deposed that when the claimants travelled in the taxi from Madras to Tirunallar around 5.30. am., on 14.6.1997 near Kothadai bus stop the vehicle which was driven at a high speed, dashed against the culvert, turned turtle and fell into the river. She has not been subjected to cross examination with respect to the said deposition. The other passengers in the car namely the remaining claimants have not deposed in detail about the manner of accident except deposing that they sustained injuries in the said accident and the details of the injuries or fractures sustained as the case may be. No evidence to the contra has been let in by the second respondent-insurer. Ex.P.31 is the First Information Report given by the Driver of the vehicle on 14.6.197 wherein the Driver reported that when the vehicle was approaching before Kothadai Bus stop on a small culvert vehicle skidded and dashed against the culvert wall and jumped over the culvert and fell below the culvert. Ex.P.32 is the Plan showing the place of accident, where the vehicle was lying. Ex.P.33 is the Motor Vehicle Inspector's report which would also disclose the nature and extensive damages caused to the vehicle. Ex. P.29, P.34, P.35 and P.38 would show that the five claimants have taken treatment in the Hospital at Chidambaram in the early morning hours on 14.6.1997. However, it is sought to be contended that there is nothing to show that the claimants were passengers in the ill-fated vehicle, as the name of the passengers have not been mentioned in the FIR. Merely because the name of the petitioners have not been set out in the FIR it cannot be contended that the petitioners were not the passenge Rs. In this respect as rightly pointed out by the counsel for the petitioners, no suggestion has been even put to the claimants suggesting that they were not passengers nor they have sustained the injuries, nor they were occupants of the car. Ex.P.29 34,35, 38 are the Medical reports issued by Dr. K. Natarjan of R.K. Nursing Home at Chidambaram which would show that the claimants have taken treatment for the injuries sustained by them in the accident occurred at 5.30. a.m., on 14.6.1997 near Chidambaram.
15. On consideration of the above material evidence, the Tribunal below recorded a finding that the accident has been caused by the rash and negligent driving of the first respondent's car driver. NO oral evidence has been let in either by the first respondent or by the second respondent. The respondents have not chosen to produce the best evidence, namely the evidence of the Driver, who drove the vehicle on 14.6.1997. The first respondent remained absent and the second respondent has not even suggested that the petitioner's were not the occupants of the Car which met with the accident on 14.6.1997 near Kothadai Bus stop. In the absence of any challenge to the deposition of P.W.1 as well as the other witness, who had also deposed that they were passengers in the car and sustained injuries, fracture there is no other alternative except to hold that the petitioners were the occupants of the car at the time when the accident occurred. The FIR, the sketch, the evidence of P.W.1 and the material evidence would show that the vehicle dashed against the culvert and plunged into the Odai or river. This demonstrates rashness and we agree with the finding recorded by the tribunal below in this respect. The first three points are answered in favour of the petitioners and against the respondents holding that the accident has been caused by the rash and negligent driving of the first respondent's vehicle, the claimants were the occupants of the car at the time of accident the claimants have sustained injuries and the claim of the petitioners are true.
16. Nextly, we will take up the question as to the quantum of compensation claimed by each claimants and awarded by the tribunal below.
17. Our attention is drawn to the Supreme Court Pronouncement in Divisional Controller, KSRTC V. Mahadeva Shetty, reported in : AIR2003SC4172 , where the Supreme Court held that the compensation awarded must be just, fair and reasonable and it cannot be a bonanza. The Apex Court held thus:-
'15. It has to be kept in view that the Tribunal constituted under the Act as provided in S. 168 is required to make an award determining the amount of compensation which to it appears to be just. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance to the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for the mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has to be borne in mind that the compensation is not expected to be a wind fall for the victim. Statutory provisions clearly indicate 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 on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guess and arbitrariness. The expression 'just' denotes equitablity, fairness and reasonableness, and non arbitrary. If it is not so it cannot be just. (See Helen C. Rebello V. Maharashtra State Road Transport Corporation : AIR1998SC3191 ).'
The above pronouncement squarely applies to the facts of the present case as seen from the following discussions in respect of quantum of compensation awarded in each case.
18. In O.P. No. 3939 of 1997, Usharani, claimant, claimed Rs. 2 lakhs in all under the head of loss of earning, transport to hospital, extra nourishment, damage to cloth and articles, private treatment, compensation for pain and suffering, compensation for continuing or permanent disability and compensation for loss of earning power. The Tribunal below awarded Rs. 96,000/= in all to the said Usharani. The tribunal awarded Rs. 5,000/= towards Medical expenses, Rs. 10,000/= towards pain and suffering, Rs. 30,000/= towards permanent disability, Rs. 40,000/= towards loss of earning capacity. This quantum is being challenged vehemently by the counsel for the insurer-second respondent. Usharani, P.W.1 deposed that she has sustained fracture on her right side shoulder and elbow, that there was dislocation of right side hip bone. Ex.P.1 is the Medical Certificate. But, Ex.P.1 is silent about the details of injuries which the claimant alleged to have sustained.
19. This claimant has admitted that she went to the clinic for the first day. P.W.1 has deposed that Dr. Devakanthan has treated her. But she admits that Dr. Devakanthan is not a surgeon, but a physician and her family Doctor. In the cross examination she has deposed that she had a sprain in her neck and she became all right after treatment. She also deposed that she has not sustained any blood stained injury. It may be pointed out that the said Dr. Devakanthan has not been examined as a witness. Instead, Dr. J.R.R. Thiagarajan who has issued Ex.P.19 disability certificate has been examined and Ex.P.20 is the X-ray which relates to Usharani. Ex.P.38 is the wound certificate issued by Dr. K. Natarjan of R.K. Nursing Home at Chidambnaram who, it is claimed has given the first aid. Ex.P.20 is the x-ray relating to M.Ushrani. But it does not show any fracture. Ex.P.34 is the wound certificate issued by Dr. K. Natarjan of R.K. Nursing Home, Chidambaram which would show that she had a contusion on her right side shoulder, blackish red in colour of 2 cm diameter of tender nature.
20. The above evidence and certificate would show that Usharani has not sustained any grievous injury. However, Dr. Thiagarajan, who had issued the disability certificate has opined that she had sustained partial permanent disability to the extent of 30%. it is merely mentioned that it is a ligamental tear on the right shoulder, acute spasm, neck muscle treated. The Doctor also added that this claimant had sustained disability due to the injury sustained. But the claimant has not even deposed about such injury or disability, nor the wound certificate issued by Dr. Natarjan would support the disability certificate issued by Dr. J.R.R. Thiagarajan with respect to Usharani.
21. Curiously, Dr. Thigarajan has deposed that the claimant Usharani cannot lift her hand more than 90% degrees, she is not able to lift any weight material. Dr. Thiagarajan has deposed that no implant has been done. Dr. Thiagarajan has deposed that Usharani has not suffered blood stained injuries. She has not suffered fracture and he has also deposed that she has no difficulty in sitting and transacting her business. Evidence of P.W.6, Dr. Thiagarajan as well as P.W.1 Usharani would show that she became all right after treatment and the disability which Dr. Thiagarajan has certified is very hard to accept. The evidence of Usharani will not support the said disability certificate issued by Dr. Thiagarajan. So also the would certificate. In other words, Usharani has not suffered either a grievous injury or a fracture.
22. Usharani deposed that she is just 27 years. Usharani claims that she was in the Hospital from 14.6.1997 onwards for a number of weeks. But there is no supporting medical certificate or hospital record to show that she underwent treatment for weeks together. In the Claim Petition she has claimed that she sustained severe injury in her head leading to contusion of brain, fracture, dislocation of bone in her right shoulder and elbow, dislocation of bone in hip, severe internal injury in chest, multiple injuries all over the body. But, all these are not supported by the wound certificate or the medical certificate produced by her. Dr. Devakanthan, who has issued the receipt would show that on 12.9.1997 Rs. 3000/= has been paid by Usharani towards treatment charges for ligemantal tear in the right shoulder with acute sprain in neck muscles, following the road transport accident. Excepting this, no other bill or supporting material has been produced by P.W.1 Usharani. The only voucher produced is issued by Dr. Devakanthan which would show that she has incurred Rs. 3000/= towards treatment. No other medical bill has been produced to show that she has purchased medicine or she had underwent treatment. That being the position, we are not persuaded to sustain the quantum of compensation awarded by the tribunal below nor there is any ground to consider the cross objection wherein the claimant has claimed enhanced compensation.
23. The claimant Usharani deposed that she has passed M.A., B.Ed,. (English Literature). Admittedly she is not employed anywhere. She claimed that she was a tuition teacher. Ex.P.3 would show that she has acquired M.A., and B.Ed.,degrees. She has not stated as to how many students she had taught tuition on an average, to which class students she had coached. But she has conveniently made a tall claim that she was making Rs. 5000/= per month by way of tuition or coaching fee. This is a very tall claim. At the maximum, Usharani is an unemployed graduate and there is no material to show that she was earning Rs. 5000/= per month as deposed by her. If she had earned Rs. 5000/= per month on an average, her annual income will exceed Rs. 60,000/= and definitely she would be an assessee of income tax. There is nothing to show that she was a tuition teacher for any student. We are not impressed by the evidence of P.W.1 that she was a tuition teacher and earned Rs. 5000/= per month. It may be that she might be a tuition teacher for one or two, but it would not account for her tall claim that she was earning Rs. 5000/= per month. In the absence of acceptable material it has been rightly pointed out by the learned counsel for the insurer/second respondent that her income may not exceed Rs. 1500/= per month. We are inclined to accept the same.
24. Towards loss of medical expenses, the Tribunal awarded Rs. 5000/=. It is true that Ex.P.1 is the only bill showing that she had paid Rs. 3000/= to the Doctor. However, she would have spent some more money for purchase of medicine, pain killers, etc., Therefore we agree with the Tribunal below as to the award of Rs. 5000/= towards medical expenses. The tribunal awarded Rs. 10,000/= towards pain and suffering. This is very much on the higher side and we reduce it to Rs. 5000/= as she was under medication if at all for sprain and ligamental rupture at least for a fortnight.
25. As regards the disability namely ligemental tear, the tribunal had accepted the evidence of Dr. Thiagarajan and proceeded as if she has suffered a permanent disability of 30%. But we are not persuaded to award Rs. 30,000/= towards permanent disability as we are not at all impressed by the evidence of Dr. Thiagarahjan, who has not treated the claimant. The Certificate issued by the Doctor is not at all acceptable as it is against the claimants evidence. It is only a ligamental tear which ligament reversed after treatment and the disability will not be 30% as has been certified by Dr. Thiagarajan whose certificate and evidence has not impressed us at all. However, we reduce and award Rs. 5000/= towards disability, if at all.
26. The claimant Usharani has deposed that she is not able to lift her hand, she suffers headache very often, that she is not able to lift heavy weight. But the wound certificate and the medical certificate issued by Dr. Devakanthan or the X-ray will not support her claim. The award of Rs. 40,000/= towards future earning capacity is definitely on the higher side and it cannot be sustained nor it could be allowed to stand. However, taking a very considerate view, we award same at Rs. 10,000/= under this head. There is nothing to show that Usharani has sustained loss of income. Even assuming so, the tuition income, as already assessed may not exceed Rs. 1,000/=, per month and under this heading we are inclined to award Rs. 3000/=. We also confirm the award of Rs. 2000/= towards Transportation expenses.
27. Thus, in all, we award Rs. 30,000/= in all as against Rs. 96,000/= awarded by the tribunal below. The appeal in CMA. No. 1151 of 2001 is allowed in part and consequently, the Cross Objection No. 8 of 2002 is dismissed. This Court is not inclined to award interest at 12%, but reduce the same to 9%. Thus, in MCOP. No. 3939 of 1997 there will be an award and decree directing the respondents 1 and 2 to pay Rs. 30,000/= with 9% interest from the date of petition and till date of payment with proportionate cost. In this appeal the parties shall bear their respective cost.
28. Taking up the claim of Roopasundari, the claimant in MCOP. No. 3940 of 1997 and cross objector in Cross Objection No. 9 of 2002, the claimant claimed Rs. 6,25,000/= in all under various heads. The Tribunal below awarded Rs. 1,96,500/= in all with 12% interest. Roopasundari has examined herself as P.W.2. She has deposed that she has sustained a fracture on her right hand as well as right elbow and crush in her finger. It is her deposition that between 14.7.1997 and 26.7.1997, she underwent treatment in Isabellah Hospital as in-patient. Ex.P.4 is the discharge summary. On 20.6.1997 she underwent an operation. Dr. C.T. Alagappan has performed the operation. She has produced Ex.P.4 the discharge summary issued by Dr. Devakanthan. Ex.P.5 is the injury certificate. Ex.P.6 is the receipt issued by Dr. Alagappan Ex.P.7 is the prescription and Ex.P.8 (series) are the medical bills. Ex.P.9 (series) are lab reports. Ex.P.35 is the wound certificate issued to claimant Roopasundari by Dr. K. Natarjan of R.K. Nursing Home of Chidambaram, which would show that she has suffered a lacerated blood injury in her right arm, middle of right forearm with bone jetting out and bleeding. X-ray shows fracture of bone in the fore arm. She was treated as an in-patient in St. Isabellah Hospital, Madras-4 as seen from Ex.P.4, between 14.6.1997 and 23.6.1997. Ex.P.5 is the discharge summary issued by Dr. Devakantan, Consulting Physician. She was treated by Dr. C.T. Alagappan, Orthopaedic Surgeon who performed operation for reduction of both the bones of right arm and soft plating was doneEx.P.6 would show that Dr. Alagappan has collected Rs. 20,000/= from Roopasundari for treatment of fracture, surgery, assistance etc., in all aggregating to Rs. 20,500/= Ex.P.7 would show the purchases made at the time when the claimant underwent surgery. Ex.P.8 are the series of medical bills in all aggregating to Rs. 21,508.31 issued by Isabels Hospital or Apollo Pharmacy, Karuppiah Pharmacy, Valli Pharmacy, St. Isabels Hospital Pharmacy etc., Ex.P.9 (series) would show that she had availed lab services in Isabels Hospital. Ex.P.22 is the X-ray which would show the fracture sustained by her.
29. Ex.P.21 is the disability certificate issued by Dr. J.R.R. Thiagarajan. The Disability according to the said Doctor is partial and it is permanent. According to his assessment it is 60% as there is fracture in both the right fore arm bones, besides she had sustained various other fractures. In Colum11 the Doctor has indicated 30% disability. But total disability has been assessed as 60%. We are not impressed by the disability certificate issued by the Doctor. But due to the fracture of both the bones in her right fore arm, definitely there is disability. But we assess that the disability will not exceed 20%.
30. This claimant Roopasundari deposed that she is not able to carry on any work. She has deposed that she is also a Tuition Teacher teaching Mathematics subject. But she has admitted that she has passed only B.A., (History) and not a degree in Mathematics. She has also claimed that she has been earning Rs. 5000/= by tuition. But there is no material to show that as to how many students she had been coaching or tutoring, who are all the students she was coaching and she is very silent. She was aged around 50 years at the time of accident. There is nothing to show that she was earning Rs. 5000/= per month. On a consideration of the evidence of P.W.2, we are inclined to hold that she might be earning around Rs. 1000/= if at all and at the maximum Rs. 1500/= and not more than that per month. There is no material evidence to show that she has been taking class for a number of students during the relevant period or at any point of time. In respect of this claimant, the tribunal awarded Rs. 1,96,500/=. Before the tribunal this claimant has deposed that she has difficulty in moving her hand and also her elbow, that the metal plate inserted in her hand has to be operated upon and removed after some time, that her capacity to hold by hand has been reduced to 2/5th and that she is unable to carry on her household work as well.
31. The tribunal below awarded Rs. 10,000/= towards loss of earning on the assumption that she was earning Rs. 5000/= per month. But there is nothing to show that this claimant was earning Rs. 5000/= per month. There is no evidence, much less acceptable evidence. That apart, admittedly, she is only a history graduate. It is rather extraordinary for a History graduate to handle mathematics subject and that too to Tuition students. As already pointed out even assuming she has been taking Tuition classes, her monthly earning may not exceed Rs. 1500/=. On that basis for a period of two months this court awards Rs. 3000/=.
32. The tribunal awarded Rs. 2000/= towards transportation expenses and Rs. 1,500/= towards transportation from Chidambaram to Madras. The award of Rs. 3,500/= in this respect in our considered view is not adequate and we award Rs. 6000/= in all towards transportation charges from Chidambaram to Madras, to the Nursing Home to home and to the attendant as well.
33. Though the claimant claimed Rs.18,000/= towards extra nourishment, the tribunal below awarded Rs. 5000/=. It is slightly on the higher side we award Rs. 3000/= towards extra nourishment.
34. The claimant made a tall claim of Rs. 40,000/= towards loss of dress, jewels etc., But there is no proof, nor she has even deposed in her evidence in this respect and the Tribunal below rightly negatived the claim under this head. Towards medical expenses, the tribunal awarded Rs. 40,000/= while Ex.P.6 and P.8 produced would show that she has incurred more expenditure. Ex.P.6 would account for Rs. 20,500/= and P.1 would establish the expenditure of RS. 21,508/= towards medical bills. Taking into consideration of the duration of treatment, the hospitalisation, undergoing operation, etc., we award Rs. 50,000/= towards medical expenses.
35. The claimant claimed Rs. 75,000/= towards pain and suffering and Rs. 1,25,000/= towards partial and permanent disability and Rs. 2,00,000/= towards future loss of earning capacity. The tribunal awarded Rs. 25,000/= towards pain and suffering and Rs. 60,000/= towards partial and permanent disability and Rs. 50,000/= towards loss of earning capacity. But we are not inclined to award three different sums which is not called for and at any rate the award is disproportionate. Taking into consideration of the fact that the claimant is a house wife except taking tuition classes for one or two students and the age of the claimant, we award of Rs. 50,000/= towards pain and suffering and towards partial and permanent disability. Though the claimant has claimed Rs. 2,00,000/= towards loss of future earning and the tribunal awarded Rs. 50,000/= we are not persuaded to award such a huge sum. But we are inclined to award nominal compensation of Rs. 11,000/= under this heading as even according to the claimant's admission the disability will not in any manner affect her earning capacity as a tuition teacher.
36. Thus in all, we award Rs. 1,23,000/= to claimant Roopasundari who is the petitioner in MCOP. NO. 3940 of 1997. CMA. NO. 1152 of 2001 is allowed in part. No costs. CMA preferred by the Insurance Company allowed in part and consequently, Cross Objection No. 9 of 2002 preferred by the claimant-petitioner is dismissed. This Court is not inclined to award interest at 12%, but reduce the same to 9%. Thus, in MCOP. No. 3940 of 1997 there will be an award and decree directing the respondents 1 and 2 to pay Rs. 1,23,000/= with 9% interest from the date of petition and till date of payment with proportionate cost.
37. Taking up the next case, CMA.1153 of 2001, Claimant D. Shyamsundar who was one of the occupants of the ill fated car claimed Rs. 1,75,000/=. The tribunal awarded Rs. 63,000/= in all under various heads. According to this claimant, he is aged 37 years on the date of accident. He was a Sales Representative earning Rs. 10,000/= per month. It was claimed that he has suffered a dislocation of bone in both the hands, shoulder and elbow besides severe injury in forehead and skull leading to contusion of brain. It is also claimed that the claimant has sustained injuries in both leg knees and ankles and severe internal injury in chest. The claimant also pleaded that he has suffered multiple internal and external injuries all over the body.
38. In his evidence, P.W.3, the claimant in MCOP. NO. 3941 of 1997 deposed that he has suffered injuries on his forehead, chest, both the elbow ankles. According to this claimant, he was treated at Chidambaram in R.K. Nursing Home and subsequently at Madras by Dr. Devekanthan between 14.6.1997 to 12.7.1997. It is his evidence that he was employed on a salary of Rs. 10,000/= with Excelsior Agencies Ltd., R.A. Puram. He deposed that he is not able to drive his vehicle, therefore he is not able to travel extensively and he has claimed Rs. 1,75,000/=. In the cross examination he as admitted that he has not produced any certificate to establish his salary. It was suggested to him that he is not employed anywhere and he claimed that he is employed is false. It is also admitted that in Ex.P.10, the alleged injuries which was claimed to have been sustained have not been set out. It was suggested to him that he sustained only simple injuries. During the examination when he was recalled, he has produced Ex.P.39. P.W.8, Dr. Thiagarajan, a retired Surgeon, deposed that this claimant D.Shyamsundar had blood clot on his left thigh swelling and he underwent treatment for one month, besides there is contusion in the thigh muscles. The Doctor deposed that there is 30% reduction in the movement of right knee and he has certified that this claimant has suffered 25% disability. Ex.P.10, is a receipt issued by Dr. Devakanthan acknowledging payment of Rs. 3000/= from the claimant D. Shyamsundar towards treatment charges between 14.6.1997 to 12.7.1997 for the injuries sustained and he was suffering from fibro-myositis. Ex.P.37 would show that Dr. Natarjan of R.K. Nursing Home had attended this claimant on 14.6.1997 and he noticed contusion on both thighs, blackish red in colour, tender. However, in the disability certificate ExP.23 issued by Dr. J.R.R. Thiagarajan, at one place it is stated that the disability is partial and with respect to other column namely how long the disability is likely to continue?, the answer is filled up with the expression 'permanent'. The Doctor has assessed the loss of earning capacity as 25%. The certificate would show that there is a reduction in the knee movement upto 30% and it is difficult to squat or drive vehicle.
39. In the light of the above evidence, we have to assess the compensation. The tribunal after referring to the injuries sustained awarded Rs. 5,000/= per month towards loss of earning. But there is no proof that the claimant was employed or he was earning at the rate of Rs. 10,000/= per month. What is the qualification of this claimant is not known. The Tribunal proceeded as if the claimant might have earned Rs. 5000/=. This is a tall claim and this cannot be accepted in the absence of any proof of qualification or in the absence of any employment certificate or salary certificate and only the minimum amount could be awarded. This court fix the loss of earning for a period of two months at the rate of Rs. 3000/= per month and for two months it comes to Rs. 6,000/=.
40. The tribunal awarded Rs. 1000/= towards transportation expenses. We confirm the same.
41. Though the claimant made a tall claim of Rs. 9,000/= towards extra nourishment, the tribunal rightly awarded only Rs. 2000/= which itself is on he higher side. However, we are not interfering with the same.
42. Towards loss of certain personal belongings, the Tribunal rightly negatived claim and we do not see any illegality.
43. The claimant made a tall claim of RS. 15,000/= towards medical expenses. The claimant produced Ex.P.10, receipt which would show that he has paid Rs. 3000/= to the Doctor towards medical fees. The Tribunal proceeded as if the claimant was hospitalised for 28 days. But the claimant has not deposed that he was hospitalised for 28 days or that he underwent treatment for 28 days. But he has only paid Rs. 3000/= to the Doctor. However, the Tribunal awarded Rs. 5000/= towards medical expenses and we do not see any reason to interfere with the same.
44. The Tribunal awarded Rs. 20,000/= towards pain and suffering as against the claim of Rs. 25,000/=. Taking into consideration of the nature of injures sustained, we are of the considered view that the award of Rs. 25,000/= towards pain and suffering is on the higher side and we fix the same at Rs. 10,000/=.
45. The Tribunal awarded Rs. 25,000/= towards permanent disability. But the evidence of the claimant as well as the Doctor would not show that the claimant has suffered a permanent disability. It is true that there is some restriction in the movement of knee joint and as a result of this, the claimant would be disabled from squatting or travelling. It is not correct to hold that the claimant has suffered 25% permanent disability. The evidence of Doctor in this respect is prevaricating and we are not persuaded to accept the same. Hence we are inclined to award only Rs. 10,000/=.
46. The Tribunal has awarded Rs. 5000/= towards loss of future earning. Though there is no material evidence in this respect, we are not inclined to interfere with the said sum of Rs. 5000/= awarded. In all, we award Rs. 39,000/=. CMA.No:1153 of 2001 is partly allowed. Consequently Cross Objection No. 10 of 2002 is dismissed. This Court is not inclined to award interest at 12%, but reduce the same to 9%. Thus, in MCOP. No. 3941 of 1997 there will be an award and decree directing the respondents 1 and 2 to pay Rs. 39,000/= with 9% interest from the date of petition and till date of payment with proportionate cost.
47. CMA.No:1154 of 2001 has been preferred against MCOP. NO. 4031 of 1997. The claimant J.R. Narasimha Rao, aged 37 years claimed Rs. 6 lakhs under various heads such as loss of earning, cost of private treatment, additional transport expenses, compensation for pain and suffering, and compensation for continuing permanent disability. This claimant claims that he is employed with Tibarawala & Co., Chennai-1 and he was earning Rs. 15,000/= to Rs. 20,000/= per month, besides claiming that he is an income tax assessee. According to this claimant he sustained fracture and dislocation of bone in left hand wrist and elbow. Nerve injury in left hand wrist and palm and not able to hold objects with left hand, and dislocation of of bone in left hand shoulder, as the hand was trapped. Dislocation in left leg ankle. Severe injury in head, severe internal injury in chest and hip. Multiple injuries all over the body.
48. This claimant has examined himself as P.W.4. The Tribunal below in all awarded Rs. 90,500/= to this claimant under various heads. The said award is being challenged while the claimant preferred Cross Objection No. 11 of 2002. In his deposition, the claimant deposed that he has sustained dislocation of elbow, left ankle fracture, left shoulder dislocation, ligament cut, etc., Ex.P.11 and P.24 were relied upon. According to the claimant he has passed M.A., History, he is employed as Foreign Exchange Transaction Consultant in Tibrawala & Co., and claimed that he gets commission Ex.P.11 is the wound certificate. In the cross examination he has admitted that he has not sustained blood injury Ex.P.11 does not contain the particulars of injuries sustained. It is admitted that at the time of accident he was studying M.A., and only after the accident he has completed M.A. The claimant has also not produced any document to show his income, nor even income-tax assessment, nor even employment certificate. It was even suggested that the claimant was not employed at all and he has merely claimed that he has come forward with false claim. Dr. Thiagarajan who was examined as P.W.9 has deposed that he has issued Ex.P.24, disability certificate. Ex.P.25 is the X-ray produced by the claimant. Even according to Dr. Thiagarajan, the claimant has not sustained any fracture and it has been admitted in cross examination by Dr. Thiagarajan that the claimant has not sustained fracture.
49. According to P.W.9, the claimant's right knee muscle twisted, there is contusion in the right hand wrist, swelling in right leg knee and therefore he is not in a position to wear shoes and he is unable to drive his vehicle. On these basis, Dr. Thiagarajan, assessed the permanent disability at 25%.
50. Ex.P.29 is the wound certificate issued by Dr. K. Natarajan of R.K. Nurshing Home, Chidambaram which only show that the claimant has sustained contusion around the left ankle joint and contusion on the left wrist in 2 cm. Ex.P.25 is the X-ray which would not show any fracture, but mere twisting for the time being. However, Ex.P.24 disability certificate issued by Thiagarajan it has been certified that the disability is partial and permanent and it is to the extent of 25%. The said certificate in our considered view cannot be accepted since there is inconsistencies and an orthopaedic surgeon has not given treatment to the claimant and the certificate runs counter to the deposition of the claimant. Ex.P.11 is the receipt given by Dr. R. Devakanthan acknowledging payment of Rs. 5000/= paid towards treatment given by him after the accident for the sprain in left ankle and the charges were towards consultancy, dressing, injunctions, investigation etc., for the period between 14.6.1997 and 12.7.1997. Ex.P.13 would show that only in December 1998, the claimant has passed Master of Arts in History conducted by Annamalai University.
51. Ex.P.14 would show that the claimant did not attend office of M/s. Tibrawala & Co., Foreign Exchange Brokers, between 14.6.1997 to 15.7.1997. There is no material to show what was the term of employment or engagement and how much the claimant was making with the said employer or Foreign Exchange Agencies. In para 13 of the award, the tribunal below considered the claim of this appellant. The Tribunal proceeded on the basis that the claimant was earning Rs. 5000/= per month though it has declined to accept the claim that he was earning Rs. 17,500/= per month and under the head of loss of income the tribunal awarded Rs. 5000/=. Excepting the wound certificate to show that the claimant did not attend the office for nearly a month, no other material has been placed. Though the claimant claimed that he was an income-tax assessee, the same cannot be accepted in the absence of any material. Award of Rs. 5000/= towards loss of earning for the period of one month is challenged as it is on the higher side. Being a graduate employed in a Foreign Exchange Agency, in all probability the claimant would have earned Rs. 3,000/= to Rs. 5,000/= per month and therefore this court is not inclined to interfere with the award of Rs. 5,000/= towards loss of earning.
52. The claimant claimed Rs. 2000/= towards transportation expenditure. The tribunal awarded Rs. 1500/= under this head. This is very reasonable. This court is not interfering with the said award. Towards medical charges the tribunal awarded Rs. 5000/=. No material has been produced except the receipt issued by Dr. Devakanthan. But the tribunal awarded Rs. 2000/= for purchase of medicines in addition to Rs. 5000/= without any material or receipt to show that the claimant has purchased medicines and consumed it. The award of Rs. 2000/= towards medicine is disallowed. Hence towards medical charges Rs. 5000/= alone is awarded. The tribunal also awarded Rs. 2,000/= towards extra nourishment. Though this is on the higher side, this court is not interfering with the same. The tribunal rightly rejected the claim of Rs. 50,000/= towards loss of personal belongings like wrist watch, glasses, jewels and dresses. The tribunal awarded Rs. 25,000/= towards pain and suffering. Taking into consideration of the claim, the evidence of Dr. Thiagarajan, Dr. Rajappa and Ex.P.11, the award of Rs. 25,000/= is on the higher side and we reduce the award to Rs. 15,000/=. The tribunal awarded Rs. 25,000/= towards permanent disability and Rs. 25,000/= towards future loss of earning capacity. This is definitely on the higher side. It is not as if the claimant is not attending his regular work. The claimant has not suffered any grievous injury or fracture, but sprain or contusion and he had to undergo treatment for that and he was not hospitalised. Taking into consideration of the entire materials, we inclined to award Rs. 15,000/= towards partial permanent disability and Rs. 10,000 towards future loss of income. Thus, in all we award Rs. 53,500/=. CMA. No. 1154 of 2001 is allowed in part. No cost. Consequently, Cross Objection No:11 of 2002 is seeking enhanced compensation is dismissed. This Court is not inclined to award interest at 12%, but reduce the same to 9%. Thus, in MCOP. No. 4031 of 1997 there will be an award and decree directing the respondents 1 and 2 to pay Rs. 53,500/= with 9% interest from the date of petition and till date of payment with proportionate cost.
53. Taking up CMA.No:1155 of 2001, Hemasundari, Claimant in MCOP. No. 4049 of 1997 who examined herself as P.W.5, made a claim in all Rs. 7 lakhs for the injuries sustained on her right side skull lading to contusion of brain, right eye vision blurred resulting in double vision, dislocation of bone in right hand shoulder and elbow, crack fracture in back hip bone. Severe injury in right side chest, multiple internal and external injuries all over body, besides loss of jewels, dress materials and cash lost in the accident.
54. The tribunal awarded Rs. 3,41,500/=. Challenging the same, the appeal has been preferred. G.Hemasundari, in her evidence as P.W.5 she deposed that she has sustained injury in right side forehead, dislocation of bone in right hand shoulder, elbow dislocation, right side eye nerve cut, dislocation of right side hip. She has deposed that she underwent treatment between 14.6.1997 to 24.6.1997 with Dr. Devakanthan. Ex.P.15 is to the same effect. Ex.P.16 is the prescription. Ex.P.17(series) is the Medical Bills for Rs. 1362.48.
55. It is her claim that her vision has been affected. She has difficulty in using her right hand for lifting. She has admitted that she is not employed on the date of examination. She has admitted that she has passed +2 examination. But she has not produced any certificate. She has also admitted that she is a house wife. In the cross examination she has stated that she has started using spectacles after the accident, but she has not produced the Doctor's certificate. A perusal of the Ex.P.39 do not disclose any fracture. Ex.P.27 series is X-rays produced by her. Ex.P.38 wound certificate issued by Dr. K. Natarjan of R.K. Nurshing Home, Chidambaram would show that the claimant has sustained a contusion on the right shoulder joint 3 cm diameter blackish red in colour, tender.
56. Devakanthan has treated and he has received Rs. 2000 towards dressing and injections between 14.6.1997 and 24.6.1997 for acute ligamental tear of right shoulder with sub conjectual haemorrhage and for the injury in right eye. Dr. Devakanthan is the Consulting Physician and not an Ophthalmologist. The prescription namely Ex.P.16 and P.17 are not of much help and they would show that the claimant has purchased medicines to the value of Rs. 1362.48 paise.
57. The Disability Certificate issued by Dr. Devakanthan again comes for severe criticism and he has issued a certificate to the effect that this claimant has suffered partial permanent disability to the extent of 25%. What is referred to is only ligamental tear of right shoulder and there is a restriction in the movement of right hand and that she is not able to lift weight. The assessment of disability at 25% cannot be accepted on the very evidence of the claimant. Dr. Rajappa a Civil Surgeon of Government Ophthalmic Hospital, Egmore, Chennai-8 has issued a certificate about the defect in the right eye.
58. It is the claim that this claimant is employed with M/s. Sreerala Constructions, Secundrabad on a salary of Rs. 5000/= as typist cum clerk. According to Dr. Rajappa there is bleeding and the movement of eye balls are sluggish and there is reduction in her eye sight. It is his opinion that the claimant has to undergo further treatment. It is also admitted that he has not suggested any particular treatment and he has issued a certificate, Ex.P.28.
59. The tribunal below in all awarded Rs. 3,41,500/= with 12% interest. The claimant has not even passed School final or Higher Secondary Examination She has not produced any certificate. But she has claimed that she is employed on a salary of Rs. 5000/=. The employer has not been examined. It is not as if she has undergone treatment continuously for a period of one month. Therefore the Tribunal will not be justified in awarding Rs. 5000/= towards loss of income. The award of loss of income for the period during which the claimant has undergone treatment is on the higher side, and we are interfering with the said award of Rs. 5000/= award Rs. 1000/= only under this head.
60. Towards transportation expenses, the Tribunal awarded Rs. 1500/=. We are not inclined to interfere with the said sum. The tribunal awarded Rs. 5000/= towards extra nourishment for ten days hospitalisation. But it is on the higher side and we reduce this from Rs. 5000/= to Rs. 3000/=. The tribunal disallowed the claim of loss of some personal belongings like watch, dress materials etc., and we do not see any reason to interfere with the said finding as there is no evidence in this respect.
61. As against the claim of Rs. 35,000/= towards medical expenses, the Tribunal awarded only Rs. 5000/= taking into consideration of the medical bills and certificate issued by Dr. Devakanthan. We confirm the same. A sum of Rs. 75,000/= has been claimed towards pain and suffering and the Tribunal awarded Rs. 50,000/= under this head. Taking into consideration of the entire fact, the nature of injuries sustained, the award of Rs. 50,000/= towards pain and suffering is on the higher side and on a consideration we reduce the same to Rs. 20,000./=.
62. Towards partial permanent disability, the tribunal awarded Rs. 75,000/=. This is certainly on the higher side and we reduce the same to Rs. 30,000/=, taking into consideration of the nature of the injury sustained, the treatment undergone and there being no permanent disability.
63. As regards the loss of future earnings, the tribunal awarded Rs. 2,00,000/=. This is definitely on the higher side. The very employment itself is doubted and it was even suggested that the claimant is only a house wife and she is not employed. The claimant has not suffered permanent disability and the disability certificate issued by Dr. Devakanthan has been rightly criticised.
64. As regards the injury, namely loss of eye sight, Dr. Rajappa has opined that normal vision has been reduced to a small extent. The said Dr. Rajappa has not even suggested that the claimant has to undergo further treatment for that there is no chance of recovery of normal eye sight. However, taking into consideration of the injuries sustained and loss of eye sight to a small extent, this court awards Rs. 30,000/= in all towards partial disability as against Rs. 2,00,000/= awarded. Thus, this court reduce the compensation awarded under various heads to Rs. 1,10,500/= as against Rs. 3,41,500/=.
65. CMA. NO. 1155 of 2001 is allowed in part. No costs. Consequently, Cross Objection No. 12 of 2002 is dismissed. This Court is not inclined to award interest at 12%, but reduce the same to 9%. Thus, in MCOP. No. 4049 of 1997 there will be an award and decree directing the respondents 1 and 2 to pay Rs. 1,10,500/= with 9% interest from the date of petition and till date of payment with proportionate cost.
66. In the result,
(i) The appeal in CMA. No. 1151 of 2001 is allowed in part and consequently, the Cross Objection No. 8 of 2002 is dismissed. Thus, in MCOP. No. 3939 of 1997 there will be an award and decree directing the respondents 1 and 2 to pay Rs. 30,000/= with 9% interest from the date of petition and till date of payment with proportionate cost.
(ii) CMA. NO. 1152 of 2001 is allowed in part. Consequent to the CMA preferred by the Insurance Company allowed in part, Cross Objection No. 9 of 2002 preferred by the claimant-petitioner is dismissed. Thus, in MCOP. No. 3940 of 1997 there will be an award and decree directing the respondents 1 and 2 to pay Rs. 1,23,000/= with 9% interest from the date of petition and till date of payment with proportionate cost.
(iii) CMA.No:1153 of 2001 is partly allowed. Consequently Cross Objection No. 10 of 2002 is dismissed. Thus, in MCOP. No. 3941 of 1997 there will be an award and decree directing the respondents 1 and 2 to pay Rs. 39,000/= with 9% interest from the date of petition and till date of payment with proportionate cost.
(iv) CMA. No. 1154 of 2001 is allowed in part. Consequently, Cross Objection No:11 of 2002 is seeking enhanced compensation is dismissed. Thus, in MCOP. No. 4031 of 1997 there will be an award and decree directing the respondents 1 and 2 to pay Rs. 53,500/= with 9% interest from the date of petition and till date of payment with proportionate cost.
(v) CMA. NO. 1155 of 2001 is allowed in part. Consequently, Cross Objection No. 12 of 2002 is dismissed. Thus, in MCOP. No. 4049 of 1997 there will be an award and decree directing the respondents 1 and 2 to pay Rs. 1,10,500/= with 9% interest from the date of petition and till date of payment with proportionate cost.
(vi) Consequently, all the connected CMPs are closed.