(Order of this Court was made by S.MANIKUMAR, J.) Being aggrieved by the award, dated 30.09.2016, made in M.C.O.P.No.63 of 2015, on the file of the Motor Accidents Claims Tribunal (Sub Court), Hosur, Iffco Tokio General Insurance Company has preferred this appeal.
2. In the accident, which occurred on 01.06.2014, involving a Maruti Omni Car, bearing Registration No.TN 70 C 1194 and Eicher Light Goods Vehicle, bearing Registration No.TN 33 Y 3339, owned by the 2nd respondent and insured with the appellant-Insurance Company, the respondent/claimant has sustained fracture of right elbow, crush injury in the upper arm with bone loss, fracture of the olecranon (bone in elbow joint) and other multiple injuries, all over the body. A case in Cr.No.83 of 2014, has been registered on the file of Mahendramangalam Police Station, against the driver of the Eicher vehicle, for the offences under Sections 279, 337 and 338 IPC.
3. Immediately after the accident, the respondent/claimant has been taken to Government Hospital, Palacode and given first aid. Thereafter, he was admitted in Sparsh Hospital, Bangalore and given inpatient treatment, as inpatient for 11 days, ie., from 01.06.2014 to 11.06.2014. During the period of treatment, he underwent the following surgeries, "(a) Wound debridement and external fixator application of right elbow done on 01.06.2014 and internal fixation deferred due to crush injuries in the shoulder.
(b) Wound debridement and extension of external fixator was done on 03.06.2014.
(c) Wound debridement, suturing and SSG (Split Skin Graft) for right elbow was done on 03.06.2014."
4. The respondent/claimant was again re-admitted on 08.07.2014, in the same hospital for upper arm bone fracture. He underwent surgery, ORIF (Open Reduction Internal Fixation) and during the process, external fixator has been removed and 10 holed plate with screws were affixed to the fractured bones. After post operative treatment, he was discharged on 12.07.2014. Thereafter, he has taken periodical treatment, as outpatient.
5. According to the respondent/claimant, he was an agriculturist by avocation and because of right elbow fracture, upper arm crush injury and bone loss, function of his right arm has been severely affected and that he has sustained permanent disability. He has further stated that due to the multiple fractures of elbow, he is unable to lift weights, pull any objects and ride a motorcycle. Due to the accidental injuries and disability, he has lost his earning capacity.
6. Before the Claims Tribunal, the respondent/claimant examined himself as PW.1 and reiterated the manner of accident. As regards injuries and disability, he has marked Exs.P5, P6 and P8 - Discharge Summaries, Exs.P7 and P9 - Medical Bills, Ex.P11 - X-Rays and Ex.P12 - X-Rays Bills. As per Ex.P5 - Discharge Summary issued by Sparsh Hospital, Bangalore, a surgery has been performed during the period between 01.06.2014 and 11.06.2014 and steel plates were fitted with screws. Ex.P6 - Discharge Summary issued by Sparsh Hospital, Bangalore, shows that steel plates fixed already were removed, during the period between 08.07.2014 and 12.07.2014. Thereafter, on 09.12.2014, the injured has been admitted in Ganga Hospital, Coimbatore and taken inpatient treatment till 21.12.2014. During the said period, he underwent a surgery for replacement of right forearm, which is evident from Ex.P8 - Discharge Summary.
7. PW.2, Doctor, who clinically examined the respondent/claimant, with reference to medical records, has deposed that due to the bone loss, functioning of the right arm has been severely affected and earning power has been considerably reduced. He further deposed that the injured cannot lift his right arm above 180 Degree straight, and that he is unable to do any work, using right arm. He has also deposed that it is difficult for the injured to lift heavy objects and do work, as done before the date of accident. He has assessed the disability at 65% and issued Ex.P10 – Disability Certificate.
8. On evaluation of pleadings and evidence, the Claims Tribunal held that the driver of the Eicher Light Goods Vehicle, bearing Registration No.TN 33 Y 3339, owned by the 2nd respondent and insured with the appellant-Insurance Company, was negligent in causing the accident. Having regard to the functional disablement of 65% determined by PW.2 Doctor, supported by Ex.P10 - Disability certificate and correlating the same, with the loss of future earning capacity, in engaging himself in agricultural activities, the Tribunal has applied multiplier method, for the purpose of computing the loss of future earning.
9. Though in the claim petition, age of the respondent/claimant has been mentioned as 28 years, the Tribunal determined his age as 26 years and applied 17 multiplier. As regards income, following the decision in Syed Sadiq v. The Divisional Manager, United India Insurance Co. Ltd., reported in 2014 ACJ 627, the Tribunal fixed the monthly income of the respondent/claimant as Rs.6,500/-. Loss of future earning capacity has been computed as Rs.8,61,900/- (6,500 x 12 x 17 x 65/100).
10. Added further, towards loss of pain and suffering, the Tribunal has awarded Rs.1 lakh. On the basis of Exs.P7, P9 and P12 - Medical Bills, the Tribunal has awarded Rs.5,98,000/-. That apart, the Tribunal has awarded Rs.20,000/- for transportation, Rs.10,000/- for nutrition and Rs.25,000/- towards attendant charges. Altogether, the Tribunal has awarded Rs.16,14,900/- with interest, at the rate of 7.5% per annum.
11. For three different spells, the injured claimant has been hospitalized and taken inpatient treatment. During the period of treatment, surgeries have also been performed. For nearly six months, he has taken treatment as inpatient, in two different hospitals, for three different spells and for such period, there would not be any income. The Tribunal has failed to award any compensation, towards loss of income, during the period of treatment.
12. Loss of amenities as per the Full Bench decision of this Court in Cholan Roadways Corporation Ltd., Kumbakonnam vs. Ahmed Thambi and others reported in 2006 (4) CTC 433, is as follows:
"deprivation of the ordinary experiences and enjoyment of life and includes loss of the ability to walk or see, loss of a limb or its use, loss of congenial employment, loss of pride and pleasure in one's work, loss of marriage prospects and loss of sexual function"
The Tribunal has failed to award any amount for loss of amenities. Considering the nature of injuries and the consequential disablement, the Tribunal ought to have awarded loss of amenities.
13. It could be further seen from the award that there is no compensation towards permanent disability, in terms of the decision in B.Kothandapani v. Tamil Nadu Transport Corporation Ltd., reported in 2011 (5) SCC 420. Compensation awarded under some other heads, is less. In the light of the above discussion, this Court is of the view that the quantum of compensation, awarded by the Tribunal, cannot be said to be excessive or bonanza, warranting interference.
S. MANIKUMAR, J.
AND M.GOVINDARAJ, J.
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14. In the result, the Civil Miscellaneous Appeal is dismissed.
The appellant-Insurance Company is directed to deposit the entire amount, less the amount already deposited, with accrued interest and costs, to the credit of M.C.O.P.No.63 of 2015, on the file of the Motor Accidents Claims Tribunal (Sub Court), Hosur, within a period of four weeks from the date of receipt of a copy of this order. The respondent/claimant is permitted to withdraw the said amount, by making necessary applications before the Tribunal. No costs. Consequently, connected Miscellaneous Petitions are also closed.
To The Motor Accidents Claims Tribunal, (Sub Court), Hosur.
(S.M.K., J.) (M.G.R., J.) 05.06.2017
C.M.A.No.1603 of 2017
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