(Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, to set aside the Judgement and Award of the Motor Accident Claim Tribunal (Sub Court), Jayankondam in MCOP.No. 312 of 2017(Ariyalur Principal District MCOP No. 306 of 2016) dated 05-06-2020.)

Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, to set aside the Judgement dated 05-06-2020 made in MCOP.No. 312 of 2017 on the file of Motor Accident Claim Tribunal, Sub Court, Jayankondam.)

Common Judgment

1. The present Civil Miscellaneous Appeals have been filed challenging the judgement and Award dated 2017 dated 05.06.2020, in MCOP No.312 of 2017 passed by the Motor Accident Claims Tribunal (Sub Court) Jayankondan.

2. The facts leading to the present lis is that, on 02.09.2016 at about 7:15 p.m., the claimant, had met with an accident due to the rash and negligent driving of a Two Wheeler which, came from behind and dashed him, causing grievous injuries, including a skull fracture and blood clot his brain vessels. He was immediately rushed to the hospital, where he underwent brain surgery and continued the treatment as an inpatient from 03.09.2016 to 30.09.2016.

3. The injuries sustained by the claimant have resulted in permanent disability, assessed at about 25%, which has substantially impaired his earning capacity and rendered him incapable of continuing his occupation. Therefore a claims petition came to be filed, claiming compensation to the tune of Rs.38,00,000/-. The rider of the offending motorcycle was impleaded as the 1st respondent, and the insurance Company which had insured the offending vehicle was impleaded as the 2nd respondent. Upon the demise of the 1st respondent, his wife, being his legal heir was brought on record as the 3rd respondent.

4. The Claims Tribunal, after analysing, the case had by award and judgement dated 05.06.2020, held that the claimant is entitled to a sum of Rs.12,64,197/- as compensation, payable jointly and severally by the 2nd and 3rd respondents, together with interest at the rate of 7.5% per annum from the date of the claim petition till the date of realisation. The Tribunal further directed the respondents to deposit a sum of Rs.7,64,197/- within a period of two months from the date of the judgment, i.e., 05.06.2020, upon which the petitioner is permitted to withdraw the same. The balance amount of Rs.5,00,000/- was directed to be deposited in a nationalised bank. Aggrieved by the said award and judgment passed by the Claims Tribunal, the claimant preferred Civil Miscellaneous Appeal in CMA No. 1817 of 2020, seeking enhancement of the compensation awarded by the Tribunal. On the other hand, the Insurance Company, with which the offending vehicle was insured, had preferred Civil Miscellaneous Appeal in CMA No. 1596 of 2023, seeking to set aside the award and judgment dated 05.06.2020 passed by the Claims Tribunal.

5. Heard both the learned counsels appearing for the respective parties in both the appeals.

CMA.No.1817 of 2020:

6. The claimant in the claim petition has preferred the present Civil Miscellaneous Appeal seeking enhancement.

7. The learned counsel for the appellant would submit that the learned Claims Tribunal has erred in fixing compensation disproportionately low when compared to the amount claimed in the Claims Petition. He would vehemently contend that the Tribunal erred in awarding only Rs.3,000/- per percentage of disability, without considering the principles laid down by this Court, wherein it has been held that the compensation ought to granted depending upon the age, occupation, and nature of injuries sustained by the claimant and he placed reliance upon the judgment of this Court in the case of M.Chinnathambi Vs S.Deepa and others reported in 2020 (1) TN MAC 617, in support of his contention.

8. It was further contended that the learned Claims Tribunal ought to have adopted the multiplier method, especially when the appellant had suffered permanent disability assessed to be at 25%, which has affected his earning capacity. The learned counsel would also submit that the Tribunal failed to properly consider the nature and gravity of the injuries sustained by the appellant, including head and skull injuries and consequently erred in awarding an inadequate amount towards pain and suffering. He further submits that the Tribunal failed to take into account of the prolonged period of treatment undergone by the appellant and ought to have awarded a higher amount towards extra nourishment and transportation charges. Further it is also submitted that the Claims Tribunal failed to consider that the appellant had undergone inpatient treatment for a considerable duration and erred in awarding only a meagre sum of Rs.20,000/- towards his mental agony/depression. In fine, the learned counsel would submit that the compensation awarded by the learned Claims Tribunal is inadequate and unsustainable by law. He therefore prays that this Court may be pleased to enhance the award and allow the present Civil Miscellaneous Appeal.

CMA.No. 1596 of 2023

9. The present Civil Miscellaneous Appeal has been filed by the Insurance Company, challenging the award as being excessive.

10. The learned counsel for the appellant would submit that the Tribunal has erred in awarding an exorbitant compensation of Rs.12,64,197/- without properly appreciating the pleadings and the evidence adduced on record in the proper perspective. He would vehemently contend that the Tribunal erred in awarding an excessive sum of Rs.10,76,997/- under the head of Medical Expenses, solely based on the medical bills marked as Ex.P8 series, which pertains to the inpatient treatment of the 1st respondent/claimant. He submits that the aforesaid compensation under the medical expenses was granted by the Tribunal without duly scrutinising and analysing Ex.P8 series. He would further submit that the aforesaid document was marked subject to objection by the appellant, which aspect has not been considered by the Tribunal.

11. It is further contended that the Tribunal failed to note that the medical bills forming part of Ex.P8 series pertain to various dates, namely 03.09.2016, 08.09.2016, 10.09.2016, 19.09.2016, 26.09.2016 and 30.09.2016, and they are cumulative in nature. According to him, the Tribunal ought to have considered only the final bill, pertaining to the inpatient treatment of the 1st respondent, issued at the time of discharge, which amounts to Rs.2,58,001/-, as the bills were just the repetition of the same contents. He further submits that the pharmacy bills as per the Ex.P8 series would amount to a sum of Rs.80,078/-. Therefore the he contends that, even as per Ex.P8 series produced by the 1st respondent, the total amount that could be legitimately awarded under the head of medical expenses would be less than one third of the actual compensation awarded by Tribunal. Therefore, the award of Rs.10,76,997/- under the said head is excessive and suffers from an error apparent on the face of the record. In fine, the learned counsel submits that the compensation awarded by the learned Claims Tribunal is exorbitant, unreasonable and not in accordance with law. Therefore he prays this Court’s indulgence.

12. I have considered the rival submissions of both sides and have perused the materials available on record.

13. The primordial contention of the appellant in CMA No. 1817 of 2020 is that the learned Claims Tribunal has erred in assessing compensation towards disability by granting only Rs.3,000/- per percentage of disability. The evidence on record, especially the deposition of the doctor examined as PW2, read with the disability certificate issued by her and marked as Ex.P11, establishes that the appellant/claimant has suffered 25% permanent disability. The learned counsel for the appellant has placed reliance upon the judgment of this Court reported in 2020 (1) TN MAC 617, which reiterates the principles laid down by this court in its judgement in the case of National Insurance Co. Ltd. vs. G. Ramesh, reported in 2013 (2) TN MAC 583, wherein it has been held that the compensation awarded towards disability on a percentage basis is liable to be periodically enhanced by taking into account the rise in the cost of living. It is seen from the aforesaid judgment that this Court had awarded Rs.3,000/- per percentage of disability for an accident that occurred in the year 2009, enhancing the earlier rate of Rs.2,000/- per percentage. Subsequently, considering the increase in the cost of living, the rate was enhanced to Rs.4,000/- per percentage in the year 2014 and further to Rs. 5,000/- per percentage in the year 2015.

14. In the present case, it is pertinent to note that the appellant has not established that the disability suffered by him is a functional disability, completely affecting his earning capacity. In such circumstances, applying the principle laid down by this Court in its judgment reported in 2020 (1) TN MAC 617, this Court holds that the appellant/claimant is not entitled to compensation by adopting the multiplier method. Further, applying the ratio laid down by this Court in its judgment reported in 2013 (2) TN MAC 583 to the facts of the present case, and considering the fact that the accident occurred in the year of 2016, the appellant would be entitled to a sum of Rs.5,000/- per percentage of disability. Accordingly, for a 25% disability, the compensation payable under the Disability head is fixed at Rs.1,25,000/-.

15. Insofar the Insurance Company, which is the appellant in CMA No. 1596 of 2023, is concerned, its primordial contention is that the sum of Rs.10,76,697/- awarded by the learned Claims Tribunal towards medical expenses is exorbitant. It is pertinent to note that the said amount has been awarded based on the medical bills marked as Ex.P8 series. Upon a careful perusal of the Ex.P8 series, it can be seen that there is a repetition and duplication of bills, inasmuch as both cumulative bills relating to ICU and general ward charges, as well as individual bills pertaining to pharmacy expenses, which have been included for the same period. Upon proper segregation of the said bills, it is found that the total amount under Ex.P8 series aggregates to Rs.3,65,972.20/-, with the following break-up, namely, Rs.80,078/- towards pharmacy bills; Rs.2,58,001.20/- towards ICU and general ward charges (Final Bill); Rs.27,050/- towards Laboratory Tests and Scan charges; and Rs.850/- towards General Consultation fees. Therefore, this Court is of the view that the amount awarded by the learned Claims Tribunal under the head of medical expenses is excessive in nature, and only a sum of Rs.3,65,972.20/- ought to have been awarded under the said head.

16. Further, this Court is of the view that the sum of Rs.20,000/- awarded by the learned Claims Tribunal under the head of Depression/Mental Agony would fall within the ambit of Pain and Suffering, under which the Tribunal has already awarded a sum of Rs.25,000/-.Accordingly, this Court deems it fit to award a consolidated sum of Rs.50,000/- under the head of Pain and Suffering. Therefore, in view of the foregoing discussion, the award dated 05.06.2020 passed by the learned Claims Tribunal stands modified as follows: