BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 21/04/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.238 of 2001 and M.P.(MD)No.2 of 2010 P.Parthasarathi ... Appellant / Petitioner Vs. 1. Subramanian 2. Govindarajan 3. The Oriental Insurance Company Limited, through its Branch Manager, Trichy. ... Respondents/ Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree made in M.C.O.P.No.463 of 1998, dated 31.07.2000, on the file of the Motor Accident Claims Tribunal cum the Principal District Judge, Dindigul. !For Appellant ... Mr.Hemakarthikeyan ^For Respondents ... Mr.K.Bhaskaran for R.3 For R.2 ... No Appearance * * * * * :JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellant against
the judgment and decree made in M.C.O.P.No.463 of 1998, dated 31.07.2000, on the
file of the Motor Accident Claims Tribunal cum the Principal District Judge,
Dindigul.
2. The appellant travelled in a bus owned by the first respondent. The
bus was insured with the third respondent. While he was travelling in the bus,
the lorry owned by the second respondent hit the bus and he lost his right hand
entirely and his right hand was amputated at the shoulder level. He suffered
90% permanent partial disability. The lorry was also insured with the third
respondent. He filed M.C.O.P.NO.463 of 1998 claiming Rs.10,00,000/- as
compensation before the Motor Accident Claims Tribunal, Principal District
Judge, Dindigul. The Tribunal passed an award dated 31.07.09, holding that both
the drivers of the lorry and the bus equally contributed to the accident and
fastened the liability on each of them at the ratio of 50% and 50%. However
that makes no difference since the third respondent is the Insurance Company for
both the vehicles. The Tribunal awarded Rs.2,84,200/- as compensation with 12%
interest and costs. The claimant seeks enhancement of compensation from
Rs.2,84,200 to Rs.10,00,000/-.
3. Heard Mr.Hemakarthikeyan, learned Counsel for the appellant and
Mr.K.Bhaskaran, learned Counsel for the third respondent.
4. The Tribunal granted compensation under the following heads:
(i) for loss of income Rs.2,59,200
(ii) for medical expenses Rs. 15,000
(iii)for loss of amenities Rs. 10,000
———–
Total Rs.2,84,200
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5. The learned Counsel for the appellant makes the following submissions:
(i) The Tribunal committed error in fixing Rs.2,000/- as monthly earnings of the
appellant and thereafter made 1/3rd deduction towards personal expenses.
(ii) The Tribunal failed to award any amount towards (a) pain and sufferings,
(b)loss of expectation of life, hardship, mental stress etc., and (c) for loss
of prospects of marriage.
(iii) The Tribunal awarded only Rs.10,000/- towards loss of amenities, which is
on lower side.
(iv) The Tribunal awarded only Rs.15,000/-, when the appellant produced medical
bills for Rs.39,755/-.
(v) The Tribunal failed to award any amount towards fixation of artificial hand
and for future medical expenses.
(vi) The Tribunal failed to award any amount towards transportation charges and
for extra nourishment.
6. On the other hand, the learned Counsel for the third respondent submits
that there is no infirmity in the award and the Tribunal correctly fixed
Rs.2,000/- as monthly wages. In any event, the learned Counsel fairly submits
that 1/3rd deduction could not be made in the case of injuries. The learned
Counsel relies on the following decisions and submits that there is no necessity
to interfere in the award.
(i) K.Narayanasamy Vs. Mukunda and Others reported in 1999 ACJ 1599(Delhi)
(ii) New India Assurance Company Limited Vs. K.Tamil Selvi and Others reported
in 2002 ACJ 1810(Karnataka)
(iii)Nnandaram Dakot Vs. Rustam and Others reported in II(2002)ACC
360(Rajasthan)
(iv) Sanjeeveni Ananda Awate and Others Vs. Managing Director and Another
reported in 2002 ACJ 1814(Karnataka)
(v) Farook Vs. Anil and Others reported in 2005 ACJ 271(MP)
(vi) Divisional Controller Vs. Mahadeva Shetty reported in 2003 ACJ 1775(SC)
(vii) Shankarappa Kubbanna Kattimani Vs. Karnataka State Road Transport
Corporation, reported in 2007 ACJ 2279(SC).
(viii) M.Bhahavathi Vs. Thiruvalluvar Transport Corporation reported in 2005(5)
CTC 745.(Mad)
(ix) Pramod Pachori Vs. Suresh Chandra reported in 2007 ACJ 564.(MP)
7. I have considered the submissions made on either side and perused the
records.
Issue No.1:
8. The first issue is whether the Tribunal was correct in fixing
Rs.2,000/- as monthly earnings and whether the Tribunal was correct in deducting
1/3rd amount towards personal expenses.
9. The learned Counsel for the appellant relies on the judgment of the
Honourable Apex Court in National Insurance Company Limited Vs. Khimlibai and
Others reported in 2009(2) TNMAC 256(SC) and the judgment of this Court in Tamil
Nadu State Transport Corporation Limited Vs. S.Srinivasan and Others reported in
2008(1) TNMAC 151, and submits that atleast Rs.3,000/- could be fixed as monthly
salary. According to him, in the judgment of the Honourable Supreme Court, the
accident took place in the year 1997, wherein Rs.3,000/- was taken as monthly
earnings of a Carpenter. In the another case, the accident took
place in the year 1985 and the concerned person was a driver and in that case
Rs.3,500/- was taken as monthly earnings. However, the learned Counsel for the
appellant submits that he will be satisfied if Rs.2,000/- is taken as monthly
salary without any deduction towards personal expenses. In fact, the learned
Counsel for the third respondent fairly submits that in the case of injuries,
there is no need to make any deduction towards personal expenses for computing
compensation. Hence, I fix the monthly salary at Rs.2,000/- for the purpose of
compensation without any deductions.
10. There is no dispute over the age. The appellant was aged about 27
years at the time of the accident. There is no dispute in choosing the
multiplier “18”. Hence, the compensation towards loss of income works out to
Rs.2,000 x 12 x 18 x 90/100 = Rs.3,88,800/-
Issue No.2:
11. Whether the Tribunal failed to award any amount towards (a) pain and
sufferings, (b)loss of expectation of life, hardship, mental stress etc., and
(c) for loss of prospects of marriage.
12. The appellant lost his right hand entirely and there was amputation at
the shoulder level. In fact, the Tribunal noted in paragraph 13 of the award
that right hand assumes greater importance in the human body. Further, the
appellant was aged about 27 years at the time of the accident. He was at the
prime stage of youth and his dreams were shattered due to the losing of right
hand. In this connection, paragraph 19 of the Full Bench judgment of this Court
in Cholan Roadways Corporation Limited Vs. Ahmed thambi and 6 others reported in
2006-3 L.W.1025 is extracted herein:
“9. In Halsbury’s Laws of England, Fourth Edition, Para 879 states that a person
injured by another’s wrong is entitled to general damages for non-pecuniary
loss, such as his pain and suffering and loss of amenity, and to damages for
pecuniary loss, both past and future, including loss of earnings, medical
expenses, cost of nursing care and for loss of earning capacity where he is
handicapped in the labour market. Broadly the heads of damages can be divided
as follows:
A. Pecuniary loss:
(1) expenses caused by the injuries;
(2) loss of earning or profits–
(a) from the date of accident till the date of trail
(b) prospective loss
(c) incidental expenses.
B. Non-pecuniary loss:
(1) pain and sufferings
(2) loss of amenities of life
(3) loss of expectation of life
The normal practice is to itemise the award broadly while keeping an eye
on the whole, to be just and fair. Further the
amount awarded must be liberal and not meager since the law values life and limb
in a free society on generous scales. However, all these elements have to be
viewed with objective standards.”
13. In the light of the dictum laid down by the Full Bench of this Court,
the appellant is entitled to compensation towards (a) pain and sufferings,
(b)loss of expectation of life, hardship, mental stress etc., and (c) for loss
of prospect of marriage.
14. The learned Counsel for the appellant submits that the appellant has
to be awarded Rs.1,00,000/- under each head.
15. The learned Counsel for the third respondent relies on the above said
judgments in paragraph 6 and opposes against granting compensation under the
heads as sought for by the appellant.
16. In my view, in the judgments relied on by the learned Counsel for the
third respondent, there is no law laid down relating to the compensation for
(a) pain and sufferings, (b)loss of expectation of life, hardship, mental stress
etc., and (c) loss of prospects of marriage. In fact, in the judgment of the
Apex Court in Divisional controller Vs. Mahadeva Shetty reported in 2003 ACJ
1775, relied on by the learned Counsel for the third respondent supports the
case of the appellant. The appellant is entitled to compensation towards (a)
pain and sufferings, (b)loss of expectation of life, hardship, mental stress
etc., and (c) loss of prospects of marriage, in the light of the decision of
Full Bench of this Court read with the Honourable Apex Court relied on by the
learned Counsel for the third respondent. However, I am not inclined to grant
Rs.1,00,000/- under each head as sought for by the appellant. I am inclined to
grant Rs.75,000/- under each head.
Issue No.3:
17. Whether the Tribunal was correct in awarding only Rs.10,000/- towards
loss of amenities, which is on lower side.
18. Taking into account that the appellant lost his right hand and that he
was aged 27 years at the time of the accident, the Tribunal awarded Rs.10,000/-
towards loss of amenities, which is on the lower side. It is stated that he is
practising as an Advocate before this Court. I am inclined to grant Rs.75,000/-,
while the appellant sought Rs.1,00,000/- under this head.
Issue No.4:
19. Whether the Tribunal was correct in awarding only Rs.15,000/-, when
the appellant produced medical bills for Rs.39,755/-.
20. The claim of the appellant is to reimburse him the entire medical
expenses. In fact, the learned Counsel for the third respondent fairly submits
that the third respondent has no objection to grant Rs.39,755/- as claimed by
the appellant based on the medical bills. Hence, the same is awarded.
Issue No.5:
21. Whether the Tribunal failed to award any amount towards fixation of
artificial hand and for future medical expenses.
22. The learned Counsel for the appellant states that he produced Ex.A.1
relating to the estimation of fixation of artificial limb. According to Ex.A.1,
the estimation is Rs.3,80,000/-. However, the learned Counsel for the third
respondent submits that the third respondent has no objection to award
Rs.50,000/- towards fixation of artificial limb. The learned Counsel for the
appellant has no objection to restrict his claim to Rs.50,000/- under this head.
Hence, Rs.50,000/- is awarded towards fixation of artificial hand.
Issue No.6:
23. Whether the Tribunal failed to award any amount towards
transportation charges and for extra nourishment.
24. As there is no amount awarded by the Tribunal towards transportation
charges and for extra nourishment, I am inclined to grant Rs.25,000/- for both
heads.
25. Therefore, the following compensation is fixed by this Court.
(i) for loss of income Rs. 3,88,800
(ii) pain and sufferings Rs. 1,00,000
(iii)loss of expectation
of life, hardship,
mental stress etc., Rs. 1,00,000
(iv) for loss of prospects Rs. 1,00,000
of marriage
(v) for loss of amenities
and enjoyment in life Rs. 75,000
(vi) for medical expenses Rs. 39,755
(vii) for fixation of
artificial limb Rs. 50,000
(viii)for transportation
charges and for
extra nourishment Rs. 25,000
————
Total Rs. 8,78,555
————
26. The third respondent Insurance Company is directed to deposit
Rs.5,94,355/- with interest at 7.5% from the date of application, within a
period of six weeks from the date of receipt of a copy of this order. This Civil
Miscellaneous Petition is allowed in the above terms. consequently, the
connected miscellaneous petition is also closed. No costs.
ssl
To
The Motor Accident Claims Tribunal,
the Principal District Judge,
Dindigul.