IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08-06-2009
CORAM
THE HONOURABLE MR.JUSTICE S. PALANIVELU
C.M.A.(NPD) No.765 of 2004
New India Assurance Co. Ltd.,
Mettupalayam
Coimbatore District. ... Appellant
vs.
1. C.K. Ramesh
2. Sakthivel
3. V. Krishnasamy ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the Judgment and decree dated 28.08.2003 made in M.C.O.P.No.90/2002 on the file of the Motor Accidents Claims Tribunal (Principal Subordinate Judge), Gobichettipalayam.
For appellant : Mr. K. Chandran
For Respondents : Mr. N. Manokaran
JUDGMENT
1. The averments contained in the claim petition in brief are as follows:
On 14.11.2001 at about 8.00 p.m. when the claimant was riding his Hero Honda Motor Cycle, bearing Registration No.TN 36 Z 8178 on the left extreme side of the North-south Mettupalayam-Sathyamangalam Road near Ammanpudur, the first respondent drove the Yamaha Motor Cycle with Registration No.TN 15 Y 3353, in a rash and negligent manner and dashed against the claimant’s motor cycle, by means of which he fell down and suffered serious injuries. He was taken to the hospital and was treated as in-patient. Because of various fractures and other injuries, he was permanently disabled from doing his business. He is Advocate by profession. From his profession he was earning about Rs.10,000/- per month. Hence a sum of Rs.7,50,000/- was claimed as compensation.
2. In the counter filed by the third respondent, the following is stated:
The accident did not occur due to the first respondent. The petitioner has not impleaded the insurer of the Hero Honda Motor Cycle driven by the second respondent as a party. The petition is bad for non-joinder of the necessary party and the petitioner has no valid driving licence. The occupation, age and income of the petitioner are denied. The compensation claimed is excessive and disproportionate. Hence, the petition has to be dismissed.
3. After analysing the materials and oral evidence on record, the Motor Accidents Claims Tribunal, fixed liability on the first respondent and directed all the three respondents to pay compensation of Rs.4,85,000/- jointly and severally. Aggrieved against the award, the third respondent viz., the appellant is before this Court.
4. In the F.I.R., Ex.A-1, it is stated that on 14.11.2001 at about 8.00 p.m. while the claimant was driving his motor cycle bearing Registration No. TN 36 Z 8178 near Ammanpudur, a Yamaha Motor Cycle bearing registration No. TN 15 Y 3353 driven by the first respondent rashly, dashed against the motor cycle driven by the claimant, by means of which he fell down and received serious head injuries besides other injuries all over his body; that he was removed to a private hospital at Sirumugai and thereafter he was taken to K.G. Hospitals, Coimbatore. The Tribunal after analysing the oral evidence on record as to the accident, anchored the responsibility on the first respondent for having caused the accident. There is not much debate before this Court as to this portion of award, as regards the fastening of liability. But insofar as the quantum of compensation fixed by the Tribunal and the manner in which it approached the issue, have been much assailed by the appellant’s side.
5. The contention of the learned counsel for the appellant is on two folds. One is the Tribunal has wrongly carried itself upon the oral evidence tendered by the doctor P.W.2, who is not at all a specialist in Orthopedics nor Otorhinogology and his evidence would not be taken on its face value and by means of appreciating his evidence as it stands, the appellant is much prejudiced. The next limb of contention is that the Tribunal should not have adopted the multiplier formula because there is no evidence on record that the claimant was completely disabled from taking up his profession in future by means of injuries sustained by him in the accident.
6. As far as the appreciation of evidence adduced by the doctor/P.W.2 is concerned, it is more appropriate to refer various documents which sufficiently and elaborately highlighted the nature of injuries suffered by the claimant. To begin with, Ex.A-2 Wound Certificate shows that the claimant sustained fractures on skull bone, meta Carpal bones and nasal bones. Nextly, Ex.A-8, Discharge Summary issued by K.G. Hospital, Coimbatore, would further clarify the nature of injuries and the particulars of treatment offered to the claimant. The following are the injuries as mentioned in Ex.A-2:
“1. Laceration above right eye-brow about 6 c.m.
Vertically. Exposing would with bony deformity.
2. Tenderness over right maxillary sinun.
3. Fracture right upper central incisor tooth
4. Swelling over Dorosn of left wrist and hand
Operative Findings:
Depressed Fracture Frontal bone with Dural and brain Laceration. X-ray Skull X-ray Para Nasal Sinuses Depressed Fracture Frontal bone involving Frontal Sinuses. X-ray left hand Fracture 3rd, 4th and 5th Meta Carpal Bones.
C.T.Scan Opinion:
C.T. Scan Brain Basi Frontal Contusion with right Temporal SAH. Depressed Fracture Frontal Bone with right maxilary sinus Fracture.”
7. Ex.A-17 is the C.T. Scan Report, by means of which, it could be ascertained that there was a haematoma occurred in a portion of brain. Ex.A-19 is the Disability Certificate issued by P.W.2 doctor, in which he has stated that the claimant has a mild facial disfigurement (Right forehead); that he has swelling over left hand; that he has difficulty in lifting weight with his left hand; that he has swelling over anterior aspect of right thigh and he will have difficulty in standing for a long time and walking long distance; that he is also suffering from mild hearing deficit in both ears, as per the audiogram report and that he is of the opinion that the patient has 50% of permanent disability.
7(a) Though the learned counsel for the appellant would assail the evidence of P.W.2 on the contention that the doctor is not at all qualified in Orthopedics nor Otorhinolaryngology, on the side of the appellant, they have not let in any oral evidence or medical evidence to defeat the oral evidence given by P.W.2. It is to be seen that P.W.2 is also working in K.G. Hospital where the respondent/claimant was taking treatment as inpatient for his injuries. In the considered view of this Court, there is no impediment to accept the oral evidence of P.W.2 since it has been supported by other medical evidence as narrated before. In the re-examination of P.W.2, he has stated that he also had consultation with other doctors and given his opinion in the disability certificate.
8. The learned counsel for the respondents Mr. N. Manoharan would submit that even though P.W.2 cannot be treated to be a specialised medical practitioner in particular areas, still, he being a doctor, was working in K.G. Hospital and since he had consultations with other medical practitioners with specialties, there would be no embargo for the Court to accept his evidence to extend credit to his assessment as to the percentage of permanent disability. This Court finds considerable force in his argument.
9. Insofar as adopting the multiplier formula for assessing the loss of income by the Tribunal is concerned, the learned counsel for the appellant placed his resistance in a much forcible manner. It is his bottom-line contention that only if the injured is permanently disabled or prevented from doing his routine work or profession, then the court can adopt multiplier method and in other cases adopting multiplier method is not legally permissible. Repelling this contention, the learned counsel for the respondents/claimant would argue that the Supreme Court on various occasions in the like cases adopted multiplier formula, particularly speaking in non-fatal cases where the injuries are more grievous and when a particular percentage on disability is opined by the doctors and hence adopting multiplier method is lawful and in this case also the multiplier method is more appropriate.
10. Learned counsel for the appellant would place much reliance upon a Division Bench decision of this Court in 2005 (1) TN MAC 87 (DB) [United India Insurance Co. Ltd., Veluchamy and Another] wherein after analysing the circumstances of the case where the injured received grievous injuries and according to the doctor he suffered permanent disability to the tune of 49%, formulated certain guidelines to be followed in the matter of adopting multiplier method as follows:
“11. The following principles emerge from the above discussion:
(a) In all case of injury or permanent disablement “multiplier method” cannot be mechanically applied to ascertain the future loss of income or earning power.
(b) It depends upon various factors such as nature and extent of disablement, avocation of the injured and whether it would affect his employment or earning power etc., and if so, to what extent?
c) (1) If there is categorical evidence that
because of the injury and consequential disability, the injured lost his employment or avocation completely and has to be idle till the rest of his life, in that event loss of income or earning may be ascertained by applying “multiplier method” as provided under Second Schedule to Motor Vehicles Act, 1988.
(2) Even if so there is no need to adopt the same period as that of fatal cases as provided under the schedule. If there is no amputation and if there is evidence to show that there is likelyhood of reduction or improvement in future years, lesser period may be adopted for ascertainment of loss of income.
d) Mainly it depends upon the avocation or profession or nature of employment being attended by the injured at the time of accident.”
11. Adverting to these guidelines enumerated in the above said decision, he argued that if the injured was forced to loose his employment or avocation completely, by means of which he is left idle during rest of his life, then only multiplier method could be applied.
12. Distinguishing the above arguments, learned counsel for the respondent would say that in para 11 (b) and (d), this Court has laid down the principles that while the Court contemplates to adopt multiplier method in a case of permanent disability, it has to take into account the nature and extent of disablement, avocation of the injured and whether it would affect his employment or earning power and mainly it depends upon the avocation or profession or nature of employment.
13. Learned counsel for the respondent/claimant is also armed with certain decisions of Supreme Court, wherein the Supreme Court was pleased to lay down guidelines to be followed wherever permanent disablement is found. In 2003 (7) Supreme Court Cases 197 [Divisional Controller, KSRTC v. Mahadeva Shetty and Another] the Supreme Court has laid down a dictum that while fixing compensation on the strength of loss of income, the Court has also to fix compensation for loss of amenities of life, etc., The operative portion reads thus:
“A person not only suffers injuries on account of accident but also suffers in mind and body on account of the accident throughout his life and a feeling is developed that he is no more a normal man and cannot enjoy the amenities of life as normal person can. While fixing compensation for pain and suffering as also for loss of amenities of life, features like his age, marital status and unusual deprivation he has undertaken in his lie have to be reckoned”
14. In 2007 (2) TN MAC 152 SC [A.P.S.R.T.C. Rep by its Chief Law Officer v. M. Pentaiah Chary] the Supreme Court has recognised and approved adoption of multiplier method by the Tribunal and the High Court, besides observing as follows:
“13. We therefore, fail to visualise that in a case of this nature a claimant can be deprived of a reasonable amount of compensation despite the fact that he has permanently lost his capacity to earn and remain dependent on other besides physical sufferance of such magnitude as to why the multiplier suggested by the parliament should not be accepted.
14. We do not, however, intend to lay down a general law. We wish to point out that minimum compensation payable in a case of this nature should be considered from the sufferings of disability undergone by the victim. We are not suggesting that in certain situations, the multiplier specified in the Second Schedule cannot and should not be altered but therefor there must exist strong circumstances.”
15. The Supreme Court in 2008 (1) TN MAC 43 (SC) [Sunil Kumar v. Ram Sisngh Gaud and Others] while dealing with an injury case involving permanent disability at 45% applied multiplier method and the relevant portion of the judgment is as under:
“Taking into consideration the present income of the appellant as Rs.4,000/- per monthe and the Permanent Disability of 45% suffered by him, we are of the view that the capacity of the appellant to earn in future would be reduced by Ra.1800/- per month approximately. If 1/3 is deducted towards miscellaneous expenses, the loss of income comes to Rs.1,200/- per month which , in turn comes to Rs.14,400/- per annum. Appellant was 29 years of age at the time of accident. Taking the multiplier to be 18 (as per second schedule) to Section 163-A of the Act), the total loss of income comes to Rs.2,59,200/-”
16. Learned counsel for the respondent/claimant also garnered support from another decision of Supreme Court in 2009 (2) SCC 755 [Asraf Alli v. Naveen Hotels Limited and Another] in which to arrive at a just compensation under the caption Permanent disability, multiplier method has been adopted. To a person suffering from Permanent Disablement of 75%, the Tribunal assessed his monthly income at Rs.3,000/- and applied the multiplier 18.
17. The next limb of contention of the learned counsel for the respondents is that even though the appellant, before this Court strongly contends that the medical evidence on record could not be believed and relied upon, it has miserably failed to lead any evidence, rebutting the evidence let in by the claimant and in these circumstances, an adverse inference has to be drawn since inspite of the best particulars available to the appellant, it had not adduced any evidence. For the proposition of law, he cited an authority of Apex Court reported in (1999) 3 Supreme Court Cases [Vidhyadhar v. Manikrao and Another] in which Their Lordships after referring to various earlier decisions of the Privy Council and other High Courts, held as follows:
“17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Grubakhsh Singh v. Gurdial Singeh (AIR 1927 PC 230). This was followed by the Lahore High Court in Kirupa Singh v. Ajaipal Singh (AIR 1930 Lah 1) and the Bombay High Court in Martant Pandhar Chaudhari v. Radhabai Krishnarao Deshmujkh (AIR 1931 Bom 97). The Madhya Pradesh High Court in Gulla Karagjit Carpenter v. Narsingh Nandkishore Rawat (AIR 1970 MP 225) also followed the Privy Council decision in Sardar Gurbakhsh Singh case. The Allahabad High Court in Arjun Singh v. Virendre Nath (AIR 1971 All 29) held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand (AIR 1974 P&H 7) drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box.”
18. Following the principles laid down by the Supreme Court, it has to be necessarily observed that if a party to the proceedings does not enter into witness box to support his pleadings inspite of availability of better particulars, adverse inference has to be necessarily done against him.
19. The Tribunal after considering the oral evidence as regards the monthly income of the claimant fixed Rs.4,000/- and assessed Rs.4,08,000/- adopting multiplier 17 keeping in mind the age of the injured at 30 and the percentage of permanent disablement at 50% Rs.70,000/- has been awarded towards medical expenses on the strength of Ex.A-9, 11 to 13, for pain and sufferings Rs.5,000/- and for Extra Nourishment Rs.2,000/- have also been allowed. In view of this Court, as per the decisions of the Supreme Court mentioned above, there is nothing wrong on the part of the Tribunal in applying the multiplier method and assessed the loss of income of the claimant. Hence interference with the award in any way is not warranted and the same deserves to be confirmed and it is accordingly confirmed.
20. In fine the appeal is dismissed. No costs.
ggs
To
The Principal Subordinate Judge,
Motor Accidents Claims Tribunal,
Gobichettipalayam