BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/04/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.1207 of 2004 Sivanaiah ... Appellant Vs 1.Sri Gomathi Ambigai Transport, 3/386-B, Byepass Road, Madathur, Tuticorin. 2.Oriental Insurance Company Limited, 6A, North Cotton Road, Tuticorin. ... Respondents Appeal filed under Section 173 of Motor Vehicles Act, 1988, to set aside the Judgment and Decree dated 22.11.2002, made in M.C.O.P.Nos.15 of 2002, on the file of the Motor Accidents Claims Tribunal (Subordinate Court), Sankarankovil. !For Appellant ... Mr.U.Minnavadi ^For Respondent 1 ... No appearance For Respondent 2 ... Mr.C.Ramachandran **** :JUDGMENT
This Civil Miscellaneous Appeal is filed to set aside the Judgment
and Decree dated 22.11.2002, made in M.C.O.P.Nos.15 of 2002, on the file of the
Motor Accidents Claims Tribunal, Sankarankovil, and for enhancement of
compensation.
2. That on 22.04.2000, at about 04.30 p.m., the accident took place
at Kalugumalai involving one trailer and a Hero Honda motorcycle. The trailer
was insured with the second respondent insurance company. The owner of the
trailer is the first respondent. In the accident, both the rider and the
pillion rider suffered injuries. The appellant Sivanaiah was the pillion rider
who suffered multiple injuries on his right ear and right shoulder. He also
suffered fracture of neck and right humerus. The appellant filed M.C.O.P.No.15
of 2002 claiming Rs.3,00,000/- as compensation before the Tribunal. Besides
examining himself, the Doctor who gave disability certificate was also examined
on his side. The documents Exs.A1 to A4 and X 1 were marked on the side of
the petitioner. On the side of the respondents, no witness was examined and no
documents were marked. The Tribunal passed an award dated 22.11.2002 granting a
sum of Rs.60,000/- as compensation with 9% interest and costs.
3. Being aggrieved by the award, this appeal is filed by the
claimant for enhancement of compensation and he seeks Rs.1,00,000/- as
compensation besides the amount awarded by the Tribunal.
4. Heard Mr.U.Minnavadi, learned counsel appearing for the appellant
and Mr.C.Ramachandran, learned counsel appearing for the second respondent.
5. The learned counsel appearing for the appellant submits that the
appellant suffered 40% partial permanent disability. To establish the
disability, he examined himself as P.W.1. Further, he also examined the Doctor
in this regard. He also marked the disability certificate issued by the Doctor.
As per the certificate, he suffered 40% partial permanent disability. On the
other hand, there was no contra evidence produced by the respondents. However,
the Tribunal fixed as 20% partial permanent disability without any reason.
Secondly, he submits that when the Tribunal fixed Rs.2,000/- as monthly earnings
of the appellant, the Tribunal deducted one third amount towards personal
expenses. Such deduction is not warranted in the case of personal injuries.
6. On the other hand, the learned counsel appearing for the second
respondent insurance company submits that there is no infirmity in the award.
It is also submitted that the Tribunal could fix at a lessor percentage of
disability than the percentage fixed in the certificate issued by the Doctor.
7. I have considered the submissions made on either side and perused
the records. The Tribunal awarded the compensation of a sum of Rs.60,000/-
under the following heads:
Loss of earning = Rs. 44,800.00
Pain and suffering = Rs. 5,000.00
Loss of income for
one month = Rs. 4,000.00
Medical expenses = Rs. 5,000.00
Total = Rs. 58,800.00
The Tribunal rounded it off to Rs.60,000/-.
8. As rightly contended by the learned counsel appearing for the
appellant that the Doctor who gave the disability certificate was examined as
P.W.2 and was cross-examined by the second respondent. He stood by his
certificate. He has also categorically deposed that the appellant suffered 40%
partial permanent disability. He deposed that though the wounds were healed,
the disability continued. He issued the disability certificate and that was
marked as Ex.X1. The content of the disability certificate is as follows:
“This is to certify that Sivaniah aged 45 years, S/0.Shanmugam,
Pillaiyarkoil Street, Kurukkalpatti, Sankarankovil Taluk, Tirunelveli is
examined by me to assess the disability on him due to an alleged cause of Road
Traffic Accident. Due to the fracture right humerus near the shoulder there is
pain, deformity right shoulder region. Restriction of movements of right
shoulder. There is of right shoulder. The partial permanent disability on him
is 40% (Forty)”
9. On the other hand, there was no contra evidence let in by the
second respondent. When the expert witness deposed before the Tribunal asserted
that the appellant suffered 40% of partial permanent disability and also
explained the nature of injuries and the disability suffered by the appellant,
the Tribunal could not simply reduce the percentage of disability without any
reason whatsoever.
10. The Tribunal reduced the percentage of disability from 40% to
20% in paragraphs 16 and 17 of the award and those paras are extracted
hereunder:
“16. k.rh.2 jdJ rhl;rpaj;jpy; kDjhiu ghpBrhjid bra;J ghh;j;jBghJ mtUf;F
tyJ Bkw;if vYk;g[ Bjhs; Kl;L mUfpy; Kwpe;J nUe;jJ vd;Wk; mirt[fs;
fl;Lg;gLj;jg;gl;oUe;jJ vd;Wk; TWfpd;whh;.
17. Bkw;Twpa k.rh.2d; rhl;rpaj;ij itj;Jg; ghh;f;Fk;BghJ kDjhUf;F 40% gFjp
epue;ju Cdk; ny;yhtpl;lhYk; 20% Fiwthf nUf;f tha;g;g[ ny;iy vd;gJ bjspthfpwJ.
vdBt gFjp epue;ju Cdk; 20% nUf;fpwJ vd;W Kot[ bra;ag;gLfpwJ. vdBt Bkw;Twpa
tUkhd nHg;gPlhd U.2,24,000/-f;F 20% tUkhd nHg;gPL fzf;fpLk;BghJ U.44,800/-
tUfpwJ. vdBt, tUkhd nHg;g[ vd;w jiyg;gpy; kDjhUf;F U.44,800/- fpilf;ff;Toajhf
cs;sJ.”
11. Absolutely, no reason was given by the Tribunal for reducing the
percentage of disability. Therefore, I set aside the finding of the Tribunal
fixing the percentage of disability of appellant as 20%. On the other hand, I
fix it at 40% based on the evidences available on record.
12. The Tribunal committed another error by making one third
deductions in the monthly earnings fixed by the Tribunal towards personal
expenses. In the case of personal injuries, no question of deduction would
arise. A Division Bench of this Court in United India Insurance Co., Ltd., v.
Saravanan reported in 2009 (2) TN MAC 103 held that no deductions could be made
in the case of personal injuries for paying compensation.
13. The appellant was aged 42 years at the time of accident. It is
not in dispute. The Tribunal took Rs.2,000/- as his monthly earnings. It is
not also in dispute. Hence, the loss of income could be worked out based on the
above said materials, taking Rs.2,000/- as monthly earnings and 15 as
multiplier. The multiplier is chosen based on the decision of the Hon’bel Apex
Court in Smt. Sarla Verma and others v. Delhi Transport Corporation and Another
(2009 (2) TN MAC 1 (SC). I fixed that the appellant suffered 40% partial
permanent disability. Thus, the future loss of income would be Rs.2000 x 12 x
15 x 40/100 = 1,44,000/-.
Loss of earning Rs.1,44,000.00 Pain and suffering Rs. 5,000.00 Loss of income for one month Rs. 4,000.00 Medical expenses Rs. 5,000.00 Total Rs.1,58,000.00
14. Therefore, the appellant is entitled to get Rs.98,000/- besides
the award amount fixed by the Tribunal. The second respondent is directed to
deposit the amount of Rs.98,000/- within a period of two months from the date of
receipt of a copy of this judgment along with the interest at the rate of 9% per
annum from the date of application to the credit of M.C.O.P.No.15 of 2002, on
the file of the Motor Accidents Claims Tribunal, Sankarankovil. On such
deposit, the appellant is permitted to withdraw the same.
In the result, the civil miscellaneous appeal is allowed in the
above terms. No costs.
srm
To
The Sub-Court,
Sankarankovil.