BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 29/03/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.1362 of 2001 Mrs.Annakili ... Appellant / Claimant Vs. The Managing Director, Kattabomman Transport Corporation, Tirunelveli-3. ... Respondent/Respondent Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the order made in M.C.O.P.No.36 of 1999, dated 31.10.2000, on the file of the Motor Accident Claims Tribunal, Ambasamudram. !For Appellant ... Mr.A.Arumugam ^For Respondent ... Mr.M.Prakash * * * * * :JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellant against
the order made in M.C.O.P.No.36 of 1999, dated 31.10.2000, on the file of the
Motor Accident Claims Tribunal, Ambasamudram.
2. The appellant is the claimant. On 25.01.1998, the bus bearing
Registration No.TN-72-N-0435 belonging to the respondent Corporation was
proceeding from North to South on a bridge at Kallidaikurichi. The driver drove
the bus in a rash and negligent manner without observing traffic rules and hit
the appellant herein and also the wall of the bridge. The appellant sustained
multiple injuries. She was immediately taken to the Government Hospital at
Ambasamudram and then she was referred to the Government Medical College
Hospital at Tirunelveli. She was treated as in patient upto 11.02.1998. That
is, she was an in patient from 25.01.1998 to 11.02.1998. Thereafter, she was
treated as out patient by the Tirunelveli Government Medical College Hospital
upto March 2000.
3. The claimant filed M.C.O.P.No.36 of 1999 claiming a sum of
Rs.1,00,000/- as compensation. Before the Tribunal two witnesses were examined
on her side and the documents Exs.A.1 to A.7 were marked. On the side of the
respondent, no witness was examined and no document was marked. The Tribunal
passed an award dated 31.10.2000 granting a sum of Rs.17,300/- as compensation
with 12% interest and costs. The present appeal is seeking enhancement of
compensation. In the appeal she claims Rs.82,700/- as further compensation
besides the award of the Tribunal of Rs.17,300/-.
4. Heard the learned Counsel for both sides.
5. The learned Counsel for the appellant submits that the Tribunal
rejected the evidence of the doctor and failed to grant any compensation towards
disability and the loss of earning suffered by the claimant. It is submitted
that when the doctor categorically deposed before the Tribunal that the claimant
suffered 55% of permanent partial disability, the Tribunal should have accepted
the same, particularly, when there is no contra evidence by the respondent. It
is further submitted that the Tribunal erroneously proceeded as if the claimant
was given only Paracetamol and Ibuprofen tablets. Such a finding is contrary to
the treatment records which is marked as Ex.P.6. The learned Counsel has
strenuously argued that the claimant took the treatment for a very long time as
outpatient in the Government Hospital at Tirunelveli and those details are found
in Ex.A.6. The learned Counsel takes serious objection to the manner in the
approach of the Tribunal relating to the doctor’s evidence. He has taken me
through the evidence of the doctor and also Ex.A.7, the disability certificate
issued by the Doctor. The reason given by the Tribunal for rejecting the
doctor’s evidence is not sustainable. The learned Counsel has relied on the
judgment of this Court in New India Assurance Company Limited Vs. C.K.Ramesh and
2 others reported in 2009(2) TN MAC 163, and also another decision of this
Court in Shanmugham Vs. The Managing Director, Tamil Nadu State Trasnport
Corporation reported in 2006(5) CTC 269.
6. On the other hand, the learned Counsel for the respondent submits that
there is no infirmity in the order of the Tribunal. It is submitted that the
doctor did not treat the claimant in the hospital, where she took treatment. It
is also submitted that she is not an Orthopaedic surgeon and her evidence was
correctly rejected by the Tribunal. It is further submitted that since the
doctor did not give the details of the examinations conducted by her for giving
the disability certificate, the Tribunal was perfectly justified in rejecting
the evidence of the doctor. The learned Counsel relies on a decision of the
Andhra Pradesh High Court in M.Jayanna Vs. K.Radha Krishna Reddy and another
reported in 2005 ACJ 344, in support of his submissions.
7. The learned Counsel for the respondent further submits that in any
event, if the disability certificate is accepted, the application of multiplier
method is not warranted. It is submitted that in the case of non fatal cases,
as per the decision of this Court in United India Insurance Company Limited Vs.
Veluchamy and Another reported in 2005(1) TN MAC 87(DB), compensation cannot be
arrived at by applying multiplier method.
8. I have considered the submissions made on either side and perused the
records.
9. The Tribunal awarded Rs.17,300/- under the following heads:
(i) for pain and sufferings Rs.15,000
(ii) for loss of wages during
the treatment period Rs. 1,200
(iii)for attendant’s charges Rs. 600
(iv) for extra nourishment Rs. 500
———
Total Rs.17,300
———
10. After the accident, the claimant was immediately taken to the
Government Hospital, Ambasamudram. However, the concerned authorities referred
her immediately to the Government Medical College Hospital, Tirunelveli. She
was immediately taken to Tirunelveli and was admitted as inpatient. She was
inpatient from 25.01.1998 to 11.02.1998. That is, she was treated as in patient
for 18 days. Ex.A.4 is the wound certificate. Initially, Ambasamudram hospital
has recorded that they could not give any opinion on the date when the claimant
was admitted, immediately after the accident. After she was discharged as
inpatient in the Tirunelveli Government Medical College Hospital, the
Ambasamudram hospital gave the wound certificate stating that the claimant
received grievous injuries. It is stated as follows:
“Grievous injury (1)
After treatment given by TVMCH
tendon Achilles – cut”
11. Ex.P.6 is the details of the treatment given to the claimant as
outpatient upto 06.03.2000. I have perused those records. At the out set, I am
not in agreement with the finding of the Tribunal that the claimant was given
paracetamol and Ibuprofen only. That is according to the Tribunal, she was
given pain killer and tablets for fever. According to Ex.P.6, such a finding of
the Tribunal is not warranted. She was given different medicines and she was
given physiotherapy continuously. In fact, it is recorded on 28.03.1998 that
limping gait is getting minimised. That is, the claimant limped due to the
injury. On 02.02.1999, it is recorded as follows:
“partial injury right heal. Advised to wear healed chapel”
Thus the entire approach of the Tribunal is perverse, contrary to the evidence
on record.
12. The Tribunal states that in Ex.P.4 or in Ex.P.6, nowhere stated that
the petitioner suffered permanent partial disability. The Tribunal is not
correct in stating that nothing is stated about the permanent partial disability
in Exs.P.4 and P.6., when Ex.P.4 is the wound certificate and Ex.P.6 is the
details of the treatment given to the petitioner from 25.01.1998 to 06.03.2000.
One could not see in the wound certificate or in the treatment card, whether the
injured suffered permanent partial disability and the same has to be gathered
from the disability certificate. Therefore, the Tribunal is not correct in
stating as follows:
” “”Mdhy; Bkw;go muR kUj;Jtkidapy; tHA;fg;gl;l rpfpr;irapd; mog;gilapy;
kDjhuUf;F epue;jukhd Cdk; nUe;jjhf vs;sst[k; brhy;yg;gltpy;iy.”
13. The Tribunal rejected the evidence of P.W.2, the doctor, who gave the
evidence that the claimant suffered 55% of permanent partial disability. The
reason for rejection was that the doctor did not state on what date and at what
time, the claimant was examined to give Ex.P.7, the disability certificate. The
other reason was that nothing in the evidence of the doctor nor in the Ex.P.7
certificate, what were the tests conducted in the appellant claimant were given.
The following is the reason given by the Tribunal for rejecting the evidence of
the doctor.
” mtUf;F Vw;gl;Ls;s gFjp epue;ju Cdj;jpd; tpGf;fhL 55% vdt[k;, mjw;fhf
tHA;fg;gl;l rhd;wpjH; k.rh.M.7 vd;Wk; rhl;rpak; mspj;jpUg;gJ bjhpa tUfpd;wd.
ne;epiyapy; Bkw;goahhpd; rhl;rpak; kw;Wk; rhd;whtzj;jpd; mog;gilapy; ve;j
Bjjpapy; vj;jid kzpf;F vA;F itj;J k.rh.1-I ghpBrhjid bra;jhh; vd;gJ bjhpa
tutpy;iy. mBjBghd;W ve;j ve;j Brhjidfspd; mog;gilapy; kDjhuh; Md k.rh.1-f;F
epue;ju Cdk; 55% nUe;jjhf Kot[f;F te;jhh; vd;gJ bghUl;L kUj;Jt hPjpahf k.rh.2-
d;rhl;rpaj;jpYk; rhd;whtzj;jpYk; bjspt[g;gLj;jg; gltpy;iy vd;W brhd;dhy;
kpifay;y”
14. But this reasoning of the Tribunal is not based on record. Ex.P.7,
the disability certificate, states that the same was given after personal and
clinical examination of the claimant. It is stated in Ex.P.7 as follows:
“I personally and clinically examined Tmt.Annakili, W/o Sekar, aged 47 years,
residing at 29-A, Karthigal Madam Street, Kallidaikurichi. Her identification
marks are 1.ABM at front of neck over the medial end of collar bone 2. A raised
BM at the back of the neck. I perused her wound certificate.”
Therefore, it is clear that the certificate was given after personal and
clinical examinations and after going through the wound certificate.
15. Further, P.W.2, the doctor gave categorical evidence as follows:
“ehd; Kf;Tlypy; kUj;Jtuhf gzpg[hpfpBwd;. fhak; Vw;gl;l md;dfpsp vd;gtiu
Beuoahft[k;, mtUila fha rhd;wpjiH ghh;itapl;Lk; ehd; bfhLj;j kUj;Jt rhd;wpjH;.
mtUf;F tyJ fhypy; jir mWgl;Ls;sJ. me;j jirapd; nilbtsp fhzg;gLfpwJ. mtUila
eilapy; Bjhw;wk; khWgLfpwJ. mtuhy; btF Beuk; cjtp ny;yhky; epw;fBth elf;fBth
naytpy;iy. fhiy klf;fp cl;fhut[k; ne;jpa fHpg;giwapy; cl;fhut[k; rpukk;
Vw;gl;Ls;sJ. tyJ fZf;fhy; Kl;od; mirt[fs; ghjpf;fg;gl;Ls;sJ. mtUf;F BkYk; mWit
rpfpr;ir Bjitg;gLfpwJ. mtUf;F Vw;gl;Ls;s gFjp epue;ju Cdj;jpd; tpGf;fhL 55%
epue;ju Cd rhd;wpjH; kDjhuh; jug;g[ rhd;wpjH; 7.”
16. In course of cross examination by the respondent, nothing was put to
the witness about the tests that were conducted by the doctor who came into
conclusion about the disability. The cross examination of the doctor is very
short and the same is as follows:
“ehd; Beuoahf ghpBrhjpj;Jk; ghpBrhjid bra;Bjd;. kDjhuUf;F Vw;gl;Ls;s fhak;
rpWfhaA;fs; vd;why; rhpay;y. bfhLj;Js;s Cd tpGf;fhL mjpfk; vd;why; rhpay;y.”
17. In view of Ex.P.7 read with the evidence of the doctor, the reasoning
of the Tribunal for rejecting the Ex.A.7 disability certificate is not
justified. when the doctor categorically stated that certificate was given
after subjecting the claimant for personal and clinical examination and also
after seeing the wound certificate, the Tribunal was not justified in rejecting
the evidence of the doctor, an expert, in the above said manner.
18. In this regard, the judgment of this Court in New India Assurance
Company Limited Vs. C.K.Ramesh and 2 others reported in 2009(2) TN MAC 163
relied
by the claimant is directly on the point. Paragraph 7(a) of the said judgment
is extracted hereunder:
“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 Orthopaedics
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 vie 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 Doctor and given his opinion in the disability
certificate.”
19. The other judgment in Shanmugham Vs. The Managing Director, Tamil Nadu
State Trasnport Corporation reported in 2006(5) CTC 269, this Court reversed
the finding of the Tribunal refusing to take into account the medical bills
without being supported by doctor’s evidence. This Court held that the
procedure contemplated is a summary procedure while deciding the accident
claims.
20. The learned Counsel for the respondent relies on the decision of the
Andhra Pradesh High Court in M.Jayanna Vs. K.Radha Krishna Reddy and another
reported in 2005 ACJ 344. That case arose in a peculiar circumstances wherein it
is noted that a large scale fraud is committed in accident claims. In this
case, the respondent did not dispute the accident. Hence, that case is not
applicable to the facts of this case.
21. In these circumstances, I am of the view that the order of the
Tribunal needs interference.
22. The learned Counsel for the respondent submits that it is not a fatal
case and multiplier method cannot be applied to determine the compensation in
non fatal cases.
23. I am not in agreement with the submissions made by the learned Counsel
for the respondent. The Second Schedule of the Motor Vehicles Act makes it very
clear that the multiplier method can be applied for non fatal cases. In fact,
the same issue is decided in New India Assurance Company Limited Vs. C.K.Ramesh
and 2 others reported in 2009(2) TN MAC 163(supra). This Court, after
referring to various decisions of the Honourable Apex Court, held that the
multiplier method can be applied in the case of non fatal cases. I am not in
agreement with the submission made by the learned Counsel for the respondent
that the Division Bench of this Court in United India Insurance Company Limited
Vs. Veluchamy and Another reported in 2005(1) TN MAC 87(DB) held that multiplier
method should not be applied in permanent partial disability cases. On the
other hand, the said judgment applied the multiplier method in the case of
permanent total disablement. No where the Division Bench stated that the
multiplier method should not be applied in partial permanent disability cases.
24. Though the Tribunal took Rs.1,200/- as monthly salary for the
claimant, I would like to take Rs.15,000/- as annual earnings of the claimant as
the monthly earnings was not established, based on the Second Schedule of the
Motor Vehicles Act. The petitioner is aged about 45 years. The multiplier for
the age group 45 to 50 years is “13”. Then the claimant is entitled to
compensation as per the Second Schedule of the Motor Vehicles Act at Rs.15,000/-
X 13 x 55/100=1,07,250/-. Since the very purpose of the Motor Vehicles Act is
to provide just compensation to the third parties, the victims of the road
accidents, there is no bar to award the compensation over and above the claim
made by the claimant. In fact the Honourable Apex Court in Nagappa’s case
reported in I(2004) ACC 524(SC) and in Rama Devi’s case reported in 2008(1)
TNMAC 234(SC) held in categorical terms that the victims are entitled to just
and reasonable compensation as envisaged under Section 168 of the Motor Vehicles
Act and there is no bar to award more than the claim made by the claimants.
25. In these circumstances, the respondent is directed to deposit the
enhanced amount within a period of six weeks from the date of receipt of a copy
of this order. That is, the respondent is directed to deposit Rs.1,07,250/-.
However, I like to award only 9% interest from the date of application for the
enhanced amount. The appellant is permitted to withdraw the amount from the
Tribunal by paying the deficit Court fee.
26. In fine, this Civil Miscellaneous Appeal is allowed in the above
terms. No costs.
ssl
To:
The Motor Accident Claims Tribunal,
Ambasamudram.