BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 20/04/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.1148 of 2007 K.Vijayakumar ... Appellant / Petitioner Vs 1. C.Nagendran 2. M/s Oriental Insurance Company Limited, represented by its Branch Manager, 127/8, Madurai Road, Virudhunagar-626 001. ... 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.42 of 2003 dated 04.01.2007, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate, Sivagangai. !For Appellant ... Mr.A.Jayaramachandran ^For Respondents ... K.Bhaskaran for R.2 For R.1 ... 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.42 of 2003 dated 04.01.2007, on the
file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate,
Sivagangai.
2. The appellant was a claimant. on 10.11.2003, he rode a two wheeler,
Yamaka Crux from R.S.Mangalam to Sivagangai. At that time, an auto owed by the
first respondent, insured with the second respondent came in the opposite
direction and hit the appellant and caused the accident. He received grievous
injuries on the right leg and there was a fracture of right thigh bone.
According to the appellant, the auto driver drove the vehicle rashly and
negligently and caused the accident. He was immediately taken to Government
Hospital, Sivagangai and admitted as inpatient. On the next day, i.e. on
11.11.2003, he was admitted in Jawahar Hospital, Madurai. A surgery was
performed and a steel plate was fixed. He was there as inpatient for 19 days.
He was discharged on 29.11.2003. He filed M.C.O.P.No.42 of 2004 claiming
Rs.3,00,000/- as compensation. According to him, he suffered 35% permanent
partial disability and he earned Rs.10,000/- per month. The Tribunal passed an
award dated 04.01.2007 fixing the responsibility for the accident on the
claimant at 25% and granting Rs.67,500/- as compensation under the following
heads:
(i) for disability compensation Rs.20,000 (ii) for extra nutrition and for transport charges Rs. 5,000 (iii) for grievous injuries Rs.10,000 (iv) for pain and sufferings Rs. 5,000 (v) for medical bills Rs.50,000 --------- Total Rs.90,000 --------- This appeal is against the said award.
3. Heard Mr.A.Jayaramachandran, learned Counsel for the appellant and
Mr.K.Bhaskaran, learned Counsel for the second respondent and perused the
records.
4. The learned Counsel for the appellant makes the following submissions:
(i) The Tribunal erroneously held that the negligence of the appellant to the
accident was 25%, while the auto driver contributed to 75%. According to the
appellant, the entire responsibility should have been fixed on the auto driver.
(ii) The Tribunal was not correct in taking 20% as permanent partial disability,
when the doctor certified that the appellant suffered 35% permanent partial
disability and also when the doctor gave evidence in support of the
certificate.
(iii) The Tribunal erred in not applying the multiplier method under the Second
Schedule of the Motor Vehicles Act in awarding compensation. On the other hand,
the Tribunal awarded Rs.20,000/- for 20% permanent partial disability.
(iv) The Tribunal was not justified in granting Rs.50,000/- towards medical
expenses, when he produced medical bills for Rs.73,000/-
(v) The Tribunal awarded on lower side towards pain and sufferings i.e.
Rs.5,000/-.
(vi) The Tribunal failed to award any amount towards future medical expenses
when the doctor deposed that Rs.25,000/- would be required for future medical
expenses by removal of steel plates by surgery.
5. On the other hand, the learned Counsel for the second respondent
submits that there is no infirmity in the award and he has made his submissions
countering the points raised by the appellant.
6. Firstly, it has to be seen whether the Tribunal was correct in holding
that the appellant contributed 25% towards the accident. The only reason given
by the Tribunal in paragraph 7 of the awards is that the appellant did not
produce the driving licence and that therefore 25% liability should be fastened
on him. The following passage from paragraph 7 of the award of the Tribunal is
extracted herein in this regard:
“..rk;gt tpgj;Jf; fhyj;jpy; kDjhuUf;F Kiwahd Xl;Ldh; chpkk; ny;iy vd 2Mk;
vjph;kDjhuh; jug;gpy; vLj;Jiuf;fg;gl;l BghjpYk; kDjhuUf;F tpgj;Jf; fhyj;jpy;
Kiwahd Xl;Ldh; chpkk; nUe;jJ vd;gij epUgpf;f kDjhuh; jug;gpy; vt;tpjkhd
Kaw;rpfSk; Bkw;bfhs;sg;gltpy;iy. kDjhuhpd; xl;Ldh; chpkk; nk;kd;wj;jpd; Kd;g[
jhf;fy; bra;ag;gltpy;iy. vdBt rk;gt tpj;jpw;F kDjhuUk; bghWg;ghdth; vd 2Mk;
vjph;kDjhuh; jug;gpy; vLj;Jiuf;fg;gl;l thjk; Vw;g[ilaJ vd nk;kd;wk; fUJfpwJ.”
7. The learned Counsel for the appellant took me through the evidence and
submits that nowhere the second respondent suggested to the appellant during
cross examination about the alleged non possession of driving licence by the
appellant. It is also submitted that even R.W.2, the Officer from the second
respondent Insurance Company did not speak about the alleged non possession of
the driving licence by the appellant. When the second respondent examined an
employee from the Regional Transport Office as R.W.1., it was their endeavour to
establish about the permit violation by the auto driver in driving the auto
beyond the permit limits. There was nothing in the evidence of R.W.1 regarding
the non possession of driving licence by the appellant. More importantly,
Ex.P.5 is the judgment of the criminal Court, wherein the auto driver pleaded
guilty and paid fine.
8. In these circumstances, I am of the considered view that the Tribunal
committed error in fastening 25% liability on the appellant. Absolutely, there
is no material to fasten 25% liability on the appellant. Hence, I fix the
entire liability on the auto driver. Accordingly, the second respondent
Insurance Company is liable to pay the entire compensation.
9. Secondly, it has to be seen, whether the Tribunal was correct in
holding that the appellant suffered 20% permanent partial disability, when the
doctor examined as P.W.3 deposed that the appellant suffered 35% permanent
partial disability. The Tribunal did not give any valid reason for fixing 20%
permanent partial disability. The only reason given by the Tribunal is found in
paragraph 10 of the award. Paragraph 10 of the award is extracted herein:
“10. kDjhuUf;F Muk;g rpfpr;ir rptfA;if muR kUj;Jtkidapy; tHA;fg;gl;Ls;sJ. Mdhy;
mJ tiff;F vt;tpjkhd Mjut[fSk; nk;kd;wj;jpd; Kd;g[ jhf;fy; bra;ag;gltpy;iy. Bky;
rpfpr;ir kJiu $tcwh; kUj;Jtkidapy; tHA;fg;gl;Ls;sJ. jhf;fy; bra;ag;gl;Ls;s
fhar;rhd;W k.rh.M.2 kJiu $tcwh; kUj;Jtkidapy; tHA;fg;gl;Ls;sJ. Bkw;go Mjutpy;
nUe;J kDjhuhpd; tyJ fhy; bjhilapy; gpa{kh; vd;w vYk;g[ Kwpt[ Vw;gl;Ls;sJ vd;gJ
bjhpatUfpwJ. BkYk; Bkw;go kUj;Jtkidapd; rpfpr;ir Bfhg;g[ k.rh.M.8 Mft[k;,
rpfpr;ir fhyj;jpy; vLf;fg;gl;l Ez;fjph;glk; k.rh.M.9 thpir Mft[k; FwpaPL
bra;ag;gl;Ls;sJ. Bkw;go Mjut[fspd; mog;gilapy; ghh;f;Fk;BghJ kDjhuhpd; tyJ fhy;
bjhilapy; gpa{kh; vd;w vYk;gpy; Kwpt[ Vw;gl;L cs;sJ vd;gJk; mJ tiff;F mWit
rpfpr;ir bra;ag;gl;L, fk;gp bghUj;jg;gl;L rpfpr;ir tHA;fg;gl;Ls;sd vd;gJk; bjhpa
tUfpwJ. k.rh.3 mtuJ rhl;rpaj;jpy; rpfpr;irf;Fg; gpd;g[ kDjhuUf;F Vw;gl;Ls;s
vYk;g[ Kwpt[ rhpahf nize;Js;s BghjpYk; cs;Bs fk;gp bghUj;jg;gl;oUg;gjhfj; bjhpa
te;Js;sjhft[k; mtuhy; Kd;Bghy; Btiy bra;a nayhJ vdt[k; rk;kzk; Bghl;L mkUtjpYk;,
khog;go VWtjpYk; rpukk; cs;sJ vdt[k; kDjhuUf;Fg; bghUj;jg;gl;l fk;gpia mfw;w
kw;Wk; xU mWit rpfpr;ir bra;ag;glBtz;Lk; vd;Wk; mJ tif;F U.25,000/- tiuapYk;
brythFk; vd;Wk; Twpa[s;shh;. Bkw;Twg;gl;litfspd; mog;gilapy; kDjhuUf;F 35% gFjp
epue;ju Cdk; Vw;gl;Ls;sjhff; fUj;J tHA;fg;gl;Ls;sJ vd;gJ kpifg;gLj;jg; gl;Ls;s
jhfBt nk;kd;wk; fUJfpwJ. kDjhuUf;F tyJ fhy; bjhilg; gFjpapy; gpa{kh; vd;w vYk;g[
Kwpt[ Vw;gl;Ls;sJ vd;gjd; mog;gilapYk;, kJiu $tcwh; kUj;Jtkidapy; mWit rpfpr;ir
bra;ag;gl;L fk;gp bghUj;jg;gl;L rpfpr;ir tHA;fg;gl;Ls;sJ vd;gjd; mog;gilapYk;
mtUf;F 20% gFjp epue;ju Cdk; Vw;gl;ls;sjhf Kot[ fz;L, mjd; mog;gilapy;
nHg;gPl;Lj; bjhif fzf;fPL bra;jy; ePjpapd; ghw;gl;lJ vdt[k; jPh;khdpf;fpBwd;.”
10. In fact, the Tribunal stated that as per the aforesaid reasons, the
Tribunal reduced the percentage of disability from 35% to 20%. But the entire
paragraph as well as paragraph 9 support the
case of the appellant. Those paragraphs deal with the deposition of the doctor
about the sufferings of the appellant. Admittedly, the appellant was treated as
inpatient in Jawahar Hospital, Madurai for 19 days and a surgery was also
performed and steel plates were inserted. The doctor deposed that there is a
difficulty for the appellant to climb stairs and to sit on the floor. The
doctor deposed that he could not run and he could not walk fast. He also
deposed that femur bone was fractured. There is no contra evidence let in by
the second respondent Insurance Company against the evidence of the doctor and
the disability certificate marked as Ex.P.10. Ex.P.2 is the wound certificate
and Ex.P.6 is the treatment record. P.W.2, an employee from the Jawahar
Hospital, Madurai was examined and he produced the entire treatment records.
11. In these circumstances, I am of the view that the Tribunal was not
correct in reducing the disability from 35% to 20%, without giving any reason
therefor. Hence, I hold that the appellant suffered 35% permanent partial
disability.
12. Thirdly, the appellant has grievance over fixing Rs.20,000/- towards
disability compensation instead of applying multiplier method in granting
compensation. Though initially the learned Counsel for the second respondent
opposes strenuously for applying multiplier method, the learned Counsel did not
seriously dispute for applying the multiplier method if Rs.2,000/- is taken as
monthly earnings of the appellant. In my view, Clause 5 of the Second Schedule
of the Motor Vehicles Act makes it very clear that multiplier method has to be
applied in non fatal cases. The Honourable Apex Court also held in the
following decisions
(i) Reshma kumar and Others Vs. Madam Mohan and Another reported in 2009(2)
TNMAC 36 (SC)
(ii)Sunil Kumar Vs. Ram Singh and Others reported in 2008(1) TNMAC 43(SC)
(iii)G.Lakshmanan Vs. K.Kannan and Others reported in 2007(1) MLJ 433
that the multiplier could be applied in cases where the injured suffered
permanent partial disability. Hence, I hold that the Tribunal committed error
in awarding lump sum compensation of Rs.20,000/- towards disability, without
applying multiplier method.
13. Though the appellant has not produced any evidence regarding his
monthly earnings, when he pleaded that he earned Rs.10,000/- per month. In
these circumstances, the learned Counsel for the appellant has no objection for
taking Rs.2,000/- as monthly earnings of the appellant as suggested by the
learned Counsel for the second respondent. Admittedly, the age of the appellant
at the time of the accident was 37 years. The relevant multiplier as per the
decision of the Honourable Apex Court in Sarala Varma case reported in 2009(1)
TNMAC 1 is “15”. Hence the compensation works out under the structured formula
is Rs.2,000/- x 12 x 15 x 35/100= Rs.1,26,000/-
14. The learned Counsel for the second respondent submits that if the
multiplier method is adopted, there is no justification to award Rs.10,000/-
towards grievous injuries. The learned Counsel for the appellant has no
objection for deleting the said amount. Hence a sum of Rs.10,000/- awarded by
the Tribunal towards grievous injuries is set aside.
15. Fourthly, the appellant claims Rs.73,000/- towards medical expenses
based on the medical bills produced. However, the Tribunal awarded Rs.50,000/-.
The learned Counsel for the appellant does not press this claim and he is
satisfied with Rs.50,000/- as awarded by the Tribunal, particularly, after the
learned Counsel for the second respondent pointed out that there are defects in
the bills.
16. The next issue is relating to the compensation awarded towards pain
and sufferings. The Tribunal awarded Rs.5,000/- towards pain and sufferings.
According to the learned Counsel for the appellant, it is on the lower side. At
this juncture, the learned Counsel for the second respondent suggests that the
same could be modified as Rs.10,000/-, for which the learned Counsel for the
appellant has no objection. Hence Rs.10,000/- is awarded towards pain and
sufferings.
17. Finally, the issue relating to non awarding of any amount towards
future medical expenses has to be resolved. According to the appellant, he
should have been awarded Rs.25,000/- for removal of steel plates by way of
surgery. The evidence of the doctor is relied on in this regard. At this
juncture, the learned Counsel for the second respondent submits that he has no
objection for granting Rs.10,000/- towards future medical expenses instead of
Rs.25,000/- as deposed by the doctor. The learned Counsel for the appellant has
no objection for the said suggestion of Rs.10,000/- towards future medical
expenses and accordingly, Rs.10,000/- is granted towards future medical
expenses. There is no dispute for granting Rs.5,000/- for extra nourishment and
for transport charges. Accordingly, that amount is confirmed. Hence, the award
of the Tribunal is modified as follows:
(i) for loss of income Rs.1,26,000 (ii) for extra nutrition and for transport charges Rs. 5,000 (iii) for pain and sufferings Rs. 10,000 (iv) for medical bills Rs. 50,000 (v) for future medical expenses Rs. 10,000 ----------- Total Rs.2,01,000 -----------
18. Though the appellant seeks 7.5% interest for the enhanced
compensation, since the Tribunal awarded 6% interest for the compensation, I am
not inclined to interfere with the same.
19. The second respondent Insurance Company is directed to deposit the
enhanced compensation with the same rate of interest as ordered by the Tribunal,
within a period of six weeks from the date of receipt of a copy of this order,
to the credit of M.C.O.P.No.42 of 2003, on the file of the Motor Accident Claims
Tribunal, Chief Judicial Magistrate, Sivagangai. This Civil Miscellaneous
Appeal is allowed in the above terms. No costs.
ssl
To
The Motor Accident Claims Tribunal,
Chief Judicial Magistrate,
Sivagangai.