IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.3.2009 Coram The Hon'ble Mr. Justice R.SUDHAKAR Civil Miscellaneous Appeal No.616 of 2009 and M.P.No.1 of 2009 The Managing Director, The Tamilnadu State Transport Corporation Limited, Salamedu, Villupuram. ... Appellant/Respondent vs. Prakash ... Respondent/Petitioner Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 17.9.2008 passed in M.C.O.P.No.71 of 2007 on the file of the Motor Accidents Claims Tribunal, Thiruvannamalai. For appellant : Mr.V.Ramesh ----- JUDGMENT
The Tamilnadu State Transport Corporation is on appeal challenging the award dated 17.9.2008 passed in M.C.O.P.No.71 of 2007 on the file of the Motor Accidents Claims Tribunal, Thiruvannamalai.
2. It is a case of injury. The brief facts of the case are as follows:- The accident in this case happened on 5.9.2006. The injured claimant Prakash, aged 22 years, working as a building construction mason, was travelling in the appellant transport corporation bus. Due to rash and negligent driving by its driver, the bus capsized in a pit. In that accident, several passengers suffered injuries. The said Prakash suffered injuries to his hand, face, hip and other parts of the body. His left leg was amputated. He filed a claim for compensation in a sum of Rs.10,00,000/- for the injury suffered in the accident.
3. In support of the claim, the injured claimant was examined as P.W.1. Dr.Ravindran, was examined as P.W.2. Exs.A-1 to A-7 were marked, the details of which are as follows:-
Ex.A-1 is the certified copy of FIR,
Ex.A-2 is the certified copy of Motor Vehicle Inspector’s Inspection
Report,
Ex.A-3 is the certified copy of accident register,
Ex.A-4 is the certified copy of charge sheet,
Ex.A-5 is the certified copy of discharge summary,
Ex.A-6 is the photo with negative of the claimant and
Ex.A-7 is the disability certificate.
On behalf of the appellant transport corporation, the respondent before the Tribunal, Mr.Jayapalan, the conductor of the appellant transport corporation bus was examined as R.W.1. No document was marked on behalf of the appellant transport corporation.
4. The Tribunal discussed the oral and documentary evidence on record and held that the negligence was on the part of the driver of the appellant transport corporation. There is no material placed on behalf of the appellant transport corporation to controvert the same. The finding of negligence on the part of the driver of the appellant transport corporation bus, as responsible for the accident and the injury and the liability fixed on the appellant transport corporation, cannot be and is not seriously disputed by the counsel for the appellant in the appeal and the same is confirmed. The only contention raised by the counsel for the appellant is on the quantum of compensation.
5. As far as quantum of compensation is concerned, the Tribunal based on the oral and documentary evidence of the claimant and that of the doctor supported by medical records issued by the hospital in which, the claimant had taken treatment, the period of hospitalisation and the disability assessed at 70%, granted the following amount as compensation adopting multiplier method with interest at 7.5% per annum:-
Sl.No.
Head
Amount granted by the Tribunal
1
Loss of income, loss of earning capacity and for disability assessed at 70% (Rs.2,000/- x 12 x 17 x 70/100 = Rs.2,85,600/-)
Rs.2,85,600/-
2 Transport expenses Rs. 2,000/- 3 Extra nourishment expenses Rs. 2,000/- 4 Attender charges Rs. 2,000/- 5 Mental agony, loss of comfort, expectation of life, pain and suffering, depression and loss of happiness due to amputation of leg. Rs. 25,000/- Total Rs.3,16,600/- 6. In appeal, the learned counsel for the appellant pleaded that the multiplier of 17 adopted by the Tribunal is on the higher side. Further, the sum of Rs.25,000/- granted towards mental agony, loss of comfort, expectation of life, pain and suffering, depression and loss of happiness due to amputation of leg is higher. Therefore, the quantum of compensation has to be reduced.
7. On going through the award of the Tribunal, this Court is not inclined to interfere with the quantum of compensation on the above said contention for the following reasons:-
(i) The accident in this case happened on 5.9.2006. The injured claimant at the time of accident was 22 years old and in prime youth. He was working as building construction mason.
(ii) From the records, it is clear that the injured claimant was treated first at the Government Hospital, Tindivanam, then at Chennai Stanley Hospital from 5.9.2006 to 9.10.2006 as inpatient. P.W.2, doctor deposed in his evidence that the claimant’s left leg was amputated. He issued disability certificate assessing disability at 70%. According to the doctor’s evidence, the claimant is unable to do any work independently as before. The claimant had taken treatment for 35 days in the hospital. In this case, no amount was granted towards loss of income during the period of treatment and convalescence.
(iii) The amount granted towards transport expenses, extra nourishment expenses and attender charges are very very low.
(iv) Since the left leg was amputated, as a building construction mason, the claimant will not be able to do his work as before. The Tribunal fixed the income of the claimant at Rs.2,000/- per month (i.e.) Rs.24,000/- per annum, which is meagre. Based on the age of the injured claimant, the Tribunal adopted 17 multiplier and granted a sum of Rs.2,85,600/-. It has to be seen whether this amount is excessive.
(v) It was stated that the injured claimant was earning a sum of Rs.6,000/- per month. The Tribunal, however, has taken the monthly income at Rs.2,000/- per month which is very meagre and the same is not commensurate with minimum wages or living wages as the accident in this case happened in the year 2006.
(vi) The following decisions will have to be kept in mind while fixing the income of the injured claimant:-
(a) A Division Bench of this Court in B.Anandhi vs. – Latha reported in 2002 ACJ 233 (P.SATHASIVAM,J., as he then was) observed that a coolie would earn Rs.100/- per day. In that case, the accident happened in the year 1995.
(b) The Apex Court in State of Haryana and another vs. – Jasbir Kaur and others reported in 2004-1 Law Weekly, was of the view that an agriculturist would earn Rs.3,000/- per month. In that case, the accident happened in the year 1999.
In the above cited cases, the income of the deceased was taken at Rs.3,000/- per month for the year 1995 and 1999 respectively, whereas in the present case, the accident happened in the year 2006. Considering the same, the income of the injured claimant, can be fixed atleast at Rs.4,000/- per month.
(vii) Due to the amputation of the leg and the other injuries suffered, the injured claimant will not be able to work and earn as before. The prospects of future income is very much affected. Therefore, considering the nature of injury, the occupation of the injured claimant, the compensation can be arrived at by adopting lesser multiplier. The possibility of earning by other means without physical exertion has to be considered and the appropriate multiplier in this case can be fixed as “12” instead of “17”. In the case of injury, the multiplier as in the case of death need not be taken vide the Division Bench decision of this Court in United India Insurance Co. Ltd., – vs. – Veluchamy and another reported in 2005 ACJ 1483. In Paragraph 11 of the decision reads thus:-
“11. The following principles emerge from the above discussion:
(a) In all cases 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 injury and consequential disability, the injured lost his employment or avocation completely and has to be idle for the rest of his life, in that event loss of income or earnings may be ascertained by applying the ‘multiplier method’ as provided under the Second Schedule to Motor Vehicles Act, 1988.
(2) Even 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 likelihood 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.”
(emphasis supplied)
Therefore, the loss of income due to the injury suffered, for which disability is assessed at 70%, will be as follows:- “Rs.4,000/- x 12 x 12 x 70% = Rs.4,03,200/-“. In this case, the Tribunal granted a sum of Rs.2,85,000/- only. Hence, the compensation is not excessive as contended.
(viii) Since the left leg has been amputated and in view of the decision of the Apex Court in Nagappa vs. – Gurudayal Singh and others reported in 2003 ACJ 12 (3 Judges), the claimant is entitled to appropriate compensation for future medical treatment, like, replacement of the artificial leg. On that head, the claimant is entitled to a reasonable sum towards future medical expenses for replacement of artificial leg. However, no amount is granted.
(ix) The sum of Rs.25,000/- granted towards mental agony, loss of comfort, expectation of life, pain and suffering, depression and loss of happiness due to amputation of leg is justified considering the gravity of the accident and injury suffered by the 22 year old youth.
(x) Considering all the above aspects, the total compensation granted in a sum of Rs.3,16,000/- is not excessive as contended and does not require any further reduction as also the interest granted at 7.5% as the accident in this case happened in the year 2006 and the award is of the year 2008.
8. Finding no merit, this Civil Miscellaneous Appeal is dismissed at the admission stage. Counsel for the appellant seeks for eight weeks’ time to deposit the award amount and is granted and on such deposit, the claimant is permitted to withdraw the same. Consequently, connected miscellaneous petition is closed.
Note:-
The cause title only states that the award is passed by the Motor Accidents Claims Tribunal, Thiruvannamalai, but the name of the Court which is dealing with the Motor Accidents cases is not specified. The District Judge, Thiruvannamalai is directed to issue instructions to the concerned Tribunal to specify the name of the court in the award.
ts
To
1) The Motor Accidents Claims Tribunal,
Thiruvannamalai.
2) The District Judge,
Thiruvannamalai