BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11/02/2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGA PERUMAL ADITYAN C.M.A.No.677 of 1998 M.Kumar ... Appellant Vs 1.Ganesan 2.The Branch Manager, National Insurance Company Limited, Karaikudi. ... Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, against the judgment and decree dated 19.07.1996 and made in M.C.O.P.No.30 of 1994 on the file of the Motor Accidents Claims Tribunal - Additional District Judge and Chief Judicial Magistrate, Sivagangai. !For Appellant ... Mr.A.Sethuraman ^For Respondents ... Mr.S.Ramachandran for C.Paul Asir for R2. R1-Ganesan(No Appearance) :JUDGMENT
This appeal has been preferred against the award passed in M.C.O.P.No.30
of 1994 on the file of the Motor Accidents Claims Tribunal – Additional District
Judge and Chief Judicial Magistrate, Sivagangai, dated 19.07.1996. The claimant
is the appellant herein.
The short facts of the case relevant for the purpose of deciding this appeal are
as follows:
2. On 18.11.1993, the claimant had travelled in the bus bearing
Registration No.TN-63-6363, belonging to the first respondent, from Thirupuvanam
to Manamadurai. Due to the rash and negligent driving of the driver of the bus,
it dashed against the palm tree near Thallakulam and due to the accident, the
petitioner had sustained fracture on the right forearm. Hence, the claimant
had preferred the claim petition, claiming Rs.1,00,000/- towards compensation.
The first respondent in his counter, has stated that the driver of the bus, had
valid driving licence, hence, the second respondent alone is liable to pay the
compensation. The second respondent in his counter, has contended that the
compensation claimed is exorbitant.
3. Before the learned Tribunal, P.W.1 to P.W.3 were examined and Exs.P.1
to P.6 were marked on the side of the claimant. On the side of the respondents,
neither oral nor documentary evidence was let in.
4. After going through the available evidence let in, before the learned
Tribunal, the learned Tribunal has come to a conclusion that the claimant is
entitled to Rs.49,000/- towards compensation.
5. Not satisfied with the award of compensation passed in M.C.O.P.No.30 of
1994 on the file of the Motor Accidents Claims Tribunal – Additional District
Judge and Chief Judicial Magistrate, Sivagangai, dated 19.07.1996, the claimant
had preferred this appeal.
6. Now, the point for determination in this appeal is whether the award of
compensation is liable to be enhanced for the reasons stated in the Memorandum
of appeal?
The Point:
7. The learned Counsel appearing for the appellant would contend that the
learned Tribunal ought to have taken into consideration the monthly salary of
the claimant as Rs.2,200/- and would have awarded more compensation on the head
loss of earning power. Taking into consideration, the permanent disability
assessed by the Doctor as 39%.
8. The learned Counsel appearing for the respondent / Insurance Company
would contend that the learned Tribunal had awarded Rs.20,000/- on the head loss
of earning power and another sum of Rs.15,000/- under the head permanent
disability and that as per the latest judgment in Oriental Insurance Company
Limited Vs. Hariprasad reported in 2006 (1) CTC 81, the claimant is not entitled
to be compensated under loss of earning power and also under permanent
disability. The relevant observation of the above said dictum runs as follows:
“Resultantly, we find that (1) Loss of earning power is one of the
consequences that follows from a permanent disability; (2) Permanent disability
is a physical impairment which results in distinct personal, social and
financial consequences to be classified as one head requiring compensation to be
worked out as one entitling for non-pecuniary damages; (3) An injured, who
sustained a disability is entitled to claim compensation under the head
“permanent disability”. If the resultant deprivation is categorized and claim
is made under separate heads and compensation is awarded under the above heads,
over and above the same, for the deprivation suffered compensation is not to be
granted under the general head “permanent disability”; (4) all the eventualities
that may surface on account of a disability, which deserve to be compensated may
not be possible to be catalogued and essentially the Tribunal has to determine
the claim bearing in mind the statutory mandate that what is payable is a just
compensation; and (5) While awarding compensation under the head “permanent
disability”, the Tribunal should take notice of the loss of earning power, in
each individual case, in case a claim is made as one of the contributory to the
total packet of compensation and shall not take into consideration the loss of
earning power as a separate head after fixation of compensation for permanent
disability.”
9. It is seen from the evidence of the Doctor that the claimant had
sustained a fracture on the right forearm. The learned Tribunal after taking
into consideration, the evidence of the Doctor and the percentage of the
disability, had awarded Rs.15,000/- towards compensation under the head of loss
of earning power. Even though, there is evidence to the effect that the
claimant is not working under the same employer, subsequent to the accident,
there is no evidence let in to show that subsequent to the accident, he is not
having any employment. The learned Tribunal, after taking into consideration,
the permanent disability has also awarded Rs.20,000/- towards compensation. The
award was of the year 1996. On the basis of the dictum in 2006 (1) CTC 81, I am
declined to reduce the award which is passed in the year 1996. The learned
Tribunal has also awarded Rs.5,000/- towards transport charges to the hospital,
nutritious diet, and charges to the attendant to help the injured at the time of
taking treatment in the hospital for nearly eight days as an inpatient. For
pain and sufferings also, the learned Tribunal has awarded Rs.9,000/-.
10. I do not find any reason to interfere with the award of compensation
fixed by the learned Tribunal, which is neither illegal nor infirm.
11. Hence, I hold on the point that the award of compensation in
M.C.O.P.No.30 of 1995, on the file of the Motor Accidents Claims Tribunal –
Additional District Judge and Chief Judicial Magistrate, Sivagangai, need not be
enhanced for the reasons stated in the Memorandum of appeal. The point is
answered accordingly.
12. In the result, the appeal is dismissed, confirming the order passed in
M.C.O.P.No.30 of 1994, dated 19.07.1996, on the file of the Motor Accidents
Claims Tribunal – Additional District Judge and Chief Judicial Magistrate,
Sivagangai. No costs.
rsb
To
The Motor Accidents Claims Tribunal –
Additional District Judge and
Chief Judicial Magistrate,
Sivagangai.