IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.11.2008 CORAM: THE HON'BLE MR.JUSTICE V.PERIYAKARUPPIAH C.M.A.Nos.2937 to 2939 of 2003 The Branch Manager, New India Assurance Co.Ltd., 12, New Hospital Road, Gobi Town and Taluk. ... Appellant in all CMAs vs 1. Bhuvaneswari 2. Rajendran 3. Kanakambaram ... Respondents in CMA 2937 of 2003
1. Kasthuri (Minor)
rep. by father and next
friend Ramalingam
2. Rajendran
3. Kanakamabaram … Respondents in CMA 2938 of 2003
1. Swathi (Minor)
rep. by father and next
friend Ramalingam
2. Rajendran
3. Kanakambaram … Respondents in CMA 2939 of 2003
Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicle Act, 1988 against the Judgment and Decree dated 08.01.2003 made in M.A.C.T.O.P.Nos.87, 91 and 90 of 2002 on the file of Motor Accidents Claims Tribunal, (Additional District Judge, Fast Track Court 2) at Gobichettipalayam.
For Appellant : Mr.M.Krishnamoorthy For R1 : Mr.MA.P.Thangavel For R2 and R3 : No appearance C O M M O N J U D G M E N T These appeals preferred by the Insurance Company are directed against the common judgement and award passed by the lower Court in M.C.O.P.Nos.87, 91 and 90 of 2002, dated 08.01.2003. 2. The brief facts of the case before the trial Court are as follows:
(i) So far as M.C.O.P.No.87 of 2002 is concerned, the case of the claimant is that on 20.06.2001, she was travelling as pillion rider in a two wheeler bearing Registration No.TN-01-N-6188 driven by her husband. When they were proceeding towards Gobi, Sakthi Main Road from West to East, near a petrol bunk, a car bearing No.TN-33-Z-3344 driven by one Rajendran/1st respondent, came in the opposite direction and hit against the two wheeler in which the claimant was travelling and on account of which she sustained injuries and was taken to Erode Government Hospital and treated as inpatient. Later, she took treatment in K.K.S.Hospital from 23.06.2001 to 10.07.2001. At the time of accident, the claimant was aged 28 years and was earning more than a sum of Rs.3,000/- per month. Due to the said accident, she suffered disablement and hence claimed a sum of Rs.3,00,000/- as compensation.
(ii) So far as M.C.O.P.No.91 of 2002 is concerned, the case of the claimant is that on 20.06.2001 at 7.45 p.m., she was travelling as pillion rider in a two wheeler bearing Registration No.TN-01-N-6188 driven by her father. When they were proceeding towards Gobi, Sakthi Main Road from West to East, near Bharath petrol bunk, a car bearing No.TN-33-Z-3344 driven by one Rajendran/1st respondent came in the opposite direction and hit against the two wheeler in which the claimant was travelling and on account of which she sustained injuries and was taken to Seethalakshmi Hospital and treated as inpatient from 20.06.2001 to 09.06.2001. At the time of accident, the claimant was aged 9 years and due to the said accident, she suffered permanent disability and hence claimed a sum of Rs.4,00,000/- as compensation.
(iii) So far as M.C.O.P.No.90 of 2002 is concerned, the case of the claimant is that on 20.06.2001 at 7.45 p.m., she was travelling as pillion rider in a two wheeler bearing Registration No.TN-01-N-6188 driven by her father. When they were proceeding towards Gobi, Sakthi Main Road from West to East, near a petrol bunk, a car bearing No.TN-33-Z-3344 driven by one Rajendran/1st respondent came in the opposite direction and hit against the two wheeler in which the claimant was travelling and on account of which she sustained injuries and was taken to Seethalakshmi Hospital and treated as inpatient from 20.06.2001 to 20.07.2001. At the time of accident, the claimant was aged 3 years and due to the said accident, she suffered disability and hence claimed a sum of Rs.4,00,000/- as compensation.
3. The lower Court (Tribunal), after recording the common evidence in a joint trial of all the three cases, had come to the conclusion of awarding a sum of Rs.24,000/- with interest and cost to the claimant in M.C.O.P.No.87 of 2002; a sum of Rs.1,47,585/- with interest and cost in favour of the claimant in M.C.O.P.No.91 of 2002 and a sum of Rs.76,500/- with cost and interest in favour of the claimant in M.C.O.P.No.90 of 2001. The appellant/ Insurance Company which is liable to pay the said amounts has preferred all these three appeals against the said common judgment and award.
4. Heard the learned counsel for the appellant and the respondents in all the three appeals.
5. The learned counsel for the appellant/Insurance Company would submit in his argument that the lower Court had not properly appraised the evidence and had come to the conclusion of fixing the liability on the first respondent who is the driver of the second respondent before the lower Court. He would further submit that the driver of the two wheeler was also equally responsible for the cause of the accident and accordingly the driver, owner and insurer of the said vehicle should have been impleaded as parties, so as to fix the responsibility. Apart from that, the contributory negligence on the part of the claimant in M.C.O.P.No.87 of 2002 should have also been fixed. He would further submit that the quantum of compensation fixed in M.C.O.P.No.87 of 2002 at Rs.24,000/- for the injuries sustained by the claimant is on the higher side and the lower Court, having come to the conclusion that the said claimant did not incur any permanent disability, had fixed the said amount, which is not proportionate in accordance with law.
6. He would further submit in his argument that the claimant in M.C.O.P.No.91 of 2002 was only aged about 9 years at the time of accident and the lower Court had awarded compensation for the injuries once again, when it had already awarded compensation for pain and suffering and therefore, the said concept of awarding compensation for single cause on two similars head by the lower Court is not known to law and therefore, it has to be modified as per the precedents of the Apex Court and this Court.
7. He would also submit that the awarding of compensation to the claimant in M.C.O.P.No.90 of 2002 is also on the higher side and the claimant was only aged about 3 years at the time of accident and the lower Court had separately awarded a sum of Rs.25,000/- for pain and suffering and Rs.25,000/- for the injuries sustained, which is a repetition. Moreover, the compensation for mental agony was again awarded to the claimant and therefore, the said compensation has also to be revised. Therefore, he would submit that the award passed by the Tribunal in all the three cases should be either set aside or modified in accordance with law and the appeals may be allowed.
8. The learned counsel for the respondents, i.e. the claimants in all the three appeals would submit in his argument that the lower Court had appraised the evidence properly and had fixed the responsibility against the first respondent, who is the driver of the car. Since the claimant in M.C.O.P.No.87 of 2002 was riding on the two wheeler belonging to her husband at the time of accident and who was not responsible for the cause of accident, there was no necessity to implead the husband of the claimant and the Insurance Company of the two wheeler where the claimant in M.C.O.P.No.87 of 2002 was riding. He would further submit in his argument that the driver of the car had admitted his guilty before the Criminal Court and therefore, the responsibility fixed by the lower Court on the driver of the car is perfectly alright.
9. He would further submit in his argument that in M.C.O.P.No.87 of 2002, the lower Court had considered the injuries sustained by the claimant on her head as grievous and accordingly, had fixed the compensation at Rs.24,000/- which need not be interfered.
10. He would also submit that the claimant in M.C.O.P.No.91 of 2002 was operated thrice for the injuries sustained by her in the accident and the scar left out after the surgery had made her left with ugly appearance on her thighs and she was not able to sit properly. Considering all these aspects, the lower Court had awarded compensation under the head of pain and suffering, injuries and permanent disability and therefore, the compensation awarded by the lower Court in favour of the claimant in M.C.O.P.No.91 of 2002 need not be revised.
11. He would further submit in his argument that the claimant in M.C.O.P.No.90 of 2002 was aged 3 years only at the time of accident and she sustained a fracture on her leg and the injuries had resulted in 18% permanent disability and therefore, the compensation awarded by the lower Court for a sum of Rs.76,500/- on all categories cannot be questioned and therefore, the said compensation may also be approved and the appeals may be dismissed.
12. I have given anxious consideration to the arguments advanced on either side.
13. So far as the accident which took place on 20.06.2001 is concerned, it was not disputed by either side before Lower Court. The case of the claimants before the lower court was that the (first respondent before the lower Court) driver of the car had suddenly turned on his right side towards the petrol bunk without making any signal and due to the said negligence on the part of the driver (first respondent before lower Court) the accident had happened and the husband of the claimant in M.C.O.P.No.87 of 2002 was not responsible for the cause of accident.
14. On a careful perusal of evidence adduced on either side and the documents produced by the claimants, I could see that the First Information Report in Ex.A16 would go to show that the driver of the car (first respondent before Lower Court) was shown as the accused. The Rough Sketch produced as Ex.A17 and the Charge Sheet Ex.A20 would confirm that the driver of the car was prosecuted for the offence of committing rash and negligent driving. Ex.A21, the judgment of the Criminal Court would go to show that the driver of the car pleaded guilty and admitted the offence and paid the fine. Therefore, there is no hesitation to hold that the driver of the car was responsible for the cause of accident and the husband of the claimant in M.C.O.P.No.87 of 2002 who rode the two wheeler was not responsible for the cause of accident. Therefore, the fixing of responsibility on the appellant Insurance Company is quite correct.
15. So far as the compensation awarded by the lower Court in respect of the claim made by the claimant in M.C.O.P.No.87 of 2002 is concerned, I could see that the claimant was examined as P.W.2. Her Wound Certificate was produced as Ex.A10 which shows that she had sustained two injuries on her forehead and on her middle head. Even though those two injuries were described as simple injuries, the lower Court had considered those two injuries as grievous injuries for the purpose of awarding compensation, as they were inflicted on her head. The said view is perfectly correct. But, however it had awarded a sum of Rs.10,000/- for injuries as well as Rs.10,000/- for pain and suffering. There is no concept of awarding two compensations for pain and sufferings as well as injuries. According to Second Schedule of Motor Vehicles Act, 1988, compensation for pain and suffering for grievous injuries would be Rs.5,000/- per injury. Therefore, for these two injuries, the lower Court should have awarded a sum of Rs.10,000/- only under the head of pain and suffering. The award of another Rs.10,000/- for the injuries would be nothing but repetition. There is no evidence produced as to whether she was disabled due to the said injuries. Therefore, there is no question of awarding any compensation for permanent disability. Coming to the awarding of compensation for transport charges, the lower Court had considered and awarded a sum of Rs.1,000/- for two days, even though it has been spoken before the lower Court that a sum of Rs.850/- was incurred per day. There is no reason for rejecting the said evidence adduced on the side of the claimant. Therefore, the lower Court ought to have fixed at Rs.1,700/- towards transport charges for two days instead of Rs.1,000/-. Apart from that, the lower Court ought to have awarded a sum of Rs.2,000/- for medical expenditure in order to treat the injuries sustained by her. The claimant would have sustained some expenditure as far as extra nourishment is concerned and on that aspect, a sum of Rs.1,000/- should have been awarded for the claimant. In all, the claimant should have been awarded a sum of Rs.14,700/-, whereas the lower Court had awarded Rs.24,000/- which is on the higher side. Therefore, the award passed in favour of the claimant in M.C.O.P.No.87 of 2002 is modified to a sum of Rs.14,700/- with interest at 9% per annum from the date of petition till the date of realisation with proportionate cost and the remaining sum after deducting the modified award amount, shall be refunded to the appellant, if the amount had already been deposited before the lower Court. Accordingly, the appeal in C.M.A.No.2937 of 2003 is partly allowed. The claimant is permitted to withdraw the modified award amount after deducting the amount already withdrawn, if any.
16. So far as the claimant in M.C.O.P.No.91 of 2002 is concerned, I could see that the lower Court had awarded a sum of Rs.1,47,585/- with 9% interest from the date of petition till the date of realisation. The lower Court had awarded a sum of Rs.9,000/- for three simple injuries and again Rs.4,000/- for pain and suffering; a sum of Rs.40,000/- for a fracture injury; Rs.15,000/- towards pain and suffering for undergoing surgery thrice; a sum of Rs.25,000/- towards mental agony; a sum of Rs.15,000/- for 10% disability disfiguration of thighs; a sum of Rs.15,000/- for the remaining 20% of permanent disability; Rs.2,000/-for extra nourishment; Rs.13,585/- for medical expenditure and Rs.9,000/- for medicines. The award of compensation in respect of pain and suffering for the simple injuries and the grievous injury had been repeated. Similarly the compensation for mental agony to undergo three surgeries had also been excessively awarded on a different head. The lower Court had awarded compensation for disability without adopting any legal basis. It is pertinent to find that the child being 9 years old, had no income at the time of accident. Therefore, the method of calculating the non pecuniary loss in respect of permanent disability should have been followed by the lower Court.
17. So far as the injuries are concerned, the lower Court had awarded compensation for pain and suffering incurred on account of the injuries sustained and also again for injuries, which is not correct. Therefore, it has become necessary for this Court to calculate the compensation as per the norms fixed by the Full Bench of this Court and other various other pronouncements of this Court. Accordingly, three simple injuries and a grievous injury, namely a fracture were sustained by the claimant in M.C.O.P.No.91 of 2002. For that, a sum of Rs.2,500/- per simple injury and Rs.5,000/- for a grievous injury should have been awarded as per Second Schedule of the Motor Vehicles Act, 1988. On such calculation, I could see that a sum of Rs.5,000/- for a grievous injury and Rs.7,500/- for three simple injuries could be awardable for the compensation of pain and suffering. As per Ex.A15, the permanent disability of the claimant was fixed at 30%. Since the claimant was a non earning member and was aged only 9 years at the time of accident, the method of fixing the compensation for non pecuniary loss and the formula of Rs.2,000/- per 1% could be adopted. Accordingly, a sum of Rs.60,000/- is payable to the claimant for the permanent disability. It is also found in the evidence that she had undergone surgery thrice and the resultant scars due to those surgeries had made the girl to appear very ugly. For that purpose, a sum of Rs.25,000/- towards loss of future prospects could be awarded. Apart from that, the claimant girl has to lead her future life along with permanent disability and hence a sum of Rs.25,000/- has to be awarded for the loss of amenities. The medical expenditure has been proved through Exs.A3 and A4. The expenditure in the hospital was Rs.13,585/- and Ex.A4 series medical bills show that a sum of Rs.9,000/- had been spent for medicine. Therefore, those expenditures are to be reimbursed by way of compensation. The claimant was admitted in the hospital and underwent surgeries on three occasions. The claimant should have incurred an expenditure of Rs.5,000/- for extra nourishment and for that purpose a sum of Rs.5,000/- has to be awarded. On a over all computation of compensation awardable to the claimant, a sum of Rs.1,49,585/- is payable to the claimant towards compensation.
18. Even though the lower Court had calculated the compensation without adopting any legal basis, it had arrived at only a sum of Rs.1,47,585/- as compensation, which is lesser than the compensation calculated by this Court on the basis of evidence. The claimant had not preferred any appeal nor a cross appeal for enhancement of the compensation. Therefore, this Court has to confirm the total award of Rs.1,47,585/- with interest at 9% per annum from the date of petition till the date of realisation with costs as awarded by the lower Court. Accordingly, this appeal in C.M.A.No.2938 of 2003 preferred by the appellant is dismissed without costs.
19. So far as the compensation awarded to the claimant in M.C.O.P.No.90 of 2002 is concerned, a sum of Rs.25,000/- was awarded for grievous injury and a sum of Rs.2,500/- for a simple injury. Thereafter, the lower Court had awarded Rs.25,000/- for pain and suffering. The said awarding of compensation for pain and sufferings is nothing but a repetition. However, the lower Court had awarded a compensation of Rs.15,000/- for the disability of 18% as certified by the Doctor. Apart from that, a sum of Rs.2,000/- for mental agony, Rs.1,000/- for extra nourishment and Rs.6,000/- for expenditure in hospital were awarded. Since the awarding of compensation for pain and suffering and injury is for two times, there is no other way for this Court except to fix the compensation on the basis of evidence adduced before the lower Court. Accordingly, when compensation for pain and suffering is calculated for the claimant in M.C.O.P.No.90 of 2002 who was aged 3 years at the time of accident, I find that she sustained one simple injury and one grievous injury of fracture in the accident. Accordingly a sum of Rs.2,500/- for a simple injury and Rs.5,000/- for the grievous injury and a total sum of Rs.7,500/- could be awarded towards pain and suffering in favour of the claimant. The claimant was admitted in the hospital and had undergone treatment which would result in expenditure for the claimant. On that aspect, this Court is awarding a sum of Rs.6,000/- towards medical expenditure on the basis of Ex.A9. Similarly, the expenditure for a sum of Rs.1,500/- has to be awarded to the claimant towards extra nourishment. The permanent disability sustained by the claimant in the accident was assessed at 18% by the doctor. The claimant being 3 years old child and was having no income, the method of calculating non pecuniary loss with the formula of awarding a sum of Rs.2,000/- per one percent could be justifiable. Accordingly, a sum of Rs.36,000/- could have been awarded to the claimant towards permanent disability. The permanent disability of the claimant will continue throughout her life and will cause personal inconvenience to the child and hence a sum of Rs.10,000/- may also be awarded towards loss of amenities to the claimant. On a over all computation of compensation, a sum of Rs.61,000/- could be arrived at as compensation payable to the claimant as a result of the accident. Whereas, the lower Court had calculated it at 76,500/- which is not sustainable in law for the reasons stated supra. Therefore, the award is liable to be modified and reduced from Rs.76,500/- to 61,000/- which is payable by the appellant along with interest at 9% from the date of petition till the date of realisation with proportionate interest. Accordingly, the appeal in C.M.A.No.2939 of 2003 is partly allowed and the award passed by the lower Court is modified. No costs. The claimant is entitled for the modified award amount. Since the claimant being minor, the tribunal is directed to deposit the modified award amount in any Nationalised Bank in Fixed Deposit, till she attains majority. The guardian of the minor, Ramalingam is permitted to withdraw the accrued interest on the deposit of the minor once in three months. The amount if any deposited by the appellant shall be refunded to the appellant after deducting the modified award amount with subsequent interest and proportionate costs.
In the result, C.M.A.Nos.2937 and 2939 of 2003 are partly allowed and C.M.A.No.2938 of 2003 is dismissed. No costs.
10.11.2008 gms Internet : Yes Index : Yes To 1. Motor Accidents Claims Tribunal, (Additional District Judge, Fast Track Court (2) at Gobichettipalayam. 2.The Section Officer, V.R.Section, High Court. V.PERIYAKARUPPIAH,J, gms Pre-delivery judgment in C.M.A.Nos.2937 to 2939 of 2003 10.11.2008