BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 22/07/2009 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.M.A.(MD) No.1471 of 2006 and M.P.(MD) No.2 of 2007 Ashok Kumar ... Appellant/Claimant Vs 1.Marappan 2.The Divisional Manager, National Insurance Company Ltd., 81-D, Chetty Street, Tiruchengodu Town, Namakkal District. ... Respondents/Respondents Prayer Appeal filed under Section 173 of the Motor Vehicles Act 1988, against the judgment and decree dated 06.09.2006, passed in M.C.O.P.No.18 of 2006 by the Motor Accident Claims Tribunal/Chief Judicial Magistrate, Virudhunagar District at Srivilliputtur. !For Appellant ... Mr.M.Thirunavukkarasu ^For 1st Respondent ... No appearance For 2nd Respondent ... Mr.S.Srinivasa Raghavan * * * * * :JUDGMENT
This Civil Miscellaneous Appeal is filed by the claimant against the award
of a sum of Rs.2,53,964/-, as against the claim of Rs.10,00,000/-.
2.The appellant/claimant suffered injury in the accident occurred on
13.07.2003, during which the vehicle belonged to the first respondent, insured
with the second respondent, dashed against the claimant, when he was standing on
the road. As a result, he sustained fracture and his left leg got crushed,
apart from the injuries all over the body. Immediately after the accident, the
appellant was taken to WanLess Hospital at Miraj, where his left leg was
amputated and he was hospitalised from 13.07.2003 to 20.08.2003. Subsequently,
he was transferred to R.S. Ortho Hospital at Rajapalayam and he is continuing
with the treatment. The claimant has contended in the claim petition that he is
unable to walk, stand and move about without the help of others because of the
amputation and the other injuries. He lost his avocation as a driver. He
claimed that he was earning a sum of Rs.4,000/- as monthly income and he was
aged about 23 years at the time of accident.
3.The second respondent insurance company contested the matter. However,
the tribunal came to the conclusion that the accident occurred because of the
negligence on the part of the driver of the 1st respondent’s vehicle and fixed
the liability on the insurance company. There is no appeal against the finding
of the tribunal regarding negligence by the respondents. Hence, it has become
final and this Court does not go into that question.
4.The appellant/claimant is aggrieved only with regard to the quantum of
compensation awarded by the Tribunal.
5.The case of the claimant is that he was earning about Rs.4,000/- per
month by working as driver. To prove it, he examined P.W.3. Through him,
Ex.P.10, Salary Certificate was marked. According to the salary certificate,
the monthly salary was Rs.4,000/-, apart from perks. P.W.2, the doctor spoke
about the injuries sustained by the claimant and the disability attained
because of the injuries and the amputation of the left leg. P.W.2 fixed the
permanent disability at 95%. In support of it, he gave the disability
certificate, which was marked as Ex.P.12. Admittedly, there is no dispute
regarding the amputation of leg and the 95% permanent disability attained by the
claimant and loss of avocation as driver.
6.The tribunal did not believe Ex.P.10, Salary Certificate, since it was
issued by the first respondent owner. When the first respondent is the owner,
the claimant could get salary only from the first respondent and not from
anybody else. However, the tribunal wrongly disbelieved Ex.P.10, on the wrong
premise that the certificate should have been issued for the purpose of that
case. Even in the absence of any evidence with regard to the monthly income,
the Honourable Supreme Court in New India Assurance Company Ltd., vs. Kalpana
(Smt.) and others reported in (2007) 3 SCC 538 fixed the monthly contribution to
the family at Rs.3,000/- after deducting 1/3rd income towards personal income.
In that case, the deceased was 33 years old and there was no definite evidence
to assess the monthly income of the deceased. Hence, the Honourable Supreme
Court fixed the monthly contribution to the family at Rs.3,000/-. Applying the
ratio given in the aforesaid judgment, the loss of income of the petitioner
after deducting 1/3rd income towards personal expenses is fixed at Rs.3,000/-
per month.
7.The claimant was aged about 22 years at the time of accident. The
tribunal did not apply the multiplier appended to the Second Schedule for
arriving at loss of income and it took only the permanent disability at 90% and
awarded a sum of Rs.90,000/- towards permanent disability. It has to be seen by
the Tribunal, whether the Second Schedule is applicable to the case or not.
However, no such attempt has been made by the Tribunal, which is a material
irregularity. The Tribunal, which was formed for the purpose of implementing
the Motor Vehicles Act, a benevolent legislation, did not even care to apply its
mind with regard to the facts and awarded only a sum of Rs.90,000/- towards
permanent disability. Therefore, the facts of this case, absolutely warrants
application of the Second Schedule of the Motor Vehicles Act, otherwise, the
very purpose of the beneficial legislation will be lost. The conclusion of this
Court is supported by Division Bench judgment passed in United India Assurance
Co. Ltd., Vs. Veluchamy reported in 2005(1) TNMAC 87(DB).
8.As the claimant suffered 90% permanent disability and the age of the
claimant was 22, according to the second Schedule the proper multiplier to be
applied is 17. The monthly contribution of the appellant was already arrived at
Rs.3,000/-. By applying the multiplier 17, the loss of income comes
to Rs.3,000/- x 12 x 17 x 90 = Rs.5,50,800/- (Rupees
—
100
Five Lakhs Fifty Thousand and Eight Hundred only). However, Rs.90,000/- was
awarded towards permanent disability by the Tribunal, if that amount is not
deleted, it would amount to double compensation, as the claimant was awarded
compensation based on the Second Schedule. Hence, Rs.90,000/- awarded by the
tribunal towards permanent disability is deleted.
9.The one another important factor which has to be considered is that the
claimant is the only son of his parents and the chance of claimant getting
married is very much reduced. The tribunal did not take into consideration of
that aspect, and no amount was awarded for the loss of marital prospects.
Hence, it is just and proper to award a sum of Rs.50,000/- (Rupees Fifty
Thousand only) towards loss of marital prospects. The tribunal awarded a sum of
Rs.5,000/- towards extra nourishment. Considering the injuries sustained by the
appellant/claimant that amount is enhanced to Rs.10,000/- (Rupees Ten Thousand
only).
10.As far as the other heads are concerned, the tribunal rightly awarded a
sum of Rs.35,000/- towards pain and sufferings, Rs.5,000/- towards transport
expenses, Rs.4,750/- towards loss of income during the treatment period,
Rs.9,500/- towards attendants charges and Rs.1,04,714/- towards medical expenses
based on medical bills Exs.P.7 and P.9, which warrant no interference.
Moreover, the rate of interest awarded by the Tribunal at the rate of 7.5% p.a.
is also very reasonable. So, the compensation awarded by the Tribunal is
reassessed as under:
(i) For Loss of income – Rs.5,50,800.00
(ii) For Pain and Sufferings – Rs. 35,000.00
(iii)For Extra nourishment – Rs. 10,000.00
(iv) For Transport Expenses – Rs. 5,000.00
(v) For Loss of income during
the treatment period – Rs. 4,750.00
(vi) For Attendants Charges – Rs. 9,500.00
(vii)For Medical Expenses – Rs.1,04,714.00
(viii)For the loss of capacity
of proper marital life
and opportunity of
alliance – Rs. 50,000.00
—————-
Total – Rs.7,69,764.00
—————-
11.Learned counsel for the 2nd respondent Mr.S.Srinivasa Raghavan, very
fairly conceded many of the points, which is a very rare quality now a days and
he has to be appreciated.
12.The learned counsel for the second respondent prays four weeks time for
depositing the enhanced compensation.
13.In the result, the Civil Miscellaneous Appeal is allowed by enhancing
the total compensation awarded by the Tribunal from Rs.2,53,964/- (Rupees Two
Lakhs and Fifty Three Thousand Nine Hundred and Sixty Four only) to
Rs.7,69,764/- (Rupees Seven Lakhs Sixty Nine Thousand Seven Hundred and Sixty
Four only). The insurance company is directed to deposit the enhanced award
amount within 4 weeks from the date of receipt of a copy of this order or from
the date of production of the copy of the order by the petitioner, whichever is
earlier. On such deposit, the tribunal is directed to pay the entire award
amount to the appellant/ claimant within 10 days from the date of deposit. In
other aspects the award of the Tribunal is sustained. No costs. Consequently,
connected M.P.(MD) No.2 of 2007 is closed.
sj
To
The Motor Accident Claims Tribunal,
(Chief Judicial Magistrate),
Virudhunagar District
at Srivilliputhur.