BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 02/03/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.786 of 2009 and M.P.(MD)No.1 of 2009 National Insurance Company Limited, 3, North Veli Street, Near Setupathi School, Madurai -1, through its Divisional Manager. ... Appellant/2nd Respondent Vs 1. S.Perumal ... Respondent/Petitioner 2. K.Sureshkumar ... Respondent/1st Respondent Prayer Appeals filed under Section 173 of Motor Vehicles Act, 1988, against the order and decree dated 23.04.2007 made in M.C.O.P.No.2417 of 2001 on the file of the Motor Accidents Claims Tribunal, II Additional Sub Court, Madurai. !For Appellant ... Mr.S.Ramachandran ^For Respondent ... Mr.S.Ramesh @ Ramaiah for R.1 * * * * * :JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellant against
the order and decree dated 23.04.2007 made in M.C.O.P.No.2417 of 2001 on the
file of the Motor Accidents Claims Tribunal – II Additional Sub Court, Madurai.
2. The appellant is the Insurance Company. The first respondent in the
appeal is the claimant. The claimant was a driver employed by the Tamil Nadu
State Transport Corporation, Madurai Division I, a Government of Tamil Nadu
undertaking. On 24.08.2000, while he was driving a bus near Manimoortheeswaran
Vilakku at Thachanaullur-Tirunelveli road, a lorry which was insured with the
appellant Insurance Company, bearing registration No.TN-72-C-6877, hit against
the bus in direct collusion, while overtaking a Maruthi Car, which resulted in
severe injuries on the right leg of the claimant. Many passengers also received
injuries. The claimant was immediately admitted in Tirunelveli Medical College
Hospital and he was there upto 25.08.2000 and thereafter, he was admitted as an
inpatient in Government Rajaji Hospital, Madurai from 26.08.2000 to 05.09.2000.
He took treatment as outpatient from one Dr.Muthuvel Rajan from 10.11.2000 to
20.03.2001. Thereafter, he was admitted as an inpatient in Christian Hospital,
Madurai from 31.07.2001 to 18.08.2001 and a surgery was performed on the right
ankle of the claimant in the said hospital. In view of the accident, the
claimant could not drive bus. He could not climb stairs; he could not squat on
the floor and he could not sit cross legged. The doctor certified that he
suffered 33% permanent partial disability. He was disqualified to drive bus.
The Transport Corporation sent him before the Medical Board. The Medical Board
found him unfit to hold the post of driver. Hence, he was removed vide order
dated 05.02.2002 from service. From 24.08.2000 i.e. the date of accident, till
05.02.2002, he was not paid salary as he did not have medical leave to his
credit. In these circumstances, he filed M.C.O.P.No.2417 of 2001 claiming
Rs.15,00,000/- as compensation. Before the Tribunal the claimant examined four
witnesses including himself and also marked documents Exs.P.1 to P.30. The
appellant herein did not examine any witness and also did not produce any
document. The Tribunal passed an award dated 23.04.2007 awarding a sum of
Rs.9,77,000/- as compensation with 7.5% interest and costs. The present appeal
is against the said order.
3. Heard the learned Counsel for both sides.
4. The Tribunal awarded a sum of Rs.9,77,000/- under the following heads:
i) for loss of income Rs.8,50,000
ii) for medical expenses Rs. 60,000
iii)for pain and sufferings Rs. 20,000
iv) for permanent disability Rs. 23,000
v) for loss of amenities Rs. 10,000
vi) for transport expenses Rs. 4,000
vii)for extra nourishment Rs. 10,000
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Rs.9,77,000
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5. The learned Counsel for the appellant submits that though he lost his
employment as a driver in the Transport Corporation, he should have tried for an
alternative job with the Transport Corporation. In any event, he submits that
since he did not suffer 100% disability, he could perform some other duty and
therefore, the Tribunal was not justified in granting a sum of Rs.8,50,000/- as
compensation for loss of earning. Secondly, it is further submitted that when
Rs.8,50,000/- was awarded as compensation for loss of earning, the Tribunal was
not justified in granting a sum of Rs.23,000/- towards disability compensation.
Thirdly, it is submitted that the loss of income, gratuity, bonus was arrived at
Rs.12,00,000/- by the Tribunal. The Tribunal is not correct in taking
Rs.12,00,000/- as the loss of earning by the appellant due to the accident, for
granting Rs.8,50,000/- as compensation for loss of income.
6. According to the learned Counsel for the appellant, the Tribunal ought
to have applied a proper multiplier after deducting 1/3rd from his monthly wages
that he received at the time of the accident. It is submitted that the claimant
received a sum of Rs.7,000/- as wages at the time of accident. As far as
multiplier is concerned, the learned Counsel submits that the proper multiplier
should be adopted, without mentioning what is the proper multiplier.
7. On the other hand, the learned Counsel for the claimant seeks to
sustain the award of the Tribunal. It is submitted by the learned Counsel for
the claimant that he could not be found fault for not seeking other employment.
It is submitted that the Transport Corporation did not offer any alternate
employment. It is stated that the claimant could not do any work than the
driving work. It is further submitted that the Transport Corporation owned by
the Tamil Nadu State Government gave a certificate on 05.04.2002 stating that
the loss of salary to the petitioner was Rs.10,42,164/-, loss of bonus was
Rs.22,500/- and loss of gratuity was Rs.1,40,253/-. The Tribunal is justified
in acting on the certificate issued by the Transport Corporation. In fact, the
learned Counsel submits that the claimant is entitled to more compensation. It
is submitted that
the amount given to him towards pain and suffering and loss of amenities, are
only on the lower side. Hence, he prays for non-interference by this Court.
8. I have considered the submissions made on either side. The learned
Counsel for the appellant does not dispute that the claimant lost the employment
as driver with Transport Corporation. In fact, Ex.P.26 is the order dated
05.02.2002 removing the petitioner from service based on the report of the
Medical Board finding unfit to hold the post of the driver. The learned Counsel
for the appellant argues that he could do other jobs. On the other hand, the
claimant examined himself and deposed categorically that he knew driving only
and he could not do the same due to the accident.
9. Hence, the learned Counsel for the appellant is not correct in finding
fault with the claimant for not taking up any other employment for his
livelihood and being satisfied with the pension amount of Rs.1,999/- as
pension and the compensation amount as ordered by the Tribunal.
10. I am not in agreement with the submission, of the appellant, since the
Corporation issued a certificate dated 05.02.2002 and the same was marked as
Ex.P.27 and also a Senior Assistant in the Corporation was examined as P.W.3.
As per Ex.P.27, the claimant suffered loss in salary to the tune of
Rs.10,42,864/-, loss in bonus to the tune of Rs.22,500/- and loss in gratuity to
the tune of Rs.1,40,253/- due to his loss of employment. Hence, I do not find
any infirmity in the order of the Tribunal by deducting a sum of Rs.3,50,000/-
and awarding a sum of Rs.8,50,000/-towards loss of income. Even otherwise, it
is admitted that the claimant was receiving a sum of Rs.7,000/- as salary at the
time of the accident. As per the decision of the Apex Court in Sharla Varma
case reported in 2009(4)MLJ 997, 1/3rd of the salary has to be added towards
future prospects. In the case of injury, no deduction could be made as per the
Division Bench judgment of this Court held in United India Insurance Company
Limited Vs. S.Saravanan and Another reported in 2009(2) TNMAC 103(DB). Hence,
the monthly loss of salary could be arrived at Rs.10,500(Rs.7000+Rs.3500). He
was aged about 47 years at the time of the accident. As per Sharla Varma’s case
reported in 2009(4)MLJ 997, the proper multiplier is “13”. Even according to the
Schedule provided in Motor Vehicles Act, the proper multiplier is “13”. Even if
it is taken as “10” as multiplier, the compensation could be arrived at
Rs.8,50,000/-.
11. It is also submitted by the learned Counsel for the claimant that had
he continued in service and retired on reaching the age of superannuation, he
could have received a better pension. This aspect was not taken note of by the
Tribunal. In these circumstances, I do not find any infirmity in the order of
the Tribunal for fixing a sum of Rs.8,50,000/- towards loss of earning.
12. The learned Counsel for the appellant submits that when the Doctor
certified that the claimant suffered 33% permanent partial disability, the
Tribunal took it as 23% and awarded a sum of Rs.23,000/- as compensation towards
disability. According to him, when loss of earning is compensated by awarding a
sum of Rs.8,50,000/-, the Tribunal was not justified in awarding a sum of
Rs.23,000/- towards disability compensation. On the other hand, the learned
Counsel for the claimant submits that it is not known as to why the Tribunal
arrived at 23% disability when the Doctor’s certificate states that the claimant
suffered 33% disability. The learned Counsel for the claimant relies on the
decision of a Division Bench of this Court reported in United India Insurance
Company Limited Vs. Veluchamy and Another reported in 2005(1) CTC 38 and
submits that there is nothing wrong in awarding disability compensation while
awarding for the loss of income.
13. Since the amount involved is merely a sum of Rs.23,000/- and as
rightly contended by the learned Counsel for the claimant that the amount
awarded in other heads namely pain and suffering, loss of amenities and
transport charges are on lower side, I am not inclined to interfere with the
award of the Tribunal. That is, even if Rs.23,000/- awarded towards disability
compensation is deleted, the claimant is entitled to enhanced amount towards
“pain and sufferings and loss of amenities and enjoyment of life”.
14. Accordingly the appeal fails and the same is dismissed. Consequently,
the connected miscellaneous petition is dismissed. No costs.
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To
The Motor Accidents Claims Tribunal,
II Additional Sub Court, Madurai.