BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/04/2007 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.(MD)No.462 of 1999 Selvaraj ... Appellant Vs 1.S.Ramesh 2.National Insurance Company Limited, Branch Office, 1631/1-B, First Floor, Salem - Bhavani Main Road, Sankagiri - 637 301. ... Respondents Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, against the Judgment and decree dated 23.01.1998 made in M.C.O.P.No.2963 of 1995 by the learned Motor Accidents Claims Tribunal (III Additional District Judge), Thiruchirappalli. !For Appellant .. Mr.A.Saravanan ^For Respondent No.1 .. No appearance For Respondent No.2 .. Mr.R.S.Ramanathan :JUDGMENT
This Civil Miscellaneous Appeal is directed against the judgment and
decree dated 23.01.1998 pronounced in M.C.O.P.No.2963 of 1995 on the file of the
Motor Accidents Claims Tribunal (III Additional District Judge),
Thiruchirappalli, so far as the disallowed portion of the claim is concerned.
2. Aggrieved by the insufficiency of the compensation awarded by the
Tribunal by its award dated 23.01.1998 made in M.C.O.P.No.2963 of 1995, the
injured/claimant has preferred this Civil Miscellaneous Appeal seeking
enhancement of compensation.
3. According to the claimant, while he was proceeding with his
T.V.S.50 Motor cycle bearing registration No.TN45-Y-0901 near Musiri Roundtana
on the Musiri-Duraiyur main road at about 9.30 a.m. on 21.09.1995, the lorry
bearing registration No.TN-28-X-7949 belonging to the first respondent came
there in the direction of south to north at a high speed driven by its driver in
a rash and negligent manner and dashed against the claimant, as a result of
which the claimant sustained multiple grievous injuries all over the body,
including fractures in the left thigh and left hand. Pursuant to the said
accident, he was admitted as an inpatient in the Government General Hospital,
Thiruchirappalli after first aid treatment at Government Hospital, Musiri.
Despite proper treatment, the injuries could not be completely cured and the
same resulted in permanent disability. The further contention of the claimant
was that he was aged about 26 years at the time of accident and was having a
daily income of Rs.75/- as a coolie and that due to the accident and the
resultant injuries leading to permanent disability, he has suffered loss of
earning capacity also. Contending that the accident was the result of the
negligent driving of the lorry belonging to the first respondent by its driver
for which the first respondent, as the owner of the vehicle, was vicariously
liable and the second respondent, as the insurer of the vehicle, was liable to
shoulder the liability of the first respondent, the claimant had prayed for an
award directing the respondents 1 and 2 to jointly and severally pay a sum of
Rs.1,00,000/- as compensation together with future interest and costs.
4. In support of his claim, the claimant, besides examining himself
as P.W.1, examined one Dr.Ravi as P.W.2 and relied on seven documents marked as
Exs.A.1 to A.7.
5. The owner of the offending vehicle/the first respondent did not
file any counter statement and remained ex-parte. The second respondent alone
resisted the claim made by the claimant by filing a counter statement denying
the petition averments regarding the alleged negligence on the part of the
driver of the vehicle. The second respondent had also disputed the averments
made in the claim petition regarding the age, occupation and income of the
claimant and the nature of the injuries sustained by him. With the further
contention that the offending vehicle had not been insured with the second
respondent on the relevant date and that the driver of the said vehicle did not
possess any valid licence to drive the same and hence there was a violation of a
policy condition, the second respondent had prayed for the dismissal of the
claim petition in its entirety. No witness was examined and no document was
marked on the side of the respondents.
6. The Tribunal, after analysing the evidence, both oral and
documentary, adduced before it in the light of the arguments advanced on both
sides, held that the driver of the lorry belonging to the first respondent was
at fault; that the said vehicle stood insured with the second respondent on the
relevant date and that the respondent Nos.1 and 2, as the owner and insurer of
the offending vehicle, were jointly and severally liable to pay compensation to
the claimant. After fixing the liability on the respondents, the Tribunal
assessed the compensation payable to the claimant at Rs.55,500/- and directed
the respondents 1 and 2 to jointly and severally pay the above said amount with
an interest at the rate of 12% per annum from the date of claim till the date of
deposit and with proportionate litigation cost.
7. In respect of the disallowed portion of the claim, the claimant
has come on an appeal before this Court. The respondents have not chosen to
file either an appeal or cross objection, challenging the award passed by the
Tribunal holding them jointly and severally liable to pay compensation to the
claimant. Therefore, it is unnecessary to traverse the evidence regarding the
nature of accident and the question of negligence which has, since, become a
closed chapter. The only question that arises for consideration in this Civil
Miscellaneous Appeal is – “Whether the compensation awarded by the Tribunal is
low and hence it requires upward revision?”.
8. It is the case of the appellant/claimant that he sustained
multiple grievous injuries all over the body including fracture on the left
thigh and on the left hand. The claimant/P.W.1 has deposed in line with the
averments made in the claim petition regarding the nature of injuries sustained
by him. His evidence is corroborated by the testimony of the Medical Officer
Dr.Ravi, who was examined as P.W.2. Ex.A.1 is the certified copy of the First
Information Report, which shows that immediately after the accident, the
claimant was given first aid treatment in the Government Hospital, Musiri and
thereafter was admitted as an inpatient in the Government General Hospital,
Thiruchirappalli. Ex.A.3 is the certified copy of the Wound Certificate which
evidences that the claimant sustained altogether five injuries, out of which two
have been certified to be grievous in nature. Fracture of the shaft of left
thigh and fracture at the left wrist are the two grievous injuries noted in the
above said Wound Certificate.
9. It is the definite case of the claimant that in spite of the best
treatment provided for him in the Government General Hospital, Thiruchirappalli,
the injuries could not be cured completely and the same resulted in permanent
disability. From Ex.A.5, it is quite clear that he took treatment as an
inpatient for about two months from 21.09.1995 to 19.11.1995. It is also
evident from Exs.A.4 to A7 that he sustained fracture of left femur and fracture
of radial on the left hand. It is also evident from the said documents that
surgical intervention was also made. The disability certificate issued by
P.W.2, an Orthopaedist, has been marked as Ex.A.6. The X-rays taken for
assessing the disability have been marked as Ex.A.7. P.W.2 has assessed the
disability suffered by the claimant at 35% and certified the same to be
permanent. After a close scrutiny of the evidence, both oral and documentary,
adduced on the side of the claimant, the Tribunal assessed the extent of
disability suffered by the claimant at 35% and the age of the claimant at 32
years and awarded a total sum of Rs.55,500/- as compensation with the following
details:
Compensation for pain and suffering = Rs.10,000.00/-
Compensation for permanent disability = Rs.20,000.00/-
Compensation for medical expenses,
expenses for the attendants, transport
expenses and loss of earning during
the period of treatment = Rs. 7,500.00/-
Loss of future earning capacity for
15 years at the rate of
Rs.100/- per month (Rs.1200/- per annum)= Rs.18,000.00/-
————-
Total = Rs.55,500.00/-
————-
10. The learned counsel for the appellant would contend that the
Tribunal after accepting the assessment of disability made by the doctor and
adopting the very same percentage of disability, namely 35%, ought to have held
that the same resulted in loss of future earning capacity to an equal extent and
that assessment of the loss of future earning capacity at the rate of Rs.100/-
per month cannot be sustained; that improper clubbing compensation under various
heads like medical expenses, expenses for the attendants and transport expenses
with the loss of earning during the period of treatment had led to the
assessment of compensation on a lower side and that the compensation for loss of
earning during the period of treatment should be substantially increased apart
from separating the same from the other heads of damages mentioned above.
11. This Court is able to find some force in the above said
contention of the learned counsel for the appellant except the contention that
the percentage of loss of future earning capacity should be assessed on par with
the permanent disability. It is obvious from the evidence of P.W.2 and the
disability certificate issued by him and marked as Ex.A.6 that the fractured
bone pieces on the left fore-arm have not united after treatment and that due to
the same, the flexion of the left wrist downwards and upwards have been reduced
to 0 to 15 and 0 to 25 respectively as against the normal flexion of 0 to 45
and 0 to 60. Likewise due to the fracture on the left femur and mall-union of
the fractured pieces of the femur bone, the flexion of the left hip joint has
decreased to 0 to 120 as against the normal flexion of 0 to 160. P.w.2 has
assessed the disability found on the left hand at 28% and the disability found
on the left hip at 8%, made an arithmetical addition of the same and fixed the
total disability at 35%. Even in doing the arithmetical addition, P.W.2 has
committed an error in noting the total as 35% instead of 36%. At this juncture,
it shall be worth-mentioning that in case of disabilities caused to different
parts of the body and mere arithmetical addition of the disability caused to
separate parts of the body to find out the total extent of the disability in
respect of the whole body will be erroneous. On the other hand, for clubbing the
disabilities, the following formula recommended by MANUAL FOR DOCTORS TO
EVALUATE PERMANENT PHYSICAL IMPAIRMENT BASED ON EXPERT GROUP MEETING ON
DISABILITY EVALUATION AND NATIONAL SEMINAR ON DISABILITY EVALUATION AND
DISSEMINATION UNDER D.G.H.S. – W.H.O. – A.I.I.M.S. should be adopted. Applying
the said formula, the total disability can be assessed at 34% and not 35%.
Calculation:
b(90-a)
Total extent of Disability = a + ——-
90
8(90-28) 8(62) = 28 + -------- = 28 + ----- 90 90 496 = 28 + ----- 90 = 28 + 5.5 = 33.5 = 34% (rounded)
In view of the above said discussions, this Court is of the view that the
permanent disability suffered by the claimant should have been assessed at 34%
instead of 36%.
12. The Tribunal has assessed future loss of earning capacity at the
rate of Rs.100/- per month, which according to the opinion of this Court, is
shockingly meagre. The pre-accident income of the claimant could not be
assessed below the notional income of Rs.15,000/- per year. The permanent
disability suffered by the claimant has been assessed at 34%. The loss of
earning capacity caused by such permanent disability need not always be equal to
the percentage of disability. In a given case, it can be assessed even at a
higher percentage or a lower percentage depending upon the job of the claimant
and his age. In the instant case, there is no clinching evidence like birth
certificate or school certificate to prove the age of the claimant. Statement of
the claimant in this regard seems to be somewhat contradictory. In his claim
petition, his age was furnished as 26 years. But while deposing as P.W.1 within
two years, after the accident he gave his age as 32 years. In Ex.A.5 his age, as
on the date of accident, has been noted to be about 30 years. The Tribunal has
fixed the age of the claimant as 32 years. Even assuming that the age found in
the deposition of P.W.1 represents his age as on the date of his examination as
a witness before the Tribunal based on Ex.A.5, it can be held that the claimant
had completed the age of 30 years as on the date of accident. Hence the age of
the deceased as on the date of accident is fixed at 30.
13. In case of injuries resulting in permanent disability, two
methods of assessment of compensation for permanent disability are possible. One
by awarding a lump sum payment for the permanent disability which will take into
its fold, the loss of future earning capacity and loss of amenities in life and
the other by awarding separate amounts for loss of future earning capacity and
loss of amenities in life caused by the permanent disability. In either case,
separate amount for loss of earning capacity from date of accident till date of
trial can be awarded as pecuniary damages. This position has been made clear in
the Judgment of the Full Bench of Madras High Court in Cholan Roadways
Corporation Ltd., v. Ahmed Thambi reported in [2006(4) CTC 433]. As per the said
Judgment of the Full Bench of Madras High Court, in case of awarding
compensation for loss of future earning capacity, what is prohibited is to award
separate amount as compensation for permanent disability as such. But in such
cases, along with the compensation for loss of future earning capacity,
reasonable amount can also be awarded for loss of personal amenities in life as
a separate component, for which awarding a sum of Rs.5,000/- in this case, shall
be reasonable.
14. In line with the observation made supra that in all cases of
permanent disability, it is not necessary that the loss of earning capacity
should be equal to the percentage of disability and taking into consideration
the fact that the claimant was not a skilled worker but was only a coolie and
that he was aged about 32 years at the time of accident, we can assess the loss
of future earning capacity at 25%. As observed earlier that in the absence of
reliable evidence, the income of a male aged 30 years cannot be assessed below
the notional income, it shall be proper to adopt the notional income of
Rs.15,000/- per annum as the pre-accident earnings of the appellant/claimant.
25% of the same will be Rs.3,750/-. The same shall be the multiplicand to be
multiplied by a suitable multiplier. Considering the age of the
appellant/claimant, selection of ’15’ as the multiplier in this case shall be
reasonable. The product of the above said multiplicand and the multiplier comes
to Rs.56,250/-, which can be rounded to Rs.56,000/-. The same shall be the
reasonable compensation that can be awarded for loss of future earning capacity
occasioned to the appellant/claimant by virtue of the permanent disability
caused by the injuries sustained by him in the accident. Considering the nature
of disability suffered by the claimant and the nature of his job, this Court
feels that awarding a sum of Rs.7,500/- for pain and suffering shall be
reasonable. Though the claimant has not chosen to produce the medical bill,
this Court is of the view that some medicines could have been purchased from the
private medical stores during the period of treatment. Therefore, awarding a sum
of Rs.2,500/- for medical expenses shall be reasonable. The Tribunal has not
awarded any amount towards transport expenses, for which awarding a sum of
Rs.1,000/- shall be reasonable.
15. It has been pointed out supra that damages for loss of earning
during treatment and the period required for rest shall be assessed as a
separate component of damages for pecuniary loss. The notional income of
Rs.15,000/- has been adopted in this case. From records, it is obvious that the
claimant was taking treatment for about three months. The claimant would have
taken complete rest for a further period of one month and thus, we can hold that
the claimant might have incurred total loss of earning for about four months
from the date of accident. The loss of income for four months can be calculated
at Rs.5,000/-, taking the notional income of Rs.15,000/- as the annual income.
Therefore, for the loss of income during the period of treatment and complete
rest after the date of accident, awarding a sum of Rs.5,000/- shall be
reasonable. At the cost of repetition, in order to make it more clear, the split
up particulars of the total amount arrived at are given as under:
Compensation for personal amenities in life = Rs. 5,000/- Compensation for loss of future earning capacity = Rs.56,000/- Compensation for pain and suffering = Rs. 7,500/- Compensation for loss of income during the period of treatment = Rs. 5,000/- Compensation for medical expenses = Rs. 2,500/- Compensation for transport expenses = Rs. 1,000/- --------------- Total = Rs.77,000/- ---------------
Therefore, this Court is of the considered view that in the instant case,
it will be just and proper to award a compensation of Rs.77,000/-. Taking into
account the long pendency of the case, this Court feels that awarding an
interest at the rate of 9% per annum shall be reasonable.
16. In the result, this appeal is allowed in part and the award of
compensation made by the Tribunal is enhanced to Rs.77,000/- from Rs.55,500/-.
The respondents are directed to pay the above said amount with 9% interest from
the date of application after deducting the amount, if any, already paid. The
respondents shall also pay proportionate cost to the appellants in both the
Courts.
To
The Motor Accidents Claims Tribunal
(III Additional District Judge),
Thiruchirappalli.