BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23/06/2008
CORAM
THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN
C.M.A.No.426 of 2003
and
C.M.P.No.3724 of 2003
The Branch Manager,
United India Insurance Co., Ltd.,
Branch Office, Tenkasi. ......Appellant
Vs
1. Mohammed Haniffa,
S/o. Mohammed Ibrahim,
No.11/1, 1st Iravia Dharmapuram,
Puliyarai Post,
Senkottai and now residing
at M.N.B.Kizha theru,
Pettai, Tirunelveli - 4.
2. M. Sundaram,
S/o. Muthusamy,
4-9, Naidu Street,
Senkottai. ......Respondents
Civil Miscellaneous Appeal, filed under Section 173 of the Motor Vehicles
Act, 1988 against the Judgment and decree dated 11.11.2002 passed by the learned
Second Additional Subordinate Judge (Motor Accident Claims Tribunal),
Tirunelveli in M.A.C.T.O.P.No.566 of 2001.
!For Appellant ... Mr. G. Prabhu Rajadurai
^For Respondents... Mr. V. Sundar for R-1
(No appearance)
:JUDGMENT
The Insurance Company has preferred this Civil Miscellaneous Appeal
against the Judgment and decree dated 11.11.2002 passed by the learned Second
Additional Subordinate Judge (Motor Accident Claims Tribunal), Tirunelveli in
M.A.C.T.O.P.No.566 of 2001.
2. The name of the counsel for the first respondent is printed as well as
the second respondent, who has been served. The second respondent has not chosen
to enter appearance. On the last occasion, there was no appearance on the side
of the respondents and therefore, the matter was directed to be posted today for
orders. Today also, there is no appearance for the respondents.
3. The question raised by the appellant in this appeal is only with regard
to the quantum. The fact that the accident had occurred and the issue of
negligence are not contested. Learned counsel for the appellant submitted that
according to the claimant, he was earning Rs.3,500/- per month as a tractor
driver and because of the fracture to his legs, he is not able to bend his legs
nor is able to carry heavy load. According to him, after surgery, plate
implantation has been done. The Doctor has been examined as P.W.2. It is clear
from his evidence that he was not the Doctor, who examined him soon after the
accident. He had examined him on 10.10.2002 whereas the accident took place on
26.01.2001. He had stated that the plate has been implanted. He had fixed the
permanent disability at 54%. He had also stated that when he came for
examination, he could walk without the help of others. The claimant had not
produced any evidence to show his medical expenditure. Though X-rays had been
filed, there was nothing to show that he had undergone surgery. In spite of
that, the Tribunal had awarded a sum of Rs.10,000/- as medical expenditure,
without any evidence. Merely on the basis of the evidence of P.W.1 that he had
taken treatment for three months, the Tribunal assessed the pain and suffering
at Rs.25,000/-. The Tribunal had also fixed the mental agony at Rs.20,000/-. For
two grievous injuries and the fracture, the disability was fixed at 54% and the
Tribunal awarded Rs.1,50,000/- towards permanent disability and loss of earning
capacity. Learned counsel for the appellant relied on the decision in Cholan
Roadways Corporation Ltd., rep. By its Managing Director ..Vs.. Ahmed Thambi and
others (2006 (4) C.T.C. 433), wherein while considering the question whether
compensation could be awarded separately on account of permanent disability and
on account of loss of earning capacity, the Full Bench of this Court held that
when loss of earning capacity is compensated as also the non-pecuniary losses
under (a) to (d), permanent disability need not be separately itemised.
4. In this case, the Tribunal combined both the permanent disability and
the loss of earning capacity and awarded Rs.1,50,000/- for 54% disability. But,
the Tribunal has found that there is no evidence to show that the claimant was
earning Rs.3,500/- and held that nothing was produced to show that he was a
driver. In spite of that, Rs.1,50,000/- has been awarded by the Tribunal on the
basis that the future of an young 21 year old boy would be affected.
5. In the absence of evidence to show what the avocation of the claimant
was, it is difficult to assess how the disability would affect his earning
capacity. However, as has been observed by the Tribunal, the Claimant would have
suffered and it may not be possible for him to earn in the same way as he did
prior to the accident. But, however, without any evidence, it is not possible to
fix the disability / loss of earning capacity at Rs.1,50,000/-. Since the
disability is fixed at 54%, I am of the opinion that under this head a sum of
Rs.54,000/- may be awarded. As regards the other heads, I do not intend to
interfere with the same. Therefore, in aggregate, the compensation would come to
Rs.1,09,000/- (Rs.54,000 towards permanent disability + Rs.25,000 towards pain
and suffering + Rs.10,000 towards medical expenses + Rs. 20,000 towards mental
agony).
6. In the result, this Civil Miscellaneous Appeal is allowed in part and
the Judgment and decree dated 11.11.2002 passed by the learned Second Additional
Subordinate Judge (Motor Accident Claims Tribunal), Tirunelveli in
M.A.C.T.O.P.No.566 of 2001 is modified and the compensation is reduced from
Rs.2,05,000/- to Rs.1,09,000/-. The appellant had deposited the entire amount,
out of which 50% was permitted to be withdrawn by the claimant. In view of the
modification of the Award, the first respondent shall withdraw the balance
amount, to which he is entitled to as per the award passed in the CMA. The
appellant is entitled to withdraw the remaining amount. No costs. Consequently,
the connected C.M.P.No.3724 of 2003 is closed.
Dpn/-