BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23/04/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.(MD).No.1078 of 2000 The Managing Director, Tamil Nadu State Transport Corporation, (Kumbakonam Division II) Ltd., Trichy. .. Appellant Vs. Karikalan .. Respondent Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act against the Judgment and Decree dated 22.09.1999 made in M.C.O.P.No.1481 of 1993 on the file of the Motor Accident Claims Tribunal (IIIrd Additional Sub Judge), Trichy. !For Appellant : Mr.D.Sivaraman For Mr.Rajnish Pathiyil ^For Respondent : Mr.S.Muthukrishnan :JUDGMENT
This Civil Miscellaneous Appeal is directed against the award dated
22.09.1999 passed by the Motor Accident Claims Tribunal (IIIrd Additional Sub
Judge), Trichy in M.C.O.P.No.1481 of 1993 directing payment of a sum of
Rs.55,000/- together with an interest at the rate of 12% from the date of claim
till realisation and costs for the injuries sustained by the claimant in an
accident alleged to have taken place on 27.02.1993 at about 11.00 a.m.
2. The respondent herein/claimant preferred a claim on the file of the
Motor Accident Claims Tribunal (IIIrd Additional Sub Judge), Trichy by filing
M.C.O.P.No.1481 of 1993 praying for an award against the appellant/respondent
for the injuries sustained by the claimant who met with an accident on
27.02.1993 at about 11.00 a.m. Contending that on the date of accident, viz.,
27.02.1993 at about 11.00 a.m., the respondent/claimant was proceeding in his
bullet motor cycle bearing Registration No.TN-Y-4061 on the Trichy – Ariyalur
Main road; that while he was thus proceeding near Poovalur tank, the
appellant’s/respondent’s bus bearing registration No.TN-45-N-0319, on its trip
from Meensuritti to Trichy, came there at a high speed driven by its driver in
a rash and negligent manner and dashed against the claimant; that the rash and
negligent driving of the above said bus by its driver was the sole cause of the
accident and that in the said accident, the respondent/claimant was seriously
injured leading to permanent disability and consequential loss of earning
capacity. According to the respondent/claimant, the petitioner was aged about 35
years and was employed as a Centre View Master in Kothari Sugars and Chemicals
Limited and was having a monthly income of Rs.2,300/- The respondent/claimant
had filed the above said M.C.O.P.No.1481 of 1993 under Sections 140 and 166 of
the Motor Vehicles Act, claiming a sum of Rs.75,000/- as compensation from the
appellant/respondent.
3. In order to prove his claim, the respondent/claimant, besides examining
himself as P.W.1, examined one more witness as P.W.2 and relied on six documents
marked as Exs.A-1 to A-6.
4. The said claim was resisted by the appellant/respondent who filed a
counter statement denying the petition averments concerning the negligence
aspect, liability of the appellant to pay compensation and quantum of
compensation. With the further contention that the negligence on the part of the
respondent/claimant in driving his motorcycle was the sole cause of the
accident; that there was no fault on the part of the driver of the bus; that
disregarding the horn sound of the bus, the claimant with a pillion rider on the
back seat of the motor cycle, came to the centre of the road in a rash and
negligent manner and invited the accident; that the respondent/claimant did not
even possess a valid licence to drive the motor cycle; that in fact, he did
not know how to raid it; that the injuries sustained by the respondent/claimant
were simple and superficial and that the amount claimed as compensation was
highly excessive and unreasonable, the appellant/respondent had prayed for the
dismissal of M.C.O.P. with costs. In support of the defence case of the
appellant/respondent, only one witness was examined and no document was marked.
5. After the conclusion of evidence, the Tribunal heard the arguments
advanced on either side, framed the necessary questions for determination,
scrutinised the materials on record and on such scrutiny, held that the driver
of the bus belonging to the appellant/respondent was at fault and that the
accident occurred due to the rash and negligent driving of the bus bearing
Registration No.TN-45-N-0319 by its driver, mulcted the liability on the
appellant/respondent as the owner of the offending vehicle, assessed the
compensation at Rs.55,000/- and passed an award directing the
appellant/respondent to pay the above said amount to the respondent/claimant as
compensation with an interest at the rate of 12% from the date of claim till
realisation. The Tribunal has also directed the appellant/respondent to pay
costs.
6. Aggrieved by and challenging the said award both on the question of
negligence as well as quantum of compensation, the owner of the offending
vehicle has brought forth this appeal before this Court.
7. Mr.D.Sivaraman, learned counsel, advancing arguments on behalf of the
appellant, would submit that the finding of the Tribunal regarding negligence
aspect was erroneous and against the preponderance of evidence; that the
Tribunal ought to have held that the accident was the result of the negligence
on the part of the respondent/claimant and that hence the respondent/claimant
was not entitled to claim any compensation based on the theory of fault and that
the Tribunal should have either dismissed the claim petition in its entirety or
restricted the award of compensation to what was payable under Section 140 of
the Motor Vehicles Act. Contending further, the learned counsel submitted that
the award of a sum of Rs.55,000/- towards compensation for the alleged injury
sustained by the respondent/claimant was highly excessive and exorbitant; that
though the permanent disability suffered by the respondent/claimant was assessed
by the Tribunal at 15%, it committed an error in awarding a sum of Rs.35,000/-
for permanent disability as such; that the award of a sum of Rs.15,000/- towards
medical expenses could not be sustained, as the same was not supported by
documentary evidence; that the award of a sum of Rs.15,000/- towards medical
expenses, as against a sum of Rs.1,643.21 paise, for which amount alone Ex.A-3
series – medical bills have been produced, was highly unreasonable and that
hence viewed from any angle, the award of the Tribunal was excessive and liable
to be reduced drastically.
8. This Court also heard the submissions made by Mr.S.Muthukrishnan,
learned counsel on behalf of the respondent/claimant and paid its anxious
considerations to the same.
9. In the instant case, the respondent/claimant, has made a specific plea
in his claim petition that the driver of the bus belonging to the
appellant/respondent drove it in a rash and negligent manner and hit him, while
he was proceeding in his motor cycle slowly and cautiously. In order to prove
his case that the accident was the result of rash and negligent driving of the
bus belonging to the appellant/respondent, the claimant himself deposed as P.W.1
repeating and reiterating the petition averments regarding how the accident took
place.
10. In addition to the oral evidence of P.W.1, the claimant has also
produced the certified copy of the First Information Report and marked the same
as Ex.A.1. The same proves that a case in Crime No.276 of 1993 was registered on
the file of Lalgudi Police Station against the driver of the bus for alleged
offences punishable under Sections 279 and 337 IPC. The First Information Report
seems to have been registered based on the statement of the claimant recorded by
the police, while he was taking treatment in the casualty ward of Government
Hospital, Lalgudi, regarding which an intimation had been received by the
police. The narration made by the claimant in the above said complaint statement
lends support to the claimant’s case and corroborates the evidence of P.W.1. In
this regard, the evidence of P.W.1 remains unassailed even though he was
meticulously cross-examined. The suggestions put to him that he did not possess
a valid driving licence and ventured to drive the motorcycle without properly
learning to drive have been stoutly denied by P.W.1. The evidence of P.W.1
inspires the the confidence of this Court, as the same is spontaneous, natural
and without any remarkable contradiction. On the other hand, the evidence of
R.W.1 the driver in charge of the offending vehicle, namely, the bus involved in
the accident, seems to be unnatural and unreliable. Even though R.W.1 might have
stated that he saw the respondent/claimant coming in the motorcycle at a high
speed and with rashness and negligence at a distance of 30 feet, there is
nothing in his evidence to the effect that he took any step to avoid collision.
Though he might have asserted in his evidence that the accident took place on
the left side of the road and that the motorcycle came into contact with the bus
on its front right side portion, the appellant/respondent has not chosen to
adduce any corroborate peace of evidence. Copy of the observation mahazar and
rough sketch prepared by the Investigating Officer showing the topography of the
place of occurrence have not been obtained and produced. R.W.1 would state in
his evidence that the criminal case registered against him was dismissed. But,
whether it was an honourable acquittal or an acquittal giving benefit of doubt
to the accused is not known. The Tribunal, after properly analysing the evidence
both oral and documentary, rightly disbelieved the evidence of R.W.1 and
believed the evidence of P.W.1 corroborated by Ex.A.1 and came to a correct
conclusion that the rash and negligent driving of the bus bearing Registration
No.TN-45-N-0319 belonging to the appellant/respondent was the sole cause of the
accident. Based on the said finding on the question of negligence, the Tribunal
has cast the liability on the appellant/respondent, as the owner of the
offending vehicle, to pay compensation to the respondent/claimant. This Court is
not in a position to notice any infirmity, error or illegality in the above said
finding rendered by the Tribunal and hence the same deserves to be confirmed.
11. In order to prove that the injuries sustained by the
respondent/claimant in the accident resulted in permanent disability, the
claimant, besides disposing as P.W.1, examined one Dr.Illangovan as P.W.2. P.W.2
after going through the medical records and based on his clinical examination of
the respondent/claimant found him with 15% permanent disability referable to the
injury sustained in the accident and issued Ex.A.6 – disability certificate. The
evidence of P.W.1 and P.W.2 and Ex.A.6 in this regard remain unchallenged, as
there is no contra evidence. The Tribunal has rightly come to the conclusion
that the claimant sustained 15% permanent disability due to the injuries caused
in the accident in question. Relying on the disability certificate issued by
P.W.2 produced and marked as Ex.A.6, the Tribunal proceeded with the assessment
of compensation on various heads and fixed the total amount of compensation at
Rs.55,000/-, the details which are found as follows:
Compensation for permanent disability = Rs.35,000/- Compensation for medical expenses = Rs.15,000/- Compensation for pain and suffering = Rs. 3,000/- Compensation for expenses incurred towards extra- nourishment = Rs. 2,000/- -------------- Total = Rs.55,000/- --------------
12. In the above assessment made by the Tribunal, the award of a sum of
Rs.2,000/- towards expenses for extra-nourishment and a sum of Rs.3,000/-
towards pain and suffering has not been challenged by the appellant to be
excessive. Therefore, without any impediment whatsoever, the same can be
confirmed. The challenge made by the appellant is confined to the award of
Rs.35,000/- for permanent disability and Rs.15,000/- towards medical expenses.
In cases of injuries sustained in the accident resulting in permanent disability
either a lump sum amount for the permanent disability as such can be awarded
which will incorporate in itself the loss of future earning capacity and loss of
amenities in life or award separate amounts for loss of future earning capacity
and loss of amenities in life. In case, the second method is adopted, there is
no need for awarding separate amounts for permanent disability as such and in
fact if such an award is made, the same will result in duplication.
13. In the instant case, even though the respondent/claimant has made an
averment that the permanent disability has resulted in loss of earning capacity
also, there is nothing on record to show that there was either loss of job or
loss of income from the job. It is not in dispute that the claimant prior to the
accident was working as a Centre View Master in Kothari Sugars and Chemicals
Limited. But there is no evidence to show that he was removed from service,
demoted or denied promotion. Nor is there any evidence to show that his prospect
of promotion has been diminished because of the disability. Under these
circumstances, applying the second method of assessment of compensation, namely,
separate assessment being made on the heads of future loss of earning capacity
and loss of amenities in life will not be appropriate and the first method,
viz., awarding a lump sum payment for permanent disability will alone be
appropriate. Thus, the Tribunal has adopted the correct method in awarding a
lump sum amount for permanent disability as such. At the same time, awarding a
sum of Rs.35,000/- for 15% spermanent disability, according to view of this
Court, is definitely disproportionate and is on the higher side.
14. When the method of awarding lump sum amount for permanent disability
is adopted, the age of the claimant shall play an important role. The award may
range from Rs.1,000/- to Rs.2,000/- per 1% disability depending upon the age of
the claimant. Maximum rate shall be applied in case of youngsters and minimum
rate shall be applied in case of aged persons. As per evidence, the claimant had
completed 35 years of age as on the relevant date. Applying such a test, this
Court holds that awarding compensation at the rate of Rs.1,500/- per 1%
disability in the case of the respondent/claimant in this case shall be
absolutely justifiable. Thus the lump sum amount to be awarded towards
compensation for permanent disability to the respondent/claimant in this case
shall have to be fixed at Rs.1,500 x 15 = Rs.22,500/- instead of Rs.35,000/-. If
such a method of calculation is adopted, the award of Rs.35,000/- as
compensation for the permanent disability, as such, shall have to be brought
down to Rs.22,500/-. In case of adoption of either of the method indicated
above, loss of earning occasioned to the claimant during the period of treatment
prior to the date of claim shall have to be awarded as a component of pecuniary
damages. In this case, the claimant has produced Ex.A.5 – certificate issued by
Kothari Sugars and Chemicals Limited that he was on leave on loss of pay from
28.02.1993 to 20.05.1993 and that the loss of remuneration suffered by him was
Rs.8,122.24/-. Giving a small increase, the same can be rounded to Rs.8,500/-.
So far as the assessment of compensation for medical expenses is concerned, this
Court is of the considered view that the award of Rs.15,000/- by the Tribunal
cannot be sustained. The claimant has produced Ex.A.3 series covering a sum of
Rs.1,643.21/- alone. Giving a marginal increase to the said amount, we can
safely arrive at a conclusion that awarding a sum of Rs.2,000/- alone for
medical expenses shall be quite reasonable. If such reductions, additions and
adjustments are made, the reasonable amount that could be awarded as total
compensation shall be only Rs.38,000/-. At the cost of repetition, the details
of the assessment of compensation are given as under:
Compensation for permanent disability = Rs.22,500/- Compensation for loss of remuneration during the period of treatment = Rs. 8,500/- Compensation for medical expenses = Rs. 2,000/- Compensation for pain and suffering = Rs. 3,000/- Compensation for expenses incurred towards extra- nourishment = Rs. 2,000/- -------------- Total = Rs.38,000/- --------------
15. For the reasons stated supra, this Court comes to a conclusion that
the award of the Tribunal in respect of its quantum is slightly on the higher
side and the same deserves to be reduced to 38,000 from Rs.55,000/- and subject
to the above said reduction, the award of the Tribunal deserves to be confirmed
in all other respects. If the award amount has already been deposited to the
credit of M.C.O.P.No.1481 of 1993, the Tribunal is directed to refund the
balance amount to the appellant/respondent within a period of two months from
the date of receipt of a copy of this order. Accordingly, this Civil
Miscellaneous Appeal is partly allowed. There shall be no order as to payment of
costs.
SML
To
The Motor Accident Claims Tribunal
(IIIrd Additional Sub Judge),
Trichy.
