Posted On by &filed under High Court, Madras High Court.


Madras High Court
The Managing Director, … vs Thangavelu And Anr. on 1 January, 1800
Equivalent citations: 1996 ACJ 143, 1995 (2) CTC 366, (1995) IIMLJ 571
Author: A Lakshmanan
Bench: Srinivasan, A Lakshmanan


ORDER

AR. Lakshmanan, J.

1. The above appeal is directed by the Thiruvalluvar Transport Corporation, Madras, against the Award dated 3-10-1994 of the Motor Accidents Claims Tribunal/Subordinate Judge, Dharapuram, in M.CO.P.No. 344 of 1992, awarding a total compensation of Rs. 71,225/- to the 1st respondent with interest at 12% per annum from the date of the claim petition till the date of payment.

2. The 1st respondent filed a claim petition before the Motor Accidents Claims Tribunal Dharapuram claiming a total sum of Rs. 1,00,000/- as compensation for the injuries sustained by him in a road accident on 6-7-1992. According to him, while he was proceeding in a cycle carrying 50 litres of milk, the bus bearing registration No. DCB 9519 belonging to the appellant/Corporation, which was driven by the 2nd respondent in a rash and negligent manner, hit him and thereby he sustained injuries. He has estimated the loss at rupees one lakh. The appellant filed a counter statement disputing both negligence as well as the quantum claimed by the 1st respondent. In the counter statement it was contended that the 2nd respondent was driving the vehicle cautiously and according to the traffic rules but that the 1st respondent, who was coming in a cycle with heavy load of milk in two cans, suddenly came to the middle of the road and invited the accident and sustained injuries.

3. Before the Tribunal, the 1st respondent/claimant has filed Exs.P-1 to P-10, which are F.I.R., wound certificate, medical and hospital bills, receipt given by the doctor, etc. The 1st respondent examined himself as P.W.1 and one Dr. Sekar as P.W.2. The driver of the bus viz., the 2nd respondent herein, was examined as R.W.1 on the side of the Corporation. No documentary evidence was filed on the side of the Corporation. The Tribunal held that the accident was due to the rash and negligent driving of the vehicle by the driver/2nd respondent. On a consideration of the wound certificate and the certificate issued by the doctor, the Tribunal held that the 1st respondent has sustained a fracture in the right leg, injuries on his fore-head, loss of two teeth and fracture on the right leg and below the hip bone besides other injuries. On the basis of the medical certificate and also the evidence of the doctor (P.W.2), on the question of quantum, the Tribunal held that the claimant is entitled to a sum of Rs. 71,225/- by way of compensation on various heads, which are as follows:

a) Loss of income was assessed at Rs. 112-50 per month and calculating the same for 25 years, the Tribunal has fixed the compensation on this head at Rs. 33,750/-. However, since lump sum payment was directed to be paid, the Tribunal deducted 1/6th of the total amount arrived at viz., Rs. 5,625/- and ordered payment of Rs. 28,125/- under this head.

b) For pain and suffering and mental agony, the Tribunal has awarded a sum of Rs. 10,000/-.

c) For permanent disability, the Tribunal has awarded Rs. 10,000/- to the 1st respondent.

d) On the basis of the medical bills, the Tribunal has awarded a sum of Rs. 17,000/- towards medical expenses.

e) Towards the doctor’s fees, a sum of Rs. 5,000/- was awarded as per Ex.P-6.

f) As per Ex.P-7, a sum of Rs. 100/- was awarded towards medical bills.

g) Even though the 1st respondent has produced bills for Rs. 1,420/- towards the damages caused to his cycle, the Tribunal has awarded only a sum of Rs. 500/-under this head.

h) Though the 1st respondent has produced bills for Rs. 3,500/- for using taxi, the Tribunal has held that he is entitled only to a sum of Rs. 2,000/-. However, since he has claimed only a sum of Rs. 1,500/-, the Tribunal has awarded a sum of Rs. 1,500/- under this head.

4. In our opinion, the finding of the Tribunal on the question of negligence is unassailable. The evidence tendered on the side of the 1st respondent, though questioned as interested by the appellant, makes it clear that the accident was due to the rash and negligent driving of the bus by the driver. The 1st respondent filed the F.I.R. before the Tribunal and marked the same as Ex.P-1 wherein it has been clearly stated as to how the accident took place and how the 1st respondent was hit by the bus. Though it is contended by the learned counsel for the appellant that the Tribunal ought not to have placed reliance on the F.I.R., we are unable to accept the said contention. Dr. Sekar was examined as P.W.2. Ex.P-2 wound certificate has also been filed. It is seen from Ex.P-2 that the 1st respondent has sustained five serious injuries. Ex.P-3 is the certificate issued by the Coimbatore Medical Centre to prove that the 1st respondent had undergone treatment in that hospital. It is seen from Ex.P-4 that the 1st respondent was admitted on 6-7-1992 and was discharged on 22-7-1992 and was again admitted on 16-11-1992 and discharged on 27-11-1992. Though the 1st respondent has claimed that he was 29 years of age at the time of occurrence, the Tribunal has fixed his age at 30 and awarded compensation by adopting multiplier for 25 years. Further, the Tribunal has held that the 1st respondent would have earned a sum of Rs. 450/- per month (at the rate of Rs. 15/- per day). However, the Tribunal has fixed the loss of income only at Rs. 112-50 and multiplied the same for 25 years. The Tribunal has deducted 1/6th of the same amounting to Rs. 5,625/- since lump sum payment is ordered and awarded a sum of Rs. 28,125/-

5. While in the prime of his life, the 1st respondent is disabled to do any work as he was doing previously, because of the accident. The evidence available in this case shows that the 1st respondent could not do the work which he was doing previously. In the circumstances, we do not find any error in the Tribunal granting a sum of Rs. 28,125/- towards loss of earning. In our opinion, the compensation awarded by the Tribunal is far less than the amount to which the 1st respondent would be entitled to. The Tribunal has also awarded a sum of Rs. 10,000/- for pain, suffering and mental agony, Rs. 10,000/- for permanent disability, Rs. 17,000/- towards medical expenses, Rs. 5,000/- towards doctor’s fees, Rs. 100/- towards medical expenses, Rs. 500/- towards damage to the cycle and Rs. 1,500/- towards taxi hire charges. The evidence in this case clearly goes to show that the 1st respondent who suffers from permanent disability, will not be in a position to carry on his normal activities. The compensation awarded, in our opinion, is just and reasonable and not on the high side as contended by the learned counsel for the appellant.

6. There is no merit in the contention of the appellant that compensation cannot be awarded for permanent disability if compensation is awarded under the heading ‘loss of earning power’. They are two distinctive and separate claims. The latter is based on the loss of earning power caused by the disability. Loss of earning power is only one of the consequences of permanent disability. But, the former relates to the other consequences of permanent disability excluding loss of earning power. It is well known that permanent disability will have several consequences apart from inability to work or earn as before. To be specific, the victim of the accident who suffers from permanent disability will not be in a position to carry on his normal house-hold activities in his house. More than anything else, he will be brooding over the disability day by day till the end of his life and suffer untold mental agony. The compensation for pain and suffering is only for the pain and suffering undergone at the time of injury and the treatment which followed. Thus, compensation for permanent disability will cover the mental agony to be suffered by the injured in his future life and his inability to attend to his normal house-hold activities. This reasoning of ours is fortified by the form prescribed under the Motor Accident Claims Tribunal Rules:

Part II of Form II

(Form of application for compensation)

(g) Compensation for pain and suffering.

(h) Compensation for continuing or permanent disability, if any.

(i) Compensation for the loss of earning power.

(j) Total.

7. In support of his contention that after granting an amount for loss of income, the Tribunal has erred in granting another amount for permanent disability, the learned counsel for the appellant relied on three decisions. The first decision is reported in Oriental Insurance Co. Ltd. v. K.R. Vijayarajan (1992 (A.C.J. 663), which is by a Division Bench of the Kerala High Court. Two questions arose for consideration before the Kerala High Court. The first question relates to the negligence of the driver and the second question was whether the amount of compensation awarded was justifiable in the circumstances of the case. The claimant, apart from other claims, has claimed a sum of Rs. 32,000/- for pain and suffering. Another item of claim was on account of permanent disability. Counsel for the insurance company submitted that the injured was not entitled to get both these claims together and when the Tribunal was prepared to grant a sum of Rs. 50,000/- for the permanent disability, there is no peculiar or special case for the injured to claim an additional amount of Rs. 54,000/- for loss of earning power. The Tribunal has awarded Rs. 50,000/- for permanent disability, Rs. 54,000/- for loss of earnings due to disability and Rs. 32,000/- for pain and suffering apart from awarding amounts under other heads. It was argued before the Kerala High Court that as regards loss of earning power, there is only the interested evidence of the injured and therefore, the Tribunal was in error in awarding Rs. 54,000/- for loss of earning power. The High Court held that the counsel for the insurance company was fully justified in saying that the injured cannot claim an additional amount of Rs. 54,000/- when the disability was compensated by awarding Rs. 50,000/- and since there was no evidence, the injured was not entitled to an amount of Rs. 54,000/- under the head ‘loss of earnings because of his disability’. The Kerala High Court has not given any specific finding in regard to the entitlement of compensation for pain and suffering and permanent disability and rejected the claim of the claimant on the question of no evidence. The Kerala High Court, however, has said that if there is a special case to be cited for special treatment, that requires clear and clean evidence and since no such evidence was available, the injured claimant was not entitled to an amount of Rs. 54,000/-. In our view, this judgment of the Kerala High Court will not be of any assistance to the counsel for the appellant herein. The Kerala High Court has decided the matter only as a question of pact on the evidence available in that case and rejected the claim for loss of earning power, since no evidence was available to pass an award under that head. The Court did not lay down a proposition of law as contended by the appellant.

8. The next decision is reported in Cheriya Mohammed v. Kamsakutty (1992, A.C.J., 782). In that case, the insurance company was exonerated by the Tribunal holding that the insurance company was not liable to pay compensation to the owner of the goods who had hired the goods vehicle and was also travelling along with his goods when the vehicle capsized. The Division Bench held that the insurance company was liable since the owner of the goods was a passenger for hire. In that case, the compensation was claimed by the claimant for loss of earning capacity due to the disability and for pain and suffering. The Tribunal awarded Rs. 45,000/- in all including Rs. 27,000/- for loss of earning capacity due to disability and Rs. 10,000/- for pain and suffering. The Appellate Court assessed the loss of earning capacity due to permanent disability at Rs. 60,000/- but awarded Rs. 51,500/- as per claim and enhanced the claim for pain and suffering from Rs. 10,000/- to Rs. 20,000/-. We fail to understand as to how this judgment will be of any assistance to the appellant herein. This apart, the argument which has been advanced before us was not raised before the Kerala High Court and the Kerala High Court had no occasion to consider the said question. On the other hand, the Kerala High Court has enhanced the compensation under the head ‘loss of earning capacity’ and under the head ‘pain and suffering’.

9. The last decision in the series is reported in Ishwardas Paulsrao Ingle v. Maharashtra State Road Transport Corporation (1992, A.C.J., 1013) of the Bombay High Court. The question before the Bombay High Court was whether the bus driver was guilty of negligence and whether there was no contributory negligence of the passenger. The Court held that the bus driver was solely negligent as he crossed the stationary bus without reducing the speed, nor did he apply the brakes and abruptly swerved the bus towards the wrong side. This judgment will not be of anv aid to the appellant herein since it deals with the three ingredients involved in a case of negligence including contributory negligence. The question now argued was not raised there.

10. We have already expressed the same view earlier in our judgment in Managing Director, Cheran Transport Corporation, Coimbatore v. Royamma and Ors. (C.M.A.No. 882 of 1995 dated 7- 8-1995). The learned counsel for the appellant who appeared in that case has raised the same contention which was rejected by us for the reasons recorded in paragraph 3 of the said judgment, which reads thus:

“Learned counsel for the appellant contends that after granting an amount for loss of income, the Tribunal is in error in granting an amount for permanent disability. There is no merit in this contention. Apart from the loss of income, the factum of permanent disability deserves to be taken into account for awarding compensation. The compensation for loss of income is awarded because she is not in a position to continue to do the cooly work which she was doing previously. The compensation for permanent disability is granted because, she will not be able to attend to her house-hold affairs as she was doing before and she would require the assistance of some other persons for such matters. Hence, the award of compensation for permanent disability is justified. Apart from that, the claimant would be brooding over the permanent disability throughout her life and that is also a matter to be taken into account.”

11. Learned counsel for the appellant repeated his contention in this case and attempted to support it with citations above referred to. Hence, we have dealt with the question elaborately in this matter. In the circumstances, we are of the view that the total compensation awarded by the Tribunal is just fair, reasonable and proper. The award of interest at 12% per annum, at no stretch of imagination be considered as unreasonable. There are absolutely no merits in any of the contentions raised by the learned counsel for the appellant.

12. In the result, the appeal fails and is dismissed. However, there will be no order as to costs.


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