{"id":36375,"date":"2007-04-27T00:00:00","date_gmt":"2007-04-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/selvaraj-vs-s-ramesh-on-27-april-2007"},"modified":"2016-04-26T02:01:12","modified_gmt":"2016-04-25T20:31:12","slug":"selvaraj-vs-s-ramesh-on-27-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/selvaraj-vs-s-ramesh-on-27-april-2007","title":{"rendered":"Selvaraj vs S.Ramesh on 27 April, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Selvaraj vs S.Ramesh on 27 April, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 27\/04\/2007\n\nCORAM\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\nC.M.A.(MD)No.462 of 1999\n\nSelvaraj\t\t\t... Appellant\n\nVs\n\n1.S.Ramesh\n2.National Insurance Company Limited,\n  Branch Office,\n  1631\/1-B, First Floor,\n  Salem - Bhavani Main Road,\n  Sankagiri - 637 301.\t\t... Respondents\n\n\n\tCivil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act,\nagainst the Judgment and decree dated 23.01.1998 made in M.C.O.P.No.2963 of 1995\nby the learned Motor Accidents Claims Tribunal (III Additional District Judge),\nThiruchirappalli.\n\n!For Appellant\t\t.. Mr.A.Saravanan\n\n^For Respondent No.1\t.. No appearance\n\nFor Respondent No.2\t.. Mr.R.S.Ramanathan\n\n\n:JUDGMENT\n<\/pre>\n
\t\tThis Civil Miscellaneous Appeal is directed against the judgment and
\ndecree dated 23.01.1998 pronounced in M.C.O.P.No.2963 of 1995 on the file of the
\nMotor Accidents Claims Tribunal (III Additional District Judge),
\nThiruchirappalli, so far as the disallowed portion of the claim is concerned.\n<\/p>\n
\t\t2. Aggrieved by the insufficiency of the compensation awarded by the
\nTribunal by its award dated 23.01.1998 made in M.C.O.P.No.2963 of 1995, the
\ninjured\/claimant has preferred this Civil Miscellaneous Appeal seeking
\nenhancement of compensation.\n<\/p>\n
\t\t3. According to the claimant, while he was proceeding with his
\nT.V.S.50 Motor cycle bearing registration No.TN45-Y-0901 near Musiri Roundtana
\non the Musiri-Duraiyur main road at about 9.30 a.m. on 21.09.1995, the lorry
\nbearing registration No.TN-28-X-7949 belonging to the first respondent came
\nthere in the direction of south to north at a high speed driven by its driver in
\na rash and negligent manner and dashed against the claimant, as a result of
\nwhich the claimant sustained multiple grievous injuries all over the body,
\nincluding fractures in the left thigh and left hand. Pursuant to the said
\naccident, he was admitted as an inpatient in the Government General Hospital,
\nThiruchirappalli after first aid treatment at Government Hospital, Musiri.
\nDespite proper treatment, the injuries could not be completely cured and the
\nsame resulted in permanent disability.  The further contention of the claimant
\nwas that he was aged about 26 years at the time of accident and was having a
\ndaily income of Rs.75\/- as a coolie and that due to the accident and the
\nresultant injuries leading to permanent disability, he has suffered loss of
\nearning capacity also.  Contending that the accident was the result of the
\nnegligent driving of the lorry belonging to the first respondent by its driver
\nfor which the first respondent, as the owner of the vehicle, was  vicariously
\nliable and the second respondent, as the insurer of the vehicle, was liable to
\nshoulder the liability of the first respondent, the claimant had prayed for an
\naward directing the respondents 1 and 2 to jointly and severally pay a sum of
\nRs.1,00,000\/- as compensation together with future interest and costs.\n<\/p>\n
\t\t4. In support of his claim, the claimant, besides examining himself
\nas P.W.1, examined one Dr.Ravi as P.W.2 and relied on seven documents marked as
\nExs.A.1 to A.7.\n<\/p>\n
\t\t5. The owner of the offending vehicle\/the first respondent did not
\nfile any counter statement and remained ex-parte.  The second respondent alone
\nresisted the claim made by the claimant by filing a counter statement denying
\nthe petition averments regarding the alleged negligence on the part of the
\ndriver of the vehicle.  The second respondent had also disputed the averments
\nmade in the claim petition regarding the age, occupation and income of the
\nclaimant and the nature of the injuries sustained by him.  With the further
\ncontention that the offending vehicle had not been insured with the second
\nrespondent on the relevant date and that the driver of the said vehicle did not
\npossess any valid licence to drive the same and hence there was a violation of a
\npolicy condition, the second respondent had prayed for the dismissal of the
\nclaim petition in its entirety.  No witness was examined and no document was
\nmarked on the side of the respondents.\n<\/p>\n
\t\t6. The Tribunal, after analysing the evidence, both oral and
\ndocumentary, adduced before it in the light of the arguments advanced on both
\nsides, held that the driver of the lorry belonging to the first respondent was
\nat fault; that the said vehicle stood insured with the second respondent on the
\nrelevant date and that the respondent Nos.1 and 2, as the owner and insurer of
\nthe offending vehicle, were jointly and severally liable to pay compensation to
\nthe claimant.  After fixing the liability on the respondents, the Tribunal
\nassessed the compensation payable to the claimant at Rs.55,500\/- and directed
\nthe respondents 1 and 2 to jointly and severally pay the above said amount with
\nan interest at the rate of 12% per annum from the date of claim till the date of
\ndeposit and with  proportionate litigation cost.\n<\/p>\n
\t\t7. In respect of the disallowed portion of the claim, the claimant
\nhas come on an appeal before this Court.  The respondents have not chosen to
\nfile either an appeal or cross objection, challenging the award passed by the
\nTribunal holding them jointly and severally liable to pay compensation to the
\nclaimant.  Therefore, it is unnecessary to traverse the evidence regarding the
\nnature of accident and the question of negligence which has, since, become a
\nclosed chapter.  The only question that arises for consideration in this Civil
\nMiscellaneous Appeal is – “Whether the compensation awarded by the Tribunal is
\nlow and hence it requires upward revision?”.\n<\/p>\n
\t\t8. It is the case of the appellant\/claimant that he sustained
\nmultiple grievous injuries all over the body including fracture on the left
\nthigh and on the left hand.  The claimant\/P.W.1 has deposed in line with the
\naverments made in the claim petition regarding the nature of injuries sustained
\nby him.  His evidence is corroborated by the testimony of the Medical Officer
\nDr.Ravi, who was examined as P.W.2.  Ex.A.1 is the certified copy of the First
\nInformation Report, which shows that immediately after the accident, the
\nclaimant was given first aid treatment in the Government Hospital, Musiri and
\nthereafter was admitted as an inpatient in the Government General Hospital,
\nThiruchirappalli.  Ex.A.3 is the certified copy of the Wound Certificate which
\nevidences that the claimant sustained altogether five injuries, out of which two
\nhave been certified to be grievous in nature. Fracture of the shaft of left
\nthigh and fracture at the left wrist are the two grievous injuries noted in the
\nabove said Wound Certificate.\n<\/p>\n
\t\t9. It is the definite case of the claimant that in spite of the best
\ntreatment provided for him in the Government General Hospital, Thiruchirappalli,
\nthe injuries could not be cured completely and the same resulted in permanent
\ndisability.  From Ex.A.5, it is quite clear that he took treatment as an
\ninpatient for about two months from 21.09.1995 to 19.11.1995.  It is also
\nevident from Exs.A.4 to A7 that he sustained fracture of left femur and fracture
\nof radial on the left hand.  It is also evident from the said documents that
\nsurgical intervention was also made.  The disability certificate issued by
\nP.W.2, an Orthopaedist, has been marked as Ex.A.6.  The X-rays taken for
\nassessing the disability have been marked as Ex.A.7.  P.W.2 has assessed the
\ndisability suffered by the claimant at 35% and certified the same to be
\npermanent.  After a close scrutiny of the evidence, both oral and documentary,
\nadduced on the side of the claimant, the Tribunal assessed the extent of
\ndisability suffered by the claimant at 35% and the age of the claimant at 32
\nyears and awarded a total sum of Rs.55,500\/- as compensation with the following
\ndetails:\n<\/p>\n
Compensation for pain and suffering\t= Rs.10,000.00\/-\n<\/p>\n
Compensation for permanent disability\t= Rs.20,000.00\/-<\/p>\n
Compensation for medical expenses,
\nexpenses for the attendants, transport
\nexpenses and loss of earning during
\nthe period of treatment \t\t\t\t= Rs. 7,500.00\/-\n<\/p>\n
Loss of future earning capacity for
\n15 years at the rate of
\nRs.100\/- per month (Rs.1200\/- per annum)= Rs.18,000.00\/-\n<\/p>\n
\t\t\t\t\t\t\t\t  ————-<\/p>\n
\t\t\t\t\tTotal\t\t= Rs.55,500.00\/-<\/p>\n<\/blockquote>\n
\t\t\t\t\t\t\t\t  ————-<\/p>\n
\t\t10. The learned counsel for the appellant would contend that the
\nTribunal after accepting the assessment of disability made by the doctor and
\nadopting the very same percentage of disability, namely 35%, ought to have held
\nthat the same resulted in loss of future earning capacity to an equal extent and
\nthat assessment of the loss of future earning capacity at the rate of Rs.100\/-
\nper month cannot be sustained; that improper clubbing compensation under various
\nheads like medical expenses, expenses for the attendants and transport expenses
\nwith the loss of earning during the period of treatment had led to the
\nassessment of compensation on a lower side and that the compensation for loss of
\nearning during the period of treatment should be substantially increased apart
\nfrom separating the same from the other heads of damages mentioned above.\n<\/p>\n
\t\t11. This Court is able to find some force in the above said
\ncontention of the learned counsel for the appellant except the contention that
\nthe percentage of loss of future earning capacity should be assessed on par with
\nthe permanent disability. It is obvious from the evidence of P.W.2 and the
\ndisability certificate issued by him and marked as Ex.A.6 that the fractured
\nbone pieces on the left fore-arm have not united after treatment and that due to
\nthe same,  the flexion of the left wrist downwards and upwards have been reduced
\nto 0 to 15 and 0 to 25 respectively as against the normal flexion of 0 to 45
\nand 0 to 60. Likewise due to the fracture on the left femur and mall-union of
\nthe fractured pieces of the femur bone, the flexion of the left hip joint has
\ndecreased to 0 to 120 as against the normal flexion of 0 to 160. P.w.2 has
\nassessed the disability found on the left hand at 28% and the disability found
\non the left hip at 8%, made an arithmetical addition of the same and fixed the
\ntotal disability at 35%. Even in doing the arithmetical addition, P.W.2 has
\ncommitted an error in noting the total as 35% instead of 36%. At this juncture,
\nit shall be worth-mentioning that in case of disabilities caused to different
\nparts of the body and mere arithmetical addition of the disability caused to
\nseparate parts of the body to find out the total extent of the disability in
\nrespect of the whole body will be erroneous. On the other hand, for clubbing the
\ndisabilities, the following formula recommended by MANUAL FOR DOCTORS TO
\nEVALUATE PERMANENT PHYSICAL IMPAIRMENT BASED ON EXPERT GROUP MEETING ON
\nDISABILITY EVALUATION AND NATIONAL SEMINAR ON DISABILITY EVALUATION AND
\nDISSEMINATION UNDER D.G.H.S. – W.H.O. – A.I.I.M.S. should be adopted. Applying
\nthe said formula, the total disability can be assessed at 34% and not 35%.
\n\tCalculation:\n<\/p>\n
\t\t\t\t  \t \t\t\t  b(90-a)
\n\tTotal extent of Disability \t= a +  ——-\n<\/p>\n
\t\t\t\t\t    \t\t\t\t90\t\t\t<\/span><\/p>\n
\t\t\t             8(90-28)           8(62)\n\t\t\t\t= 28 +  --------  =   28 + -----\n\t\t\t\t\t     90\t\t        90<\/span>\n\n\n\t\t\t       \t\t      496<\/span>\n\t\t\t\t=   28 +    -----\t\n\t\t\t\t                 90\t<\/span>\n\n\t\t\t\t=  28 + 5.5  = 33.5 = 34%   (rounded)\n<\/pre>\n
In view of the above said discussions, this Court is of the view that the
\npermanent disability suffered by the claimant should have been assessed at 34%
\ninstead of 36%.\n<\/p>\n
\t\t12. The Tribunal has assessed future loss of earning capacity at the
\nrate of Rs.100\/- per month, which according to the opinion of this Court, is
\nshockingly meagre. The pre-accident income of the claimant could not be
\nassessed below the notional income of Rs.15,000\/- per year. The permanent
\ndisability suffered by the claimant has been assessed at 34%. The loss of
\nearning capacity caused by such permanent disability need not always be equal to
\nthe percentage of disability. In a given case, it can be assessed even at a
\nhigher percentage or a lower percentage depending upon the job of the claimant
\nand his age. In the instant case, there is no clinching evidence like birth
\ncertificate or school certificate to prove the age of the claimant. Statement of
\nthe claimant in this regard seems to be somewhat contradictory. In his claim
\npetition, his age was furnished as 26 years. But while deposing as P.W.1 within
\ntwo years, after the accident he gave his age as 32 years. In Ex.A.5 his age, as
\non the date of accident, has been noted to be about 30 years. The Tribunal has
\nfixed the age of the claimant as 32 years. Even assuming that the age found in
\nthe deposition of P.W.1 represents his age as on the date of his examination as
\na witness before the Tribunal based on Ex.A.5, it can be held that the claimant
\nhad completed the age of 30 years as on the date of accident. Hence the age of
\nthe deceased as on the date of accident is fixed at 30.\n<\/p>\n
\t\t13. In case of injuries resulting in permanent disability, two
\nmethods of assessment of compensation for permanent disability are possible. One
\nby awarding a lump sum payment for the permanent disability which will take into
\nits fold, the loss of future earning capacity and loss of amenities in life and
\nthe other by awarding separate amounts for loss of future earning capacity and
\nloss of amenities in life caused by the permanent disability. In either case,
\nseparate amount for loss of earning capacity from date of accident till date of
\ntrial can be awarded as pecuniary damages.  This position has been made clear in
\nthe Judgment of the Full Bench of Madras High Court in Cholan Roadways
\nCorporation Ltd., v. Ahmed Thambi<\/a> reported in [2006(4) CTC 433]. As per the said
\nJudgment of the Full Bench of Madras High Court, in case of awarding
\ncompensation for loss of future earning capacity, what is prohibited is to award
\nseparate amount as compensation for permanent disability as such. But in such
\ncases, along with the compensation for loss of future earning capacity,
\nreasonable amount can also be awarded for loss of personal amenities in life as
\na separate component, for which awarding a sum of Rs.5,000\/- in this case, shall
\nbe reasonable.\n<\/p>\n
\t\t14. In line with the observation made supra that in all cases of
\npermanent disability, it is not necessary that the loss of earning capacity
\nshould be equal to the percentage of disability and taking into consideration
\nthe fact that the claimant was not a skilled worker but was only a coolie and
\nthat he was aged about 32 years at the time of accident, we can assess the loss
\nof future earning capacity at 25%. As observed earlier that in the absence of
\nreliable evidence, the income of a male aged 30 years cannot be assessed below
\nthe notional income, it shall be proper to adopt the notional income of
\nRs.15,000\/- per annum as the pre-accident earnings of the appellant\/claimant.
\n25% of the same will be Rs.3,750\/-. The same shall be the multiplicand to be
\nmultiplied by a suitable multiplier. Considering the age of the
\nappellant\/claimant, selection of ’15’ as the multiplier in this case shall be
\nreasonable. The product of the above said multiplicand and the multiplier comes
\nto Rs.56,250\/-, which can be rounded to Rs.56,000\/-. The same shall be the
\nreasonable compensation that can be awarded for loss of future earning capacity
\noccasioned to the appellant\/claimant by virtue of the permanent disability
\ncaused by the injuries sustained by him in the accident. Considering the nature
\nof disability suffered by the claimant and the nature of his job, this Court
\nfeels that awarding a sum of Rs.7,500\/- for pain and suffering shall be
\nreasonable.  Though the claimant has not chosen to produce the medical bill,
\nthis Court is of the view that some medicines could have been purchased from the
\nprivate medical stores during the period of treatment. Therefore, awarding a sum
\nof Rs.2,500\/-  for medical expenses shall be reasonable. The Tribunal has not
\nawarded any amount towards transport expenses, for which awarding a sum of
\nRs.1,000\/- shall be reasonable.\n<\/p>\n
\t\t15. It has been pointed out supra that damages for loss of earning
\nduring treatment and the period required for rest shall be assessed as a
\nseparate component of damages for  pecuniary loss. The notional income of
\nRs.15,000\/- has been adopted in this case. From records, it is obvious that the
\nclaimant was taking treatment for about three months. The claimant would have
\ntaken complete rest for a further period of one month and thus, we can hold that
\nthe claimant might have incurred total loss of earning for about four months
\nfrom the date of accident. The loss of income for four months can be calculated
\nat Rs.5,000\/-, taking the notional income of Rs.15,000\/- as the annual income.
\nTherefore, for the loss of income during the period of treatment and complete
\nrest after the date of accident, awarding a sum of Rs.5,000\/- shall be
\nreasonable. At the cost of repetition, in order to make it more clear, the split
\nup particulars of the total amount arrived at are given as under:<\/p>\n
\n\tCompensation for personal\n\tamenities in life \t\t\t= Rs. 5,000\/-\n\t\n\tCompensation for loss of\n\tfuture earning capacity \t\t= Rs.56,000\/-\n\n\tCompensation for pain and\n\tsuffering \t\t\t\t= Rs. 7,500\/-\n\n\n\tCompensation for loss of\n\tincome during the period\n\tof treatment\t\t\t\t= Rs. 5,000\/-\t\n\t\n\tCompensation for medical\n\texpenses \t\t\t\t\t= Rs. 2,500\/-\n\t\n\tCompensation for transport\n\texpenses\t\t\t\t\t= Rs. 1,000\/-\n\t\t\t\n\t\t\t\t\t\t    ---------------\n\t\tTotal \t\t \t\t= Rs.77,000\/-\n\t\t\t\t\t\t    ---------------\n\t\n<\/pre>\n
\tTherefore, this Court is of the considered view that in the instant case,
\nit will be just and proper to award a compensation of Rs.77,000\/-. Taking into
\naccount the long pendency of the case, this Court feels that awarding an
\ninterest at the rate of 9% per annum shall be reasonable.\n<\/p>\n
\t\t16. In the result, this appeal is allowed in part and the award of
\ncompensation made by the Tribunal is enhanced to Rs.77,000\/- from Rs.55,500\/-.
\nThe respondents are  directed to pay the above said amount with 9% interest from
\nthe date of application after deducting the amount, if any, already paid. The
\nrespondents shall also pay proportionate cost to the appellants in both the
\nCourts.\n<\/p>\n
To<\/p>\n
The Motor Accidents Claims Tribunal
\n(III Additional District Judge),
\nThiruchirappalli.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Selvaraj vs S.Ramesh on 27 April, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-36375","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSelvaraj vs S.Ramesh on 27 April, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/selvaraj-vs-s-ramesh-on-27-april-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Selvaraj vs S.Ramesh on 27 April, 2007 - 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