cLf;if ,He;jtd; ifnghny M';nf ,Lf;fz; fistjhk; el;g[/ The Great Thiruvalluvar wrote about the importance of friendship in his immortal Thirukural and he compared the friendship with the hand which spontaneously adopts the dress whenever the dress falls down. When such is the importance given to the hand of a person, what would be the position of a person, if a hand is lost one can imagine.
2.This Civil Miscellaneous Appeal has been filed against the judgment and decree made in M.C.O.P.No.113 of 2010, dated 03.10.2012, on the file of the Motor Accident Claim Tribunal Judge, (Additional Sub-Court), Tirunelveli.
3.Here is the case, in which, the appellant lost his right hand in the accident occurred on 10.01.2010 when he was travelling as a passenger in the respondent's Transport Corporation bus bearing registration No.TN 74 N 1207 coming from Nagercoil to Tirunelveli when another transport corporation bus with bearing Registration http://www.judis.nic.in 3 No.TN 74 N.0978 coming on the opposite direction, dashed against the said bus. Therefore, the petitioner has filed a claim petition.
4.Though the respondent Transport Corporation alleged that the appellant was negligent in extending his hands out side the bus, while travelling, which caused the accident, the said contention was rejected by the Tribunal and fixed the negligence on the part of the driver of the Transport Corporation and awarded a sum of Rs.2,25,000/- for proved disability of 89%.
5.Aggrieved over the quantum of compensation, the claimant is before this Court.
6.Heard Mr.V.Sasikumar, learned counsel for the appellant and Mr.P.Prabakaran, learned counsel appearing for the transport corporation.
7.Mr.V.Sasikumar, learned counsel for the appellant would submit that instead of following the multiplier method for loss of hand, causing disability of 89%, the Tribunal mechanically awarded a sum of Rs. 2,000/- for 1%, totaling Rs.1,78,000/-. Whereas, the appellant lost his http://www.judis.nic.in 4 avocation as a Bangle merchant. Hence, he seeks application of multiplier method for determining the compensation.
8.On the other hand, Mr.P.Prabakaran, learned counsel for the respondent would support the award. However, he would submit that there was a contributory negligence on the part of the appellant as he deliberately extended his hand outside the bus while travelling. Therefore, at least 30% contributory negligence has to be fixed on the claimant.
9.Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.
10.This Court has paid its anxious consideration to the rival contentions and scrutinize the records meticulously.
11.The Tribunal as per the evidence of P.W.1/Claimant found that the driver of the Transport Corporation tried to over-take the Maruthi Car, which was going in front of the bus and while trying to over-take, it dashed against the bus, which was coming in the opposite direction thereby causing accident. Though, the driver of the bus/R.W.1 adduced http://www.judis.nic.in 5 before the Tribunal that the claimant/appellant was warned by him when he extended his hand outside the bus and inspite of that, he was keeping his hand outside and therefore, while over-taking, Appellant's hand got chopped off, the Tribunal did not believe R.W.1's evidence. Considering filing of Ex.P1/FIR and Ex.P3/Chargesheet against the driver of the bus, the Tribunal found factually and rightly that the accident occurred because of rash and negligent driving of the bus by the Transport Corporation driver. Therefore, the said finding arrived at by the Tribunal with regard to negligence is confirmed and thereby the contention of respondent Transport Corporation that there was a contributory negligence on the part of the appellant is rejected.
12.Moreover, the finding regarding negligence had already attained its finality, as there is no appeal on the part of the Transport Corporation. Hence, it is not open to the respondent Corporation to canvas the point of contributory negligence in the appeal filed by the claimant for enhancement of compensation alone.
13.It is disheartening to note, the Tribunal which has to be benevolent while dealing with claims under the provisions of Motor Vehicles Act, without application of mind and without recording the http://www.judis.nic.in 6 value of quality life of an human being, had very erroneously awarded only a paltry sum of Rs.1,78,000/- for loss of an hand. This Court does not want to make any harsh remarks about the Tribunal which has passed this erroneous and illegal order without any compassion due to judicial restraint.
14.In the accident, the appellant's hand got cut off and fallen on the spot itself. Getting caught in the accident itself is a very big shock and losing of vital part of the body while he was conscious should have caused untold pain and suffering which cannot be estimated. Even for a small surgery, Doctors used to administer anesthesia. But in this case, his hand was cut off before his eyes. Without understanding the gravity of the pain, the Tribunal awarded only a sum of Rs.20,000/- and the same has to be necessarily enhanced. Hence, this Court awards a sum of Rs.2,50,000/- towards pain and suffering.
15.Though the claimant claimed that he was working as a Bangle merchant, earning about Rs.10,000/- per month, in the absence of any positive evidence, the Tribunal determined the monthly income at Rs. 3,000/- which is also on the lower side. The Hon'ble Supreme Court in Syed Sadiq vs. The Divisional Manager, United India Insurance http://www.judis.nic.in 7 Company Limited reported in 2014(1) TN MAC 459 (SC) determined the monthly income of a vegetable vendor who sustained injury in the accident that occurred on 14.02.2008 at Rs.6,500/- p.m. In this case, the accident occurred after four years viz., 24.05.2012. Hence, this Court is inclined to follow Rs.6,500/- as income of the Appellant, as per the above judgment.
16.The age of the claimant is 35 years at the time of accident. Even before this Court, Voter identity card has been produced and it shows that he was born in the year 1977. The date of accident was on 10.01.2010 and he must be around 35 years. No future prospects was added by the Tribunal as per the judgment in Rajesh and others vs. Rajbir Singh and others reported in 2013(3) CTC 883. Accordingly, 50% is added as the claimant was aged about 35 years at the time of accident. If 50% is added towards future prospects, the income would be Rs.6500/- + 50%(Rs.6500/-) = Rs.9,750/-.
17.It is proved before the Court through P.W.2/Doctor that the claimant had lost his hand which is further proved by medical records, especially, Ex.P2/wound certificate and Ex.P6/Disability certificate. http://www.judis.nic.in 8
18.Moreover, the factum of loss of hand by the claimant is not denied by the respondent Transport Corporation. P.W.2/Doctor deposed that claimant/appellant sustained 89% disability, based on the injuries sustained by him. With loss of right hand, it is impossible for the appellant to do normal activities including his day-to-day personal works. One cannot imagine that claimant would be employed by anybody with this physical status. Therefore, for determining the loss, multiplier method has to be adopted. Though, 100% loss of income should be taken into consideration, this Court, as per determination made by the Tribunal, determines the loss of earning power at 89% as explained by P.W.2/Doctor.
19.The appropriate multiplier for the age of 35, as per the judgment in Smt.Sarla Verma vs. Delhi Transport Corporation reported in 2009(2) TN MAC 1(SC) is 16. Therefore, the loss of income would be Rs.9750/- x 12 x 16 x 89/100= Rs.16,66,080/-.
20.The Tribunal awarded Rs.18,000/- towards loss of income during 6 months period of treatment. This Court had already determined the monthly income at Rs.6,500/- with 50% future prospects and therefore the sum of Rs.18,000/- awarded by the http://www.judis.nic.in 9 Tribunal is deleted, in view of the adoption of multiplier method. The sum of Rs.2,000/- awarded towards transportation is very low and the same is enhanced to Rs.35,000/-. The sum of Rs.5,000/- awarded towards extra-nourishment is also too low and the same is enhanced to Rs.50,000/-. For loss of amenities, this Court awards a sum of Rs. 1,00,000/- as no amount was awarded by the Tribunal in this regard.
21.Right hand is lost from shoulder and therefore artificial hand is a must. For fixing artificial hand, no amount was awarded by the Tribunal and therefore, this Court awards a sum of Rs.3,00,000/- towards future medical treatment, as the artificial hand is only useful for 5 to 7 years and thereafter, it has to be replaced. Totally, the compensation payable to the appellant/claimant is Loss of income : Rs.16,66,080/-
justified in pleading to reduce the rate of interest from 9% to 7.5%. Accordingly, the rate of interest is reduced to 7.5%.
23.Thus, the award of Rs.2,25,000/- is enhanced to Rs. 24,00,000/-. Since the appeal has been preferred with the delay of 1420 days, the appellant is not entitled to interest for the enhanced compensation for the aforesaid delay period.
24.The respondent Transport Corporation is directed to deposit the entire amount along with interest and costs within 12 weeks from the date of receipt of a copy of this order before the Tribunal and on such deposit, the Tribunal is directed to transfer only Rs.10,00,000/- to the bank account of the claimant, through RTGS, after getting the bank account details, within a period of one week thereafter. The balance amount is directed to be deposited in interest being Fixed deposit, at least for a period of 10 years so that he can survive by withdrawing the interest once in two months. For the enhanced http://www.judis.nic.in 11 amount of compensation, the appellants shall pay the court fee within a period of two weeks from the date of receipt of a copy of this order.
25.The Civil Miscellaneous Appeal is allowed on above terms. No costs.
14.02.2017 Index : Yes/No Internet : Yes/No am To
1.The Motor Accident Claim Tribunal Judge, (Additional Sub-Court), Tirunelveli.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 12 N.KIRUBAKARAN, J am C.M.A(MD).No.88 of 2017 Dated : 14.02.2017 http://www.judis.nic.in