Aggrieved over the quantum of compensation awarded by the Motor Accident Claims Tribunal -cum- Additional Sub Judge, Tirunelveli, dated 21.12.2011, made in M.C.O.P.No.229 of 2009, the Insurance Company has filed C.M.A.(MD)No.467 of 2012.
2. Not being satisfied with the quantum of compensation awarded by the Motor Accident Claims Tribunal -cum- Additional Sub Judge, Tirunelveli, dated 21.12.2011, made in M.C.O.P.No.229 of 2009, the claimant has filed C.M.A.(MD)No.924 of 2012.
3. Since both the appeals arose out of the common Award, they are being heard together and disposed of by means of this common judgment.
4. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.
5. It is the case of the claimant before the Tribunal that on 06.03.2009, the claimant along with his friend was travelling in a motorcycle bearing Registration No.TN-69-P-6293 from Palayamkottai to Tuticorin. At about 01.00 p.m., while the claimant nearing Kovankadu Branch Road on the Tiruchendur-Tuticorin Main Road from South to North, a lorry bearing Registration No.TN-69-L-4689 belonging to the first respondent and insured with the second respondent, came from the opposite direction in a rash and negligent manner and dashed against the two wheeler and dragged the same to some distance and in the said process, the claimant trapped inside the lorry wheel and sustained crush injuries over the right leg and fracture injuries over the left leg, left scapula bone and right forearm and ultimately, his right leg from the knee was amputated. At the time of accident, he was working as Able Seamen in Mercantile Ship viz., B.W. Shipping India Private Limited belonging to an International Company, from 1999 onwards. He was receiving a salary of Rs.75,000/- per month. Once in a year, he will get three months holidays with salary. As per the Marine Law, unless a person is medically fit, he cannot enter into the job of any work. Now, as a result of the injuries sustained in the accident, he lost his job and he could not do any work and he became permanently disabled and hence, he made a claim for a sum of Rs.3,00,00,000/- as compensation.
6. The case of the claimant was resisted by the Insurance Company stating that the accident had happened due to rash and negligent driving of the rider of the two wheeler and not on the fault of the driver of the lorry insured with the second respondent. Thus, the Insurance Company denied their liability to pay compensation.
7. In order to prove the claim on the side of the claimant, the claimant examined himself as P.W.1, besides examining 7 other witnesses as P.Ws.2 to 8 and 30 documents were marked as Exs.P.1 to P.30. On the side of the Insurance Company, only the driver of the lorry was examined as R.W.1.
8. The Tribunal, after analyzing the entire evidence, has come to the conclusion that the accident is the result of rash and negligent driving of the driver of the lorry bearing Registration No.TN-69-L-4689, which was insured with the second respondent Insurance Company. By coming to such a conclusion, the Tribunal has calculated the compensation and passed an award for a total sum of Rs.21,42,910/-. The break up details of the amount awarded by the Tribunal are as follows:
9. The appeal has been filed by the Insurance Company mainly questioning the amount of Rs.16,32,000/- awarded under the head of loss of income, stating that the same is arbitrary and excessive, whereas, the claimant has filed the appeal for enhancement stating that the amount of Rs.16,32,000/- awarded under the head of loss of income is not an adequate compensation.
10. Since the appeals have been filed questioning the quantum of compensation, it is not necessary for this Court to deal with the other aspects of the Award.
11. So far as the quantum of compensation is concerned, it is the submission of the claimant that he was working as Able Seamen in Mercantile Ship viz., B.W. Shipping India Private Limited belonging to an International Company. He was receiving a salary of Rs.75,000/- per month. In order to prove the income earned by the claimant, he examined the General Manager of the Company, as P.W.6. He had categorically stated in his evidence that the last drawn pay of the claimant was 1444 U.S. dollars per month. He has also produced the last drawn consolidated chart as Ex.P.25. He has also produced the service register of the claimant. Further, he had stated in his evidence that since his right leg was amputated, the claimant was unfit to work in sea ship. Further, he had also stated that had the claimant worked continuously, he would have got higher pay. Thus, by relying upon the evidence of P.W.6, the learned counsel for the claimant submitted that the Tribunal ought to have taken the monthly income of the claimant as 1444 dollars and by fixing a dollar value at Rs.45/-, ought to have arrived at the monthly income at Rs.64,980/-. As such, the annual income comes to Rs.7,79,760/- and if the multiplier of '16' is adopted, the loss of income comes to Rs.1,24,76,160/-. In such circumstances, a sum of Rs.16,32,000/- awarded under the head of loss of income is extremely on the lower side and hence, the same has to be enhanced.
12. Countering the said submission, the learned counsel for the Insurance Company submitted that the claimant was a contract labour and he was working in the ship for 10 months only and he has not submitted his last month salary certificate before the Tribunal. That is the reason why, the Tribunal has fixed a sum of Rs.10,000/- as monthly income. He has also not produced the income tax returns. In the absence of any tangible evidence to prove the income of the claimant, the amount of Rs.10,000/- fixed by the Tribunal as monthly income is on the higher side and hence, the same needs reduction.
13. Keeping in mind the submissions made by the learned counsel appearing on either side, we have carefully gone through the entire materials available on record.
14. It is the submission of the claimant that he was working as Able Seamen in Mercantile Ship viz., B.W. Shipping India Private Limited. He was earning a sum of Rs.75,000/- per month. In support of his claim, he has only produced the last drawn consolidated chart as Ex.P.25. But, he has not produced the last drawn salary certificate. PW6, the General Manager of the Company, has categorically stated in his evidence that what was produced by him is only a consolidated chart of the payment. PW6, during the course of cross-examination, admitted that the claimant was working on contract basis for a period of one year and ten months. Thus, it is clear that he was only a Contract Labour and except the oral evidence of PW6, the claimant has not produced any tangible evidence to substantiate his huge claim.
15. However, the Tribunal, by taking note of the evidence of P.W.6 and Exs.P.25, P.26 and P.27, has come to the conclusion that the claimant has sent particular amount to his family, but, as per the cross-examination of P.W.6, the claimant was engaged only as contract labour and served for a period of one year and ten months, has fixed the monthly income of the claimant as Rs.10,000/-. The Tribunal has rightly held that no tangible evidence was produced by the claimant to fix a sum of 1444 dollars as his monthly income. But, at the same time, considering the avocation of the claimant as Able Seamen, we are of the opinion that a sum of Rs.10,000/- fixed by the Tribunal as monthly income appears to be on the lower side. Thus, the monthly income of the claimant is fixed at Rs.15,000/- and as such, his annual loss of income comes to Rs.1,80,000/- and the appropriate multiplier to be adopted in this case is '17'. Thus, the loss of income comes to Rs.24,48,000/- [1,80,000 x 17 x 80%].
16. Considering the nature of injury sustained by the victim in the accident, viz., amputation of right leg from the knee, we are of the opinion that he would find it difficult to carry on his normal avocation, as he was doing before the accident. Hence, he is entitled for compensation under the head of loss of amenities. But the Tribunal has not awarded any amount under the head of loss of amenities. Therefore, on the said head, a sum of Rs.1,00,000/- is awarded.
17. That apart, considering the long duration of treatment undergone by the claimant, a sum of Rs.25,000/- awarded under the head of pain and suffering, in our considered view, is on the lower side and hence, the same is, hereby, enhanced to Rs.75,000/- by adding another sum of Rs.50,000/-. It is seen that the Tribunal has not awarded any amount towards the head of permanent disability. Hence, this Court is of the view that Rs.2,500/- can be awarded for each percentage of disability and thus, it comes to Rs.2,00,000/- (Rs.2,500/- x 80 = Rs.2,00,000/-).
18. Except the above modification, in all other aspects, the amount awarded under the other heads is, hereby, confirmed. Thus, the compensation of Rs.21,42,910/- awarded by the Tribunal is, hereby, enhanced to Rs.33,08,910/- as under:
Transportation Expenses : Rs. 10,000/- Extra-nourishment : Rs. 5,000/- Medical expenses and the amount spent for fixing artificial leg : Rs. 4,60,910/- Mental agony : Rs. 10,000/- Pain and suffering : Rs. 75,000/- Loss of income : Rs.24,48,000/- Loss of amenities : Rs. 1,00,000/- Loss of permanent disability : Rs. 2,00,000/- ------------------------ Total Rs.33,08,910/- ------------------------- 19. In the result,
(i) C.M.A.(MD)No.924 of 2012 is partly allowed without costs. The compensation awarded by the Tribunal is enhanced to Rs.33,08,910/-. The Insurance Company is directed to deposit the entire award amount with 7.5% interest per annum from the date of petition till the date of deposit, less the amount already deposited, if any, before the Tribunal, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit being made, the claimant is permitted to withdraw the compensation amount, less the amount already withdrawn, if any. For the enhanced amount of compensation, the claimant shall pay the Court fee within four weeks before the Registry, as per the order of this Court dated 20.07.2012, in M.P.(MD)No.1 of 2012 in C.M.A.(MD)SR.No.17138 of 2012.
(ii) C.M.A.(MD)No.467 of 2012 is dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.
To
1.The Motor Accident Claims Tribunal -cum-
Additional Sub Judge, Tirunelveli.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai..