These Civil Miscellaneous Appeals have been filed against the judgment and decree made in M.C.O.P.No.226 of 2004 on the file of Motor Accidents Claims Tribunal (1st Additional Subordinate Judge), Tirunelveli, dated 28.10.2005.
2. The case of the claimant is that on 27.10.2003, the claimant was travelling in the third respondent's bus bearing Registration Number TN-72-N- 0274 from Palayamkottai Bus stand towards Arulmigu Pannirupidi Ayyan College of Arts & Science, Nanguneri on Tirunelveli-Nagercoil Main Road and the bus was driven in a slow manner by observing the traffic rules and regulations and when it was nearing A.R.A.S workshop at 9.20 A.M., in southern direction, the first respondent's Tipper Lorry bearing Registration Number TN-72-E-0597 came from opposite direction in bread-neck speed, recklessly and without observing any traffic rules and dashed against the right rear side body of the third respondent's bus. Due to the said accident, the claimant sustained crush-injury involving multiple fractures and immediately he was admitted in the Tirunelveli Medical College Hospital, Tirunelveli-11 on 27.10.2003. Later, he was taken to Chenthil Nursing Home at Madurai on 29.10.2003 and admitted therein. Subsequently, on 31.10.2003 he had a surgery conducted by Dr.Devadoss, a renowned orthopaedic surgeon, in his right shoulder and the Doctor had implanted the right hip bone of the claimant at his right shoulder and also a plate with 7 screws. Since his muscle at right shoulder was completely damaged in the accident, flesh was taken from the right upper portion of his body by surgery on 11.11.2003. Subsequently, skin grafting from his right thigh was done on 17.11.2003 and it was placed on his right shoulder. On 09.01.2004 he was discharged from the hospital and again was re- admitted in the same hospital on 03.02.2004 and by another surgery, screws were removed. Thereafter, he got admitted on 16.02.2004 to remove the sutures and the sutures were removed, and thereafter, he has taken treatment as an out patient every week. Again on 08.03.2004, a surgery was performed on his right shoulder and plate with screws were removed. Thereafter, he was discharged on 10.03.2004. Hence, the claimant filed a petition in M.C.O.P.No.226 of 2004, on the file of the Motor Accidents Claims Tribunal (1st Additional Sub-Judge), Tirunelveli, claiming a sum of Rs.20,00,000/- as compensation.
3.The first respondent namely Mercy Mary filed a counter affidavit denying all the averments made by the claimant and also denied the amount claimed by the claimant towards medical expenses by stating that it was excessive in respect of the injuries and she also denied the percentage of disability and the liability of the lorry which caused the accident.
4.The second respondent/United India Insurance company filed counter affidavit denying the allegations made in the petition and also submitted that the criminal case has been falsely registered against the first respondent's Tipper Lorry driver by suppressing the real facts and they also denied the treatment taken by the claimant in the private hospital and submitted that the amount claimed by the claimant was exorbitant and hence, they sought dismissal of the claim petition.
5.The fourth respondent also filed the counter affidavit stating that the F.I.R and the charge sheet had corroborated that the accident, had occurred due to the rash and negligent driving of the driver of the first respondent's Tipper Lorry and the third respondent's driver is not responsible for the accident and therefore, the fourth respondent is not liable to pay any amount to the claimant as compensation. They also submitted that the third respondent is a formal party to the proceedings and the amount claimed by the claimant is excessive.
6.Before the Tribunal, joint trial was conducted along with four other cases and on the side of the claimants, in those cases, seven witnesses viz., P.Ws.1 to 7 were examined and Twenty Nine documents viz., Exs.P.1 to P.29 were marked and on the side of the respondents, neither any witness was examined nor any document was marked.
7.Based on the materials available on record and also the evidences of witnesses and documents produced the Tribunal has come to the conclusion that the accident has occurred only due to the rash and negligent driving of the driver of the first respondent's Tipper Lorry. As the second respondent Insurance Company is the insurer of the first respondent's Tipper Lorry, the Tribunal had directed the Insurance Company to pay a sum of Rs.5,44,670/- (Rupees Five lakhs and Forty Four Thousand and Six hundred seventy only) as compensation. Against which, the claimant has filed C.M.A.(MD)No.1019 of 2006 seeking enhancement of compensation and the United India Insurance Company has filed C.M.A.(MD)No.1366 of 2006 questioning the quantum of compensation.
8.The learned counsel for the claimant/appellant in CMA.No.1019 of 2016 submitted that the Tribunal ought not to have deducted 1/3 in the total amount, for non-fatal case and Tribunal ought to have taken 100% loss of earning capacity, since the claimant was terminated from his service as Physical Director, and the compensation awarded by the Tribunal is on the lower side and therefore, prays for enhancement of the compensation.
9.Though various grounds have been raised in CMA.No.1366 of 2006, the learned counsel appearing for the appellant/United Insurance Company submitted that the award passed by the Tribunal is on the higher side and it has to be set aside. He further submitted that the Tribunal has directed United India Insurance Company to pay interest at the rate of 7.5% per annum within one month from the date of receipt of a copy of the order, failing which the claimant is entitled to 9% per annum to the awarded amount from that date, which is very inordinate. Hence, he seeks interference of this Court to the award passed by the Tribunal.
10.Heard the learned counsel for the respective parties and perused the materials available on record.
11.The Tribunal, after discussing the entire issue has awarded a sum of Rs.5,44,670/- as compensation. The claimant filed C.M.A.No.1019 of 2006 for enhancement of the compensation and United India Insurance company filed C.M.A.No.1366 of 2006 questioning the compensation awarded by the Tribunal as excessive.
There is no question regarding liability. After elaborate discussion, the Tribunal has fixed the liability on the United India Insurance Company, which does not require any interference at the hands of this Court. Hence, this Court confirms the liability fixed on the United India Insurance Company, to whom the Tipper Lorry was insured.
12.On perusal of the documents and the evidence let in, it is seen that at the time of the accident, the injured was 31 years old and he was an N.S.S programming officer and was earning Rs.8,000/- per month as physical director and a sum of Rs.400/- as an N.S.S programming officer and Rs.350/- as an invigilator of University Semester Examinations. The claimant has produced Ex.P.22, the salary certificate issued by Arulmigu Pannirupidi Ayyan College of Arts and Science, to prove that the claimant was drawing a sum of Rs.8,000/-. There was no dispute raised by the Insurance Company regarding the salary. Therefore, Rs.8,000/- has been taken as monthly salary and Rs.96,000/- has been taken as annual income and 1/3rd amount was taken into account as Rs.32,000/- and multiplier of 17 was adopted by the Tribunal and awarded Rs.5,76,000/- towards total loss of income and loss of expectations. As per Ex.P.27 and P.28, which proved the fact that he had suffered 59% of permanent disability, the Tribunal fixed a sum of Rs.3,39,840/- for loss of earning capacity and for loss of expectations in life. As per Exs.P.16 and 17, the Tribunal awarded a sum of Rs.1,42,830/- for medical expenses and a sum of Rs.17,000/- for Transportation and a sum of Rs.25,000/- for pain and sufferings and Rs.20,000/- for Extra Nourishments. In total Rs.5,44,670/- has been awarded by the Tribunal.
13.This Court, after considering the above submissions made on either side and carefully perusing the materials available on record, finds that the multiplier method adopted by the Tribunal is wrong. This Court is of the opinion that no multiplier method should be taken into account in the instant case for calculating loss of income. Therefore, this Court modifies the awarded towards loss of earning capacity and loss of expectations amount to the extent that Rs.3,000/-for each percentage of disability which would amount to Rs.1,77,000/- and Rs.1,42,830/- is awarded towards medical expenses, Rs.17,000/- awarded by the Tribunal for Transportation is enhanced to Rs.20,000/- and Rs.25,000/- awarded by the Tribunal towards pain and sufferings is increased to Rs.50,000/- and Rs.20,000/- awarded by the Tribunal for Extra nourishments is confirmed. Further a sum of Rs.24,000/- towards Loss of income for three months and Rs.20,000/-towards Attendant's Charges are also awarded by this Court. The total award amount fixed by this Court is Rs.4,53,830/- and is rounded off to Rs.4,55,000.
14.In the result, C.M.A.(MD)No.1019 of 2006 is disposed of and C.M.A.(MD)No.1366 of 2006 is partly allowed. Award dated 28.10.2005 made in M.C.O.P.No.226 of 2004 on the file of the Motor Accident Claims Tribunal/1st Additional Subordinate Judge, Tirunelveli is modified and reduced to Rs.4,55,000/- (Rupees four lakhs and fifty five thousand only), which carries interest at the rate of 7.5% per annum from the date of petition till the date of realisation. No costs. Consequently, connected miscellaneous petition is closed.
15.At this juncture, learned counsel for the Insurance Company submitted that the entire award amount, as awarded by the Tribunal, has already been deposited to the credit of MCOP No.226 of 2004 and as per the order of this Court dated 04.11.2006 made in M.P.(MD)No.3 of 2006, the claimant was permitted to withdraw 50% of the amount deposited with proportionate interest and costs.
16.In view of the above submission, the Insurance Company is entitled to withdraw the balance amount in deposit with interest if any, after settling the claimant; and the claimant is permitted to withdraw the balance amount, as awarded by this Court, with interest.
To
1.The Motor Accidents Claims Tribunal (1st Additional Sub-
Judge), Tirunelveli.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
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