The appeal in CMA(MD)No.2013 of 2013, has been preferred by the Insurance Company against the award of a sum of Rs.91,600/- for the injuries sustained by the first respondent/claimant, in the accident which occurred on 24.08.2010, when he was driving an ambulance, which collided with the lorry insured with the appellant/Insurance Company and also fixing 50% negligence on the part of the driver of the lorry insured with the appellant Insurance Company.
2.The claimant has also filed CMA(MD)No.1811 of 2013 against fixing of 50% negligence on him and with regard to the quantum.
3.Both the appeals arise out of the same Judgment and therefore, both the appeals are disposed of by this common Judgement. For the sake of convenience, the respondent is termed as claimant and the appellant Insurance Company is termed as Insurer of lorry.
4.It is the specific case of the claimant that while he was driving the ambulance from Vellore to Tirunelveli, he was driving the vehicle on the left side of the main road and at that time, a lorry insured with the appellant/Insurance Company came in the wrong direction and hit against the ambulance causing the accident. However, based on evidence available on record, the Tribunal found that there was contributory negligence on the side of both the ambulance driver as well as the lorry driver and fixed the ratio of contributory negligence at 50 : 50.
5.It is contended by the learned counsel for the insurer of lorry that Ex.R2-First Information Report, has been filed against the victim and in fact, Ex.R3-sketch would prove that the accident occurred on the western side of the four way road adjoining and abutting the median, since the route on the left hand side of the traffic road was diverted, compelling the lorry to come in the opposite way leading to the accident. Therefore, she would submit that there was no negligence on the part of the driver of the lorry and it was only the ambulance driver, who was negligent.
6.However, Mr.T.Selvakumaran, learned counsel for the claimant would submit that in Ex.R2-FIR, there is nothing to show that the driver of the ambulance was responsible for the accident and therefore, he seeks to set aside the 50% of the contributory negligence fixed on the driver of the ambulance.
7.No doubt, Ex.R2-FIR was filed against the driver of the ambulance. The claimant-P.W.1 has categorically stated in his evidence that after accident, he became unconscious and taking advantage of that, the cleaner of the lorry gave Ex.R2-FIR alleging negligence against him.
8.One aspect which has to be noted is that the claimant, after the accident, gave a complaint to the Superintendent of Police. The acknowledgment cards are marked as Exs.P2 and P3. Merely because FIR has been registered against the driver of the ambulance itself, is not conclusive proof. Ex.R2-FIR is only a piece of evidence, which needs to be corroborated. There is no corroboration on the side of the insurer of the lorry. Neither the driver of the lorry nor the cleaner, who gave Ex.R2-FIR was examined. This lapse is fatal to the case of the insurer of the lorry. The only eye witness is P.W.1-the injured. When he categorically stated that there was no diversion, as claimed by the appellant and he was going in the proper side of the road on the western margin of the way, there should be contra evidence available to prove that there was diversion from the left hand side of the road or for the vehicles, which were proceeding from South to North, as the ambulance was coming from North to South. Either they should have examined the driver or cleaner of the lorry or the Investigating Officer or any other eye witness. No such effort has been taken by the Insurance Company. Therefore, it is evident as per P.W.1's evidence and even as per Ex.R3-rough sketch, filed by the insurer of lorry, that the ambulance was going in the right way and it is only the lorry, which came on the wrong side and hit against the ambulance.
9.Assuming for a moment, that there was a traffic diversion, it is not the case of the Insurer of the lorry that when the lorry was coming at that spot, the lorry alone was the first vehicle, which got diverted by the Police officer. If the diversion was there from one side of the road to another side, there should have been many vehicles coming from opposite direction and if that was so, the ambulance should have collided with a number of vehicles even before the lorry hit against the ambulance. Therefore, in isolation, it cannot be stated that the lorry was diverted, especially, when it is a National Highway and many vehicles were plying and the contention of the insurer of the lorry has to be rejected in limini. Therefore, this Court, comes to the conclusion based on evidence and on reasonable probabilities that the ambulance was moving in the right way and it is only the offending vehicle, viz., the insured lorry, which came in the wrong direction, that too, crossing the median and hitting against the ambulance causing accident and therefore, 50% negligence fixed on the driver of the ambulance is liable to be set aside. Accordingly, the same is set aside and the entire negligence is fixed on the offending vehicle, viz., the lorry insured with the appellant/Insurance Company.
10.Now, coming to the question of quantum, the case of the claimant was that he was earning about Rs.6,000/- p.m. as an ambulance driver. However, the Tribunal, in the absence of any proof regarding the income, fixed the monthly income at Rs.4,500/-. As the accident occurred on 24.08.2010, this Court, is inclined to follow the Judgment in Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. reported in 2014 (1) TNMAC 459 (SC), wherein for a vegetable vendor, who got injured in an accident which occurred on 14.02.2008, a sum of Rs.6,500/- (Rupees Six Thousand and Five Hundred only) per month was fixed and the claimant has sought for only Rs.6,000/- p.m., this Court, instead of determining Rs.6,500/- p.m., takes Rs.6,000/- as monthly income, even though, there is no proof regarding income, as the Hon'ble Apex Court determined the monthly income at Rs.6,500/- in the above cited decision, even in the absence of any proof regarding income.
11.No future prospects has been added as per the Judgment of Rajesh and others v. Rajbir Singh and others reported in (2013) 9 Supreme Court Cases 54 and therefore 50% of the monthly income has to be added as future prospects and along with future prospects, the income would be Rs.6,000/- + 50%(Rs.6000/-) = Rs.9,000/-.
12.The claimant suffered from broken hip ball and socket joint leading to non using of his leg and he also sustained the following injuries:-
(1)Fracture over the right leg thigh (2)Fracture over the right leg below the knee (3)Fracture over the left leg thigh (4)Fracture over the left below the knee (5)Fracture over the left leg pain (6)Fracture over the left hand (7)Injuries over the right side eyebrow (8)Injuries over the right side chin (9)Fracture over the acetabulam, femur both bones (10)Multiple injuries all over the body.
13.P.W.2-Doctor, categorically stated that the left forearm got fractured and he underwent surgery. In the surgery, screw and wire were fixed inside. Similarly, in the left angle of the hand, there was a fracture and a surgery was conducted and screw and plate were fixed inside. Further, another surgery was done with regard to fracture in the left leg and wire and screw were placed inside. Similarly another surgery in the left thigh implanting wire and screw and over all, the left leg became bent and he is unable to fold his leg and cannot squat and sit. In his evidence, P.W.2 categorically stated that in three places, bone got broken and in three places, the claimant sustained fracture. He was admitted in the hospital from 21.11.2010 to 07.12.2010 and subsequently, from 20.12.2010 to 29.12.2010 and thereafter, he underwent bone grafting surgery and without crutches he is unable to walk, when the claimant appeared before this Court.
14.For a driver, the legs are very important. P.W.2-doctor's evidence as well as the medical records Exs.P6, P8, P11 and P16 would categorically prove that the claimant is unable to use his left leg and it has become bent, taking away his avocation as a driver. Though the doctor spoke about 68% disability, the Tribunal on its own, without any contra medical expert's opinion, reduced the disability to 45%, which is unwarranted and the same is set aside and this Court by re-appreciating the evidence on record, re- determines the disability as per P.W.2-doctor's evidence at 68%. Though 68% disability is sustained by the claimant, the loss of earning power is 100 % as a driver. In this regard, he has filed Ex.P13-Driving license. Therefore, loss of earning power, though it is 100%, in this case, since this Court determines the disability at 68%, the loss of earning power is also determined at 68%.
15.At the time of accident, the claimant was aged about 30 years and the appropriate multiplier, as per Judgment of Sarla Verma v. Delhi Transport Corporation reported in 2009 (2) TN MAC 1 (SC), is 17 and hence, the loss of income would be Rs.9,000 x 12 x 17 x 68/100 = Rs.12,48,480/-. The Tribunal awarded a sum of Rs.65,200/- as medical expenses, as per Exs.P5, P7 and P9 and the same is hereby confirmed. A sum of Rs.15,000/- awarded by the Tribunal towards ?pain and sufferings? is too low and the same is enhanced to Rs.25,000/-. A sum of Rs.2,500/- awarded towards transportation is also too low and the same is also enhanced to Rs.15,000/-. A sum of Rs.2,500/- awarded towards extra nourishment is very less and the same is enhanced to Rs.20,000/-. A sum of Rs.18,000/- awarded towards loss of income during the period of treatment does not arise in this case, as already by multiplier method, this Court has given compensation ?for loss of earning power? and therefore, Rs.18,000/- is deleted. Similarly Rs.80,000/- awarded towards ?loss of earning capacity due to permanent? disability is also deleted. A sum of Rs.50,000/- is awarded towards loss of amenities. The total compensation awarded to the claimant is as follows:-
Rs.
(i)For Loss of Income 12,48,480/- (ii)For Medical Expenses 65,200/- (iii)For Pain and Sufferings 25,000/- (iv)For Transportation 15,000/- (v)For extra nourishment 20,000/- (vi)For Loss of amenities 50,000/- - - - - - - - - - - Total 14,23,680/- - - - - - - - - - -
(Rupees Fourteen Lakhs Twenty Three Thousand and Six Hundred and Eighty only). The rate of interest awarded at 8% p.a by the Tribunal remains unaltered.
16.The insurer of the lorry, the appellant in CMA(MD)No.2013 of 2010 (Royal Sundaram Alliance Insurance Company Ltd., ) shall deposit the entire amount along with interest and costs after deducting the amount already deposited, within a period of six weeks from the date of receipt of a copy of this order, by RTGS. On such deposit, the Tribunal is directed to transfer 50% of the deposited amount to the injured claimant alone. The balance 50% of the deposit amount is directed to be kept in interest bearing Fixed Deposit atleast for six years. The respondent/claimant is permitted to withdraw the interest every two months once.
17.In the result, the CMA(MD)No.2013 of 2016 filed by the insurer of the lorry is dismissed. CMA(MD)No.1811 of 2013 filed by the claimant is partly allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.
To:
The Motor Accidents Claims (III Additional District and Sessions Judge), Tirunelveli.
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