The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 31.12.2002, made in O.P.No.408 of 1999, on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Tract Court-I, Salem, awarding a compensation of Rs.10,29,123/- with 9% interest per annum, from the date of filing the petition to till the date of payment of compensation.
2.Aggrieved by the said Order, the appellant/United India Insurance Co., Ltd., has filed the above appeal praying for re-consideration of the award stating that the Tribunal erred in placing reliance on the exaggerated assessment of PW4 Doctor, to assume 60% disability and grant a sum of Rs.3,88,000/- for permanent disability. Further, even this calculation of the Tribunal of Rs.3,88,000/- is erroneous as 60% of Rs.4,80,000/- is only Rs.2,88,000/-. The claims Tribunal has also failed to note that the first respondent has received amount from other policies for the same accident and has to prove that no money was reimbursed by those Insurance Company for medical expenses. Further, the Tribunal erred in granting Rs.1,00,000/- towards pain and suffering and Rs.1,00,000/- towards loss of income without any proof of the same. The Tribunal has also failed to note that after the accident, the first respondent has become chairman and earned a sum of Rs.10,00,000/- for the year ending 31.03.2002 as per Ex.P17. As such, it has prayed by the appellant that the award granted by the Tribunal has to reconsidered and assessed correctly.
3.The short facts of the case are as follows:
On 25.03.1997, at about 8.30 a.m., the petitioner was travelling in a Contessa Classic Car, bearing registration No.TN27 4456, belonging to the first respondent and that when the car was nearing Manoj Kumar Spinning Mills in Salem to Namakkal main road, the driver of the Car drove the car in a rash and negligent manner and hit against the Parapet Wall. Due to this, the petitioner sustained grievous multiple injuries and was admitted in Sri Gokulam Hospital, Salem-4. This accident was due to the rash and negligent driving of the driver of the Contessa Classic Car. At the time of the accident, the petitioner, was aged about 50 years. He was hale and healthy. He was a Director in many spinning mills. Now, after the accident, he is not able to work as he did earlier. He has lost his earning capacity.
4.The first respondent is the owner of the Car and the second respondent is the insurer of the Car. Both of them are jointly and severally liable to pay the compensation to the petitioner.
5.The Puduchataram Police have registered a criminal case in Crime No.224/1997 under
Sections 279 and
337 I.P.C.
6.The petitioner has claimed a compensation amount of Rs.30,00,000/- under various heads under
Section 166 of Motor Vehicles Act.
7.The second respondent/United India Insurance Co., Ltd., in its Counter has stated that the first respondent's driver drove the car slowly and carefully at the time of the accident and observing all traffic rules at the time of the accident. When the first respondent's driver was thus proceeding on its proper side, in order to avoid hitting against another vehicle dragged and dashed against a Culvert. Hence, it was an inevitable accident and so this respondent was not liable to pay any compensation. Further, the second respondent did not admit that the petitioner sustained grievous injury all over the body. Further, even after the accident, the petitioner continues to be the Director of various Mills and continues to earn without any difficulty. Further, the age, income and occupation of the petitioner were denied. Further, it was submitted that the compensation claimed was excessive and disproportionate to the injury suffered.
8.The Motor Accident Claims Tribunal framed three issues for the consideration namely:
(i) Whether the accident was caused by the negligent driving of the driver of the first respondent?
(ii) Is the petitioner entitled to receive compensation?
(iii)To what other relief, is the petitioner entitled to?
9.Thirumathi.Umayal, the wife of the petitioner herein and who was also travelling as a passenger in the said Car, along with the petitioner, was examined as PW1. The PW1, in her evidence had adduced in her evidence that the driver of the car, while overtaking a sand laden lorry, saw a lorry coming in the opposite direction and in order to avoid hitting against the lorry dashed the car against the culvert. Further, even in the copy of FIR, which was marked as Ex.P1, the details regarding the manner of the accident was in consonance with the evidence adduced by the PW1. The Tribunal was of the opinion that the driver of the car, before overtaking the sand laden lorry should have taken care to find out whether any vehicle is coming from the opposite direction and if he had observed this, he should have judged whether he could overtake the sand laden lorry without causing any accident. In the instant case, the Tribunal was of the opinion that the driver of the car had driven the car very close to the sand laden lorry and then tried to overtake it without taking any precaution to find out whether any vehicle was coming from the opposite direction. As such, the Tribunal held that the accident was caused only by the negligence of the first respondent's driver and his carelessness in not following the traffic rules and regulations and also due to the highspeed at which he had driven the car.
10.The Tribunal, for assessing the injury sustained by the petitioner in the accident, examined Ex.P7, the Discharge Summary, issued by Gokulam Hospital, wherein the petitioner had taken treatment. In the Ex.P7, it has been stated that when the petitioner was admitted in the Hospital, both legs of him, were non-functional and that his uriumeral bone in the right leg and the neck of the temur bone in his right leg had been fractured and that he was given medical treatment here initially and subsequently he had been admitted at United Hospital on 06.12.2000 and taken treatment till 20.12.2000. At the time of the admission, it has been noted by the Medical Officers that the left leg of the petitioner was shorter than normal and that the leg was not straight, but tilted outwards; that there was a swelling in his hip and that the movements here were restricted to 100 Degree; that the petitioner had only 20 Degree to 25 Degree movement in bending; and 5 Degree in moving upward; to correct these defects, a surgery has been performed at the above hospital. Therefore, from an examination of the Ex.P7 and from the scrutiny of the Discharge Summary, issued by United Hospital, which was marked as Ex.P9, the Tribunal came to the conclusion that the petitioner had sustained disability due to the accident. From a scrutiny of Ex.P8, which is the Discharge Summary, it is evident that the petitioner had been taking treatment from 21.09.1997 to 08.10.1997. It was further observed that a surgery has been done on his leg, wherein a plate and a screw has been fixed in the petitioner's leg.
11.The Doctor, one Mr.Sridhar, had inspected the petitioner and taken X-ray on the petitioner's leg as has been marked as Ex.P12. During his examination, the Doctor has gone through the documents given at Gokulam Hospital as well as the documents given at United Hospital, wherein it was mentioned that surgeries were carried out to set the hip bone in order and further an artificial hip bone was also set in its place. Further, the Doctor has also seen that a plate and a screw had been fixed in the fractured Tibia bone in the left knee and that a bone has been taken from his hip and implanted in the fractured area and had further noticed that a plate and screw had been fixed in the fractured portion of the uriumerus bone in the right fore arm. During the period of inspection, the doctor has noticed that the petitioner has pain in his right fore arm and the muscles have become weak and that the petitioner's movement of his right arm joint is only from 30 Degree to 120 Degree and that the petitioner has not been able to use his right hand to perform his day to day works. Further, it was observed that the petitioner had pain, when moving his left knee due to the improper joining of the bones in his left knee and that the movements of his left knee were reduced. Further, it was observed that there was a shortening of length of left leg and his hip movements were restricted and painful and the flesh in these areas had reduced strength and that the petitioner had difficulty in squatting and sitting. As such, the Doctor assessed the permanent disability suffered by the petitioner as 60% and marked the Ex.P11, the Disability Certificate. Further, even on the cross-examination of the petitioner by the respondents, on the disability, they were not able to get any contradictory answers from him on this count and the respondents also did not procure the services of an expert Doctor to contradict this claim of the petitioner that the disability suffered by him in the accident was 60%. As such, the Tribunal did not feel that the Doctor, PW4 has given an exaggerated assessment on disability and hence took the disability sustained by the petitioner in the accident as 60%. The PW5 has adduced evidence that the petitioner that is a director in the said Nachiyammai Cotton Mills and that Exs.P16 and P17 are the certificates to prove his salary. The PW5 is the Secretary of the said mill. As such, the Tribunal accepted the evidence marked as Ex.P5 and took the salary of the deceased at the time of the accident as Rs.4,80,000/- per year. Further, the petitioner had taken treatment from 25.03.1997 till 20.12.2000 for the injuries sustained in the accident. That the petitioner was under treatment for a period of three years and nine months is evident on scrutiny of the Discharge Summary of Hospital marked as Ex.P9. As such, the Tribunal decided that he would have suffered a loss of income due to hospitalisation. For computing this, the Tribunal considered only the actual time spent by the petitioner in going to the Hospital and coming back and did not take the full period of three years and nine months as laid out in the claim due to the lack of evidence. As such, the compensation claimed by the petitioner as loss of income during this had taken treatment in three hospitals. The Tribunal awarded a sum of Rs.2,000/- for transport expenses incurred for going to the Hospital and a sum of Rs.10,000/- towards nutrition. Further, an award of Rs.2,000/- was granted towards damage to clothes and articles. On a scrutiny of Ex.P10, it is evident that the petitioner has spent a sum of Rs.1,39,123.64 towards medical expenses. As such, they granted an award of Rs.1,39,123.64 under this head. Further, taking into account the fractures sustained in the uriumeral and femur bones in the left and right legs and considering that these were grievous injuries and also taking into account the pain and suffering undergone by the petitioner during the period of treatment, the Tribunal granted a sum of Rs.1,00,000/- as award under the head and pain and suffering. Taking into account, that the petitioner had sustained 60% disability, the Tribunal had calculated 60% of Rs.4,80,000/- as Rs.3,88,000/- and awarded the same. Further, the Tribunal considering that this 60% disability of sustained by the petitioner may also affect his future earning capacity awarded a sum of Rs.2,88,000/-. In total, the Tribunal had awarded a total compensation of Rs.10,29,123/- to the petitioner.
12.The Tribunal directed the second respondent to deposit the said award with interest at the rate of 9% from the date of filing of the petition to till the date of payment of compensation into the credit of O.P.No.409 of 1999, on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Tract Court-I, Salem, within a period of one month from the date of its Order and also permitted the petitioner to withdraw the entire amount, after such deposit was made, immediately after deposit. The petitioner was permitted to receive excess Court fees paid by her on the award.
13.The learned counsel appearing for the appellant, in support of his case, cited a Division Bench Judgement made in 2005 (1) CTC 38, United India Insurance Company Ltd., Vs. Veluchamy and another, the head notes of which are as follows:
"Compensation in case of disability arising in non-fatal accidents In case of permanent or partial disablement Court can arrive at amount payable by multiplying annual loss of income by multiplier applicable to age on date of determining compensation Proper multiplier is prescribed in Clause 1 of II Schedule _ Percentage of permanent total disablement or permanent partial disablement arising out of injuries has to be arrived at as per Schedule I under Workmen's Compensation Act, 1923 However Court should not mechanically apply multiplier method to ascertain future loss of income or earning power in all non-fatal accident cases Compensation depends upon factors like nature and extent of disablement avocation of injured and manner in which disablement would affect employment or earning power of injured Multiplier method provided under II Schedule to Motor Vehicle Act, 1988 could be adopted if injured lost his employment or avocation completely and has to be idle till rest of his life and in such cases also same period as applicable to fatal cases need not be adopted."
14.The learned counsel appearing for the respondent has argued that the Motor Accident Claims Tribunal had well considered the nature of injuries, documentary evidence and evidence of parties and had then granted compensation. As such, no error is found the award and decree passed by the Motor Accident Claims Tribunal. The claimant is the director of three private concerns and earning a sum of Rs.40,000/- per month. Because of this accident, his normal life has been affected and has difficulty in performing his day to day work.
15.After going through the facts and circumstances of the case, appeal grounds and arguments advanced by the learned counsel on bothsides, the Court is of the view that the claimant is entitled to get compensation for grievous injuries sustained by him in the accident. The Tribunal's mode of compensation assessed was a little improper and the Court therefore, restructures the award as under for rectifying the minor error.
16.The Motor Accident Claims Tribunal had awarded a compensation under various heads as follows:
1.For loss of Income : Rs.1,00,000/-
17.This Court wants to make a following observation at this stage. Permanent disability gives rise to loss of earning power. It is only after taking into consideration the disability of 60%, the Tribunal decided to grant compensation for loss of earning capacity. In the Court's view, loss of earning power and loss of amenities are different concepts. But, it is not correct to say that the loss of earning power has no nexus or connection with permanent disability. In the present case, the claimant, is a person, aged about 52 years and was a Director of three Mils. The effect of such an accident on his life style, movements and mental agony and physical distress undergone by him and which may persist in the future also are imponderables, which the Court cannot assess correctly. This Court therefore, considers that the claimant is entitled to receive compensation under the head of loss of amenities in life. This Court also points out that the Tribunal has not taken a specific multiplier as contended by the appellant in computing loss of earnings due to permanent disability. They have only taken a yearly income of Rs.4,80,000/- of the claimant, in which there is no dispute, and then had calculated for disability of 60% of Rs.4,80,000/- erroneously as Rs.3,88,000/-, instead of Rs.2,88,000/-. As such, the Judgement cited by the learned counsel appearing for the appellant is not wholly applicable to this case.
18.Therefore, the Court awards the compensation as follows:
1.For 60% disability sustained by the petitioner : Rs.1,20,000/-
(taking Rs.2,000/- for 1% disability)
2.For pain and suffering : Rs. 50,000/-
3.For transport expenses : Rs. 10,000/-
4.For nutrition : Rs. 25,000/-
5.For medical expenses including medical bills : Rs.1,39,123/-
6.For damage to clothes : Rs. 2,000/- 7.For loss of income : Rs.3,00,000/- (As there is proof that the claimant had undergone treatment for a period of more than three years from 25.03.1997 to 20.12.2000, taking into account his yearly salary as Rs.4,80,000/-) 8.Compensation for loss of amenities in life for mental agony and physical distress : Rs.2,50,000/-
In total, this Court awards a compensation of Rs.8,96,123/- together with interest at the rate of 9% per annum from the date of filing the petition to till the date of payment, which is fair and equitable.
19.This appeal came before this Court on 16.03.2005, when this Court directed the appellant-Insurance Company to deposit the balance compensation amount, including interest and costs to the credit of O.P.No.408 of 1999, on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Tract Court-I, Salem. After deposited, the claimant was permitted to withdraw 50% of the award amount with entire accrued interest and costs.
20.It is open to the respondent/claimant to receive the balance amount lying to the credit of O.P.No.408 of 1999, on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Tract Court-I, Salem, by filing necessary payment out application in accordance with law. The excess amount of Rs.1,33,000/- with accrued interest, deposited by the appellant/United India Insurance Co., Ltd., can be withdrawn in the manner known to law.
21.In the result, the Civil Miscellaneous Appeal is partly allowed in the above terms and the award passed by the Motor Accidents Claims Tribunal, Additional District Judge, Fast Tract Court-I, Salem in O.P.No.408 of 1999 is modified. Consequently, connected miscellaneous petition is also closed. No costs.
08.12.2009 Index: Yes/No Internet: Yes/No krk To
1.Motor Vehicles Accident Claims Tribunal, Additional District Judge, Fast Tract Court-I, Salem.
2. The Section Officer, VR Section, High Court, Madras.
C.S.KARNAN, J.
krk Pre-deliver Order in C.M.A.No.280 of 2005 08.12.2009