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.409 of 1999, on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court-I, Salem, awarding a compensation of Rs.7,48,443/- 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 setting aside the order. It has been contended by the appellant that even according to PW2, OCU list, the first respondent has problem only in the right eye and has not lost the eye completely and as such the Tribunal has erred in relying on the assessment of PW2 to hold 100% disability, in spite of the fact that as per W.C. Schedule, the disability to be fixed for loss of vision in one eye is only 30%. It has also been contended that the Tribunal has erred in granting a huge sum of Rs.6,00,000/- towards loss of earning power in spite of the fact that the first respondent received a salary of Rs.10,50,000/- per annum for the year ending 31.03.2002 as per Ex.P15. Further, the Tribunal has also erred in granting Rs.1,00,000/- towards permanent disability relying on the incorrect assessment of 100% and as such the learned counsel appearing for the appellant has sought reconsideration of the excessive award granted to the claimant.
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. Her vision in the right eye is completely damaged. At the time of the accident, the petitioner was aged about 47 years. She was hale and healthy and was the Director in many spinning mills and was in charge in selecting cotton to these mills. Now, after the accident she is not able to work as earlier. The first respondent, the owner of the vehicle and the second respondent, the insurer of the vehicle are jointly and severally liable to pay compensation to the petitioner. The injured claimant has claimed a compensation of Rs.10,00,000/- from the respondents.
4.The finding of the Tribunal with regard to the negligence on the part of the driver of the car and the consequential liability fixed on the appellant-Insurance Company to compensate the claimant is not in dispute and the same is confirmed.
5.The contentions raised by the learned counsel appearing for the appellant is regarding disability assessed by doctor and on quantum of compensation.
6.Before the Tribunal, the injured claimant was examined as PW1. One Doctor, M.Elangovan, who assessed the disability of injured at 100% was examined as PW2; her husband, who was the co-passenger in the car was examined as PW3; the Secretary of the Nachammai Cotton Mills was examined as PW5. In support of this claim petition, Exs.P1 to P17 were marked. Ex.P5 is the Disability Certificate issued by the Doctor and the Ex.P14 and P15 are the Salary Certificate of the petitioner. Ex.P2 is the copy of Accident Register; Ex.P3 is the Discharge Summary of Gokulam Hospital; Ex.P5 is the Discharge Summary of Kovai Medical Centre and Ex.P6 is the Medical Bills; and Ex.P8 is the Discharge Summary of United Apollo Hospital.
7.The injured claimant in this case was aged about 47 years. Based on the evidence on record, the Tribunal fixed the income of the deceased claimant of Rs.3,60,000/- per anum. The Tribunal adopted the multiplier method and fixed the compensation for the disability at Rs.6,00,000/-. In addition to the same, the Tribunal also granted the following amounts as compensation.
1.For transport expenses : Rs. 2,000/-
2.For nutrition : Rs. 5,000/-
3.For damage to clothes and articles : Rs. 2,000/-
4.For medical expenses : Rs. 24,443/-
5.For pain and suffering : Rs. 15,000/-
6.For compensation of continuing permanent disability : Rs.1,00,000/-
In total, a sum of Rs.7,48,443/- was granted by the Tribunal as compensation to the petitioner.
8.It has been contended in the appeal that the OCU list, PW2, who has assessed the disability suffered by the petitioner as 100% has erred in this assessment as the petitioner had problem only in the right eye and that the petitioner has not lost her right eye and as such the disability fixed on this count should only have been 30%.
9.So, for coming to a conclusion in this regard, the Court examined the evidence given by the PW1 and the nature of injuries suffered by her. Ex.P2, the copy of the Accident Report given by Gokulam Hospital, Ex.P3, the Discharge Summary given by Gokulam Hospital and Ex.P4, the Discharge Summary given by Kovai Medical Centre has been marked as evidence by the petitioner. From a scrutiny of the Ex.P2, it is evident that the petitioner had sustained tear injuries of 8 Cms. depth in her head due to which the front bones of the Skull were exposed, a 2 Cms. tear on her nose and a tear injury from the cheek of the left side of her face upto the right eye. From an examination of Ex.P3, the Discharge Summary, it is seen that the petitioner has suffered facial paralysis and that the petitioner's eyes have been medically treated in order to restore her normal version. Further, it is seen from Ex.P4, that the petitioner's 6th nerve in the front of her fact has been affected and that the tear injuries sustained by the petitioner in her forehead and face have been surgically stitched and that bandages have been applied in these portions during medical treatment of injuries on her fact. The Doctor, who gave the Disability Certificate to the petitioner has been examined as PW2. The PW2, on inspection of the petitioner has adduced evidence that due to the loss of flesh, adjacent to the right eye and which is instrumental in the movement of the right eye, the petitioner has double or flurred vision in her right eye and further certified that this could not be rectified by any medical treatment and certified that the petitioner has 100% disability and marked Ex.P5, the Disability Certificate. Even on cross-examination, the PW2 has stated that wearing of spectacles would not solve this defect. The Tribunal therefore, taking into consideration that the disability for loss of vision in two eyes could be taken as 100% as per Workmen Compensation Rules, Schedule 1, Item 4, concluded that the petitioner had sustained 100% disability.
10.Coming to the second contention of the appellant that the Tribunal had erred in granting a sum of Rs.6,00,000/- to the petitioner for loss of earning power when in fact, the petitioner had received a salary of Rs.10,50,000/- per annum for the year ending 31.03.2002 as per Ex.P15, the Court scrutinised the evidence and findings of the Tribunal on this point. Based on documentary evidence the Tribunal had taken the yearly salary of the petitioner as Rs.3,60,000/-. Further, the Tribunal considering the age of the petitioner was 47 years at the time of the accident and taking into account that the petitioner could have worked as a Director till she was 60 years old if she had not lost her vision, adopted a multiplier of 13 to assess loss of future earnings and considering that the disability suffered by the petitioner was 100%, calculated that the loss of future earnings of the petitioner was Rs.3,60,000/- X 13 = Rs.46,80,000/-. But, the Tribunal considering that the petitioner had claimed only Rs.6,00,000/- for loss of earning capacity held that the petitioner was entitled to receive Rs.6,00,000/- as compensation under this head. Further, the Tribunal taking into account that the petitioner had sustained 100% permanent disability held that the petitioner was entitled to receive a sum of Rs.1,00,000/- for 100% disability. Further, the Salary Certificate has been issued by the Secretary and Finance Manager of Nachammai Cotton Mills, in his evidence on being examined as PW5 and this has been marked as Ex.P4. In this, it has been stated that the salary received for the year ending 31.03.1997 was Rs.3,60,000/- per annum and as per Ex.P15, the salary received by the petitioner for the year ending 31.03.2002 was Rs.10,50,000/-.
11.The learned counsel appearing for the first respondent argued that though the Tribunal calculated the compensation on multiplier method, the same was not adopted fully. Instead of that the Tribunal had awarded only Rs.7,48,443/- together with interest at the rate of 9% per annum. So, the appeal challenging the quantum of the compensation is not proper.
12.For the foregoing reasons and the consideration of the facts and circumstances of the case, this Court opines that the amount of compensation awarded is not correct and there is an error in the award amounts and also an error under heads under which it was given.
13.The Tribunal had awarded compensation as follows:
1.For loss of income due to reduced earning capacity : Rs.6,00,000/-
14.This Court wants to make the following observations at this stage. Permanent disability gives rise to loss of earning power. It is only after taking into consideration the permanent disability of 100%, the Tribunal decided to grant compensation for loss of earning capacity. But this Court, on consideration of the fact that the claimant had lost only one eye holds that the disability percentage fixed in this aspect could be taken only as 50%. Further, as the earning capacity of the claimant has not been reduced on this count, no compensation can be granted on the multiplier method, as perused by the Tribunal and only a lumpsum amount can be awarded for the permanent disability sustained by the claimant. As such, this Court grants a lumpsum compensation of Rs.1,00,000/- for 50% disability sustained by the claimant in the accident.
15.In the present case, the claimant is a person aged about 47 years and was a Director of a Private Company. The effect of such an accident on her life style, especially considering that she had lost her vision in one year, he movements and the physical distress and mental agony undergone by her and which may persist in the future also, which are imponderables, which the Court cannot assess with precision, this Court is of the view that the claimant is entitled to receive compensation under the head of loss of amenities in life.
16.Therefore, the Court awards compensation as follows:
1.For 50% disability sustained by the petitioner : Rs.1,00,000/-
(taking Rs.2,000/- for 1% disability) 2.For transport expenses : Rs. 5,000/- 3.For nutrition : Rs. 10,000/- 4.For damage to articles : Rs. 2,000/- 5.For medical expenses : Rs. 24,443/- 6.For pain and suffering : Rs. 50,000/- 7.For physical distress : Rs.1,00,000/- 8.For mental agony : Rs. 75,000/- (for disfigurement of face) 9.Loss of income during the period of treatment for six months (Rs.30,000 X 6) : Rs.1,80,000 (One eye vision totally lost) ------------------- Rs.5,46,443 --------------------
In total, this Court awards a compensation of Rs.5,46,443, 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.
17.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.409 of 1999, on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court-I, Salem. After deposited, the claimant was permitted to withdraw 50% of the award amount with entire accrued interest and costs.
18.It is open to the first respondent/claimant to receive the balance amount lying to the credit of O.P.No.409 of 1999, on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court-I, Salem, by filing necessary payment out application in accordance with law. The excess amount of Rs.2,02,000/- with accrued interest, deposited by the appellant/United India Insurance Co., Ltd., can be withdrawn in the manner known to law.
19.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 Track Court-I, Salem in O.P.No.409 of 1999 is modified. Consequently, connected miscellaneous petition is also closed. No costs.
krk To
1.Motor Vehicles Accident Claims Tribunal, Additional District Judge, Fast Track Court-I, Salem.
2. The Section Officer, VR Section, High Court, Madras