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Judgment
Krishnan Ramasamy, J
Challenging both the liability as well as the quantum of compensation awarded by the Motor Accidents Claims Tribunal, (Additional Sub Judge) Puducherry, in and by its award, dated 24.07.2018, passed in M.C.O.P.No.499 of 2015, the present Civil Miscellaneous Appeal is preferred by the appellant/Insurance Company.
The first respondent herein is the petitioner/claimant before the Tribunal. It is the case of the claimants that on 14.03.2012 at about 4.30 hours, when the claimant was travelling along with office staff in a Qualis Car, bearing Regn.No.PY-01-R-8089, from Pondicherry to Hogenekal, along Sengam to Sengarapettai Road, near Melsangam at Karumangulam, a Lorry, bearing Registration No.TN-29-AL-3979, driven by its driver came in a very and negligent and dashed against the Qualis Car, due to which, the Car turned upside down and thereby, the petitioner/claimant and other travelers were thrown away, and in the said accident, the claimant sustained grievous crush injuries. Since the accident occurred only due to the driver of the Lorry, the claimant filed a Claim Petition against the insured as well as the insurer, claiming a sum of Rs.10,00,000/- as compensation.
The owner of the offending Vehicle, the second respondent herein, the Insured, set ex parte before the Tribunal.
The Insurance Company resisted the Claim Petition by filing a Counter Statement, denying all the averments set out in the Claim Petition and prayed for dismissal of the Claim Petition.
Before the Tribunal, in order to prove the claim, claimant examined himself as P.W.1, besides examining one other witness as P.W.2 and marked sixteen documents as Exs.P.1 to P.16 and Ex.X1. On behalf of the Insurance Company, neither any witness was examined nor any document was marked.
The Tribunal, on the basis of both oral and documentary evidence held that the accident was on account of rash and negligent driving of the driver of the Lorry. By arriving at such conclusion, the Tribunal made the calculation under different heads and passed an award for a total sum of Rs.27,00,000/- with interest at the rate of 7.5% per annum from the date of Petition till payment as the compensation to the claimant and directed the Insurance Company to pay the amount and permitted them to recover the same from the owner of the Lorry. The break up details of the compensation amount awarded by the Tribunal are as follows ;-
Sl.No
Head
Award
1.
Pain and Suffering
Rs.3,00,000/
2.
Future Income
Rs.20,40,000/-
3.
Attender Charges
Rs.10,000/-
4.
Rich and Nutritious Food
Rs.25,000/-
5.
Transportation
Rs.25,000/-
6.
Loss of Future Prospects
Rs.3,00,000/-
7.
Total
Rs.27,00,000/-
Aggrieved by the quantum of compensation awarded by the Tribunal as well as the liability fastened on them, the Insurance Company has filed the present Appeal, as already stated above.
Liability :-
The learned counsel appearing for the appellant/Insurance Company would contend that the accident occurred solely due to the rash and negligent driving of the driver of the Qualis Car, bearing Regn.No.PY-01-R-8089, and therefore, the Tribunal ought not to have fastened the liability on the appellant/Insurance Company.
Per contra, the learned counsel for the first respondent/claimant would contend that in order to substantiate that the accident had occurred due to the negligent driving of the driver of the Qualis Car, the appellant/Insurance Company has not examined any witness and also not produced any document. In the absence of any evidence, either documentary or oral evidence, on the part of the appellant, the Tribunal based on the evidence of P.W.1 and P.W.2, and documents marked on the side of the claimant, viz., Ex.P.1, F.I.R. and Ex.P.6, Accident Inspection Report, came to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the Lorry, bearing Registration No.TN-29-AL-3979, owned by the second respondent herein, and therefore, fixed the entire liability on the appellant/Insurance Company, as being the insurer of the Lorry.
Admittedly, on behalf of the appellant/Insurance Company, no one was examined to substantiate that the accident had occurred due to the rash and negligent driving of the driver of the Qualis Car. Further, the appellant has not marked any documents denying the negligence. On the other hand, on behalf of the claimant, P.W.1 and P.W.2 were examined, and based on the evidence of P.W.1 and P.W.2 and Ex.P.1/FIR, and Ex.P.6, Accident Inspection Report, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the Lorry, and therefore, fixed the entire liability on the part of the owner of the Lorry and we do find any infirmity in the award passed by the Tribunal with respect to the fixation of liability. Therefore, the findings of the Tribunal with regard to liability aspect stands confirmed.
Quantum.
The learned counsel for the appellant/Insurance Company would contend that, in the present case, the Doctor attached to the Government Hospital, Puducherry, assessed the disability sustained by the claimant at 90%, and further, the claimant was referred to the Medical Board for examination, and the Medical Board issued a certificate, assessing his disability at 94%, which is also marked as Ex.X.1. Under these circumstances, with amputation of the right arm, he can work to some extent. Hence, the Tribunal could not have taken the disability at 100% and awarded the compensation towards Loss of Future Income. Further, the learned counsel contended that the Tribunal has awarded an exorbitant sum of Rs.3,00,000/- under the head, Pain and Suffering and the same requires suitable reduction. The learned counsel submitted that even the compensation awarded by the Tribunal under other heads are also exorbitant, and thus, sought for suitable reduction of the compensation amount awarded by the Tribunal under the aforesaid heads.
On the other hand, the learned counsel for the first respondent/claimant would contend that on account of the accident, the first respondent/claimant sustained grievous crush injury in the right arm with distal neuro vascular deficit with rigor mortis, complete occlusion of proximal right brachial artery, right above elbow amputated with laceration, contusion and abrasion all over the body resulting in permanent disability to the claimant, and therefore, he was admitted in the JIPMER Hospital, Chennai, and thereafter, shifted to MIOT Hospital, Chennai, and consequently, right elbow was amputated, and with these difficulties, he is finding it difficult to sit, walk or run and even to attend nature calls. Further, due to amputation of the right arm, the claimant cannot do any job and seek for any other employment opportunity. It is further submitted that since the claimant is aged about 22 years old at the time of the accident, and due to the disability sustained by him even at the young age, his marital prospects is also at brink. Therefore, the considering all these aspect, the Tribunal fixed the functional disability as 100% and awarded compensation for Loss of Income and the same is just and fair.
11.1 The learned counsel further submitted that the first respondent/claimant was working in a Private Concern, drawing a salary of Rs.10,000/-. In support of the same, Ex.P.16, Salary Certificate was marked and P.W.2 was examined, who deposed that the first respondent/claimant was drawing a sum of Rs.15,000/-. However, the Tribunal has fixed the income of the claimant at Rs.10,000/- and wrongly applied the multiplier method as '17', which resulted in awarding a lesser sum of Rs.20,40,000/-towards Future Income. The learned counsel pointed out that the claimant was 22 years old at the time of the accident and for the age group of 22 years, the multiplier applicable is '18' as held by the Hon'ble Supreme Court, in Sarala Verma Vs. Delhi Transport Corporation reported in [(2009) 5 LW 561] but the Tribunal has wrongly adopted the multiplier '17' and determined the compensation towards Loss of Future Income, and therefore, requires appropriate enhancement. Further, the Tribunal has failed to award anything towards future prospects and as held by the Hon'ble Supreme Court in re National Insurance Co. Ltd. Vs. Pranay Sethi and others, the claimant is entitled to 40% of the income towards future prospects.
On perusal of Ex.P.15, disability certificate issued by the Doctor attached to the Government Hospital, Puducherry, it is seen that the claimant sustained 90% disability. Further, the Medical Board also examined the claimant and issued disability certificate/Ex.X1, assessing the disability at 95%. Further, as per Ex.P.14, the right hand of the claimant was fully amputated and sustaining such disabilities, the claimant finds it very difficult to sit, walk or run and even to attend his nature calls and he is unable to carry on his day-to-day activities as before. Therefore, apart from monetary loss, due to the disability sustained by the claimant even at the young age, his marital prospects is also at brink and the claimant has to suffer throughout his life. Therefore, the Tribunal on considering Ex.P.15/Disability Certificate issued by the Doctor, attached to the Government Hospital, Puducherry, Ex.X.1, Disability Certificate issued by the Medical Board, and Ex.P.14, the document showing that the right hand of the claimant was fully amputated, and all other aspects, fixed the functional disability as 100% and awarded compensation accordingly for Loss of Income. Therefore, we do not find any infirmity in fixation of the disability by the Tribunal at 100%.
12.1 Insofar as the monthly income fixed by the Tribunal at Rs.10,000/- of income is concerned, though it is the contention of the learned counsel for the first respondent/claimant that the claimant was working as a Mechanic, and earning a sum of Rs.15,000/- per month and to prove the same, P.W.2 was examined and Ex.P.16, Salary Certificate was marked through P.W.2, we do not find any infirmity in fixation of the monthly income of the claimant at Rs.10,000/- by the Tribunal. However, so far as the multiplier method adopted by the Tribunal is concerned, as rightly pointed out by the learned counsel for the first respondent/claimant, the Tribunal has wrongly applied multiplier of '17', for the age group of 22, which is incorrect. Therefore, as held by the Hon'ble Supreme Court, in Sarala Verma Vs. Delhi Transport Corporation reported in [(2009) 5 LW 561] the multiplier applicable to the case on hand is '18'.
12.2 Apart from the above, the Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Pranay Sethi and others reported in 2017 2 TNMAC 609 (SC), categorically held that the Tribunal, at the time of awarding the compensation, had standardised that 40% of the monthly income of the claimant has to be added towards the future prospects, which the Tribunal has failed to do so in the present case, which resulted n awarding lesser sum of Rs.3,00,000/- towards future prospects. Therefore, the compensation awarded by the Tribunal towards Loss of Future Income is determined in the following manner:-
Rs.10,000/-+ 40% =14,000/-
Rs.14,000/- x 12 x 18 = Rs.30,24,000/-
12.3 Therefore, the compensation awarded by the Tribunal towards future income at Rs.20,40,000/- is modified and enhanced to Rs.30,24,000/-As far as the compensation under the head, Pain and Suffering at Rs.3,00,000/- we are of the view that the same is higher and reduced to Rs.2,00,000/-. Further, it is seen that the Tribunal has awarded a sum of Rs.10,000/- towards Attender Charges; Rs.25,000/- towards Rich and Nutritious Food; and Rs.25,000/- towards Transportation, and we feel the same to be just and proper, and the same stand confirmed. So far as the compensation awarded by the Tribunal towards loss of future prospects is concerned, we are of the view that there is no need to award compensation under a separate head Loss of Future Prospects, we club the same with the loss of future income. Therefore, we determine the total compensation awarded by the Tribunal in the following manner:-
Sl.No
Head
TribunalAward
High Court Award
Modified/confi rmed/
1.
Pain and Suffering
Rs.3,00,000/-
Rs.2,00,000/-
Modified
2.
Future Income
Rs.20,40,000/-
Rs.30,24,000/-
Modified
3.
Attender Charges
Rs.10,000/-
Rs.10,000/-
Confirmed
4.
Rich and Nutritious Food
Rs.25,000/-
Rs.25,000/-
Confirmed
5.
Transportation
Rs.25,000/
Rs.25,000/-
Confirmed
6.
Loss of Future Prospects
Rs.3,00,000/
Nil
Set aside
7.
Total
Rs.27,00,000/-
Rs.32,84,000/-
Consequently, the total compensation amount of Rs.27,00,000/-awarded by the Tribunal is hereby modified and enhanced to Rs.32,84,000/-
. The interest awarded by the Tribunal at the rate of 7.5% per annum is unaltered.
Therefore, we direct the appellant/Insurance Company to deposit the entire compensation amount of Rs.32,84,000/-with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit, after deducting the amount already deposited if any, within a period of eight weeks from the date of receipt of a copy of this judgment. Further, we direct the Tribunal to transfer the entire compensation amount to the claimant bank account by way of RTGS within a period of three weeks from the date of deposit made by the Insurance Company. The claimant is also directed to deposit the deficit Court fee, if any, before receiving the order copy.
In the result, the Civil Miscellaneous Appeal is partly allowed. No costs. Consequently, connected Miscellaneous Petition is closed.