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Judgment
G. Rajasuria, J.—C.M.A.(MD)No. 13 of 2004 and C.M.A.(MD)No. 314 of 2005 are focussed as against the Judgment and Decree dated
24.02.2004 passed in MCOP. No. 8 of 2002 by the Motor Accidents Claims Tribunal cum Sub Court, Kulithalai.
Animadverting upon the alleged lesser compensation awarded by the Tribunal, the claimant filed the appeal in C.M.A.(MD)No. 13 of 2004, on
the ground that consequent upon the permanent disability sustained by the claimant in the accident, he had to voluntarily retire from his service as
Oiler"" in the E.I.D Parry Company and as such, the compensation awarded has to be enhanced. It is also the contention of the injured that there
was no contributory negligence on his part; no medical evidence has been adduced to prove that he was under the influence of alcohol and invited
the accident.
Whereas challenging the quantum of compensation awarded by the Tribunal, the State Transport Corporation filed the appeal in C.M.A.
(MD)No. 314 of 2005, on the ground that the injured was in a drunken mood and that he only invited the accident and the State Transport
Corporation was not at all liable to pay any compensation and furthermore, the same is on the higher side.
The points for consideration in both the appeals are:
(i) Whether the injured or the driver of the Government Jeep bearing Registration No. TML-5668 was responsible for the accident?
(ii) Whether the compensation awarded by the Tribunal was just and proper?
Point No:(i)
The perusal of the judgment of the Tribunal would clearly highlight that at paragraph No. 7, the Tribunal adhering to the decision of the
Honourable Apex Court reported in 1972 SCC (Cri) 178, held that in the absence of medical evidence to prove the drunkenness of the injured,
the Court should not conclusively hold that the injured was in a state of intoxication at the time of the accident. Nonetheless, the Tribunal simply in
the very next line after giving the aforesaid finding held that the injured also contributed for the accident as the Tribunal had a doubt that the injured
was in a drunken mood. The Tribunal should give a clear finding and it cannot approbate and reprobate; blow hot and cold.
The learned Counsel for the injured convincingly placing reliance on the evidence of P.W.4, the Doctor, would develop his argument that at the
earliest point of time, P.W.4 smelled alcohol from the breathe of the injured, but he hastened to add that he could not notice that the injured was in
a state of intoxication. Put simply, according to the Doctor, the injured was steady. In such a case, this piece of evidence ought not to have been
simply ignored and merely based on suspicion, the Tribunal was not justified in fixing contributory negligence on the part of the pedestrian.
The perusal of Ex.P.1, the certified copy of the F.I.R and Ex.P.3, the sketch, would clearly highlight that the accident occurred on the northern
portion of Trichy - Karur main road. The injured himself before the police clearly gave his version to the effect that he was proceeding from west
to east adhering to the left side, so to say, along the northern extreme portion of the said road and the offending jeep which came from east to west
in the opposite direction, adhering to the right hand side of the driver i.e., on the wrong side of the road, dashed as against him and caused injuries
to him.
Whereas, R.W.1, the driver of the offending vehicle would artificially and unconvincingly narrate the accident to the effect that while he was
driving the jeep negotiating along the said road from east to west direction, at a distance of 20 feet, he sighted the injured crossing the road and
that the injured invited the accident; no sooner the driver approached him after the accident, he could smell alcohol from the injured, whereupon he
was taken to the hospital.
The pertinent question arises as to what prevented the driver of the offending vehicle not to apply suddenly the brake on seeing the injured at the
distance of 20 feet while the injured allegedly crossing the road and that too in a drunken mood.
If really, the injured crossed the road, it is not known as to how the vehicle found on the northern extreme of the road as revealed by the
sketch, Ex.P.3.
R.W.1 is the interested witness and for that matter, P.W.1 is also one of that category. In such a case, this Court should seek for independent
witness. At once, it is clear that P.W.3, is an independent witness who would corroborate the evidence of P.W.1 to the effect that the fault was on
the part of the driver of the offending vehicle. Hence, in this view of the matter, I am of the considered opinion that the Tribunal fell into error in
assuming as though the injured was in a drunken mood and that he also contributed for the accident.
It is common or garden principle that the driver of the four wheeler is expected to drive the vehicle without causing peril to the other road
users; throwing to winds this principle, the driver of the offending vehicle drove the vehicle in a rash and negligent manner and caused the accident.
Hence, in this view of the matter, the Tribunal was not justified in fastening the responsibility on the injured also partly as though he contributed for
the accident. Accordingly, point No. (i) is decided in favour of the injured and as against the State Transport Corporation.
Point No:(ii)
The learned Counsel for the claimant would argue that the multiplier system applied is just and proper as consequent upon the injury sustained
by the claimant, he was compelled to resign his job by the end of 31st May 2002.
A cumulative reading of Exs.A.5 and A.6 would demonstrate that ever since the accident, the injured did not attend his work and that by the
end of 31st May 2002, he resigned voluntarily his job. It is a trite proposition of law that in factories and other organisations, handicapped persons
are not expected to be terminated from service, but suitable light work has to be given.
Taking a cue from the Schedule I, Part II, Serial No. 20 to the Workmen''s Compensation Act, 1923, the loss of earning capacity quantified
even for amputation below knee is 50%. But, here, there is no amputation and there was only fracture of both bones of right leg and plate was
fitted into his leg. In such a case, I am of the considered opinion that his loss of earning capacity could be quantified at 40% and it cannot be held
that there is total loss of earning capacity. However, in the Workmen''s Compensation Act, certain injuries are prescribed as over tantamounting to
total permanent disability, but here obviously that is not the case.
My mind is redolent with the decision in United India Insurance Company Ltd., Branch Officer Vs. Veluchamy and Another, . An excerpt
from it, would run thus:
The following principles emerge from the above discussion:
(a) In all case of injury or permanent disablement ""multiplier method"" cannot be mechanically applied to ascertain the future loss of income or
earning power.
(b) It depends upon various factors such as nature and extend of disablement, avocation of the injured and whether it would affect his employment
or earning power etc., and if so, to what extent?
(c)(1) If there is categorical evidence that because of injury and consequential disability, the injured lost his employment or avocation completely
and has to be idle till the rest of his life, in that event loss of income or earning may be ascertained by applying ""multiplier method"" as provided
under Second Schedule to the Motor Vehicles Act, 1988.
(2) Even, if so there is no need to adopt the same period as that of fatal cases as provided under the Schedule. If there is no amputation and if
there is evidence to show that there is likelihood of reduction or improvement in future years, lesser period may be adopted for ascertainment of
loss of income.
(d) Mainly it depends upon the avocation or profession or nature of employment being attended by the injured at the time of accident.
By applying the aforesaid decisions to the facts and circumstances of this case, it is clear that it cannot be stated that the injured had been made
to lead a vegetative life. No doubt, the injured was constrained to resign his job which was voluntary in nature and no one compelled him to leave
the job. Hence, in these circumstances, the multiplier system adopted was not tenable.
For the 40% permanent disability sustained by the injured, at the rate of Rs. 2,000/- for each percentage, Rs. 80,000/- could be awarded.
From A.4 and A.6, it is clear that for about nine months, in view of the accident, the injured could not work at all and as per Ex.A.4, the salary
certificate, he was earning Rs. 4,000/- per mensum at the time of the accident. Accordingly, for the loss of income during the treatment period and
the convalescent period, a sum of Rs. 36,000/- (Rs. 4,000/- X 9 = Rs. 36,000/-) could be awarded. It is common knowledge that even if a
person takes treatment in Government Hospital, he might incur expenditure. Towards medical expenses, a sum of Rs. 10,000/- could be fixed
even though he took treatment only in the Government Hospital. Hence, towards transport expenses, a sum of Rs. 5,000/- would be proper. For
nutritious food, a sum of Rs. 5,000/- could be awarded. Towards loss of amenities, I am of the considered opinion that a sum of Rs. 34,000/-
should be awarded as actually the fracture sustained, prevented him from working as well as following his avocation in the normal course and he
cannot also behave like any other human beings and enjoy life. Towards pain and sufferings, a sum of Rs. 30,000/- could be awarded because of
the complicated fracture sustained by him. Accordingly, the total compensation would come to Rs. 2,00,000/-.
(i) For Permanent disability - Rs. 80,000.00
(ii) For loss of income - Rs. 36,000.00
(iii) For Medical Expenses - Rs. 10,000.00
(iv) For Transport Expenses - Rs. 5,000.00
(v) For Nutritious Food - Rs. 5,000.00
(vi) For Loss of Amenities - Rs. 34,000.00
(vii) For Pain and Sufferings - Rs. 30,000.00
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Total - Rs. 2,00,000.00
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As such, the total compensation awarded by the Tribunal does tally with the assessment made by me supra, even though the Tribunal was not
justified in its ratiocination in arriving at the total compensation of Rs. 2,00,000/-. The ultimate conclusion in assessing the compensation would
come to Rs. 2,00,000/- which could be confirmed. Accordingly, Point No. (ii) is also decided.
The learned Counsel for the State Transport Corporation in an extempore manner would submit that the rate of interest has not been found
fixed at all in the award of the Tribunal. It is quite obvious that adhering to the decision of the decision in Tamil Nadu State Transport Corporation
Ltd. Vs. S. Rajapriya and Others, , 7.5% per annum could be fixed.
In the result, both the appeals fail and the same are dismissed confirming the award which shall also carry the interest at the rate of 7.5% p.a
from the date of filing of the petition till the date of deposit. No costs.