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Judgment
D. Hariparanthaman, J.—This Civil Miscellaneous Appeal has been filed by the appellant against the order and decree dated 23.04.2007 made in M.C.O.P. No. 2417 of 2001 on the file of the Motor Accidents Claims Tribunal - II Additional Sub Court, Madurai.
The appellant is the Insurance Company. The first respondent in the appeal is the claimant. The claimant was a driver employed by the Tamil Nadu State Transport Corporation, Madurai Division I, a Government of Tamil Nadu undertaking. On 24.08.2000, while he was driving a bus near Manimoortheeswaran Vilakku at Thachanaullur-Tirunelveli road, a lorry which was insured with the appellant Insurance Company, bearing registration No. TN-72-C-6877, hit against the bus in direct collusion, while overtaking a Maruthi Car, which resulted in severe injuries on the right leg of the claimant. Many passengers also received injuries. The claimant was immediately admitted in Tirunelveli Medical College Hospital and he was there upto 25.08.2000 and thereafter, he was admitted as an inpatient in Government Rajaji Hospital, Madurai from 26.08.2000 to 05.09.2000. He took treatment as outpatient from one Dr. Muthuvel Rajan from 10.11.2000 to 20.03.2001. Thereafter, he was admitted as an inpatient in Christian Hospital, Madurai from 31.07.2001 to 18.08.2001 and a surgery was performed on the right ankle of the claimant in the said hospital. In view of the accident, the claimant could not drive bus. He could not climb stairs; he could not squat on the floor and he could not sit cross legged. The doctor certified that he suffered 33% permanent partial disability. He was disqualified to drive bus. The Transport Corporation sent him before the Medical Board. The Medical Board found him unfit to hold the post of driver. Hence, he was removed vide order dated 05.02.2002 from service. From 24.08.2000 i.e. the date of accident, till 05.02.2002, he was not paid salary as he did not have medical leave to his credit. In these circumstances, he filed M.C.O.P. No. 2417 of 2001 claiming Rs. 15,00,000/- as compensation. Before the Tribunal the claimant examined four witnesses including himself and also marked documents Exs.P.1 to P.30. The appellant herein did not examine any witness and also did not produce any document. The Tribunal passed an award dated 23.04.2007 awarding a sum of Rs. 9,77,000/- as compensation with 7.5% interest and costs. The present appeal is against the said order.
Heard the learned Counsel for both sides.
The Tribunal awarded a sum of Rs. 9,77,000/- under the following heads:
i) for loss of income Rs. 8,50,000 ii) for medical expenses Rs. 60,000 iii)for pain and sufferings Rs. 20,000 iv) for permanent disability Rs. 23,000 v) for loss of amenities Rs. 10,000 vi) for transport expenses Rs. 4,000 vii)for extra nourishment Rs. 10,000 ------------ Rs. 9,77,000 ------------
The learned Counsel for the appellant submits that though he lost his employment as a driver in the Transport Corporation, he should have tried for an alternative job with the Transport Corporation. In any event, he submits that since he did not suffer 100% disability, he could perform some other duty and therefore, the Tribunal was not justified in granting a sum of Rs. 8,50,000/- as compensation for loss of earning. Secondly, it is further submitted that when Rs. 8,50,000/- was awarded as compensation for loss of earning, the Tribunal was not justified in granting a sum of Rs. 23,000/- towards disability compensation. Thirdly, it is submitted that the loss of income, gratuity, bonus was arrived at Rs. 12,00,000/- by the Tribunal. The Tribunal is not correct in taking Rs.12,00,000/- as the loss of earning by the appellant due to the accident, for granting Rs. 8,50,000/- as compensation for loss of income.
According to the learned Counsel for the appellant, the Tribunal ought to have applied a proper multiplier after deducting 1/3rd from his monthly wages that he received at the time of the accident. It is submitted that the claimant received a sum of Rs. 7,000/- as wages at the time of accident. As far as multiplier is concerned, the learned Counsel submits that the proper multiplier should be adopted, without mentioning what is the proper multiplier.
On the other hand, the learned Counsel for the claimant seeks to sustain the award of the Tribunal. It is submitted by the learned Counsel for the claimant that he could not be found fault for not seeking other employment. It is submitted that the Transport Corporation did not offer any alternate employment. It is stated that the claimant could not do any work than the driving work. It is further submitted that the Transport Corporation owned by the Tamil Nadu State Government gave a certificate on 05.04.2002 stating that the loss of salary to the petitioner was Rs. 10,42,164/-, loss of bonus was Rs. 22,500/- and loss of gratuity was Rs. 1,40,253/-. The Tribunal is justified in acting on the certificate issued by the Transport Corporation. In fact, the learned Counsel submits that the claimant is entitled to more compensation. It is submitted that the amount given to him towards pain and suffering and loss of amenities, are only on the lower side. Hence, he prays for non-interference by this Court.
I have considered the submissions made on either side. The learned Counsel for the appellant does not dispute that the claimant lost the employment as driver with Transport Corporation. In fact, Ex.P.26 is the order dated 05.02.2002 removing the petitioner from service based on the report of the Medical Board finding unfit to hold the post of the driver. The learned Counsel for the appellant argues that he could do other jobs. On the other hand, the claimant examined himself and deposed categorically that he knew driving only and he could not do the same due to the accident.
Hence, the learned Counsel for the appellant is not correct in finding fault with the claimant for not taking up any other employment for his livelihood and being satisfied with the pension amount of Rs. 1,999/- as pension and the compensation amount as ordered by the Tribunal.
I am not in agreement with the submission, of the appellant, since the Corporation issued a certificate dated 05.02.2002 and the same was marked as Ex.P.27 and also a Senior Assistant in the Corporation was examined as P.W.3. As per Ex.P.27, the claimant suffered loss in salary to the tune of Rs. 10,42,864/-, loss in bonus to the tune of Rs. 22,500/- and loss in gratuity to the tune of Rs. 1,40,253/- due to his loss of employment. Hence, I do not find any infirmity in the order of the Tribunal by deducting a sum of Rs. 3,50,000/- and awarding a sum of Rs. 8,50,000/-towards loss of income. Even otherwise, it is admitted that the claimant was receiving a sum of Rs. 7,000/- as salary at the time of the accident. As per the decision of the Apex Court in Sharla Varma case reported in 2009 (4) MLJ 997, 1/3rd of the salary has to be added towards future prospects. In the case of injury, no deduction could be made as per the Division Bench judgment of this Court held in United India Insurance Co. Limited v. S. Saravanan and Anr. reported in 2009 (2) TNMAC 103 (DB). Hence, the monthly loss of salary could be arrived at Rs. 10,500 (Rs. 7000 + Rs. 3500). He was aged about 47 years at the time of the accident. As per Sharla Varma''s case reported in 2009 (4) MLJ 997, the proper multiplier is "13". Even according to the Schedule provided in Motor Vehicles Act, the proper multiplier is "13". Even if it is taken as "10" as multiplier, the compensation could be arrived at Rs. 8,50,000/-.
It is also submitted by the learned Counsel for the claimant that had he continued in service and retired on reaching the age of superannuation, he could have received a better pension. This aspect was not taken note of by the Tribunal. In these circumstances, I do not find any infirmity in the order of the Tribunal for fixing a sum of Rs. 8,50,000/- towards loss of earning.
The learned Counsel for the appellant submits that when the Doctor certified that the claimant suffered 33% permanent partial disability, the Tribunal took it as 23% and awarded a sum of Rs. 23,000/- as compensation towards disability. According to him, when loss of earning is compensated by awarding a sum of Rs. 8,50,000/-, the Tribunal was not justified in awarding a sum of Rs. 23,000/- towards disability compensation. On the other hand, the learned Counsel for the claimant submits that it is not known as to why the Tribunal arrived at 23% disability when the Doctor''s certificate states that the claimant suffered 33% disability. The learned Counsel for the claimant relies on the decision of a Division Bench of this Court reported in United India Insurance Company Ltd., Branch Officer Vs. Veluchamy and Another, and submits that there is nothing wrong in awarding disability compensation while awarding for the loss of income.
Since the amount involved is merely a sum of Rs. 23,000/- and as rightly contended by the learned Counsel for the claimant that the amount awarded in other heads namely pain and suffering, loss of amenities and transport charges are on lower side, I am not inclined to interfere with the award of the Tribunal. That is, even if Rs. 23,000/- awarded towards disability compensation is deleted, the claimant is entitled to enhanced amount towards "pain and sufferings and loss of amenities and enjoyment of life".
Accordingly the appeal fails and the same is dismissed. Consequently, the connected miscellaneous petition is dismissed. No costs.