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Judgment
P.P.S. Janarthana Raja, J.—The appeal is preferred by the appellant-Insurance Company against the judgment and Decree dated
03.03.2005 made in M.C.O.P. No. 1872 of 2002 on the file of the learned Motor Accidents Claim Tribunal, II Additional District Judge,
Tirunelveli.
Background facts in a nutshell are as follows:
The injured C.G.M. Antony met with motor traffic accident on 27.05.2002 at about 06.20Hrs. The said injured along with his wife and children
travelled in an auto bearing Registration No. TN-72-F-1978. The said auto was proceeding from K.T.C. Nagar to Tirunelveli junction. At that
time, a mini lorry bearing Registration No. TN-72-D-5392 belonging to the second respondent herein came from East to West direction on the
extreme left side of the said road in a rash and negligent manner and at high speed and hit the auto in which the injured claimant was travelling. Due
to the impact, the injured as well as the passengers sustained grievous injuries. Immediately, the injured was admitted in the hospital. He claimed a
sum of Rs. 30,00,000/- as compensation. The said mini lorry was insured with the appellant Insurance Company who resisted the claim. On
pleadings, the Tribunal framed the following issues:
On whose negligence, the accident had occurred?
Whether the claimant is entitled for compensation? If so, what is the amount and from whom?
After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of
the driver of the mini lorry insured with the appellant Insurance Company and awarded a compensation of Rs. 8,93,000/- with interest at 9% per
annum from the date of petition. The details of the compensation are as under:
For medical bills Rs. 74,000/-
For extra nourishment Rs. 5,000/-
For transport charges Rs. 5,000/-
For pain and sufferings and
loss of amenities Rs. 75,000/-
For future medical expenses Rs. 50,000/-
For permanent disability Rs. 60,000/-
For loss of earning power Rs. 6,24,000/-
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Total Rs. 8,93,000/-
Aggrieved by that award, the appellant-Insurance Company has filed the present appeal.
Learned Counsel appearing for the appellant-Insurance Company questioned only the quantum of compensation awarded by the Tribunal and
contended that the compensation awarded by the Tribunal is excessive, exorbitant and also without any basis and justification. He further
contended that when the Tribunal awarded compensation towards loss of earning power of Rs. 6,24,000/-, it ought not to have awarded a further
sum of Rs. 60,000/- towards permanent disability. Therefore, the award passed by the Tribunal is not in accordance with law and the same has to
be set aside. He further submitted that he is not disputing the amounts awarded towards other heads.
Learned Counsel appearing for the first respondent-claimant submitted that the Tribunal had considered all the relevant materials and evidence
on record and came to the right conclusion and awarded a just, fair and reasonable compensation. Hence the order of the Tribunal is in
accordance with law and the same has to be confirmed.
Heard the counsel on either side and perused the materials available on record. On the side of the first respondent-claimant, P.W.1 and P.W.2
were examined and documents Exs.P.1 to P.18 were marked. P.W.1 is the injured claimant. P.W.2 is Dr. Ramaguru. Ex.P.1 is the copy of First
Information Report. Ex.P.2 is the copy of rough sketch. Ex.P.3 is the copy of M.V.I. report for mini lorry. Ex.P.4 is the copy of M.V.I. report for
auto. Ex.P.5 is the copy of observation mahazar. Ex.P.6 is the copy of judgment made in S.T.C. No. 1853. Ex.P.7 is the copy of rough sketch.
Ex.P.8 is the medical receipt given by Devi Hospital, Tirunelveli. Ex.P.9 is the salary certificate of the claimant. Ex.P.10 is the memo given by the
Village-Inn Restaurant, Kuwait. Ex.P.11 is the termination notice given by the above Restaurant. Ex.P.12 is the employment details of the claimant
given by the above Restaurant. Ex.P.13 is the copy of passport. Ex.P.14 is the disability certificate. Ex.P.15 are the series of X-rays (7 Nos).
Ex.P.16 are the series of X-rays(2 Nos. ) Ex.P.17 are the series of CT Scan(2 Nos. ). Ex.P.18 is the CT Scan report. On the side of the
appellant-Insurance Company, R.W.1, Selvaraj, Regional Transport Officer and R.W.2, Lakshmi Narayanan, Officer in the Insurance Company
were examined and the documents Exs.R.1 and R.2 were marked. Ex.R.1 is the details regarding permit. Ex.R.2 is the copy of the Insurance
Policy. After considering the oral and documentary evidence, the Tribunal had given a categorical finding that the accident had occurred only due
to the rash and negligent driving of the driver of the mini lorry belonging to the second respondent. It is a question of fact and also it is based on
valid materials and evidence. Hence, the same is confirmed.
The injured claimant was 46 years old at the time of accident. In the evidence of P.W.1, it is stated that he was a Restaurant Manager in the
Village-Inn Restaurant, PO Box No. 20331, Soft 13064 Fahad Al Saleem, South Kuwait and he was earning a sum of Rs. 20,000/- per month.
Further in his evidence it is stated that it is only the driver of the mini lorry has caused the accident and he was charge sheeted by the Palayamkottai
Police Station in Crime No. 423 of 2002, under Sections 279, 337 and 338 of I.P.C. Further it was stated that due to the accident, he sustained
the following injuries:
3cm x 1cm lacerated injuries over left eye brow lateral end.
Bleeding over both nostril and mouth.
Deformity over left wrist joint with pain.
C/o pain over left upper thigh.
5cm x 1cm x 0.5cm lacerated injury over right knee
C/o pain over left side of chest.
X-ray: Left wrist with fore arm fracture radius Left Hip: Dislocation.
Injuries 3 and 4 are grievous and injuries 1,2,5 and 6 were simple.
Immediately after the accident, the injured claimant was admitted in the TVMC Hospital, Tirunelveli and later, he was admitted in the Devi
Hospital, Tirunelveli and took treatment as inpatient for the period of one month. P.W.2 is the doctor, who examined the injured on 08.04.2002.
Even though, he has not treated the injured, he determined the disability at 60% and the details regarding the same in Ex.P.14 are as follows:
This is to certify that C.G.M. Antony aged 48 years S/o S. Cruz Antony, B 209, Nootrandu Nagar, KTC Nagar, Tirunelveli is examined by me to
assess the disability on him due to an alleged cause of RTA due to the fracture left head of femur, left acetabulum, left callus fracture and fracture in
maxilla, surgeries are done. Now there is following disability:
pain in upper jaw, left hip and
left wrist = 15%
Chewing is difficult due to
mal-alignment of maxilla = 10%
Weakness of left forearm, hand
and left hip = 15%
Restriction of movement of
left forearm = 15%
Left wrist and left hip
arthritis left hip = 5%
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Total 60%
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The partial, permanent disability is at 60%. I have examined CT
Scan, X-rays and treatment particulars also.
Ex.P.14 is the disability certificate. Exs.P.15 and P.16 are X-rays. Exs.P.17 and P.18 are CT Scan reports. After considering the oral and
documentary evidence, the Tribunal accepted the disability at 60% as fixed by the doctor. There is no dispute regarding the same.
In respect of the income of the claimant, there is no concrete evidence to show that the claimant was earning a sum of Rs. 20,000/- per month.
He was working as a Restaurant Manager in the Village-Inn Restaurant, South Kuwait. He came for holidays and during that period, he met with
an accident. Because of this he was terminated from the job. Ex.P.11 is the termination letter. After taking into consideration the facts and
circumstances of the case, the Tribunal has fixed the monthly income of the injured claimant as Rs. 4,000/- and determined the annual income at
Rs. 48,000/-. After taking into consideration the nature of injuries and the evidence of the doctor, the Tribunal was of the view that the said 60%
disability will affect 100% earning capacity of the injured claimant. In the case of United India Insurance Company Ltd., Branch Officer Vs.
Veluchamy and Another, , the Division Bench of this Court has formulated certain guidelines to be followed in the matter of adopting multiplier
method, precisely in the case of permanent disability, which reads as follows.
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 extent 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 the 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 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 likelyhood 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.
The Supreme Court in the case of A.P.S.R.T.C. rep. by its Chief Law Officer V. M. Pentaiah Chary 2007 (2) TAC 152 , held as follows:
We therefore, fail to visualise that in a case of this nature a claimant can be deprived of a reasonable amount of Compensation despite the fact
that he has permanently lost his capacity to earn and remain dependent on other besides physical sufferance of such magnitude as to why the
multiplier suggested by the parliament should not be accepted.
We do not, however, intend to lay down a general law. We wish to point out that minimum Compensation payable in a case of this nature
should be considered from the sufferings of disability undergone by the victim. We are not suggesting that in certain situations, the multiplier
specified in the Second Schedule cannot and should not be altered but therefore there must exist strong circumstances.
Taking note of the principles enunciated in the above judgments, I feel that this is a fit case for adopting multiplier method. The Tribunal has also
correctly adopted the multiplier method. After taking into consideration the age of the deceased as 46, the Tribunal adopted the multiplier of ""13
and arrived at the loss of income at Rs. 6,24,000/-(Rs. 48,000/- � 13). The amount granted by the Tribunal is very reasonable and therefore,
the same is confirmed. In view of the Full Bench decision of this Court in the case of Cholan Roadways Corporation Limited v. Ahamed Thambi
and Ors. reported in 2006 (3) L.W.1025, that once the Tribunal awarded a compensation of Rs. 6,24,000/- towards loss of earning power, the
Tribunal ought not to have awarded compensation of Rs. 60,000/- towards loss due to permanent disability. Therefore, the amount awarded
towards loss due to permanent disability at Rs. 60,000/- is unwarranted and hence, the same is deleted.
In the case of Sri B.T. Krishnappa Vs. The Divisional Manager, United Insurance Company Ltd. and Another, , the Apex Court has considered
the relevant factors that are to be taken into consideration before awarding compensation in the injury cases and held as follows:
Although the Tribunal concluded by holding that the assessment of future loss of earnings should be made only at 20 per cent, we feel that the
High Court, while making the observation that the Tribunal''s compensation under the heads ""loss of amenities and enjoyment of life and loss of
earnings during laid up period"" was on the lower side, should have given reasons and made its own assessment under these heads, since High
Court, as the first appellate authority, is an authority both on facts and law. The High Court''s orders starkly lack in any details on assessment of
compensation under these heads. These areas need proper introspection and a more sensitive approach as the appellant being a mason and a
workman represent the weaker section of the community. The appellant had suffered an irreversible damage to his right leg which will pose
difficulties for him in carrying out his avocation as a mason. This Court in Concord of India Insurance Co. Ltd v. Nirmala Devi 1980 ACJ 55 , has
observed that:
...The jurisprudence of compensation for motor accidents must develop in the direction of no fault liability and the determination of the quantum
must be liberal, not niggardly since the law values life and limb in a free country in generous scales.... [at page 56, para 2]
In the case of Divisional Controller, Karnataka State Road Trans. Corporation v. Mahadeva Shetty 203 ACJ 1775 , where the claimant was
also a mason, this Court held that:
...It has to be borne in mind that compensation for loss of limb or life can hardly be weighed in golden scales. Bodily injury is nothing but a
deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance to the injury. An injury may bring about
many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to
damages for the mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life which has been curtailed
because of physical handicap. The normal expectation of life is impaired.... [at page 1780, para 15]
Long expectation of life is connected with earning capacity. If earning capacity is reduced, which is the case in the present situation, that
impacts the life expectancy as well.
Therefore, while fixing compensation in cases of injury affecting earning capacity the Court must remember:
...No amount of compensation can restore the physical frame of the appellant. That is why it has been said by Courts that whenever any amount is
determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury ''so far as money can
compensate'' because it is impossible to equate the money with the human suffering or personal deprivations. Money cannot renew a broken and
shattered physical frame. [See R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others,
Further, the Court in the same case also held that:
In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guesswork,
some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be
viewed with objective standards. [at page 370, para 12]
The disability affects the earning capacity of the injured claimant for the rest of his life. Therefore a sum of Rs. 20,000/- is now awarded towards
loss of expectation of life by following the above judgment of this Court cited supra. The Tribunal has also awarded a sum of Rs. 74,000/- towards
medical bills. Ex.P.8 are the series of medical bills. The injured claimant was in the Devi Hospital, Tirunelveli for a period of one month. It is an
actual expenditure. The amount awarded by the Tribunal towards this head is also very reasonable and hence, the same is confirmed. The Tribunal
has also awarded a sum of Rs. 5,000/- towards extra nourishment. Considering the fact that the injured claimant was in the hospital for a period of
more than a month, the amount awarded by the Tribunal towards this head is very low. Hence, the claimant is entitled to a sum of Rs. 7,500/-
towards extra nourishment as against a sum of Rs. 5,000/- awarded by the Tribunal. The Tribunal has also awarded a sum of Rs. 5,000/- towards
transport charges. The injured claimant has taken treatment in two different hospitals. There is no dispute that he would have certainly incurred
some expenses. Hence, it is reasonable to award a sum of Rs. 7,500/- towards transport expenses as against a sum of Rs. 5,000/- as awarded by
the Tribunal. The Tribunal has also awarded a sum of Rs. 75,000/- towards pain and suffering and loss of amenities. Taking into consideration the
age of the injured and also he has to attend his work always with the assistance of somebody else and he cannot do his day to day activities, the
amount awarded by the Tribunal towards this head is very reasonable and hence, the same is confirmed. Further, the Tribunal has awarded a sum
of Rs. 50,000/- towards future medical expenses. It is stated in the evidence of the doctor that the hip of the injured claimant has to be replaced
and it will also incur expenses. Therefore, the amount awarded by the Tribunal towards this head is very reasonable and hence, the same is
confirmed. It is also seen that the Tribunal has not awarded any sum towards attendant''s charges. After the accident, the injured claimant is unable
to walk and stand without the help of others and he is also moving with the help of a wheel chair. Hence, it is reasonable to award a sum of Rs.
25,000/- towards attendant''s charges. The Tribunal has also awarded an interest of 9% interest p.a. from the date of petition. After taking note of
the date of accident, and the date of award and also the prevailing interest during the period, the interest awarded by the Tribunal is modified to
7.5% from 9%.
The details of the modified compensation as per the above discussion are as under:
For medical bills Rs. 74,000/-
For extra nourishment Rs. 7,500/-
For transport charges Rs. 7,500/-
For pain and sufferings and
loss of amenities Rs. 75,000/-
For medical expenses Rs. 50,000/-
For loss of earning power Rs. 6,24,000/-
For attendant''s charges Rs. 25,000/-
For loss of expectation of
life Rs. 20,000/-
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Total Rs. 8,83,000/-
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The claimant is entitled to the modified compensation of Rs. 8,83,000/- with interest at 7.5% per annum from the date of petition as against a sum
of Rs. 8,93,000/- with interest at 9% per annum awarded by the Tribunal.
It is stated by the learned Counsel for the appellant that they have already deposited the entire award amount with accrued interest and the
injured claimant has also been permitted to withdraw 50% of the award amount by order of this Court dated 17.03.2006. Under these
circumstances, the claimant is permitted to withdraw the modified compensation of Rs. 8,83,000/- with 7.5% interest from the date of petition, less
the amount already withdrawn, on making proper application. The appellant is also permitted to withdraw the balance amount, on making proper
application.
With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs.