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Judgment
C.S. Karnan, J.—The appellant/second respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P. No. 58 of 2005, on the file of Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Virudhunagar District, Srivilliputur. The short facts of the case are as follows:-
The petitioner has filed the claim in M.C.O.P. No. 58 of 2005, claiming compensation of a sum of Rs. 4,00,000/- from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that on 14.09.1997, when the petitioner was traveling as a passenger in the first respondent''s ambassador car bearing registration No. TN-72-Z-6060, from Thiruvillipuhur to Salem and at about 6 a.m., when the car had proceeded just beyond Mallur and Sivarambiga petrol bunk and near Nilavarapatti, the driver of the car drove the car at a high speed and in a rash and negligent manner and dashed the car against the bus coming in the opposite direction. In the results, the skin of the petitioner''s right cheek had been sheared of his face, and he had also sustained fracture of his right clavicle bone and lower jaw bone and dislocation of his teeth and also sustained injuries all over his body. He was admitted at the Salem Government Hospital, wherein he received treatment from 14.09.1997 to 17.09.1997. Subsequently, he received treatment under Dr. Gopalakrishnan and Dr. Mathiazhagan at Rajapalayam and also received treatment under Dr. Prabhu in Madurai. A surgery was conducted in the face of the petitioner. At the time of accident, he was working as an Assistant Medical Officer at Government Hospital. Due to the injuries sustained by him, he is unable to lift or lower his arms and as his face has been disfigured, he is unable to talk with patients and his friends. Due to dislocation of his teeth, he is not able to talk continuously. Hence, the petitioner has filed the claim against the first and second respondents, who are the owner and insurer of the ambassador car bearing registration No. TN-72-Z-6060.
The second respondent, in his counter has submitted that the driver of the ambassador car bearing registration No. TN-72-Z-6060, drove the car at a normal speed in a careful and cautious manner and that when the car was near Sivarambika petrol bunk, the driver of the bus, coming in the opposite direction, had driven the bus at a high speed and in a rash and negligent manner and dashed it against the car. It was submitted that as the driver and insurer of the bus involved in the accident had not been added as necessary parties, it renders the claim not maintainable. The averments in the claim regarding age, income and occupation of the petitioner was also not admitted. The averments in the claim regarding nature of injuries sustained, medical treatment taken, disability and disfigurement of face of petitioner was also not admitted. It was submitted that the petitioner had sustained only simple injuries and that they had healed completely. It was submitted that the claim was excessive.
The Motor Accidents Claims Tribunal had framed two issues for consideration in the case, viz.,
(i) Due to whose negligence was the accident caused?
(ii) What is the quantum of compensation which the petitioner is entitled to get? Who is liable to pay the said compensation?
On the petitioner''s side, three witnesses were examined and twenty three documents were marked as Exs. P1 to P23, viz., Ex. P1-First Information Report, Ex. P2-wound certificate, Ex. P3-discharge summary, Ex. P4-medical certificate, Ex. P5-payment receipt, Ex. P6-admission and discharge summary, Ex. P7-medical bills (series), Ex. P8-bills for Rs. 10,000/-, Ex. P9-taxi fare receipt for Rs. 2275/-, Ex. P10-taxi fare receipt for Rs. 150/-, Ex. P11-taxi fare receipt for Rs. 150/-, Ex. P12-taxi fare receipt for Rs. 3600/-, Ex. P13-taxi fare receipt for Rs. 150/-, Ex. P14-taxi fare receipt for Rs. 150/-, Ex. P15-a photograph of petitioner, which was taken before the accident, Exs. P16 and P17-X-ray (series), Ex. P18-disability certificate, Ex. P19-disability certificate for dislocation of teeth, Ex. P20-X-ray (series), Ex. P21-Income Tax particulars for the year 1995-1996, which was paid by the claimant, Ex. P22-Income Tax particulars for the year 1996-1997, which was paid by the claimant, Ex. P23-salary certificate. On the side of the respondents, no witnesses, no documents.
P.W. 1, the petitioner had adduced evidence which is corroborative of the statements made by him in the claim regarding manner of accident. He had further deposed that he had taken treatment at Salem Government Hospital from 14.09.1997 to 17.09.1997 and that a surgery was conducted on his right cheek. He deposed that he had subsequently taken treatment as an inpatient at Hospital under Dr. Gopalakrishnan at Rajapalayam from 18.09.1997 to 21.09.1997 and that another surgery was conducted here. He deposed that he had taken further treatment at a private hospital under Dr. Mathiazhagan, at Rajapalayam, from 22.09.1997 to 13.10.1997 and that a surgery was conducted at steel plates were fixed in his left lower jaw to set-right the fracture of bone. He deposed that he had further taken treatment under a Dentist, viz., Dr. Prabhu. Due to pain in his lower jaw, the plates fixed in his left lower jaw was removed on 26.06.2003. He deposed that due to the injuries sustained in the accident, his face had been disfigured. In support of his evidence, he had marked the exhibits listed as Exs. P1 to P23.
Though it was contended on the side of the second respondent that the accident had occurred only due to the negligence of the bus driver, the second respondent had not taken any steps to examine either the driver of the bus or the driver of the ambassador car to prove his contentions. Hence, the Tribunal, on scrutiny of Ex. P1, F.I.R., Ex. P2-wound certificate and Ex. P3-discharge summary and on scrutiny of evidence of P.W. 1, held that the accident had been caused by the rash and negligent driving of the first respondent''s ambassador car.
P.W. 2, Dr. Mathiazhagan had deposed in his evidence that he had examined the petitioner on 25.05.2005 and also scrutinized the medical records. He deposed that the petitioner had taken treatment at Salem Government Hospital for four days as an inpatient and that subsequently, he had taken treatment at G.K. Hospital, Rajapalayam from 18.09.1997 to 21.09.1997 and that subsequently he had taken treatment under him for 22 days. He deposed that the petitioner had taken further treatment for three days under him from 26.06.2003 to 28.06.2003 and that he had conducted a surgery on the petitioner''s left jaw and that steel plates were fixed in the fractured area to set-right the fracture of bone. He further deposed that due to the crush injury sustained by the petitioner in his right face, his face had become grotesque and he deposed that he had taken three X-rays and after examination had found that the petitioner had sustained 60% disability and in support of his evidence, he had marked Ex. P18, disability certificate.
P.W. 3, Dr. Elangovan, the Dentist had adduced evidence that due to injuries sustained by the petitioner, his speaking ability had become reduced and that the petitioner had sustained deformity in the left side of his mouth and had sustained a disability of 25% on this count and in support of his evidence, he had marked Ex. P19, disability certificate and Ex. P2.
However, the Tribunal, on opining that the disability percentage assessed by the doctors was on the higher side and on observing from Ex. P2, wound certificate that the petitioner had sustained two grievous injuries and three simple injuries held that the total disability sustained by the petitioner was 25%. The Tribunal on observing that the salary of the deceased has been shown as Rs. 8,332/- (as per Ex. P3) and on opining that after deductions, he would be at least getting a sum of Rs. 5,000/- per month held the income of the petitioner as Rs. 5,000/- per month. The Tribunal, on adopting a multiplier of ''18'', as was relevant to the age of the petitioner (30 years), awarded a sum of Rs. 3,30,000/- under the head of ''loss of income due to disability of 25%". Rs. 49,673/- was awarded towards medical expenses as per medical bills marked as Exs. P5, P7 and P8; Rs. 2,500/- was awarded towards nutrition and Rs. 2,500/- was awarded under the head of pain and suffering; Rs. 6,475/- was awarded towards transport expenses as per exhibits marked as P9 to P14; Rs. 200/- was awarded towards damage to clothes. In total, the Tribunal awarded a sum of Rs. 3,91,348/- as compensation to the petitioner and directed the second respondent, being the insurer of the first respondent''s vehicle, to pay the said sum, together with interest at the rate of 7.5% per annum from the date of filing the petition till date of payment of compensation with costs, within 60 days from the date of its order. The claim as against the first respondent was dismissed.
Aggrieved by the award passed by the Tribunal, the second respondent/National Insurance Company Limited has preferred the appeal in C.M.A. (MD) No. 447 of 2007.
The learned counsel for the appellant has contended in his appeal that the Tribunal failed to see that the claimant suffered only facial disfigurement which would not be in any way either deprive the income of the claimant nor cause any loss in the earning capacity of the claimant as a doctor and as such, the percentage of award granted towards disability is erroneous. It was contended that the Tribunal erred in adopting the multiplier method to assess the loss of future income without rendering a finding as to whether the claimant suffered either partial permanent disability or permanent disability due to the impugned accident. It was contended that the Tribunal failed to see that the claimant is continuing in his job as Assistant Surgeon in Government Service and he has not proved that he had lost promotion and earning capacity due to the accident and as such, the multiplier method assessed by the Tribunal was erroneous. It was contended that the award of Rs. 49,673/- awarded for medical expenses was excessive. Hence, it was prayed to set-aside the award passed by the Tribunal. In support of his contentions, the learned counsel has cited the following judgment:-
Nagappa Vs. Gurudayal Singh and Others,
Motor Vehicles Act, 1988 Sections 168(1) and 169 -Just compensation-Award of compensation more than claimed-Claims Tribunal-Power of-Contention that Tribunal has no jurisdiction to award higher amount of compensation than what is claimed even though it is not likely to cause prejudice to the insurance company-Whether in an appropriate case compensation more than claimed can be awarded-Held: yes; there is no restriction that compensation could be awarded only up to the amount claimed; Tribunal/Court is to award ''just'' compensation which is reasonable on the basis of evidence on record; if required, court may permit amendment to the claim petition; there is no question of claim being time-barred; it cannot be contended that by enhancing the claim there would be change of cause of action.
Motor Vehicles Act, 1988, Section 168(1) -Quantum-Injury-Future medical expenses Injured-claimant lost his leg and has to use artificial limb which would require replacement every 2-3 years after some sort of operation-Whether further award could be passed after final award-Held: no; such eventuality had to be considered at the time of passing final award.
Not being satisfied by the award passed by the Tribunal, the petitioner/claimant has preferred a Cross Objection in Cross Objection (MD) No. 23 of 2007 in C.M.A. (MD) No. 447 of 2007, praying for enhancement of compensation to Rs. 9,50,000/-. The learned counsel for the Cross Objector has contended in his Cross Objection that the Tribunal, after appreciating the evidence and on noticing the facial dis-figuration, ought to have awarded a sum of Rs. 3,50,000/-. It was contended that the Tribunal while fixing the compensation under the head of pain and suffering and disability ought to have awarded a sum of Rs. 3,00,000/- under the head of pain and suffering. It was also contended that the Tribunal had failed to see that due to facial dis-figuration, the petitioner is not able to move freely with his relations, parents and kith and kin and has also paralyzed his medical profession and as such, an award of Rs. 3,00,000/- should have been granted under this head. It was contended that the Tribunal failed to see that because of the facial dis-figuration, the petitioner has become dependant for his entire remaining period on others. Hence, it was prayed to enhance the compensation of Rs. 9,50,000/-. In support of his contentions, the learned counsel has cited the following judgment:-
Raj Kumar Vs. Ajay Kumar and Another,
Quantum-Injury-Principles of assessment-Personal expenses-Whether one-third or any other percentage may be deducted as personal or living expenses from income of the injured while computing his future loss of earnings-Held: no. Quantum-Injury-Arm and leg-Fractures of both bones of left leg and left radius-injured remained under treatment for 8 1/2 months-Injured aged 25, cheese vendor, earning Rs. 3,000/- per month suffered disability of 45 percent with reference to left lower limb-Tribunal assessed income of the injured at Rs. 900 per month and allowed Rs. 11,000/- for medical expenses, conveyance and special diet, Rs. 3,600/- for loss of income, Rs. 25,000/- for pain and suffering and Rs. 55,080/- for loss of earning capacity-Apex Court assessed income at Rs. 1,500/- per month, permanent functional disability of the body at 25 per cent and loss of earning capacity at 20 per cent and further allowed Rs. 20,000-Award of Rs. 94,700/- enhanced to Rs. 1,14,700/-.
Quantum-injury-Pecuniary damages and non-pecuniary damages-Different heads listed.
Motor Vehicles Act, 1988 Sections 165(1), 169(1) and 168(1) -Claims Tribunal-Procedure and powers-Just compensation-Tribunal does not function like a neutral umpire as in a civil suit-It is an active explorer and seeker of truth who is required to hold an inquiry into claim for determining just compensation.
Motor Vehicles Act, 1988, Section 169 -Claims Tribunal-Duty of-Medical evidence-Guidelines given for examination of doctor who may be able to save ten lives or perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one accident case.
On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the view that the claimant had sustained eight injuries on his face, right shoulder, right lower jaw, left leg knee, left lower jaw and that two of his teeth had fallen. Further, it is seen that the claimant is a doctor, aged 30 years and that his face has been disfigured. He is a serving doctor at Government Hospital and running a private clinic. As such, it is evident that he has to attend to his patients. Further, he had undergone three surgical operations due to the injuries sustained by him at various hospitals and steel plates had been fixed on his left lower jaw and the same had been removed later. Therefore, he is entitled to get adequate compensation. Hence, this Court restructures the compensation as follows:-
Rs. 1,70,000/- is awarded under the head of disability; Rs. 50,000/- is awarded under the head of medical expenses; Rs. 10,000/- is awarded under the head of nutrition; Rs. 10,000/- is awarded under the head of transport; Rs. 10,000/- is awarded under the head of attender charges; Rs. 50,000/- is awarded towards loss of earning during medical treatment period and convalescence period; Rs. 1,75,000/- is awarded under the head of ''loss of amenities due to disfigurement of his face, which is permanent in nature and loss of comfort, as steel plate had been fixed on his lower jaw; Rs. 20,000/- is awarded towards pain and suffering. In total, this Court awards a sum of Rs. 4,95,000/- as compensation to the claimant. After deducting initial compensation of a sum of Rs. 3,91,348/-, this Court grants an additional compensation of a sum of Rs. 1,03,652/-, as it is found to be appropriate in the instant case. The Tribunal''s findings regarding liability is appropriate and hence, it is confirmed.
Therefore, this Court directs the appellant/New India Insurance Company to pay the additional compensation amount, as per this Court''s findings, with accrued interest thereon at the rate of 7.5% per annum from the date of filing the petition, till the date of payment of compensation, within a period of four weeks from the date of receipt of a copy of this order. As per Court records, it is seen that the Insurance Company had deposited the initial compensation amount with accrued interest thereon and that out of the deposited amount, the claimant was permitted to withdraw a sum of RS. 1,00,000/- with proportionate interest.
After the additional compensation amount with accrued interest has been deposited by the Insurance Company, as per this Court''s findings, it is open to the claimant to withdraw the entire compensation amount with accrued interest thereon, lying in the credit of M.C.O.P. No. 58 of 2005, on the file of Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Virudhunagar District, Srivilliputur, after filing a Memo, along with a copy of this order, subject to deduction of withdrawals made, if any, as per this Court''s earlier order. In the result, the C.M.A. (MD) No. 447 of 2007, which has been filed by the National Insurance Company is dismissed. The Cross Objection No. 23 of 2007, filed by the claimant is partly allowed. Consequently, the order passed in M.C.O.P. No. 58 of 2005, on the file of Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Virudhunagar District, Srivilliputur, dated 05.01.2006 is modified. There is no order as to costs. Connected miscellaneous petition is closed.