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Judgment
Mrs. Prabha Sridevan, J.—The Tamil Nadu Special Police is the Appellant. According to the respondent who is the Claimant, on 7.12.1993, at about 4.00 p.m, the respondent was going on his Kinetic Honda bearing registration No.TN.07.A-9268 from north towards south along the Santhome Road near MRC Nagar. The jeep belonging to the appellant bearing registration No. TDH 4960 coming from east and proceeding towards north dashed against the respondent causing grievous injuries. The accident was due to the rash and negligent driving of the appellant''s driver and therefore, the respondent claimed a compensation of a sum of Rs.5,00,000/-.
The appellant denied that the injury or the accident occurred on account of the appellant''s vehicle or his driver. The accident resulted on account of the carelessness of the respondent and therefore, the appellant was not liable to pay any compensation. The claim was filed before the Motor Accident Claim''s Tribunal Cum III Small Causes Judge, Chennai.
3.The respondent-the Sub-Inspector, Maintenance of Records (Traffic), Vepery and the Manager of the Organisation were examined as P.Ws. 1 to 3 and 13 documents were marked. The driver of the jeep was examined on the side of the appellant and no documents were marked. It is the case of the respondent that the jeep driver did not give proper signal and without taking into account the fact that a Kinetic Honda was coming along the Santhome Road dashed against him. The F.I.R. is Ex.P4 and it is the evidence of P.W.3, that a criminal case was lodged against the driver of the jeep before the VI Metropolitan Magistrate at Saidapet. The sketch plan and the charge-sheet has been marked as Ex.P11 and P12. Ex.P4 which is the F.I.R. shows that the driver of the jeep did not follow the traffic rules and it is on account of his rashness and negligence that the accident had occurred.
After considering the sketch plan, the F.I.R. and the evidence, the Tribunal came to the conclusion that the accident occurred on account of the negligence of the driver. As regards the quantum of compensation, the Tribunal awarded a sum of Rs. 1,00,000/-, as against the claim of a sum of Rs.5,00,000/-.
Against this, this appeal has been filed. The respondent has marked the discharge certificate as Ex-P1 which shows that he was hospitalised in Malar Hospital from 7.12.1993 to 17.01.1994. There was a compound fracture to his left tibia bone. After taking treatment in Malar Hospital, it is the case of the respondent that he took treatment at the Bangalore Lake Side Medical Centre and surgery was made on him and he was inpatient from 31.12.1993 to 5.1.1994 and from 15.1.1994 to 17.1.1994. The relevant discharge certificates were marked as Ex.P2 to P3. The respondent has marked Ex.P-13 to show that out of a medical claim of Rs.43,678.78, the Government had settled only a sum of Rs.24,375/-. P.W.4 is working as a Manager in the same company as the respondent and he had stated that the petitioner had furnished bills for reimbursement for about Rs.45,000/- and that United India Insurance Company had settled an amount of Rs.24,000/- and Ex.P13 is the reimbursement certificate. It is also seen that the petitioner was a Junior Accounts Officer in the Company and his salary was about a sum of Rs.5000/- per month and kit allowance of a sum of Rs.2,500/- per month. This is seen from Ex.P6. The job was given to the respondent because he was a cricket player. Ex.P7 series were marked to show that the respondent had taken part in the cricket tournaments. It is the evidence of P.W.1 that he is a batsman and a right hand bowler. It is his case that he lost the opportunity to play for India because of the accident and that he could not bowl, because of his injury to the left leg. P.W.4, has given evidence that the job was given to him under Sports quota. P.W.4, himself has played for India as a wicket-keeper for 10 years. The respondent is the Captain of the Company''s team. It is the evidence of P.W.4 that the respondent became unfit for bowling only after the accident. P.W.2, the Doctor who examined the respondent gave a certificate of 35% disability under Ex.P9. Ex.P10, is the X-ray. It is the case of the respondent that if he had played for India at the national level, he would have got Rs.50,000/- for a match and for a one-day match, a sum of Rs.90,000/-and that though he is now the team Captain for the Company for the two years 1994 and 1995, he was unable to play because of the accident and the resultant loss was about a sum of Rs.1.5 to 2 lakhs. On a consideration of the oral and documentary evidence, the Tribunal disallowed the claim on account of the medical expenses on the basis that there was no satisfactory evidence to show that he was not entirely reimbursed, awarded a sum of Rs. 10,000/- for nourishing food, for pain and suffering, a sum of Rs.30,000/-, for partial permanent disability a sum of Rs.10,000/- and the loss of earning by not being able to take part in cricket tournaments at Rs.50,000/-, thus arriving at the figure of Rs.1,00,000/-.
The learned Special Government Pleader (CS) for the respondent submitted that the amount of Rs. one lakh was excessive and there is nothing to show that he would have earned a sum of Rs.50,000/- during those two years and he also attacked the fixing of liability on the ground of negligence as erroneous.
However, Mr. A.N. Viswanatha Rao, learned counsel appearing for the respondent submitted that the Compensation awarded was actually low and it should be enhanced. According to the learned counsel, Order 41, Rule 33C.P.C is applicable to Motor Accident Claims also and this Court has the power to enhance compensation even without cross appeal. He pointed out to the following factors which would entitle the respondent to higher compensation. According to the learned counsel, Ex.P5 would show that out of a claim of 43,678.78 which was the claim for medical reimbursement, only 20,000/- was given. According to the respondent, the total medical expenses came to a sum of Rs.1,00,000/-, since in the Lake Side Hospital, the bill came up to a sum of Rs.30,000/- and the physiotherapist at the Hospital was paid between Rs.2000 to Rs.3000/- and conveyance to the Hospital cost him about a sum of Rs.5,000/- and according to the respondent, he is entitled to be compensated for the same. It is also his case if he had, not sustained injuries, he would have been considered for playing for the Indian Cricket Team. The evidence of P.W.2 was also pointed out by the learned counsel for the respondent wherein the Doctor has said that the respondent will not be able to run, play and bend his leg. P.W.4, the Manager of the Company who was also well-known cricket player has given evidence that the respondent can only bat and that he is now unable to bowl. He has also confirmed the evidence of P.W.I that out of claim of a sum of Rs.45,000/-, only a sum of Rs.24,000/- was settled towards medical reimbursement. He has also stated that for two years, the respondent did not play and the monetary loss would be between Rs.1.5 to 2 lakhs since, if he had played for India, he would have easily got a sum of Rs.50,000/- to Rs.80,000/- and that there was a possibility for the petitioner for making it to the India''s team. Therefore, the learned counsel for the respondent submitted that the compensation must be enhanced.
The appellant''s claim that there was no negligence on the part of the driver and that the compensation is too high deserves to be rejected outright. The discussion regarding the negligence of the appellant''s driver is clearly drawn out by the Tribunal and the conclusion is that the jeep driver was rushing to deliver some files and therefore, he did not take the necessary precaution while coming from the side road and rashly and negligently dashed against the respondent coming along the main road resulting in this accident. Therefore, the finding regarding negligence is confirmed. As regards the compensation given by the Tribunal, it cannot said to be excessive. The only question is whether it should be enhanced. As regards the question, whether this Court has the power to enhance compensation without cross appeal, this Court has held in Managing Director, Thanthai Periyar Transport Corporation, Villupuram v. Sundari Ammal and four others (1999 II CTC 560=1999-3-L.W.182) following the decisions reported in Mahant Dhangir and Another Vs. Madan Mohan and Others, and M.D. Pallavan Transport Corporation Ltd. v. Kalavathi ( 1998 (1) ACJ 151), that even though the claimants have not filed any cross objection against the award, this Court could enhance the amount awarded as compensation. The following passages are extracted.
In Mahant Dhangir and Another Vs. Madan Mohan and Others, it is held that this Court has got power to enhance the compensation, even though the claimants had not filed any cross-objection against the award seeking for higher compensation, if this Court finds that the amount awarded by the Tribunal is not just and adequate.
Section 110(d) of the Motor Vehicles Act 1939, deals with the jurisdiction to entertain an appeal against the award passed by the Claims Tribunal and it requires the High Court to deal with the said appeal following the provisions of the Code of Civil Procedure. Order 41, Rule 33, C.P.C. grants the Court of appeal the power to pass any decree and make any order which ought to have been passed or made and that this power may be exercised by the Court notwithstanding the appeal is with regard to only the part of the decree and it may also be exercised in favour of all or any of the parties though such parties may not have filed any appeal or objection. In the decision reported in Mahant Dhangir and Another Vs. Madan Mohan and Others, ), the Supreme Court held as follows:
The appellate court could exercise the power under Rule 33 even if the appeal is only against a part of the decree of the lower court. The appellate court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The words as the case may be require used in Rule 33Order 41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of Justice. What then should be the constraint? We do not find any. We are giving any liberal interpretation. The rule itself is liberal enough. The only constraints that we could see may be these: That the parties before the Lower Court should be there before the Appellate Court. The question raised must properly arise out of judgment of the Lower Court. If these two requirements are there, the Appellate Court could consider any objection against any part of the judgment or decree of the Lower Court. It is true that the power of the Appellate Court under S.33 is discretionary. But, it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities.
It is true that the power of the Appellate Court under Order 41, Rule 33, C.P.C. is discretionary. But, it is a proper exercise of judicial discretion to determine all questions urged in order to do complete justice between the parties. In the decision reported in 1999 II CTC 569 (cited supra) the learned Judge held that the Court should not become a silent spectator and fail to deliver justice according to the needs of the litigant and the learned Judge has referred to the various decisions in which the provisions of Order 41, Rule 33, C.P.C. was resorted to; to do justice between the parties. Therefore, I am satisfied that if the circumstance warrants the amount of compensation may be revised upward even in the absence of cross-objection by the claimants. The question is whether this discretion must be exercised in this case to do justice. The Tribunal had rejected the various claims made by the respondents on the ground that even after the accident, the respondent was made the Captain of the Company''s Team. So he cannot be held to have suffered any loss of income. It is true that the evidence of P.W.4, is that it is not possible to say with any certainty whether the respondent would have got an opportunity to play for India in International Tournaments.
With regard to the quantum, the learned counsel for the appellant relied on,
Rajendra Pal and another v. S. Babu Naidu (1955 I AC J 167);
R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and others (1995 ACJ 366 (SC));
The Managing Director, Thiruvalluvar Transport Corporation, Madras v. 1. Thangavelu, 2.Mariswami (2nd respondent given up) (1995 II L.W.685 (DB);
Soran Ram v. Pritam Singh (1999 ACJ 1369) (P&H);
Bhavan Singh Meena v. Jai Kishnan Tiwari and others (1999 ACJ 1200 Rajasthan);
M.Jaganathan v. Pallavan Transport Corporation Ltd. (1999 ACJ 366 Madras (DB);.
Pallavan Transport Corporation Ltd. (Metro) v. P.Murthy and others (1989 ACJ 413 Madras (DB));
In 1955 I ACJ 167 (cited supra), the Division Bench of the High Court rejected the appeal against the award praying for reduction of compensation on the ground that loss of future income and loss of amenities are two different heads and it is necessary to award separately on the two heads. In 1955 I ACJ 366 (cited supra), it is held as follows:
Broadly speaking, while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant, (i) medical attendance, (ii) loss of earning of profit up to the date of trial (iii) other material loss. So far as non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future;(ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (IV) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
In that case, the Supreme Court quoted from Ward v. James (1965 I All ER 563), where it was said,
Although you cannot give a man so gravely injured much for his lost years'', you can, however, compensate him for his loss during his shortened span.
In that case also, the claimant had to undergo physiotherapy and the Supreme Court took notice of the fact that physiotherapy is one of the acknowledged modes of treatment which requires to be pursued for a long duration. In 1955, II L.W. 685 (D.B.) (cited supra) our High Court held,
There is no merit in the contention of the appellant that compensation cannot be awarded for permanent disability if compensation is awarded under the heading loss of earning power. They are two distinctive and separate claims. The latter is based on the loss of earning power caused by the disability. Loss of earning power is only one of the consequences of permanent disability. But, the former relates to the other consequences of permanent disability excluding loss of earning power. It is well known that permanent disability will have several consequences apart from inability to work or earn as before. To be specific, the victim of the accident who suffers from permanent disability will not be in a position to carry on his normal household activities in his house. More than anything else, he will be brooding over the disability day by day till the end of the life and suffer untold mental agony. The compensation for pain and suffering is only for the pain and suffering undergone at the time of injury and the treatment which followed. Thus, compensation for permanent disability will cover the mental agony to be suffered by the injured in his future life and his inability to attend to his normal house-hold activities. This reasoning is fortified by the Form prescribed under the Motor Accident Claims Tribunal Rules; Part II of Form II.
In Soran Ram Vs. Pritam Singh, the Supreme Court refused to reduce the compensation given on the loss of earning capacity. 1999 ACJ 1200 Rajasthan (cited supra) was a case of amputation. The Rajasthan High Court referred again to the decision reported in 1995 ACJ 366 SC (cited supra) and laid down the proposition that pecuniary damages and special damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations, and they may include mental and physical shock, loss of expectation of life, hardship, discomfort, disappointment etc. 1999 ACJ 366 Madras (DB) (cited supra), which was a case of amputation, the Division Bench of our Court has held as follows:
He also argues that since the injured has been given job in the Railways even after the accident and the injured is getting pay as usual, he could not claim compensation for the loss of earning power to the extent of Rs. 1,50,000. We are unable to accept the said counsel''s contention with reference to the abovesaid Rs.75,000 and Rs.53,000. However, we feel that compensation for the loss of earning power in the above circumstances could not be given to the extent of Rs.1,50,000.
Finally, in 1989 ACJ 413 Madras D.B. (cited supra) our Court held that continuance of employment of the injured on compassionate ground cannot lessen the liability of the tortfeasor.
The Tribunal obviously failed to take into account the fact that the respondent was not fully reimbursed in respect of expenses incurred by him towards treatment. His case that he was an inpatient in Malar Hospital and Bangalore Lakeside Hospital was not disbelieved. His case that he has to undergo physiotherapy also was not disbelieved. That being so, the Tribunal erred in not granting any amount for medical expenses except for Rs.10,000/- towards extra nourishment. Even the transport charges to the Hospital was claimed at a modest rate of only a sum of Rs.4,000/-. It is not denied that the respondent who lives in Madras had to go to Bangalore to undergo treatment and in this regard he would have definitely have to take someone with him to help him while he went to the Bangalore Hospital for the treatment. As against the loss of income for the two years when he did not play, the Tribunal has totally ignored the evidence of respondent as well as P.W.4. While it may be said that it is not possible to predict with any certainty whether the respondent would have represented India at any international level, he was definitely a player at a state level and for two years he was denied the opportunity to take part in the national tournaments. The agony and the frustration the respondent would have suffered because his inability to take part in the national tournament should have been taken into account. The Tribunal has not disbelieved the evidence on the side of the respondent that from being a fairly proficient all rounder, the respondent was reduced to being only a batsman due to the accident. The injury in the left tibia bone had permanently disabled him from participating tournaments for two years. The respondent had claimed under the head of Transport to Hospital, extra-nourishment, cost of treatment at Malar Hospital, expenses for private treatment and cost of treatment at Lakeside Hospital, physiotherapy charges amounts aggregating to a sum of Rs.86,500/-
The claimant was awarded a sum of Rs. 18,000/- for extra nourishment and towards pain and suffering a sum of Rs. 10,000/- and for a part permanent disability Rs.30,000/- and for the disability to participate in the cricket a sum of Rs.50,000/-.
In the decision reported in 1995 II L.W.685 D.B. (cited supra) our Court has pointed out in poignant words how a victim of accident who suffers from permanent disability suffers and how he would brood over from disability and suffered untold mental agony. This is more so in the case of the person like the respondent who admittedly was a talented sportsman, who earned his employment on the basis of sports quota and whose ability has been impaired. The possibility of him being selected in the Indian Team either on his account of batting process or bowling skills cannot be ruled out, though it cannot be predicted with certainty. The Tribunal has failed to assess the non pecuniary damages from a proper perspective. The appellant in the counter apart from stating that all the averments in the petition are denied unless they are specifically admitted has not pointedly denied the fact that the respondent had to undergo the various treatments. Even in the cross-examination apart from putting a question that the amount is excessive, there is no cross-examination with regard to the petitioner''s expenditure at lake side hospital and the physiotherapy charges.
Therefore, I think on the head of medical expenses taking into account his treatment at Lakeside Hospital, physiotherapy charges and conveyance to Hospital, the petitioner is entitled to receive a sum of Rs.50000/-. As regards the loss of earning capacity and permanent disability, the Tribunal has totally granted a sum of Rs.80,000/- under these two heads. It is no doubt true that the petitioner was appointed as Captain after he recovered. But the two lost years can never be compensated. So under these two heads the award is very low when compared to what the respondent has suffered on account of the accident, this amount is enhanced to Rs.1,30,000/- as against the award of Rs.80,000/-.Therefore, while confirming the finding with regard to negligence the amount awarded is modified. The compensation with regard to food and nourishment of Rs.10,000/- and pain and suffering of a sum of Rs.10,000/- is confirmed but on the head of medical expenses a sum of Rs.50,000/- is given and in respect of loss of earning power and permanent disability is fixed at a sum of Rs. 1,30,000/- is awarded. Therefore, the total award is now enhanced to a sum of Rs.2,00,000/- as against the Tribunal''s award of Rs.1,00,000/-. The appellant is directed to pay this amount together with interest from the date of petition till date of realisation. The respondent is directed to pay the Court-fee payable for the enhanced amount. The appeal is disposed of with the above terms. No costs. Consequently, C.M.P.Nos. 17823 of 1999 and 2500 of 2001 are closed.