J. Sai Manohar vs Prem Shanker Shukla and another

Karnan, J.—The appellant-petitioner has filed the Civil Miscellaneous Appeal No. 1613 of 2005 against the judgment and decree dated 9.12.2004 passed in M.A.C.T.O.P. No. 2777 of 2000 on the file of the Sixth Court of Small Causes (Motor Accidents Claims Tribunal), Chennai awarding a sum of Rs. 1,89,000 as compensation as against a compensation of Rs. 14,00,000 claimed by the petitioner.

The amount claimed by the appellant in his appeal is restricted to Rs. 12,00,000.

The brief facts of the case are as follows:

The petitioner, J. Sai Manohar, aged 45 years is the General Manager, Marketing with Pavithra Graphics Limited, Chennai and earning monthly salary of Rs. 12,000. On 24.9.1999 at about 12.15 hours, the petitioner was travelling as a passenger in bus bearing registration No. UP 70-M 9900 from Varanasi to Nagpur along Jabalpur National Highway, and when the bus was nearing Dhumba, Seoni District, Madhya Pradesh, the said bus driven with rash speed and negligent manner, went off the road and overturned, due to which the petitioner and several others sustained serious injuries. The accident is solely due to rash and negligent driving of the bus bearing registration No. UP 70-M 9900. Hence, the respondent No. 1 as owner of the bus and the respondent No. 2 as its insurer are jointly, severally and vicariously liable to pay the compensation to the injured petitioner and had claimed a compensation of Rs. 14,00,000 under various heads with interest and costs.

The Dhumba Police Station, Seoni District, Madhya Pradesh registered a case under Crime No. 69 of 1999 for the said accident. The petitioner had further stated that he was given first aid at Government Hospital, Seoni District. Subsequently, he was taken to Suretech Hospital and Research Centre Ltd., Dhantoli, Nagpur and was an inpatient at St. Isabel''s Hospital, Mylapore, Chennai-4 from 17.11.1999 to 3.12.1999 and the expenses incurred here were Rs. 1,00,000. The petitioner stated that due to the accident he is unable to attend any work.

In the counter filed by the respondent No. 2 National Insurance Co. Ltd., the age, occupation and monthly income of the petitioner were not admitted. The place, date and time of accident were also not admitted. Further, all the other allegations of the petitioner were denied. Further, the amount claimed by the petitioner was excessive. It was also stated that the accident did not occur due to rash and negligent driving of the vehicle bearing registration No. UP 70-M 9900.

The respondent No. 1 remained absent and was set ex parte.

The Motor Accidents Claims Tribunal framed four issues, namely:

(1) Who was responsible for the accident?

(2) Are the respondents liable to pay compensation?

(3) Is the petitioner entitled to get compensation? and

(4) To what other relief?

On the side of the petitioner two witnesses were examined and 19 documents were marked as exhibits as Exh. P1 to Exh. P19. No witness or document was put forth by the respondent''s side.

From the evidence of PW 1, it was understood that on 24.9.99, at about 12.15 hours, when the petitioner was travelling in the bus bearing registration No. UP 70-M 9900 from Varanasi to Nagpur, the bus driver had driven the bus rashly and negligently during the period when the bus was approaching Dhumba in Madhya Pradesh and in the result, lost control and so the bus went off the road into the adjacent field and due to this the petitioner had sustained injuries. Further, Exh. P11, the first information report; Exh. P12, the copy of final report; Exh. P13 the copy of investigation report; Exh. P14, Judicial Magistrate''s order were marked. The respondent No. 2 did not examine any witness to contradict the above claims.

The Claims Tribunal on consideration of the oral and documentary evidence established that only the driver of the bus was the cause for the accident. Further, on examination of Exh. P14, wherein the driver had accepted his fault and paid fine, it is clearly evident that the driver was at fault and hence the Motor Accidents Claims Tribunal decided on the first issue accordingly.

Secondly as the bus was owned by the respondent No. 1 and was insured with the respondent No. 2 and as the insurance policy was in force during the said period of accident, the respondent No. 2 was held liable to pay the compensation to the petitioner.

Further PW 1 in his evidence has stated that due to the accident, his right femur hip bone has been fractured and that he was given first aid at government hospital and that the next day he was admitted at Suretech Hospital, Nagpur and a surgery was done on him on 26.9.1999 and he had remained as inpatient here till 7.10.1999. Subsequent to this, he had been admitted as inpatient in St. Isabel''s Hospital, Chennai from 17.11.1999 to 3.12.1999 and had taken treatment here. Further, he underwent another surgery here and due to the high intake of medicines, kidney stones were formed in the petitioner''s body. At the time of accident, PW 1 deposed that he was employed in Pavithra Graphics Limited as AGM, Marketing and Development and that he was earning Rs. 12,000 per month. Due to the said accident he has not been able to bend his leg, walk or sit. As he was not able to do any work, he was forced to resign from his job and that presently he is unemployed and, therefore, prayed for Rs. 14,00,000 as compensation. To support his claim, Exh. P1, wound certificate, Exhs. P6 and P8, medical bills, Exh. P15 doctor letter, Exh. P16 discharge summary and Exh. P17 medical bill were marked and Exh. P9 his salary certificate was also marked.

PW 2, one Dr. Saichandiran was examined. In his evidence, he has stated that on account of the accident, the petitioner had sustained fractures on his top half of his right thigh bone and that during surgery for setting this right, 3 iron rods were fitted initially, but as these bones have not joined correctly, a second surgery was done, wherein the three iron rods were removed and new modified steel rods were fitted in its place. Subsequent to this, the bones have become enlarged and due to the compression of the flesh, movement of right thigh might be decreased by 30 degree and that he cannot bend his leg and sit. Further, the petitioner will find it difficult to stand and climb steps. Taking all these into consideration, the disability was fixed at 45 per cent and he had given his disability certificate, which is marked as Exh. P18 and also furnished Exh. P19, the X-ray to prove the same.

Further, the petitioner has asked Rs. 1,08,000 as compensation towards loss of income from 25.9.1999 to 24.6.2000; Rs. 30,000 towards loss of income from 30.6.2000 to 31.12.2000. The petitioner has given Exh. P9 in support of his salary. But, the petitioner has not examined the employer as necessary party to establish this claim. Further, the petitioner has not produced any income tax returns to prove that his monthly salary had been Rs. 12,000 per month. But, the petitioner has admitted that he has not paid any income tax so far. Further, the petitioner has not produced any supporting documents to establish that he had received a salary of Rs. 12,000 per month. As such, the Tribunal was not able to accept that the petitioner was earning Rs. 12,000 per month at the time of the accident. The petitioner has also not produced any proof regarding his educational qualifications. Further, the exact period of his absence from work and the consequent loss of income as also the exact date on which he was terminated or forced to resign has not been established by any clear evidence. Hence his salary was taken as Rs. 3,000 per month and the period of medical treatment was taken as 6 months and hence for 6 months, loss of income was taken as Rs. 18,000.

Further, towards transport expenses the petitioner had claimed Rs. 25,000. On the scrutiny of the transport bills incurred towards medical treatment, i.e., Exh. P17, the Claims Tribunal awarded Rs. 1,500. Further, for nutrition, Claims Tribunal had granted Rs. 2,000 and for damage to dress Rs. 1,000 was awarded. Further, the petitioner had claimed Rs. 1,00,000 towards medical expenses incurred during treatment at Suretech Hospital and St. Isabel''s Hospital, and in support of this, Exhs. P3 to P6, hospital bills and Exh. P17, doctor fees were marked.

From a scrutiny of Exh. P15, which contains the advice of Dr. Subramanian that the petitioner should be admitted at St. Isabel''s Hospital and on examination of Exh. P16, which informs that the petitioner took treatment at St. Isabel''s Hospital and also on examination of Exh. P17 which is a receipt that Dr. Subramanian had received Rs. 12,500 from the petitioner, the Claims Tribunal awarded Rs. 74,000 for medical treatment. The petitioner''s claim for Rs. 75,000 for future medical expenses was ignored as no evidence was led about the medical treatment or expenses which may be needed. Though the petitioner has claimed Rs. 75,000 towards the attendant charges, no details regarding the person who was his attendant and how much he had paid him were given in his evidence. The Tribunal, however considering that the petitioner would have paid a nominal amount for attendant granted Rs. 2,500 for attendant charges. Further, the petitioner''s claim of Rs. 50,000 for future transport expenses was not considered as no evidence was established that petitioner could not travel in normal transport buses. Further, the petitioner had claimed Rs. 1,50,000 towards mental agony incurred by him as a result of disability suffered by him in the accident, namely, limping. But, petitioner has not furnished any evidence that his limping has occurred only because of the disability caused in the accident. Further, the doctor has also not given any evidence that the petitioner is limping and as such the Tribunal did not consider giving any compensation under this head. The Claims Tribunal granted Rs. 20,000 for pain and suffering, taking into account that the petitioner underwent surgery as per Exh. P2 discharge summary.

Further, considering the evidence of the doctor that the petitioner has not been able to bend his leg and may have difficulty in standing and doing work and climbing stairs, Claims Tribunal granted Rs. 45,000 under the head of permanent disability. Due to this disability, as the petitioner may be affected in doing his daily work and consequently he may suffer a loss of income in future, the Tribunal granted Rs. 25,000 under this head. In total, the Tribunal awarded Rs. 1,89,000 as compensation to the petitioner.

The Tribunal further directed the respondent No. 2 to deposit Rs. 1,89,000 as compensation to the petitioner with interest at the rate of 9 per cent per annum within 8 weeks into the credit of M.C.O.P. No. 2777 of 2000 on the file of Sixth Small Causes Court/Motor Accidents Claims Tribunal, Chennai. Further, it permitted the petitioner to withdraw Rs. 89,000 from such deposit after it was made and further directed that the balance amount should be deposited in a nationalised bank for three years. Advocate fee was fixed as Rs. 6,880 and the excess court-fee paid by the petitioner should be returned.

Learned counsel for the appellant argued that the Tribunal had erroneously come to a conclusion that the claimant''s monthly income is Rs. 3,000 instead of Rs. 12,000 per month as claimed by the claimant on the strength of salary certificate which is marked before the learned Tribunal as Exh. P9. Further, the learned Tribunal had awarded only Rs. 1,500 for transport, but the claimant had claimed Rs. 25,000 since the accident happened in Madhya Pradesh. The claimant was treated as inpatient at Nagpur from 25.9.1999 to 7.10.1999. Thereafter, the claimant was an inpatient at a private hospital in Chennai from 17.11.1999 to 3.12.1999. The learned counsel further pointed out that appellant had suffered fracture of right femur bone and had undergone three surgeries. These kinds of surgeries had caused intolerable pain and suffering to the claimant. The claimant had claimed Rs. 20,000 for nutrition, but the Tribunal had awarded only 1/10th, i.e., Rs. 2,000 on that head. As per doctor''s opinion, the implants are to be removed on future dates for which medical expenses are to be incurred, but the learned Tribunal rejected the claim under that head. The claimant had claimed a sum of Rs. 75,000 as compensation for attendants. Their service was availed at the time of treatment for more than six months as inpatient, but the Tribunal had awarded only 730th, i.e., Rs. 2,500 under that head. For pain and suffering, learned Tribunal had awarded only Rs. 20,000, but the claimant had claimed Rs. 1,50,000. In the above said two heads, the compensation awarded is too low. The learned counsel has further pointed out that for 45 per cent disability, the Tribunal had awarded Rs. 45,000 only at the rate of Rs. 1,000 for one percentage. The claimant had claimed Rs. 14,00,000 before the Tribunal, but learned Tribunal had awarded only Rs. 1,89,000.

Learned counsel for the respondents vehemently argued that the learned Tribunal had meticulously analysed the case on the basis of the oral and documentary evidence. The learned counsel pointed out that there is no income proof and Exh. P9, salary certificate is not an authenticated one. As such, the learned Tribunal was not satisfied with documentary evidence and hence the Tribunal, has come to a correct conclusion that the claimant''s monthly income was only Rs. 3,000 at the time of accident. Learned counsel further pointed out that Tribunal had examined each and every document, the claimant''s evidence and doctor''s evidence and has granted a compensation of Rs. 1,89,000 with 9 per cent interest and this is equitable and fair.

For the foregoing reasons and on consideration of facts and circumstances of the case, this court opines that the learned Tribunal had minutely analysed the documents produced by the claimant and scrutinized the evidence of claimant and doctor, and the Tribunal has come to the correct conclusion as regards negligence and liability. But, this court feels that on the issue of quantum of compensation the Tribunal has been a little bit conservative and hence this court wants to relax the findings on this issue. Accordingly, this court modifies the quantum of compensation under the various heads as under:

(1) Towards 45 per cent disability, the compensation granted is Rs. 90,000 on the strength of Exh. P18, disability certificate, taking Rs. 2,000 for one percentage disability.

(2) For transport charges, compensation granted is Rs. 5,000 since the claimant has met with accident in Madhya Pradesh.

(3) For extra nourishment, compensation granted is Rs. 5,000.

(4) Towards future medical treatment Rs. 25,000 is granted as the claimant has a steel implant in his leg which is to be removed surgically in future.

(5) Considering that claimant underwent three surgeries, for pain and suffering this court grants Rs. 40,000 as compensation under the above head.

(6) Towards the loss of earning power, Rs. 75,000 is awarded by this court, considering that the disablement suffered by the appellant will definitely affect his day-to-day activities.

(7) For attendants'' help this court grants a sum of Rs. 9,000 as the patient has been attended to by relatives and attendants for a period of approximately six months. This court confirms the award amount in respect of other heads granted by Claims Tribunal, namely, towards damages for dress Rs. 1,000, for medical treatment Rs. 74,000 and for loss of income Rs. 18,000.

As such, this court shall award an enhanced amount of Rs. 3,42,000 as compensation to the claimant. The additional award amount of Rs. 1,53,000 granted by this court will carry an interest at the rate of 7.5 per cent per annum from the date of filing the claim petition till the date of payment of compensation. The court further directs the respondent National Insurance Co. Ltd., to deposit the balance amount along with accrued interest into the credit of M.C.O.P. No. 2777 of 2000 within a period of six weeks from the date of receipt of a copy of this order.

As the said accident happened in the year 1999, it is open to the appellant-claimant to receive the balance amount lying to the credit of M.C.O.P. No. 2777 of 2000 on the file of the Motor Accidents Claims Tribunal/Sixth Small Causes Court Judge, Chennai by filing necessary payment out application in accordance with law.

In the result, the civil miscellaneous appeal is allowed in the above terms and consequently the award passed by the Motor Accidents Claims Tribunal/Sixth Small Causes Court Judge, Chennai in M.C.O.P. No. 2777 of 2000 is modified. The parties are directed to bear their own costs.