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Judgment
T. Raja, J.—M/s. Oriental Insurance Company Limited, Tiruchirappalli has brought this civil miscellaneous appeal challenging the soundness
of the order passed by the learned Chief Judicial Magistrate (Motor Accidents Claims Tribunal), Pudukkottai (for short, ""the Tribunal"") in
M.C.O.P. No. 471 of 2009 dated 29.11.2011, in and by which the first respondent-claimant was awarded a sum of Rs. 6,00,660/- as
compensation, payable jointly and severally by the appellant and the second respondent together with interest at the rate of 7.5 percent per annum
from the date of petition till the date of realisation within two months from the date of the order. In the said award, the Tribunal also permitted the
first respondent-claimant to withdraw a sum of Rs. 2,00,660/- together with the accrued interest and costs at the first instance, while the remaining
amount of Rs. 4,00,000/- was ordered to be deposited in any one of the nationalised banks in the name of the first respondent-claimant for a
period of three years under the Fixed Deposit scheme and thereupon the first respondent-claimant was also permitted to receive the interest on the
deposited amount once in three months from the respective bank directly. The facts giving rise to the filing of this appeal are as follows. The first
respondent/claimant-Mr. Arulselvam filed the claim petition before the Tribunal alleging that when he was going on his TVS XL-Super motor-cycle
bearing Registration No. TN-55-S-4169, near Gandarvakottai to Sengipatti road, at about 9.00 p.m., on 4.7.2009, a lorry bearing Registration
No. MDT 8706 coming behind the first respondent''s vehicle, rammed against his vehicle and thereby caused the accident, as a result, the first
respondent sustained severe multiple injuries and bone fracture. Immediately, he was taken to the Government General Hospital, Thanjavur for
medical treatment. Although he was undergoing treatment as an in-patient for several days in the Government Hospital, Thanjavur, he was shifted
to various private hospitals thereafter for treatment and he was made to spend huge amounts towards medical expenses for the prolonged
treatment. Since the first respondent was doing business in food grains and cereals and he was also deriving a good and considerable amount of
Rs. 10,000/- per month through his business and agricultural works, as a result of the serious disability caused to him on account of the accident,
he was unable to attend to his work and there was a total loss of income. On that basis, he filed the claim petition before the Tribunal claiming a
compensation of Rs. 10,00,000/-. It was also contended before the Tribunal that the first respondent also filed a criminal case against the offending
driver and a First Information Report was also registered against the offending driver. When the matter was taken to the criminal Court, the driver
of the offending vehicle also accepted his guilt and on the basis of his admission, the criminal Court also convicted him. Therefore, when the first
respondent was successful in proving that the driver of the offending vehicle was responsible for the cause of the accident, he was entitled to the
award of Rs. 10,00,000/- as compensation.
Opposing the said relief, the appellant-Insurance Company filed a detailed counter statement before the Tribunal inter alia taking a stand that the
offending vehicle, which was owned by the second respondent, had no valid permit to ply at the crucial time of the accident. When the second
respondent, who had no valid permit, had violated the conditions of policy and statute, the insurer-appellant was not liable to satisfy any award
even if it is passed. Further, there was a delay of one day in filing the First Information Report. Such a crucial delay in filing the First Information
Report throws a huge suspicion about the collusion between the first and second respondents. Further, since Section 158 (6) of the Motor
Vehicles Act clearly speaks that if the vehicle which met with the accident was not having a valid permit, that would amount to violation of the
policy conditions, no liability can be fastened on the insurance company. In regard to the quantum of compensation, it was pleaded that the period
of treatment alleged in the claim petition and the expenses said to have been incurred thereon were all exaggerated for the purpose of maintaining
the heavy claim. Therefore, it was pleaded that the first respondent should be put to strict proof as to the loss of income, cause of accident and the
loss of earning power on account of the alleged injuries.
Under this background, the Tribunal, while framing the following issues, namely,
(a) Whether the accident took place due to the rash and negligent driving of the lorry bearing Registration No. MDT 8706?
(b) If so, whether the petitioner had sustained injuries in the said accident only?
(a) Whether the petitioner is entitled to claim compensation amounts?
(b) If so, who are all liable to pay the compensation amounts?
What is the quantum of compensation amounts to be awarded to the petitioner?
To what other relief, the petitioner is entitled?
came to the conclusion that the accident was caused by the driver of the offending vehicle, because, on the crucial date, since the offending vehicle
dashed behind the motor-cycle with heavy force, the motorcycle was pushed to the front side and the front portion of the vehicle got badly
damaged. The Tribunal, finding that the oral testimony of P. Ws. 1, 2, 3, 4 & 5 have been properly corroborated by the First Information Report-
Ex. P1, the report of the Motor Vehicle Inspector-Ex. P4, outpatient sheet-Ex. P5, bills and prescriptions given by the doctors of Kannan hospital
in respect of the nature of injuries sustained by the first respondent, Ex. P10 series, held that the first respondent had sustained severe multiple
injuries and bleeding all over his body on the date of accident and the nature and description of the injuries having been found in the wound
certificate that was marked as Ex. P2 issued by the hospital and also considering the further fact that the first respondent took prolonged treatment
in various hospitals by spending huge amounts towards medical expenses and as a result the right leg knee movements as well as hip movements
were grossly restricted and reduced and that the first respondent could not perform any work practically due to the permanent disability sustained
by him, awarded the compensation of Rs. 6,00,660/- under various heads.
Assailing the order of the Tribunal and the finding given by the Tribunal fixing the liability on the insurance company and also for the award of
huge amount of compensation, Mr. K. Bhaskaran, learned counsel for the appellant heavily contended that the Tribunal committed a serious error
in not following the judgment of a Division Bench of this Court in the case of United India Insurance Company Ltd., Branch Officer Vs. Veluchamy
and Another, wherein the principles governing the assessment of damages in personal injury cases have been clearly formulated to the effect that in
all cases of injury or permanent disablement, the multiplier method cannot be mechanically applied to ascertain the future loss of income or earning
power, as 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. The above said principles have been completely overlooked by the Tribunal while
awarding the compensation to the first respondent. He further contended that the principles laid down by the Apex Court in the case of Raj Kumar
Vs. Ajay Kumar and Another, have also been completely overlooked by the Tribunal, inasmuch as in the said judgment, it has been clearly held
that a mere production of a disability certificate or discharge certificate would not be a proof of the extent of disability, unless the doctor who
treated the patient or who medically examined and assessed the extent of disability is tendered for cross examination with reference to the
certificate. Therefore, when the Tribunal is not bound to accept the disability certificate as a gospel truth, the burden of proof as to the disability,
which is always on the claimant, has not been satisfactorily established before the Tribunal for the nature of disability suffered by the first
respondent.
Arguing further, it was pleaded by the learned counsel for the appellant that as per the judgment in Raj Kumar''s case mentioned supra, the
Tribunal has to decide whether there is any permanent disability and if so, the extent of such permanent disability. Therefore, it follows that the
Tribunal should consider and decide with reference to the evidence, namely, whether the disablement is permanent or temporary and if the
disablement is permanent, whether it is permanent total disablement or partial disablement and if the disablement percentage is expressed with
reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body should be decided. Admittedly,
the above procedure have not been adopted by the Tribunal. On the other hand, simply accepting the wound and disability certificates, the
Tribunal held that the first respondent-claimant suffered 56 per cent disability and only on that basis, a huge amount of Rs. 6,00,660/- was
awarded as compensation. He further pleaded that when the medical bills are taken for scrutiny, the name of the first respondent is not even found
in some of the medical bills. While so, awarding a sum of Rs. 1,99,410/- towards the medical bills as per Ex. P10 series is not only highly
exaggerated, but also based only on fabricated documents. According to his calculation, only a sum of Rs. 31,749/- was spent towards medical
bills and therefore the said amount should have been awarded under the head of medical bills. Even this vital calculation has not been properly
dealt with by the Tribunal. On this basis, he prayed for interference with the award of the Tribunal.
Mr. M. Palanisamy, learned counsel for the first respondent-claimant, heavily opposing the above submissions, replied that the evidence of P.W.
1 clearly demonstrated the manner and the cause of the accident, inasmuch as the driver of the offending vehicle clearly admitted his guilt on the
charges levelled against him and the criminal Court, after accepting his admission, convicted the driver of the offending vehicle. Therefore, the
judgment of the criminal Court became the admissible and relevant document before the proceedings that had taken place in the Tribunal. When it
is a settled law that the judgment of the criminal Court becomes an admissible and relevant document, the Tribunal, accepting the judgment of the
criminal Court, entertained the claim petition preferred by the first respondent, who became a victim of the unfortunate accident, as a result, a
finding was given that the first respondent was unable to sit on the floor by folding the legs and he was still having the tenderness of pain while
walking normally. The Tribunal also held that the bone fracture sustained by the first respondent would be a great handicap in the normal avocation
of his life. When this reasoned finding has been given by the Tribunal that the first respondent was unable to sit on the floor by folding the legs and
unable to ride the motor cycle due to the serious disability and that his future prospects are severely affected, the appellant cannot plead for
escaping from the liability being fastened on them.
Heard the learned counsel on both sides. Three factors were admittedly proved by the first respondent-claimant and the Tribunal also accepted
the same. Firstly, when the first respondent brought the claim stating that on 4.7.2009 at about 9.00 p.m., when he was going on his TVS-XL
Super motor cycle, near Gandarvakottai to Sengipatti road, a lorry bearing Registration No. MDT-8706 coming behind his motor cycle dashed
against his motor cycle, resultantly, he sustained severe multiple injuries and also bone fracture on his body. It was also claimed that immediately
thereafter, he was taken to the Government Hospital, Thanjavur for medical treatment, where he was admitted as an in-patient and taking
treatment for several days. Subsequently, he was shifted to the private hospitals. In view of the prolonged illness, huge amounts were spent
towards medical expenses. On account of the unfortunate accident, it was the case of the first respondent that he was not able to do his business in
food grains and cereals, resultantly, he lost the monthly income of Rs. 10,000/-. The Tribunal, accepting the judgment of the criminal Court holding
the driver of the offending vehicle guilty on the basis of his admission that he alone was responsible for the cause of the accident on the particular
day and time, awarded the compensation. While the first respondent has proved the accident and also the injuries sustained by him, the question
posed by the appellant that the claimant failed to prove the accident does not arise. Although the normal rule is that the claimant should prove the
accident and the negligence of the driver of the offending vehicle, in the present case, the driver of the offending vehicle himself, while stepping into
the witness box before the criminal Court, has admitted to his guilt and on that basis, the criminal Court also convicted him. Therefore, the Tribunal,
knowing pretty well that the judgment of the criminal Court is an admissible and relevant document, accepted the cause for the accident and also
the multiple injuries suffered by the victim-first respondent. That apart, the Tribunal, by applying the principle of res ipsa loquitor, which means that
the accident speaks for itself and tells its own story, has concluded that the accident was caused due to the rash and negligent driving of the driver
of the offending vehicle bearing Registration No. MDT-8706 only. Having given a finding that the offending vehicle''s driver was alone responsible
for the cause of accident, the Tribunal has again, going to the oral evidence corroborated by the First Information Report-Ex. P1, sketch-Ex. P3,
motor vehicle inspector''s report-Ex. P4, outpatient sheet-Ex. P5 issued by the hospital, disability certificate-Ex. P12, noted down the following
injuries and fracture sustained by the first respondent on his body, which read as follows:-
(i) Right leg below knee level tibia and fibula bone fractures.
(ii) Right leg ankle fracture.
(iii) Steel plates implanted in the tibia and fibula bone fracture.
(iv) Even after proper medical treatment broken bones had joined wrongly causing mal union and deformity.
(v) He is limping while walking.
(vi) Twice operated to correct the broken bones, operated scar found on the lower end of the right leg.
(vii) Right leg ankle movements are grossly restricted and reduced. Lower end of the right leg ankle deformed.
In view of the above permanent disability sustained by the first respondent and on the basis of the disability certificate-Ex. P12, secondly it was
held that the first respondent has suffered 56% permanent disability. Having held so, it has also come to the conclusion that he was unable to sit on
the floor by folding the legs and he was still limping for all practical purposes at the time of walking besides being unable to drive the motor cycle.
In view of the permanent disability suffered by the first respondent and that his future prospects have been severely affected, as he had to lead a
miserable and crippled life, the Tribunal, by applying the ratio of the decision in Raj Kumar Vs. Ajay Kumar and Another, , has given a finding that
the first respondent''s permanent disability can be taken as 15% and fixed the monthly income at Rs. 3,500/-, even though he claimed Rs. 10,000/-
and adopted the multiplier of 15 and ultimately arrived at the sum of Rs. 3,52,800/- being Rs. 3500x12x15x56% under the head of permanent
disability. Further, it is not even the case of the appellant that the first respondent had not suffered grievous injuries and bone fracture as mentioned
above. Therefore, the finding of the Tribunal that the first respondent has suffered 56% of disability cannot be found fault with. In the light of the
above, the ratio laid down by the Apex Court in Raj Kumar''s case that the loss of earning capacity will have to be assessed by the Tribunal based
on the evidence in its entirety, in my considered opinion, has been rightly assessed by the Tribunal. Thirdly, in this case, since the Tribunal has
rightly acted on the disability certificate accompanied by the corroborative evidence, the same cannot be found defective. In respect of fixing the
compensation amount towards 56% permanent disability, when the Tribunal, rightly adopting the formula viz., Rs. 3500x12x15x56%, has
awarded Rs. 3,52,800/-, this Court does not see the said amount as either unreasonable or excessive. Therefore, the same is confirmed.
Regarding the award of compensation towards pain and suffering, a reasonable sum of Rs. 5,000/- has been awarded. Again the Tribunal has
given a reasonable amount of Rs. 5,000/- towards transportation, extra nourishment etc., therefore, the Tribunal, accepting the taxi fare as per Ex.
P11, has awarded Rs. 38,450/- under the said head. This Court finds that the amounts awarded under the above heads are reasonable and no
interference is called for. However, so far as the award of Rs. 1,99,410/- towards medical bills under Ex. P10 series is concerned, the learned
counsel for the appellant Mr. Bhaskaran heavily contended before this Court that in the medical bills produced before the Tribunal, the name of the
first respondent is not shown in some of the bills and therefore the amount awarded under the said head is excessive, since it is based on fabricated
documents. While replying to the said contention, the learned counsel for the first respondent submitted that most of the bills were issued in the
name of the first respondent and only by mistake and inadvertence, some bills were issued without writing the name of the first respondent. But he
contended that since this objection was not raised before the Tribunal, it is not now open to the appellant to assail the quantum of compensation
given under the head of medical bills. The argument advanced by the learned counsel for the first respondent does not merit acceptance before this
Court, for the reason that the medical bills relied on by the Tribunal are also placed before this Court. This Court, on perusal of the medical bills, is
able to see only a sum of Rs. 1,90,570/- spent on medical bills instead of Rs. 1,99,410/- awarded by the Tribunal under this head. Therefore,
except modifying the compensation awarded under the head medical bills from Rs. 1,99,410/- to Rs. 1,90,570/-, the civil miscellaneous appeal is
disposed of confirming the finding of the Tribunal on all other heads. Consequently, M.P. (MD) No. 1 of 2012 is closed. No costs.