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Judgment
P.P.S. Janarthana Raja, J.—The Civil Miscellaneous Appeal is preferred by the Insurance Company and the Cross Objection is preferred
by the Claimant against the judgment and Decree dated 30.01.2010 made in M.C.O.P. No. 71 of 2005 on the file of the Motor Accidents Claim
Tribunal, Additional Subordinate Judge, Kumbakonam.
When the matter came up for admission, the learned Counsel appearing for the Appellant stated that the Cross Objection was also filed by the
claimant. By consent of the learned Counsel appearing for both the parties, the Civil Miscellaneous Appeal and the Cross Objection are taken up
for final disposal.
Background facts in a nutshell are as follows:
The injured-Jaiveerchand met with motor traffic accident on 09.09.2004 at about 9.00p.m. The said injured was travelling in an auto-rickshaw
bearing registration No. TN-49-T-3835 owned by the second Respondent in the C.M.A. as well as Cross Objection, for the purpose of
delivering the manufactured note books from lakshmi Note Book Centre situated at No. 192, Big Street, Kumbakonam to the customer at
Vaitheeswarankoil. After delivering the goods, the claimant was returning from Vaitheeswarankoil to Kumbakonam. When the auto-rickshaw was
proceeding near Mayiladuthurai over bridge from East to West direction, a milk van was coming from the opposite direction in a rash and negligent
manner. In order to avoid the said milk van, the auto-rickshaw driver turned the vehicle on the left side of the road due to which he lost his control
of the auto-rickshaw and subsequently, the auto-rickshaw was capsized. Due to the impact, the injured sustained multiple injuries and a fracture on
his left arm. He claimed a compensation of Rs. 7,00,000/- before the Tribunal. The said auto-rickshaw was insured with the Appellant/Insurance
Company in C.M.A., who resisted the claim. On pleadings, the Tribunal framed the following issues:
Whether the accident had occurred due to the rash and negligent driving of the driver of the auto-rickshaw belonging to the second
Respondent?
Whether the claimant is entitled for compensation ''if so how much'' 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 auto-rickshaw and awarded a compensation of Rs. 2,84,000/- with interest at 7.5% per annum from the date of petition. The
details of the compensation are as under:
For loss due to 85% disability Rs. 85,000/-
For medical expenses Rs. 1,61,000/-
For pain and suffering Rs. 20,000/-
For transport and extra
nourishment Rs. 6,000/-
For loss of income during the
period of treatment Rs. 12,000/-
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Total Rs. 2,84,000/-
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Aggrieved by that award, the Appellant Insurance Company has filed the C.M.A. The claimant has filed the cross objection for enhancement of
the compensation.
Learned Counsel appearing for the Insurance Company contended that the injured not travelled in a goods vehicle and therefore, the Insurance
Company is not liable to pay any compensation. He further contended that the amount awarded by the Tribunal is excessive, exorbitant and also
without any basis and justification. Therefore, the award passed by the Tribunal is not in accordance with law and the same has to be set aside.
Learned Counsel appearing for the claimant/cross objection has submitted that the Tribunal has awarded a very low and meagre sum of
compensation and the Tribunal ought to have awarded the amount as claimed by the claimant. The Tribunal has not considered all the relevant
materials and it has not followed the principles of assessment before passing the award and it is a fit case for enhancement.
Heard the counsel and perused the materials available on record. On the side of the claimant, P.W.1 to P.W.3 were examined and documents
Exs.P.1 to P.21 were marked. P.W.1 is the claimant. P.W.2 is the employer of the claimant. P.W.3 is Dr. Chandrasekaran. Ex.P.1 is the First
Information Report. Ex.P.2 is the M.V.I. Report. Ex.P.3 is the wound certificate. Ex.P.4 is the discharge summary. Ex.P.5 is the certificate. Ex.P.6
is the medical bills. Ex.P.7 is the receipt. Ex.P.8 are the receipts. Ex.P.9 is the receipt. Ex.P.10 is the bill. Ex.P.11 is the receipt. Ex.P.12 is the bill.
Ex.P.13 is the bill. Ex.P.14 are the receipts. Ex.P.15 is the certificate. Ex.P.16 is the authorization. Ex.P.17 is the driving license. Ex.P.18 is the
wound certificate. Ex.P.19 is the quotation. Ex.P.20 is the disability certificate. Ex.P.21 is the X-ray. On the side of the Insurance Company,
R.W.1, Venkatakrishnan, the official of the Insurance Company was examined and documents Exs.R.1 to R.3 were marked. Ex.R.1 is the
insurance policy. Ex.R.2 is the claim form. Ex.R.3 is the statement of the driver. In the present case, there is no dispute that the injured claimant
was an employee of P.W.2, Venkatesan and the said claimant travelled along with goods for the purpose of delivering goods. When they were
returning to the office after delivering the goods, the vehicle met with the accident. After considering the above oral and documentary evidence, the
Tribunal had given a categorical finding that the injured travelled along with his goods and the Insurance Company is liable to pay compensation. It
is a question of fact and therefore the same is confirmed.
The injured claimant was 60 years old at the time of accident. In the evidence of P.W.1, it is stated that the injured claimant was working as an
Assistant in Sri Shanthi Trading Company, the second Respondent in both C.M.A and cross objection and was earning a sum of Rs. 4,000/- p.m.
Further in his evidence, it is stated that it is only the driver of the auto-rickshaw has caused the accident and he was charge sheeted by
Mayiladuthurai Police Station in Cr. No. 1492 of 2004 under Sections 279 and 338 of I.P.C. Due to the accident, the claimant sustained fracture
on the left arm and abrasions on his left cheek and also multiple injuries all over the body. Subsequently, his left arm was amputated. Immediately
after the accident, he was admitted in the Government Hospital, Kumbakonam. Later he was referred to Thanjavur Medical College Hospital and
subsequently, he has taken treatment in Vinodhakan Memorial Hospital, Thanjavur. P.W.3 is Dr. Chandrasekaran, who examined the injured
claimant and determined the disability at 85%. Ex.P.20 is the disability certificate. He also stated in his evidence that the claimant sustained fracture
on the left arm and abrasions on his left cheek and multiple injuries all over the body. Due to the injuries and amputation, the injured claimant
cannot do his work as before. After considering the facts and circumstances of the case, the Tribunal has awarded a sum of Rs. 85,000/- towards
loss due to 85% disability. 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]
After considering the principles enunciated in the judgment cited supra, let me consider the facts of the present case.
In this case there is an amputation of left arm. Normally the Courts award a sum of Rs. 1,000/- to Rs. 2,000/- per percentage of disability. After
taking into consideration the evidence of the doctor P.W.3 as well the documentary evidence available on record, it is reasonable to award a sum
of Rs. 2,000/- per percentage of disability. If a sum of Rs. 2,000/- is awarded the loss due to 85% disability works out to Rs. 1,70,000/-. Hence,
the claimant is entitled to Rs. 1,70,000/- towards loss due to 85% disability as against a sum of Rs. 85,000/- awarded by the Tribunal. The
Tribunal has awarded a sum of Rs. 1,61,000/- towards medical bills. Exs.P.6 to P.14 are the series of medical bills. It is an actual expenditure and
also there is no dispute that the injured has taken treatment in various hospitals. Also the amount awarded by the Tribunal towards this head is very
reasonable and hence it is confirmed. The Tribunal has also awarded a sum of Rs. 20,000/- towards pain and suffering. After taking into
consideration the nature injuries and also the amputation of the left arm, it is reasonable to award a sum of Rs. 25,000/- towards this head. Hence,
the claimant is entitled to Rs. 25,000/- towards pain and suffering as against a sum of Rs. 20,000/- awarded by the Tribunal. The Tribunal has also
awarded a sum of Rs. 6,000/- towards transport charges and extra nourishment. Considering the fact that the injured has taken treatment in the
Government Hospital and in various hospitals, it is reasonable to award a sum of Rs. 10,000/- towards transport charges and extra nourishment.
Hence, the claimant is entitled to Rs. 10,000/- towards transport charges and extra nourishment as against a sum of Rs. 6,000/- as awarded by the
Tribunal. The Tribunal has also awarded a sum of Rs. 12,000/- for loss of income for three months i.e during the period of treatment. It is very
reasonable and hence, the same is confirmed. Further, the Tribunal has not awarded any sum towards loss of amenities. After taking into
consideration the facts and circumstances of the case, it is reasonable to award a sum of Rs. 6,000/- towards loss of amenities. Hence, the
claimant is entitled to a sum of Rs. 6,000/- towards loss of amenities. The Tribunal has also awarded 7.5% interest p.a. from the date of petition.
After taking note of the date of accident, the date of award and also the prevailing interest during the period, the interest awarded by the Tribunal is
very reasonable and hence, the same is confirmed.
The details of the modified compensation as per the above discussion are as under:
For loss due to permanent
disability Rs. 1,70,000/-
For medical expenses Rs. 1,61,000/-
For pain and suffering Rs. 25,000/-
For transport and
extra nourishment Rs. 10,000/-
For loss of income during
the treatment period Rs. 12,000/-
For loss of amenities Rs. 6,000/-
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Total Rs. 3,84,000/-
Less the amount awarded
by the Tribunal Rs. 2,84,000/-
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Enhanced amount Rs. 1,00,000/-
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Therefore, the claimant is entitled to the enhanced compensation of Rs. 1,00,000/- with interest at 6%p.a. from the date of claim petition.
It is stated that the Insurance Company has already deposited the award amount of Rs. 2,84,000/- with interest at 7.5% per annum, as per
order of this Court dated 19.07.2010. The Insurance Company is directed to deposit the enhanced compensation of Rs. 1,00,000/- with 6%
interest p.a. from the date of claim petition within a period of six weeks from the date of receipt of a copy of this order. In respect of the deposited
amount of Rs. 2,84,000/- with interest at 7.5% per annum, the claimant is permitted to withdraw the amount on making proper application. Further
on deposit of the enhanced amount, the claimant is permitted to withdraw the same on making proper application.
With the above modification, the Civil Miscellaneous Appeal and the Cross Objection are disposed of. Consequently, connected
Miscellaneous Petition is closed. No costs.