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Judgment
P.P.S. Janarthana Raja, J.—This Civil Miscellaneous Appeal is preferred by the Appellant-Insurance Company against the judgment and Decree dated 15.06.2004 made in M.C.O.P. No. 2137 of 1999 on the file of the Additional District Sessions Judge-Fast Track Court No. 1, Madurai
M.P.(MD) No. 1 of 2010 came up today for restoring the C.M.A.(MD) No. 182 of 2005 by setting aside the dismissal order dated 04.08.2010. Learned Counsel for the first Respondent has no objection to restore the C.M.A. Being satisfied with the reasons stated in the affidavit filed in support of this miscellaneous petition, M.P.(MD) No. 1 of 2010 is allowed. By consent of the learned Counsel for both the parties, the Civil Miscellaneous Appeal itself is taken up for final disposal.
Background facts in a nutshell are as follows:
The injured claimant Balasubramanian met with motor traffic accident on 03.04.1999 at about 2.30p.m. The said injured was travelling in a private Ambassador car bearing Registration No. TN-72-Z-9349 belonging to the second Respondent from Madurai to Chennai. When the car was proceeding near Melur, the driver drove the car in a rash and negligent manner and hit against a palm tree standing on the left side of the road. Due to the said impact, the claimant suffered multiple injuries and also a fracture in the left hip. He claimed a compensation of Rs. 4,00,000/-before the Tribunal. The said Ambassador car was insured with the Appellant-Insurance Company 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 Ambassador car belonging to the second Respondent or not?
Whether the Appellant-Insurance Company is liable to pay compensation?
Whether the claimant is entitled for compensation? If so, what is the amount and 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 Ambassador car belonging to the second Respondent and awarded a compensation of Rs. 2,52,739/-with interest at 9% per annum from the date of petition. The details of the compensation are as under:
For loss due to 50% disability Rs. 50,000/- For loss of earning Rs. 1,18,400/- For medical bills Rs. 56,339/- For pain and suffering Rs. 5,000/- For loss of income during the treatment period Rs. 18,000/- For extra nourishment, transport and other expenses Rs. 5,000/- Total Rs. 2,52,739/- Aggrieved by that award, the Appellant-Insurance Company has filed the present appeal.
Learned Counsel appearing for the Appellant-Insurance Company questioned only the quantum of compensation awarded by the Tribunal and contended that the amount awarded by the Tribunal is excessive, exorbitant and also without any basis and justification. He further contended that when the Tribunal awarded compensation of Rs. 50,000/-towards loss of income due to 50% disability, it ought not to have awarded compensation towards loss of future income at Rs. 1,18,400/-. 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 first Respondent-claimant submitted that the Tribunal had considered all the relevant materials and evidence on record and came to the right conclusion and awarded a just, fair and reasonable compensation. It is a question of fact and also it is based on valid materials and evidence. Hence the order of the Tribunal is in accordance with law and the same has to be confirmed.
Heard the counsel on either side and perused the materials available on record. On the side of the first Respondent-claimant, P.W.1 and P.W.2 were examined and documents Exs.P.1 to P.17 were marked. P.W.1 is the claimant. P.W.2 is the Doctor.P. Ws.3 and 4 are the co-employees of the claimant. Ex.P.1 is the certified copy of the First Information Report. Ex.P.2 is the certified copy of the charge sheet. Ex.P.3 is the certified copy of judgment in C.C. No. 436 of 1999. Ex.P.4 is the wound certificate. Ex.P.5 is the Discharge Summary issued by Meenakshi Mission Hospital, Madurai. Ex.P.6 is certificate issued by the Meenakshi Mission Hospital, Madurai. Ex.P.7 are the medical bills issued by Meenakshi Mission Hospital, Madurai. Ex.P.8 are the series of medical bills. Ex.P.9 is the identity card given by M/s Super news. Ex.P.10 is the Press Identity Card. Ex.P.11 is the X-ray. Ex.P.12 is the disability certificate. Ex.P.13 is the salary certificate given by Samakra Sithara newspaper. Ex.P.14 is the certificate given by Samakra Sithara newspaper. Ex.P.15 is the certificate given by the Express Publications. Ex.P.16 is the salary certificate given by Tamil Murasu. Ex.P17 is the certificate given by Vivek Publications. On the side of the Appellant-Insurance Company, R.W.1-P. Nagalingam and R.W.2-Rajendran were examined and Ex.R.1-the copy of the Insurance Policy and R.W.2-the M.V.I. report were marked. After considering the oral and documentary evidence, the Tribunal had given a categorical finding that the accident had occurred only due to the rash and negligent driving of the driver of the Ambassador car. It is a question of fact and also it is based on valid materials and evidence. Therefore the same is confirmed.
The injured claimant was 35 years old at the time of accident. He was a Newspaper Circulation Manager and also a Reporter of Cinema Ulagam. P.W.1 is the claimant. In his evidence, it is stated that he was earning a sum of Rs. 6,000/- per month. Further in his evidence, it is stated that itwas only the driver of the Ambassador car who has caused the accident andthe driver was also charge sheeted by the Otthakadai Police Station, C-1, Melur Taluk, Madurai District. Further it was stated that due to the accident, the claimant sustained the following injuries:
Fracture acetabulum with dislocation left hip
Comminuted frochanteric fracture left
Laceration left forehead with glass pieces
Other multiple injuries.
Immediately after the accident, he was admitted in the Meenakshi Mission Hospital and Research Centre, Department of Orthopaedics and Traumatology, Lake area, Melur Road, Madurai where he was treated as inpatient for a period of 18 days i.e. from 03.04.1999 to 20.04.1999. Exs.P.7 and P.8 are the series of medical bills. After considering the above, the Tribunal has awarded a sum of Rs. 56,339/- towards medical bills. It is an actual expenditure. The amount awarded by the Tribunal towards this head is also very reasonable and hence, the same is confirmed. P.W.2 is the doctor, who examined the claimant and determined the disability at 50%. Ex.P.12 is the disability certificate. In the evidence of the doctor, it is stated that a surgery was done in the right leg of the claimant and a steel plate was also inserted and the injured claimant has taken treatment as inpatient for a period of 18 days. Due to the shortage of 4cms in the right leg, the the injured claimant is unable to bend the leg and he is also unable to stand, sit, climb and walk substantially. Considering the nature of injuries and the evidence of the doctor, the Tribunal has awarded a sum of Rs. 50,000/- towards loss due to 50% disability. After awarding the above sum, the Tribunal has also awarded a sum of Rs. 1,18,400/- towards loss of earning by adopting multiplier method. The Tribunal has taken a sum of Rs. 1,850/- as monthly income and computed the loss of income by adopting "16" multiplier as follows:
Rs. 1,850/-x12x16 = Rs. 3,55,200/-
Out of the above sum, 1/3rd was deducted towards personal expenses i.e. a sum of Rs. 1,18,400/-and the balance sum of Rs. 2,36,800/-has been taken as the loss due to disability and since the injured sustained 50% disability, the Tribunal determined the loss of earning as Rs. 1,18,400/- (Rs. 2,36,800/-x 50/100). 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 (SC), 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....
In the case of The Divisional Controller, KSRTC Vs. Mahadeva Shetty and Another, , 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 abou t 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]
Taking note of the principles enunciated in the above judgment, it is a fit case for adopting multiplier method. The Tribunal has correctly determined the monthly income, adopted the correct multiplier of 16 and arrived at the loss of earning at Rs. 1,18,400/-. There is no dispute regarding the same and hence it is confirmed. In view of the Full Bench decision of this Court in the case of Cholan Roadways Corporation Limited v. Ahamed Thambi and Ors. reported in 2006(3) L.W.1025, since I have confirmed the amount awarded towards loss of earning at Rs. 1,18,400/-, the award of the Tribunal at Rs. 50,000/-in respect of loss due to 50% disability is unwarranted and hence, the same is deleted. The Tribunal has awarded a sum of Rs. 5,000/-towards pain and suffering which is very low. Considering the nature of injuries, it is reasonable to award a sum of Rs. 10,000/-as against a sum of Rs. 5,000/-as awarded by the Tribunal. The Tribunal has also awarded a sum of Rs. 18,000/-toward loss of income during the period of treatment. There is no concrete evidence on record to show that the injured has really suffered loss of income during the period of treatment. Hence, the amount awarded by the Tribunal at Rs. 18,000/-towards loss of income during the period of treatment is unwarranted and accordingly it is deleted. The Tribunal has also awarded a sum of Rs. 5,000/-towards extra nourishment, transport expenses and other miscellaneous expenses, which is very low. Taking into consideration the fact that the claimant was in the hospital for a period of 18 days as inpatient and after discharge, he has taken treatment as outpatient, it is reasonable to award a sum of Rs. 10,000/-towards these heads as against a sum of Rs. 5,000/-awarded by the Tribunal. The Tribunal has also awarded an interest of 9% 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 of earnig Rs. 1,18,400/- For medical bills Rs. 56,339/- For pain and suffering Rs. 10,000/- For extra nourishment, transport and other expenses Rs. 10,000/- Total Rs. 1,94,739/- (Rounded off to Rs. 1,94,800/-)
The claimant is entitled to the modified compensation of Rs. 1,94,800/-with interest at 9% per annum from the date of petition as against the sum of Rs. 2,52,739/-with interest at 9% p.a. awarded by the Tribunal.
It is stated that the Insurance Company has deposited the entire award amount, as per the order of this Court dated 10.02.2005 and the claimant has also withdrawn 50% of the award amount. Under these circumstances, the claimant is permitted to withdraw the modified compensation of Rs. 1,94,800/-with 9%p.a. interest from the date of the petition, less the amount already withdrawn, on making proper application. The Insurance Company is also permitted to withdraw the balance amount on making proper application.
With the above modification, the Civil Miscellaneous Appeal is disposed of. Consequently, connected Miscellaneous Petition is closed. No costs.