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NARAYANASAMY PILLAI versus NAGARAJAN

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Narayanasamy Pillai v. Nagarajan - C.M.A.(MD)No.744 of 2000 [2007] RD-TN 551 (12 February 2007)

BEFORE TEH MADURAI BENCH OF MADRAS HIGH COURT

DATED: 12/02/2007

CORAM:

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

C.M.A.(MD)No.744 of 2000

Narayanasamy Pillai ... Appellant Vs

1.Nagarajan

2.The Divisional Manager,

United India Insurance Co.,

Kumbakonam. ... Respondents This Civil Miscellaneous Appeal is preferred under Section 173 of M.V. Act, against the fair and decreetal order of te learned Moor Accidents Claims Tribunal (Sub-Court), Kumbakonam, made in M.C.O.P.No.344/97 dated 02.02.1999 in so for as disallowed portion is concerned.

For Appellant ... Mr.V.K.Vijayaraghavan For 1st Respondent ... Mr.M.Ajmal Khan

:JUDGMENT



This Civil Miscellaneous Appeal is directed against the award dated 02.02.1999 passed by the Motor Accident Claims Tribunal (Sub Judge), Kumbakonam, in M.C.O.P.No.344/97 so far as disallowed portion of the claim is concerned.

2. Aggrieved by the insufficiency of the compensation awarded by the Tribunal in M.C.O.P.No.344/97 by its award, dated 02.02.1999, the injured claimant has preferred this Civil Miscellaneous Appeal seeking enhancement of compensation. The Injured claimant filed the above said M.C.O.P.No.344/97 under Section 166 of the Motor Vehicles Act, 1988, against the owner and insurer of the alleged offending vehicle, namely a lorry bearing Registration Number TNO.6768, claiming a sum of Rs.7,00,000/- as compensation for the injuries sustained by him in a road accident that took place on 31.05.1996.

3. According to the claimant, while he was proceeding in his bicycle from his residence in Athur Village to Nachiyarkovil on 31.05.1996, at about 2.00 P.M., near Siluvapadi Bus stop in Mathur Village, the above said lorry bearing registration number TNO.6768 came in the same direction driven by its driver in a rash and negligent manner and hit him from behind, as a result of which, the claimant sustained grievous injuries on his right leg and head. Further contention of the petitioner made in his claim petition is that even the best treatment given at the hospital could not prevent the amputation of his right leg below the knee and hence the respondents/owner and insurer of the offending vehicle were liable to pay compensation. In support of his claim the claimant examined himself as P.W.1 and one Dr.N.Somasundaram as P.W.2. In addition, six documents were marked as documentary evidence on the side of the claimant.

4.The Second Respondent/insurer filed a counter statement and the same was adopted by the first respondent/owner of the lorry. By filing such counter statement, the respondent contented that the claimant who was driving his bicycle in a zig zag manner, on hearing the horn sound of the lorry, took a right turn and tried to cross the road and in such an attempt, due to his own negligence, dashed against the lorry and invited the accident. They have also disputed the averment made by the claimant in his claim petition regarding his age, occupation, income, nature of injuries and the extent of disability. The second respondent/insurer also disputed its liability to pay compensation contenting that the driver of the lorry did not possess valid driving licence and hence, there was a violation of a condition of the policy giving a right to the insurer to rescind the contract of Insurance. On behalf of the respondents no witness was examined and no document was marked.

5. After analysing the evidence adduced before it in the light of the argument advanced on both sides, the Tribunal held that the driver of the lorry was responsible for the accident and awarded a sum of Rs.70,000/- as compensation as against the claim of Rs.7,00,000/-, with interest at the rate of 12 per annum from the date of petition till deposit.

6. In respect of the disallowed portion of the claim, the petitioner has come on appeal before this Court. The respondents have not chosen to file either an appeal or cross objection challenging the award of the Tribunal holding them liable to pay compensation to the claimant. Therefore, the question of negligence has become a closed chapter, which cannot be re-opened in this appeal. The only question that arises for consideration in this appeal is as follows:-

"Whether the compensation awarded by the Tribunal is unreasonably low and requires upward revision?"

7. It is not in dispute that the petitioner sustained injuries in a road accident, involving the lorry bearing registration No. TNO.6768 belonging to the first respondent and insured with the second respondent, that took place on 31.05.1996 at about 2.00 P.M. near Siluvapadi Bus stop in Mathur Village, and that the claimant sustained head injuries and grievous injuries on the right leg. It is also not in dispute that the injuries sustained over the right leg lead to the amputation of the right leg below the knee. The said facts are amplified by the evidence of P.W1/the claimant and P.W.2, the medical officer who issued the disability certificate. The disability certificate issued by P.W.2 has been marked as Ex.A5. Ex.A1 is the certified copy of the First Information Report and Ex.A3 is the certified copy of the Accident Register. They support the case of the claimant that he sustained serious injuries leading to his hospitalisation and ultimate amputation of the right leg below the knee. Ex.A6, the X-ray film, also confirms the fact that the claimant's right leg has been amputated below the knee leaving a stem of 12 c.m. It is also evident from the testimony of P.W.2 that an artificial limb had been fitted for the right leg at the time of examination by the P.W.2. The Doctor has assessed the disability at 50 and certified the same to be of permanent nature. The tribunal accepted the evidence of P.W.2 and assessed the disability at 50 and awarded a sum of Rs.70,000/- as compensation with the following split up particulars:- Compensation for the permanent disability = Rs.50,000/- Pain and suffering = Rs.10,000/- Transport Expenses = Rs. 1,000/- Expenses for extra nourishment = Rs. 1,000/- Loss of happiness and amenities = Rs. 8,000/- ------------ Total = Rs.70,000/- ------------

8. The Tribunal has adopted the method of awarding a lump sum payment for the disability sustained by the claimant. While adopting the lump sum payment for the disability which will take into its fold the loss of future earning capacity and loss of amenities in life, no separate amount can be awarded towards loss of happiness and amenities in life. On the other hand, if loss of future earning capacity is taken into account and compensation awarded for the same, a separate amount of compensation cannot be awarded for permanent disability as such. But, besides awarding compensation for loss of earning capacity, there is no bar for awarding compensation for loss of happiness and amenities in life. This point has been elucidated by a Full Bench Judgment of this Court reported in 2006 4 CTC 433 (Cholan Roadways Corporation Ltd., Vs. Ahmed Thambi and others). While holding that the Tribunal has adopted an erroneous approach by awarding separate amounts as compensation on two items, namely permanent disability and loss of happiness and amenities, this Court is of the view that adopting the method of awarding separate amounts for loss of earning capacity and amenities in life, without awarding lump sum amount for permanent disability, shall be more beneficial to the claimant and hence more suitable in this case.

9. Even though the Tribunal discussed the pleadings and evidence regarding the age of the claimant it has not given any definite finding. The learned counsel for the appellant argued that the Tribunal has committed an error in coming to the conclusion that the claimant would not have earned any thing before the accident and that he would have been a dependent on the other members of his family and disallowing his claim for compensation for the loss of earning capacity suffered by the claimant. It is the contention of the claimant that he was having a monthly income of Rs.4,000/- as an agriculturist and land broker. The Tribunal has rightly held that the interested testimony of P.W.1 that he was doing a business as land broker and having considerable income, in the absence of any corroboration, could not be believed. The Tribunal has also rightly rejected the contention of the claimant that he was a Miras, in the light of his admission during cross examination that he was cultivating lease hold lands. Even in support of the said evidence of P.W.1 that he was cultivating lease hold lands, there is no document or other corroboratory evidence. As such, it cannot be held that the Tribunal has committed an error in disbelieving the evidence of P.W.1 that he was an agriculturist.

10. On the other hand, the Tribunal seems to have made contradictory observations as follows:-

"Belonging to the muscular gender the claimant could have been engaged as coolie. But considering the age of the claimant, it should be held that he could not have earned any thing as an agricultural coolie." This contradictory views expressed by the Tribunal has been attacked by the learned counsel for the petitioner. The claimant in his claim petition has given his age as 55. While deposing as P.W1 he seems to have stated that he was aged 55 years. Documents like birth certificate or school certificate have not produced to prove the age of the claimant. But in Ex.A3, Accident Register his age has been entered as 60 years. As it can be presumed that the age in the Accident Register could have been entered based on the information furnished by the claimant, we can rely on the said document to decide the age of the claimant as on the date of accident. The same is corroborated by Ex.A5, the disability certificate issued by P.W.2, which shows that the claimant was aged 62 years on the date of examination by P.W.2 namely, 16.11.1988. Therefore, this Court comes to a conclusion that the petitioner was aged more than 60 years and below 65 years on the date of accident.

11.Even though, there is no concrete and reliable evidence regarding the occupation and income of the claimant, considering the fact that there are clear evidence to the effect that he was very hale and healthy before the accident, this court is not in a position to accept the view expressed by the Tribunal that the claimant would have been dependent on others and would not have earned anything. In the absence of any clear cut evidence, at least notional income could have been adopted. If the notional income (Rs.15,000/-P.A)is taken to be the income of the claimant before the accident, then assuming that the petitioner has lost 50 of his earning capacity, the annual loss of earning capacity could be assessed only at Rs.7,500/-. As the claimant was aged more than 60 years on the date of claim, adopting the multiplier 5, the damages for loss of future earning capacity can be assessed at (7500 x 5)= Rs.37,500/-.

12.The Tribunal has not awarded any amount towards loss of earning from the date of accident till recovery. Taking into consideration the nature of the injuries sustained by the petitioner, it can be assumed that at least for a period of four months the petitioner would have required rest. During such period total loss of earning would have occurred. As the notional income of the claimant is adopted, the loss of earning for the four months is arrived at Rs.5,000/-. Even though no document has been produced to show that the claimant spent any amount for medical expenses, we cannot deny that at least some amount could have been spent for the purchase of medicines. It is evident from the testimony of P.W.2 that an artificial leg has been fitted for the amputated part of the right leg. Some amount could have been spent for the same. Even though no bill has been produced leading to an inference that he might have got it free of cost, we can't deny that after some time a need may arise for fixing a new one, may be at a subsidised rate. Therefore I am of the view that awarding a sum of Rs.7500/- for medical expenses shall be reasonable. For the injury which resulted in amputation of one of the legs below the knee level besides another head injury, the Tribunal has awarded only a sum of Rs.10,000/- as compensation for pain and suffering. This is definitely on the lower side, and hence, requires enhancement. A sum of Rs.25,000/- in this regard shall be reasonable. The amount awarded by the Tribunal towards transport expenses and extra nourishment on each item should be enhanced to Rs.2000/- and Rs.3000/- respectively. For the loss of happiness and amenities in life due to the amputation and resultant disability a sum of Rs.8,000/- awarded by the Tribunal may be enhanced to Rs.10,000/-. Hence, the total amount of compensation to which the petitioner/claimant shall be entitled is assessed at Rs.90,000/-. The split up particulars are as follows:-

Loss of earning during treatment Rs. 5,000/- Loss of future earning capacity Rs. 37,500/- Medical Expenses Rs. 7,500/- Pain and Suffering Rs. 25,000/- Transport expenses Rs. 2,000/- Extra Nourishment Rs. 3,000/- Loss of happiness and amenities Rs. 10,000/- in life

============ Total = Rs. 90,000/- ============

13. In view of the discussion made above, this Court comes to a conclusion that the claimant shall be entitled to an enhancement of compensation by Rs.20,000/- making the total compensation to which the claimant will be entitled Rs.90,000/-. Subject to the above said modification, in all other respects the award of Tribunal shall be confirmed.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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