Madras High Court
Tamilkumaran ... 3Rd vs Senthilkumar ... Petitioner on 19 November, 2010
Bench: R.Banumathi, T.Raja
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/11/2010 CORAM THE HONOURABLE Mrs. JUSTICE R.BANUMATHI And THE HONOURABLE Mr.JUSTICE T.RAJA C.M.A.(MD)No.139 of 2004 Tamilkumaran ... 3rd Respondent/Appellant & 2nd Respondent vs 1. Senthilkumar ... Petitioner 2. M/s.Annamalai Roadways Corporation 24/2B, Pudhu Seerapalayam Village Eachenery Post, Kovai ... 1st Respondent/Respondents 3. United India Insurance Company Ltd., Divisional Office-5, Kovai (Appellant 2 transposed as 3rd respondent vide order dated 9.11.2010 made in CMA (MD).No. 139/2004. PRAYER Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Judgment and Decree dated 27th April, 2004 and made in MACT O.P.No. 469 of 2001 on the file of the Motor Accident Claims Tribunal (Chief Judicial Magistrate), Karur. *** !For Appellant ... Mr.Prabhu Rajadurai ^For 1st Respondent ... Mr.K.Angayarkanni for M/s.K.Sukumaran For 3rd Respondent ... Mr.I.Robert Chandra Kumar :JUDGMENT
(Judgment of the Court was delivered by R.Banumathi. J.,) Being aggrieved by the award of compensation of Rs.27,45,000/-, the owner of the lorry has preferred this Appeal. Initially the Appellant as well as the Insurance Company have jointly filed the Appeal. On memo being filed, the Second Appellant /Insurance Company was transposed as the third respondent.
2. The brief facts are that:
On 11.4.2001 at about 00.55 A.M., in Velur to Namakkal Main Road, at Milk Chilling Centre, the driver of the lorry bearing the Regn. No. TN-37-Q0790, drove the said lorry in a rash and negligent manner from north to south and dashed against a Maruthi Van bearing Regn.No.TN-47-K-0644 which was driven by the first respondent from South to North keeping extreme left side of the road and skipping traffic rules. Due to the accident, the first respondent sustained multiple grevious injuries. He sustained following injuries: Multiple grevious injuries of major crush injury right hand with amputated index finger. Multiple grevious injuries can major in the right hand and also fracture of both bones in right leg. The criminal case was registered against the lorry driver in crime No. 108 of 2001 of Velur Police Station. After the accident, the first respondent/claimant had taken treatment at Amaravathi Hospital, Karur and thereafter, he was admitted in Ganga Hospital, Coimbatore and taken treatment in various spells. Ten operations were conducted on the claimant. Alleging that the accident was due to rash and negligent driving of the lorry driver, the Claimant filed the Claim Petition in MACT O.P.No. 469 of 2001, claiming compensation of Rs.40,00,000/-.
3. The Insurance Company resisted the claim petition contending that the petition is bad for non-joinder of necessary parties. According to the Insurance Company, the owner and the insurer of the Maruthi Van are the necessary parties. The Insurance Company has also raised objections as to the permanent disability claimed by the claimant and averred that the quantum of compensation claimed by the claimant is excessive.
4. Before the Tribunal, the claimant examined himself as PW-1 and Dr.Hari Venkatramani, who treated the claimant was examined as PW-2. Exs. A-1 to A-20 were marked and no oral evidence was adduced on the side of the respondents. Exs. R-1 and R-2 were marked on the side of the appellant and the third respondent.
5. Upon considering oral and documentary evidence, the Tribunal held that the claimant had valid driving license (Ex. P-8). Based upon the evidence of PW-1 and Ex. P-1 - FIR and other evidence, the Tribunal held that the lorry driver was responsible for the accident. In so far as defence plea that the claimant also contributed to the accident, the Tribunal held that no rebuttal evidence was adduced by the respondents and on those findings, the Tribunal held that the accident was due to rash and negligent driving of the lorry driver. Observing that the claimant had sustained 50% disability and that ten operations were conducted. The Tribunal awarded compensation of Rs.27,45,000/- under various heads as under:-
In Rupees Income Loss :12,00,000 Income during Treatment : 50,000 Loss of permanent Disability : 4,20,000 (7000 x 12 x 10 multiplier x 50/100) Loss of Amenity : 1,00,000 Medical : 5,50,000 Future Medical : 2,00,000 Pain & Suffering : 1,00,000 Nourishment : 50,000
-------------
Total : Rs.27,45,000/- -------------- Interest : 9% p.a.
6. The Insurance Company as well as the owner of the lorry have filed the Appeal. As pointed out earlier, on Memo the Insurance Company was transposed as third respondent. The learned Counsel for the Appellant, Mr.Prabhu Rajadurai, has contended that the Tribunal misdirected itself in holding that the accident was only due to rash and negligent driving of the lorry driver and the Tribunal overlooked the fact that the accident was due to the collusion between the Maruthi Van driver by the Claimant and the lorry and as such, the Tribunal should have held that the claimant also contributed to the accident by his own negligent driving. It was further contended that the driver erroneously fastened the liability on the Appellant and the third respondent, Insurance Company. It was further argued that the Tribunal ought to have dismissed the Claim Petition for not impleading the owner and the insurer of the Maruthi Van driver by the claimant.
7. The claimant examined himself as PW-1 and he has clearly spoken about the accident. PW-1 has stated that he was driving the Maruthi Van keeping his correct direction and that the lorry driving in a rash and negligent manner dashed against the Maruthi van driven by the claimant. His evidence is substantiated by the recitals in Ex. A-1 - FIR. Since there was a prima facie case of negligence against the lorry driver, FIR was also registered against the lorry driver. To rebut the evidence of PW-1, the lorry driver was not examined.
8. Even though, the Appellant contends that the claimant, who was driving the Maruthi Van also contributed to the accident, neither the Appellant nor the third respondent, Insurance Company adduced any oral evidence to substantiate their evidence. The defence plea of contributory negligence has to be substantiated by independent evidence and is not a matter of assumption or presumption. In the absence of any evidence being adduced by the Appellant and the third respondent, the Tribunal rightly held that the accident was due to the rash and negligent driving of the lorry driver.
9. The main challenge in the Appeal is the quantum of compensation awarded to the claimant. The learned counsel for the Appellant, Mr.Prabhu Rajadurai, has contended that the Tribunal erred in awarding compensation of Rs.12,00,000/- for loss of earning power and Rs.4,20,000/- for permanent disability overlooking that loss of earning power is only the consequence of permanent disability. It was further contended that even without any acceptable evidence, the Tribunal has awarded a huge compensation for future medical expenses and extra nourishment. The quantum of compensation of Rs.1,00,000/-
awarded under "Loss of estate" is assailed on the ground that such head is not maintainable.
10. The claimant sustained multiple crush injuries in right hand with amputated index finger and laceration thumb - FPL and digital nerve injury and subtotal amputation right middle finger, closed fracture shaft lower third right femur, fracture both bones right leg grade III B with bimalleolar fracture right ankle, lacerated wound left knee, lacerated wound right arm. The injuries sustained by the claimant is elaborated in Ex. P-2, which has been extracted in extenso in the award of the Tribunal.
11. After taking first aid treatment in Amaravathi Hospital, Karur, the claimant was admitted at Ganga Hospital, Coimbatore on 11.04.2001 and taken treatment as in-patient till 11.06.2001. Thereafter between 2001-2002, the claimant had taken treatment atleast for five spells. During the period of treatment as seen from Ex. A-13, ten operations were conducted on the claimant. In his evidence, PW-1 has stated that even after discharge, he was continuing his treatment. Since the claimant had taken treatment during different spells of time, the Tribunal has awarded Rs.50,000/- towards actual loss of income. The claimant was taking treatment as in-patient for about 4 -5 months, since he was getting salary of Rs.7,000/- per month. The actual loss of income during the period of treatment could be awarded for a period of five months, i.e., Rs.35,000/- (7000 x 5 = 35,000).
12. Ex. A-13 is the disability certificate of the claimant. In his evidence, PW-1 has stated that during the period of treatment, he had undergone atleast ten operations. The details of the various operations conducted on the claimant is elaborated in Ex. A-13. Steel plates were inserted and skin flatting was done as under:-
OP-1: 11.04.2001: Debridement and K-wire fixation of right thumb and middle finger, debridement of right leg, fixation of fracture medial malleolus and external fixator application for right leg.
OP-2: 14.04.2001: Closed A O Interlock mailing right femur, closed sirus nailing of right tibia.
OP-3: 16.04.2001: Free latissimus dorsi muscle flap cover right leg OP-4: 14.05.2001: Groin flap division - inset right hand, debridement transporsitional flap right leg SSG right leg with circumcision OP-5: 28.05.2001: Debridement and reinset of groin flap right hand OP-6: 27.09.2001: Incisions and drainage abscess left leg OP-7: 08.10.2001: Implant removal right leg OP-8: 17.10.2001: EDP index transfer to radial aspect of base of PPx of thumb through FU pulley using FDS index as tendon graft, ERCL transfer to ulnar aspect of base of PPx routed through the third and fourth MC, using palmaris longus as tendon graft OP-9: 13.02.2002: Arthrodesis of PIP joint of right M F with contracture release and full thickness graft in palm.
OP-10: 07.09.2002: Malleolar screws removal - right ankle.
13. The nature of treatment given to the claimant is elaborated in Ex. A-
6. Exs. A-3 and A-4 are the medical bills and payment of charges to the hospital. Based on Exs. A-3 and A-4, the Tribunal has awarded Rs.5,45,000/- towards medical expenses, which the Tribunal has rounded to Rs.5,50,000/-.
14. Future medical expenses - In his evidence, PW-1 has stated that steel plates were inserted in his right leg and he needs further treatment in his right hand and also right leg. PW-1 has further stated that the steel plates inserted in the right leg has to be removed by undergoing further operation. PW-2, Dr.Hari Venkatramani, who treated the claimant has also stated that if the claimant undergoes further operations in his right leg, there would be much improvement. PW-1 has stated that in future medical expenses, an amount of compensation of Rs.2,00,000/- is to be awarded. Whereas PW-2, Dr.Hari Venkatramani has stated that the claimant would require Rs.20,000/- for future medical expenses. The Tribunal has awarded Rs.2,00,000/- for future medical expenses. Excepting the evidence of PW-1, we do not find any basis for awarding Rs.2,00,000/- for future medical expenses. Of-course, the claimant had undergone number of operations. It appears that steel plates have been inserted in his right leg. Having regard to the evidence of PW-2, the quantum of compensation of Rs.2,00,000/- awarded for future medical expenses is reduced to Rs.75,000/-.
15. Permanent disability and loss of earning power - From the evidence of Pws-1 and 2 and from Ex. A-13, it is seen that inspite of intensive treatment and number of operations, he has lost his right index finger. Ex. A-13, PW -2, Dr.Hari Venkatramani has stated that the Claimant has lost right index finger and near total loss of right thumb which are reconstructed and he has difficulty in holding any object with the right hand. He has a weak grip in the right hand. He has severe swelling and stiffness of right ankle. After examining the claimant, PW-2 assessed the permanent partial disability of claimant's right upper limb to the extent of 30% and 20% to his right lower limb. Prior to the accident, the Claimant was working partner in Nayagara International and was getting salary of Rs.7,000/- per month. In his evidence, the claimant has stated due to amputation of right index finger, he was unable to do any work and due to loss of right thumb, which are re-constructed, he is unable to write and hold anything. The claimant has further stated that he is not in a position to eat with hands and that his right upper limb is permanently disabled. The claimant has further stated that he is unable to continue as the working partner in Nayagara International.
16. PW-2, Dr.Hari Venkatramani, has also stated that the claimant cannot write and cannot hold any objects with his right hand. We have also perused Ex. A-12, photos of the claimant. Of-course, the physical frame of the claimant have been shattered. When the physical frame has been shattered, it is the duty of the Tribunals / Courts to award just and reasonable compensation to compensate the injured. The purpose of compensation is only to compensate and not to overcompensate.
17. The Tribunal has awarded an astonishing figure of Rs.12,00,000/- for loss of income and another Rs.4,20,000/- for permanent disability. Ex. A-10 is the income Tax returns of the claimant. It was stated that for the year 2001 - 2002, the claimant was getting income of Rs.98,000/- and for the year 2002-2003, the claimant was getting income of Rs.42,340/-. Referring to Ex. A-10, the Tribunal has observed that because of the accident, the claimant's income was reduced and therefore, the Tribunal proceeded under the footing that there was loss of income of Rs.56,000/- (Rs.98,000 - Rs.42,000 = Rs.56,000). Observing that the claimant would have worked for another 22 years, the Tribunal proceeded to award Rs.12,00,000/- (Rs.56,000 x 22 years = Rs.12,00,000) for loss of income / loss of earning power.
18. Apart from awarding huge amount of compensation for loss of earnings, the Tribunal has also proceeded to award compensation under different head "permanent disability". Taking the monthly income of the deceased at Rs.7,000/- and the 50% permanent disability and adopting multiplier 10, the Tribunal proceeded to award Rs.4,20,000/- for permanent disability.
19. What is payable is just compensation. Tribunal has to determine the claim bearing in mind and statutory mandate that what is payable is just compensation and it cannot be a bonanza. In 1991 - 1 LW 208 (Helen C. Rebello V. Maharashtra State Road Transport Corporation), the Supreme Court observed that the tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which to it appears to be 'just'. It has to be borne in mind that compensation for loss of limbs 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 with 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 mental and physical impairment, 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. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The Courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be 'just' compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of 'just' compensation which is the pivotal consideration. Though by the use of the expression "which appears to it to be just", a wide discretion is vested on the tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non- arbitrariness."
20. Insofar as compensation for "permanent disability" and compensation for "loss of earning power", Tribunal has awarded Rs.4,20,000/- and Rs.12,00,000/- respectively. In 2006-3-LW 1025 (Cholan Roadways Corpn. Ltd. Rep. By Managing Director, Kumbakonam v. Ahmed Thambi and others), Full Bench of this Court has held that there cannot be two separate head of compensation awarded for "loss of earning power" and "permanent disability". Holding that when the loss of "earning capacity" is possible, loss of "permanent disability"
need not be itemised, in paragraph (19), the Full Bench has held as under:-
"19. In order to avoid any future confusion and to bring more clarity and transparency in the award of damages, it is necessary that the tribunal, while awarding damages, should itemise the award under each of the head namely, pecuniary losses and non-pecuniary losses. In the non-pecuniary losses the tribunal shall consider a) pain and suffering, b) loss of amenity, c) loss of expectation of life, hardship, mental stress, etc; d) loss of prospect of marriage and under the head pecuniary loses, the tribunal shall consider loss of earning capacity and loss of future earnings as one component apart from medical and other expenses and loss of earning, if any from the date of accident till the date of trial. When loss of earning capacity is compensated as also the non-pecuniary losses under (a) to (d), permanent disability need not be separately itemised."
Applying the ratio of the decision of Full Bench of this Court, we are of the view that the compensation awarded under two different heads - compensation for "loss of earning power" and compensation for "permanent disability" cannot be maintained.
21. Multiplier method - The point falling for consideration is as to the quantum of compensation to be awarded for "permanent disability" and "loss of earning power". As we pointed out earlier, claimant has sustained 50% disability. At the time of accident, claimant was working as the working partner in Nayagara International and drawing salary of Rs.7,000/- per month. Ex. A-10 is the income tax returns of the claimant. As pointed out earlier, for the year 2001-2002, claimant was getting annual income of Rs.98,000/-. In his evidence, claimant has stated that he has been getting Rs.7,000/- as salary from Nayagara International. The learned counsel for the claimant has contended that the income of the claimant has to be taken as Rs.5,000/- per month. Having regard to the evidence of PW-1 and Ex. A-10, the Tribunal has taken the monthly income of Rs.7,000/- per month and the same is maintained. At the time of accident, claimant was aged 38 years.
22. In considering the quantum of compensation to be awarded for "permanent disability" in appropriate cases, Court could adopt multiplier method. In 2005 (1) CTC 38 (United India Insurance Co., Ltd., Tiruchengode v. Veluchamy and another), the Division Bench of this Court, in paragraph (11) has laid down the principles governing assessment of damages in personal injury cases.
"11. The following principles emerge from the above discussion:
(a) In all case of injury or permanent disablement "multiplier method"
cannot be mechanically applied to ascertain the future loss of income or earning power.
(b) 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?
(c) (1) If there is categorical evidence that because of injury and consequential disability, the injured lost his employment or avocation completely and has to be idle till the rest of his life, in that event loss of income or earning may be ascertained by applying "multiplier method" as provided under Second Schedule to the Motor Vehicles Act, 1988.
(2) even if so there is no need to adopt the same period as that of fatal cases as provided under the schedule. If there is no amputation and if there is evidence to show that there is likelihood of reduction or improvement in future years, lesser period may be adopted for ascertainment of loss of income.
(d) Mainly it depends upon the avocation or profession or nature of employment being attended by the injured at the time of accident.
Because of loss of index finger and re-construction of right thumb, the right hand of the claimant is totally affected. That apart, the right leg of the claimant is also dis-figured and he has great difficulty in walking. Since the physical frame of the claimant has been shattered and having regard to the gravity of injuries, in the instant case it would be appropriate to adopt the multiplier method to award compensation for permanent disability and loss of earning power. Applying the ratio of the above decision since at the time of accident, the claimant was aged 38 years, as per the Second Schedule to M. V. Act, multiplier "16" is adopted.
23. Personal Injury Cases Deduction of one- third for personal expenses whether necessary? - Learned counsel for the Appellant-Insurance Company submitted that while adopting multiplier method for determining the quantum of compensation for "permanent disability", Court has to deduct 1/3rd amount for personal expenses. Drawing our attention of 2009 (2) CTC 87 (Oriental Insurance Co. Ltd., V. Ram Prasad Varma and others), learned counsel for the Appellant contended that in the said case because of amputation of both legs and 100% disability, the Supreme Court observed that 1/3rd amount need not be deducted. Learned counsel for the Appellant further contended that in the instant case, since the claimant is said to have sustained only 50% of disability while awarding compensation for permanent disability, 1/3 rd deduction has to be made for personal expenses.
24. In 2009 (2) CTC 87 (Oriental Insurance Co. Ltd., V. Ram Prasad Varma and others), the Supreme Court has considered the question of deduction towards personal expenditure in personal injury cases. Observing that when a person although alive, but when he is not in a position to move and even for every small thing he has to depend upon others, direction to deduct 1/3rd of the amount from his total income need not always be insisted upon. In Paragraph (11) of the Judgment, the Supreme Court held as under:-
"11. One-third amount is deducted from computation of compensation from the total income on the premise that some expenses were necessary for one's own survival. Incidentally, we may notice that in the note appended to the Second Schedule, the amount of compensation arrived in the case of fatal accident claims is required to be reduced by one-third in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. A person, although alive, but when he is not in a position to move and even for every small thing he has to depend upon the services of another, in our opinion, a direction to deduct 1/3rd of the amount from his total income need not always be insisted upon."
25. In personal injury cases, deduction of one-third amount from the total income would always depend upon the facts and circumstances of the case. In appropriate cases, where claimant has sustained multiple injuries and has suffered substantial disability and when he is not in a position to carry on his normal routine, deduction of one-third amount from his total income may not be appropriate. In the case on hand, as discussed earlier, claimant has suffered 50% disability and he is not in a position to use his right hand and he is to depend on others for writing, eating and to carry on his normal routine. We have also seen Ex.A-12 photographs from which it is seen that claimant has great difficulty even for standing and his right hand and right leg as disfigured and permanently partially disabled. Having regard to the nature of injuries sustained by the claimant and the percentage of disability suffered by him, in our considered view that in this case deduction of one-third amount from the income need not be made.
26. Taking the monthly income of the claimant at Rs.7,000/- and adopting multiplier "16" and the permanent disability at 50%, compensation for "permanent disability/ loss of earning power" is calculated at Rs.6,72,000/- (Rs.7,000 x 12 x 16 x 50/100 = Rs.6,72,000/-).
27. Other heads - The Tribunal has also awarded Rs.1,00,000/- for pain and suffering. As pointed out earlier, claimant has sustained multiple crush injury and had taken treatment during various spells on time. Having regard to the injuries and duration of treatment, the compensation of Rs.1,00,000/- awarded for pain and suffering is maintained. The quantum of compensation of Rs.50,000/- awarded for actual loss of income is reduced to Rs.35,000/-. In so far as the compensation for transport hospital, claimant has produced Ex. A-5 for proving the transport expenses. Based upon A-5, Tribunal has awarded compensation of Rs.75,000/- for transport hospital and the same is maintained.
28. Extra Nourishment - The Tribunal has awarded Rs.50,000/- and the same is reduced to Rs.25,000/-. The Tribunal has also proceeded to award Rs.1,00,000/- for loss of estate in case of personal injury cases. There cannot be any estate and therefore, the same is deleted. As pointed out earlier, for future medical expenses, Tribunal has awarded Rs.2,00,000/- and the same is reduced to Rs.50,000/-. The claimant has to be with dis-figured right hand and the right leg. Through out his life, claimant is disabled from using his right hand, Tribunal has awarded Rs.1,00,000/- for "Loss of amenities and the same is reduced to Rs.25,000/-.
29. In modification, the compensation of Rs.27,45,000/- awarded by the Tribunal is reduced to Rs.15,82,000/- as under:-
Loss of earning power : Rs.6,72,000/-
Medical expenses : Rs.5,50,000/-
Future medical expenses : Rs.75,000/-
Loss of income during the period of treatment : Rs. 35,000/-
Loss of amenities : Rs. 50,000/-
Pain and Suffering : Rs.1,00,000/-
Extra Nourishment : Rs. 25,000/-
Transport : Rs. 75,000/-
---------------
Total Rs.15,82,000/-
-----------------
30. In so far as interest, Tribunal awarded interest at 9% p.a., from the date of filing of Claim Petition and the rate of interest awarded by Tribunal is on higher side. As held by the Supreme Court in S.Rajapriya's case (2005 AIR SCW 2542), interest is reduced to 7.5% from the date of filing of petition.
31. In the result, order of Motor Accident Claims Tribunal (Chief Judicial Magistrate), Karur in MACT O.P.No. 469 of 2001 dated 27.04.2004 is modified and the Civil Miscellaneous Appeal is partly allowed. No costs in this C.M.A. Compensation awarded by the Tribunal is reduced to Rs.15,82,000/- which is payable with interest at the rate of 7.5% p.a., from the date of filing of Claim Petition. The Insurance Company has already deposited 50% of the compensation amount along with accrued interest.
The claimant is said to have withdrawn 50% of the deposited amount (ie., 25% of the total compensation amount). The Appellant is directed to deposit the balance amount along with accrued interest at the rate of 7.5% p.a., within a period of eight weeks from the date of receipt of a copy of this Judgment. On such deposit, the claimant is permitted to withdraw entire modified compensation amount along with accrued interest.
vsg To The Motor Accident Claims Tribunal (Chief Judicial Magistrate) Karur