Madras High Court
National Insurance Co., Ltd. vs I.A. Kala Mohan And Anr. on 11 March, 1997
Equivalent citations: 2(1997)ACC188, 1997 A I H C 2382, (1997) 4 LAB LN 689, (1997) 2 MAD LJ 66, (1998) 1 ACJ 295, (1997) 1 MAD LW 723, (1998) 2 TAC 440, (1997) 2 LABLJ 1179, (1997) 3 CIVLJ 867, (1997) 2 ACC 188
Author: A.R. Lakshmanan
Bench: A.R. Lakshmanan
JUDGMENT A.R. Lakshmanan, J.
1. The above appeal is directed against the order of the award and decree dated 26.4.1996 and made in O.P. No. 1483 of 1993 on the file of the Motor Accident Claims Tribunal (III Judge, Court of Small Causes, Madras). The Insurance Company is the appellant in this appeal. The first respondent is the claimant. He filed the above O.P. claiming a compensation of Rs. 10,00,000/- for the injuries sustained by him in the motor accident occurred on 5.1.1993, in which the vehicle belonging to the second respondent insured with the appellant, was involved.
2. The Insurance Company filed counter-statement and contended the accident has occurred only due to the negligent driving of the motor cycle by the first respondent and the driver of the lorry was not responsible for the same and in any event the compensation claimed is highly excessive and imaginary. The Tribunal came to the conclusion that the accident has occurred due to rash and negligent driving of the driver of the lorry and awarded a compensation of Rs. 8,51,000/-with interest @ 12% per annum from the^date of the petition till payment. Aggrieved by the order of the Tribunal, the Insurance Company has filed the above appeal challenging the order of the Tribunal on the ground that the conclusion of the Tribunal that the accident has occurred due to rash and negligent driving of the driver of the lorries incorrect and also questioning the granting of huge compensation of Rs. 8,51,000/- for the injuries, which according to the Insurance Company is without any basis. The first respondent herein, who is the claimant before the Tribunal filed the Cross-objection 148 of 1996 claiming the balance of compensation. According to the Cross-objector, the Tribunal ought to have sympathised with the plight of the victim and also the plight of the young wife of the claimant who lost their sexual life and ought to have awarded a compensation of Rs. 5,00,000/- as prayed for instead of Rs. 2,50,000/- awarded on that head. Likewise, the award of the Tribunal is also challenged on the ground mat the pain and suffering caused on the Cross-objector is not only a past one but also one of perpetual nature and as such, the claim of Rs. 2,00,000/- under the head of pain and suffering ought to have been awarded by the Tribunal. Likewise, the Tribunal ought to have seen that the permanent disability suffered by the claimant is @ 125% rounded to 100% as the disablement shall not exceed 100%. It is in evidence that even for shifting him from bed to wheel chair, the claimant needs another person's help. It is also in evidence that the lower limbs are mutilated and therefore the Lower Court ought to have awarded Rs. 3,00,000/- under this head as prayed instead of Rs. 2,00,000/-. The award of the Lower Court was also challenged on other grounds.
3. The case of the claimant in short is as follows:
The claimant was riding in a motor cycle TN-23-Z-5643 along Poonamallee High Road. When he was proceeding towards Koyambedu near Mettukulam, the lorry TNH 8397 which was driven in rash and negligent manner came from the opposite direction, at extreme right side and dashed against the claimant and sped away, whereby the claimant sustained serious injuries. The accident is solely due to the rash and negligent driving of the lorry. Therefore the respondents 1 and 2 as the owner and the insurer are jointly and severally liable to pay compensation to the claimant with interest and costs.
4. The claim of the claimant was resisted by the Insurance Company.
According to them, the accident has occurred only due to the negligent driving of the motor cycle by the claimant and the driver of the lorry was not responsible for the alleged accident. In any event, the alleged injuries are simple in nature, that they are not liable to pay any compensation as the alleged accident has occurred only due to the negligence of the claimant in riding his motor cycle and that the driver of the lorry was not responsible for the same. In any event, the compensation claimed is highly excessive, imaginary and not sustainable in law. Before the Tribunal, three witnesses were examined on the side of the claimant and Exs. P1 to P13 were marked. None was examined on the side of the Insurance Company and no documentary evidence was also let in on the side of the Insurance Company or the owner of the vehicle. The Tribunal on a perusal of Exs. A6, A12 and A13 and also of the evidence of the PWs came to the conclusion that the lorry was driven in a rash and negligent manner by the lorry driver. It is also in evidence that lorry before the criminal Court, the lorry driver Mr. Karunakaran has pleaded guilty and paid a sum of Rs. 1,350/- by way of fine. Ex. P12, dated 10.5.1993 is the charge-sheet. It is mentioned in the charge-sheet that on 25.1.1993, the accused (Karunakaran, the lorry driver) drove his vehicle in a rash and negligent manner, came from East to West i.e. Madras towards Poonamallee and hit against the rider of motor-cycle who came from Poonamallee side and fled away from the scene without informing the police. In this, the motor cycle rider has sustained serious injuries. The motor cycle also has sustained damage and thereby the accused committed an offence liable to be punished Under Sections 278 and 338, I.P.C. read with Sections 134(a) and (b) of Motor Vehicles Act. Ex. P13 is the extract of the Summary Trial Register in STC No. 1828 of 1993 on the file of the Judicial Magistrate No. II, Poonamallee. The accused/driver Karunakaran pleaded guilty for the offences Under Sections 279, 338/IPC read with Section 134(a) and (b) of the Motor Vehicles Act. The Judicial Magistrate, Poonamallee convicted and sentenced the accused and imposed a fine of Rs. 500/-, Rs. 750/-and Rs. 100/- for the offences under Section 279 and Section 338, IPC and Sections 134(a) and (b) of the Motor Vehicles Act respectively and directed him to pay the fine immediately, failing which the accused to undergo simple imprisonment for one week. Ex. PlOis the First Information Report filed on 25.1.1993 against the lorry driver and Ex. Pll is the sketch, Exs. P10, P12 & P13 coupled with the evidence let in by the PWs would clearly establish that the accident has occurred only due to the rash and negligent driving of the vehicle by the driver. Therefore, we confirm the finding of the Tribunal and answer this issue against the insurer and the insured.
5. Coming to the quantum of compensation awarded by the Tribunal, the Tribunal has awarded a sum ofRs. 36,000/-towards loss of income for one year, Rs. 8,000/-for transport, Rs. 5,000/- for nourishment, Rs. 1,00,000/-for pain and suffering and mental agony, Rs. 50,000/- for mental agony, Rs. 2,00,000/- for disability and Rs. 2,50,000/-for loss of family life, Rs. 2,000/- towards cost of cloths and materials and Rs. 2,00,000/- for loss of earning power, in all amounting to Rs. 8,51,000/-. Ex. P8 is the disability certificate. It is mentioned in Ex. P8 that the disablement is permanent and the disability is assessed as 100% only. Dr. K. Chandran, Medical Officer has signed the said certificate. It is not disputed that the accident took place on 25.1.1993. It cannot also be disputed that tine accident was solely due to the rash and negligent driving of the driver of the vehicle of the first respondent and because of the accident, the claimant has sustained multiple fractures and was admitted in the Royapettah Government Hospital. Ex. PI is the certificate to show that he was taking treatment in the said hospital. It is the evidence of PVV1 that he was taking treatment in the hospital from 25.1.1993 to 8.5.1993 and that he attended hearings with tine help of a wheel chair only. It is his evidence that his spinal cord has broken and the entire body below the hip is function less and senseless. It is also his evidence that the passing of urine and motion is out of his control. The medical evidence also discloses that he is unfit for sexual life any more and he was also not able to sit or stand and because of the multiple grievous injuries and fractures, he will not be able to work any more. It is his evidence that he was aged 34 years on the date of accident. Ex. P4 has been filed to show that he was earning a sum of Rs. 240/- to Rs. 250/- per day through video and audio cassette recording and because of the permanent disability, he will not be able to move about and even to move from wheel chair or from the bed to the wheel chair he needs the help of others. In the cross-examination nothing has been elicited to discredit his oral testimony which is cogent and convincing. He denied the suggestion that he was not running business. PW3 is one Dr. K. Chandran, Additional Professor, Government Hospital. His evidence corroborates the evidence of PW1 on the question of permanent disability which is 100% in this case. As already stated, no evidence, oral or documentary has been let in on the side of the owner of the vehicle or the Insurance Company. Therefore, the evidence let in by the claimant both oral and documentary, remain uncontroverted. Though the claimant has claimed a sum of Rs. 15,00,000/- by way of compensation, he has restricted his claim to Rs. 10,00,000/-. It is contended on behalf of the Insurance Company that the claimant has not filed any proof to prove his income. It is also contended by Mr. Rosi Naidu that the Tribunal has erred in granting another sum of Rs. 50,000/- for mental agony in spite of the fact that the earlier compensation of Rs. 1,00,000/- includes mental agony also. Likewise, the Tribunal has erred in granting a sum of Rs. 2,00,000/- for the permanent disability and at the same time, another sum of Rs. 2,00,000/- for loss of earning power, which amounts to double compensation. Lastly, it is contended that the huge compensation granted with interest is deposited and it would fetch interest of Rs. 15,000/- per month, which is five times of the alleged income fixed by the Tribunal on presumption and assumption. We have all been noticing that the permanent disability is assessed as 100%. Itis very clearly established that theclaimant because of the permanent disability always needs assistance of another person throughout his life. Because of the permanent disability, he is not able to move about, and his both legs have become senseless and he is able to pass urine and motion only through the tubes and the tubes have to be cleaned frequently with the help and assistance of another person. Therefore, in this case, the injured claimant is not only suffering because of his permanent disability, but also makes others suffer through out his life. He is always in need of a wheel chair to move about. He needs assistance of another person to move from the bed to the wheel chair and from the wheel chair to the bed. Above all, it is in evidence that he is unfit for sexual life throughout his life.
6. It is well settled that a person injured by another's wrong is entitled to general damages for non-pecuniary loss, such as, pain and suffering, past and future, and loss of amenity and enjoyment of life. Such damages constitute a conventional sum. By the very nature of things, there can be no precise yardstick by which compensation payable under such heads can be assessed and determined. This is ahead of claim, which is impossible toquantify in monetary terms. The only thing that can be said is that it is some solace to the injured, that he is alive. While awarding compensation for pain and suffering and loss of amenities of life, the special circumstances of the claimant have to be taken into account including his age (in this case 34 years), the unusual deprivation he has suffered throughout his life and the effect thereof on his future life. In the instant case, the claimant was carrying on business of video and audio recording of cassettes. Because of the accident, he has been crippled for ever and could move only on wheel chair.
Having regard to the nature and extent of injury suffered by the claimant in the instant case and the totality of the circumstances that have arisen as a consequence thereof, it would be just and reasonable to hold that the claimant is entitled to a sum of Rs. 3,00,000/- as compensation under the heads pain and suffering and loss of amenities and enjoyment of life. So far as the expenses incurred towards the medical treatment and other miscellaneous expenses are concerned, we are of the view that the Tribunal has awarded a sum of Rs. 8,000/- for transport, Rs. 5,000/- for nourishment and Rs. 36,000/- towards loss of income for one year. There is no reason for us to disbelieve version of the claimant on these claims. The claimant had a prolonged period of hospitalization and therefore it would be legitimate to infer the expenses that have been incurred both on transportation and medicines, besides other items such as nutritional food, etc. PWlhas deposed that he has been carrying on business and he was earning an income of Rs. 240/-toRs. 250/-per day. He has also to pay a rent of Rs. 600/-per month. Ex. P4 is the rental agreement. As already stated, there is no contra-evidence let in by the respondents either oral or documentary. Therefore, the evidence let in by the claimant both oral and documentary remains uncontro-verted.
7. Coming to the award of compensation under the head, loss of permanent disability, we are of the view that the Tribunal has rightly granted a sum of Rs. 2,00,000/- for disability. However, we are unable to confirm the finding of the Tribunal in awarding a sum of Rs. 2,00,000/- for loss of earning power, which amounts to double compensation. However, in our opinion, the claimant is also entitled to a sum of Rs. 1,00,000/- for loss of marital life.
8. As a result of the foregoing discussions we are of the view that in the instant case, the compensation is awarded under different heads as follows:
Compensation under the heads Rs. 1. 'Pain and suffering' and 'Loss of amenities' 3,00,000/- 2. Expenses incurred towards nourishment, transport etc. 13,000/- 3. Loss of income for one year 36,000/- 4. Permanent disability 2,00,000/- 5. Loss of marital life 1,00,000/- ------------ Total 6,49,000/- ------------
9. Thus, the claimant would be entitled to Rs. 6,49,000/- by way of compensation on the above heads together with interest @ 12% from the date of petition till payment. The order and decree of the Motor Accident Claims Tribunal is modified to the above extent. However, there will be no order as to costs in this appeal.
10. We see no merit in the cross-objection and therefore the cross-objection No. 148 of 1996 is dismissed without costs.