Madras High Court
R.Ganesan vs Arunachalam on 7 July, 2008
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07/07/2008 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.M.A.No.140 of 2004 R.Ganesan .. Appellant/Claimant Vs 1.Arunachalam 2.The United India Insurance Company Limited, represented by its Manager, 3-E, Balavinayagar Kovil Street, Thoothukudi. .. Respondents/Respondents Prayer Appeal filed under Section 173 of the Motor Vehicles Act, against the award dated 17.06.2004 passed in M.C.O.P.No.117 of 2002, by the Additional Motor Accident Claims Tribunal - Additional Sub Court, Tenkasi. !For Appellant ... Mr.V.Ramajegadeesan ^For Respondents... Mr.R.Srinivasan for R.2 No representation for R.1 :JUDGMENT
This Civil Miscellaneous Appeal is filed by the appellant/claimant aggrieved against the award dated 17.06.2004 passed in M.C.O.P.No.117 of 2002, by the Additional Motor Accident Claims Tribunal - Additional Sub Court, Tenkasi, granting a total compensation of Rs.20,000/- (Rupees Twenty Thousand only) along with interest at 9% p.a. from the date of filing of the petition till date of payment.
2. The appellant/claimant has filed a claim petition before the Tribunal claiming a compensation of Rs.3,48,750/- (Rupees Three Lakhs Forty Eight Thousand Seven Hundred and Fifty only) and has restricted the same to a sum of Rs.2,00,000/- (Rupees Two Lakhs only).
3. The short facts of claim are as below:
On 29.05.2001 at about 06.00 p.m, in the evening, the appellant/claimant was standing on the left side of the road near Bala Arunachalapuram bus stop and at that time, the water tanker with truck bearing Registration No.TN-72-X-8202 belonging to the first respondent was driven by its driver in a high speed, negligently and without sounding horn and dashed against him, as a result of which the appellant/claimant's entire right leg got damaged and sustained injuries all over his body. The appellant/claimant was unconscious and he was brought to Tenkasi Government Hospital by his wife. The appellant/claimant was given first aid treatment by the Doctors of the Tenkasi Government Hospital and they after seeing the nature of injuries sustained being grievous, they referred him to Tirunelveli Government Hospital. Till 11.07.2001, the appellant received treatment at the Tirunelveli Government Hospital. Since the appellant/claimant had not recovered properly from the treatment received, he was taking treatment at the private hospital. The appellant/claimant had sustained permanent disability and the driver of the tractor bearing Registration No.TN-72-X-8202 was solely responsible for the happening of the accident. A case was registered by the Kadayanallur Police in Cr.No.118 of 2001 against the driver of the tractor with water tanker under Sections 279 and 337 I.P.C.
4. The offending vehicle bearing Registration No.TN-72-X-8202, belonging to the first respondent/owner, was insured with the second respondent/United India Insurance Company Limited. Therefore, both were liable to pay the compensation of Rs.2,00,000/- (Rupees Two Lakhs only) to the appellant/claimant.
5. The first respondent/owner of the offending vehicle was set ex-parte before the Tribunal.
6. The second respondent/Insurance Company filed the counter inter alia stating that on investigation, they came to understand that the driver of the tractor was holding a driving licence to drive Light Motor Vehicle and that he was not holding a valid and effective driving licence to drive a tractor with trailer and that the police filed the charge sheet against the driver of the tractor not only under Sections 279 and 337 I.P.C, but also under Section 3 and 181 of the Motor Vehicles Act and that the insured had allowed and individual to drive a tractor with trailer who was not holding a valid driving licence and therefore, they were not liable to pay any compensation etc.
7. On the side of the appellant/claimant, witnesses P.W.1 and P.W.2 were examined and Exs.P.1 to P.8 were marked and on the side of the second respondent/Insurance Company, R.W.1 was examined and Ex.R.1 was marked.
8. After contest, on an appreciation of oral and documentary evidence, the Tribunal has awarded a compensation of Rs.20,000/- (Rupees Twenty Thousand only) with interest at 9% p.a from the date of filing of the petition till date of payment.
9. The Tribunal has given a finding that the accident took place on account of the carelessness and negligence of the driver of the tractor. Further, the Tribunal has observed that the assessment of the disability at 60% by P.W.2, Dr.Vedamoorthy, was on the higher side and hence, it has awarded a sum of Rs.13,000/- (Rupees Thirteen Thousand only) for the injury and disability sustained. It has granted a sum of Rs.5,000/- towards loss of income. Towards pain and sufferings, it has awarded a sum of Rs.1,000/-. For nourishment expenses, it has granted a sum of Rs.1,000/-. Thus, the Tribunal has awarded a total sum of Rs.20,000/- as compensation together with interest at 9% p.a payable by the respondents 1 and 2 severally and jointly.
10. According to the learned Counsel for the appellant/claimant, the Tribunal has erred in awarding a very meagre sum of Rs.20,000/- with interest at 9% p.a, as against the restricted claim of Rs.2,00,000/- and that the Tribunal has overlooked the fact that P.W.2, Dr.Vedamoorthy, has assessed the disability of the appellant/claimant at 60% and therefore, the award of Rs.13,000/- towards injury and disability is not correct and further that the award of Rs.1,000/- towards pain and sufferings by the Tribunal is not justified since the appellant/claimant has been an inpatient in the Government Hospital between 30.05.2001 and 11.07.2001 and therefore, prays for allowing the appeal to promote substantial cause of justice.
11. In support of the contention for enhanced compensation, the learned Counsel for the appellant/claimant relies on the decision, The Managing Director, Tamil Nadu State Transport Corporation, (Kumbakonam Division II) Limited, Trichy v. S.Kannappan [2007 (2) TN MAC 1], at page 7, whereunder it is observed as follows:
"The assessment of disability at 40% based on the oral testimony of P.W.2 and Ex.A.5-Disability Certificate has not been challenged by the appellant as excessive. It is a fact not in dispute that the respondent/claimant sustained fracture of the shaft of right femur, for which, he had initial treatment at the Government Hospital, Trichy for about 22 days. It is also not in dispute that at last he underwent a surgery at Cuddalore where metal plates and screws were fixed at the fracture point. It is also evident from the testimony of P.W.1 and P.W.2 and Ex.A.5 that the height of the right leg has been shortened by 3 cms. It is also not in dispute that the respondent/claimant, at the time of accident, was 27 years old. In case of injuries resulting in Permanent Disability, two methods of assessment of compensation for Permanent Disability are possible. One by awarding a lump sum payment for the Permanent Disability which will take into its fold, the Loss of Future Earning Capacity and Loss of Amenities in Life and the other by awarding separate amounts for Loss of Future Earning Capacity and Loss of Amenities in Life caused by the Permanent Disability. In either case, separate amounts for Loss of Earning Capacity from date of accident till date of Trial can be awarded as Pecuniary Loss. This position has been made clear in the judgment of the Full Bench of Madras High Court in Cholan Roadways Corporation Ltd. v. Ahmed Thambi, 2006 (4) CTC 433. In this case, the Tribunal seems to have adopted the first method of awarding lump sum amount for the Permanent Disability. When the method of awarding lump sum amount for Permanent Disability is adopted, the age of the petitioner shall play an important role. Awarding damages at a fixed rate disregarding the age of the claimant, according to the opinion of this Court, will definitely result in injustice, as the same would amount to treating unequals equally. The said rate may range from Rs.1,000/- to Rs.2,000/- per 1% disability depending upon the age of the claimant. Maximum rate shall be applied in case of youngster and minimum rate shall be applied in case of aged persons. Applying such a test, this Court holds that the maximum rate, viz., Rs.2,000/- per 1% disability in the case of the respondent/claimant in this case shall be absolutely justifiable. Thus the lump sum amount to be awarded towards compensation for Permanent Disability to the respondent/claimant in this case shall have to be fixed at Rs.40 X 2,000 = Rs.80,000/- instead of Rs.90,000/-. If such a method of calculation is adopted, the award of Rs.90,000/- as compensation for the Permanent Disability, as such, may have to be brought down to Rs.80,000/-." (para 15).
12. On the other hand, the learned Counsel for the second respondent/Insurance Company contends that P.W.2 Dr.Vedamoorthy, issued the disability certificate Ex.P.8 assessing the disability at 60% has not treated the appellant/claimant and that the percentage of disability assessed by P.W.2, Dr.Vedamoorthy, is very much on the higher side and not in commensurate with the injury/disability sustained by the appellant/claimant and therefore, the Court must be cautious while acting upon the disability certificate Ex.P.8, in assessing the compensation to be awarded to the appellant/claimant. To lend support to his contention, the learned Counsel for the second respondent/Insurance Company cites the decision, Divisional Manager, United India Insurance Company v. Prabhat Kumar Dhal and others {2000 (1) T.A.C 594 (Ori)} at page 596, wherein it is inter alia observed as below:
"According to P.W.1, he received injuries on waist and head and fracture of right leg. Similar is the evidence of P.W.2, inasmuch as he received injuries on waist, head and fracture of right leg. So far as P.W.3 is concerned, he stated that he received injuries on waist and fracture of left shoulder joint. Their evidence would reveal that they were medically examined by Dr.Subodh Patnaik and Dr.Bijay Kumar Patnaik, but they failed to examine these two doctors to support their case. They, however, proved their reports and got them exhibited through the Orthopaedic Specialist of S.C.B Medical College, P.W.4. It would appear from the evidence P.W.4 that he was allowed by the learned Commissioner to depose about the preliminary examination conducted by the aforesaid two doctors by referring to their participations and other relevant documents. What the above two doctors would have deposed with reference to their prescriptions was got recorded through him. This is a peculiar procedure followed by the Commissioner which is foreign to law. P.W.4 neither treated the claimants immediately after the accident nor even some days thereafter. It was only in June 1994 when the claimants were referred to S.C.B Medical College by the treating physician, he examined them as out-patients. So, whatever he stated with reference to the reports of the two treating physicians is of no help to the claimants and therefore, the assessment of their loss of earning capacity as deposed to by him is nothing but guess-work, the reason being that it is based on the opinion of the other two doctors who were withheld from the witness-box. Needless to mention, loss of earning capacity being a question of fact is to be determined by taking into account the physical disability as disclosed by the medical evidence. Therefore, medical evidence as to the physical disability is an important factor in assessing the loss of earning capacity. So, in absence of the expert opinion of the doctor who examined the injured, it is difficult for the Court to measure the physical disability so as to assess the loss of earning capacity. In the present case, the statement of P.W.4 the orthopaedic specialist of S.C.B Medical College, cannot be termed as evidence admissible in law and as such, his assessment of loss of earning capacity of the claimants being based on the reports of the two doctors who were withheld from the witness-box is of no help to the claimants. In that view of the matter, his evidence being not admissible in law has to be obliterated from the record." (para 6)
13. He also cites the decision, Kaluram Rathore v. Neelam Chand Kirar and another {2004 (2) TN MAC 16 (FB) (MP) }, wherein it is inter alia observed that 'mere fracture of bones and its re-union will not amount to permanent total disablement or permanent partial disablement, unless doctor examined claimant and assessed percentage of disability after performing scientific tests and without performing scientific tests, bald Statement of doctor and certificate are inadmissible in evidence and that the visual opinion of doctor has no evidentiary value and that the Claims Tribunal must assign reasons in arriving at conclusion in case of permanent/partial disablement and in the absence of evidence regarding scientific tests to determine percentage of disability, the Claims Tribunals should take guidance from Schedule of Workmen's Compensation Act.'.
14. On a careful consideration of respective contentions, this Court is of the considered view that the Civil Miscellaneous Appeal has to be allowed to prevent miscarriage of justice and in that view of the matter, this Court is not dealing with the merits of the case in detail.
15. In the instant case, P.W.2, Dr.Vedamoorthy, in his cross-examination, has stated specifically that the appellant/claimant has not sustained bone fracture and that he has not initially treated the appellant/claimant and that he has assessed the disability of the appellant/claimant at 60% on the basis of the old documents pertaining to the appellant/claimant.
16. As a matter of fact, P.W.2, Dr.Vedamoorthy, in his chief examination, has categorically deposed that simple injury mentioned in Ex.A.2 is a wrong one and that the injury of the appellant/claimant is grievous one. It is not out of place to point out that in Ex.A.2, xerox copy of the wound certificate, the Civil Surgeon, Government Head Quarters Hospital, Tenkasi, has mentioned about the injury sustained by the appellant/claimant as 'SIMPLE'.
17. Therefore, this Court necessarily opines that the Doctor (Civil Surgeon, Government Head Quarters Hospital, Tenkasi) who issued Ex.A.2, wound certificate to the appellant/claimant, firstly has to be examined in order to find out whether the injury sustained by the appellant/claimant is simple or grievous, since he has treated the appellant/claimnat at the earliest point of time. Only then, a prudent and right conclusion can be arrived at by a Tribunal while determining the exact amount of compensation to be awarded to the appellant/claimant on the basis of the assessment of proper percentage of disability sustained. Admittedly, the second respondent/ Insurance Company has also not taken necessary steps to summon the said Doctor who issued Ex.A.2, wound certificate.
18. At this stage, it is relevant to point out that when P.W.2, Dr.Vedamoorthy, has assessed the disability of the appellant/claimant at 60% as per Ex.A.8, disability certificate, then it is not open to the Tribunal to ignore his evidence merely on the basis that it is on the higher side without assigning cogent and convincing reasons as to how the same is on the higher side.
19. In fact, the Tribunal on a vacuum and void, cannot substitute its views to that of the Doctor (an expert) and determine the compensation amount. To put it differently, in the case on hand, the Tribunal cannot determine the compensation of Rs.13,000/- unilaterally in regard to the injury and disability sustained by the appellant/claimant ignoring the medical practitioner's evidence and certificate.
20. At this juncture, one cannot brush aside an important fact that it is equally possible for the opposite party to obtain a report from the qualified medical practitioner in regard to the assessment of percentage of disability of the appellant/claimant in the manner known to law.
21. In the light of the above discussions and for the reasons indicated supra, this Court allows the Civil Miscellaneous Appeal to prevent aberration of justice and to promote substantial cause of justice and resultantly, sets aside the award dated 17.06.2004 passed in M.C.O.P.No.117 of 2002, by the Additional Motor Accident Claims Tribunal - Additional Sub Court, Tenkasi, and remands the matter to the Tribunal with a direction to dispose of M.C.O.P.No.117 of 2002 afresh by affording opportunity to lead additional or fresh evidence both oral and documentary, to all the parties concerned, in particular, the appellant/claimant is directed to examine the said Civil Surgeon, Government Head Quarters Hospital, Tenkasi, who issued Ex.A.2, wound certificate, to the appellant/claimant at the earliest point of time, within three months from the date of receipt of a communication of this order. There shall be no order as to costs in this appeal, bearing in mind the facts and circumstances of the case.
rsb To The Additional Motor Accident Claims Tribunal - Additional Sub Court, Tenkasi.