Madras High Court
Bajaj Allianz General Insurance Co. Ltd vs Arul ... 1St on 8 August, 2014
Author: V.Dhanapalan
Bench: V.Dhanapalan, G.Chockalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.08.2014 CORAM THE HON'BLE MR.JUSTICE V.DHANAPALAN and THE HON'BLE MR.JUSTICE G.CHOCKALINGAM C.M.A.No.2703 of 2012 and M.P.No.1 of 2012 Bajaj Allianz General Insurance Co. Ltd., 25/26, College Road, Prince Towers, 4th Floor, Chennai-6. ... Appellant / 2nd Respondent -vs- 1. Arul ... 1st Respondent / Petitioner 2. M.Gandhi Kamaraj ... 2nd Respondent / 1st Respondent Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicle Act against the Judgment and Decree passed in M.C.O.P.No.2469 of 2006 dated 20.01.2012 on the file of the Motor Accident Claims Tribunal, III Court of Small Causes, Chennai. For Appellant : Mr.M.B.Raghavan For R1 : Mr.V.Velu ***** J U D G M E N T
(Judgment of the Court was delivered by V.Dhanapalan,J.,) This Civil Miscellaneous Appeal arises against the Judgment and Decree passed in M.C.O.P.No.2469 of 2006 dated 20.01.2012 on the file of the Motor Accident Claims Tribunal, III Court of Small Causes, Chennai.
2. The appellant was the 2nd respondent before the Tribunal. The 1st respondent / claimant is a victim, who, while travelling as pillion rider in a Pulsar Motorcycle bearing Regn. No.TN-21-P-2554 from Villupuram to Thiruporur South to North, met with an accident on 17.07.2005 at 17.30 hours, on account of sudden brake and the rash and the negligent driving of the rider of the said motorcycle, due to which, the 1st respondent / injured victim / claimant sustained grievous injuries. Claiming that the respondents therein were jointly and severally liable to pay the compensation, the 1st respondent / claimant, by filing Claim Petition before the Tribunal, sought compensation of a sum of Rs.12,00,000/-.
3. Before the Tribunal, on behalf of the claimant, five witnesses were examined and the following exhibits were marked:
Exhibits Description of Documents Ex.P1 Copy of FIR in Cr.No.200/05 registered at Traffic Investigation Ex.P2 Discharge summary (Apollo Hospital) Ex.P3 Copy of ESI Card Ex.P4 Lab Reports Ex.P5 Radiology Reports Ex.P6 Disability Certificate issued by PW2 Ex.P7 X-Ray Ex.P8 C.T.Scan Report Ex.P9 Disability Certificate issued by PW3 Ex.P10 X-Ray Ex.P11 Disability Certificate issued by PW4 Ex.P12 Medical Bill Statement On behalf of the appellant / respondent, three witness were examined and the following exhibits were marked:
Exhibits Description of Documents Ex.R1 Investigation Report Ex.R2 Photos with CD Ex.R3 Legal notice dated 27.1.09 issued to the 1st respondent Ex.R4 Claim Form Ex.R5 Copy of Driving Licence extract of the petitioner Ex.R6 Insurance Policy
4. On appreciation of materials before it, the Tribunal awarded compensation of a sum of Rs.12,84,000/- together with interest at 7.5% p.a. from the date of petition till the date of deposit and the break-up details are as follows:
Loss of Income for 6 months - Rs. 54,000/-
Transportation - Rs. 10,000/- Extra Nourishment - Rs. 10,000/- Damage to Clothes - Rs. 1,400/- Medical Expenses - Rs.2,61,000/- Pain and Suffering - Rs. 25,000/- Disability of 60% @ Rs.2000/- per disability- Rs.1,20,000/- Towards Permanent Disability - Rs.7,77,600/- Loss of amenities, loss of expectation, loss of enjoyment, inconvenience, discomfort, disappointment, frustration, and mental agony - Rs. 25,000/- ------------------ Total compensation is fixed at - Rs.12,84,000/- ------------------
The said award is being challenged by the appellant / Corporation on the following grounds:
i) that the Tribunal erred in fastening the liability on the appellant insurance company, when the claimant was actually riding the vehicle and caused the accident and he was not travelling as pillion rider;
ii) that the Tribunal failed to consider the evidence of RW2 and RW3 and Ex.R1 to Ex.R6, which clearly substantiate the fact that the claimant was the actual rider of the insured vehicle;;
iii) that the quantum of compensation awarded by the Tribunal is on the higher side, which is not in consonance with the facts and circumstances of the case and that the Trial Judge erred in assessing the disability.
5. Mr.M.B.Raghavan, learned counsel for the appellant / 2nd respondent would submit that the award passed by the Tribunal is not right in fixing the entire liability on the appellant / insurance company, when the claimant himself was the actual rider of the motorcycle and he was not the pillion rider at the time of accident. He would also submit that due to the improper arrival of disability factor, fixation of permanent disability and wrong application of multiplier, the award in question lacks merits and is to be set aside.
6. On the other hand, learned counsel appearing for the 1st respondent / claimant would vehemently contend that the Tribunal has analyzed the negligence part as well as quantum of compensation, based on the oral and documentary evidence and also applied exact multiplier to arrive at just compensation. He has further contended that the documentary evidence will prove the fact as to the consideration of all the factors involved in this case by the Tribunal in awarding such a compensation and thus, there is no need to interfere with the award of the Tribunal, thereby, confirming the said award.
7. We have heard the learned counsel on either side and perused the material documents available on record.
8. A circumspection of the fact would reveal that on 17.07.2005 at 17.30 hours, when the injured / victim was proceeding in the motorcycle bearing Reg.No.TN-21-P-2554 in the capacity of pillion rider towards South to North, owing to the sudden brake and rash and negligent driving of the rider of the said vehicle, he sustained grievous injuries. Therefore, as against the claim of a sum of Rs.12,00,000/- the Tribunal has awarded a sum of Rs.12,84,000/- as compensation. Aggrieved over the same, the appellant / Insurance Company is before this Court for determination of their liability by this Court.
9. To the above claim, appellant / 2nd respondent has made a statement to the effect that on the date of accident, the claimant / victim was the rider of the motorcycle, having one pillion rider by name Ramamurthy and the same has been suppressed with a fraudulent and malicious motive to make a fortune out of the accident. It was stated that the insurance policy for the alleged motorcycle does not cover a third party rider and there is coverage only for the owner-driver (PA) and third party property damage claim. Moreover, the claimant had not possessed valid driving licence at the time of accident.
10. The Tribunal, on looking into the claim and rival submissions, has framed the following two questions for consideration:
i) Whether the claimant / petitioner sustained injuries due to the rash and negligent driving of the driver of the 2nd respondent / 1st respondent's vehicle?
ii) Whether the respondents are liable to pay the compensation?
iii) Whether the claimant / petitioner is entitled for the compensation, if so, what is the just compensation?
11. The Tribunal has firstly examined the negligence aspect and also the circumstances, under which, the rider of the motorcycle drove the said vehicle. The claim petition before the Tribunal was filed by the claimant / petitioner under Section 166 of Motor Vehicles Act, which makes a provision to prefer application for compensation arising out of the accident, which after few amendments reads as under:
Section 166 Application for compensation:-
(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the Legal Representatives of the deceased; pr
(d) by any agent duly authorised by the person injured or all or any of the Legal Representatives of the deceased, as the case may be:
Provided that where all the Legal Representatives of the deceased have not joined in any such Application for compensation, the Application shall be made on behalf of or for the benefit of all the Legal Representatives of the deceased and the Legal Representatives who have not so joined, shall be impleaded as Respondents to the Application.
(2) Every Application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under Section 140 is made in such Application, the Application shall contain a separate statement to that effect immediately before the signature of the Applicant. In an application filed under Section 166, claiming compensation, it is necessary for a claimant to prove negligence on the part of the driver or owner of the vehicle. The burden is on the claimant to establish the negligence on the part of the driver or owner of the vehicle and on proof thereof, the claimant is entitled to compensation.
12. Keeping in mind the above, in order to arrive at a decision in respect of 1st point, the Tribunal had examined the injured victim / claimant as P.W.1, who deposed that he sustained injuries due to the rash and negligent driving of the motorcycle, namely, Ramamurthy and in support of his claim, he marked Ex.P1, copy of FIR.
13. The said contention of the claimant was resisted by the appellant / insurance company, stating that at the time of accident, claimant was riding the motorcycle and caused the accident. To prove the same, Ex.R4, Claim Form issued by the 2nd respondent / 1st respondent owner of the vehicle was marked through R.W.3 one Thiru.B.Lakshmanan, Senior Executive of the insurance company and R.W.2 Thiru.C.A.Krishnan, Investigator of the 2nd respondent / insurance company, who in turn deposed that due to non possession of driving licence, the claimant had fraudulently claimed to be the pillion rider, by showing the deceased as rider in the FIR. Mere filing of FIR is not sufficient to say that the accident had occurred due to the fault of the driver of the 1st respondent vehicle, that no eye witness was examined by the claimant and that neither accident register nor charge sheet was filed. In the Claim Form Ex.R4 submitted before the insurance company, the claimant was shown as the Driver and Ex.R6, insurance policy covers only the owner and driver and not any one else riding the motorcycle. Since the claimant was the rider, to whom insurance was not covered, the insurance company has to be exempted and exonerated from its liability to pay compensation.
14. The learned Trial Court took a stand that it was admitted on both side that Ramamurthy died on the accident, that the father of the said Ramamurthy was the complainant in the FIR and that the claimant was unconscious on the date of accident. If the case of the claimant that he was a pillion rider at the time of accident was to be false, then the appellant / insurance company would have referred the matter to CBCID instead of appointing two investigators, namely, RW2 and RW3, but there was no such reference. Moreover, the evidence of PW1 / injured claimant and Ex.P1 / FIR remained unchallenged. Therefore, the Tribunal has come to the conclusion that the accident had happened due to the rash and negligent driving of the 2nd respondent / 1st respondent's vehicle driver.
15. The Hon'ble Supreme Court, while deciding the factor and circumstances of negligence in the case of Vijay Kumar Kulhar vs Rajasthan State Road Transport (C.A. @ S.L.P.(C)Nos.3889 & 3890 of 2008) decided on 27.07.2009, has held as under:
17. P.W.5 Ghosh Mohammad driver of RSRTC Bus had lodged a report in the Police Station, Jhunjhunu in respect of the accident, registered as FIR No. 33/83 for the offence under Section 279 IPC against the present appellant. Exh. 26 is the said report. No doubt, it is true that appellant has been acquitted of the said offence but nothing turns on his acquittal.
18. After the receipt of the report, police had prepared a spot map Exh.1 wherein it has been noticed that left side of the truck had hit the right side of the bus, as a result whereof, the bus was found in hanging position on the left side of the bridge.
19. The mechanical examination report of the truck is marked as Exh. 37 in which it has been noticed that the mudguard on the left side of the truck was dented and there were marks of peeling off and dents on the left side gate of the truck.
20. Exh. 38 is the mechanical examination report of the bus according to which front portion of the bus was damaged and was lying on the floor, the steering control was also lying broken and there were damages on the right side of the bus.
21. From the aforesaid evidence, it is clearly made out that left side of the truck collided with right side of the bus and then it reached the main road. P.W.1 Mahinder Kumar Sharma conductor of the bus and P.W.5, driver of the bus have deposed in one voice that the bus was going at a moderate speed whereas the truck came at a high speed and dashed violently to the rear right side of the bus as a result of which the bus dashed against the bridge and broke the wall and was lying in a hanging position.
22. After carefully going through the FIR, the inspection reports of both the vehicles and the oral evidence available on record, it is clearly made out that it was truck driven by the appellant which had come in a rash and negligent manner from behind and while attempting to overtake the bus had dashed against it causing damage.
23. Once it is held that the accident was caused on account of rash and negligent driving of the truck by the appellant, then obviously the appellant would be liable to pay the amount of compensation, which has been assessed by learned Single Judge at Rs. 40,000/-.
16. The Hon'ble Karnataka High Court has also elaborately dealt with the negligence aspect in M.N. Rajan and others vs Konnali Khalid Haji and another, reported in [ILR 2004 KAR 3731] as under:
23. A Division Bench of this Court in the case of GENERAL MANAGER, BANGALORE TRANSPORT SERVICE v. N. NARASIMHAIAH AND ORS., 1976 ACJ 379 held as follows:
"If it is found that the negligent act of omission of a driver was the proximate and efficient cause of an accident, it will not be a valid defence to say that the person injured was also negligent unless it is shown that the person injured had made it extremely difficult for the other to avoid the accident. In this case the evidence of the witness referred to above clearly establishes that Raju was riding the cycle along when the vehicle came from behind him and dashed against the cycle. The evidence of the driver of the bus, if scrutinized carefully, clearly goes to show that he did not see at all how the accident happened. It is only after he heard the sound he stopped the bus. Therefore, his story that it was due to the negligence of Raju the accident happended cannot be believed. A person driving a motor vehicle on a busy road like the one in question must drive the vehicle with reasonable care strictly observing the traffic regulations and the rules of the road so as not to imperil the safety of the other persons whether they are pedestrians or cyclists or others who have a similar right to use the highways on which he drives it.
24. It is well settled that the burden of establishing the defence of contributory negligence is on the defendant who admits that on account of the conduct of the plaintiff, his negligence had gone into the background and it was the conduct of the plaintiff that resulted in the accident; it is not for the claimant to disprove it. In the case of SHARADA BAI v. KARNATAKA STATE ROAD TRANSPORT CORPORATION (supra) speaking about the burden of proving contributory negligence, the Court held: "The burden of proving contributory negligence is on the cross-objectors in this case. It is not for the Appellant to disprove it. If the tort-feasor's negligence or breach of duty is established as causative of the damage, the onus is on him to establish that the victim's contributory-negligence was a substantial or cooperating cause. In order to establish the defence of contributory negligence the propounder of that defence must prove, first, that the victim failed to take reasonable care of himself or, in other words, such care as a man of ordinary prudence would have done and that was a contributory-cause of the accident. The amount of care which a person could reasonably be expected to take, must needs vary with the circumstances and the conditions actually prevailing at the material point of time. However, it is relevant to note that, in order to discharge the burden of proof, it is unnecessary for the propounder of that defence to adduce evidence about the matter. Contributory negligence can be - and very often is- inferred from the evidence adduced already on the claimants behalf or from the perceptive facts, either admitted or found established, on a balance of probabilities in the case.
25. In this case, there is neither pleading nor any proof of contributory negligence. Further, contributory negligence on the part of the deceased or the driver of the motor cycle cannot be inferred on the basis of the evidence on record. In the case of DARYAOBAI AND ORS. v. MADHYA PRADESH STATE ROAD TRANSPORT CORPORATION, 1996 ACJ 1233 a Division Bench of the Madhya Pradesh High Court while holding that if the driver of the vehicle involved in the accident is not examined in the case, an adverse influence can be drawn, was pleased to observe that - "The statement of Kanhaiya Lal as corroborated by the statement of Amol Das goes to prove that the accident had occurred due to rash and negligent driving of the vehicle by the driver of the jeep. It may also be observed here that if a party specially the owner of the vehicle fails to examine the driver of the vehicle involved in the accident, an adverse inference will have to be drawn. This is not the case of respondent Union of India that the driver is not available or his attendance could not be procured despite efforts being made. Thus, it would be deemed that the driver of the jeep was purposely withheld and was not produced in the court for examination and cross-examination. In such a situation, we are inclined to believe Kanhaiya Lal and Amol Das that goes to prove that the accident occurred due to rash and negligent driving of the jeep owned by the Union of India. Even otherwise, it is the driver of the vehicle which is required to keep constant vigil on the road and vehicle coming from opposite direction including other vehicles overtaking the vehicle driven by him and, therefore, he is the best person to depose about the manner of accident. We are, therefore, not in agreement with the finding of the learned Tribunal and further hold that the accident occurred due to rash and negligent driving of the vehicle by the driver of the jeep of Narcotics Department."
In this case also, evidence of PW-2 proves that the accident had occurred due to rash and negligent driving of the lorry by its driver. Quite curiously, the driver of the lorry was not examined by the owner or insurer of the vehicle. Therefore, an adverse inference can be drawn against them. Therefore, the plea of contributory negligence urged by the learned Counsel for the respondents 1 and 2 for the first time in this appeal is required to be noticed only to be rejected in limine.
17. In the light of the above cited principles and in the absence of any specific overact attributed to the injured victim / claimant for the accident, we have no hesitation to hold that the decision arrived at by the Tribunal fixing the negligence part on the respondent / insurance company does not call for any interference, thereby confirming the negligence aspect as against the insurance company and 2nd respondent.
18. On the question of quantum of compensation, we feel that it is pertinent to observe the deposition made by PW1 / claimant, who had inter alia stated that he was aged 26 years at the time of accident and has been working as Service Engineer in Pack Tech Systems, Ambattur Industrial Estate, drawing a salary of Rs.9,000/- per month. The Investigation Report / Ex.R1 would also reveal that the petitioner is running Christal Pack Systems with one partner and employed 5 labourers to execute the fabrication / assembly / maintenance works. Thus, it is clear that he would have been earning Rs.9,000/- per month at the time of accident and the same was fixed as income by the Tribunal.
19. Learned Tribunal also perused Ex.P2, discharge summary issued by the Apollo Hospital, which states that the claimant was admitted as inpatient for a period of 21 days and as per Ex.P2, the claimant sustained the following injuries:
i) Concussion
ii) Right 3rd, 6th nerve paresis with Traumatic optic neuropathy, that no perception of light in right eye and that prognosis of right vision is guarded.
Subsequently, the claimant took continuous treatment as inpatient for a period 25 days for the following diagnosis:
i) Follow up case of head injury
ii) Subglottic tracheal oedema causing upper airway obstruction with vocal cord palsy causing respiratory failure
iii) Aspiration pneumonia right lung
iv) Right 3rd and 6th nerve paresis with right traumatic optic neuropathy Therefore, the learned Tribunal had concluded that there is a possibility of incurring expenses towards loss of income, transportation, extra nourishment, damage to clothes and some expenses towards medicines also and further observed that the claimant would have experienced much pain and suffering, mental strain, which would cause dissatisfaction to do his daily works, for which the claimant would be entitled to compensation.
20. A Doctor by name Rajappa, Ophthalmology was examined as P.W.2 before the learned Tribunal, who, besides assessing the disability of the claimant to be 40% permanent for loss of vision in right eye, had deposed that due to head injury with right third and sixth cranial nerve palsy with traumatic optic nuropathy, right eye pupil dialated not acting extra anculas movements are affected, F/us right eye optic atrophy vision right eye no pil. His deposition is supported by Ex.P6, disability certificate. Further, another Doctor examined as P.W.3, on clinically examining the claimant on neurp aspect, assessed the disability to be 65% partial permanent for the injury of multiple laceration over forehead, multiple abrasions upper extension on face, bilateral black eye, Bilateral Sub-Arachnoid heamorrhagic and in sylvian cistern, basal cisterns, multiple pockets of air in base of skull, bilateral extensive infiltration, cranial nerve, right 3rd and 6th palsy. P.W.4, Doctor, who examined the claimant with respect to ENT, issued a certificate Ex.P11, by assessing 60% permanent disability for diffuse bilateral SAH-Blod sylviancistern, multiple packets of air seen in the base of skull, upper part hemisphere, in midline ventricle in midline, X-ray chest-bilateral extensive infilteration. P.W.4, by adducing Ex.P4, X-ray, deposed of the claimant, suffering from hoarseness, madillary sinusitis, vocal cards restricted mobility, narrow air entry, neck, trachostomy scar neck.
21. On analyzing the overall circumstances and depositions made, the learned Tribunal assessed 40% as permanent, 65% as partial and permanent and 60% to be permanent, thereby fixing 165% towards totally disability. Learned Tribunal, considering the permanent disability at 40%, taking into account the age of the injured and also adopting the multiplier method, had fixed Rs.7,77,600/- (i.e. Rs.9,000/- x 12 x 18 x 40%) towards permanent disability.
22. In Sarla Verma's case, the Supreme Court compared the multiplier indicated in various decisions with the multiplier mentioned in the second schedule of Section 163-A of Motor Vehicles Act and identified a table. Relevant portion of the said judgment would read as under:
"19. In New India Assurance Co. Ltd. vs. Charlie [2005 (10) SCC 720], this Court noticed that in respect of claims under section 166 of the MV Act, the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in TN State Road Transport Corporation Ltd. vs. Rajapriya [2005 (6) SCC 236] and UP State Road Transport Corporation vs. Krishna Bala [2006 (6) SCC 249]. The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under section 166 of MV Act) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under section 163A of MV Act (with appropriate deceleration after 50 years):
Age of deceased Multiplier Scale as envisaged in General Manager, Kerala State Road Transport Corporat-ion, Trivandr-um v. Susamma Thomas and others, 1994(2) SCC 176 Multiplier Scale as adopted by U.P. State Road Transport Corporat-ion and others v. Trilok Chandra and others, 1996 (4) SCC 362 Multiplier Scale in U.P. State Road Transport Corporation and others v. Trilok Chandra and others, 1996(4) SCC 362 as clarified in New India Assurance Company Ltd. v. Charlie and another, 2005 (10) SCC 720 Multiplier Specified in Second Column in the Table in Second Schedule to the MV Act Multiplier actually used in Second Schedule to M.V. Act (as seen from the quantum of compensation) (1) (2) (3) (4) (5) (6) Upto 15 years
-
-
-15 20
15 to 20 years 16 18 18 16 19 21 to 25 years 15 17 18 17 18 26 to 30 years 14 16 17 18 17 31 to 35 years 13 15 16 17 16 36 to 40 years 12 14 15 16 15 41 to 45 years 11 13 14 15 14 46 to 50 years 10 12 13 13 12 51 to 55 years 9 11 11 11 10 56 to 60 years 8 10 9 8 8 61 to 65 years 6 8 7 5 6 Above 65 years 5 5 5 5 5
20. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas (set out in column 2 of the table above); some follow the multiplier with reference to Trilok Chandra, (set out in column 3 of the table above); some follow the multiplier with reference to Charlie (Set out in column (4) of the Table above); many follow the multiplier given in second column of the Table in the Second Schedule of MV Act (extracted in column 5 of the table above); and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in column 6 of the table above). For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second Schedule to MV Act. Some Tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A of MV Act. In cases falling under section 166 of the MV Act, Davies method is applicable.
21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years. Learned Tribunal, keeping in mind the age, nature of injury, in patient treatment for 46 days, had awarded compensation under various heads, which reads as follows:
1. Loss of income for 6 months - Rs. 54,000/-
2. Transportation - Rs. 10,000/-
3. Extra Nourishment - Rs. 10,000/-
4. Damage to Clothes - Rs. 1,400/-
5. Medical Expenses - Rs.2,61,000/-
6. Pain and Suffering - Rs. 25,000/-
7. Disability of 60% @ of Rs.2,000/-
per disability - Rs.1,20,000/-
8. Towards Permanent Disability - Rs.7,77,600/-
9. Loss of amenities, loss of expectation, loss of enjoyment, inconvenience, discomfort, disappointment, frustration and mental agony - Rs. 25,000/-
-----------------
Total compensation is fixed at - Rs.12,84,000/-
-----------------
23. The main plea of the appellant in this case is that in absence of any documentary proof as to the income of the claimant, the monthly income derived as Rs.9,000/- cannot be accepted. The appellant / insurance company has taken a stand before the Tribunal that it is for the injured claimant to prove his employment and income and the loss of income must be proved beyond doubt. Therefore, mere production of ESI card in support of his monthly earnings could not be the direct evidence.
24. We find merits in the above contention. Without strong evidence in proof of income, the monthly income so fixed by the Tribunal as Rs.9,000/- is, according to us, is on the higher side and the same needs revision. Accordingly, Rs.9,000/- assessed as monthly income by the learned Tribunal is reduced to Rs.7,000/- so as to arrive at a sum of Rs.6,04,800/- after applying the same multiplier of 18, towards permanent disability. In view of reduction in monthly income of the claimant, the amount awarded by the Tribunal towards loss of income for six months is also reduced to the extent of Rs.42,000/-from Rs.54,000/-. Since the amount extended for the damage of clothes, in our opinion, is very meagre, the same is enhanced to Rs.10,000/-, for which, the appellant insurance company has not seriously opposed. Insofar as other heads are concerned, there is no need for interference, thereby confirming the amount as awarded by the Tribunal.
25. The Hon'ble Supreme Court in the case of Arvind Kumar Mishra vs. New India Assurance Co. Ltd., and another, reported in 2010 ACJ 2867, has held as under:
6. It is not necessary to discuss the liability of the respondents. That was disputed, but the matter has been considered, and the Tribunal found that due to rash and negligent driving by the driver of the truck (DEG 3291), the accident took place in which the appellant sustained serious multiple injuries and, therefore, owner and insurer were liable to him for the damage. There was no appeal with regard to that matter before the High Court.
7. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was in so far as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. In some cases for personal injury, the claim could be in respect of life time's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases - and that is now recognized mode as to the proper measure of compensation - is taking an appropriate multiplier of an appropriate multiplicand.
26. Except with the above modifications and considering the above principles, we find no other infirmities in arriving at the just and fair compensation awarded by the learned Tribunal, which has gone into every nook and corner of the claim put forth by the claimants. Accordingly, the award passed by the Tribunal is reduced and the new break-up details are as follows:
Sl.No. Description Amount awarded by Tribunal Amount now awarded by this Court
1.
Loss of Income for 6 months Rs.54,000/-
Rs.42,000/-
2. Transportation Rs.10,000/-
No Change
3. Extra Nourishment Rs.10,000/-
No Change
4. Damage to Clothes Rs.1,400/-
Rs.10,000/-
5. Medical Expenses Rs.2,61,000/-
No Change
6. Pain and Suffering Rs.25,000/-
No Change
7. Disability of 60% @ Rs.2,000/- per disability Rs.1,20,000/-
No Change
8. Towards Permanent Disability Rs.7,77,600/-
Rs.6,04,800/-
9. Loss of amenities, loss of expectation, loss of enjoyment, inconvenience, discomfort, disappointment, frustration, and mental agony Rs.25,000/-
No Change Total Rs.12,84,000/-
Rs.11,07,800/-
27. This Civil Miscellaneous Appeal is allowed in part to the extent as indicated above. The 1st respondent / claimant is entitled to a sum of Rs.11,07,800/- as compensation with accrued interest @ 7.5% from the date of petition till the date of realization.
28. The appellant / insurance company is permitted to withdraw the balance amount, if any, lying in the credit of M.C.O.P.No.2469 of V.Dhanapalan, J.
and G.Chockalingam, J.
ar 2006 dated 20.01.2012 on the file of the Motor Accident Claims Tribunal, III Court of Small Causes, Chennai. No costs. Connected miscellaneous petition is closed.
[V.D.P.,J.] [G.C.,J.] 08.08.2014 Index: Yes Internet: Yes ar To Motor Accident Claims Tribunal, III Court of Small Causes, Chennai
C.M.A.No.2703 of 2012