Madras High Court
M.S.Luthufullah vs S.Balu on 8 December, 2005
Bench: M.Karpagavinayagam, S.R.Singharavelu
In the High Court of Judicature at Madras
Dated: 08/12/2005
Coram
The Hon'ble Mr.Justice M.KARPAGAVINAYAGAM
and
The Hon'ble Mr.Justice S.R.SINGHARAVELU
CMA.(NPD) (B)No.2997 of 2005
and
CMPs.No.15590 and 17164 of 2005
1. M.S.Luthufullah
2. New India Assurance Co.Ltd.,
No.44, Moore Street,
Motor Third Party Cell,
Chennai-1. ..Appellant
-Vs-
S.Balu ..Respondent
Civil Miscellaneous Appeal filed under section 173 of Motor Vehicles
Act, against the judgment and decree dated 04.04.2005 in M.C.O.P. No.5124 of
2000 on the file of Motor Accidents Claims Tribunal (II Small Causes Court),
Chennai.
!For Appellants : Mr.N.Vijayaraghavan
^For Respondent : Mr.Saravanan for
Mr.M.Swamikkannu
:JUDGMENT
S.R.SINGHARAVELU, J., Respondents in M.C.O.P.No.5124 of 2000 on the file of Motor Accidents Claims Tribunal (II Small Causes Court), Chennai are the appellants.
2. The brief case of the claimant is as follows:- In respect of an accident that took place on 22.10.2000 at about 10.40 hours, the claimant was riding the cycle from north to south direction in Sydenhams Road on the eastern side of the road with milk. When he was proceeding opposite to door No.1, Jalal Electricals, Tata Sumo Car bearing registration No. TN-65-J-6666 belonging to the first appellant came from behind in a rash and negligent manner and dashed against the cycle, in which the claimant has sustained multiple fractures and the cycle also damaged. On account of injuries sustained, the claimant filed the claim petition, praying for a compensation of Rs.11,36,000/-. The claimant was examined as P.W.1 and two witnesses were examined as P.Ws.2 and 3, besides marking Exs.P-1 to P-8 in support of his claim before the Tribunal. On the side of the respondents, no witness was examined and no document was marked. The Tribunal on appreciation of evidence, both oral and documentary, after holding that accident was caused due to negligence of the driver of the Tata Sumo car in question, passed an award for Rs.9,19,000/- as compensation and directed the respondents to pay the said compensation amount to the claimant. Questioning the said award, the insurance company has preferred this appeal.
3. Heard the learned counsel for both sides.
4. This is an unfortunate event of usurping the judicial powers in misusing the exchequer of the Insurance Company. The order of the Tribunal is the best model as to how not the process of estimation of the compensation could be made.
5. A 34 years old man claimed to have had the avocation of milk vendor, met with a road accident that occurred at 10.45 AM on 22.10.2000 in the Sydenhams Road near Periamet Police Station. It was said that when the injured claimant was riding his bicycle from Purasawalkam to Parrys Corner, the Tata Sumo bearing registration No.TN-65-J-6666 owned by the first respondent and insured by the appellant second respondent, had dashed from behind upon the cycle, in which the claimant sustained injuries on the right shoulder and lower limbs. Ex.P-3 is the first information report. Ex.P-4 is the rough sketch of the scene of occurrence and Ex.P-5 is the charge sheet. Ultimately it was said that the driver of the said car admitting the offence, had paid fine in the criminal proceedings and therefore, the Tribunal has come to the conclusion that the claimant was entitled for compensation at the hands of the appellant Insurance Company.
6. It is thereupon, the entire problem arises. All the norms herein before observed by this Court as well as the Apex Court were breached; and even the first principle of law and natural justice were given a go by; and without even appreciating the evidence on record, on non-application of mind, the Insurance Company was directed to pay a sum of Rs.9,19,9000/- as compensation towards the claimant for the injury sustained on his shoulder.
7. True it is that there are discharge and disability certificates marked as Exs.P-1 and P-6 besides the x-ray and case sheet as Exs.P-7 and P-8. P.W.3 is the Medical Officer.
8. According to P.W.3, it was found that there was, "Acromion Clavicle Dislocation Open Reduction done screw fixed". Even though in para 11 of the order, it was contended that there was crushed injury on the knee joint of both legs, no mention was made about the same in the course of discussion of the evidence of P.W.3. The claimant was shown to have taken treatment in Government Hospital, Chennai as inpatient between 22.10.2000 and 08.11.2000. The discharge summary shows only the following:
"Diagnosis .. Acromion dislocation right side .....
.....
Distal End of clavicle projecting tenderness * in AC joint * Corococlavicular Ligament tenderness * shoulder joint movement restricted Duvan sign -ve no distal neuro ocular sign"
With these premises, the Medical Officer has come to the conclusion that there was permanent disability to the extent of 50%.
9. Not in all occasions the Court need to concur with the opinion of the Medical Officer and as and when obliquely or patently there is some dissimilarity between the percentage of disability and the seriousness of the injury, then disagreeing with the Medical Officer, the Court can also reduce the percentage of disability.
10. For an injured, who took treatment as in-patient only for 15 days, in which period he successfully underwent a surgery upon the fractured clavicle and especially when screw was fixed after open reduction, it is needless to be mentioned that he may require physiotheraphy in order to have the original joint movement, if not in total at least to the nearby extent. This prospective opportunity of the healing of wound and getting the movement to somewhat normal position should have been taken into account before ever the percentage of disability is fixed, which has not been done in this case. Besides which, there is lack of evidence regarding the allegation that there was crushed injury on knee joint of both legs. In the order of the Tribunal, no such portion of the evidence of P.W.3 was culled out. Even in the discharge summary, there is no mention made about the fracture or crushed injury on the knee joint of both legs.
11. Even assuming that there was 50% permanent disability due to the fractured right shoulder, the young age of the claimant, the number of days when he was in-patient and the fact that he was now employed as a watchman and admittedly earning a sum of Rs.750/- per month have necessarily to be taken into account in awarding the quantum in order to arrive at a proper amount. But the Tribunal, without assigning any reason, had blindly mentioned in its para 20 of the order and awarded the amount as follows:-
Loss of earning capacity (para 21 of impugned award) .. 3,00,000 Compensation towards disability(para 20 " ) .. 1,25,000 Loss of earning during convalescence(para 12 " ) .. 1,00,000 Loss of earning of the escort (para 17 " ) .. 40,000 Pain and suffering of the claimant (para 19 " ) .. 1,25,000 Mental agony of the claimant (para 19 " ) .. 1,25,000 Transport expenses (para 13 " ) .. 5,000 Additional transport expenses (para 18 " ) .. 75,000 Nutritious diet (para 14 ") .. 20,000 Medicines (para 16 ") .. 3,000 Loss of bicycle(para 15 ") .. 1,000
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Total 9,19,000
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12. First of all, there is absolutely no evidence to hold that the claimant was doing milk vendor business. Even assuming that he did so, the fixation of monthly income as Rs.6,000/- is without any basis. Under what process of calculation, a person of 34 years age was said to be earning a sum of Rs.6,000/- per month. Even assuming that he had a permanent disability of 50% for his fractured right shoulder, how could he be granted Rs.one lakh under the head of loss of earning capacity during convalescence and Rs.3 lakhs towards future earning capacity. Thus, a sum of Rs.4 lakhs was awarded on the head of loss of earning capacity in general. There was no indication of any process of calculation nor was there any evidence to take his monthly income as Rs.6,000/-.
13. Again, while the evidence on record is that the claimant was in-patient only for 15 days, how there could be an award of Rs.40,000/- as loss of earning of escort of the claimant when he was in hospital. First of all, there is no evidence as to was escorting him and whether at all he was escorted by anyone. There was no evidence of the age of the parents. It was assumed by the Tribunal that only the parents were escorting him and so, the loss of earning of parents was indicated in para 17 of the order and a compensation of Rs.40,000/- was granted without any basis of evidence of any sort.
14. Again, there was an award of Rs.1,25,000/- each under the head of mental agony as well as pain and suffering. The word "suffering" includes "agony". The Tribunal had fixed the award for pain and suffering of the claimant only for a fracture on the right shoulder and who was in-patient for 15 days only. Thus, awarding a sum of Rs.2,50,000 /- under the heads of pain and suffering and mental agony could not even be imagined.
15. Again, there was a double head transport expenses. Perhaps one for the present given in para 13 and another for the future granted in para 18 respectively a sum of Rs.5,000/- and Rs.75,000/- totalling a sum of Rs.80,000/-. To mention again, there is no evidence of any kind in this regard.
16. Award of Rs.3,000/- towards medical expenses not supported by any medical bill and especially while he was taking treatment in the Government Hospital, is unacceptable. The awarding of Rs.1,000/- towards repair of the damaged cycle without any evidence in this connection, is also not acceptable. To say that a person, who successfully underwent a surgery for the fractured right shoulder and who was having a prospective chance of complete healing due to his age, is expected to spend Rs.20,000/- towards nutritious diet in future is also not acceptable.
17. At last, disability of 50% was awarded with a sum of Rs.1.25 lakhs.
18. The above kind of approach is not judicial approach. It can only be deprecated. The learned counsel for the appellant Insurance Company cited the case law New India Assurance Co.Ltd., ..vs.. Charlie and another (2005(2) TLNJ 157 (SC), wherein the claimant, aged about 3 7, sustained injuries with a permanent disability of 100%. The Tribunal in that case awarded as follows:-
1. Rs.2,88,000/- for loss of earning;
2. Rs. 2,600/- towards transport to hospital;
3. Rs. 4,000/- for extra nourishment expenses;
4. Rs. 250/- for damage to clothing;
5. Rs.1,18,975/- for medical expenses
6. Rs. 15,000/- for pain and suffering
7. Rs. 40,000/- towards compensation for continuing or permanent disability
----------
Total Rs.4,68,825/-
----------
But the Supreme Court has reduced the compensation to Rs.3,50,000/-. In that case, the claimant was an agriculturist of aged 37 years. Here also, the claimant is aged 34 years and he is said to be milk vendor but there is no supporting documentary evidence.
19. Taking the totality of the circumstances, on the basis of the various factors indicated above, the quantum of compensation is fixed at Rs.2,00,000/-. The amount shall carry interest at the rate of 7.5 % per annum from the date of filing of the claim application up to the date of payment. If any amount has already been paid, the same shall be adjusted from the amount to be worked out on the above said basis.
20. Civil Miscellaneous Appeal is allowed to the aforesaid extent. No costs. Consequently, connected C.M.Ps.are closed.
Index: Yes.
Internet: Yes.
gl To The Registrar, Court of Small Causes, Madras.