Madras High Court
The United India Insurance Co Ltd vs N.Anusuya on 4 June, 2020
Author: R.Pongiappan
Bench: R.Subbiah, R. Pongiappan
CMA Nos.1853 & 1956 of 2019
and Cross Obj.No.18 of 2019
IN THE HIGH COURT OF JUDICIATURE AT MADRAS
Reserved on : 05.03.2020
Pronounced on : 04.06.2020
CORAM :
THE HON'BLE MR.JUSTICE R.SUBBIAH
AND
THE HON'BLE MR.JUSTICE R. PONGIAPPAN
CMA Nos.1853 & 1956 of 2019
and
Cross Obj.No.18 of 2019
CMA No.1853 of 2019
The United India Insurance Co Ltd.,
Greams Road,
Chennai – 600 006. ... Appellant
-vs-
1.N.Anusuya
2. T.Manokaran ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 against the order and decree dated 06.04.2018 made in
M.C.O.P.No.6456 of 2014 on the file of the Motor Accident Claims
Tribunal [Special Sub Court No.2, Small Causes Court], Chennai.
1/31
http://www.judis.nic.in
CMA Nos.1853 & 1956 of 2019
and Cross Obj.No.18 of 2019
CMA No.1956 of 2019
The United India Insurance Co Ltd.,
Greams Road,
Chennai – 600 006. ... Appellant
-vs-
1.N.Senthil Chinnappa
2. T.Manokaran ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 against the order and decree dated 06.04.2018 made in
M.C.O.P.No.6455 of 2014 on the file of the Motor Accident Claims
Tribunal [Special Sub Court No.2, Small Causes Court], Chennai.
Cross Obj.No.18 of 2019
N.Senthil Chinnappa ... Appellant
-vs-
1.The United India Insurance Co Ltd.,
Greams Road,
Chennai – 600 006.
2. T.Manokaran ... Respondents
Prayer: Cross Objections filed under Order 41, Rule 22 of Code of Civil
Procedure, 1908, against the order and decree dated 06.04.2018 made in
M.C.O.P.No.6455 of 2014 on the file of the Motor Accident Claims
Tribunal [Special Sub Court No.2, Small Causes Court], Chennai.
2/31
http://www.judis.nic.in
CMA Nos.1853 & 1956 of 2019
and Cross Obj.No.18 of 2019
For Appellant : Mr.D.Bhaskaran
in both Appeals
& R1 in Cross. Obj.
For 1st Respondents : Mr.K.Suryanaryanan
in both Appeals
& for Cross objector
COMMON JUDGMENT
R.PONGIAPPAN, J.
Aggrieved over the common award passed by the Motor Accidents Claims Tribunal [Special Sub Judge No.2, Small Causes Court], Chennai, in MCOP Nos.6456 & 6455 of 2014, the Insurance Company, who is the 2nd respondent in the abovesaid MCOPs have preferred this two Civil Miscellaneous Appeals viz., CMA Nos.1853 & 1956 of 2019, respectively, praying to set aside the award passed by the Claims tribunal, as erroneous.
2. Per contra, the claimant in MCOP No.6455 of 2014, has filed a Cross Objection No.18 of 2020, seeking the relief to enhance the compensation awarded by the Claims Tribunal.
3. For the sake of convenience, the parties are hereinafter referred to as per their litigative status, before the claims tribunal. 3/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019
4. The case of the claimants in both the claim petitions, is as follows:
(i) On 12.08.2014, at about 10.15pm, the claimant in MCOP No.6455 of 2014 viz., N.Senthil Chinnappa was riding the bike bearing Regn.No.TN10-AK-5845, in which the claimant in MCOP No.6456 of 2014, travelled as a pillion rider. In Poonamallee to Guindy Road, when the bike reaches the Sabri Nagar Junction, Moulivakkam, a car bearing Regn.No.TN21 AK 9640 came in the same road from West to East, in a rash and negligent manner and hit against the motorcycle, in which both the claimants were travelling. Due to the result of the said accident, both the claimants fell down and sustained grievous injuries. In this regard, a case in Crime No.1155/PH3/2014 has been registered by the Sub-Inspector of Police, Poonamallee Traffic Investigation, Chennai, under Sections 279, 337 & 338 IPC, against the driver of the car.
(ii) After getting treatment, both the claimants, have preferred the abovesaid MCOPs against the respondents, claiming compensation for the injuries sustained in the said road accident. Since the 1st respondent is the owner of the car and the 2nd respondent, is the insurer, both of them are jointly and severally liable to pay the compensation to both the claimants. 4/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019
5. Before the claims tribunal in both the cases, 2nd respondent herein who is the owner of the offending vehicle, remained exparte.
6. However, opposing the claim made by the claimants, the 2nd respondent-Insurance company filed the counter and states that on preliminary investigation, they came to understand that the accident occurred due to the rash and negligent act of the motorcyclist, i.e. the claimant in MCOP No.6455 of 2014. Only at the time when the rider of the motorcycle crossed the Poonamallee – Guindy Road, near to Moulivakkam Sabari Junction in the wrong side of the road from North to South, the accident had happened. Hence, the owner of the bike bearing Regn.No.TN10 AK 5845 in which both the claimants travelled and the insurer of the said vehicle are necessary parties for the proper adjudication on the point of negligence.
7. According to the 2nd respondent, the claim petitions filed by the claimants are barred by non-joinder of necessary parties. The claimants have to prove the injuries alleged to have been sustained, nature of 5/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 treatment, period of treatment, avocation, income, medical and other expenses. The 2nd respondent is not liable to pay any compensation. Since the claimant in MCOP No.6455 of 2014, was the tort-feaser, he is not entitled to any compensation under the provisions of law.
8. Before the claims tribunal, as per the memo filed by the claimants, both the claims petitions were tried together.
9. On the side of the claimants, two witnesses have been examined as PW1, PW2 and 15 documents were exhibited as Exs.P1 to P15. On the side of the respondents, no witnesses have been examined. However, one document has been marked as Ex.R1, by consent. Apart from that, the disability certificate issued to the claimant in MCOP No.6455 of 2014 by the medical board, has been marked as Ex.C1.
10. Having considered all the materials placed before him, the learned Presiding Officer, Claims Tribunal, came to the conclusion that the accident had occurred only due to the negligent act of the driver of the 1 st respondent's vehicle. Further, he came to the conclusion that since the said 6/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 vehicle was insured with the 2nd respondent both the respondents are jointly and severally liable to pay the compensation as fixed by the tribunal. Conclusively, after elaborate discussion, a sum of Rs.32,31,833.50p rounded off to Rs.32,31,900/- was determined as the just compensation to the claimant, who filed MCOP No.6455 of 2014. Further, he concluded the trial and awarded Rs.40,000/- as the total compensation to the claimant who filed MCOP No.6456 of 2014.
11. Now, against the said common award passed by the claims tribunal, the Insurance Company/2nd respondent in both the MCOPs, is before this Court seeking the relief to set aside the award passed by the claims tribunal.
12. On the other hand, the claimant in MCOP No.6455 of 2014, has filed the Cross Objection and seeks the relief to enhance the award fixed by the claims tribunal.
13. As both the claim petitions are arising out of the same accident the claims tribunal passed a common award. Thereby, we also decide to 7/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 pass a common judgment for CMA Nos.1853 & 1956 of 2014 and to the Cross Objection No.18 of 2019.
14. We heard the arguments advanced by Mr.D.Bhaskaran, learned counsel appearing for the appellant/Insurance company and Mr.K.Suryanarayanan, learned counsel appearing for the 1st respondent/claimants in both the CMAs.
15. In order to dispose of both the appeals and the cross objection, the following points are raised.
1. whether the finding arrived at by the claims tribunal in MCOP Nos.6455 & 6456 of 2014, as the accident had occurred due to the rash and negligent act of the driver of the 1st respondent, is correct or not?
2. whether the liability fixed against the insurance company by the claims tribunal, is correct or not?
3. Whether the quantum of compensation arrived at by the claims tribunal in MCOP No.6455 of 2014, is found correct or not? 8/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019
4. Whether the quantum of compensation arrived at by the claims tribunal in MCOP No.6456 of 2014, is found correct or not?
5. Whether the claimant in cross objection is entitled to receive the enhanced compensation or not?
Point No.1: [MCOP Nos.6455 & 6456 of 2014]
16. Before the claims tribunal, the learned counsel appearing for the appellant/Insurance company would contend that during the time of occurrence, the claimants in both the claim petition travelled in a bike, in the wrong direction, violating the road traffic rules. Further, without giving any signal and without seeing the car, which came from West to East, took the 'U' turn. Only because of the said reason the car owned by the 1 st respondent collided with the two wheeler and as a result of which, both the claimants sustained injuries. Therefore, for the alleged accident, the rash and negligent act of the rider of the two wheeler i.e claimant in MCOP No.6455 of 2014, is also responsible. Further, he added that the claims tribunal without appreciating the said circumstances fixed the liability only against the 1st and 2nd respondents, which is erroneous in law. 9/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019
17. Per contra, the learned counsel appearing on behalf of 1st respondent/claimants would contend that the document which was relied on by the 1st respondent/claimants itself will prove the fact that before the accident, the two wheeler in which both the claimants are travelling, came in the correct path and only in the place, which was identified for taking 'U' turn, the rider of the two wheeler turned the vehicle. Therefore, it cannot be said that the bike was driven by its rider against the road traffic rules.
18. On considering the rival submissions made by the counsel on either side, before the claims tribunal, the claimant in MCOP No.6455 of 2014 (rider) has examined himself as PW1 and the claimant in MCOP No.6456 of 2014 (pillion rider) of the two wheeler has been examined as PW2. Both of them in their proof affidavits have clearly stated that when at the time, the two wheeler in which they are travelling, was in correct path, only the offending vehicle came in a rash and negligent manner and dashed against the two wheeler.
19. On the other hand, the learned counsel appearing for the appellant/Insurance Company relied on the copy of the Rough Sketch 10/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 prepared by the Police [Ex.R1] and argued that only the vehicle travelled by the claimants crossed the road without noticing the car, which came from West to East.
20. Though the said contention raised by the Insurance Company was admitted by PW1 in his cross examination, here it is a case after completing the investigation, the police has filed a final report only against the driver of four wheeler, now alleged as an offending vehicle. Further, in order to prove the alleged negligence committed by the claimants, nobody was examined on the side of the respondents, particularly to deny the case of the claimants, in respect to the negligence.
21. If really, the case of the appellant-Insurance company is a true one, in order to prove the same, he has to examine the car driver as a respondent side witness. It is very easy for him to examine the driver, who drove the car at the time of accident. But, without examining the said driver, as a respondent side witness, contending that the negligence of both the driver of the vehicle, is the reason for the accident, cannot be accepted. 11/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019
22. In order to prove the contentions averred in the proof affidavit the claimants have exhibited the copy of the FIR registered by the police in Crime No.1155/PH3/2014 as Ex.P1. Further the copy of the charge sheet filed against the driver of the offending vehicle was exhibited as Ex.P5. As per those documents, 1st respondent's driver alone had driven the car in a rash and negligent manner and caused the accident.
23. Hence, in view of the above discussion and particularly in view of the fact that there is no controverting evidence on behalf of the driver of the offending vehicle, it stands proved on record that the claimants have sustained injuries due to rash and negligent driving of the driver of the 1st respondent, while driving the offending vehicle.
24. In fact 'Negligence' is failure to take proper care, a reasonable man would have done under the circumstances. There may be cases where an inference of negligence could be derived from the manner in which the accident takes place. For instance, where a motor vehicle goes up the pavement and strike against a pedestrian; or the tyre of a motor vehicle bursts, it loses control and collides against a pedestrian or the said vehicle 12/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 turning turtle causing injuries to the passengers, or when a motor vehicle moving on a bridge collided against a railing and falls into a Canal. In such cases, the principles of strict liability as laid down in Rylands v. Fletcher [1861-73] All E.R. 1 would be applicable. The applicability of the principle of res ipsa loquitur was explained by our Hon'ble Supreme Court in Pushpabai Purshottam Udeshi & Ors. v. Ranjit Ginning & Pressing Co. (P) Ltd. & Anr. [AIR 1977 SC 1735]. It was observed that in certain situation there is hardship for the Plaintiff to prove the manner of the accident. In such cases applying the principles of res ipsa loquitur, the onus to prove how the accident happened, would shift on the defendant. In Pushpabai Purshottam Udeshi & Ors.(supra) our Hon'ble Supreme Court observed as follows:
"6. The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "speaks for itself" or tells its 13/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence.”
25. But in this case as already observed, the witnesses examined on the side of the claimants, would prove the fact that at the time of accident, only the car, which came from West to East direction, hit against the vehicle in which the claimants were travelling. According to Ex.R1, which is the rough sketch prepared by the police, the accident happened in a main road. Further near to the accident place there was a gap in the central median for crossing the road. In fact, after the accident both the claimants have sustained injuries and thrown away from the place of accident. So it could be very easy for the respondents to prove that the accident had not happened due to the negligent act of the 1st respondent's vehicle. But without examining anybody on the side of the respondents, arguing that the accident is not due to the negligent act of the driver of the offending vehicle, is not correct.
14/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019
26. The claims tribunal has correctly pointed out the said aspect and has rightly come to the conclusion that only because of the negligent act of the car driver, the accident had occurred. Hence, Point No.1 is answered accordingly.
Point No.2: [MCOP Nos.6455 & 6456 of 2014]
27. It is the case of the claimants before the claims tribunal that the offending vehicle viz., the car bearing Regn.No.TN-21-AK-9640, was insured with the 2nd respondent at the time of accident. In respect to that there was no denial on the side of the 2nd respondent/Insurance company. Infact, the claims tribunal has held that since the offending vehicle was insured with the 2nd respondent, both the respondents are jointly and severally liable to pay the compensation as fixed. In this regard, the finding arrived at by the claims tribunal was conceded by the learned counsel appearing for the 2nd respondent-Insurance Company. Therefore, the said finding do not need any modification and Point No.2 is answered, accordingly.
15/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 Point Nos.3 & 5: [MCOP No.6455 of 2014]
28. In respect to the injuries sustained, in the proof affidavit, the claimant has stated before the claims tribunal that he sustained the following eight injuries.
“Polytrauma
1. Fracture proximal Tibia with compartment syndrom
2. Compound grade III c fracture dislocation of right knee with foot drop.
3. Vascular injury of right leg.
4. Fracture dislocation of right shoulder.
5. Post traumatic optic neuritis of right eye.
6. LCL, PCL and medial meniscal tear of right knee.
7. Head injury-
Fracture of right squamous temporal bone and lesser wing of sphenoid.
Fracture floor of anterior cranial fossa and the perpendicular plate of the ethmoid on right.
Undisplaced right frontal bone fracture.
8. Facial injury – undisplaced fracture medial wall of right orbit.”
29. Further, the claimant has stated that immediately after the accident, he was admitted in MIOT hospital as inpatient, wherein for the fracture sustained in the right leg, surgery was performed and after that 16/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 external fixture was fitted. He has further added that skin grafting was also performed for the injury sustained in right knee. According to him, he was in the hospital from 12.08.2014 to 06.09.2014 and from 25.09.2014 to 04.10.2014. Unfortunate thing is that, he has lost his vision in the right eye. In order to prove the said submission, the discharge summary issued in favour of the claimant in MCOP No.6455 of 2014 was marked as Ex.P2. Further, the medical bills related to the said claimant was marked as Ex.P3. More than that the copy of the accident register was exhibited as Ex.P9.
30. The contents of the above documents reveal the fact that the evidence given by the claimant in respect to the injuries sustained by him was only as per his case. The other aspect which is necessary to see in this case is that after filing the claim petition, the claimant was referred to medical board and thereafter the said disability certificate was received and marked as Ex.C1. As per the said certificate, the disability sustained by the claimant have been assessed at 30% for right eye Optic Atrophy and at 45% for post traumatic sequetae right knee with right foot drop.
Medical Text:
a) Optic Atrophy is an end state that arises from myriad causes 17/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 of optic nerve damage anywhere along the path from the retina to the lateral geniculate. Since the optic nerve transmits retinal information to the brain, optic atrophy is associated with vision loss.
b) Foot drop is a gait abnormality in which the dropping of the forefoot happens due to weakness, irritation or damage to the common fibular nerve including the sciatic nerve, or paralysis of the muscles in the anterior portion of the lower leg. It is usually a symptom of a greater problem, not a disease in itself. Foot drop is characterized by inability or impaired ability to raise the toes or raise the foot from the ankle.”
31. In the said circumstances, only on considering the disability assessed by the medical board, the claims tribunal came to the conclusion that due to the loss of vision, the claimant lost the future earning and thereby, he is entitled to Rs.20,89,278/-, under the above head. Before coming to the said conclusion, the tribunal has held that 10% of the earning power has been reduced to the claimant, due to the loss of vision power and after assessing the average monthly income of the claimant and by adopting the multiplier method, the claims tribunal determined the above amount as the loss of future earning due to loss of earning power.
32. In this regard, the learned counsel appearing for the 2nd 18/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 respondent-Insurance Company relied on the judgment of this Court in New India Assurance Co. Ltd., Vs. Boopathy Kannan, reported in 2013(1) TN MAC 445 (DB) and made submission that as per the evidence of PW1, after completing the treatment, he again joined in the service wherein he was already serving. So, it cannot be said that the claimant lost the earning power.
33. In the judgment relied on by the learned counsel for the 2nd respondent/Insurance Company, this Court has held as follows:
“12. For which, it is the submission of 1st respondent that since there is total permanent disability, the multiplier method adopted by the Tribunal has to be confirmed. In this situation, it would be apt to refer the judgment relied on by the Appellant Insurance Company reported in Raj Kumar .vs. Ajay Kumar and another (2010(2) TN MAC 581 (SC), which gives a fitting answer to this issue and the relevant paragraph is extracted hereunder:
"8. Where the Claimant suffers a Permanent Disability as a result of injuries, the assessment of compensation under the head of Loss of Future Earnings, would depend upon the effect and impact of such Permanent Disability on his earning capacity. The Tribunal should not mechanically apply the percentage of Permanent Disability as the percentage of economic loss or Loss of Earning Capacity. I most of the cases, the percentage of 19/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 economic loss, that is, percentage of Loss of Earning Capacity, arising from a Permanent Disability will be different from the percentage of Permanent Disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of Permanent Disability would result in a corresponding Loss of Earning Capacity, and consequently, if the evidence produced show 45% as the Permanent Disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of Loss of Earning Capacity to the extent (percentage) of Permanent Disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the Loss of Earning Capacity in terms of a percentage of the income, it has to be to quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of Loss of Earning Capacity as a result of the Permanent Disability, is approximately the same as the percentage of Permanent Disability in which case of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co.Ltd., 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co.Ltd., 2010(2) TN MAC 356 (SC) : 2010 (8) SCLE
567).
9. Therefore the Tribunal has to first decide whether there 20/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 is any Permanent Disability and if so the extent of such Permanent Disability. This means that the Tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permeant or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement; (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the Permanent Disability suffered by the person. If the Tribunal concludes that there is no Permanent Disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is Permanent Disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of Permanent Disability of the Claimant based on the medical evidence, it has to determine whether such Permanent Disability has affected or will affect his earning capacity".
13. The dictum laid down in the said judgment would show that Tribunal should not mechanically apply the multiplier method, even in the case of permanent total disablement, in the event of establishing that there is absolutely no loss of income to the victim in spite of permanent disablement suffered by him. So far as the present case is concerned, the evidence of P.W.5 would clearly show that 1st respondent was continuing his job as Assistant and earning monthly income. Hence, we are of the opinion that the multiplier method adopted by the Tribunal is totally unwarranted and the same is liable to set aside.'”
34. Applying the principles set out in the judgment relied on by the 21/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 2nd respondent/Insurance company, here is the case admittedly the claimant lost vision of the right eye. In otherwise, in his cross examination, he has specifically admitted that after completing the treatment, he joined the duty on 01.12.2014. So the said admission made by PW1, reveals the fact that due to the loss of vision, he has not lost his employment. In this occasion, on going through the disability certificate, in respect to the loss of vision, the medical board assessed the permanent disability as 30%. Further for the other injury, the disability was assessed to 45%. In this circumstances necessarily, the assessment of compensation under the head loss of future earning would depend upon the effect and impact of such permanent disability on his earning capacity. It should not be decided mechanically by applying the percentage of permanent disability.
35. In this connection, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is 22/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
36. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability. The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant 23/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
37. In this case, it is an admitted fact, the claimant has completely lost vision of the right eye. Though, the claimant again joined in his duty, due to the impact of the said injury, he could not perform his duty as he performed before the accident. Further at the time of accident, the claimant was only 34 years old. Moreover, due to the said injury, his facial structure has also been changed and it would not be seen as that of a normal man. So in all ways, due to the said injury, the claimant suffers a lot and it could not be compensated merely because of paying money. Only in the said circumstances, the tribunal considering the fact that the claimant again joined the duty, reduced the percentage of permanent disability to 10% and applying the multiplier method calculated the compensation for loss of future earning capacity.
38. In respect to the previous earnings of the claimant, it is evident 24/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 from Ex.P8-Pay Slip for the month of July, the claimant received Rs.1,16,871/- as gross salary, which includes Rs.800/- towards earned conveyance. Therefore, excluding the said sum of Rs.800/- tribunal has fixed the monthly income of the claimant as Rs.1,16,071/-. Further as per Income Tax returns for the past three years viz., 2012-13, 2013-14 and 2014-15, he has received average income of Rs.1,04,997/- per month. Only taking into consideration of the said amount the claims tribunal calculated the future loss of income and determined the compensation of Rs.20,89,278/- for loss of earning capacity (Rs.13,92,852/- x 10% x 15), which cannot be found fault with.
39. Secondly, the claims tribunal has awarded Rs.2,25,000/- under the head, 'compensation for continuing of permanent disability, if any'. As already observed, the medical board assessed 30% disability for loss of vision and 45% for partial permanent disability for post traumatic sequelae right knee with right foot drop. The claims tribunal summing up both disabilities, had awarded Rs.2,25,000/- for 75% disability, i.e Rs.3,000/- per disability.
40. Infact, after awarding compensation under the head loss of future 25/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 earning capacity, further awarding compensation under the head 'compensation for continuing of permanent disability', for loss of vision, is unnecessary. So in this regard, we are of the opinion that it is sufficient to award Rs.1,35,000/- for 45% disability i.e. Rs.3000/- per disability, for the injury sustained by claimant in the right knee.
41. It is the case of the claimant that during the time of treatment, he spent Rs.6,64,683.50p towards medical expenses. It is evident from Ex.P3, Medical Bills that said amount has been spent by the claimant from his pocket. However, on careful scrutiny of the said bills, it seems that Rs.1,30,613/- has been mentioned as Tamil Nadu New Employee Health Insurance Scheme, for which the claimant has not accounted and produced the claim form. However, the said amount has to be deducted from the total expenses and therefore, Rs.5,34,070.50p, has been allowed under the head medical expenses. Hence, the same is confirmed.
42. Further, the claims tribunal had awarded Rs.75,000/- under the head 'pain and sufferings', Rs.2,51,485/- for the 'loss of income', during the period in which he was taking treatment, Rs.50,000/- towards 'extra 26/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 nourishment', and Rs.4,000/- towards 'damages to clothes'. The said compensation awarded under the abovesaid is just and reasonable and hence confirmed.
43. Though the claimant has claimed a sum of Rs.50,000/- under the head 'transport to hospital', a meagre sum of Rs.3,000/- alone is awarded. In fact the claimant was hospitalised in two different spells viz., from 12.08.2014 to 06.09.2014 and from 25.09.2014 to 04.10.2014. Therefore, in view of the nature of injury, certainly, he would have taken some assistance and there is no compensation under the head 'attender charges'. Further he would have engaged some motorized vehicle for visiting the hospital and as already observed, the transportation charges awarded by the tribunal, is very less. Therefore, Rs.25,000/- is awarded under the head 'transportation' and Rs.25,000/- is awarded under the head, 'Attender Charges.
44. In otherwise, the award passed by the claims tribunal in MCOP No.6455 of 2014 is set aside and the compensation arrived at by the claims tribunal is modified as follows:
27/31
http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 Head Award of the Modified Award Tribunal Rs.
Rs.
Loss of future earning 20,89,278.00 20,89,278.00
Compensation for 2,25,000.00 1,35,000.00
continuing
of permanent disability
Medical Bills 5,34,070.50 5,34,070.50
Pain and Sufferings 75,000.00 75,000.00
Loss of income during 2,51,485.00 2,51,485.00
the period of treatment
Extra Nourishment 50,000.00 50,000.00
Damages to Clothes 4,000.00 4,000.00
Transport charges 3,000.00 25,000.00
Attender Charges - 25,000.00
Total 32,31,833.50 31,88,833.50
Total (Rounded off) 32,31,900/- 31,88,900/-
Point No.4: [MCOP No.6456 of 2014]
45. Before the claims tribunal, the accident register issued in favour of the claimant was marked as Ex.P14. According to the said certificate, she has sustained ligament injury with head injury. The emergency initial assessment of the claimant issued by MIOT Hospital dated 12.08.2014, was marked as Ex.P15. In that, it has been stated under the 'Present illness' as “Left ankle pain + Right knee abrasions, right parietal region swelling +.28/31
http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019
46. In order to classify the nature of injury mentioned in Exs.P14 & P15, the claimant has not produced any disability certificate. So, it should be construed that the claimant sustained only simple injury. The tribunal has also come to the same conclusion that the claimant has sustained simple injury and awarded Rs.40,000/-. The said amount awarded for the injury sustained by the claimant, cannot be said as an excessive one. Therefore, the point no.4 is answered that the claimant is entitled to Rs.40,000/- as total compensation.
47. In the result, it is ordered as follows:
(i) CMA No.1956 of 2019 filed against MCOP No.6455 of 2014 is partly allowed and compensation of Rs.31,88,900/- is awarded, with interest at the rate of 7.5% per annum from the date of filing of the claim petition till the realization.
(ii) CMA No.1853 of 2019 filed against MCOP No.6456 of 2014, is dismissed, confirming the award amount of Rs.40,000/-.
with interest at the rate of 7.5% per annum from the date of filing of the claim petition till the realization.
(iii) In both the appeals, the appellant-Insurance Company is 29/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 directed to deposit the entire award amount, now ordered by this Court, along with interest and costs, if not deposited already, within a period of four weeks from the date of receipt of a copy of this judgment. If already deposited, appellant/Insurance Company is entitled for refund of excess amount, if any.
(iv) On such deposit being made, the Tribunal is directed to transfer the said amount to the Bank Account of Claimants through RTGS/NEFT within a period of one week.
(v) Consequently, Cross Objection No.18 of 2019, filed by the claimant in MCOP No.6455 of 2014, is dismissed. There shall be no order as to costs.
[R.P.S., J.] [R.P.A., J.] 04.06.2020 Speaking/Non-speaking order Index: Yes / No Internet: Yes ars To The Motor Accidents Claims Tribunal [ Special Sub Judge No.2, Small Causes Court], Chennai.
30/31 http://www.judis.nic.in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 R.SUBBIAH, J.
AND R.PONGIAPPAN, J.
ars Pre-delivery common judgment in CMA Nos.1853 & 1956 of 2019 and Cross Obj.No.18 of 2019 04.06.2020 31/31 http://www.judis.nic.in