Madras High Court
The Managing Director vs A.T.Narendiran on 20 February, 2008
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.02.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.(NPD-B) No.148 OF 2001 The Managing Director, The Tamilnadu State Transport Corporation, (Villupuram Division III) Ltd., Kancheepuram 631 501. ... Appellant vs. 1. A.T.Narendiran 2. S.Raja 3. A.T.Dinakar 4. The Assistant Manager, M/s. National Insurance Company Ltd., Bangalore. ... Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree, dated 18.07.2000 in M.C.O.P.No.366 of 1996 on the file of the learned Motor Accidents Claims Tribunal (Subordinate Court), Kancheepuram. For Appellant : Mr.A.Arumugam For Respondents : Mr.K.S.Narasimhan (for R4) for M/s.V.K.Rajagopalan Mr.L.Robert Kennedy for R1 J U D G M E N T
Aggrieved by the judgment and decree, dated 18.07.2000 in M.C.O.P.No.366 of 1996 passed by the learned Motor Accidents Claims Tribunal (Subordinate Court), Kancheepuram, the Transport Corporation has preferred this appeal.
2. Brief facts leading to the Civil Miscellaneous Appeal are as follows:
On 04.10.1995, about 12.45 noon, the first respondent/claimant was driving a Fiat Padmini Car, bearing Registration No.CAO-567, owned by Mr.A.T.Dhinakar, the third respondent herein, from Chennai towards Banagalore, on the extreme left side of the G.W.T. road. Near Chinnaiyan Chathiram, a bus owned by the appellant-Transport Corporation, driven by the second respondent in a rash and negligent manner, unexpectedly came in the wrong direction and dashed against the Fiat Car. The first respondent/claimant suffered injuries in the head, over the right eye, nasal bone fracture, injury near the left eyebrow, cheek and lost many teeth. Immediately, he was treated in Government Hospital, Kancheepuram and in Vijaya Health Centre, Chennai for six months as inpatient. Due to the injuries, the first respondent/claimant suffered partial permanent disability and has continuous pain in the head, right eye, mouth, cheek, tongue, jaw, neck and there was bleeding in the nose and teeth. At the time of accident, the first respondent/claimant was aged about 35 years and working as a partner in an Electrical shop by name, General Electricals, earning Rs.40,000/- per month. The first respondent/claimant contended that the accident occurred only due to the negligence of the driver of the appellant Transport Corporation and claimed compensation of Rs.8,00,000/-.
3. The appellate Transport Corporation refuted the averments and contended that the driver of the Transport Corporation bus was not responsible for the accident. They further disputed the age, occupation and the nature of injuries sustained by the Respondent/claimant.
4. In support of his claim of Rs.2,56,916.03 for medical expenses, the first respondent/claimant has produced 244 Medical bills, Ex.P22 to Ex.P265. Exs.P266 to 320 are Medical Bills issued by Vijaya Hospital, Chennai. Ex.P321, Wound Certificate; Ex.P332, O.P.Chit issued by Kancheepuram Government Hospital; Ex.P323 is the Discharge Summary for the treatment between 04.10.1995 and 24.10.1996; Ex.P324 is the Discharge Summary issued by Dr.Satyanarayana Hospital for the period of treatment between 11.01.1996 and 14.01.1996; Ex.P325 is the Disability Certificate issued by Dr.Narendiran, Neurologist; Exs.P326 and 327 are the Transportation bills for Rs.1,800/-, incurred towards transportation expenses; Ex.P328 is the document to prove that the first respondent/claimant was a shareholder in Bangalore General Electricals and Ex.P329 is his Income Tax return.
5. The first respondent/claimant was examined as P.W.4. P.W.5-Dr.Thiagarajan, who examined the first respondent/claimant, has deposed that due to blood clot in the brain, the first respondent/claimant had breathing problem and tracheastomy was done to enable him to breathe. He has also stated that claimant's knee bone was fractured. There was also fracture in the upper and lower right cheek. The claimant was attacked by convulsions atleast 4 times in a month and he also suffers from continuous headache. The Doctor has further deposed that the claimant has lost his ability to speak, the movement of the tongue is also restricted. There is also disfiguration in the face and frequent bleeding in the nose. Further, there is muscle contraction over the upper right eye. The Doctor has assessed the disability at 60% for the head injury, 20% for disfiguration of face, 10% for the pain due to the injury over the right eye. On the whole, he assessed the disability at 90% and issued Ex.P333-Disability Certificate.
6. On consideration of Ex.P329-Income Tax return, the Tribunal determined the monthly income of the first respondent/claimant as Rs.8,000/- and awarded Rs.96,000/- towards loss of income for one year for the period of hospitalisation and further treatment. Relying on Exs.P326 and P327, the Tribunal has awarded Rs.1,800/- for transportation charges. It is evident from Exs.P22 to P265-Medical Bills, that the first respondent/claimant has incurred considerable amount towards medical expenses and the amount claimed under the above head has been awarded by the Tribunal. Considering the nature of injuries sustained and the treatment undergone by the first respondent/claimant, the Tribunal awarded Rs.5,000/- for extra nourishment; Rs.1,40,000/- for pain and suffering; Rs.2,00,000/- for 90% permanent disability and loss of future earning capacity; altogether awarded compensation of Rs.7,01,515.63 with interest at the rate of 12% per annum.
7. Learned Counsel for the appellant-Transport Corporation submitted that the Tribunal has erred in fixing the negligence against the second respondent, driver of the Transport Corporation, without considering the possibility of contributory negligence on the part of the claimant. He further submitted that the accident occurred in broad day light on a highway and that the driver of the Fiat car could have avoided the accident, if he was diligent.
8. Learned Counsel for the appellant Transport Corporation further submitted that the determination of 90% disability is on the higher side and in any event, the Tribunal ought to have awarded only Rs.90,000/- as disability compensation. He further submitted that the Tribunal has erred in fixing the monthly income of the first respondent/claimant as Rs.8,000/- per month, without any proof. Even assuming that the first respondent/claimant was a partner in Bangalore General Electricals, there is no proof to show that the said income was his personal income. There is no proof for the award of Rs.96,000/- towards loss of earning during the period of treatment. He contended that Exs.323 and 324-Discharge Summaries and Ex.P333-Disability Certificate were not properly considered. He further submitted that the Tribunal has erred in awarding Rs.1,40,000/- towards pain and suffering, which is exhorbitant. He contended that the conventional damages should not exceed more than Rs.50,000/-.
9. Per contra, learned Counsel for the first respondent/claimant submitted that, inasmuch as the finding of negligence has already been accepted by the Transport Corporation and compensation has been awarded by the Lok Adalat, it is not open to the appellant Transport Corporation to contend in this appeal that there is contributory negligence on the part of the first respondent/claimant. Learned Counsel for the first respondent has produced an unreported judgment of this Court in C.M.A.Nos.1553 of 1999 and 2031 of 2000, dated 26.12.2001, wherein this Court has held that, if the matter is already settled before the Lok Adalat, it amounts to waiver of the plea of negligence and the same cannot be taken in another proceedings, which arise out of the same accident. He therefore submitted that the Transport Corporation is estopped from raising the plea of negligence and the quantum of compensation awarded by the Tribunal is based on documentary evidence, such as, Income Tax Return, Hospital records and Medical bills. For the nature of injuries sustained by the respondent/claimant, period of hospitalisation and treatment, he submitted that the award is just and reasonable and prayed for dismissal of the appeal.
Heard both sides.
10. In the accident which occurred on 04.10.1995, four persons sustained severe injuries and one person died. Legal representatives of the deceased and other injured claimants filed separate claim petitions and the Tribunal has awarded compensation separately. Aggrieved by the findings of negligence and quantum of compensation, C.M.A.Nos.767 to 769 of 2001 preferred by the Transport Corporation were referred to the Lok Adalat and the parties have arrived at a settlement in the appeals. Thereafter, a decree was passed on 11.03.2004 as full quit and the appeals were disposed of. The copy of the order of Lok Adalat is produced. The common questions raised in above the appeals, which were subsequently referred to the Lok Adalat, are the finding of the Tribunal regarding negligence of the appellant Transport Corporation and the quantum of compensation.
11. When confronted with the order of Lok Adalat, learned counsel for the appellant Transport Corporation gave up his submission on the question of negligence. In United India Insurance Co. Ltd., v. Smt.Muthumma and other reported in I 2000 ACC 403, the Karnataka High Court considered a case whether the Transport Corporation having accepted the liability on account of negligent driving of his driver can take up other contentions in the claim petitions. The facts of the reported case are that the claimants filed petitions for compensation stating that the driver of the Transport Corporation was responsible for the accident. The matter was referred to the Lok Adalat and settled. The Transport Corporation made the payments and a compromise was arrived at. Considering the objections raised by another claimant, that once the KSRTC has entered into comprise before the Lok Adalat in respect of two other petitions which also arise out of the same accident, the Court held that the Transport Corporation is estopped from taking up the contention that the driver of the jeep in which the claimant was travelling, was responsible for the accident. The Court at Paragraph 6 held as follows:
"6. At the very outset, it has to be stated that in this case the law of estoppel operates. It is an admitted fact that the KSRTC in MVC Nos.596 and 586 of 1987 have settled the matter before the Lok Adalat and they have made full payment also. This goes to show that by this settlement accepting the liability on account of the negligent driving, they are now estopped from taking up any other contention. This is a fit case where the law of estoppel comes into play very effectively. The learned Member of the Tribunal ought to have taken this aspect into consideration. He has failed to consider this aspect and unnecessarily has ventured to make some futile exercise which were uncalled for looking to the facts and circumstances of the case."
12. Lok Adalat is constituted under Legal Services Authority Act, 1987 to resolve the dispute between the parties and arrive at an amicable settlement with regard to the quantum of compensation. Only after arriving at a consensus between the parties regarding the finding of negligence, the quantum of compensation is determined by the Lok Adalat. In a given case, if the transport corporation/Insurance company waives the plea of negligence, the quantum of compensation is fixed as full quit towards the claim made by the injured/legal representatives of the deceased. Once the transport corporation/Insurance company waives the plea of negligence, either express or implied from conduct, it should be construed that it was an intentional act with their knowledge and the dispute as regards negligence cannot be raised in a subsequent claim arising out of the same accident.
13. As per Section 21 of the Legal Services Authority Act, 1987, (1) every award of the Lok Adalat shall be deemed to be a decree of a civil Court or, as the case may be, as order of any other Court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-Section (1) of Section 20, the Court-fee paid in such case shall be refunded in the manner provided under the Court-fees Act, (7 of 1870), and (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any Court against the award.
14. The State Transport Corporation, having accepted the liability on account of the negligent driving of its driver and settled the claim in respect of claimants in C.M.A.Nos.767 to 769 of 2001, is estopped from taking up the plea of negligence in the present appeals. As the award passed by the Lok Adalat has the effect of a decree of a Civil Court, it is final and binding on all the parties to the dispute and it is not open to the appellant/Transport Corporation to raise it as a ground in the present appeal.
15. As regards quantum of compensation, the first respondent/claimant was examined as P.W.4 and he has deposed that due to the accident, his nose was cut. He sustained severe injuries in the head, legs, jaws and there was a fracture of nose bone, right ear was cut and he suffered injuries all over the body. He was admitted in Kancheepuram Government Hospital and thereafter shifted to Vijaya Hospital, Chennai. He was unconscious and treated as an inpatient for more than one month in the Hospitals and took treatment for two months as out-inpatient. Due to the injuries, the first respondent/claimant is unable to speak, lift his hand, walk without the assistance of attendant and lost his memory. He has been taking continuous treatment for the head injury. Tracheastomy was also done to enable him to breathe. The treatment, which he had undergone from 04.10.1995 till the date of claim is supported with valid medical records.
16. The details of the treatment as evidenced from the records produced are as follows:
On 04.10.1995, the claimant was admitted in MIOT Hospital as inpatient and took treatment till 24.11.1995 and the Discharge Summary of the MIOT Hospital was marked as Ex.P323. It is evident from the said Discharge Summary that there was a blood clot and swelling in the brain. It is further evident that there was a fracture in the nose , for which, C.T.Scan and X-Ray was taken, for which, treatment was given. As the claimant had difficulty in breathing, he was advised to undergo physiotheraphy. Again, for the injuries sustained, the claimant was admitted in Dr.Sathyanarayana Foundation of Vijaya Hospital on 11.01.1996 and a surgery was done on 12.01.1996. He was discharged from the Hospital on 14.01.1996 and the details of the surgery mentioned in the Discharge Summary, Ex.P324 are as follows:
"History of : Patient had road accident in October 1995 and was treated MIOT Vijaya Hospital.
Complaints of: Nose block, Ext deformity of the nose.
On examination: Nose : Hyperamic acar over the nose splaying of the nasal bones with collaps of the bridge of the nose and widhing of the intercanthan region.
PNS Scan : Sinuse is appear to be normal, deformity of this nasal bones. Diagnosis : Deviated Nasal Septum with deformity of the nose (Post Taumatic) Surgery : SEPTOPLASTY + Intra Nasal antonatomy was done under General Anesthesia on 12.01.1996. Findings : Enterior disclosed septum to Rt Pa teriorly Deviated Nasal Septum to that it was corrected by septoplasty, wide Bilateral Intra Nasal Antrostomy was done. Advise : Rhinoplasty after 6 months.
17. On the question of determination of income, the first respondent/claimant has deposed that he was a partner in General Electricals in Bangalore, earning Rs.40,000/- per month. However, the Tribunal taking into account the Income Tax returns, Exs.P328 and P329, fixed his monthly income as Rs.8,000/-. It is also evident from Ex.P329 that the first respondent/claimant has paid Rs.2,88,000/- as Income Tax, for the assessment years from 1987-88 to 1997-98. The Income Tax returns are on the basis of self declaration made by the first respondent/claimant under Section 68(2) of the Income Tax Act. No suggestion has been made by the Transport Corporation to the first respondent/claimant as to whether the income was his individual income or the income of the partnership firm. In the absence of any contrary evidence to show that the Income Tax returns submitted by the claimant related only to the income of the firm, I do not find any reason to find fault with the determination of monthly income of the first respondent/claimant by the Tribunal.
18. It is evident from the medical records that the first respondent/claimant had taken continuous treatment for more than a year. The accident occurred on 04.10.1995 and the medical bills produced by the first respondent/claimant supports continuous treatment till 13.11.1996. The injury in the brain and the recurrent epilepsy require continuous medication. The grievous injury would have certainly incapacitated the claimant from attending his regular work. As per Section 163-A of the Motor Vehicles Act, 1988, an injured person is entitled to claim compensation for loss of earning for a period of 52 weeks. In the instant case, though there is evidence to prove that the claimant was treated for more than one year, the Tribunal has awarded Rs.96,000/- towards loss of earning, which cannot be termed as excessive.
19. Insofar as the contention that compensation of Rs.1,40,000/- awarded towards pain and suffering is excessive, the medical records produced by the first respondent/claimant prove that he was admitted in various hospitals and had undergone three surgeries. The pain and suffering, agony experienced by the first respondent/claimant for the injuries at the time of accident, during the period of treatment, post operative surgery, recurrent epileptic attacks, have to be considered while awarding compensation.
20. In New India Assurance Co. Ltd. v. K.Kartheeswaran and another [2003 ACJ 1444], this Court considered the difficulties experienced by the injured person for a long period and awarded compensation of Rs.13,90,000/-. Another Division Bench of this Court in New India Assurance Co. Ltd v. Dhondiram Ganpat Motipowale and another reported in 2003 ACJ 1450, has awarded Rs.1,00,000/- as compensation towards pain and suffering and loss of amenities.
21. In K.Jagannatha Rai v. Gangarathna C.Bai, reported in 2004 ACJ 982, the Division bench of this Karnataka High Court dealing with a case of a person incapacitated due to personal injuries has set out the following principles, ".....the General principle which should govern the assessment of damages in personal injury cases is that the court should award to injured persons such a sum of money as will put him in the same position as he would have been in if he had not sustained the injuries. The principle is sometimes referred to as "restitutio in integrum"; but it is manifest and universally realised that no award of money can possibly compensate a man and renew a shattered human frame........
......Though, undoubtedly there are difficulties and uncertainties in assessing damages for personal injury cases, that fact should not preclude an assessment as best as can, in the circumstances be made.
...... It is well settled position in law that in granting compensation for personal injury, the injured has to be compensated: (i) pain and suffering; (ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity, or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions the two main elements are personal loss and pecuniary loss."
22. In P.Vittal Bhandary v. Sathis Naik and others reported in 2004 ACJ 1179, the injured sustained grievous injuries and lost consciousness. He was initially treated in Primary Health Centre and due to his critical condition, shifted to City Hospital. Despite best efforts and treatment, the injured loss his memory, suffered permanent disability both mental and physical and was not in a position to attend to his day to day activities without the assistance of an attendant. He was unable to carry on his business. Considering the nature of injuries, medical evidence that the injured can not lead a normal life as there was permanent impairment of the vital facilities of the appellant, occasional attacks of epilepsy, continuous medication, inconvenience, hardship, discomfort, frustration, disappointment, stress etc., the Division Bench confirmed the finding and observation of the Tribunal that the injured was a "living dead", awarded a compensation of Rs.1,00,000/- towards pain and suffering, loss of expectation of life and loss of amenities of life.
23. In the case on hand, there is substantial medical evidence to prove that the respondent/claimant has sustained grievous injuries on the head, fracture of jaw, cut in the nose and injuries all over his body. Medical evidence both oral and documentary prove that the injured was unconscious for over a month and treated for a long period. Due to the injuries in the jaw and restriction of the movement in tongue, he is unable to speak properly, there are convulsions for atleast four times a month due to epilepsy. A person who is in the mid thirties and actively engaged in business, due to the mishap has suffered permanent disablement both mental and physical and not in a position to alttend to his day to day activities without assistance of an attendant. The accident has not only affected his vital functions, but has also snatched away his life partner, who would have rendered her valuable assistance to him.
24. In National Insurance Company Ltd., v. Mahadevan and three others, reported in 2007 (5) MLJ 129, this Court held that, "Courts in India have recognised the invaluable contribution of the housewife to the house which is more than the pecuniary value. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. An housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean etc., but she can never be a substitute for a wife who would render selfless service to her husband and children."
25. The possibility of a speedy and complete recovery has to be balanced against the possibility of serious complications in future. The sum awarded should be in accordance with the general rule and put the injured party, as far as money can put him in the same position as if he hd not been wronged. It is settled legal position that three heads under which damages could be awarded (1) Personal suffering and loss of enjoyment of life, (ii) actual pecuniary loss resulting to and expenses reasonably incurred by the injured and (iii) Probable future loss of income by reason of incapacity or diminished capacity for work.
26. As Lord Halsbury observed "How is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which represent such a thing, as the pain and suffering which a person has undergone by reason of an accident (In the Mediana, 1900 AC 113, In Phillips v. London and South Western Railway Co., 1879-4 QBD 406, Field, J. in charging the jury observed as follows in regard to this head of damage:
"Perfect compensation is hardly possible, and would be unjust. You cannot put the plaintiff back into his original position, but you must bring your reasonable common sense to bear and you must always recollect that this is the only occasion on which compensation can be given. Dr.Phillips can never sue again for it. You have, therefore, now to get him compensation, once and for all. He has done no wrong; he has suffered a wrong at the hands of the defendants, and you must take care to give him full fair compensation for that which he has suffered..........."
27. A person who has lost his vital facilities, and his wife at the young age, could never be expected to return to his original frame both physically and mentally, there would be unhappiness, agony, frustration in life and there could be even loss of expectation of life. Injury in the brain and continuous medication may even cause abnormal behaviour in certain cases. Considering all these aspects, the award of Rs.1,40,000/-, towards pain and suffering, loss of amenities, cannot be said to be excessive. Applying the principles, the compensation awarded to the first respondent/claimant towards pain and suffering cannot be termed as excessive.
28. As regards extra nourishment, the Tribunal has awarded Rs.5,000/-. A person, who had undergone surgery in various hospitals would have incurred considerable expenses for nutrition. Considering the nature of injuries, prolonged treatment for more than a year, the compensation awarded for nutritious food is not excessive.
29. It is evident from Ex.P326 and Ex.P327 that the first respondent/claimant has incurred Rs.1,800/- as transportation charges and the same has been awarded. A person who had sustained head injury would have certainly sought the assistance of another person and engaged atleast an auto-rickshaw to go to the hospital. Therefore, the compensation awarded towards transportation charges is not adequate.
30. The compensation awarded to the first respondent/claimant, who was earning Rs.8,000/- per month at the time of accident, supported by Income Tax Returns and totally incapacitated due to the injuries, cannot be termed as excessive. The Tribunal has not awarded any compensation towards inconvenience, hardship and discomfort and frustration in life. There could be a loss of expectation to life due to the injury in the brain and recurrent epilepsy. The Tribunal ought to have considered this aspect also. Considering the nature of injuries, period of hospitalisation, treatment and the expenses incurred by the claimant towards Medication, Transportation, Noursihment, the award is just and reasonable. Therefore, the award of the Tribunal cannot be termed as bonanza. Having regard to the fact that the accident had occured in the year 1995, this Court is not included to alter the rate of interest and the same is confirmed.
31. In the result, the Civil Miscellaneous Appeal is dismissed. No costs.
.02.2007 skm S.MANIKUMAR,J.
skm To
1. The Motor Accidents Claims Tribunal, (Subordinate Court), Kancheepuram.
2. The Section Officer, V.R. Section, High Court of Madras, Chennai.
PRE-DELIVERY JUDGMENT IN C.M.A.(NPD-B) No.148 OF 2001 20.02.2008