Madras High Court
R.Senthil Kumar vs P.Palaniswamy on 4 July, 2007
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04/07/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.(MD).No.1686 of 1998 R.Senthil Kumar ... Appellant Vs. 1.P.Palaniswamy 2.K.Thangavel 3.The Branch Manager, Oriental Insurance Company, 49, Railway Feeder Road, Palani, Dindigul. ... Respondents Civil Miscellaneous Appeal filed under Section 173 of M.V.Act against the Judgment and Decree of the Motor Accident Claims Tribunal, (Sub-Judge), Dindigul dated 22.12.1997 made in M.A.C.T.O.P.No.637 of 1993. !For Appellant ... Mr.M.Ajmal Khan ^For 3rd Respondent ... Mr.S.Krishnan For Mr.R.Gunasekaran :JUDGMENT
This civil miscellaneous appeal is directed against the award of the Motor Accident Claims Tribunal (Sub Judge), Dindigul dated 22.12.1997 passed in M.A.C.T.O.P.No.637 of 1993 in so far as the disallowed portion of the claim is concerned.
2. The claimant before the Tribunal is the appellant herein. He met with an accident on 16.04.1993, as he was hit by the offending vehicle, namely Bajaj Tempo Van bearing registration No.TN-57-4804. Contending that the driver of the said Tempo van drove it in a rash and negligent manner and dashed against the appellant/claimant from behind; that after causing the accident, the driver of the offending vehicle left the place of occurrence without even stopping the vehicle; that the injuries sustained by the appellant/claimant could not be fully cured and that the same had resulted in permanent disability despite proper treatment, the appellant/claimant had preferred the claim petition in M.A.C.T.O.P.No.637/1993 against the respondents 1 to 3 in their capacities as driver, owner and insurer respectively of the above said offending vehicle, claiming a sum of Rs.5,00,000/- as compensation. In order to substantiate his claim, the appellant/claimant, besides examining himself as P.W.1, also examined one Dr.Inbasekaran as P.W.2 and relied on 54 documents marked as Exs.A.1 to A.54.
3. M.C.O.P. was initially instituted against all the three respondents. But while the same was pending before the Tribunal, the appellant/claimant filed a memo on 07.09.1995 exonerating the driver of the offending vehicle/the first respondent and the same was recorded by the Tribunal. The second respondent, the owner of the offending vehicle did not file any counter-statement and remained exparte. The insurer of the offending vehicle, the third respondent alone contested M.C.O.P. by filing a counter-statement denying the petition averments regarding the negligence aspect. It was contended therein that the accident took place solely due to the negligence on the part of the appellant/claimant and that at least there was contributory negligence on his part. The third respondent/insurer had also denied the other petition allegations and the reasonableness of the amount claimed as compensation. It had also contended before the Tribunal that the driver of the offending vehicle did not possess a valid driving licence to drive the same and that the validity of the documents relating to the offending vehicle like RC permit etc., and absence of violation of conditions of permit and conditions of policy should be proved by the appellant/claimant and the respondents 1 and 2/the driver and owner of the offending vehicle. With the above said averments found in the counter-statement, the third respondent had prayed for the dismissal of M.C.O.P. with cost. Three witnesses were examined as R.Ws.1 to 3 and five documents were marked as Exs.B.1 to B.5 on the side of the respondents.
4. At the conclusion of trial, on an appreciation of evidence brought before it, the Tribunal found the driver of the offending vehicle to be at fault and it was due to his rash and negligent driving, the accident took place. The Tribunal accepted the contention of the appellant/claimant that the injuries sustained by him resulted in permanent disability to the tune of 50%, but awarded only a sum of Rs.25,500/- as compensation directing the respondents 2 and 3 to pay the said amount along with an interest at the rate of 12% per annum with proportionate cost to the appellant/claimant.
5. Aggrieved by and challenging the award of the Tribunal in so far as the disallowed portion of the claim is concerned, the appellant/claimant has brought forth this civil miscellaneous appeal on various grounds set out in the memorandum of appeal.
6. This Court heard the arguments advanced on either side and paid its anxious considerations to the same.
7. For the personal injuries sustained by the appellant/claimant allegedly resulting in permanent disability, the appellant/claimant had made a claim of Rs.5,00,000/- as compensation against the respondents. As against the claim of Rs.5,00,000/-, the Tribunal awarded only a sum of Rs.25,500/-. Hence this appeal for enhancement. As against the finding of the Tribunal regarding the question of negligence and fixation of liability on the respondents 2 and 3, no appeal or cross-objections has been preferred either by the second respondent or third respondent. Hence there is no need to traverse the pleading and evidence regarding the said aspect. The finding of the Tribunal that the driver of the Tempo Van was at fault and hence the second and third respondents were liable to compensate the claimant is hereby confirmed.
8. Regarding the quantum of compensation, the learned counsel for the appellant would contend that the Tribunal, without adhering to the established rules of assessment of compensation in injury cases resulting in permanent disability, has arbitrarily fixed a paltry sum of Rs.25,500/- as compensation and that hence the compensation awarded by the Tribunal should be enhanced.
9. Per contra, the learned counsel for the third respondent would contend that the amount awarded by the Tribunal is quite reasonable and it requires no interference by this Court. After going through the records including the judgment of the Tribunal, this Court finds substance in the contention raised by the learned counsel for the appellant/claimant.
10. The relevant records showing the injury sustained by the appellant/claimant, the treatment given to him and the expenses incurred for the treatment are Exs.A-4,A-7 to A-16 and A-51 to A.53. The disability certificate issued by P.W.2 is Ex.A-54. From the above said documents, it is quite clear that the appellant/claimant sustained a small abrasion and a contusion on the left fore-arm, besides a head injury causing fissure fracture of left temporal bone and a cerebral blood clot in the lobe of the right temporal region. For the said injuries, he was given first aid treatment at Government Hospital, Dindigul and then he was treated as an inpatient in the Government Rajaji Hospital, Madurai from 16.04.1993 to 03.05.1993. The same is evident from Exs.A-4 and A-7 to A-9. Subsequently, he had consultation with the private practitioners in Neurology in Chennai. He was given clinical treatment as out-patient without there being any necessity for surgical intervention. It is evident from the relevant documents, namely Exs.A-8 and A-11, that a mild mid lines shift initially found in the brain had disappeared and the brain function was normal as on 06.05.1993. On the other hand, P.W.2 seems to have simply conducted a clinical test without getting CT scan and assessed the disability caused by the supposed cerebral damage at 25%. He has also assessed the disability at 15% for the mild deafness caused in the right ear. The disability caused by the weakness found in the left upper limb (loss of hand grip) has been assessed by him at 10%. Thus, the total disability has been fixed at 50% by P.W.2. Upon a careful consideration of the evidence, both oral and documentary, this Court takes a view that the assessment of disability made by P.W.2 is on a higher scale. Having regard to the various materials available on record, this Court is of the considered view that the permanent disability suffered by the appellant/claimant can be reasonably fixed at 25%.
11. Even though the claimant might have contended as if he had lost his concentration in studies as a result of which he failed in many subjects, he has failed to produce the latest mark sheets. The appellant has shown satisfaction with the production of an attested xerox copy of the mark sheet (Ex.A.21) issued for the examination conducted in April 1994 alone. He was examined as P.W.1 on 08.04.1996. By that time, he might have completed more than seven semesters. The very fact that he did not produce the latest mark sheet will give an inference that the production of the latest mark sheet will prove that he had passed all the subjects without any arrears, by the time he deposed as P.W.1. Therefore, this Court agrees with the finding of the Tribunal that the injuries did not result in permanent loss of concentration in his studies and loss of future earning capacity.
12. The petitioner has produced so many documents to show that he was an athlete as high school student and higher secondary student. There is nothing to show that he was admitted in B.E. Course under sports quota or that after joining B.E. Course, he participated in any of the athletic events representing the college. There is no evidence to show that the petitioner ever attempted to take part in any sports event after he recovered from the injuries. Therefore no special damages can be awarded for the same. On the other hand, there was a fissure fracture of the right temporal bone resulting in a blood clot in the brain which ultimately disappeared after treatment. Hence the evidence of P.W.2 that there was some mild loss of memory and the appellant/claimant could repeat four digits forward and three digits backward as against the normal memory power to repeat five digits forward and four digits backward, has to be accepted. In addition to that, there is a mild loss of hearing capacity on the right ear. The left hand also lost its hand grip to some extent. But this functional disabilities, according to the considered view of this Court, cannot come in the way of pursuing his studies or his earning capacity. Therefore, this Court comes to the conclusion that it is a fit case in which adopting the method of awarding a lump sum amount for permanent disability shall be appropriate.
13. As indicated supra, the permanent disability suffered by the appellant/claimant is fixed at 25%. Exs.A-19 and A-20 are the attested xerox copies of the Xth standard mark sheet and XIIth standard mark sheet. His date of birth as found in those documents is 28.06.1974. Therefore he had completed only 18 years as on the date of accident. When the method of awarding lump sum amount for permanent disability is adopted, the age of the claimant shall play an important role. Awarding damages at a fixed rate disregarding the age of the claimant, according to the opinion of this Court, will definitely result in injustice, as the same would amount to treating unequals equally. The said rate may range from Rs.1,000/- to Rs.2,000/- per 1% disability depending upon the age of the claimant. Maximum rate shall be applied in case of youngsters and minimum rate shall be applied in case of aged persons. Applying such a test, this Court holds that applying the maximum rate, viz., Rs.2,000/- per 1% disability in the case of the appellant/claimant shall be absolutely justifiable. Thus, the lump sum amount to be awarded towards compensation for permanent disability to the appellant/claimant in this case shall have to be fixed at Rs.2,000 x 25 = Rs.50,000/-. If such a method of calculation is adopted, the award of compensation for permanent disability comes to Rs.50,000/-.
14. In Ex.A-15, bills have been included to the tune of Rs.11,080/- showing medical expenses. The same can be rounded to Rs.11,000/-. Therefore, awarding a sum of Rs.11,000/- towards medical expenses shall be quite reasonable. Having regard to the fact that the petitioner initially was given first aid treatment at Government Hospital, Dindigul, then as an inpatient for two weeks in Government Rajaji Hospital, Madurai and thereafter as out patient by a specialist medical practitioner at Chennai and the further fact that the appellant/claimant has also produced Ex.A-16 - train tickets to prove the trips undertaken to Chennai, this Court is of the considered view that a sum of Rs.5,000/- can be awarded towards transport expenses and for extra-nourishment. Considering the nature of injuries, the period of treatment and the nature of extent and permanent disability, for past and future pain and suffering and for the mental stress caused to him, awarding a sum of Rs.15,000/- shall be quite reasonable. A further sum of Rs.3,000/- can be awarded for expenses incurred on the persons who attended at him during the period of treatment. Thus, the total amount of compensation to which the appellant/claimant is entitled can be fixed at Rs.84,000/-. At the cost of the repetition, the split up particulars of the total damages arrived at supra is furnished here under:
Compensation for permanent disability = Rs.50,000/-
Compensation for medical
expenses = Rs.11,000/-
Compensation for transport
expenses and extra-
nourishment = Rs. 5,000/-
Compensation for past and
future pain and suffering
and the mental stress
caused to the claimant = Rs.15,000/-
Compensation for the expenses
incurred on the persons who
attended the claimant during
the period of treatment = Rs. 3,000/-
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Total = Rs.84,000/-
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15. For all the reasons stated above, this Court comes to the conclusion that the appellant has made out a case for enhancement of compensation and that the compensation awarded by the Tribunal deserves an upward revision as indicated above. Taking into account the bank rates of interest for advances and loans prevailing at the time of accident and at present, awarding interest for the above said amount at the rate of 9% instead of 12% per annum allowed by the Tribunal shall be quite reasonable.
16. In the result, this appeal is allowed in part and the award of the Tribunal is enhanced to Rs.84,000/- from Rs.25,500/-. But the rate of interest is reduced from 12% to 9% per annum. Subject to the above said modification, in all other respects, the award of the Tribunal shall stand confirmed. The respondents shall pay proportionate cost to the appellant in both the Courts.
SML To The Motor Accident Claims Tribunal, (Sub-Judge), Dindigul.