Madras High Court
The New India Assurance Co.Ltd vs Boopathy Kannan on 12 October, 2012
Author: R.Subbiah
Bench: R.Banumathi, R.Subbiah
In the High Court of Judicature at Madras
Dated 12.10.2012
Coram
The Honourable Mrs.Justice R.BANUMATHI
and
The Honourable Mr.Justice R.SUBBIAH
Civil Miscellaneous Appeal No.2784 of 2008
The New India Assurance Co.Ltd.,
Branch Office, Door No.66-C,
North Car Street,
Tiruchengode. .. Appellant
..vs..
1. Boopathy Kannan
2. P.Murugesan
3. M/s.Ravi Earth Movers,
rep.by its owner P.Elango,
S/o.T.V.Ponnusamy,
Door No.89, S.V.Patel Road,
Pondicherry-605 001. .. Respondents
Civil Miscellaneous Appeal filed under section 173 of Motor Vehicles Act, 1988 filed against the award and decree dated 08.02.2008 made in MCOP.No.206 of 2005 on the file of Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Erode.
For Appellant : Mr.M.Krishnamoorthy
For Respondents : Mr.P.P.Shanmugasundaram for R1
JUDGMENT
(Judgment of the Court was delivered by R.SUBBIAH, J.,) Challenging the Award dated 08.02.2008 passed by the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Erode, in M.C.O.P.No.206 of 2005, New India Assurance Company has filed the present Appeal.
2. First respondent is the claimant. Second respondent driver of the vehicle, third respondent owner of the vehicle in question and Appellant - Insurance Company are Respondents 1 to 3 before the Tribunal.
3. Brief facts are as follows:
According to 1st respondent/claimant, on 09.11.2004, at about 6.30 PM, he was riding his Hero Honda Motor cycle bearing registration No.TN-34-A-4987 along with his wife Kavitha as pillion rider on the left extreme side of Tiruchengode to Pallipalayam road for purchasing grocery for his family and while he was nearing Aalampalayam Ration Shop, one Escorts JCB Excavator bearing registration No.PY-01-J-7522, driven by 2nd respondent and owned by 3rd respondent, was proceeding at hectic speed in a rash and negligent manner from the opposite direction and had swerved and hit the motor cycle, in which accident, claimant and his wife were thrown off from the motor cycle. As a result, claimant had sustained grievous injuries over his right knee and right hand and his wife had sustained minor injuries. First respondent was immediately taken to L.K.M.Hospital, Erode and thereafter, he was referred to Ganga Hospital, Coimbatore, where his right leg above knee was amputated and he was given treatment as in-patient for about ten days. The accident took place because of the rash and negligent driving of the driver of excavator. Hence, he filed a claim petition seeking compensation of Rs.20,00,000/-.
4. Respondents 1 and 2 remained ex parte before the Tribunal. Appellant Insurance Company has taken a specific defence in the Counter Statement that at the time of accident, driver of the JCB Excavator did not have a valid driving licence and as such, there was a violation to the conditions of the insurance policy. They denied that accident was caused due to rash and negligent driving on the part of the driver of the insured vehicle. Therefore, Insurance Company is not liable to pay compensation amount.
5. Before the Tribunal, on the side of claimant, he examined himself as P.W.1 besides examining P.Ws.2 to 5 and marked Exs.A-1 to A-22 and on the side of Insurance Company, R.Ws.1 and 2 were examined and Exs.R-1 to R-5 were marked.
6. Upon consideration of oral and documentary evidence, Tribunal held that the accident was due to negligent driving of the driver of insured vehicle and thus, passed an award for total compensation Rs.18,33,729/- under different heads as follows:
Permanent Disability .. Rs. 13,63,229.00 Medical expenses 2,68,500.00 Loss of income 47,000.00 Pain and suffering 1,00,000.00 Extra Nourishment 50,000.00 Transport Expenses 5,000.00
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Total 18,33,729.00 ---------------
Aggrieved by the impugned award, Insurance Company has filed the present appeal.
7. Learned counsel appearing on behalf of Insurance Company fairly submitted that he has confined his arguments only with regard to quantum of compensation awarded by the Tribunal. Hence, the finding rendered by the Tribunal with regard to negligence aspect is confirmed.
8. According to the Insurance Company, before Tribunal, it is the case of claimant that he was working as Rigger (Khalasi) in M/s.S.P.B.Limited, Erode and was earning Rs.9,581/- as monthly income. In order to prove the income earned, Manager of the Employer was examined as P.W.5. In order to prove the disability, claimant had examined two doctors as P.Ws.2 and 3. Tribunal, taking into consideration the evidence of P.Ws.2, 3 and 5 and also the disability certificate issued by P.W.2, marked as Ex.P-19, fixed the monthly salary as Rs.8,353.12 and by applying multiplier of 17, arrived at Rs.13,63,299/- as loss of income in proportionate to 80% disability. 9. By inviting the attention of this Court to the evidence of P.W.5, the Manager of Paper Mills, learned counsel for Insurance Company submitted that P.W.5 had categorically stated in his evidence that even after the accident, claimant was working as Assistant in the said Mills and hence, it could be safely presumed that there is no loss of income to 1st respondent. Under such situation, awarding amount by applying multiplier method is not legally sustainable. In this regard, he relied on the decision reported in Raj Kumar .vs. Ajay Kumar and another (2010(2) TN MAC 581 (SC).
10. On the contrary, it is the submission of 1st respondent that P.W.5 had categorically stated in his evidence that since 1st respondent was found unfit to continue his job, on humanitarian grounds, he was appointed as Assistant. Under such circumstances, the amount awarded by the Tribunal by applying multiplier method cannot be found fault with when there is a total permanent disability. In support of this contention, he relied on the decisions reported in M/s.ICICI Lombard General Insurance Co.Ltd., .vs. U.Rengarajulu and others (2012-1-L.W.952) and Kalvi @ Kalai Arasu .vs. Murugesan and others (2012(1) C.L.T.661).
11. Keeping in mind the said submissions, we have gone through the materials available on record. Main grievance of Insurance Company is that when there is no loss of income, question of applying multiplier method does not arise in this case. We see some force in the said contention. P.W.5, the Manager of Seshasayee Paper Mills Limited, in his evidence has stated that VERNACULAR (TAMIL) PORTION DELETED So, it cannot be said that 1st respondent has no employment after the accident.
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 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 is45% 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 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. Accordingly, Rs.13,63,299/- awarded by the Tribunal towards loss of income is hereby set aside. Instead, considering the nature of injury suffered by the victim, a consolidated sum of Rs.2,00,000/- is awarded under the head 'Permanent Disability'.
14. Further, it is not in dispute that on account of disability suffered by 1st respondent, namely, amputation of right leg above knee, he has to carry on rest of his life with much hardship. He cannot lead his normal life as he was leading before the accident. Under such circumstances, 1st respondent is entitled compensation under the head 'loss of amenities'. Considering the facts and circumstances of the case, a consolidated sum of Rs.3,00,000/- is awarded under "loss of amenities".
15. After going through the Award, we find, Tribunal has not awarded any amount towards future medical expenses. Considering the fact that 1st respondent would incur medical expenses to replace his artificial leg in future and also taking into consideration the evidence of P.W.1 in his proof affidavit that he incurred expense more than Rs.4,00,000/- for artificial leg, a sum of Rs.2,00,000/- is hereby awarded for replacement of artificial leg in future. Amounts awarded by the Tribunal under other heads, in our view, are proper and hence, they are confirmed. Consequently, Award passed by the Tribunal for Rs.18,33,729/- is hereby reduced to Rs.11,70,500/-, as follows:
Rs.
Permanent Disability 2,00,000.00
Loss of amenities 3,00,000.00
Future medical expenses 2,00,000.00
Medical expenses 2,68,500.00
Loss of income 47,000.00
Pain and suffering 1,00,000.00
Extra Nourishment 50,000.00
Transport charges 5,000.00
---------------
Total 11,70,500.00
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We confirm the finding of the Tribunal that Insurance Company should pay the compensation amount and recover the same from the owner of the vehicle since there is a violation to the conditions of the policy.
16. In fine, Appeal is party allowed. Appellant Insurance Company is directed to pay the modified compensation amount of Rs.11,70,500/- with interest at 7.5% per annum on Rs.9,70,500/- from the date of claim petition before the Tribunal. Insofar as amount of Rs.2,00,000/- awarded towards Future Medical Expenses, the same shall not carry interest. Since it is stated that Appellant Insurance Company has deposited the entire award amount before the Tribunal, Insurance Company is permitted to withdraw the amount more than that of the modified amount of Rs.11,70,500/- with 7.5% interest. 1st respondent is also permitted to withdraw the modified amount, after deducting the amount that had already been withdrawn by him. There is no order as to costs.
gl Copy to The Chief Judicial Magistrate, (Motor Accidents Claims Tribunal), Erode ======================================================================================= (Order of the Court was made by R.BANUMATHI, J.,) The matter was listed today under the caption "for being mentioned".
2. Learned counsel appearing for the appellant Insurance Company submits that the Insurance Company has already deposited more than the compensation amount awarded to the claimants and seeks to clarify the sentences in paragraph No.16 of the Judgment dated 12.10.2012 in C.M.A.No.2784 of 2008. We have also heard the learned counsel appearing for the first respondent/claimant.
3. The sentences in paragraph No.16 of the Judgment dated 12.10.2012 reads as under:
"16. ..... Since it is stated that Appellant Insurance Company has deposited the entire award amount before the Tribunal, Insurance Company is permitted to withdraw the amount more than that of the modified amount of Rs.11,70,500/- with 7.5% interest. 1st respondent is also permitted to withdraw the modified amount, after deducting the amount that had already been withdrawn by him".
4. Considering the submission made by the learned counsel appearing for the appellant Insurance Company, the wordings in the above said sentences in Paragraph No.16 of the Judgment dated 12.10.2012 in C.M.A.N.2784 of 2008 are clarified and are ordered to be modified as under:-
"Since it is stated that Appellant Insurance Company has deposited the entire award amount before the Tribunal, 1st respondent is also permitted to withdraw the modified amount after deducting the amount that had already been withdrawn by him. Appellant-Insurance Company is permitted to withdraw the amount more than that of the modified amount of Rs.11,70,500/- plus interest at the rate of 7.5% per annum on Rs.9,70,500/-. 1st respondent is also permitted to withdraw the modified amount after deducting the amount that had already been withdrawn by him".
02.11.2012 bbr usk