Madras High Court
The Managing Director vs A.Rajasekar on 3 July, 2009
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.07.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.2727 of 2002 The Managing Director Tamil Nadu State Transport Corporation (Madurai Division IV) Ltd., Dindigul ... Appellant Vs. A.Rajasekar ... Respondent This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 as against the judgment and decree dated 12.10.2001 of the Motor Accidents Claims Tribunal (Sub Court), Namakkal made in M.C.O.P.No.494/98. For Appellants : Ms.S.Geetha For Respondent : Mr.T.M.Ramalingam J U D G M E N T
This Civil Miscellaneous Appeal has been preferred by the Tamil Nadu State Transport Corporation (Madurai Division IV) Ltd, Dindigul against the judgment and decree of the Motor Accidents Claims Tribunal (Sub Court), Namakkal dated 12.10.2001 made in M.C.O.P.No.494/98 on its file, awarding a sum of Rs.3,95,988/- as compensation for the injuries sustained by the respondent herein, which amount was directed to be paid along with an interest at the rate of 9% per annum from the date of petition till realisation and with proportionate cost.
2. The averments made by the respondent herein/petitioner in the MCOP, in brief, are as follows:-
The respondent herein/petitioner, aged about 42 years as on the date of accident, along with his friends Selvaraj and Kanagasundaram, went to Dindigul on 11.08.1998 for supplying medicines and also to get orders for further supply in connection with his business. On 13.08.1998 they were returning to Velur, Karur district travelling in the bus bearing Regn.No.TN-57 N-0941 belonging to the appellant Transport corporation. The said bus stopped at Karur and the passengers were allowed to take tiffin. As there was some dispute between the driver of the bus belonging to the appellant transport corporation and one of the passengers regarding the loss of side glass pane, there occasioned a delay in the said bus starting from Karur. At that juncture, the petitioner and others intervened and brought about a compromise between the driver and the said passenger. However, the driver of the bus started the bus in a rash and arrogant manner and was driving the same in a rash and negligent manner. When the bus was nearing the level crossing of the railway line in NH-7 in between Karur and Velur, the petitioner and others saw the train fast approaching towards the level crossing and shouted hysterically to stop the bus. But the driver of the bus belonging to the appellant transport corporation, without heeding any attention to the shouts of the passengers, continued to drive the same in a rash and negligent manner and tried to cross the level crossing without noticing the red signal at the level crossing and the level crossing barrier that was coming down. On seeing the same the petitioner ran towards the back portion of the bus to escape, but meanwhile the express train No.6711 bound for Madurai hit the bus, as a result of which he was thrown inside the bus and was dragged along with the bus. Initially the petitioner was taken to Karur government hospital where from he was sent to Namakkal Thangam hospital on 14.08.1998 at about 10.00 a.m. Then he was taken to Salem for taking scanning and X-Rays. Again he was brought back to Namakkal and he was treated as an in-patient for about one month. Despite treatment, the injuries resulted in permanent disability affecting his career as Medical Representative. Therefore, the appellant transport corporation is liable to pay compensation to the respondent herein/petitioner. Though the respondent herein/petitioner would assess the damages at a higher amount, he restricts his claim to Rs.4,00,000/-, which amount, should be directed to be paid along with future interest and costs.
3. The said claim was resisted by the appellant transport corporation by filing a counter statement, the contents of which, in brief, are as follows:-
a) The petition for compensation is not maintainable either in law or on facts. All the petition allegations should be proved by adducing proper evidence. The petition allegations regarding the manner in which the accident took place and the alleged injuries sustained by the respondent herein/petitioner are not true. The petitioner should also prove that the injuries sustained by him in the accident led to permanent disability. The above said accident did not occur due to the rashness or the negligence on the part of the driver of the bus belonging to the appellant transport corporation. On the other hand, the railway administration was totally responsible for the accident. When the bus belonging to the appellant transport corporation, on its way from Madurai to Salem, was approaching the place of occurrence, railway gate No.36A had been kept open without causing any hindrance to the flow of road traffic through the said level crossing. In addition to that, there was no signal indicating that the train was approaching towards the said level crossing. As a number of vehicles proceeding in front of the appellant's bus were crossing the said level crossing, the driver of the bus also was in the process of crossing the railway line at the said level crossing. But, unfortunately express train No.6711 running between Chennai and Madurai came there at a high speed and dashed against the bus belonging to the appellant transport corporation. The railway administration had failed to take pre-cautionary measures by locking the railway gate to prevent the flow of road traffic when the train was approaching the said level crossing. There was also no signal functioning at the time of accident. The said lapse on the part of the railway administration alone was the cause of the accident.
b) Be that as it may, the respondent/petitioner who has chosen to file a petition claiming compensation should have impleaded the railway administration also as a necessary party to the proceedings. Since the railway administration has not been made a party, the claim petition is liable to be dismissed on the ground of non-joinder of necessary party. Since the lapse on the part of the railway administration was the cause of the accident, if at all the respondent/petitioner is entitled to get any compensation, he can claim the same only against the railway administration and not against the appellant transport corporation/respondent in the MCOP. The petition allegations regarding the age and income of the respondent herein/petitioner in the MCOP, the nature of injuries sustained by him, expenditure incurred for treatment and the nature and extent of disability suffered by him should also be proved by adducing proper evidence.
4. Based on the above said pleadings, the appellant transport corporation (respondent) had pleaded for the dismissal of the MCOP with cost.
5. The learned Subordinate Judge as the Presiding Officer of the Motor Accident Claims Tribunal, Namakkal framed necessary points for determination and conducted an enquiry, in which three witnesses were examined as P.W.1 to P.W.3 and 20 documents were marked as Ex.A1 to Ex.A20 on the side of the respondent herein/claimant. No witness was examined and no document was marked on the side of the appellant herein/respondent.
6. The Tribunal considered the evidence brought before it in the light of the arguments advanced on either side and upon such consideration, came to the conclusion that the accident occurred due to the rashness and negligence on the part of the driver of the bus bearing Regn.No.TN-57 N-0941 belonging to the appellant transport corporation/respondent in the MCOP and that hence the appellant transport corporation was liable to pay compensation to the respondent herein/claimant. The tribunal also held that the injuries sustained by the petitioner in the above said accident led to permanent disability and awarded a sum of Rs.3,95,988/- as compensation to the respondent herein/claimant in the MCOP, directing the appellant transport corporation to pay the said amount together with an interest at the rate of 9% per annum from the date of claim till realisation and with proportionate cost.
7. Aggrieved by and challenging the said award of the Motor Accident Claims Tribunal (Sub Court), Namakkal dated 20.10.2001, the appellant transport corporation/respondent in the MCOP has brought-forth this civil miscellaneous appeal on various grounds set out in the memorandum of appeal. Along with the appeal, the appellant had filed an application C.M.P.No.18540 of 2002 for reception of additional documentary evidence. Similarly, the respondent/claimant also filed a petition C.M.P.No.714 of 2008 for reception of additional documentary evidence. Both the applications were heard along with the appeal and upon such hearing, this court reserved orders and thereafter passed an order on 14.10.2008 allowing both the miscellaneous petitions. There upon by consent of the parties, one more document on the side of the respondent/claimant was marked as Ex.A21 and one document was marked on the side of the appellant/respondent as Ex.B1. Consequently, further arguments advanced on either side in the appeal were heard and the materials available on record wee also perused.
8. The points that arise for consideration in the CMA is:
" 1) whether the claim made against the appellant transport corporation without impleading the railway administration is not maintainable?
2) Whether the appellant transport corporation is liable to pay compensation?
3) Whether the amount awarded by the Tribunal as compensation is excessive requiring reduction in the appeal? "
9. The sole respondent in the MCOP before the Motor Accident Claims Tribunal (Sub Court), Namakkal is the appellant herein. The claim was made by the respondent herein/injured person based on his plea that the accident occurred solely due to the rash and negligent driving of the bus belonging to the appellant transport corporation by its driver and that hence the appellant transport corporation/respondent was liable to pay compensation to the respondent herein/claimant. The appellant transport corporation, as the sole respondent in the MCOP had taken a stand that the claim was not maintainable since the railway administration was not made a party in the MCOP. When such a plea of non-joinder of necessary party is raised by the opposite party, it is quite natural for the Tribunal to frame an issue in this regard and decide that issue also. In the case on hand, though such a plea had been raised by the appellant transport corporation as the foremost plea of defence, the learned Motor Accident Claims Tribunal (Sub Court), Namakkal failed to frame an issue in this regard and decide the same. Pointing out the same, the learned counsel for the appellant argued that the judgment and award of the Tribunal suffered a vital defect and infirmity in so far as it had failed to frame a necessary point for determination and decide the said point based on the pleadings raised and evidence brought before it.
10. On the other hand, the learned counsel for the respondent would contend that the mere omission to frame and decide such a point for consideration, at best, may amount to an irregularity which can be rectified in the appeal by the appellate court and that the issue being a legal issue can be framed and decided in the appeal itself based on the available materials.
11. It is an admitted fact that both parties went for trial knowing fully well the plea of defence raised by the appellant herein/respondent in the MCOP including the one questioning the maintainability on the ground of non-joinder of necessary parties. When the parties have taken part in the trial based on such rival plea, the mere omission to frame an issue will not automatically lead to the conclusion that the order of the court below should be reversed or set aside. On the other hand, in such cases, it is not only permissible but also just and necessary that such an issue is framed by the appellate court in the appeal and decided on the basis of available evidence. During the hearing of the appeal, the learned counsel appearing on either side, informed the court that they were very much aware of the legal position and that the said question could be framed and decided by this court in the appeal itself based on the evidence adduced before the Tribunal and the additional documentary evidence adduced by either party in this appeal by virtue of the order dated 14.10.2008 passed in C.M.P.Nos.18540 of 2002 and 714 of 2008. Let us now consider the plea of non-joinder of necessary party attacking the maintainability of the MCOP.
12. Admittedly the accident took place, as the bus belonging to the appellant transport corporation while crossing a manned level crossing was hit by the express train bearing No.6711 running between Chennai and Madurai belonging to the Railways. According to the respondent herein/claimant, the rash and negligent act on the part of the driver of the bus belonging to the appellant herein/respondent transport corporation was the sole cause of the accident. The respondent herein/claimant has made a clear averment to the effect that when the barrier at the level crossing was slowly coming down, disregarding the same and in an attempt to cross the level crossing before ever the train could come, the driver of the bus belonging to the Transport Corporation followed another vehicle; that in such an attempt the bus got trapped under the barrier that was coming down and that in the meanwhile the train came and hit the bus.
13. On the other hand, the appellant herein/respondent contended that the railway administration had failed to fix signal lights at the point of level crossing; that the gate keeper also failed to close and lock the gate barring entry of the motor vehicles when the train was to pass through the said level crossing and that only because of the negligence on the part of the railway administration, the accident took place. When the claimant has come forward with a plea that the accident took place solely due to the negligence on the part of the driver of the motor vehicle, the mere fact that a train was also involved in the accident or that the accident took place due to the composite negligence of the driver of the motor vehicle as well as the railway administration, the same shall not be enough to reject the claim application on the ground of non-joinder of necessary parties as the railway administration has not been made a party.
14. In case of composite negligence, the liability of joint tort-feasers is joint and several and a victim who suffers injury in an accident occurring due to the composite negligence of joint tort-feasers, can claim compensation from all or any one of the joint tort-feasers. This position was made clear by a full bench of the Karnataka High Court in Ganesh Vs. Syed Munned Ahamed and Ors. reported in II(1999) ACC 9. The majority view of the full bench of Karnataka High Court in the above said case is to the effect that, in the case of a motor vehicle accident caused due to the composite negligence of the drivers of two or more vehicles, the person who is injured or the legal representatives of a person who is killed in such accident, shall be entitled to claim the entire compensation from the drivers, owners and insurers of all such vehicles or one of such vehicles alone.
15. The Hon'ble Supreme Court in Union of India Vs. United India Insurance Co. Ltd., and Others reported in 1997 (8) SCC 683 held that the Tribunal constituted under Section 110(1) of the Motor Vehicles Act, 1939 (old act) was an alternative forum in substitution of civil courts for adjudicating upon the claims for compensation in respect of the accidents arising out of the use of the motor vehicles and that the claim for compensation was maintainable before the Tribunal against the persons or the agencies which were held to be guilty of composite negligence or against joint tort-feasers. Of course in the said judgment, the Hon'ble Supreme Court has expressed a view that in case of composite negligence, the right of the claimant for compensation and the corresponding duty cast on the Tribunal are circumscribed by various checks and limitations, which directly tell upon various common law principles enunciated in English Law Textbook on torts conveying a meaning that all the joint tort-feasers should be made parties to the claim petition. However, in another case decided by the Full Bench of Karnataka High Court in Ganesh Vs. Syed Munned Ahamed and Ors. reported in II(1999) ACC 9 in respect of an accident that had occurred due to the composite negligence of the drivers of two vehicles it was held that the Motor Accidents Claims Tribunal was clearly the alternative forum in substitution of the civil court for adjudicating upon claims for compensation in respect of an accident arising out of use of the motor vehicles was joint and several and each one was responsible jointly with each and all of the others and also severally for the whole of the amount of damage caused by the tort-feasers' act irrespective of the extent of his participation and that the injured might sue any one of them separately for the full amount of loss or may sue all of them jointly in the same action and even in the latter case a judgment so obtained against all of them might be executed in full against any one of them.
16. Relying on the above said majority view expressed by the Full Bench of the Karnataka High Court in Ganesh Vs. Syed Munned Ahamed and Ors. reported in II(1999) ACC 9 and the view of the Supreme Court in Union of India Vs. United India Insurance Co. Ltd., and Others reported in 1997 (8) SCC 683 cited supra, once again another full bench of the Karnataka High Court in Karnataka State Transport Corporation, Bangalore and Others vs. Arun alias Aravind and others reported in AIR 2004 Karnataka 149 expressed similar view that in case of composite negligence of drivers of two vehicles, the claimants could recover compensation from any one of the joint tort-feasers and the non-impleadment of the other joint tort-feasers was no ground either to reject the claim on the ground of absence of necessary party or to reduce the compensation in proportion to the blame worthiness of the joint tort-feaser who was not impleaded as party. Unanimous view of the full bench of the Karnataka High Court in the said case was to the effect that in case of composite negligence, non-impleadment of the joint tort-feasers was not fatal to the case; that the claimant could maintain his claim for compensation against all or any one of the joint tort feasers to its full extent and that the Tribunal should not aim at either apportioning the liability or reducing the liability in proportion to the extent of blame-worthiness of the joint tort-feasers who were not made parties, for the simple reason that such an order of apportionment would not be binding on the other joint tort-feasers.
17. In United India Insurance Co. Ltd., Vs. Prem Kumaram reported in 1988 ACJ 597, a case wherein the accident occurred as a result of the composite negligence of the driver of a motor vehicle and the railways, facts of which are similar to the facts of the case on hand, Kerala High Court held that the Motor Accidents Claims Tribunal alone had got jurisdiction to entertain a claim for compensation. When the said judgment of the Kerala High Court and the two full court judgments of the Karnataka High Court cited supra are considered in the light of the views expressed by the Supreme Court in the above said cases, this court has to necessarily come to the conclusion that the defence plea raised by the appellant herein/respondent that the claim for compensation made by the respondent herein/claimant without impleading the railway is bad for non-joinder of necessary parties has got to be discountenanced. The said contention, in the light of the above said pronouncements, deserves to be rejected as unsound and untenable. Accordingly the arguments advanced on behalf of the appellant on the above said lines is hereby rejected as there is no substance in it.
18. The learned counsel for the appellant/respondent made a further submission to the effect that even if it is assumed that an application for compensation in respect of an accident involving a motor vehicle and a train belonging to the Railways can be maintained against the owner of the motor vehicle alone on the strength of the plea that there was negligence on the part of the driver of the motor vehicle, unless the respondent herein/claimant was in a position to substantiate his contention that the accident was the result of the negligence of the driver of the bus belonging to the appellant herein/respondent or that the composite negligence of the driver of the bus and the Railway Administration was the cause of the accident, the respondent herein/claimant could not sustain a claim against the appellant herein/respondent. In other words, the contention of the appellant herein/respondent is to the effect that there was no negligence, not even a composite negligence, on the part of either the appellant herein/respondent or its driver; that the accident occurred solely due to the negligence on the part of the railways and that hence though the MCOP filed against the appellant was maintainable, the appellant herein/respondent could not be held liable to pay compensation except to the extent of no fault liability under Section 140 of the Motor Vehicles Act, 1988 in the absence of proof of any amount of negligence or rashness on the part of the appellant or its employee.
19. As per Section 175 of the Motor Vehicles Act, 1988, where any Claims Tribunal has been constituted for any area, the civil court shall not have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. As per Section 165 of the Motor Vehicles Act, 1988, Tribunals may be constituted by the state government for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles or damages to any property of a third party so arising or both. A conjoint reading of Section 165 and 175 of the Motor Vehicles Act, 1988, in the light of a specific provision contained in Section 167 providing for option to the claimant to claim compensation either under the Motor Vehicles Act or the Workmen's Compensation Act, it has been held in several cases that the Tribunal constituted under the provisions of the Motor Vehicles Act shall alone have the power to deal with such a claim to the exclusion of the civil court either the claim be against the driver, owner or insurer of the motor vehicle or against a third party like Railways. However, it has also been held that unless the claimant is able to prove that there was at least a nominal degree of blame worthiness on the part of the respondent in the MCOP, the question of such respondent becoming jointly and severally liable with the other persons as joint tort feaser could not arise. In such an event the respondent against whom the claim is made shall be entitled to the dismissal of the claim petition to the extent of the claim made on the basis of alleged fault on the part of the respondent. The same is subject to the following exceptions:-
i) In case the applicant coming within the category of persons eligible to claim compensation under the structured formula provided under Schedule II, as per Section 163-A of the Motor Vehicles Act, 1988 makes a claim under the said provision of law, he shall not be called upon either to plead or prove any fault on the part of the driver or owner of the vehicle against whom the claim is made;
and
ii) In any other case the liability of such person shall be absolute to the extent indicated in Section 140 of the Motor Vehicles Act.
19. In this case, in order to show that there was no negligence on the part of the driver of the bus belonging to the appellant herein/respondent, which was involved in the accident, the appellant herein/respondent simply relies on Ex.B1, the certified copy of a charge sheet filed by the Railway Police against the gate-keeper and the station-master charging them to be guilty of causing death by their act of negligence, an offence punishable under Section 304-A IPC. Now, it is well settled that the mere registration of a criminal case or submission of a final report alleging commission of a criminal offence shall not be enough to prove the acts alleged either in the FIR or in the final report; that even a judgment of the criminal court is not relevant in a civil case or a claim for compensation under the Motor Vehicles Act except to the extent of showing that there was such a prosecution which ended either in conviction or acquittal and that only in one situation i.e. when the accused was convicted based on his plea of guilty, the judgment of the criminal court will become relevant and admissible not as a verdict of the criminal court but as an admission. Even in the case of a conviction based on the plea of guilty, the same is not conclusive proof of the fact admitted. However, such admission shall be a better piece of evidence of the fact admitted. In all such cases, the person against whom such an admission is sought to be used as evidence shall have the right to lead evidence to show that the said admission was wrong and thus disprove the fact admitted in the criminal court.
20. In the case on hand, it is not the case of the appellant herein/respondent that there was any such admission which shall become admissible as a piece of evidence. On the other hand, the appellant/respondent simply relies on the charge sheet in order to prove that there was negligence on the part of the railway officials. At the same time, the respondent herein/claimant has produced a copy of the judgment of the Additional Sessions Judge pronounced in C.A.No.55/2007 acquitting one of the accused persons. It is obvious from Ex.A21, the certified copy of the judgment pronounced in C.A.No.55/2007, that the calendar case instituted based on Ex.B1 charge sheet ended in conviction of the gate-keeper as well as the station- master; that as against the conviction and sentence, the station master alone preferred an appeal and that the said appeal was allowed setting aside the conviction and sentence and acquitting him of the charges leveled against him. In the light of the above said judgment, there is no scope for the appellant herein/respondent to contend now that there was negligence on the part of the station master leading to the accident in not warning the driver of the train of the failure of signal.
21. The learned counsel for the appellant herein/respondent would point out the fact that only the conviction of the station-master and sentence imposed on him were set aside and that the gate-keeper who was arraigned as second accused did not file any appeal against his conviction. As pointed out supra, the mere fact that a person is convicted in a criminal court shall not be the conclusive proof that there was negligence on his part and the said judgment of the criminal court shall not be relevant except to the extent of showing that there was a criminal trial which ended in conviction. Even assuming that the judgment of conviction of the gate-keeper, who figured as the second accused in the Calendar Case registered regarding the accident concerned in this appeal, can be taken to be a valid material to come to the conclusion that there was negligence on his part, the same shall not enough to come to a conclusion that the negligence on his part was the sole cause of the accident and that there was no negligence on the part of the driver of the bus belonging to the appellant herein/respondent, in which case alone the claim based on fault made against the appellant can be disallowed. In this case, besides making clear averment that the driver of the bus acted rashly and negligently in driving the bus right from the moment he started the bus from Karur till the accident took place; that while the barrier at the level crossing was slowly coming down, the driver of the bus dared to follow the vehicle that was going in front of him disregarding the warning signal; that the barrier came down and rested on the top of the bus preventing the bus from moving either forward or backward and that instantaneously the train came and hit the bus causing the said accident, clear evidence, both oral and documentary, have also been adduced to prove the said allegation.
22. On the other hand no witness was examined on the side of the appellant herein/respondent to show that there was no such rash or negligent act on the part of the driver of the bus belonging to the appellant herein/respondent. Yet another factor should also been kept in mind while considering the contention of the appellant that there was no negligence on the part of the driver of the appellant herein. It is an admitted fact that both the driver and conductor of the bus died in the said accident. Therefore, there was no scope for prosecuting them for any offence relating to the accident. That is why the police have chosen to prosecute railway officials alone. In the said circumstances the prosecution of the railway officials alone will not negative the negligence on the part of the driver of the bus belonging to the appellant herein/respondent.
23. For all the reasons stated above, this court comes to the conclusion that the appellant herein/respondent has not substantiated its contention that there was no negligence on the part of the driver of the appellant herein/respondent and that the accident took place solely due to the negligence on the part of the railway officials. On the other hand, the respondent herein/ claimant has clearly established the fact that the accident was the result of the rash and negligent act on the part of the driver of the bus belonging to the appellant herein/respondent. It has also been proved by the respondent herein that the negligence on the part of the driver of the appellant herein/respondent was also the cause of the accident even if it is assumed that there was some kind of negligence on the part of the railway officials and hence appellant herein/respondent could at least be construed to be a joint tort-feaser. Therefore the challenge made to the award on the ground that the railway administration has not been made a party or that there was no negligence on the part of the driver of the vehicle belonging to the appellant herein/respondent is not sustainable and the contentions raised in this regard on behalf of the appellant have got to be rejected as untenable.
24. The Tribunal has awarded a total sum of Rs.3,95,988/- as compensation. The said amount was directed to be paid along with an interest on the said amount at the rate of 9% per annum from the date of petition till realisation and also with proportionate cost. The split-up particulars of the amount of compensation awarded by the Tribunal are as follows:
Compensation for permanent disability and loss of income caused by such permanent disability, taking the extent of permanent disability to be 50% : Rs.3,60,000/-
Medical expenses for which documents have been produced (Ex.A5, A8, A10 & A12) : Rs. 25,988/- Pain and suffering : Rs. 10,000/- ---------------- TOTAL Rs.3,95,988/- ----------------
25. The Tribunal took the monthly income of the petitioner prior to the accident at Rs.4,000/-, the extent of permanent disability and the loss of earning capacity at 50% and the age of the petitioner as on the date of accident at 43 years, selected and applied 15 as the appropriate multiplier and thus arrived at the above said figure. The SSLC certificate of the petitioner has been marked as Ex.A1. As per the entry found in the said certificate he was born on 15.03.1956. The accident took place on 13.08.1998. Therefore, it is quite obvious that the petitioner had completed 42 years of age as on the date of the accident. However, the Tribunal has taken his age as on the date of accident as 43 years. With the help of the second schedule, taking the particulars therein as guideline for selection of multiplier, the Tribunal has selected 15 as the appropriate multiplier. However, in a case of injury leading to permanent disability, the suitability of multiplier method should be considered. In this case, the respondent/claimant, according to his contention, was employed as a Medical Representative in Micro Labs Limited, Bangalore prior to the date of accident and was earning a sum of Rs.12,000/- per month. In this regard, the petitioner himself deposed as P.W.1. The identity card issued by his employer has been marked as Ex.A13. The salary extracts for the months of February 1995, February 1996, April 1995 and May 1995 have been marked as Ex.A14 series. From the said documents it is found that for the month of February 1995, he was paid a basic pay of Rs.2,175/- and HRA of Rs.375/-. From the month of February 1996, he was paid a basic pay of Rs.2,475/- and HRA of Rs.375/-. In addition to that he was also paid travelling allowance for every month ranging from Rs.2,750/- to Rs.4,000/- depending upon the travels undertaken by him. The travel allowance can be omitted from his earnings as it is only in the form of reimbursement for the expenditure incurred by him for the official tours undertaken by him. It is found from the said documents that he was not in receipt of DA. However, depending upon the orders for sale procured by him, incentives were paid ranging from Rs.4,500/- to Rs.7,201/- every month. The Tribunal seems to have taken Rs.1,150/- as average incentive. The same cannot be termed either excessive, arbitrary or unreasonable. Only a minimum amount has been taken by the Tribunal as incentive. Therefore, the Tribunal has committed no error or mistake in assessing the average monthly income of the petitioner prior to the date of accident at Rs.4,000/-. There are sufficient evidence through P.W.1, which is also corroborated by Ex.A15 and Ex.A16 to show that due to the consequences of the injuries sustained by the petitioner in the accident, he was not able to continue his employment and he had to resign his job. Ex.A15 is the letter from his employer accepting his letter of resignation dated 05.12.1998 with immediate effect. Ex.A16 is the letter enclosing a cheque for a sum of Rs.49,413/- towards the final settlement of all dues from the employer.
26. Ex.A3 is the copy of the Accident Register issued to the respondent herein/claimant at Government Hospital, Karur. After taking initial treatment in the Government Hospital, Karur, the respondent herein/claimant was given treatment as an in-patient in a private hospital at Namakkal. Treatment history for the treatment given to him in the private hospital at Namakkal by name "Thangam Hospital" has been marked as Ex.A4. The bill evidencing payment of Rs.10,940/- to the said hospital is Ex.A5. The Discharge Summary issued to the respondent herein/claimant in the said hospital is Ex.A6. Scan Report is Ex.A7. The Treatment Card issued to the respondent herein/claimant at "Sri Nidhi Hospital" is Ex.A9. A bill evidencing payment of Rs.6,080/- to the said hospital is Ex.A10. The medical bills have been produced as Ex.A12 series. From the said documents, it is obvious that the respondent herein/claimant had sustained following injuries:-
i) A lacerated wound on the right parietal region measuring 7 cm x 3 cm x 2 cm;
ii) A Contusion over left shoulder;
iii) Tenderness crepitation on the right clavicle;
iv) Contusion diffuse on the right shoulder;
v) A lacerated wound over the prima of the left ear;
vi) A lacerated wound on the scalp measuring 10 cm x 1 cm x 1 cm; and
vii) Multiple contusion over the left side of the chest.
X-Ray and scan reports show the damage to the teeth, fracture on the right clavicle, fracture in the skull at left temporal bone and dislocation of left acromio clavicular joint. He had also been diagnosed to have diffuse cerebral edema. He had also been given treatment by P.W.2 (Dr.S.Ilamathi), a dentist who has also given Ex.A8 certificate for receipt of a sum of Rs.4,650/- from the respondent herein / injured claimant.
27. It is quite obvious from the above said parole evidence and documents that the respondent herein/claimant sustained multiple grievous injuries including fractures and dislocations. Even after proper treatment given to him, he has suffered permanent disability as evidenced by the testimonies of the medical officers, namely P.W.2 and P.W.3. P.W.2 has assessed the disability so far as the damage caused to the teeth is concerned. The certificate issued by her is Ex.A19. She has opined that the permanent disability caused by the damage caused to the teeth and by the disfiguration found on the face was assessed by her at 20%. P.W.3 assessed the disability caused by the fracture and dislocations pointed out supra and gave Ex.A20 - certificate opining that there was permanent disability to the tune of 40% caused by the said injuries. If the extent of the two types of disabilities are added by arithmetical calculation, the total disability will come to 60%. But as per "The manual for doctors to evaluate permanent physical impairment issued based on expert group meeting on disability evaluation" the total percentage of disability caused by two types of disabilities assessed separately should be worked out using the following formula:
Total disability = a + b(90-a) (a = greater) 90 (b = lesser) If the said formula is applied then the total disability can be calculated as follows:-
Total disability = 40 + 20(90-40) 90 = 40 + 11.1 = 51.1
28. The Tribunal has taken the total extent of disability only at 50%. There is only a slight margin of 1.1%. Therefore, this court could find no scope for interference with the same. As pointed out supra, the Tribunal was right in assessing the monthly earnings and annual earnings of the petitioner before accident at Rs.4,000/- and Rs.48,000/- respectively. The respondent/claimant has suffered 50% permanent disability. The nature of disability suffered by him has made him resign his job as Veterinary Field Manager (Medical Representative). From the evidence, this court is able to see that the respondent/claimant had to undertake extensive travels to earn incentives. The travel allowance itself range from Rs.2,750/- to Rs.4,000/- as per Ex.A14. Now, because of the orthpaedical disability suffered by him, the petitioner shall not be in a position to undertake such travels. Therefore we can assess the loss of earning capacity even at a higher percentage than the percentage of functional physical disability. The Tribunal has assessed the loss of earning capacity on par with the percentage of physical functional disability. There is no scope, whatsoever, to interfere with the same. The Tribunal has rightly fixed the annual loss of earning capacity at Rs.24,000/-. When it is multiplied by the selected multiplier, namely 13 the total loss shall come to Rs.3,12,000/-.
29. While adopting multiplier method in case of permanent disability, the amount thus arrived at shall represent only the loss of future earning capacity. In such a case, it shall be just and necessary to award a nominal amount for the discomforts and loss of amenities caused by the permanent disability. In Cholan Roadways Corporation Limited, rep. by its Managing Director, Kumbakonam vs. Ahmed Thambi and others reported in 2006 (4) CTC 433 it has been held that two methods of assessment of compensation in case of injuries leading to permanent disability are possible; that in case lumpsum compensation is awarded for the permanent disability it will take into its fold the loss of future earning capacity and loss of amenities in life caused by the permanent disability in which case, compensation on the head of permanent disability as such or loss of earning capacity cannot be separately itemised. On the other hand if the multiplier method is adopted to assess the compensation for the loss of earning capacity, then there shall be no impediment for separately itemising the compensation for loss of amenities caused by the permanent disability. As the above said amount of Rs.3,12,000/- was assessed only as compensation for loss of future earning capacity, some amount should be awarded for loss of amenities in life caused by the permanent disability. This court deems it fit to award a sum of Rs.10,000/- as compensation on the said ground.
30. The petitioner has produced medical bills to the tune of Rs.4,317.08P in Ex.A12 series, Rs.6,080/- in Ex.A10, Rs.4,650/- in Ex.A8 and Rs.10,940/- in Ex.A5. The Tribunal has chosen to award the aggregate of the said amounts. In all a sum of Rs.25,988/- was awarded as compensation for medical expenses. Considering the nature of injuries sustained by the respondent herein/claimant and the extent of permanent disability with which he is now found, a reasonable amount should have been awarded as compensation for pain and suffering. But the Tribunal has chosen to award Rs.10,000/- only as compensation for pain and suffering. This court feels that enhancing the same to Rs.15,000/- shall be quite reasonable. The accident took place on 13.08.1998. The injuries should have caused him total loss of earning capacity during the period of treatment and the period needed for rest. It should also be noted that within four months from the date of accident, the respondent herein/claimant resigned his job as evidenced by Ex.A15. At least for three months he should have been without any earning. Therefore for three months from the date of accident he should have suffered a total loss of earning, for which awarding a sum of Rs.12,000/- (Rs.4,000/- x 3) as compensation shall be quite reasonable. No amount has been awarded by the Tribunal towards compensation for extra nourishment and transport expenses. Awarding a sum of Rs.3,250/- towards extra nourishment and a sum of Rs.2,000/- towards transport expenses shall be quite reasonable. Thus, the total amount that can be awarded as reasonable compensation can be worked out as follows:
Compensation for loss of future earning capacity : Rs.3,12,000/-
Medical Expenses (R.O) : Rs. 26,000/- Pain and suffering : Rs. 15,000/- Loss of amenities in life : Rs. 10,000/- Loss of earning from the date of accident and during the : Rs. 12,000/- treatment period Extra Nourishment : Rs. 3,250/- Transport Expenses : Rs. 2,000/- ---------------- Total Rs.3,80,250/- ----------------
As per Ex.A17, the petitioner was paid a sum of Rs.250/- as solatium by the Government from the Chief Minister's Relief Fund. The said amount can be deducted from the total compensation. The total compensation after deducting Rs.250/-, comes to Rs.3,80,000/-.
31. For all the reasons stated above, this court comes to the conclusion that the total amount of compensation awarded by the Tribunal requires a marginal reduction as indicated above i.e., from Rs.3,95,988 to Rs.3,80,000/-. The Tribunal has awarded an interest at the rate of 9% only, which cannot be stated to be on the higher side. Therefore no change can be made regarding the rate of interest.
32. In the result the appeal is allowed in part and the award of the Tribunal is modified by reducing the total amount of compensation from Rs.3,95,988/- to Rs.3,80,000/-. In all other respects the award of the Tribunal shall stand confirmed. The parties are directed to bear their respective costs in the civil miscellaneous appeal.
asr To The Motor Accidents Claims Tribunal (Sub Court), Namakkal