Arumugam v. United India Insurance Co. Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 16.07.2008C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.2023 of 2002United India Insurance Co. Ltd.13.A Nethaji RoadManjakuppam, Cuddalore - 1...Appellant/2nd RespondentVs.1) Arumugam2) Govindasamy...Respondents/Petitioner/1st Respondent(exparte in Lower Court)This Civil Miscellaneous Appeal has been filed under Section 173of the Motor Vehicles Act, 1988 as against the Judgment and award ofthe Motor Accidents Claims Tribunal (Addl. Sub Judge), Cuddalorepassed in M.C.O.P.No.764/2001 dated 30.04.2002.For Appellant: Mr.N.VijayaraghavanFor RespondentNo.1: Mr.R.MuralidharanJ U D G M E N TThe insurance company which figured as the second respondentbefore the Tribunal has preferred this appeal against the award ofTribunal dated 30.04.2002 made in M.C.O.P.No.764/2001 awarding a sumof Rs.7,30,251/- as compensation to the first respondentherein/petitioner.2. The first respondent herein filed a claim application underSection 166 of the Motor Vehicles Act against the appellant herein andthe 2nd respondent claiming a sum of Rs.15,00,000/- as compensation forthe injuries allegedly sustained by him in an accident that took placeat 4.00 a.m. on 10.01.1998 near the railway gate at Thiruvathigai,within the jurisdiction of Panruti Police Station. It was thecontention of the 1st respondent herein/petitioner before the Tribunalthat on 10.01.1998 at about 4.00 a.m. he was standing on the extremesouthern side of the Cuddalore-Chittoor Main Road near Thiruvathigairailway gate; that while he was so standing, the second respondent'stractor bearing registration No.TN-32 Z-1020 fitted with a trailerbearing registration No.TN-32 Z-1021 came there at a high speed in the https://hcservices.ecourts.gov.in/hcservices/ direction of east-west, driven by its driver rashly and negligentlywithout following traffic rules and caused the accident by hittingagainst the first respondent/petitioner; that due to the accident thepetitioner sustained multiple injuries including fracture of thepelvis bone and dislocation on the right hip; that the firstrespondent/petitioner initially took treatment as an in-patient inGovernment hospital, Panruti, then at Government hospital at Cuddaloreand thereafter in private hospitals at Cuddalore, Pondy and Chennaiand that despite proper treatment, the injuries resulted in permanentdisability and consequential loss of earning capacity. 3. Contending further that the first respondent herein/petitionerwas aged about 30 years as on the date of accident and was earning notless than Rs.15,000/- per month as transport loading and labourcontractor and by cultivating his lands and that due to the injuriessustained in the accident, he could not continue the above saidavocations which resulted in loss of future earning, the firstrespondent herein/petitioner had claimed a sum of Rs.15,00,000/- ascompensation from the appellant and the second respondent herein. Hehad also prayed for interest on the above said amount claimed ascompensation. 4. The second respondent herein did not resist the claim andchose to remain ex-parte. The appellant insurance company alonecontested the case by filing a counter statement. In the counterstatement the appellant insurance company had denied the petitionallegations that the tractor and trailer stood insured with them as onthe date of accident. The other allegations found in the petitionregarding the nature of accident, the alleged negligence on the partof the driver of the vehicle, the age, occupation and income of thefirst respondent/petitioner, the nature of injuries sustained by thefirst respondent/petitioner and the alleged permanent disabilitysuffered by him had also been denied. With the further contentionthat the amount claimed as compensation was highly excessive andexorbitant, the appellant insurance company had prayed for thedismissal of the MCOP in its entirety.5. The Tribunal conducted enquiry in which two witnesses wereexamined as P.W.1 and P.W.2 and twenty five documents were marked asEx.P1 to Ex.P25 on the side of the first respondent/petitioner. Nowitness was examined and no document was marked on the side of theappellant insurance company. 6. After hearing the arguments and upon considering the evidencein the light of the arguments advanced on either side, the Tribunalcame to the conclusion that the accident was the result of the rashand negligent driving of the tractor fitted with a trailer belongingto the second respondent by its driver. Based on the disabilitycertificate produced on the side of the first respondentherein/petitioner, the Tribunal held that the first respondentherein/petitioner sustained injuries which led to permanent disabilityat 55% and awarded a total sum of Rs.7,30,251/- as compensation with https://hcservices.ecourts.gov.in/hcservices/ the following split up particulars:Compensation for permanent disability: Rs.6,73,200/-For grievous injuries sustained in the accident: Rs. 25,000/-For Pain and Suffering: Rs. 5,000/-Expenses on extra nourishment: Rs. 3,000/-Medical Expenses: Rs. 24,051/----------------TOTAL Rs.7,30,251/----------------7. Aggrieved by and challenging the award of the Tribunal dated30.04.2002 on the question of quantum alone, the appellant insurancecompany has preferred this Civil Miscellaneous Appeal on variousgrounds set out in the memorandum of grounds of appeal. 8. The short point that arises for consideration in the appeal is"Whether the amount awarded as compensation by the Tribunal isexcessive requiring downward revision in this appeal?"9. This court heard the submissions made by Mr.N.Vijayaraghavan,learned counsel appearing on behalf of the appellant andMr.R.Muralidharan, learned counsel appearing for the 1st Respondent.The materials available on records were also perused.10. It is true that the second respondent herein, the owner ofthe offending vehicle has not chosen to prefer any appeal against theaward passed by the Tribunal either on the question of liability or onthe question of quantum. An insurer shall not be entitled tochallenge the award on the question of quantum unless he has obtainedpermission under Section 170 of the Motor Vehicles Act. In this caseadmittedly the appellant/insurance company filed an application inI.A.No.873 of 2002 before the Motor Accidents Claims Tribunal underSection 170 of the Motor Vehicles Act seeking permission to avail thegrounds of defence available to the owner of the vehicle in additionto the grounds available to the insurer under Section 149 of the MotorVehicles act. Admittedly, the said petition was allowed andpermission was granted by the Tribunal on 17.04.2002. Therefore thereis no impediment for entertaining the appeal preferred by theappellant insurance company on the question of quantum.11. The United India Insurance Co. Ltd. which figured as thesecond respondent in MCOP No.764/2001 is the appellant herein. Theclaimant before the Tribunal is the first respondent in this appeal.For the injuries sustained by him in a road accident involving themotor vehicles, namely the tractor bearing Registration No.TN-32 Z-1020 fitted with trailer bearing Registration No.TN-32 Z-1021, bothbelonging to the second respondent herein, the first respondent herein https://hcservices.ecourts.gov.in/hcservices/ made a claim before the Tribunal. It was also contended before theTribunal that the appellant herein, which figured as the secondrespondent in the MCOP was the insurer of the said vehicle. TheTribunal accepted the contention of the first respondentherein/petitioner and passed an award directing the appellant hereinalone to pay a sum of Rs.7,30,251/-. The Tribunal, on an appreciationof the evidences brought before it, both oral and documentary, came tothe conclusion that the accident was the result of the rash andnegligent driving of the tractor fitted with the trailer by itsdriver. The said finding of the Tribunal is not challenged by theappellant herein. On the other hand, the challenge made to the awardis confined to the quantum of compensation alone. Therefore, the samehas got to be recorded and the finding of the Tribunal regarding thenegligence aspect deserves to be confirmed.12. Regarding quantum of compensation, the learned counsel forthe appellant argued that the Tribunal committed an error in mulctingthe liability on the appellant insurance company alone without even atthe first instance fixing the liability on the second respondentherein, namely the owner of the offending vehicle. The learnedcounsel for the appellant also contended that the amount awarded bythe Tribunal is highly excessive and exorbitant which could not bejustified; that the Tribunal had not assigned any reason supportingthe assessment of damages and that since the Tribunal arbitrarilyfixed an amount as compensation, the same should be interfered withand modified by reducing the quantum. The submissions made by thelearned counsel for the first respondent in this regard were alsotaken into consideration by this court.13. Ex.P1 is the copy of the First Information Report. Ex.P2 isthe wound certificate issued to the first respondent/petitioner.Ex.P3 to Ex.P22 are the documents relating to the medical treatmentgiven to the first respondent/petitioner. From the same, it isobvious that the petitioner sustained fracture on the hip and fractureand dislocation of the spinal column leading to compression of thenerves. From the evidence of P.W.1 and P.W.2 - Medical officer andEx.P23 - Disability certificate and Ex.P24 - X-Ray, it is obvious thatthe length of right leg has been shorten by an inch. The Medicalpractitioner, namely P.W.2 assessed the disability at 55% andcertified the same to be permanent. Without giving a finding as tohow old was the first respondent/petitioner (injured), the Tribunalsimply chose to adopt multiplier 17 and assess the compensation forloss of future earning capacity by multiplying 55% of Rs.72,000/- by17. Accepting the contention of the first respondentherein/petitioner that he was working as an agriculture contractorsupplying coolies, the Tribunal took his monthly earnings to beRs.6,000/-. The learned counsel for the appellant rightly contendedthat a contractor for supplying agricultural coolies can be expectedto get something more than the amount paid to a coolie as remunerationand hence the earnings of the first respondent/petitioner before thedate of accident should be taken as ranging between Rs.2,400/- toRs.3,000/-. This court decides to take the upper range and fix the https://hcservices.ecourts.gov.in/hcservices/ monthly earnings of the first respondent/petitioner before the date ofaccident at Rs.3,000/-. 14. Even though, P.W.2 - Medical practitioner might have assessedthe permanent disability of the petitioner to be 55%, taking intoconsideration the possibility of future reduction of the extent ofdisability by undertaking physiotherapic exercises and also the factthat the first respondent/petitioner was simply acting as a contractorfor supplying agricultural coolies without contributing any hardpersonal manual labour, we cannot take the loss of earning capacity tobe equal to the percentage of permanent disability. Therefore, itshall be proper to assume that the first respondent/petitioner hassuffered a loss of 50% of future earning capacity. Hence the annualloss of future earning capacity shall be Rs.3,000 x 50/100 x 12 =Rs.18,000/-. The same has to be multiplied by an appropriatemultiplier. 15. As per the petition averments, the deceased was aged about 30years at the time of filing of the petition. However, firstrespondent/petitioner has not produced any clinching document likebirth certificate, school certificate, etc. to prove his age. InEx.P2 certificate issued in the year 2000, his age is noted as 30years approximately. As per Ex.P5, P6 and P7 his age as on 18.09.2001was noted as 32 years. In the Disability certificate issued on08.04.2002 his age has been noted as 32 years. Therefore, it is clearthat the first respondent/petitioner had crossed the age of 30 yearsat the time of accident. For selecting the appropriate multiplier,though the table found in Schedule II under Motor Vehicles Act canprovide a guideline, the same cannot be taken as a ready reckoner.Considering the facts and circumstances of the case and age of thefirst respondent/petitioner, this court feels that the appropriatemultiplier to be selected in this case shall be 16. 16. If the above said multiplicant, namely Rs.18,000/- ismultiplied by the selected multiplier, we can get the figureRs.2,88,000/- representing the loss of future earning capacity. TheTribunal has awarded a sum of Rs.24,051/- the amount covered by themedical bills submitted by the first respondent/petitioner ascompensation towards medical expenses. The same can be rounded toRs.25,000/-. The Tribunal has not awarded any amount towards pain andsuffering. Taking into account the nature of injuries and thedisability with which the petitioner is found, for the past and futurepain and suffering a reasonable sum must be awarded. According to theconsidered opinion of this court, awarding a sum of Rs.16,000/- on theabove said act shall be quite reasonable. 17. In a case of injury resulting in permanent disability, theTribunal or the High court can adopt two method for assessing damages,one by awarding a lumpsum amount for permanent disability which willtake into its fold both the loss of future earning capacity and theloss of amenities (comforts) caused due to the permanent disability.In such an event loss of future earning capacity or loss of amenity https://hcservices.ecourts.gov.in/hcservices/ cannot be separately itemised. The other method is to separatelyassess the loss of future earning capacity. In such an event therewould not be any impediment for awarding a further sum on the head ofloss of amenities caused due to the permanent disability. The sameshall be in consonance with the judgement of the Division Bench ofthis court in "Cholan Roadways Corporation Limited, rep. by itsManaging Director, Kumbakonam Vs. Ahmed Thambi and others" reported in2006(4) CTC 433. 18. In this case, since this court has not adopted the method ofawarding lumpsum compensation for permanent disability and assessedloss of future earning capacity separately, it shall be just andproper to award an amount towards loss of amenities in life caused dueto the permanent disability. This court is inclined to award a sum ofRs.20,000/- for the same. Having chosen to award compensation for thepermanent disability suffered by the first respondent/petitioner, theTribunal should not have awarded any amount towards grievous injurysustained by the petitioner which alone led to the permanentdisability with which he is found. The Tribunal has chosen to award asum of Rs.25,000/- for grievous injuries. The award of said amounthas no basis at all and hence the same should be disallowed. 19. The Tribunal has not awarded any amount towards loss ofearning from the date of accident. The first respondent/petitionerwould have required at least two months bed rest during which time hewould have incurred a total loss of earning for which a sum ofRs.6,000/- has to be awarded. A sum of Rs.2,000/- for transportexpenses and a sum of Rs.3,000/- towards extra nourishment can bereasonably awarded. If such adjustments and modifications are made,the total amount to which the first respondent/petitioenr is entitledcan be reasonably fixed at Rs.3,60,000/-. At the cost of repetitionthe details of assessment are provided hereunder.Loss of future earning capacity: Rs.2,88,000/-Compensation for pain and suffering: Rs. 16,000/-Compensation for medical expenditure: Rs. 25,000/- Compensation for loss of amenities inlife: Rs. 20,000/-Total loss of earning from the date ofaccident for two months: Rs. 6,000/-Transport expenses: Rs. 2,000/-Extra nourishment: Rs. 3,000/----------------Total: Rs.3,60,000/---------------- https://hcservices.ecourts.gov.in/hcservices/ The interest awarded by the Tribunal seems to be quite reasonableand hence no change in the same is warranted. 20. The said amount is payable by the second respondent herein asthe owner of the offending vehicle. The appellant herein, being theinsurer of the offending vehicle, as per contract of insurance, has toshoulder the liability of the 2nd respondent and pay the amount to thefirst respondent/petitioner. Therefore, the respondent no.2 and theappellant herein/respondents 1 and 2 in the MCOP are held jointly andseverally liable to pay the above said amount to the first respondentherein/petitioner. Accordingly, the award passed by the Tribunal isliable to be modified by reducing the total amount of compensationfrom Rs.7,30,251/- to Rs.3,60,000/- and to by holding the secondrespondent and the appellant herein/respondents 1 and 2 in the MCOPjointly and severally liable to pay the said amount together with aninterest at the rate of 9% per annum from the date of petition tillreaslisation. 21. In the result, this Civil Miscellaneous Appeal is partlyallowed and the award of the Tribunal is modified by holding the 2ndrespondent and the appellant (respondents 1 and 2 in the MCOP) jointlyand severally liable to pay compensation to the first respondent(petitioner in the MCOP) and by reducing the total compensation fromRs.7,30,251/- to Rs.3,60,000/-. In all other respects the award of theTribunal shall stand confirmed. However, there shall be no order asto costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarasrTo1) The Motor Accidents Claims Tribunal (Addl. Sub Judge), Cuddalore2) The Section Officer,V.R.Section, High Court, Madras.1 cc To Mr.R.Muralidharan, Advocate, SR.38208.1 cc To Mr.M.B.Gopalan, Advocate, SR.37696.C.M.A.No.2023/2002 TEJ(CO)RVL 01.09.2008