Prahalath Jasmathiya v. V.Sankaran

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:23.06.2008C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.414 of 2002Prahalath Jasmathiya...Appellant/PetitionerVs.1. V.Sankaran2. United India Insurance Co. Ltd., No.38, Anna Salai Chennai - 2...Respondents/RespondentsThis Civil Miscellaneous Appeal has been filed under Section 173of the Motor Vehicles Act, 1988 as against the award of the MotorAccidents Claims Tribunal (II Judge, Small Causes Court), Chennaidated 25.09.2001 made in M.C.O.P.No.5347 of 1998.For Appellants : Mr.K.Bakthavatchalu For Respondent No.2: Ms.Mythili Suresh J U D G M E N TThis civil miscellaneous appeal is directed against the award ofthe Motor Accidents Claims Tribunal (II Judge, Small Causes Court),Chennai dated 25.09.2001 made in M.C.O.P.No.5347 of 1988 in so far asthe disallowed portion of the claim is concerned.2. The appellant herein had filed the above said MCOP claiming asum of Rs.6,00,000/- as compensation from the respondents 1 and 2herein as the owner and insurer of the offending vehicle, namely atrailer lorry bearing Regn.No.TN-09 C-9745, for the injuries sustainedby him in an accident that took place on 29.10.1998 at about 2.15 p.min Nerkundram on the Poonamallee High Road. 3. According to the petition averments, at the time of accidentthe petitioner was proceeding from Thiruvallur to Chennai in hismotorcycle bearing Regn.No.TN-09 E-5838. While he was thus proceedingtowards Chennai, the above said trailer lorry bearing Regn.No.TN-09 C-9745 which came from behind in the same direction, dashed against thepetitioner as the said lorry was driven by its driver in a rash andnegligent manner. The petitioner who sustained grievous injuries wasgiven first aid treatment in the Government Kilpauk Medical CollegeHospital, Chennai and later on he took treatment in a private nursing https://hcservices.ecourts.gov.in/hcservices/ home called "Padmini Nursing Home" as an in patient from 29.10.1998 to02.11.1998. With the further contention that the petitioner was agedabout 46 years; that he was employed as a Manager Administration in aprivate concern called "Nubal (India) Limited" and a part timeaccountant in "Ravi Fashion Paradise (P) Ltd"; that as such he washaving an income of Rs.15,000/- per month as on the date of accidentand that despite proper treatment he suffered permanent disabilityaffecting his earning capacity, the petitioner had claimed a sum ofRs.6,00,000/- as compensation from the respondents 1 and 2 herein.4. The owner of the alleged offending vehicle, namely the firstrespondent herein, did not contest the MCOP and chose to remain ex-parte. The second respondent herein alone contested the case byfiling a counter affidavit denying petition averments and contendingthat the second respondent was not liable to pay compensation sincethe driver of the alleged offending vehicle did not possess a validdriving license. The second respondent had also denied the petitionaverments regarding the alleged injuries, nature of injuries and theconsequential disability suffered by the petitioner. Contendingfurther that the amount claimed by the appellant/petitioner was highlyexcessive and exorbitant and that the second respondent had prayedthat since the accident did not occur due to the rash and negligentact on the part of the driver of the lorry belonging to the firstrespondent, the second respondent had prayed for the dismissal of theMCOP with cost.5. Based on the above said pleadings, the Tribunal framednecessary issues regarding the question of negligence, theappellant's/petitioner's entitlement to claim compensation and quantumand tried the case. In the trial, five witnesses were examined on theside of the appellant/petitioner as P.W.1 to P.W.5 and fifteendocuments were marked as Ex.P1 to Ex.P15 on the side of the appellantherein/claimant, whereas no witness was examined and no document wasmarked on the side of the respondents. 6. At the conclusion of trial, after hearing the argumentsadvanced on either side, the Tribunal considered the evidence in thelight of the arguments advanced by counsel appearing on either sideand upon such a consideration, it answered the issue regardingnegligence in favour of the appellant/claimant and held that the rashand negligent act on the part of the driver of the lorry was the causefor the accident. The Tribunal assessed the total amount ofcompensation to which the petitioner was found entitled atRs.2,18,000/-. The split up particulars are as under:Loss of income from the date of accident, namely 29.10.1998 forone month from 29.10.1998 to29.11.1998: Rs. 15,000.00Transport expenses: Rs. 3,000.00Expenses for extra nourishment: Rs. 5,000.00 https://hcservices.ecourts.gov.in/hcservices/ Past and future medical expenses: Rs. 40,000.00Future Transport expenses: Rs. 25,000.00For mental agony: Rs. 10,000.00For pain and sufferings: Rs. 25,000.00For permanent disability: Rs. 45,000.00Loss of future earning capacity: Rs. 50,000.00-----------------TOTAL Rs.2,18,000.00-----------------First and second respondents in their capacities as the owner andinsurer of the offending vehicle, namely lorry bearing Regn. No.TN-09C-9745 were jointly and severally held liable to pay the said amounttogether with an interest at the rate of 9% per annum from the date ofpetition till realisation along with proportionate cost.As against the said award dated 25.09.2001 passed by the MotorAccidents Claims Tribunal, none of the respondents has chosen to fileany appeal or cross-objection. The appellant/petitioner alone haspreferred the present civil miscellaneous appeal contending that theamount awarded as compensation is highly inadequate and that the sameshould be enhanced.7. The point that arises for consideration in this civilmiscellaneous appeal is as follows:-" Whether the compensation awarded by the Tribunal isinadequate requiring upward revision in this civilmiscellaneous appeal?"8. This court heard the submissions made by Mr.K.Bakthavatchalu,learned counsel appearing on behalf of the appellant and Ms.MythiliSuresh, learned counsel appearing on behalf of the second respondentand also perused the materials available on record.9. It is a fact not in dispute that an accident took place nearNerkundram on the Poonamallee High Road at about 2.15 p.m on29.10.1998 in which the motorcycle bearing Regn. No.TN-09 E-5838 andthe lorry bearing Regn. No.TN-09 C-9745 were involved and that theappellant/petitioner who was riding the above said motorcycle at thetime of accident sustained injuries; that pursuant to the saidaccident, a case was registered against the driver of the above saidlorry on the file of E.4 Maduravoyal Police Station in CrimeNo.1717/1998. The averment made in the petition that while thepetitioner was proceeding in the above said motorcycle towardsChennai, the said lorry which came in the very same direction hit himfrom behind has also been admitted. Though the second respondent haddenied the petition averments that the accident was the result of rashand negligent driving of the above said lorry by its driver, the said https://hcservices.ecourts.gov.in/hcservices/ contention was not denied by the owner of the said lorry, namely thefirst respondent herein and he chose to remain ex-parte. At theconclusion of trial, the learned Motor Accidents Claims Tribunal choseto give a finding to the effect that the accident took place due tothe rash and negligent driving of the lorry belonging to the firstrespondent by its driver. As no appeal or cross-objection has beenfiled either by the first respondent or by the second respondent, thesaid finding has become final.10. The fact that the above said offending vehicle, namely thelorry bearing Regn. No.TN-09 C-9745 belonging to the first respondentstood insured with the second respondent on the date of accident hasnot been denied and in fact the same has been admitted. On the otherhand, the second respondent/insurer had taken a plea that the driverof the lorry did not possess a valid driving license and hence thesecond respondent/insurer was not liable to pay compensation.Whenever an insurer takes a plea that the liability of insurer is lostbecause of violation of a policy condition like absence of validdriving license to the driver of the vehicle, the insurer shouldadduce evidence and prove that the vehicle was driven at the time ofaccident by a person not holding license or that any other violationof the policy had occurred. In this case, the second respondent hasnot chose to adduce any evidence to prove the absence of drivinglicense to the person who drove the offending vehicle, namely lorrybelonging to the first respondent or that any policy or permitconditions was violated. In view of the same, the Tribunal hasrightly held the first and second respondents, in their capacities asowner and insurer of the offending vehicle, jointly and severallyliable to pay compensation to the appellant/petitioner. The saidfinding of the Tribunal has also become final, because the same hasnot been challenged by filing either an appeal or cross-objection.Accordingly, the same is recorded so.11. The Tribunal has awarded a total sum of Rs.2,18,000/- ascompensation to the appellant/ petitioner. The respondents have notchosen to challenge the said award on the ground that the said amountis excessive. On the other hand, the appellant/petitioner hasapproached this court by way of the present civil miscellaneous appealcontending that the amount awarded by the Tribunal is inadequate. Theappellant had claimed Rs.15,000/- for the loss of earning for a periodof one month from the date of accident. The Tribunal has awarded thesaid as claimed. So far as the award of a sum of Rs.5,000/- towardsexpenses for extra nourishment, a sum of Rs.25,000/- towards expensesfor future transportation, a sum of Rs.25,000/- for pain and sufferingand a sum of Rs.50,000/- for loss of future earning capacity isconcerned, the learned counsel for the appellant has not advanced anyargument to the effect that the said amounts were either unreasonableor inadequate. 12. On the other hand, the learned counsel for the appellantsimply pointed out the defect found in the judgment of the MotorAccidents Claims Tribunal regarding the amount covered by the medicalbills and argued that the said mistake had resulted in the award of alesser sum as compensation on the head of medical expenses. The https://hcservices.ecourts.gov.in/hcservices/ learned counsel for the appellant would contend that if the saidmistake is corrected and the amount covered by the medical bills isawarded as compensation towards medical expenses, the appellant wouldbe satisfied. The appellant/petitioner had claimed a sum ofRs.1,50,000/- as compensation for medical expenses. He has producedEx.P3 and P4 to evidence the expenditure incurred as medical expenses.The amount covered by Ex.P4 has been rightly quoted by the Tribunal asRs.26,430/-. However, while quoting the amount covered by Ex.P3, theTribunal has noted as Rs.9,500/- instead of Rs.95,000/-. Therefore, adeficiency of Rs.84,500/- has arisen in this regard. The total amountof medical expenses covered by Ex.P3 and Ex.P4 comes to Rs.1,21,430/-.The Tribunal has awarded a sum of Rs.40,000/- alone towards medicalexpenses. Therefore, the said amount has got to be enhanced toRs.1,22,000/-. 13. At the same time, this court is able to find some duplicationin the award of compensation on various heads. The Tribunal seems tohave awarded a sum of Rs.10,000/- for mental agony and a further sumof Rs.25,000/- towards pain and suffering. This anomaly has got to berectified by disallowing the above said sum of Rs.10,000/- awardedtowards mental agony over and above Rs.25,000/- awarded towards painand suffering which includes mental agony. Of course, it is true thatthe appellant/petitioner has produced documents to show that he hadsuffered permanent disability to the tune of 45%. Accepting theassessment of permanent disability made by the medical practitionerwho was examined as P.W.5, the Tribunal has chosen to adopt the methodof awarding lumpsum compensation, probably opining that the saiddisability would have no bearing on the future earning capacity, asthe petitioner was working as a Manager in a private concern andtaking into account the fact that for undertaking future journeys fromhome to place of work and from the place of work to the residence, asizable sum, namely a sum of Rs.25,000/- has been awarded ascompensation. 14. The appellant/petitioner was admittedly aged more than 46years as on the date of accident and hence the Tribunal chose to awarda sum of Rs.45,000/- as lumpsum payment for the permanent disabilitysuffered by him. When a lumpsum payment is awarded for permanentdisability which shall take into its fold loss of amenity caused bythe disability and future earning capacity, then as held by thedivision bench of this court in "Cholan Roadways Corporation Limited,rep. by its Managing Director, Kumbakonam Vs. Ahmed Thambi and others"reported in 2006(4) CTC 433 loss of future earning capacity and lossof amenities cannot be separately itemized. In this case, besidesawarding a sum of Rs.45,000/- as lumpsum payment for permanentdisability, the Tribunal has also chosen to award a sum of Rs.50,000/-for loss of future earning capacity and other consequences ofpermanent disability. The award of the said amount is not permissibleas per the above said judgment of the division bench of this court.Hence the same has got to be disallowed. While awarding lumpsum amountas compensation for permanent disability, the age of the claimantshall play a vital role as per judgment of this court made inR.Senthilkumar Vs. P.Palaniswamy and others reported in 2007(4) CTC642. In accordance with the prevailing economic conditions the same https://hcservices.ecourts.gov.in/hcservices/ may range from Rs.1,000/- to Rs.2,000/- per one percentage ofdisability the maximum rate shall be applicable to the young personsand the minimum rate shall be applicable to the aged. In this case,the appellant/petitioner was aged about 46 years as on the date ofaccident. Therefore applying the above said formula, the lumpsumamount of compensation for permanent disability is to be calculated atthe rate of Rs.1,400/- per one percentage of disability. If it isthus calculated, the amount of compensation for the disability shallcome to Rs.63,000/-. As against a sum of Rs.3,000/- awarded by theTribunal towards transport expenses for the expenses of travel to andfrom the hospital, awarding a sum of Rs.5,000/- shall be reasonable. 15. For all the reasons stated above, this court hereby comes tothe conclusion that the appellant/petitioner shall be entitled to atotal sum of Rs.2,60,000/- as compensation as against a sum ofRs.2,18,000/- awarded by the Tribunal. At the cost of repetition,split up particulars are furnished hereunder.Loss of earning during treatmentfor one month: Rs. 15,000.00Transport expenses for undertakingjourneys to and from the hospital: Rs. 5,000.00Extra Nourishment: Rs. 5,000.00Medical Expenses: Rs.1,22,000.00Future expenses for undertakingjourneys: Rs. 25,000.00Pain and suffering: Rs. 25,000.00Permanent Disability: Rs. 63,000.00----------------TOTAL: Rs.2,60,000.00----------------The interest awarded by the Tribunal seems to be quite reasonableand hence no change in the same is warranted. 16. In the result, this civil miscellaneous appeal is allowed inpart and the award of the Tribunal is modified by enhancing thecompensation from Rs.2,18,000/- to Rs.2,60,000/-. In all respects,the award of the Tribunal shall stand confirmed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ asrToMotor Accidents Claims Tribunal (II Judge, Small Causes Court), Chennai+ 1 cc to M/s.Sarvabhauman Associates,Advocate,SR.31806Copy to: The Section Officer, V.R.Section, High Court, Madras.C.M.A.No.414/2002KA(CO)EM/19.12.08