S.R.Raja v. M/s.Sharma Transport Rep. by Mr.S.T.Sharma 328, T.S.B.Salai, Fort Bangalore & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16.06.2008C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.51 of 2002S.R.Raja ...Appellant/PetitionerVs.1. M/s.Sharma Transport Rep. by Mr.S.T.Sharma 328, T.S.B.Salai, Fort Bangalore2. United India Insurance Co. Ltd., No.38, Anna Salai, Chennai - 2 ...Respondents/RespondentsThis Civil Miscellaneous Appeal has been filed under Section173 of the Motor Vehicles Act, 1988 as against the Judgment andDecree dated 26.04.2001 made in M.C.O.P.No.10/1998 by the MotorAccidents Claims Tribunal (3rd Judge, Small Causes Court), Chennai.For Appellant: Ms.S.SarumathiFor Respondents: Ms.Radha Gopalan (R1) Mr.S.Arunkumar (R2)J U D G M E N TThis civil miscellaneous appeal has been filed against theaward of the Motor Accidents Claims Tribunal (3rd Judge, SmallCauses Court), Chennai dated 26.04.2001 made in M.C.O.P.No.10/1998by the claimant therein as against the disallowed portion of theclaim is concerned.2. The averments, in brief, made by the appellant herein inhis claim petition filed before the Tribunal are as follows:-On 31.07.1997 at about 5.00 a.m, the petitioner was riding hisfish cart along with one Kaja Mohideen who was travelling as anoccupant of the said fish cart. When they were proceeding thusslowly along the east-west E.V.R.Road through the northern half ofthe said road, as the southern half had been closed for trafficsince men were working on the southern half for spreading bitumen.While they were thus proceeding near Hotel Breeze at Kilpauk, thebus bearing Regn.No.KA-01 A-3939 which came from west to east wasturned suddenly to the left by its driver in a rash and negligentmanner as a result of which the same dashed against the fish cartand thereby caused the accident resulting in injuries to the https://hcservices.ecourts.gov.in/hcservices/ petitioner and the above said Kaja Mohideen. Since the firstrespondent was the owner of the said bus which stood insured withthe second respondent as on the date of the accident, therespondents 1 and 2 were jointly and severally liable to paycompensation to the appellant/petitioner. The appellant/petitionerwas aged about 20 years and was self-employed as a power fish cartrider having an average income of Rs.3,000/- per month. For theinjuries sustained in the above said accident, theappellant/petitioner was admitted as an in-patient at KilpaukMedical College Hospital and took treatment as an in-patient tillthe date of filing of the M.C.O.P. Since, the injuries sustainedby the petitioner resulted in permanent disability, the respondentsshould be directed to pay a sum of Rs.2,00,000/- as compensationtogether with a future interest and costs. 3. The claim was resisted by the respondents 1 and 2 by filingseparate counter statements denying the petition avermentsregarding the manner in which the accident took place, the allegednegligence on the part of the driver of the bus belonging to thefirst respondent and disputing the contention of theappellant/petitioner that he sustained grievous injuries and thesame resulted in permanent disability. They had also contended thatthe driver of the bus belonging to the first respondent drove thesaid bus slowly and cautiously observing the rules of the road andthat there was no fault on the part of the said driver. Apart frommaking general denial of the petition averments, the firstrespondent had also submitted that the vehicle had been insuredwith the second respondent; that the same was driven by a personholding valid driving license and that if at all the petitioner wasentitled to recover any compensation from the first respondent asthe owner of the offending vehicle, the second respondent, beingthe insurer of the vehicle should be directed to pay the same tothe appellant/claimant. On the other hand, the second respondent,in addition to the above said general contentions denying thepetition averments, also contended that the fact that the offendingvehicle, namely bearing Regn.No.KA-01 A-3939 had been insured withthe second respondent and that the driver of the said vehicle didhave a valid driving license to drive the same, should also bestrictly proved by the appellant/petitioner. Apart from that, thesecond respondent had also denied the nature of injuries sustainedby the appellant/petitioner, the treatment given, the nature andextent of disability suffered by him and the reasonableness of theamount claimed as compensation.4. A similar petition claiming compensation had been filed bythe above said Kaja Mohideen in M.C.O.P.No.3434 of 1997. TheTribunal, after framing necessary issues in both the petitions,conducted joint enquiry in both the MCOPs in which, four witnesseswere examined as P.W.1 to 4 and ten documents were marked as Ex.P1to Ex.P10 on the side of the claimants. On the side of therespondents, no witness was examined and no document was marked. 5. At the conclusion of enquiry, the Tribunal considered theevidence brought before it in the light of the arguments advanced https://hcservices.ecourts.gov.in/hcservices/ on either side and upon such a consideration, came to theconclusion that the rash and negligent driving of the bus bearingRegn.No.KA-01 A-3939 belonging to the first respondent was thecause of the accident; that the said vehicle stood insured with thesecond respondent; that the driver of the vehicle possessed a validdriving license at the time of accident and that hence therespondents 1 and 2 were jointly and severally liable to paycompensation to the appellant herein and the Kaja Mohideen, theclaimant in M.C.O.P.No.3434 of 1997. 6. The Tribunal assessed the damages to which the appellantherein was entitled at Rs.62,900/- and passed an award directingthe respondents 1 and 2 herein to jointly and severally pay thesaid amount together with an interest at the rate of 9% per annumfrom the date of petition till realisation along with proportionatecost. The Tribunal also passed an award in M.C.O.P.No.3434 of 1997directing payment of a sum of Rs.22,350/- to the petitionertherein, namely Kaja Mohideen, with which we are not concerned inthis appeal. 7. The common judgment of the Tribunal so far as it relates toM.C.O.P.No.10 of 1998 and the award of the Tribunal inM.C.O.P.No.10 of 1998 are challenged by the appellantherein/claimant contending that the amount awarded as compensationis highly inadequate and hence the same should be enhanced.8. The point that arises for consideration in this appeal is:" Whether the amount awarded as compensation by theMotor Accidents Claims Tribunal is insufficient requiringenhancement in this civil miscellaneous appeal?"9. This court heard the submissions made by Ms.S.Sarumathi,learned counsel appearing on behalf of the appellant, by Ms.RadhaGopalan learned counsel appearing on behalf of the first respondentand by Mr.S.Arunkumar, learned counsel appearing on behalf of thesecond respondent. The materials available on record were alsoperused.8. The alleged accident in question that occurred on31.07.1997 has not been denied but rather admitted by therespondents herein. It is also not in dispute that the firstrespondent was the owner and the second respondent was the insurerof the offending vehicle, namely the bus bearing Regn.No.KA-01 A-3939 as on the date of accident. Though the contention of theappellant/claimant that the accident occurred due to the rash andnegligent driving of the said bus by its driver had been disputedby the respondents in the M.C.O.P, the first respondent stoppedwith simply making a general denial denying the petitioner'scontentions that the accident took place due to the rash andnegligent driving of the bus by its driver and stating that therewas no fault on the part of the driver. The second respondent,being the insurer, shall not be entitled to raise any defence otherthan those that are available to the insurer as per Section 149 of https://hcservices.ecourts.gov.in/hcservices/ the Motor Vehicles Act, 1988, unless permission under Section 170of the Motor Vehicles Act, 1988 to avail the defences that could beraised by the owner of the vehicle also had been obtained. In thiscase there is no question of seeking such a permission as the ownerof the offending vehicle, namely the first respondent was alsocontesting the case. In fact, no such permission was sought forand obtained. Therefore, the second respondent could not haveraised any plea on the merit of the case, namely the question ofnegligence and the quantum of compensation. In this case theTribunal, after evaluating the evidence adduced on the side of theappellant/petitioner and in the light of the fact that no evidence,either oral or documentary, had been adduced on the side of therespondents, came to the conclusion that the accident occurred dueto the rash and negligent driving of the bus bearing Regn.No.KA-01A-3939 by its driver. The first respondent has not chosen toprefer any appeal or cross-objection against the said findingrendered by the Tribunal on the question of negligence. Therefore,the said finding has become final and the same is recorded so bythis court.9. The appellant's/petitioner's contention that the offendingvehicle, namely the bus bearing Regn.No.KA-01 A-3939, at the timeof accident belonged to the first respondent and stood insured withthe second respondent had been admitted by the first respondent.In addition to the said admission, the said respondent had alsocontended that since the vehicle stood insured with the secondrespondent, whatever compensation the appellant/petitioner would beentitled to recover, should come from the second respondent. Inthis regard there is no specific denial of the allegation that theoffending vehicle belonging to the first respondent stood insuredwith the second respondent on the date of accident. The firstrespondent had also made a specific plea in his counter statementthat the vehicle was driven by a person holding valid drivinglicense to drive it. The second respondent did not make anyspecific plea that the vehicle was driven by a person not holdingany valid driving license. On the other hand, the second respondenthad stated in its counter statement that the facts alleged in thepetition to the effect that the vehicle stood insured with thesecond respondent and that the vehicle was driven by a personhaving valid license should be proved by the petitioner herein. Asalready pointed out, the factum of coverage of insurance has notbeen disputed but rather admitted by the second respondent. Anyviolation of policy condition or the existence of any fact givingrise to any one of the defences enumerated in Section 149(2)available to the insurer shall be specifically pleaded and provedby the insurer. The insurer cannot try to cast the burden on theclaimant or the owner of the vehicle by simply taking a stand thata policy condition has been violated giving rise to a right to theinsurer to repudiate the contract of insurance. 10. In this regard, the second respondent has not chosen toproduce any evidence, oral or documentary, to show either theabsence of driving license to the driver of the offending vehicleto drive the same at the time of accident or breach of any one of https://hcservices.ecourts.gov.in/hcservices/ the conditions of the policy giving a right to the secondrespondent to rescind the contract of insurance. Under suchcircumstances, the Tribunal has chosen to hold the respondents 1and 2 in their capacities as the owner and insurer of the offendingvehicle, jointly and severally liable to pay compensation to theappellant/petitioner. It is also pertinent to note that as againstthe fixing of liability jointly and severally on the respondents 1and 2, neither the first respondent nor the second respondent haschosen to prefer any appeal or cross-objection. Therefore the saidquestion of fixation of liability on the respondents has alsobecome final and no interference with the award of the Tribunal inthis regard can be made.11. So far as the quantum of compensation is concerned, therespondents have not come forward with any grievance that theamount awarded by the Tribunal is either excessive or exorbitant.On the other hand, the appellant/petitioner alone has come forwardexpressing his grievance that the amount awarded by the Tribunal ishighly inadequate and disproportionate to the loss suffered by him.The Tribunal awarded a total sum of Rs.62,900/- as against theclaim of Rs.2,00,000/- as compensation made by theappellant/petitioner, the split up particulars of which are asfollows:-Loss of income during the period of treatment and rehabilitation for five months @ Rs.1,500/- per month: Rs. 7,500.00Transport expenses for to and fromthe hospital: Rs. 200.00Expenses on extra nourishment: Rs. 200.00Damages for pain and suffering: Rs. 5,000.00Damages for permanent disability: Rs. 50,000.00-----------------Total Rs. 62,900.00-----------------12. As per the petition averments, the petitioner was agedabout 20 years at the time of accident. No document like birthcertificate, school certificate etc. was produced to prove the age.In the absence of any other evidence, the age of theappellant/petitioner has to be fixed in accordance with theavailable documents, namely Ex.P2 and P3 discharge certificates,Ex.P4 - OP Sheet and Ex.P9 - Disability certificate. Out of thesaid documents, the first three issued in the year 1997 and showthe age of the appellant/petitioner to be 22 years. The 4thdocument, namely the disability certificate issued in the year 2000shows the age of the appellant/petitioner to be 25 years. From thesaid documents, it is quite obvious that the appellant/petitionerwas aged about 22 years at the time of accident. https://hcservices.ecourts.gov.in/hcservices/

13. In the absence of any other document, the Tribunal hastaken the average monthly income of the appellant/petitioner to beRs.1,500/-. The Tribunal cannot be found fault with for arrivingsuch a conclusion. As per the evidence of the appellant, whofigured as P.W.2 and Ex.P2 he suffered fracture of left femur forwhich a surgical intervention to join the broken pieces of bonewith metal rod and wires was needed. He took treatment as an in-patient at the first spell from 31.07.1997 to 29.08.1997 and thenfor the second time from 27.12.1997 to 13.01.1998. Therefore, itis quite obvious that for about five months he was not in aposition to go to work and earn and thus incurred a total loss ofearning for the said period of five months. The Tribunal rightlyheld that he was entitled to a sum of Rs.7,500/- calculated at therate of Rs.1,500/- per month for the period of five months as totalloss of earning incurred by him during the period of treatment andrehabilitation. Hence no interference is needed in this regard. 14. It is quite obvious from the oral and documentary evidencethat for the fracture on the left femur, the petitioner had toundergo surgery not once but twice. It is also obvious from theevidence of P.W.2 - appellant, evidence of P.W.4 - medical officerand the disability certificate and X-Ray films marked as Ex.P9 andEx.P10, that despite treatment there was malunion, contraction ofmuscles and restriction of hip and knee movements which hasresulted in limping. P.W.4 has assessed the permanent disabilityat 55%. However, during cross-examination he would admit that hisassessment shall be subject to an error of + 5%. In view of thesaid admission, the marginal error admitted by the medical officer,namely P.W.4 was taken in favour of the respondents and theTribunal came to the conclusion that the extent of disabilitysuffered by the appellant/petitioner was to be reckoned at 50%.This court sees no defect or infirmity in the same. 15. However, the learned counsel for the appellant pointed outthe fact that the petitioner in his prime youth at the age of 22years had sustained such disability should have been paid a higheramount than Rs.50,000/- as compensation for permanent disability.This court in "R.Senthil Kumar Vs. P.Palani Swamy and Othersreported in 2007(4) CTC 642" and in "Metropolitan TransportCorporation Ltd. rep. by its Managing Director, Chennai (formerlyknown as Dr.Ambedkar Transport Corporation Ltd.) and Othes Vs.N.Shanmugam @ Sami Shanmugam and Others reported in (2008) 5 MLJ1439" has opined that application of uniform rate for disabilitydisregarding the age of the claimant shall result in injustice inas much as the same will amount to treating unequals equally andsuggested that the lumpsum compensation for permanent disabilityshall range from Rs.1,000/- to Rs.2,000/- per one percentage ofdisability depending upon the age of the victim and that themaximum rate shall be applicable for youngsters and the minimumrate shall be applicable for the elderly persons. Taking intoaccount all the facts and circumstances of the case, whileupholding the decision made by the Tribunal to award lumpsumcompensation for the permanent disability, this court feels thatthe rate to be applied in this case shall be Rs.1,200/- per one https://hcservices.ecourts.gov.in/hcservices/ percentage of disability. Therefore, for 50% of permanentdisability a sum of Rs.60,000/- instead of Rs.50,000/- shall be thereasonable amount to be awarded as lumpsum compensation. TheTribunal has rightly rejected the claim for damages for loss offuture earning capacity as it had chosen to award lumpsum amountfor the permanent disability which shall take into its fold boththe damages for loss of future earning capacity and loss ofamenities caused by the disability. A division bench of this courtin "Cholan Roadways Corporation Limited, rep. by its ManagingDirector, Kumbakonam Vs. Ahmed Thambi and others" reported in 2006(4) CTC 433 has held that when a lumpsum payment is awarded towardspermanent disability, those items cannot be separately itemized.Following the same dictum, this court comes to the conclusion thatthe rejection of the claim of compensation for loss of amenitiesand loss of future earning capacity by the Tribunal is on soundprinciples and hence the same cannot be termed either defective orinfirm. 16. Considering the nature of injuries sustained by theappellant/petitioner, the period of treatment, the nature oftreatment and the fact that he is now found with 50% disability,the sum of Rs.5,000/- awarded towards pain and suffering seems tobe too little and the same has got to be enhanced to Rs.20,000/-.For transport expenses and extra nourishment, the Tribunal haschosen to award Rs.200/- each, which according to the consideredopinion of the court is grossly inadequate. Therefore thecompensation for transport expenses and the expenses on extranourishment should be enhanced to Rs.1,000/- each. As theappellant/petitioner had taken treatment in the Government hospitaland has failed to produce any document evidencing any amount spentby him towards medical expenses or purchase of medicine, theTribunal has not awarded any amount towards medical expenses.However, the mere fact that the petitioner had taken free treatmentin the Government hospital in the past which resulted in permanentdisability, shall not be compelled to go for the very same type oftreatment in future. Evidence of P.W.2 and P.W.4 are to the effectthat in future also he may have to undergo a surgery for theremoval of the rod. Taking into account the fact that such anecessity may or may not arise and that it depends upon the factwhether any complication arises in future, this court is of theconsidered view that a sum of Rs.8,000/- can be awarded ascompensation for future medical expenses. If such a calculation ismade, the total amount of compensation that can be reasonablyawarded to the appellant/petitioner shall be Rs.97,500/-. TheTribunal has awarded only a sum of Rs.62,900/-. Therefore, it ishereby concluded that the appellant/petitioner has made out a casefor enhancement of compensation and that the award of the Tribunalshall be modified by enhancing the compensation from Rs.62,900/- toRs.97,500/-. For the sake of convenience, the split up particularsof the amount awarded by this court are furnished. https://hcservices.ecourts.gov.in/hcservices/ Loss of income during the period of treatment and rehabilitation for five months @ Rs.1,500/- per month: Rs. 7,500.00Transport expenses for to and fromthe hospital: Rs. 1,000.00Expenses on extra nourishment: Rs. 1,000.00Damages for pain and suffering: Rs. 20,000.00Damages for permanent disability: Rs. 60,000.00Future medical expenses: Rs. 8,000.00-----------------Total Rs. 97,500.00-----------------17. In the result, this appeal is allowed in part and theaward of the Tribunal is modified by enhancing the compensationfrom Rs.62,900/- to Rs.97,500/-. In all other respects the awardof the Tribunal shall stand confirmed. The appellant shall also beentitled to recover proportionate cost in the appeal from therespondents. sd/-Asst.Registrar/true copy/Sub Asst.Registrar asr/To1. The Motor Accidents Claims Tribunal (III Judge, Small Causes Court), Chennai.2. The Section Officer, V.R. Section, High Court, Madras.+ 1 c.c. to Mr.P. Manavalan, Advocate. S.R.No.29381.+ 1 c.c. to Mr. S. Arunkumar, Advocate. S.R.No.30518.+ 1 c.c. to Mr. S. Radha Gopalan, Advocate. S.R.No.30213.Judgment inC.M.A.No.51 of 2002GV (CO)GSK 05.02.2009.