IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.08.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE G.M. AKBAR ALI Civil Miscellaneous Appeal Nos.1937, 1938 and 1939 of 2007 National Insurance Co Ltd Cuddalore ... Appellant in CMA.1937/2007/ third respondent vs C.M.A.No.1937 of 2007 1. G. Parimala Alias Nirmala 2. The Managing Director, Tamil Nadu State Transport Corporation Limited Chennai 3. S. Pitchai Vanniyar ... Respondents/ Petitioner and respondents 1 and 2 C.M.A.No.1938 of 2007 1. R. Guru Prasad 2. The Managing Director, Tamil Nadu State Transport Corporation Limited Chennai 3. S. Pitchai Vanniyar .... Respondents/ Petitioner and Respondents 1 & 2 C.M.A.No.1939 of 2007 1. R. Guru Prasad 2. G. Parimala Alias Nirmala 3. The Managing Director, Tamil Nadu State Transport Corporation Limited Chennai 4. S. Pitchai Vanniyar ... Respondents / Petitioners 1 and 2 and Respondents 1 & 2 Civil Miscellaneous Appeals filed against the award made in M.C.O.P.Nos.3 and 4 of 2002 and 686 of 2004 dated 5.9.2006, on the file of the Motor Accident Claims Tribunal, Cuddlalore (Additional Subordinate Judge). https://hcservices.ecourts.gov.in/hcservices/ For appellant in all the appeals : Mr. S. Vadeivel For R.1 in CMA Nos. 1937 to 1939 and R.2 om CMA No. 1939 of 2007 : Mr.R. Muralidharan For R.2 in CMA Nos 1937 and 1938 of 2007 and R.3 in CMA No.1939/2007: Mr.S. Swaminathan COMMON JUDGMENT G.M. AKBAR ALI,J., Being aggrieved by the award of compensation of Rs.9,76,300/- in M.A.C.T.O.P.No.3 of 2002; Rs.14,87,740/- in M.A.C.T.O.P.No.4 of 2002 and Rs.5,00,000/- in M.A.C.T.O.No.686 of 2004, the Insurance Company has filed the present appeals. 2. All the appeals arising out of an accident occurred on 3.8.2001. The 1st respondent in C.M.A.No.1937 of 2007 and the 1st respondent in CMA No.1938 of 2007, who are husband and wife were travelling in the 2nd respondent Tamil Nadu State Transport Corporation Bus ( hereinafter called as "Transport Corporation) bearing registration No:TN07N 9394 from Bangalore to Kumbakonam. On the Villupuram Panruti Road, in the early hours of 3.8.2001, when a lorry bearing Registration No.TN51Z 9799, belonging to 3rd respondent and insured with the appellant, driven by its driver in a rash and negligent manner hit against the bus. As a result, both the vehicles collided causing not only severe multiple injuries to the respondents 1 and 2 but also caused the death of six months old child in the womb of the 1st respondent. 3. The respondents 1 and 2 filed three motor accident claims, before the Tribunal at Cuddalore. MACTOP 3/2002 was filed by the 1st respondent for the injuries caused to her. She had claimed Rs.10,00,000/-. MACOTP 4/2002 was filed by the 2nd respondent for the injuries caused to him and he had claimed Rs.15,00,000/-. MACTOP NO.686/2004 was filed by both the respondents for the death of six months old still born child in the womb of the 1st respondent. 4. The appellant and the Transport Corporation filed their counter statements throwing the negligence on the part of the opposite side vehicles and also resisted the quantum of compensation. 5. All the three claim petitions were taken together and a common order was passed by the learned II Additional Subordinate Court cum Motor Accident Claims Tribunal, Cuddalore. https://hcservices.ecourts.gov.in/hcservices/ 6. The claimants were examined to speak about the accident. The driver of the Transport Corporation Bus was also examined to prove the negligence on the part of the driver of the lorry. To prove the injuries and disabilities, doctors were also examined. On the basis of the oral and documentary evidence, the Tribunal found that the negligence was on the part of the lorry driver and therefore, fastened the statutory liability on the Insurance Company. 7. While deciding the compensation for the 1st respondent, the Tribunal had taken into consideration the fracture of both the bones in her right leg, fracture of right femur, dislocation of knee joint and the treatment taken at Sri Ramachandra Hospital at Porur, Chennai and the 80% of the disability assessed by the doctor. The Tribunal fixed the monthly income of the 1st respondent as Rs.3,000/- and applied the multiply theory and awarded compensation as follows: Disability (3,0000 x 80 x 18 x 12) .... 5,18,400.00 Medical Expenditure .... 1,52,900.00 Pain and suffering .... 1,50,000.00 Future medical expenditure .... 1,00,000.00 Extra nourishment .... 50,000,00 Transport .... 5,000.00 ---------------- 9,76,300.00 ---------------- 8. For the 2nd respondent, The Tribunal had taken into consideration of fracture of right leg tibia, right knee dislocation, and the treatment taken in Sri Ramachandra Hospital at Porur and the disability of 70% assessed by the doctor. The Tribunal fixed the monthly income as Rs.7,200/- and awarded compensation as follows: Disability (7,200 x 70 x 18 x 12).... 10,88,640.00 Medical Expenditure .... 1,04,100.00 Pain and suffering .... 1,50,000.00 Future medical expenditure .... 1,00,000.00 Extra nourishment .... 40,000,00 Transport .... 5,000.00 -------------------- 14,87,740.00 ------------------- 9. For the death of still born child, the Tribunal had awarded a lumpsum of Rs.5,00,000/-. 10. Aggrieved by the order passed by the Tribunal, the Insurance Company has come forward with these appeals, challenging the liability as well as the quantum. 11. The common points arise for determination in these appeals are 1. when there is a head on collision between two vehicles, is not the driver of both https://hcservices.ecourts.gov.in/hcservices/ the vehicles responsible to have contributed equally to the accident? 2. whether the determination of compensation by the Tribunal is just and reasonable? 12. Mr.S. Vadivel, learned counsel for the appellant submitted that even in the pleadings, the claimants would state that both the vehicles collided with each other. The learned counsel pointed out that the driver of the lorry died in the accident, but the Tribunal had observed that non-examination of the driver of the lorry is fatal. The learned counsel relied on a decision reported in 2006 3 CTC 122 (Bijoy Kumar Dugar vs Bidyadhar Dutta and others), in which the Apex Court has held as follows: "10. The MACT, in our view, has rightly observed that had it been the knocking on one side of the car, the negligence or rashness could have been wholly fastened or attributable to the driver of the bus, but when the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident.........." 13. Mr.S.S. Swaminathan. Learned counsel for the Transport Corporation would submit that the injured claimants,who travelled in the bus would categorically state that the driver of the lorry drove the vehicle in a rash and negligent manner at a high speed and hit against the bus. The learned counsel pointed out that a criminal case was registered against the driver of the lorry and the conductor of the bus was examined on the side of the Transport Corporation to speak about the accident. 14. In a normal rule, when there is a head on collision between two vehicles, drivers of both vehicles should be held responsible to have contributed equally to the accident. However, when there is cogent evidence to show that the entire negligence rested on the shoulder of the driver of the offending vehicle, the theory of contributory negligence cannot be applied. The claimants have stated in the claim petition that the driver of the lorry drove the vehicle in a high speed and hit against the bus. They have also deposed on the same line before the Tribunal. To corroborate the evidence of the claimants, the conductor of the bus also would state that the negligence was on the part of the driver of the lorry. Though the observation of the Tribunal that the non examination of the driver of the lorry is fatal, when he had died in the accident, we do not find any infirmity in fixing the negligence on the part of the driver of the lorry on evidence of the claimants and the conducter of the bus. 15. As far as the quantum is concerned, the learned counsel for the appellant would draw our attention to various heads under which the Tribunal had awarded very excessive amount. The learned counsel pointed out that the Tribunal had awarded Rs.1,50,000/- for pain and https://hcservices.ecourts.gov.in/hcservices/ sufferings to each of the petitioners and Rs.1,00,000/- for future medical expenses without any basis. The learned counsel also submitted that for a simple fracture of both the claimants, the Tribunal had accepted the disability assessed by the doctor in its entirety. The learned counsel also pointed out that for the death of the six month old still born child, the Tribunal had awarded an exorbitant amount of Rs.5,00,000/- 16. Mr.R. Muralidharan, learned counsel for claimants defended the various heads of compensation and justified the award of Rs.5,000,000/- by producing the following judgment: (a) In 2006 ACJ 2067 (Shraddha vs Badresh and others) the High Court of Madhya Pradesh has awarded a sum of Rs.2,50,000/- for the seven months old still born male baby. (b) In 2004 (2) T.A.C 574 (Kant.), the High Court of Karnataka has granted a sum of Rs.1,50,000/- for the death of two days old baby when the child sustained injuries in the womb. (c) In 2005(1 )CTC 38 (United Insurance Company Ltd vs V. Veluchamy), wherein the Division Bench of this Court has held that in case of compensation for disability arising in non-fatal accident, the court can apply multiplier method, (d) In 2010 3 LW 289 (Branch Office, New India Assurance Co Ltd, Villupuram vs Krishnaveni and another), a single judge of this Court has held compensation for injuries sustained application of multiplier was correct. 17. For the 1st respondent, the disability was assessed at 80%. From the evidence it is to be seen that she had sustained the fracture of both bones in her right leg. Though the doctor had stated that disability is at 80% we are of the considered view that the disability has to be assessed only at 50% and having regard to nature of injuries the multiplier method can be applied. For the 2nd respondent, though the doctor has assessed the disability at 70% we are of the considered view that for a fracture of right leg tibia, the disability has to be assessed only at 35%. 18. We are surprised to see that the Tribunal has granted a sum of Rs.1,50,000/-towards pain and suffering, Rs.1,00,000/- towards future medical expenditure and Rs.50,000/- for extra nourishment for each of the claimants. Award of Rs.5,00,000/- for the death of a six months old still born child is also on the higher side. Even in the decisions relied on by the counsel for the respondents, a maximum of Rs.2,50,000/- was only awarded for the death of seven months old still born child. https://hcservices.ecourts.gov.in/hcservices/ 19. It is well settled that the compensations are not windfall or bonanza though nothing can compensate the loss of a life or a limb. The compensation shall always be just and reasonable. Awarding an exorbitant and fancy amounts without any basis is also deprecated by this Court as well as by the Hon'ble Supreme Court. 20. We are of the considered view that the compensation granted by the Tribunal is exorbitant and needs interference. For the reasons stated above, the awards are re-calculated as follows: CMA 1937 /2007 (M.A.C.T.O.P.No.3 of 2002) Disability .... 3,24,000.00 (3,000 x 12 x 50% x 18) Medical Expenditure .... 1,52,900.00 Pain and suffering .... 50,000.00 Extra nourishment .... 10,000,00 Transport .... 5,000.00 -------------------- 5,41,900.00 ------------------- C.M.A.No.1938 of 2007 (M.A.C.T.O.P.No.4/2002) Disability .... 5,44,320.00 (7,200 x 12 x 35% x 18) Medical Expenditure .... 1,04,100.00 Pain and suffering .... 25,000.00 Extra nourishment .... 5,000,00 Transport .... 5,000.00 -------------------- 7,83,420.00 ------------------- CMA 1939 of 2007 (M.A.C.T.O.No.686 of 2004) For the death of six months old still born child, Rs.2,50,000/- is awarded as compensation. 21. The Tribunal had awarded interest at 7.5% which is maintained. In the result, all these appeals are partly allowed and the awards of compensation in all these appeals are reduced as below with interest at 7.5%: CMA 1937 /2007 .... Rs.5,41,900.00 (M.A.C.T.O.P.No.3 of 2002) C.M.A.No.1938 of 2007 .... Rs.7,83,420.00 (M.A.C.T.O.P.No.4/2002) CMA 1939 of 2007 .... Rs.2,50,000.00 (M.A.C.T.O.No.686 of 2004) 22. It was stated that the entire compensation amount as ordered by the Tribunal was already deposited by the Insurance Company and as per the order dated 18.6.2009, the claimants were permitted to withdraw certain amounts as under: https://hcservices.ecourts.gov.in/hcservices/ C.M.A.No.1937 of 2007 .... Rs.3,00,000.00 C.M.A.No.1938 of 2007 .... Rs.5,00,000.00 C.M.A.No.1939 of 2007 .... Rs.1,50,000.00 It was also stated that the claimants have withdrawn the said amounts. The claimants are permitted to withdraw the balance amount payable to them as per the apportionment ordered by this Court along with proportionate interest and the Insurance Company is entitled to withdraw the excess amount, if any. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. sr To Motor Accident Claims Tribunal, Cuddlalore (Additional Subordinate Judge). 3 ccs to M/s. S.S. Swaminathan, SR. 63351 to 63353 3 ccs to M/s. R. Muralidharan, Sr. 63242 to 63244 3 ccs to M/s. S. Vadivel, Sr. 63101 to 63103 in C.M.A.NO.1937 to 1939 of 2007 RB (CO) kk 21/10 https://hcservices.ecourts.gov.in/hcservices/