IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.06.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.414 of 2002 Prahalath Jasmathiya ... Appellant/Petitioner Vs. 1. V.Sankaran 2. United India Insurance Co. Ltd., No.38, Anna Salai Chennai - 2 ... Respondents/Respondents This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 as against the award of the Motor Accidents Claims Tribunal (II Judge, Small Causes Court), Chennai dated 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 T This civil miscellaneous appeal is directed against the award of the 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 as the disallowed portion of the claim is concerned. 2. The appellant herein had filed the above said MCOP claiming a sum of Rs.6,00,000/- as compensation from the respondents 1 and 2 herein as the owner and insurer of the offending vehicle, namely a trailer lorry bearing Regn.No.TN-09 C-9745, for the injuries sustained by him in an accident that took place on 29.10.1998 at about 2.15 p.m in Nerkundram on the Poonamallee High Road. 3. According to the petition averments, at the time of accident the petitioner was proceeding from Thiruvallur to Chennai in his motorcycle bearing Regn.No.TN-09 E-5838. While he was thus proceeding towards Chennai, the above said trailer lorry bearing Regn.No.TN-09 C- 9745 which came from behind in the same direction, dashed against the petitioner as the said lorry was driven by its driver in a rash and negligent manner. The petitioner who sustained grievous injuries was given first aid treatment in the Government Kilpauk Medical College Hospital, 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 to 02.11.1998. With the further contention that the petitioner was aged about 46 years; that he was employed as a Manager Administration in a private concern called "Nubal (India) Limited" and a part time accountant in "Ravi Fashion Paradise (P) Ltd"; that as such he was having an income of Rs.15,000/- per month as on the date of accident and that despite proper treatment he suffered permanent disability affecting his earning capacity, the petitioner had claimed a sum of Rs.6,00,000/- as compensation from the respondents 1 and 2 herein. 4. The owner of the alleged offending vehicle, namely the first respondent herein, did not contest the MCOP and chose to remain ex- parte. The second respondent herein alone contested the case by filing a counter affidavit denying petition averments and contending that the second respondent was not liable to pay compensation since the driver of the alleged offending vehicle did not possess a valid driving license. The second respondent had also denied the petition averments regarding the alleged injuries, nature of injuries and the consequential disability suffered by the petitioner. Contending further that the amount claimed by the appellant/petitioner was highly excessive and exorbitant and that the second respondent had prayed that since the accident did not occur due to the rash and negligent act on the part of the driver of the lorry belonging to the first respondent, the second respondent had prayed for the dismissal of the MCOP with cost. 5. Based on the above said pleadings, the Tribunal framed necessary issues regarding the question of negligence, the appellant's/petitioner's entitlement to claim compensation and quantum and tried the case. In the trial, five witnesses were examined on the side of the appellant/petitioner as P.W.1 to P.W.5 and fifteen documents were marked as Ex.P1 to Ex.P15 on the side of the appellant herein/claimant, whereas no witness was examined and no document was marked on the side of the respondents. 6. At the conclusion of trial, after hearing the arguments advanced on either side, the Tribunal considered the evidence in the light of the arguments advanced by counsel appearing on either side and upon such a consideration, it answered the issue regarding negligence in favour of the appellant/claimant and held that the rash and negligent act on the part of the driver of the lorry was the cause for the accident. The Tribunal assessed the total amount of compensation to which the petitioner was found entitled at Rs.2,18,000/-. The split up particulars are as under: Loss of income from the date of accident, namely 29.10.1998 for one month from 29.10.1998 to 29.11.1998 : Rs. 15,000.00 Transport expenses : Rs. 3,000.00 Expenses for extra nourishment : Rs. 5,000.00 https://hcservices.ecourts.gov.in/hcservices/ Past and future medical expenses : Rs. 40,000.00 Future Transport expenses : Rs. 25,000.00 For mental agony : Rs. 10,000.00 For pain and sufferings : Rs. 25,000.00 For permanent disability : Rs. 45,000.00 Loss of future earning capacity : Rs. 50,000.00 ----------------- TOTAL Rs.2,18,000.00 ----------------- First and second respondents in their capacities as the owner and insurer of the offending vehicle, namely lorry bearing Regn. No.TN-09 C-9745 were jointly and severally held liable to pay the said amount together with an interest at the rate of 9% per annum from the date of petition till realisation along with proportionate cost. As against the said award dated 25.09.2001 passed by the Motor Accidents Claims Tribunal, none of the respondents has chosen to file any appeal or cross-objection. The appellant/petitioner alone has preferred the present civil miscellaneous appeal contending that the amount awarded as compensation is highly inadequate and that the same should be enhanced. 7. The point that arises for consideration in this civil miscellaneous appeal is as follows:- " Whether the compensation awarded by the Tribunal is inadequate requiring upward revision in this civil miscellaneous appeal?" 8. This court heard the submissions made by Mr.K.Bakthavatchalu, learned counsel appearing on behalf of the appellant and Ms.Mythili Suresh, learned counsel appearing on behalf of the second respondent and also perused the materials available on record. 9. It is a fact not in dispute that an accident took place near Nerkundram on the Poonamallee High Road at about 2.15 p.m on 29.10.1998 in which the motorcycle bearing Regn. No.TN-09 E-5838 and the lorry bearing Regn. No.TN-09 C-9745 were involved and that the appellant/petitioner who was riding the above said motorcycle at the time of accident sustained injuries; that pursuant to the said accident, a case was registered against the driver of the above said lorry on the file of E.4 Maduravoyal Police Station in Crime No.1717/1998. The averment made in the petition that while the petitioner was proceeding in the above said motorcycle towards Chennai, the said lorry which came in the very same direction hit him from behind has also been admitted. Though the second respondent had denied the petition averments that the accident was the result of rash and 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 the first respondent herein and he chose to remain ex-parte. At the conclusion of trial, the learned Motor Accidents Claims Tribunal chose to give a finding to the effect that the accident took place due to the rash and negligent driving of the lorry belonging to the first respondent by its driver. As no appeal or cross-objection has been filed either by the first respondent or by the second respondent, the said finding has become final. 10. The fact that the above said offending vehicle, namely the lorry bearing Regn. No.TN-09 C-9745 belonging to the first respondent stood insured with the second respondent on the date of accident has not been denied and in fact the same has been admitted. On the other hand, the second respondent/insurer had taken a plea that the driver of the lorry did not possess a valid driving license and hence the second respondent/insurer was not liable to pay compensation. Whenever an insurer takes a plea that the liability of insurer is lost because of violation of a policy condition like absence of valid driving license to the driver of the vehicle, the insurer should adduce evidence and prove that the vehicle was driven at the time of accident by a person not holding license or that any other violation of the policy had occurred. In this case, the second respondent has not chose to adduce any evidence to prove the absence of driving license to the person who drove the offending vehicle, namely lorry belonging to the first respondent or that any policy or permit conditions was violated. In view of the same, the Tribunal has rightly held the first and second respondents, in their capacities as owner and insurer of the offending vehicle, jointly and severally liable to pay compensation to the appellant/petitioner. The said finding of the Tribunal has also become final, because the same has not 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/- as compensation to the appellant/ petitioner. The respondents have not chosen to challenge the said award on the ground that the said amount is excessive. On the other hand, the appellant/petitioner has approached this court by way of the present civil miscellaneous appeal contending that the amount awarded by the Tribunal is inadequate. The appellant had claimed Rs.15,000/- for the loss of earning for a period of one month from the date of accident. The Tribunal has awarded the said as claimed. So far as the award of a sum of Rs.5,000/- towards expenses for extra nourishment, a sum of Rs.25,000/- towards expenses for future transportation, a sum of Rs.25,000/- for pain and suffering and a sum of Rs.50,000/- for loss of future earning capacity is concerned, the learned counsel for the appellant has not advanced any argument to the effect that the said amounts were either unreasonable or inadequate. 12. On the other hand, the learned counsel for the appellant simply pointed out the defect found in the judgment of the Motor Accidents Claims Tribunal regarding the amount covered by the medical bills and argued that the said mistake had resulted in the award of a lesser 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 said mistake is corrected and the amount covered by the medical bills is awarded as compensation towards medical expenses, the appellant would be satisfied. The appellant/petitioner had claimed a sum of Rs.1,50,000/- as compensation for medical expenses. He has produced Ex.P3 and P4 to evidence the expenditure incurred as medical expenses. The amount covered by Ex.P4 has been rightly quoted by the Tribunal as Rs.26,430/-. However, while quoting the amount covered by Ex.P3, the Tribunal has noted as Rs.9,500/- instead of Rs.95,000/-. Therefore, a deficiency of Rs.84,500/- has arisen in this regard. The total amount of 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 medical expenses. Therefore, the said amount has got to be enhanced to Rs.1,22,000/-. 13. At the same time, this court is able to find some duplication in the award of compensation on various heads. The Tribunal seems to have awarded a sum of Rs.10,000/- for mental agony and a further sum of Rs.25,000/- towards pain and suffering. This anomaly has got to be rectified by disallowing the above said sum of Rs.10,000/- awarded towards mental agony over and above Rs.25,000/- awarded towards pain and suffering which includes mental agony. Of course, it is true that the appellant/petitioner has produced documents to show that he had suffered permanent disability to the tune of 45%. Accepting the assessment of permanent disability made by the medical practitioner who was examined as P.W.5, the Tribunal has chosen to adopt the method of awarding lumpsum compensation, probably opining that the said disability would have no bearing on the future earning capacity, as the petitioner was working as a Manager in a private concern and taking into account the fact that for undertaking future journeys from home to place of work and from the place of work to the residence, a sizable sum, namely a sum of Rs.25,000/- has been awarded as compensation. 14. The appellant/petitioner was admittedly aged more than 46 years as on the date of accident and hence the Tribunal chose to award a sum of Rs.45,000/- as lumpsum payment for the permanent disability suffered by him. When a lumpsum payment is awarded for permanent disability which shall take into its fold loss of amenity caused by the disability and future earning capacity, then as held by the division 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 loss of amenities cannot be separately itemized. In this case, besides awarding a sum of Rs.45,000/- as lumpsum payment for permanent disability, the Tribunal has also chosen to award a sum of Rs.50,000/- for loss of future earning capacity and other consequences of permanent disability. The award of the said amount is not permissible as per the above said judgment of the division bench of this court. Hence the same has got to be disallowed. While awarding lumpsum amount as compensation for permanent disability, the age of the claimant shall play a vital role as per judgment of this court made in R.Senthilkumar Vs. P.Palaniswamy and others reported in 2007(4) CTC 642. 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 of disability the maximum rate shall be applicable to the young persons and the minimum rate shall be applicable to the aged. In this case, the appellant/petitioner was aged about 46 years as on the date of accident. Therefore applying the above said formula, the lumpsum amount of compensation for permanent disability is to be calculated at the rate of Rs.1,400/- per one percentage of disability. If it is thus calculated, the amount of compensation for the disability shall come to Rs.63,000/-. As against a sum of Rs.3,000/- awarded by the Tribunal towards transport expenses for the expenses of travel to and from the hospital, awarding a sum of Rs.5,000/- shall be reasonable. 15. For all the reasons stated above, this court hereby comes to the conclusion that the appellant/petitioner shall be entitled to a total sum of Rs.2,60,000/- as compensation as against a sum of Rs.2,18,000/- awarded by the Tribunal. At the cost of repetition, split up particulars are furnished hereunder. Loss of earning during treatment for one month : Rs. 15,000.00 Transport expenses for undertaking journeys to and from the hospital : Rs. 5,000.00 Extra Nourishment : Rs. 5,000.00 Medical Expenses : Rs.1,22,000.00 Future expenses for undertaking journeys : Rs. 25,000.00 Pain and suffering : Rs. 25,000.00 Permanent Disability : Rs. 63,000.00 ---------------- TOTAL : Rs.2,60,000.00 ---------------- The interest awarded by the Tribunal seems to be quite reasonable and hence no change in the same is warranted. 16. In the result, this civil miscellaneous appeal is allowed in part and the award of the Tribunal is modified by enhancing the compensation 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/ asr To Motor Accidents Claims Tribunal (II Judge, Small Causes Court), Chennai + 1 cc to M/s.Sarvabhauman Associates,Advocate,SR.31806 Copy to: The Section Officer, V.R.Section, High Court, Madras. C.M.A.No.414/2002 KA(CO) EM/19.12.08 https://hcservices.ecourts.gov.in/hcservices/