IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.04.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.1007 of 2000 and Cross Objection No.63 of 2000 C.M.A.No.1007 of 2000 Metropolitan Transport Corporation Ltd., Rep. by its Managing Director Ayanavaram, Chennai 600 023 (formerly known as Dr.Ambedkar Transport Corporation Ltd.) ... Appellant/Respondent (C.T. Accepted vide Order dated 16/12/99 in CMP No.21386/99) Vs. N.Shanmugam @ Sami Shanmugam ... Respondent/Petitioner Cross Objection No.63 of 2000 N.Shanmugam @ Sami Shanmugam ... Cross Objector Vs. Metropolitan Transport Corporation Ltd., Rep. by its Managing Director Ayanavaram, Chennai 600 023 (formerly known as Dr.Ambedkar Transport Corporation Ltd.) ... Respondent Civil Miscellaneous Appeal has been filed by the Metropolitan Transport Corporation Ltd under Section 173 of the Motor Vehicles Act, 1988 as against the Award and Decree of the Motor Accidents Claims Tribunal (V Judge, Small Causes Court) at Chennai dated 29.01.1999 made in MACTOP No.2527/97. Cross Objection has been filed by the claimant under Order XLI Rule 22 of CPC to set aside the decree and order dated 29th day of January 1999 made in MCOP No.2527 of 1997 on the file of the Motor Accident Claims Tribunal (Fifth Judge, Court of Small Causes), Madras and to allow the claim petition. https://hcservices.ecourts.gov.in/hcservices/ For Appellant (in CMA) : Mr.S.Ramachandran and Respondent in Cross Objection For Respondents ((in CMA): Mr.C.Ramesh Babu and Cross Objector in Cross Objection JUDGEMENT The respondent before the Tribunal, namely Metropolitan Transport Corporation Limited, is the appellant in C.M.A.No.1007/2000 and the cross-objector in cross objection petition No.63/2000. The respondent (cross objector) preferred a claim before the Motor Accident Claims Tribunal (the Court of 6th Judge, Small Causes Court, Chennai) in MACTOP No.2527/1997 for compensation for the injuries sustained by him in a road accident that took place on 20.06.1994 and the consequences of the said injuries. In all a sum of Rs.1,50,000/- was claimed as compensation from the Transport Corporation. 2. Accordingly, the averments found in the claim application submitted before the Tribunal, the respondent herein (cross objector)/claimant was proceeded in his TVS-50 motor vehicle bearing Registration No.TN-09 Z-0633 from Poonamallee to Chennai on 20.06.1994 at about 5.30 p.m. While, he was thus proceeding near Kumanan chavadi, the passenger bus belonging to the appellant/respondent transport corporation bearing Registration No.TN-01 N-2065 and Route No.101J that came in the opposite direction was driven by its driver in a rash and negligent manner, as a result of which the said bus collided with the TVS-50 in which the petitioner was proceeding. In the said impact, the respondent (cross objector)/Petitioner sustained grievous injuries including fractures - fracture on right fumour, fracture at the left wrist and fracture on the right foot. For the said injuries, he was given treatment at Ramachandra Medical College Hospital. Contending further that the accident was the direct result of the rash and negligent driving of the bus belonging to the appellant transport corporation, the respondent (cross objector)/petitioner prayed for an award directing payment of Rs.1,50,000/- with interest from the date of petition as compensation for the injuries sustained by him. 3. The claim was resisted by the appellant transport corporation/respondent denying the petition allegations regarding the nature in which the accident took place and contending that the driver of the bus was not at all responsible for the accident and that it was the respondent herein/petitioner who drove the two wheeler rashly and negligently and invited the accident in which he sustained injuries. It was also contended therein in the counter https://hcservices.ecourts.gov.in/hcservices/ statement that the amount claimed as compensation was highly excessive, arbitrary and exorbitant. With such a plea, the appellant/respondent had prayed for dismissal of the claim petition filed under Section 166 of the Motor Vehicles Act. 4. In the trial before the Tribunal, the respondent herein/petitioner besides examining himself as PW1, examined one Dr.Sai Chandran - PW2 and marked Ex.A1 to A12. On the side of the appellant herein/respondent (transport corporation), one Ganesan as examined as sole witness (RW1) and no document was marked. At the conclusion of the trial, the Tribunal considered the evidence in the light of the arguments advanced on either side, came to the conclusion that the accident occurred solely due to the fault on the part of the driver of the bus belonging to the appellant/respondent transport corporation and awarded a sum of Rs.1,17,000/- as compensation with the following split up particulars:- Compensation for permanent disability : Rs. 50,000.00 Loss of earning for 6 months from the date of accident @ Rs.2,500/- per month : Rs. 15,000.00 Transport Expenses : Rs. 1,000.00 Medical Expenses (past and future) : Rs. 30,000.00 Loss of future earning capacity : Rs. 10,000.00 Extra nourishment : Rs. 1,000.00 Pain and suffering : Rs. 10,000.00 ---------------- Total Rs.1,17,000.00 ---------------- The above said amount was directed to be paid along with an interest at the rate of 12% per annum from the date of petition till realisation. 5. Claiming that the said amount awarded as compensation is highly excessive, the appellant/ respondent transport corporation has come forward with C.M.A.No.1007/2000. Contending that the amount awarded as compensation is insufficient, the respondent (cross objector)/claimant has come forward with the cross objection No.63/2000 as against the disallowed portion of the claim. 6. This court heard the arguments advanced by Mr.S.Ramachandran, learned counsel appearing on behalf of the appellant / respondent (transport corporation) and also the arguments advanced by Mr.C.Ramesh Babu, learned counsel appearing on behalf of the respondent (cross objector)/claimant. The https://hcservices.ecourts.gov.in/hcservices/ materials available on record were also perused. 7. The owner of the offending vehicle, namely the Transport Corporation, is the appellant in Civil Miscellaneous Appeal No.1007/2000. The respondent in the appeal was the claimant before the Tribunal. Besides resisting the appeal preferred by the transport corporation, the respondent/claimant has also filed the cross-objection contending that the amount awarded by the Tribunal as compensation is inadequate. 8. In order to prove the claimant's case that accident took place solely due to the rash driving of the bus belonging to the transport corporation, besides examining himself as PW1, the respondent/claimant has produced certified copies of the FIR, Charge-sheet, Accident Register and the judgment of the Criminal Court in STC No.3131/1996 and marked them as Ex.A7 to A10 respectively. From Ex.P10, it is found that due to the inaction on the part of the appellants, the criminal proceedings against the driver of the offending vehicle, namely the bus belonging to the transport corporation, was terminated by discharging him under Section 258 of Code of Criminal Procedure. However, there is a clear evidence of PW1 to the effect that it was the driver of the bus who acted with rashness and negligence and caused the accident. Ex.A7 and A8, the certified copies of the First Information Report and the Charge-sheet lend corroboration to the parole evidence of PW1. On the other hand, the only evidence adduced on the side of the appellant (transport corporation) / respondent is the testimony of RW1, who was the driver in charge of the alleged offending vehicle. His evidence seems to be highly impropable besides being contra to what is found in Ex.A7 and Ex.A8. RW1 would state that while the bus was stopped at the bus stop and the same was stationary, the petitioner who came in the TVS-50 vehicle rode the same at a high speed in a rash and negligent manner, came into contact with the bus and thus invited the accident. The Tribunal, after analysing the evidence adduced on either side, has come to the correct conclusion that the respondent herein/claimant had clearly established that the accident was the result of the rash and negligent driving of the bus belonging to the transport corporation by its driver, namely RW1. Even though a ground has been incorporated in the Memorandum of Grounds of Appeal challenging the said finding recorded by the said Tribunal, the learned counsel for the appellant / respondent (transport corporation) has not adverted to the said ground in his arguments and was content with the challenge made to the award on the question of quantum alone. Perhaps after going through the evidence, the learned counsel for the appellant/respondent (transport corporation) would have decided not to challenge the finding of the Tribunal regarding the question of negligence. In addition to the failure on the part of the learned counsel for the appellant/respondent (transport corporation) to advance arguments challenging the finding of the Tribunal that the accident occurred solely due to rash and negligent driving of the bus by its driver, this court also, on an independent re-appreciation of evidence, both oral and documentary, comes to the conclusion that the https://hcservices.ecourts.gov.in/hcservices/ respondent/claimant clearly proved that the accident was due to rash and negligent driving of the bus belonging to the transport corporation. There is no scope whatsoever to interfere with the said finding of the Tribunal regarding the question of negligence and hence the same is confirmed and recorded so. 9. Coming to the question of quantum, it is the argument advanced by the learned counsel for appellant/respondent (transport corporation) that the Tribunal ought not to have accepted the assessment of disability made by PW2; that the Tribunal committed an error in awarding compensation for loss of future earning capacity after awarding a lumpsum compensation for permanent disability suffered by the respondent herein/claimant; that a sum of Rs.15,000/- awarded as compensation for loss of earning for 6 months from the date of accident was also on a higher side and that the total amount of compensation awarded by the Tribunal should be drastically reduced since according to him, the said amount was highly excessive and exorbitant. 10. Per contra, the learned counsel for the respondent (cross objector)/claimant would contend that there is no bar for awarding separate amount of compensation for the loss of future earning capacity and for loss of amenities caused due to the permanent disability suffered by the injured; that the amounts awarded by the Tribunal under various heads are less than the amount which could have been awarded as reasonable compensation and that the total amount of Rs.1,17,000/- awarded as compensation should be enhanced. The learned counsel for the respondent (cross objector)/claimant as an alternate argument submitted that if at all a sum of Rs.10,000/- awarded as compensation for loss of future earning capacity should be disallowed, then the amounts awarded as lumpsum compensation for permanent disability, medical expenses, pain and suffering should be considerably increased and that if such adjustments are made, naturally the claim for enhancement of compensation made in the cross objection should be allowed. This court gave its anxious consideration to the above said submissions made by the learned counsel on either side. 11. The Tribunal seems to have awarded a sum of Rs.50,000/- as lumpsum compensation for permanent disability. At the same time a sum of Rs.10,000/- has also been awarded by Tribunal as loss of future earning capacity. The said procedure adopted by the Tribunal has been attacked on the side of the appellant as not in accordance with the full bench judgment 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. In the said case a full bench of this court, after referring to various decisions laid down as follows: "In order to avoid any future confusion and to bring more clarity and transparency in the award of damages, it is necessary that the Tribunal, while awarding damages, should itemise the award under each of the head namely, pecuniary losses and non-pecuniary losses. In the non- https://hcservices.ecourts.gov.in/hcservices/ pecuniary losses the Tribunal shall consider: (a) pain and suffering, (b) loss of amenity, (c) loss of expectation of life, hardship, mental stress, etc. (d) loss of prospect of marriage and under the head pecuniary losses, the Tribunal shall consider loss of earning capacity and loss of future earnings as one component apart from medical and other expenses and loss of earning, if any from the date of accident till the date of trial. When loss of earning capacity is compensated as also the non-pecuniary losses under (a) to (d), permanent disability need not be separately itemised. There reference is answered accordingly. C.M.A.No.231/94 be placed before the single Judge for final disposal in the light of our answer to the reference." 12. From the said observations made by the full bench of this court, it is quite obvious that in case of injuries resulting in permanent disabilities, two methods can be adopted in assessing compensation. One of the methods is to award a lumpsum compensation for the disability suffered by injuries in which case there won't be any separate award of compensation for the loss of future earning capacity. When lumpsum is awarded as compensation for the permanent disability suffered by the injured, the same will take into its fold loss of amenities occasioned by the permanent disability and loss of future earning capacity. In such cases the loss of future earning capacity cannot be separately itemised. The second method is to calculate the probable future loss of earning and award the same as compensation. If the said procedure is adopted then without awarding any amount for the permanent disability as such, the loss of amenities occasioned to the injured because of the permanent disability can be separately itemised. 13. In the instant case, the Doctor who has been examined as PW2, has certified the extent of disability suffered by the respondent (cross objector)/claimant to be 55%. No serious challenge is made to the said assessment made by the Medical Practitioner. Fracture on the right thigh, fracture on the left wrist and fracture on the right foot (3 number of toes) had also been sustained by him as evidenced by the testimony of PW2 as well as Ex.A3, A9, A11 and A12. The Tribunal, which chose to award a lumpsum amount as compensation for the permanent disability has not expressed any clear-cut finding regarding the percentage of disability suffered by the injured. It was content with simply observing that the Medical Practitioner assessed the disability at 55%. However, the Tribunal awarded a sum of Rs.50,000/- as compensation. This court is at a loss to understand what was the basis on which the Tribunal arrived at the said figure. 14. Hitherto courts were awarding lumpsum compensation for permanent disability at the rate of Rs.1,000/- per one percentage of disability. But awarding lumpsum compensation at uniform rate irrespective of the age of the injured will amount to treating unequals equally. Moreover, adopting such a rate unanimously at https://hcservices.ecourts.gov.in/hcservices/ all times is also not desirable. The same may be reasonable if it is fixed taking into account the prevailing consumer price index, standard of living and the purchasing capacity of the people. If things change, naturally the rate should also change. Taking into consideration the present per capita income, purchase powers of the individuals and other factors, this court is of the view that lumpsum amount of compensation to be awarded in case of permanent disability may range from Rs.1,000/- to Rs.2,000/- per one percentage disability. The maximum rate shall be applicable in case of the young people. The minimum rate shall be application in case of elders. The rate applicable to others will be in between the maximum and minimum depending upon the age of the person concerned. 15. In this case, admittedly the respondent (cross objector) / claimant has not produced any clinching document like birth certificate or School certificate to prove his age as on the date of accident. However, he has relied on the Accident Register and other documents relating to the treatment given to him in the Hospital wherein his age has been noted as 45 years. In the absence of any contra evidence and in the absence of any serious challenge to the age mentioned therein, this Court has to adopt the said age as the age of the respondent (cross objector) / claimant. Hence it is held that the respondent (cross objector) / claimant had completed 45 years of age as on the date of 16.12.1994. Taking into the account the age of the respondent (cross objector) / claimant, this court is of the view that a lumpsum compensation for disability can be assessed at the rate of Rs.1,200/- per one percentage of disability. So the compensation for the permanent disability of 55% is to be awarded at Rs.66,000/-. It is made clear that the amount of Rs.10,000/- awarded by the Tribunal towards future loss of earning, it is disallowed since lumpsum compensation is awarded for permanent disability. A sum of Rs.30,000/- has been awarded by the Tribunal towards medical expenses as against the production of bills to the tune of Rs.29,034/- cannot be held to be either too low or excessive. Hence the said amount has got to be confirmed. A sum of Rs.1,000/- awarded by the Tribunal for transport expenses needs upward revision because, it has been clearly established that the petitioner was taking treatment for about 6 months in three different hospitals. So, the said amount is doubled and a sum of Rs.2,000/- is awarded as compensation for transport expenses. The Tribunal has awarded Rs.1,000/- towards extra nourishment. Considering the nature of injury and the period of treatment, this Court feels that the same deserves to be enhanced to Rs.2,000/-. For pain and suffering only a sum of Rs.10,000/- has been awarded by the Tribunal. This amount has got to be enhanced to Rs.15,000/-. In all the respondent (cross objector) / claimant shall be entitled to as follows: https://hcservices.ecourts.gov.in/hcservices/ Compensation for permanent disabilities : Rs. 66,000.00 Loss of earning for 6 months from the date of accident @ Rs.2,500/- per month : Rs. 15,000.00 Transport Expenses : Rs. 2,000.00 Medical Expenses (past and future) : Rs. 30,000.00 Extra nourishment : Rs. 2,000.00 Pain and suffering : Rs. 15,000.00 ---------------- Total Rs. 1,30,000.00 ---------------- 16. In the result both the Civil Miscellaneous Appeal and the Cross Objection are allowed in part. The compensation awarded by the Tribunal is enhanced to Rs.1,30,000/- from Rs.1,17,000/-. However, the rate of interest is reduced from 12% to 9% per annum, which shall be calculated from the date of petition till the date of realisation. The parties are directed to bear their respective costs in this appeal. Sd/- Assistant Registrar /true copy/ Sub Assistant Registrar asr To 1.The Motor Accidents Claims Tribunal (V Judge, Small Causes Court). 2.The Section Officer, V R Section, High Court, Madras. + 1 cc to Mr.S.Ramachandran Advocate SR No.25807 + 1 cc to Mr.C.Ramesh Babu Advocate SR No.25485 C.M.A.No.1007/2000 and Cross Objection No.63/2000 BK(CO) JJM(26.05.08) https://hcservices.ecourts.gov.in/hcservices/