IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2755 of 2007 Branch Manager United India Insurance Co., Ltd., Tindivanam .. Appellant Vs 1.A.Perumal 2.R.Vivekanandhan 3.Managing Director Tamil Nadu State Transport Co., Ltd., Villupuram 4.K.Baskaradoss .. Respondents (2nd & 4th respondents Set exparte before the Claims Tribunal) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 17.10.2005, made in M.C.O.P.No.578 of 2004, on the file of the Motor Accident Claims Tribunal, Fast Track Court No.I, Tindivanam (Before Sub Court O.P.No.206 of 2003, Tindivanam). For appellant : Mr.M.J.Vijayaraghavan For respondents : Mr.C.Prakasam, for R1 No Appearance for R3 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 17.10.2005, made in M.C.O.P.No.578 of 2004, on the file of the Motor Accident Claims Tribunal, Fast Track Court No.I, Tindivanam (Before Sub Court O.P.No.206 of 2003, Tindivanam), awarding a compensation of Rs.2,68,720/- with 7.5% interest per annum, from the date of filing petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/second respondent, the Branch Manager, United India Insurance Co., Ltd., Tindivanam, has filed the above appeal praying to set aside the award https://hcservices.ecourts.gov.in/hcservices/ and decree passed by the Tribunal. 3.The short facts of the case are as follows: On 21.03.2003, at about 5.45 p.m. when the petitioner was travelling in the third respondent's vehicle bearing registration No.TN 32 1607 from Villupuram to Thirubuvanai and sitting in the right window seat and when it was crossing Sahadevanpettai, the driver of the first respondent's vehicle bearing registration No.TN21 X1332, drove his vehicle in a rash and negligent manner and dashed against the third respondent's vehicle. In the impact, the petitioner sustained injuries all over his body. It was due to the fault of the first respondent's driver that the accident occurred. Because of the injuries sustained, the petitioner is not able to carry on doing agricultural work as he was doing earlier. The petitioner was a hale and healthy, before the accident took place. He was the sole breadwinner of his family. As such, the petitioner has claimed a compensation of Rs.5,00,000/- under Section 166(1) of the Motor Vehicles Act, from the first respondent, the owner of the said vehicle, the second respondent, the insurer of the said vehicle, the third respondent, the Tamil Nadu State Transport Corporation and the fourth respondent, who has been added as a necessary party, as the policy of the insurance taken for the said vehicle is still in his name and has not been transferred in the name of the first respondent. 4.A Criminal case, regarding the above accident has been registered by the Valavanur Police as Crime No.193/2003, under Sections 279 and 338 of I.P.C. 5.The second respondent, in his Counter has resisted the claim stating that the age, occupation and income of the petitioner, nature of injuries, disability alleged to have been sustained by the petitioner are not admitted. Further, it has been stated that the accident has not happened due to rash driving by the first respondent's driver as alleged in the petition, that the first respondent's driver was driving the vehicle in a careful manner and hence the second respondent is not liable to pay compensation to the petitioner. Further, it was denied that the first respondent's vehicle was insured with the second respondent at the time of the accident. The claim is excessive and further no documentary evidence has been filed by the petitioner in support of his claim. As such, the second respondent has prayed for dismissal of the petition with costs. 6.The third respondent, in his Counter has resisted the claim stating that on 21.03.2003, the driver of the third respondent was driving the bus bearing registration No.TN 32 N1607, route No.248F, from Villupuram to Pondicherry and at 5.45 a.m. when the bus was https://hcservices.ecourts.gov.in/hcservices/ nearing Nallarasanpettai, the driver of the bus saw the lorry bearing registration No.TN21 X1332, belonging to the first respondent and driven by its driver at a high speed and in a rash and negligent way, coming in the opposite direction. On seeing this, the driver of the third respondent bus had stopped the bus by applying brakes. But, in spite of this, the driver of the lorry, in order to overtake a share auto, moving ahead of it, overtook the share auto without adhering to traffic rules and dashed the lorry on the lower right side of the bus. As such, the driver of the third respondent cannot be held responsible for the injuries sustained by the petitioner in the accident and as such, the third respondent cannot be held liable to pay compensation. The accident happened only due to the rash and negligent driving by the driver of the first respondent lorry. Further, a criminal case has been filed by Valavanur Police, as Crime No.193/2003, only against the driver of the first respondent lorry under Sections 279 and 338 of I.P.C. As the first respondent's vehicle had been insured with the second respondent at the time of accident, only by the first and second respondents are to be held liable to pay compensation to the petitioner. It has been stated that the third respondent is not a necessary party in this case. 7.It has been stated that the petitioner has to prove that he had travelled as a passenger in the bus, at the time of the accident; that he should prove his age, income and occupation; that the claim is excessive and therefore should be dismissed. 8.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Which of the drivers of the respondents was rash and negligent in driving his vehicle and caused the accident? (ii) What is the quantum of compensation, which the petitioner is entitled to get? 9.On the petitioner's side, three witnesses were examined as PW1 to PW3 and 15 documents were marked as Exs.P1 to P15. On the respondents' side, no witnesses were examined and no documents were marked. 10.The petitioner was examined as PW1 before the Tribunal. The PW1, in his evidence has adduced that on 21.03.2003, at about 5.45 p.m. when he and his son travelling in the third respondent's bus bearing registration No.TN 32 N1607 and were sitting in the last row of the seat at the rear of the bus and as the bus was advancing on the Villupuram to Tirupuvanam route, and when it was nearing Sahadevanpettai, the lorry bearing registration No.TN21 X1332 had dashed against the side of the said bus, where he and his son were https://hcservices.ecourts.gov.in/hcservices/ seated, as a result of which, his right arm bone had been fractured and partly severed. The PW1 has further stated in his evidence, that only the rash driving by the driver of the lorry had caused the accident and that the third respondent has been included in the case only for proper adjudication of the case. He had marked Ex.P1-FIR and Ex.P3-Motor Vehicle Inspector's Report. 11.From the scrutiny of Ex.P1, it is seen that the complaint has been given only as against the driver of the lorry bearing registration No.TN21 X1332. It has further been stated in this complaint that the accident was caused only due to the rash and negligent driving of the lorry and the high speed at which it was driven by the driver of the lorry. Though, the respondents have marked Ex.P3, in support of their case, no oral evidence of witnesses has been let in to prove their contention that the lorry driver is not at fault. It has only been stated in that report, that the accident had not happened due to any mechanical defect in the said lorry. So, the Tribunal, based on evidence adduced by the PW1, examination of Exs.P3 and P1, held that the accident was caused only due to the rash and negligent driving of the driver of the first respondent's lorry. 12.The PW1, in his evidence has adduced that due to the accident, the bone in his right arm had been fractured and partly severed and that he had taken treatment at Villupuram Government Hospital initially and that he took further special treatment at MIOT Hospital for 26 days. Subsequent to this, he had further received treatment for 5 to 6 days at MIOT Hospital, wherein surgery was done on his arm. The bone in his arm joint was removed and a bone was removed from his thigh and replaced in the portion of his arm where his bone had been removed. Further, the PW1, in his evidence has stated that he had suffered fractures of bone in his upper arm and lower arm joint and consequential loss of bone in these portions. He had further stated that after surgery, as there was pass formation in the area where operation was done, a special skin had been imported from a foreign country and the skin was surgically grafted on to his bones in his right arm; that he experiences pain on moving his right arm and that he is able to do work and travel in the bus only with the support of others. He has further stated that he has to use his left arm and as a consequent of the injury, he has sustained loss of income. He has stated that he had been hospitalised for six months and has spent a sum of Rs.50,000/- for nutritious food alone. He has further stated that he is still undergoing treatment and has spent over Rs.1,00,000/- for medical treatment. In support of his claim he has marked Ex.P2-copy of Accident Register; Ex.P4-Discharge Summary issued by MIOT Hospital; Ex.P5-Medical Treatment Records; Ex.P6- Ambulance Bills; Ex.P7-Receipts of payments made at MIOT Hospital; Ex.P8-Assorted bills of expenses incurred during stay at MIOT Hospital; Ex.P9-Medical Treatment Records relating to treatment at https://hcservices.ecourts.gov.in/hcservices/ Jipmer Hospital; Ex.P10-Bills issued at MIOT Hospital during the period of his first treatment there; Ex.P11-Bills issued at MIOT Hospital for treatment received from 01.05.2003 to 05.05.2003; Ex.P12-Medical Treatment records issued by Indian Hospital, Pondicherry. Further, the petitioner has stated that he is the owner of five acres of land and in support of this has marked Ex.P13- Partition Deed Certificate. 13.On examination of Ex.P4-Discharge Summary Card issued by MIOT Hospital, it is evident that the petitioner was admitted as in- patient, on 22.03.2003 and discharged on 16.04.2003. It has been mentioned here that he has been admitted for treatment of injury sustained in his right arm while travelling in a bus. On scrutiny of Ex.P5, it is evident that the petitioner had been an in-patient at MIOT Hospital from 01.05.2005 upto 05.05.2005 and received skin graft treatment. On inspection of Ex.P6-Ambulance Bills, it is evident that the petitioner had spent a sum of Rs.2,000/- as ambulance transportation charges for going from Nallam Clinic, Pondicherry to Vijaya Hospital, Pondicherry. On examination of Ex.P9, the Case Sheet issued by Jipmer Hospital, Pondicherry, it is seen that the petitioner had received treatment as an outpatient for treatment of his fractured leg. 14.The Doctor, Ponnappan, who had certified the disability suffered by the petitioner, was examined as PW2. The PW2 in his evidence has adduced that on 26.09.2005, the petitioner had come to meet him to get an assessment of the disability suffered by him in the said accident. The Doctor has stated that he is an Assistant Professor in the Adi Parasakthi Hospital, Melmaravathur and that after examination of the petitioner, he had advised the petitioner to take X'rays of his right arm and has further stated that he had inspected the medical records issued by Villupuram Hospital, Jipmer Hospital and the medical records and X'rays given at MIOT Hospital. He has further stated that the movements of the right shoulder has been reduced by 50% and that the petitioner experiences pain on moving his right shoulder; that the bone in the right fore arm joint is missing and that the wrist movements of the petitioner is reduced by 25% and the petitioner has lost the ability to grasp or do intricate jobs and that on taking X'rays, he had noticed that two of his bones in the upper and lower fore arm joint is missing and the remaining two bones are seen attached to one another, and as a result he is not able to grasp or touch things, which are over his head. He has further stated that the petitioner is unable to lift his hand and take his fore arm to his mouth as a result of which the petitioner is not able to take food without the help of others. Further, the Doctor has stated that the petitioner would not be able to lift weight, comb his hair, write and would have difficulty in washing his Shirt and Dhoti. Taking all the above aspects into consideration, the Doctor has certified that the disability sustained by the petitioner is 75% and has marked Ex.P14-Disability Certificate and https://hcservices.ecourts.gov.in/hcservices/ Ex.P15-X'rays, in support of his statement. 15.As such, the Tribunal on consideration of evidence of PW2 and Ex.P14-Disability Certificate held that the disability sustained by the petitioner as a result of the accident was 75% and awarded a sum of Rs.75,000/- as compensation to the petitioner for permanent disability sustained by him. Though, the petitioner has stated that he was earning a sum of Rs.10,000/- per month in agricultural work, as no documentary evidence was furnished in support of this contention, the Tribunal held that the salary of the petitioner could be taken as Rs.2,000/- per month only after considering that the age of the petitioner was 54 years. 16.The Tribunal considering that due to the disability sustained by him, the petitioner will not be able do any work awarded a compensation of Rs.20,000/- for loss of income. The Tribunal further awarded a sum of Rs.10,000/- to the petitioner under the head of pain and suffering undergone by him and also granted a sum of Rs.50,000/- to the petitioner towards loss of earning capacity. For transport expenses, the Tribunal awarded a sum of Rs.2,000/-. The Tribunal, on scrutiny of Exs.P10 and P11, the Medical Bills, awarded a sum of Rs.1,03,286/- and Rs.8,434/- respectively as compensation towards medical expenses. In total, the Tribunal awarded a compensation of Rs.2,68,720/- together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation and directed the first and second respondents to jointly and severally deposit the above award with accrued interest, into the credit of the M.C.O.P.No.578 of 2004, on the file of the Motor Accident Claims Tribunal, Fast Track Court No.I, Tindivanam (Before Sub Court O.P.No.206 of 2003), Tindivanam, within a period of two months from the date of its Order. After such deposit was made, the award was to be invested in a Nationalised Bank, as fixed deposit, for a period of three years. The Advocate fees was fixed at Rs.8,375/-. The petitioner was directed to pay the balance Court fee due on the award amount within a period of one month from the date of its Order. The claim as against the third respondent was dismissed. 17.The learned counsel for the appellant has contended in his appeal that the award of Rs.2,68,720/- passed by the Tribunal under various heads is erroneous as the injury sustained by the petitioner (fractured elbow of right arm) is a non-scheduled injury and as such the Tribunal had invoked the provisions of Section 163A, when the claimant/first respondent herein had filed an application only under Section 166(1) of Motor Vehicles Act, 1988, before the Tribunal. 18.It has been contended that the learned Tribunal ought to have seen that the first respondent herein admittedly, had not suffered any scheduled injury as contemplated under the provisions of the Workmen Compensation Act, 1923. https://hcservices.ecourts.gov.in/hcservices/ 19.It has also been contended that in the absence of any documents available on record regarding percentage of loss of earning capacity, the learned Judge of the Motor Accident Claims Tribunal had erred in arriving at a sum of Rs.50,000/- under the head of loss of earning power, which is perse illegal and not in accordance with the provisions of Workmen Compensation Act, 1923, since the Tribunal failed to refer the first respondent herein to a Medical Board by invoking Section 4(1)C(ii) r/w explanation II and followed the procedure contemplated under Section 20(3) of the Workmen Compensation Act, 1923. 20.The learned counsel for the appellant has further stated that the learned Judge of the Motor Accident Claims Tribunal had failed to see that under the provisions of Workmen Compensation Act, 1923, the disability fixed even for the amputation of a hand is only 60% under Sl.No.4 of Part-II of Schedule I and as such the assessment of 75% disability by the Doctor, PW2, is excessive considering the nature of injury suffered by the petitioner. 21.Further, it has been contented that the Doctor, who had treated the petitioner was not examined and only Dr.Ponnappan (PW2), who had not treated the petitioner was examined before the Tribunal and as such the evidence of a Doctor, who gives the said Certificate on a regular basis should be approached with due caution. Further, it has been contended that the learned Judge of Motor Accident Claims Tribunal had failed to fix the correct age of the injured first respondent on the basis of the available medical records namely Discharge Summary issued by MIOT Hospital, Ex.P5, which categorically reveals that the age of the first respondent herein was 68 years. As such, as the petitioner is an aged person and as the nature of the avocation has not been established by the first respondent herein, even though he owns some land, the Tribunal ought not to have fixed his monthly income as Rs.2,000/-, which is baseless and excessive. 22.It is further contended that as the age and income of the petitioner has not been proved, by acceptable oral and documentary evidence, the award of the Tribunal of Rs.20,000/- under the head of loss of income is unjustifiable. It has also been contended that the award of the Tribunal of Rs.75,000/- under the head of permanent disability and also a sum of Rs.50,000/- under the head of loss of earning power, virtually amounts to double compensation as per the ruling of the Division Bench of this Hon'ble Court reported in 1998 ACJ Page 295, Full Bench of the Hon'ble Kerala High Court reported in 2006(1) CTC Page 81, and also unreported Full Bench Judgment of this Hon'ble Court, wherein it has been categorically held that no double compensation could be awarded on different nomenclature in the case of non-schedule injuries suffered by the victim. It has also been submitted that the award of Rs.10,000/- passed by the Tribunal under the head of pain and suffering is also the higher side. https://hcservices.ecourts.gov.in/hcservices/ 23.Further, it has been contended that the Tribunal erred in award a sum of Rs.1,11,720/- under the head of medical expenses, because the first respondent has only produced medical bills but had failed to produce any medical prescription in support of the said bills. 24.As such, the learned counsel for the appellant has prayed to set aside the award and decree passed by the Motor Accident Claims Tribunal, Tindivanam. 25.In support of his contention, the learned counsel for the appellant has cited the following Judgements made in 2004 (2) TNMAC 115 (DB), High Court of Madras, Metropolitan Transport Corporation Ltd. (Chennai Division-I) V. G. Gnanam @ Gnanamoorthy, the relevant head notes of which are as follows: ".........Claimant, while travelling in bus of the Corporation, sustained injury in his arm and elbow when rear portion of bus dashed against a post on road due to rash and negligent driving of driver – Appellant submitted that since claimant travelled in bus projecting his hand outside the bus, he sustained injury by dashing hand in the post when bus crossed the said post – However, claimant submitted that accident occurred only due to rash and negligent driving of driver and rear side of bus also damaged due to accident – Tribunal fixing negligence only on driver of Corporation, if, correct – FIR given by claimant states that bus was driven in rash and negligent manner and backside of bus on right side dashed against lamp post – However there was no substantial damage to bus and only scratches found on right side of back portion of bus – If bus sustained only such scratches and not substantial damages it cannot be said that because of said accident, though claimant placed his hand inside the bus, he could sustain injury – Unless claimant sitting in bus projecting his hand outside, there is no possibility for sustaining injury as alleged – In view of facts, held, Tribunal not correct in finding that accident was only due to negligence on part of driver – Tribunal fixing entire responsibility on driver relying on penalty paid by driver before Criminal Court, held, not correct – Held, claimant also contributed his negligence for the accident – Negligence on driver of Corporation bus fixed at 50% and on claimant fixed at 50%." 2003 ACJ 534, Supreme Court of India, Rikhi Ram and another V. https://hcservices.ecourts.gov.in/hcservices/ Sukhrania and others, the relevant head notes of which are as follows: ".........Transfer of vehicle – Transfer of certificate of insurance – Liability of insurance company – Motor cycle was transferred by the insured prior to the date of accident but no intimation of transfer was given to insurance company – Whether liability of insurance company ceases so far as third party is concerned when the vehicle is transferred and no intimation is given to the insurance company – Held: no; insurance company may recover the amount paid by it either from the insured or from the transferee of the vehicle." 26.The learned counsel for the respondents submitted that the claimant sustained 75% disability, which was certified by a competent Doctor. The injured underwent treatment at various hospitals namely MIOT Hospitals, Nallam Clinic, Pondicherry and Jipmer Hospital, for which the claimant had to meted out Rs.1,11,720/- towards medical expenses. Considering this aspect, the balance compensation amount awarded to the petitioner is on the lower side. The claimant is an agriculturist having cultivable lands. He used to work in his agricultural land. After the said accident, he is unable to do the agricultural work as usual. He has lost his physical strength due to the said accident. So, he is not in a position to cultivate his lands. The claimant has also sustained fracture injuries, wherein he had lost a couple of bones in his right arm. As such, the quantum of compensation awarded by the Tribunal is meager. 27.Considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side, and nature of injuries sustained by the claimant and mode of treatment, which the claimant had undergone at MIOT Hospital and Nallam Clinic, Pondicherry and Jipmer Hospiral, Pondicherry, this Court is of the view that the award and decree passed by the Motor Accident Claims Tribunal, Fast Track Court No.I, Tindivanam, in M.C.O.P.No.578 of 2004, is fair and equitable and hence this Court confirms the same. 28.Further, arguments had been advanced and the citations given by the learned counsel for the appellant that the injured claimant had travelled in the bus and the accident happened because the claimant had kept his right arm outside the bus and he has contended that the claimant should be fixed with a contributory negligence of 50% on this count. On this aspect, the Court is not in agreement with the contentions raised by the learned counsel for the appellant and refutes the contention, as even if the claimant, supposedly, had projected his right arm by about ½ feet out side the window of the bus, the lorry driver, as per traffic rules and regulations should have given an