IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.10.2009 CORAM: THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH C.M.A.No.2816 of 2004 and C.M.P.No.16232 of 2004 M/s.United India Insurance Company Ltd., ... Appellant/2nd Respondent Dharmapuri Town, Dharmapuri District. Vs. 1.Murugan ... 1st Respondent/Petitioner 2.P.Ganesan ... 2nd Respondent/1st Respondent PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicle Act. against the judgment and decree dated 19.11.2003 made in MCOP No.100 / 2003 on the file of the Motor Accident Claims Tribunal (Subordinate Judge) at Krishnagiri. For Appellant : Mr.K.S.Narasimhan For First Respondent : Mr.M.Selvam JUDGMENT This appeal is directed against the judgment and award passed by the lower Court in MCOP No.100 of 2003 dated 19.11.2003. The appellant is the insurance company, who figured as 2nd respondent before the lower Court. The first respondent was the claimant/petitioner and the second respondent was the first respondent before the Lower Court. 2. The case of the first respondent as Claimant / petitioner before the lower Court would be as follows:- (i) The petitioner was working as a lorry loading and unloading cooly. On 06.09.1999, when the petitioner and the other two coolies loaded fire wood in the lorry bearing Registration No.TDT 5676 belonged to the first respondent near Rayakottah and travelled in the said lorry to un-load the Firewood at Dharmapuri, they were proceeding to Royakottah–Dharmapuri highway and when they reached https://hcservices.ecourts.gov.in/hcservices/ periyathebai at about 12.30 p.m., the driver of the lorry was driving the vehicle in a rash negligent manner and the lorry was toppled. The petitioner sustained grievance injuries on his right leg ankle, simple injuries in left fore arm, left scapula, left knee, left foot and multiple injuries all over his body. The petitioner was taken to Government Hospital at Palacode and was given first aid and thereafter, admitted as in-patient in the Government Head Quarters Hospital. He took treatment for a long period but, however, due to the mal-union of fracture on his right leg ankle, the petitioner could not walk or squat freely. (ii) The petitioner was aged only 30 years at the time of accident and he was earning a sum of Rs.3,000/- per month. The petitioner could not go for any work due to the permanent disability caused to him, due to the injuries sustained in the accident. The petitioner also suffered mental shock, pain and suffering due to the accident. He had also consulted expert doctors for his treatment. The whole future and enjoyment of life of the petitioner was spoiled due to the accident. The first respondent being the owner of the lorry bearing No.TDT 5676, is vicariously liable to compensate the petitioner. The second respondent, who is a insurer of the said vehicle, is also liable to compensate the petitioner along with the first respondent under the contract of indemnity. Therefore, he would request the Court that petitioner may be awarded a sum of Rs.2,00,000/- as compensation directing the respondents to pay the same jointly and severely with subsequent interest at 14 % per annum from the date of accident till the date of realisation and with cost. 3. The contentions raised in the counter statement filed by the second respondent (appellant herein) would be as follows:- (i) The second respondent is entitled to contest the case under Section 170 of the Motor Vehicles Act. The accident as described in the application is admitted and the vehicle involved in the said accident, which happened on 06.09.1999 at about 12.30 p.m near Rayakottah-Dharmapuri Highways road in periyathebai, was insured with the second respondent from 09.08.1999 to 08.08.2000 at Dharmapuri Branch Office. The petitioner did not travel as a cooly, but he travelled as an un-authorised passenger in a goods vehicle. Therefore, the second respondent / insurer is not liable to pay any compensation to the applicant. The driver of the lorry had driven the said vehicle slowly, cautiously, by observing all the rules of the road. But the petitioner, who was negligently travelled as an unauthorised passenger along with others, travelled and sustained injuries. Therefore, the petitioner is not entitled for any compensation. However, the petitioner's age, occupation and income of the petitioner are not admitted. The claim of the petitioner on Rs.2,00,000/- with subsequent interest at 14 % is fanciful. The injuries said to have been sustained by the petitioner were all https://hcservices.ecourts.gov.in/hcservices/ simple in nature and there is no grievous injury nor permanent disability caused to the petitioner. (ii) The second respondent denies the valid driving licence for the driver, who drove the lorry at the time of the accident. The claim of interest at 14 % per annum is not sustainable in view of the recent judgment of the Honourable Apex Court and the petitioner would be only to pay the interest at 9 % per annum. Therefore, the claim of the petitioner is not sustainable and the same may be dismissed with costs. 4. The lower Court had examined the petitioner as PW1 and the doctor as PW2 and had admitted Exs.A1 to A4 produced by the petitioner in support of his case. No evidence was adduced either orally or documentarily on the side of the respondents. After appraising the evidence adduced before the lower Court, it had come to a conclusion that the petitioner is entitled for a sum of Rs.1,55,400/- with subsequent interest at 9% per annum from the date of petition till the date of realisation with proportionate cost. 5. Aggrieved by the decision reached by the lower court, the second respondent has preferred the present appeal. On going through the contents of the petition, counter statement filed by the respondents, the judgment and award passed by the lower court and upon hearing the arguments advanced on either side, this court had framed the following points for consideration in this appeal. 1.Whether the judgment and the award granting a sum of Rs.1,55,400/- with an interest at 9 % per annum from the date of petition till the date of realisation of payment are liable to be set aside or modified ? 2.To what relief, the appellant is entitled for ? 6. Heard Mr.K.S.Narasimhan, the learned counsel for the appellant second respondent and Mr.M.Selvam, the learned counsel for the first respondent / claimant. 7. For convenience sake, the rank of the parties before the lower court is mentioned in this judgment. 8. The learned counsel for the appellant/second respondent would submit in his argument that the lower court had not properly appraised the evidence adduced but arbitrarily came to a conclusion of calculating the claim on the basis of multiplier method by saying that the the petitioner was working as a cooly and he was earning a sum of Rs.3,000/- per month. He would further submit that the quantum of disability was not properly spoken by the doctor, who was examined as PW2, either in accordance with Workmens Compensation Act or https://hcservices.ecourts.gov.in/hcservices/ adhered to any Government orders passed by the Central Government. He would further submit that the petitioner had not proved his disability but the lower court has assessed the compensation payable at Rs.1,55,400/- on the basis of the multiplier method which is in proportionate and factually un-sustainable. 9. He would further submit in his argument that the lower court had assumed and framed certain facts and the court had come to the conclusion of deciding on the point without any evidence. Therefore, he would submit in his argument that the quantum of compensation payable to the petitioner as per the judgment of lower court is highly excessive and, therefore, it has to be set aside or suitably modified by allowing the appeal. 10. The learned counsel for the first respondent / claimant would submit in his argument that the petitioner was working as a cooly and it was not disputed by the second respondent. The doctor's evidence adduced by the petitioner was not questionable. He would further submit that the doctor, who was examined as PW2, had properly examined the petitioner and had awarded the disability at 30 % which happened due to the mal-union of ankle fracture and, therefore, the assessment of the doctor cannot be questioned. He would further submit in his argument that the mal-union of the fracture could be assessed clinically by the doctor, who is an expert, and it has not been described in the first schedule of Workmens Compensation Act as contended by the learned counsel for the appellant. He would further submit in his argument that the lower court had fixed the compensation properly. However the compensation fixed for transport expenses, extra nourishment and the loss of temporary income while taking treatment have been paid properly and if considered properly, the compensation amount as claimed for by the claimant, have been awarded in full. He would further submit that since he has not filed any cross Appeal or separate appeal against the said findings of the lower court, the judgment award passed by the lower court is unable to be interfered and the appeal to be dismissed. 11. I have given anxious consideration to the arguments advanced on both sides. After carefully gone through the appraisal of the evidence and other papers, I could see that the expenditure was demanded by the insurance company for which the expenditure took place to the specific volume of the accident. Therefore, there is no dispute that the accident had taken place due to the rash and negligent driving of the first respondent. Similarly, the evidence adduced by PW1 that he was working as a cooly in the lorry under the first respondent was not disputed. Therefore, the claimant was driving the lorry at the time of accident as one of the work men and, therefore, the contention of the Insurance Company that he was not a passenger and cannot be sustained and the insurance coverage for the vehicle involved in the accident was also admitted by the Insurance https://hcservices.ecourts.gov.in/hcservices/ Company. Therefore, there is no impediment for this court to come to the conclusion that the second respondent / Insurance Company was liable to pay the compensation along with the owner first respondent. 12. As regards the quantum of compensation is concerned, this Court could see that the lower court had arrived to a conclusion that the claimant would have been paid a sum of Rs.3,000/- towards his monthly wages by working as a cooly in the lorry. However, disability suffered by PW2 was disputed to be on higher side. On a careful perusal of the evidence PW2, the permanent disability certificate Ex.P4, we can understand that the doctor, who examined the claimant cleanically and on the basis of the wound certificate, had come to a correct conclusion. The said disability need not be assessed by the doctor under the Worksmen Compensation Act. Accordingly the disability certificate produced by the doctor is not defective. 13. As far as the award passed by the lower court on the basis of multiplier method is concerned, it has been spoken by PW1 that he was properly doing his duty. The disability specified by the doctor in Ex.P4 was only to an extent of 30% which cannot be agitated since the said disability of 30% awarded by doctor in Ex.P4 has not resulted total disability. The method of fixing the compensation with percentage method as decided by this court has not been followed. The claimant was aged only 30 years at the time of accident. Therefore Rs.2000/- per 1% shall be calculated for the purpose of ascertaining the compensation for disability. Accordingly we could fix a sum of Rs.60,000/- for 30% disability. As regards the injuries sustained by the claimant and the pain and sufferings suffered due to those injuries are concerned, we have to find out as to whether the injuries were sustained by the claimant in the accident. Ex.A2 the wound certificate would disclose five injuries out of which two injuries were grievous in nature and the remaining three injuries were simple in nature. Therefore, this court is of the considered view that the claimant has to pay a sum of Rs.13,000/- towards for pain and sufferings. Considering the nature of injuries and period of treatment taken by the claimant, I could see that the claimant should have incurred expenditure of Rs.7,000/- towards medical treatment. The expenditure incurred by the claimant towards extra nourishment could have been ascertained at Rs.5,000/- and the expenditure towards transport to hospital during the treatment could have been at Rs.5,000/-. The claimant is entitled to those amounts towards compensation considering the nature of injuries and period of treatment. It is also not disputed that the petitioner was admitted as in patient and was taking treatment for the injuries sustained by him in the accident for a considerable period and after the said treatment also, he could not go for his work. The lower court has fixed the monthly income of the claimant at Rs.3,000/- and had followed the multiplier method for ascertaining the compensation for permanent disability, despite the mode of calculation of compensation https://hcservices.ecourts.gov.in/hcservices/ for the permanent disability was not accepted. The monthly income at Rs.3,000/- can be taken for ascertaining the temporary loss of income for the claimant during his off period. Since the said period of not working is more than three months. We could fix the temporary loss of income for the claimant at Rs.10,000/- payable to the claimant. When we calculate all these heads of compensation payable to the claimant we could find that the total compensation would be at Rs.1,00,000/-. However, the lower court had granted a sum of Rs.1,55,400/- which is found to be excessive. Therefore, the judgment and award passed by the lower court are liable to be interfered and modified from Rs.1,55,400/- to Rs.1,00,000/-. 14. As regards the interest awarded on the compensation is concerned, there is no dispute for the said rate of interest awarded at 9% per annum. Therefore, the claimant is entitled to a sum of Rs.1,00,000/- with 9% from the date of the petition till the date of realisation. Accordingly, the appeal is allowed and the judgment and decree passed by the lower court is modified from Rs.1,55,400/- to Rs.1,00,000/- with interest at 9% from the date of petition till the date of deposit with proportionate cost. There is no order as to costs in this appeal. 15.It is brought to the notice of the Court that on an earlier occasion, this Court permitted the petitioner to withdraw 50% of the award amount passed by the lower court and the balance 50% of the award amount was to be invested in a nationalised bank and the petitioner was permitted to withdraw the interest. Since the claimant is entitled to a sum of Rs.1,00,000/- with interest at the rate of 9% per annum, the balance amount payable to the claimant alone can be withdrawn by the claimant from the remaining 50 % of the amount. The remaining amount from the said deposit is entitled to be withdrawn by the appellant herein, since he deposited the entire compensation ordered by the lower court. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar ssn To 1. The Motor Accident Claims Tribunal, (Subordinate Judge) Krishnagiri. https://hcservices.ecourts.gov.in/hcservices/ 2. The Section Officer, V.R.Section, High Court, Madras. +1 cc to Mr.K.S.Narasimhan, Advocate, SR.No.55085 +1 cc to Mr.M.Selvam, Advocate, SR.No.54744 C.M.A.No.2816 of 2004 and C.M.P.No.16232 of 2004 PUR {CO} TP/19.11.2009. https://hcservices.ecourts.gov.in/hcservices/