IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.07.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.2023 of 2002 United India Insurance Co. Ltd. 13.A Nethaji Road Manjakuppam, Cuddalore - 1 ... Appellant/2nd Respondent Vs. 1) Arumugam 2) Govindasamy ... Respondents/Petitioner/1st Respondent (exparte in Lower Court) This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 as against the Judgment and award of the Motor Accidents Claims Tribunal (Addl. Sub Judge), Cuddalore passed in M.C.O.P.No.764/2001 dated 30.04.2002. For Appellant : Mr.N.Vijayaraghavan For Respondent No.1 : Mr.R.Muralidharan J U D G M E N T The insurance company which figured as the second respondent before the Tribunal has preferred this appeal against the award of Tribunal dated 30.04.2002 made in M.C.O.P.No.764/2001 awarding a sum of Rs.7,30,251/- as compensation to the first respondent herein/petitioner. 2. The first respondent herein filed a claim application under Section 166 of the Motor Vehicles Act against the appellant herein and the 2nd respondent claiming a sum of Rs.15,00,000/- as compensation for the injuries allegedly sustained by him in an accident that took place at 4.00 a.m. on 10.01.1998 near the railway gate at Thiruvathigai, within the jurisdiction of Panruti Police Station. It was the contention of the 1st respondent herein/petitioner before the Tribunal that on 10.01.1998 at about 4.00 a.m. he was standing on the extreme southern side of the Cuddalore-Chittoor Main Road near Thiruvathigai railway gate; that while he was so standing, the second respondent's tractor bearing registration No.TN-32 Z-1020 fitted with a trailer bearing registration No.TN-32 Z-1021 came there at a high speed in the https://hcservices.ecourts.gov.in/hcservices/ direction of east-west, driven by its driver rashly and negligently without following traffic rules and caused the accident by hitting against the first respondent/petitioner; that due to the accident the petitioner sustained multiple injuries including fracture of the pelvis bone and dislocation on the right hip; that the first respondent/petitioner initially took treatment as an in-patient in Government hospital, Panruti, then at Government hospital at Cuddalore and thereafter in private hospitals at Cuddalore, Pondy and Chennai and that despite proper treatment, the injuries resulted in permanent disability and consequential loss of earning capacity. 3. Contending further that the first respondent herein/petitioner was aged about 30 years as on the date of accident and was earning not less than Rs.15,000/- per month as transport loading and labour contractor and by cultivating his lands and that due to the injuries sustained in the accident, he could not continue the above said avocations which resulted in loss of future earning, the first respondent herein/petitioner had claimed a sum of Rs.15,00,000/- as compensation from the appellant and the second respondent herein. He had also prayed for interest on the above said amount claimed as compensation. 4. The second respondent herein did not resist the claim and chose to remain ex-parte. The appellant insurance company alone contested the case by filing a counter statement. In the counter statement the appellant insurance company had denied the petition allegations that the tractor and trailer stood insured with them as on the date of accident. The other allegations found in the petition regarding the nature of accident, the alleged negligence on the part of the driver of the vehicle, the age, occupation and income of the first respondent/petitioner, the nature of injuries sustained by the first respondent/petitioner and the alleged permanent disability suffered by him had also been denied. With the further contention that the amount claimed as compensation was highly excessive and exorbitant, the appellant insurance company had prayed for the dismissal of the MCOP in its entirety. 5. The Tribunal conducted enquiry in which two witnesses were examined as P.W.1 and P.W.2 and twenty five documents were marked as Ex.P1 to Ex.P25 on the side of the first respondent/petitioner. No witness was examined and no document was marked on the side of the appellant insurance company. 6. After hearing the arguments and upon considering the evidence in the light of the arguments advanced on either side, the Tribunal came to the conclusion that the accident was the result of the rash and negligent driving of the tractor fitted with a trailer belonging to the second respondent by its driver. Based on the disability certificate produced on the side of the first respondent herein/petitioner, the Tribunal held that the first respondent herein/petitioner sustained injuries which led to permanent disability at 55% and awarded a total sum of Rs.7,30,251/- as compensation with https://hcservices.ecourts.gov.in/hcservices/ the following split up particulars: Compensation for permanent disability : Rs.6,73,200/- For grievous injuries sustained in the accident : Rs. 25,000/- For Pain and Suffering : Rs. 5,000/- Expenses on extra nourishment : Rs. 3,000/- Medical Expenses : Rs. 24,051/- --------------- TOTAL Rs.7,30,251/- --------------- 7. Aggrieved by and challenging the award of the Tribunal dated 30.04.2002 on the question of quantum alone, the appellant insurance company has preferred this Civil Miscellaneous Appeal on various grounds set out in the memorandum of grounds of appeal. 8. The short point that arises for consideration in the appeal is "Whether the amount awarded as compensation by the Tribunal is excessive requiring downward revision in this appeal?" 9. This court heard the submissions made by Mr.N.Vijayaraghavan, learned counsel appearing on behalf of the appellant and Mr.R.Muralidharan, learned counsel appearing for the 1st Respondent. The materials available on records were also perused. 10. It is true that the second respondent herein, the owner of the offending vehicle has not chosen to prefer any appeal against the award passed by the Tribunal either on the question of liability or on the question of quantum. An insurer shall not be entitled to challenge the award on the question of quantum unless he has obtained permission under Section 170 of the Motor Vehicles Act. In this case admittedly the appellant/insurance company filed an application in I.A.No.873 of 2002 before the Motor Accidents Claims Tribunal under Section 170 of the Motor Vehicles Act seeking permission to avail the grounds of defence available to the owner of the vehicle in addition to the grounds available to the insurer under Section 149 of the Motor Vehicles act. Admittedly, the said petition was allowed and permission was granted by the Tribunal on 17.04.2002. Therefore there is no impediment for entertaining the appeal preferred by the appellant insurance company on the question of quantum. 11. The United India Insurance Co. Ltd. which figured as the second respondent in MCOP No.764/2001 is the appellant herein. The claimant before the Tribunal is the first respondent in this appeal. For the injuries sustained by him in a road accident involving the motor vehicles, namely the tractor bearing Registration No.TN-32 Z- 1020 fitted with trailer bearing Registration No.TN-32 Z-1021, both belonging to the second respondent herein, the first respondent herein https://hcservices.ecourts.gov.in/hcservices/ made a claim before the Tribunal. It was also contended before the Tribunal that the appellant herein, which figured as the second respondent in the MCOP was the insurer of the said vehicle. The Tribunal accepted the contention of the first respondent herein/petitioner and passed an award directing the appellant herein alone to pay a sum of Rs.7,30,251/-. The Tribunal, on an appreciation of the evidences brought before it, both oral and documentary, came to the conclusion that the accident was the result of the rash and negligent driving of the tractor fitted with the trailer by its driver. The said finding of the Tribunal is not challenged by the appellant herein. On the other hand, the challenge made to the award is confined to the quantum of compensation alone. Therefore, the same has got to be recorded and the finding of the Tribunal regarding the negligence aspect deserves to be confirmed. 12. Regarding quantum of compensation, the learned counsel for the appellant argued that the Tribunal committed an error in mulcting the liability on the appellant insurance company alone without even at the first instance fixing the liability on the second respondent herein, namely the owner of the offending vehicle. The learned counsel for the appellant also contended that the amount awarded by the Tribunal is highly excessive and exorbitant which could not be justified; that the Tribunal had not assigned any reason supporting the assessment of damages and that since the Tribunal arbitrarily fixed an amount as compensation, the same should be interfered with and modified by reducing the quantum. The submissions made by the learned counsel for the first respondent in this regard were also taken into consideration by this court. 13. Ex.P1 is the copy of the First Information Report. Ex.P2 is the wound certificate issued to the first respondent/petitioner. Ex.P3 to Ex.P22 are the documents relating to the medical treatment given to the first respondent/petitioner. From the same, it is obvious that the petitioner sustained fracture on the hip and fracture and dislocation of the spinal column leading to compression of the nerves. From the evidence of P.W.1 and P.W.2 - Medical officer and Ex.P23 - Disability certificate and Ex.P24 - X-Ray, it is obvious that the length of right leg has been shorten by an inch. The Medical practitioner, namely P.W.2 assessed the disability at 55% and certified the same to be permanent. Without giving a finding as to how old was the first respondent/petitioner (injured), the Tribunal simply chose to adopt multiplier 17 and assess the compensation for loss of future earning capacity by multiplying 55% of Rs.72,000/- by 17. Accepting the contention of the first respondent herein/petitioner that he was working as an agriculture contractor supplying coolies, the Tribunal took his monthly earnings to be Rs.6,000/-. The learned counsel for the appellant rightly contended that a contractor for supplying agricultural coolies can be expected to get something more than the amount paid to a coolie as remuneration and hence the earnings of the first respondent/petitioner before the date of accident should be taken as ranging between Rs.2,400/- to Rs.3,000/-. This court decides to take the upper range and fix the https://hcservices.ecourts.gov.in/hcservices/ monthly earnings of the first respondent/petitioner before the date of accident at Rs.3,000/-. 14. Even though, P.W.2 - Medical practitioner might have assessed the permanent disability of the petitioner to be 55%, taking into consideration the possibility of future reduction of the extent of disability by undertaking physiotherapic exercises and also the fact that the first respondent/petitioner was simply acting as a contractor for supplying agricultural coolies without contributing any hard personal manual labour, we cannot take the loss of earning capacity to be equal to the percentage of permanent disability. Therefore, it shall be proper to assume that the first respondent/petitioner has suffered a loss of 50% of future earning capacity. Hence the annual loss of future earning capacity shall be Rs.3,000 x 50/100 x 12 = Rs.18,000/-. The same has to be multiplied by an appropriate multiplier. 15. As per the petition averments, the deceased was aged about 30 years at the time of filing of the petition. However, first respondent/petitioner has not produced any clinching document like birth certificate, school certificate, etc. to prove his age. In Ex.P2 certificate issued in the year 2000, his age is noted as 30 years approximately. As per Ex.P5, P6 and P7 his age as on 18.09.2001 was noted as 32 years. In the Disability certificate issued on 08.04.2002 his age has been noted as 32 years. Therefore, it is clear that the first respondent/petitioner had crossed the age of 30 years at the time of accident. For selecting the appropriate multiplier, though the table found in Schedule II under Motor Vehicles Act can provide a guideline, the same cannot be taken as a ready reckoner. Considering the facts and circumstances of the case and age of the first respondent/petitioner, this court feels that the appropriate multiplier to be selected in this case shall be 16. 16. If the above said multiplicant, namely Rs.18,000/- is multiplied by the selected multiplier, we can get the figure Rs.2,88,000/- representing the loss of future earning capacity. The Tribunal has awarded a sum of Rs.24,051/- the amount covered by the medical bills submitted by the first respondent/petitioner as compensation towards medical expenses. The same can be rounded to Rs.25,000/-. The Tribunal has not awarded any amount towards pain and suffering. Taking into account the nature of injuries and the disability with which the petitioner is found, for the past and future pain and suffering a reasonable sum must be awarded. According to the considered opinion of this court, awarding a sum of Rs.16,000/- on the above said act shall be quite reasonable. 17. In a case of injury resulting in permanent disability, the Tribunal or the High court can adopt two method for assessing damages, one by awarding a lumpsum amount for permanent disability which will take into its fold both the loss of future earning capacity and the loss of amenities (comforts) caused due to the permanent disability. In such an event loss of future earning capacity or loss of amenity https://hcservices.ecourts.gov.in/hcservices/ cannot be separately itemised. The other method is to separately assess the loss of future earning capacity. In such an event there would not be any impediment for awarding a further sum on the head of loss of amenities caused due to the permanent disability. The same shall be in consonance with the judgement of 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. 18. In this case, since this court has not adopted the method of awarding lumpsum compensation for permanent disability and assessed loss of future earning capacity separately, it shall be just and proper to award an amount towards loss of amenities in life caused due to the permanent disability. This court is inclined to award a sum of Rs.20,000/- for the same. Having chosen to award compensation for the permanent disability suffered by the first respondent/petitioner, the Tribunal should not have awarded any amount towards grievous injury sustained by the petitioner which alone led to the permanent disability with which he is found. The Tribunal has chosen to award a sum of Rs.25,000/- for grievous injuries. The award of said amount has no basis at all and hence the same should be disallowed. 19. The Tribunal has not awarded any amount towards loss of earning from the date of accident. The first respondent/petitioner would have required at least two months bed rest during which time he would have incurred a total loss of earning for which a sum of Rs.6,000/- has to be awarded. A sum of Rs.2,000/- for transport expenses and a sum of Rs.3,000/- towards extra nourishment can be reasonably awarded. If such adjustments and modifications are made, the total amount to which the first respondent/petitioenr is entitled can be reasonably fixed at Rs.3,60,000/-. At the cost of repetition the details of assessment are provided hereunder. Loss of future earning capacity : Rs.2,88,000/- Compensation for pain and suffering : Rs. 16,000/- Compensation for medical expenditure : Rs. 25,000/- Compensation for loss of amenities in life : Rs. 20,000/- Total loss of earning from the date of accident for two months : Rs. 6,000/- Transport expenses : Rs. 2,000/- Extra nourishment : Rs. 3,000/- --------------- Total : Rs.3,60,000/- --------------- https://hcservices.ecourts.gov.in/hcservices/ The interest awarded by the Tribunal seems to be quite reasonable and hence no change in the same is warranted. 20. The said amount is payable by the second respondent herein as the owner of the offending vehicle. The appellant herein, being the insurer of the offending vehicle, as per contract of insurance, has to shoulder the liability of the 2nd respondent and pay the amount to the first respondent/petitioner. Therefore, the respondent no.2 and the appellant herein/respondents 1 and 2 in the MCOP are held jointly and severally liable to pay the above said amount to the first respondent herein/petitioner. Accordingly, the award passed by the Tribunal is liable to be modified by reducing the total amount of compensation from Rs.7,30,251/- to Rs.3,60,000/- and to by holding the second respondent and the appellant herein/respondents 1 and 2 in the MCOP jointly and severally liable to pay the said amount together with an interest at the rate of 9% per annum from the date of petition till reaslisation. 21. In the result, this Civil Miscellaneous Appeal is partly allowed and the award of the Tribunal is modified by holding the 2nd respondent and the appellant (respondents 1 and 2 in the MCOP) jointly and severally liable to pay compensation to the first respondent (petitioner in the MCOP) and by reducing the total compensation from Rs.7,30,251/- to Rs.3,60,000/-. In all other respects the award of the Tribunal shall stand confirmed. However, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar asr To 1) The Motor Accidents Claims Tribunal (Addl. Sub Judge), Cuddalore 2) The Section Officer, V.R.Section, High Court, Madras. 1 cc To Mr.R.Muralidharan, Advocate, SR.38208. 1 cc To Mr.M.B.Gopalan, Advocate, SR.37696. C.M.A.No.2023/2002 TEJ(CO) RVL 01.09.2008 https://hcservices.ecourts.gov.in/hcservices/