IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.11.2008 CORAM THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH C.M.A.Nos.2252 and 2253 of 2003 and M.P.No.13592 of 2003 United India Insurance Co. Ltd., Nethaji Road, Manjakuppam, Cuddalore - 1. ... Appellant in both C.M.As/6th respondent vs. 1. K. Subarayan 2. P. Balasubramanian 3. The Branch Manager, Oriental Insurance Co. Ltd., Imperial Road, Cuddalore - 2. 4. Kannan 5. The New India Assurance Company Ltd., 6. A.Sasikala ... Respondents in C.M.A.2252 of 2003 Petitioner and Respondent Nos. 1 to 5 1. R. Chandrasekaran 2. P. Balasubramanian 3. The Branch Manager, Oriental Insurance Co. Ltd., Imperial Road, Cuddalore - 2. 4. Kannan 5. The New India Assurance Company Ltd., 6. A.Sasikala .. Respondents in C.M.A.2253 of 2003 (Petitioner and Respondents 1 to 5) https://hcservices.ecourts.gov.in/hcservices/ Civil Miscellaneous Appeals are filed under Section 173 of Motor Vehicles Act, 1988, against the award and decree dated 10.12.2002 made in MACTOP.Nos.218 of 1998 and 213 of 1998 on the file of the Motor Accidents Claims Tribunal (Additional Sub Judge), Cuddalore. For appellant in both C.M.As. : M/s. K. Suryanarayanan For respondent-1 in both C.M.As. : M/s. R. Sathiyakumar For respondent-3 in both C.M.As. : M/s. N. Vijayaraghavan Respondents 4 & 5: Given up. ----- COMMON JUDGMENT These two appeals are directed against the awards passed by the lower Court in MACTOP.Nos.218 and 213 of 1998 dated 10.12.2002, by the Insurance Company. 2. The brief case of the parties before the Lower Court in both the claim petitions are as follows: On 29.06.1997 at about 11.45 hours, when the claimants in both the Claim Petitions (first respondent in both the appeals) were travelling in a car bearing Registration No.TCF 7747, belonging to the first respondent and insured with the 2nd respondent, the driver of the car driven the vehicle with rash and negligent manner and hit a lorry bearing registration No.TML 2613 owned by the fifth respondent and insured with the 6th respondent, near Sri Sakthi Hotel, Melmaruvathur. The driver of the lorry is also responsible for the accident. In the said accident, both the vehicles collided together. Due to this accident, the claimants in both the claim petitions sustained grievous injuries and multiple fractures all over the body and head. Both the claimants were taken to and admitted in the hospital. Hence, the claimant in MACTOP.No.213 of 1998 claimed Rs.2,00,000/- as compensation and the claimant in MACTOP.No.218 of 1998 claimed Rs.3,00,000/- as compensation. https://hcservices.ecourts.gov.in/hcservices/ 3. The 2nd respondent and the fourth respondent in the lower Court have filed their counter affidavit denying all the allegations made in the claim petitions and prayed for dismissal of the claim petitions. 4. On the side of claimants, Mr.Chandrasekaran (Claimant in MACTOP.No.213 of 1998) was examined as PW.1; Mr. Subbarayan (Claimant in MACTOP.No.218 of 1998) was examined as PW.2; and Dr.S.K.I.Raj, was examined as PW.3 and Exs.P.1 to P.21 were marked in MACTOP.No.213 of 1998. No oral and documentary evidence was adduced on the side of the respondents before the lower Court. 5. The lower Court had awarded a sum of Rs.83,000/- with interest at 9% p.a., in favour of the claimant with costs in MACTOP.No.213 of 1998 directing the 2nd and 6th respondents (3rd respondent and the appellant respectively in the appeal) to pay the same at the ratio of 50% each. Similarly, the lower Court had awarded a sum of Rs.1,91,889/- with interest at 9% p.a. and costs in favour of the claimant in MACTOP.No.218 of 1998 directing the respondents 2 and 6 (3rd respondent and appellant respectively in the appeal) to pay the same at the ratio of 50% each. The 6th respondent before the lower Court had preferred these two appeals against the said awards passed against it. The 2nd respondent before the lower Court (3rd respondent herein) had not preferred any appeal against the said awards. 6. Heard the learned counsel for the appellant and the learned counsel for the respondents 1 and 3. 7. The learned counsel for the appellant would submit in his argument that the lower Court had without resorting to any method acceptable in law had arrived the compensation which are on the higher side and the said compensation awarded by the lower Court should have been reduced to a justifiable level. He would further submit in his argument that the award of Rs.50,000/- for the permanent disability at 10% is not in accordance with law and similarly the award of a sum of Rs.25,000/- towards injuries and yet another sum of Rs.5,000/- for pain and sufferings for the claimant in MACTOP.No.213 of 1998 was repeated again and therefore those compensation awarded by the lower Court should have been modified. He would further submit in his argument that the award of compensation passed in MACTOP.No.218 of 1998 at Rs.85,680/- for the loss of earning power on the basis of multiplier method for 20% of the disability was also not in accordance with law. He would further submit that the award of compensation at Rs.25,000/- towards injuries when especially the compensation for permanent disability at Rs.85,680/- was awarded could also be a repetition. https://hcservices.ecourts.gov.in/hcservices/ He would further submit that the award of compensation for Rs.5,000/- towards pain and sufferings is another repetition and the expenditure said to have been meted out at Rs.73,209/- ought to have been proved and the said compensation should not have been awarded for want of proof and therefore he would submit that the said compensation awarded by the lower Court in both the claim petitions should have been revised and both the appeals may be allowed. 8. The learned counsel for the first respondent/ claimant-1 in both the appeals/claim petitions would submit in his argument that the lower Court had ventured into awarding of compensation after appraising the evidence and fixed the income of the claimants in both the claim petitions and had calculated the compensation for permanent disability after fixing the compensation for pain and suffering and injuries and also for medical expenditure and apportioned the liability equally against the appellant and the 3rd respondent herein. There is no infirmity or illegality in the said calculation of compensation. Moreover, the 3rd respondent who is one of the Judgment Debtors under the decree had not preferred any appeal against the verdict of the lower court and therefore, the appellant alone cannot question the composite liability and in the said circumstances, the appeal may not be allowed and both appeals have to be dismissed. 9. The learned counsel for the 3rd respondent would submit in his argument that the 3rd respondent herein (2nd respondent in the lower Court) was also directed by the lower Court to pay the compensation at the ratio of 50% in both the claim petitions and even though he has not preferred any appeal, he is entitled to the benefits that are all given to the appellant in these two appeals, since he is under the joint and composite liability to share the payment of compensation in favour of the claimants. 10. I have given anxious consideration to the arguments advanced by all the parties. 11. The sequences of the accident in which the claimants in both the petitions involved were not seriously questioned by the appellant, despite it has been raised in the grounds of appeal. The lower Court, after appraising the evidence, had come to the conclusion that the driver of the first respondent and the driver of the fifth respondent before the lower Court were equally responsible for the cause of accident and therefore the insurers, namely, the 2nd respondent and 6th respondent before the lower Court are equally responsible for compensating the claimants in both the petitions. On a careful https://hcservices.ecourts.gov.in/hcservices/ perusal of the evidence adduced on the side of the claim petitioners in connection with the accident, it is clear that the driver of the first respondent and the driver of the fifth respondent before the lower Court are found equally responsible for the accident. Therefore, the decision of the lower Court in respect of the apportionment of liability is upheld. 12. So far as the quantum for the claimant in MACTOP.No.213 of 1998 is concerned, he is said to have incurred injuries in accident and was certified to have 10% permanent disability by the Doctor, examined as PW.3. The wound certificate Ex.A2 would go to show that the said claimant had sustained injuries on his head and on the right hand. Since one of the injuries was inflicted on the head and the other injury was caused in the right hand with glass pieces, both the injuries could be considered as grievous injuries for the purpose of awarding compensation for pain and suffering. The said claimant had undergone treatment in the hospital and therefore he is found entitled for a sum of Rs.10,000/- towards pain and suffering. The said claimant was a Government Servant working in Commercial Tax Department as Assistant and was drawing a salary of Rs.6,157/- at the time of accident, which is proved by Ex.A9. The claimant who was stated to have sustained 10% disability was not relieved from his employment and therefore he should be deemed to have continued in the same employment. However due to the said accident and the treatment taken by him, he would not have attended the office for atleast one month to which his medical leave would have been utilised. Therefore a sum of Rs.6,157/- has to be awarded for the sake of temporary loss of income. There is no evidence adduced by the claimants that the disability as certified by the Doctor, PW.3, had affected his employment. Therefore, this Court could assess the compensation for permanent disability on non-pecuniary basis. The lower Court had adopted the method of calculating the compensation on the basis of multiplier method which is not correct in the wake of the facts and circumstances of the case. Therefore, when we calculate, the compensation for the permanent disability at Rs.1,500/- per one percentage, we could see that the sum of Rs.15,000/- could be awarded for permanent disability. Regarding the loss of convenience due to the disability is concerned, an additional sum of Rs.10,000/- may be awarded to the claimant towards the loss of amenities. The claimant would have employed some attendant for his convenience while taking treatment and would also have sustained expenditure. On that aspect, the claimant is entitled to a sum of Rs.5,000/- for attendant charges and Rs.7,000/- for medical expenditure. So far as the expenditure towards extra nourishment is concerned, the claimant could have been awarded a sum of Rs.3,000/-. Accordingly, the claimant in MACTOP.No.213 of 1998 is entitled to a sum of Rs.56,157/- (Rupees fifty six thousand one hundred and fifty seven https://hcservices.ecourts.gov.in/hcservices/ only) to which 9% interest from the date of petition till the date of realisation is permissible. 13. So far as the claimant in MACTOP.No.218 of 2008 is concerned, he is said to have sustained three injuries on his neck and on his face and had undergone three surgeries for removing the glass pieces. Therefore, we could see that those three injuries were grievous in nature for the purpose of pain and suffering and such injuries which are evidenced by Ex.A10 should have been awarded a sum of Rs.15,000/- towards pain and suffering. The claimant had undergone treatment at Krishna Hospital at Cuddalore, which is evidenced by Exs. A11 to A19. Those documents would go to show that the claimant was taking treatment for quite longer period. The medical bills produced as Ex.A15 to A19 would show that he had incurred an expenditure of Rs.73,209/- for the treatment. The lower Court had awarded the said amount in favour of the claimant. Since those documents are not disputed, the same amount is awardable to the claimant towards medical expenditure. The award of compensation towards extra nourishment at Rs.3,000/- would be also admissible. The claimant would have engaged an attendant for his treatment during the period of treatment. Therefore, he is entitled to a sum of Rs.5,000/- towards the said account. The claimant was said to have earned through Cinema Theatre business and was earning a sum of Rs.10,000/- per month. But the lower Court had taken the monthly income at Rs.2,100/- and for the temporary loss of income for a period of one month, a sum of Rs.2,100/- was sanctioned towards compensation. The lower Court had adopted the multiplier at 17 for the purpose of assessment of compensation under the head of permanent disability which was awarded at 20% as decided by the lower Court. The avocation and income were not proved by documentary evidence by the claimant. Apart from that the case of the claimant was not to the effect that his dear career was affected by permanent disability caused due to the injuries. Therefore, for assessing the compensation for permanent disability, non-pecuniary loss method should alone be adopted. Similarly, there is no justification for the lower Court to reduce the permanent disability from 30% to 20% when especially there was no reason stated by the lower Court. Hence, this Court is accepting the permanent disability at 30% as certified by the doctor. Accordingly, considering the age of the claimant being 28 at the time of accident, a sum of Rs.2,000/- per 1% could be adopted and consequently for 30% disability, a sum of Rs.60,000/- is arrived and ascertained towards compensation for permanent disability. Therefore, the claimant is totally entitled to a sum of Rs.158,309/- (Rupees one lakh fifty eight thousand three hundred and nine only). The lower Court had ascertained the compensation at Rs.1,91,889/- which is not correct. https://hcservices.ecourts.gov.in/hcservices/ 14. The case of the 3rd respondent Insurance Company herein (2nd respondent Insurance Company before the lower Court) was that whenever the total compensation payable to the claimant is reduced, even though he has not preferred any appeal, he is also to be benefitted whenever his co-obligant is given benefit by virtue of the appeal preferred by him. As found earlier, the 6th respondent before the lower Court, the appellant herein, had been benefitted in these appeals preferred by him against the award passed by the lower Court. The 2nd respondent (3rd respondent in appeals) is also on the same footing as he was also directed by the lower Court to pay 50% of the award amount payable to the claimants. When co-obligant is given with certain benefits, the other co-obligant should not have been directed to pay the same quantum of compensation as fixed by the lower court which are found to be not correct. Therefore what are the benefits attained by the appellant in this appeal (6th respondent before lower Court) should have also been made available to the 3rd respondent (2nd respondent before the lower Court). Therefore, the reduced compensation arrived at by the order of this Court is directed to be paid by the appellant as well as the 3rd respondent in the appeal (who are 6th and 2nd respondent respectively before the lower Court) to the respective claimant in both the appeals equally, ie., 50% each. 15. With the aforesaid direction, both the appeals are partly allowed. There is no order as to costs. Consequently, connected miscellaneous petition is closed. Mra Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Motor Accidents Claims Tribunal (Additional Sub Judge), Cuddalore. 2. The Record Keeper, V.R. Section, High Court, Chennai. + 2 ccs to Mr. K. Suriyanarayanan, Advocate SR Nos.62422 & 62423 + 2 ccs to Mr. N. Vijayaraghavan, Advocate SR No. 59194, 59195 RS(CO) SR/23.1.2009 Common Judgment in C.M.A.Nos.2252 and 2253 of 2003 and M.P.No.13592 of 2003 https://hcservices.ecourts.gov.in/hcservices/