IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3744 of 2004 and C.M.P.No.2105 of 2008 N.Rajan .. Appellant/Petitioner Vs 1.Muthukumar 2.The Divisional Manager National Insurance Co., Ltd., Chennai Division No.VI .. Respondents/Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 31.12.2003, made in M.C.O.P.No.651 of 2001, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Pondicherry. For appellant : Mr.R.Sunil Kumar For respondents : Mr.D.Baskaran, for R2 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/petitioner against the Award and Decree, dated 31.12.2003, made in M.C.O.P.No.651 of 2001, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Pondicherry, awarding a compensation of Rs.2,90,604/- with 9% 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/petitioner has filed the above appeal praying to enhance the compensation from Rs.2,90,604/- to Rs.10,00,000/-. 3.The short facts of the case are as follows: On 16.06.2001, at about 10.30 a.m. while the petitioner was riding on a bicycle, on the Pondicherry Vazhudavur road, proceeding from west to east, a Toyota Car bearing registration No.TN04 R3000 belonging to the first respondent, also proceeding on the same direction to Pondicherry, driven by its driver in a rash and negligent manner, hit against the petitioner. The petitioner was thrown on the gravel heal heaped on the road side and thereby the petitioner sustained injury on his right https://hcservices.ecourts.gov.in/hcservices/ forehead, eyes and at backbone (8, 9, 10) resulting in paralysis of his lower abdomen region. At once, the petitioner was taken to Government General Hospital, Chennai, and admitted as in- patient. 4.A case was registered against the driver of the first respondent vehicle under Sections 279 and 338 of I.P.C by the Villianur Police Station in Crime No.321/2001. 5.The petitioner was working as a Pump Operator at Pondicherry University and earning a sum of Rs.6,000/- per month. Due to the accident, the petitioner has sustained injury in his spinal cord and his vertebrate have been fractured. The nervous system below his abdomen has collapsed. He could not resume doing his duty. As such, the petitioner's family is put to mental agony and financial loss. As the first respondent's vehicle is insured with the second respondent, both the respondents are jointly and severally liable to pay the damages. The petitioner has claimed a total compensation of Rs.22,00,000/- along with interest and costs from the respondents under Sections 166(1)(a)(b)(c) of the Motor Vehicles Act, 1988. 6.The second respondent, the Divisional Manager, National Insurance Co., Ltd., Pondicherry, in his Counter has resisted the claim stating that the first respondent has not intimated them about the accident and so has denied that the said vehicle is insured with them. Further, the second respondent has denied that the driver of the Car had valid and subsisting driving licence to drive the LMV at the time of the accident. It has further been submitted that the petitioner attempted to cross the road, without showing any hand signal and without noticing the oncoming vehicle, which had resulted in the accident. As such, the petitioner himself is responsible for the accident. 7.Further, the age, income and occupation of the petitioner has not been admitted. The claim is also excessive and speculative and devoid of merits and hence the second respondent, has prayed for dismissal of claim with costs. 8.The first respondent, in his Counter has also denied all the allegations found in the petition and submitted that the accident was due to the negligence on the part of the petitioner. The first respondent further submitted that his vehicle is insured with the second respondent herein and the driver of the vehicle also has a valid driving licence. He has contended that in any event, he is not liable to pay any compensation as alleged in the petition and has prayed for dismissal of the petition as against him. 9.In the additional Counter filed by the second respondent, it has been submitted that for the accident alleged to have taken place on 16.06.2001, the FIR has been registered only on 29.08.2001 ie. after a delay of 74 days and that this is proof https://hcservices.ecourts.gov.in/hcservices/ that a false FIR has been registered implicating the vehicle of the insured in the accident. 10.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Whether the accident occurred due to the rash and negligent driving of the car bearing registration No.TN04 R3000, belonging to the first respondent? (ii) Whether the petitioner is entitled to receive any compensation? If so, what is the quantum and who is liable to pay the same? 11.On the petitioner's side, three witnesses were examined as PW1 to PW3 and 22 documents were marked as Exs.P1 to P22. On the respondents' side, no witness was examined and no documents were marked. 12.The petitioner himself was examined as PW1 and through him Exs.P1 and P3 were marked. Ex.P1 is the copy of the FIR, registered against the driver of the Car and Ex.P3 is the Motor Vehicle Inspector's Report, which discloses that the mechanical condition of the vehicle was satisfactory, brake efficiency normal and the accident could not have occurred due to any mechanical defect in the vehicle. The driver of the Car was not examined by the respondents to rebut the evidence of the petitioner that the accident occurred due to the rash and negligent driving of the Car. 13.The petitioner's wife, Muthulakshmi, was examined as PW2 and during the course of examination she deposed that immediately after the accident, she had taken her husband to Government General Hospital, Chennai, where he was treated as in-patient from 16.06.2001 to 09.11.2001. Since, her husband the petitioner, was seriously injured and since he could not move without anybody's help and as there was no one to help them, she could not lodge the complaint in time. To prove the same, she has marked the Discharge Slip issued by the Government Hospital, Chennai as Ex.P8. Hence, in the absence of any contra evidence, the Tribunal held that the accident occurred due to the rash and negligent driving of the Car belonging to the first respondent. 14.The PW1 has marked Ex.P4-RC Book and Ex.P5-Insurance Policy for the Car, which shows that the vehicle had valid insurance on the date of accident. Further, on scrutiny of Ex.P7, it is evident that the driver of the Car possessed valid driving licence on the date of the accident. 15.To prove the injuries sustained by him in the accident, the PW1 has relied upon Ex.P8-the Admission and Discharge Certificate issued by the Government Hospital, Chennai, wherein https://hcservices.ecourts.gov.in/hcservices/ it is stated that the petitioner was treated as in-patient from 16.06.2001 to 09.11.2001; Ex.P9-Discharge Summary issued by Department of Orthopaedic Surgery and Traumatology, Government General Hospital and Madras Medical College, Chennai, wherein it is stated that the petitioner is suffering from dislocation of complete paraplegea; Ex.P10-Discharge Slip issued by the Government Institute of Rehabilitation, Chennai, wherein it is stated that the date of admission of the petitioner in the hospital is 10.11.2001 and the date of discharge is 14.12.2001, with a diagnosis as complete paraplegea – ASIA Scale; Ex.P11- Certificate issued by Government Institute of Rehabilitation Medicine, K.K.Nagar, Chennai; Ex.P12-Disability Certificate issued by the Government Institute of Rehabilitation Medicine, K.K.Nagar, Chennai and Ex.P13-Discharge Slip issued by Department of Physical Medicine and Rehabilitation-cum-Artificial Limb fitting Centre, Pondicherry, wherein it is mentioned that the petitioner was admitted in the Hospital on 10.01.2002 and discharged on 08.05.2002. Besides these, the petitioner has also examined Dr.Shanmugananda, Ortho Surgeon as PW3, who after clinically examining the petitioner has issued the Disability Certificate-Ex.P22 with a finding that the petitioner has fracture and dislocation of D9-10 vertebrate and he assessed the disability at 90%. The learned counsel appearing for the respondent contended that the percentage of disability is excessive. 16.On perusal of Exs.P8 to P13, which are the Discharge Slip and Certificates issued by the Government General Hospital, Chennai and Pondicherry, it is clear that from the date of accident, ie. from 16.06.2001 till 08.05.2002 ie. nearly one year, the petitioner was an in-patient in various Government General Hospitals. Ex.P12 is the Certificate issued by Rehabilitation Institute, Chennai, wherein it is clearly mentioned that the petitioner is physically handicapped and has 90% disability. As such, the Tribunal held that the assessment of disability is justified. 17.To prove, the medical expenses incurred by him, the petitioner has marked Exs.P14 and P15 series, Exs.P16 and P17, which shows that the total expenses are Rs.38,274.65. With regard to the travelling expenses incurred by him, he has marked Ex.P18 series for Rs.9,295/-. Further, the petitioner was continuously treated for more than one year and he has been, continuously, on leave. Ex.P20 is the Service Certificate, wherein it has been mentioned that the petitioner's monthly income is Rs.5,618/-. Therefore, the Tribunal on consideration of this awarded a compensation of Rs.73,034/- (Rs.5,618 X 13) for the loss of income incurred by the petitioner for 13 months. Further, the Tribunal on consideration of the disability sustained by the petitioner was of the view that the petitioner would not be able to do the same work that he was doing before the accident. They further opined that his disability might prove to be a hindrance for getting promoted in his work and as https://hcservices.ecourts.gov.in/hcservices/ such they awarded a sum of Rs.50,000/- to the petitioner under the head of future loss of income. 18.The Tribunal on consideration of the facts and circumstances of the case, awarded the following amounts as compensation to the petitioner under various heads. 1.For Permanent Disability : Rs.90,000/- 2.For Medical Expenses : Rs.38,275/- 3.For Travelling Expenses : Rs. 9,295/- 4.For Nutrition : Rs.10,000/- 5.For Loss of Income : Rs.73,034/- 6.For Future Loss of Income: Rs.50,000/- 7.For Pain and Suffering : Rs.20,000/- ----------------- Rs.2,90,604/- ----------------- 19.The Tribunal directed the second respondent to pay the above mentioned award, together with interest at the rate of 9% per annum, from the date of petition till the date of payment of compensation, into the credit of the M.C.O.P.No.651 of 2001, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Pondicherry. Out of the award amount, the Tribunal ordered that a sum of Rs.1,00,000/- was to be deposited in Syndicate Bank, Pondicherry for a period of three years, with liberty to the petitioner to withdraw the interest on such deposit once in three months directly from the Bank. The Tribunal permitted the petitioner to receive the remaining award amount of Rs.1,90,604/- along with interest and costs directly from the Tribunal, after such deposit was made. The petitioner was directed to pay the deficit Court fees, if any, within a month. The cost of the petition was fixed at Rs.8,241/-, which is inclusive of Advocate fees of Rs.5,956/-. 20.The learned counsel appearing for the appellant has contended in his appeal that the award of Rs.2,90,604/- granted as compensation by the Tribunal is meagre considering the fact that the petitioner has been rendered a Paraplegic and he would not be able to undertake any work in future. Further, it was contended that as the loss of earning capacity is 100%, the award of Rs.50,000/- granted for future loss of income is erroneous. Further, it was contended that the Tribunal ought to have seen that the petitioner had completely lost his livelihood and the Tribunal should have awarded compensation to the petitioner for loss of amenities of life, loss of matrimonial facility, pain and suffering, future medical expenses, nursing charges as claimed in the petition. As such, the learned counsel for the appellant had prayed for enhanced compensation of Rs.10,00,000/-. 21.The learned counsel for the appellant, in support of his contentions, has cited the Judgments made in (1999) 4 Supreme Court Cases 22, Ashwani Kumar Mishra Vs. P.Muniam Babu and Others, the relevant head notes of which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "A. Motor Vehicles – Motor Vehicles Act, 1988 – Ss. 140, 141, 142, 146, 147, 149, 166, 168, 171, 173 – Compensation, criteria for awarding – Some guesswork, some hypothetical consideration and some amount of sympathy linked with the nature of the disability caused are all involved – But all such elements are required to be viewed with objective standards – Held, appellant, who was permanently disabled by the accident, was right in claiming a monthly income of Rs.2000 while working with his father though not formerly employed – Absence of documentary evidence to show employment inconsequential – Compensation amount awarded by High Court raised from Rs.2,25,000 to Rs.5 lakhs – Motor Vehicles Act, 1939, Ss. 92-A, 92-B, 92-C, 110, 110-A, 110-B, 110-C, 110-D, 94, 95 & 96. B. Motor Vehicles – Motor Vehicles Act, 1988 – Ss. 140, 141, 142, 146, 147, 173 – Compensation for person working but not formally employed – Accident victim working informally with father can claim regular monthly income for purposes of assessment of compensation – Appellant, a young man aged 23 at the time of the accident, claiming monthly income of Rs.2000 as assistant to father- owner of construction company – Held, on facts, it cannot be disputed that the appellant was contributing to and augmenting the income of his father – Some guesswork has to be applied while assessing the loss – Appellant's claim allowed – Motor Vehicles Act, 1939, Ss.92-A, 92-B, 92-C, 110-A, 110-D. C. Motor Vehicles – Generally – Damages, assessing of – Court cannot base its opinion merely on speculation or fancy though conjectures to some extent are inevitable. D. Motor Vehicles – Generally – Compensation – Age of victim:23 years – Approximate earnings Rs.2000 per month – Serious injury to spinal cord resulting in permanent disablement – Multiplier applied:16." (2005) 10 Supreme Court Cases 720, New India Assurance Co., Ltd., Vs. Charlie and Another, the relevant head notes of which reads as follows: "A. Motor Vehicles Act, 1988 – S. 168 – Motor accident – Compensation – Multiplier method – Determination of multiplier, explained – Factors to be considered, enumerated – Age and source and https://hcservices.ecourts.gov.in/hcservices/ nature of income of deceased/victim, prevailing rate of interest in economy – Deduction to be made for personal expenditure, held, cannot be governed by any rigid rule or formula by universal application – It depends on facts of each case – In present case, since claimant had received injuries causing 100 per cent disability, logic applicable to victim of fatal accident applied – Victim being 37 years old, being married, and deriving income from agriculture, held, multiplier of 18 and 1/3rd deduction appropriate – Quantum of compensation fixed at Rs.3,50,000, to be paid with interest @ 7.5 per cent per annum from date of filing petition to date of payment – Further held, normal rule of deprivation of income is directly not applicable to case where agricultural income is source of deceased's or injured's income – Other circumstances have to be considered in such a case – Fatal Accidents Act, 1855, S. 1-A – Civil Procedure Code, 1908, S. 34. B.Motor Vehicles Act, 1988 – S. 168 _ Motor accident – Victim suffering 100 per cent disability – Compensation – Determination of – Held, in case where victim has suffered 100 per cent disability, logic applicable to victim of fatal accident can, in appropriate cases, taking note of all relevant factors, be reasonably applied – Factors to be considered in determination of quantum of damages in case of fatal accident, enumerated – Difficulties involved therein, discussed – Manner of arriving at damages explained in detail – Multiplier method, explicated – Held, in every case it is the overall picture that matters and court must try to asses as best as it can the loss suffered – Fatal Accidents Act, 1855 – S. 1-A – Torts – Damages/Compensation – Quantum – Determination of." A.A.O. No.326/1992, dated February 12/1993, High Court of Madras, Mgt. Of Tamilnadu Cement Corporation Ltd., and N.Jayapalan, the relevant head notes of which reads as follows: "Workmen's Compensation Act, 1923 – Permanent disability – Despite that, workman employed higher salary – It will not disentitle workman to claim damages for disability – Opinion of Doctor on loss of earning capacity – It is a guide for Court to assess damages. https://hcservices.ecourts.gov.in/hcservices/ HELD: There is nothing in the language of Sec.4 (1)(c)(ii) of the Workmen's Compensation Act to support the proposition that the said provision gives finality to the assessment of the Doctor in regard to loss of earning capacity. It can only be held that the percentage of permanent disability as fixed by the Doctor is a proper guide to assess the damages by the Court. Merely because the employer pays the same or more salary to the workman, even after permanent disability, it cannot be said that there is no loss of earning capacity. If the law were to be so, the employer can easily evade the provisions of the Act by continuing the employment on the same terms as were enjoyed by the workman prior to the accident. Nor again can it be said that if in future workman is compelled to seek employment at reduced wages, he can claim compensation. That would result in the negation of beneficial provisions of the Act. Further, the management winds its business, workman will be in a lurch because no person will give employment to a person who suffered the injury." Vol.52 FJR 67, Rajasthan High Court, Executive Engineer, PWD (B & R), Udaipur and Another V. Narain Lal, the relevant head notes of which reads as follows: "Workmen's Compensation Act, 1923, Section 4(1) (ii) – Permanent Partial Disablement – Reduction in earning capacity – Computation of – Matters to be considered – Workman continued in same employment by employer – Does not mean that no loss has been suffered. The theme of the Workmen's Compensation Act, 1923, is to provide security to a workman who sustains partial incapacity resulting in a loss in his earning capacity. The protection so afforded to the workman is independent of the acts of grace or mercy which the employer might show to him. In a welfare State, the protection afforded to a disabled workman cannot be allowed to rest on the mercies and grace shown by the employer. If the employer does so, it is commendable, but the workman has still a stake for his employment which is guaranteed to him under the Act. The fact that the workman is still continuing in the same employment with all its benefits and normal increments due to the grace of the employer is not a decisive factor because it does not mean that the workman has not suffered any loss in the earning capacity. Therefore, the loss in the earning capacity has https://hcservices.ecourts.gov.in/hcservices/ to be calculated in terms of the permanent partial disability which the workman has been subjected to. What has to be found out is the reduction in earning capacity suffered by the workman in every employment which he was capable of undertaking at the time of the accident." 22.The learned counsel for the appellant further argued that the claimant was admitted as in-patient in the Government Hospital, Chennai, from 16.06.2001 to 09.11.2001. Thereafter, he was admitted as in-patient in the Government Institute of Rehabilitation Center, Chennai, from 10.11.2001 to 14.12.2001. The claimant has sustained 90% disability, which had been certified by a competent Doctor. The award granted by the Tribunal is on the lower side. 23.The learned counsel for the respondent has argued that the claimant's earnings have not been affected and that the compensation granted by the Tribunal is reasonable and fair. It is only due to negligence on the part of the claimant that the accident had happened. As the claimant underwent treatment in Government Hospitals, he is not entitled to get any compensation from the Insurance Company for medical expenses. The loss of income assessed by the Tribunal is erroneous. Hence, it was prayed for the appeal to be dismissed. 24.Considering the facts and circumstances of the case and arguments advanced by the learned counsel on either sides, the Court is of the view that the claimant sustained grievous fracture injuries. Further, he was admitted in the Government Hospital, Chennai, from 16.06.2001 to 09.11.2001. Again, he had been admitted in the Government Institute of Rehabilitation Centre, for further treatment, from 10.11.2001 to 14.12.2001. Further, he was admitted in the artificial limb fitting centre, Pondicherry, from 10.01.2002 to 08.05.2002. So, the claimant had undergone treatment as in-patient for about 11 months besides being treated as out-patient. Considering this aspect, the Court confirms the award of Rs.73,034/- granted by the Tribunal under the head of loss of income. 25.For the permanent disability sustained by the petitioner, the Tribunal awarded a sum of Rs.90,000/- for 90% disability. This Court, considering the nature of grievous injuries, grants an award of Rs.1,80,000/- for 90% disability sustained by the petitioner (taking Rs.2,000/- for 1% disability). 26.For pain and suffering, the Tribunal awarded a sum of Rs.20,000/-, this Court awards a sum of Rs.40,000/-, considering the period of hospitalisation and nature of injuries sustained by him. 27.This Court confirms the award of Rs.38,275/- granted by the Tribunal for medical expenses and Rs.9,295/- for travelling https://hcservices.ecourts.gov.in/hcservices/ expenses. 28.For nutrition, the Tribunal had awarded a sum of Rs.10,000/-, this Court grants a sum of Rs.20,000/- to the claimant under the head of nutrition. 29.For attender charges for 13 months, the Court awards a compensation of Rs.39,000/- (taking Rs.3,000/- as monthly charges to be paid to an attender and multiply it by 13 months, which is the period of hospitalisation). 30.The Tribunal had awarded a sum of Rs.50,000/- as compensation under the head of loss of income and this Court confirms the award under this head as the claimant has been forced to resign from his job due to the injuries sustained by him in the accident. 31.As the claimant, due to his disability, has to depend on the help of attendants in the future. This Court grants an award of Rs.50,000/- for future attendant charges. 32.This Court grants an award of Rs.25,000/- for loss of pleasures of life to the claimant. In total, this Court awards a compensation of Rs.5,24,604/- together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment as this is found to be equitable and fair in the circumstances of the case. 33.Already, the Tribunal had granted a sum of Rs.2,90,604/- as compensation to the claimant. This additional compensation amount granted by this Court ie. a sum of Rs.2,34,000/- together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment, is to be deposited by the second respondent/National Insurance Company, within a period of four weeks, into the credit of the M.C.O.P.No.651 of 2001, on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Pondicherry. After such deposit is made, it is open to the claimant to withdraw the said amount, by filing necessary payment out application, in accordance with law. 34.In the result, the above Civil Miscellaneous Appeal is partly allowed and the award and decree passed by the Motor Accident Claims Tribunal, Principal Sub Court, Pondicherry, in M.C.O.P.No.651 of 2001, is modified. Consequently, connected miscellaneous petition is also closed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar krk https://hcservices.ecourts.gov.in/hcservices/ To 1.Motor Vehicles Accident Claims Tribunal, Principal Sub Court, Pondicherry. 2. The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr.D.Bhaskaran,Advocate,SR.1947 + 1 cc to Mr.R.Sunil Kumar,Advocate,SR.2825 C.M.A.No.3744 of 2004 TEJ(CO) EM/8.2.10 https://hcservices.ecourts.gov.in/hcservices/