IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.8.2010 C O R A M THE HONOURABLE Mr.JUSTICE B.RAJENDRAN C.M.A. Nos.409 to 411 of 2007 and M.P.No.1 of 2008 Moses ... Appellant in CMA.No.409 of 2007/Claimant Aruldoss ... Appellant in CMA.No.410 of 2007/Claimant Devaraj ... Appellant in CMA.No.411 of 2007/Claimant Versus 1.Smt.Dhanabakkiayam 2. The United India Insurance Co.Ltd Vellore to Katpadi Road, TKM Complex, Vellore ... Respondents in all appeals/Respondents Prayer : Appeals filed under Section 173 of the Motor Vehicles Act 1988 against the Fair and decreetal order dated 28.8.2006 made in MCOP. Nos. 339 of 2004, 338 of 2004 and 343 of 2004 on the file of the Motor Accidents Claims Tribunal, Sub Court, Gudiyattam. For Appellant in all Appeals : Mr. V.Parivallal For R1 in all Appeals : No Appearance For R2 in all Appeals : Mr.D.Baskaran C O M M O N J U D G M E N T The claimants have preferred these appeals seeking for enhancement of compensation. By consent of both parties, all the appeals are taken up together since they pertain to same accident. 2. According to the claimants, on 17.11.2004 at 1.15 pm. at Pulianthangal lake bend near Sipcot Ranipet, when the claimant in MCOP.No.339 of 2004 was driving the Maruthi Car, the bus bearing No.TN.23-D-0405 coming in the opposite direction, over took another bus in a rash and negligent manner and dashed against the car. In the impact, the claimant in MCOP.NO.339 of 2004 had sustained grievous injuries all over the body and the claimants in MCOP.Nos.338 and 343 of 2004 had sustained fractures on left hip bone, left side 8th rib and right jaw. They took treatment at Vellore CMC hospital and the Doctors have assessed disability at 98% for the claimant in MCOP.No.339 of 2004, 50% for the claimant in MCOP.No.338 of 2004 and 60% for the claimant in MCOP.No. 343 of 2004. But the Court below, after considering the evidence, has accepted the disability at 98% in respect of the first case and insofor as the other two cases are https://hcservices.ecourts.gov.in/hcservices/ concerned, it reduced the disability to 15% and 20% respectively and awarded compensation as Rs.1,49,000/-, Rs.55,436/- and Rs.71,229/- respectively by fixing the responsibility at 60% on the driver of the bus and 40% on the driver of the car, namely, the claimants. Aggrieved against the quantum as well as liability at 40%, the Claimants have come forward with these appeals on the ground that the Maruthi Car being a small car, when it was dashed by the bus, the liability can only be fastened on the driver of the bus and not against claimants. 3. The respondent – Insurance Company would contend that they have not preferred any appeals as against the Award granted by the Court below as they accepted the liability at 60% : 40% and also the quantum. But as far as the enhancement is concerned, they would mainly contend that in the case of Paraplegia, entire 98% was taken in to consideration by the Court below and in respect of other two cases, they would only contend that the lower Court, after considering the evidence, has rightly fixed the disability at 15% and 20% and awarded compensation. Hence, they would contend that the Award granted by the Court below is fair, reasonable and correct. 4. Heard both sides. The point for consideration in these appeals are: 1. whether the Award granted by the Court below is fair, reasonable and correct? 2. Whether the liability fastened on the driver of the Car is correct? 5. At the outset, the Claimants would mainly argue in respect of liability fastened on the driver of the car. It is a clear case that the accident took place in the bend of Pulianthangal lake, near Sipcot Ranipet. In the petition itself, they would contend that the accident took place at the lake bend but in evidence it is clear that the vehicle dashed against each other. No doubt, the Car being a small Maruthi car, when the bus dashed against it, it was totally taken away. But the contention of the learned counsel for the appellants is that when the FIR and charge sheet have been made only against the driver of the bus, there cannot be any liability fastened on the driver of the car at all. In the evidence of P.W.2 and P.W.3, it is stated that the bus was coming from the opposite direction in a rash and negligent manner and a head on collusion took place in the highway between the bus and the car. If the versions of P.W.2 and P.W.3 are correct that the bus was coming in a rash and negligent manner, nothing prevented the driver of the car, either to stop the vehicle or taking the vehicle to left side of the road. The fact that the driver of the car, namely, Moses, was also driving the vehicle in the same speed especially when there was a head on collusion with two vehicles would clearly show that the driver of the car has not taken any precautionary steps at least to stop the vehicle. 6. From the evidence of P.W.2 and P.W.3, who are the eye witnesses, it is clear that the accident had took place due to head on collusion between the Maruthi Car and the Bus. Hence, the driver https://hcservices.ecourts.gov.in/hcservices/ of the car necessarily should be fastened with some liability. Merely because the complaint was given by the driver of the car and the charge sheet has been laid against the driver of the bus, the driver of the car cannot escape from the responsibility or liability. No doubt, the Court below, relying upon the decision of Supreme Court reported in BIJOY KUMAR DUGAR V. BIDYADHAR DUTTA AND OTEHRS (2006 (3) CTC 122 (SC), has come to the conclusion that 40% could be apportioned in the case of head on collusion and it awarded 40% liability on the driver of the car. But the learned counsel for the appellant would contend that since Maruthi car is a small one, the damage is more because of the impact of the bus and hence, the liability could not be fastened. But this Court, feels that the liability should be fastened on the driver of the car driver as admittedly the accident took place due to the collusion especially in the bend of the road. Therefore, the appellants/claimants are also liable for the accident and 20% liability is fastened on the driver of the car and 80% has to be borne by the Insurance company, instead of 40% on the driver and 60% by the insurance company, as fixed by the court below. 7. As far as quantum is concerned, we decide the same one by one. In respect of the C.M.A.No.409 of 2007 (MCOP.No.339 of 2004), the claimant, namely, Moses, had sustained the following injuries:- 1. Fracture D9 Vertebral region 2. D8 over D9 Vertebra dislocation with complete paraplegia. The doctor, who examined him, issued a disability certificate under Ex.P31. Ex.P5 is the wound certificate. Exs.P6 and P7 are the discharge summary. According to him, he took treatment as inpatient for a period of more than four months i.e. from 17.11.2004 to 24.2.2005 and thereafter from 23.1.2006 to 25.2.2006. In Ex.P31, disability certificate, the Doctor had assessed 98% disability because of paraplegia. He is unable to move and still he is in bed. Photographs were produced to show the extent of injury sustained by him. The Court below has also seen him in Court at the time of his evidence. Since the claimant has completely lost his movement because of the accident and he is suffering from paraplegia, which is a permanent disability, the Doctor has rightly certified 98% disability. In this case, definitely, compensation could be awarded under the multiplier method because his future earning power is totally lost because of the accident and the evidence is that he is unable to work at all, unable to move and totally he is in bed. For further treatment, he is still attending to the hospital by wheel chair. Under those circumstances, since he was employed as a driver and as per the evidence of P.W.1, wife, he has lost his job as driver, necessarily he has to be compensated. Even if Rs.3,000/- is fixed towards his earning, which he will be loosing per month, Rs.36,000/- will be the loss of annual income. Considering the age of the claimant, who is aged about 51 years, if multiplier 11 is applied, the actual income would be Rs.3,000x12x11 = 3,96,000/-. If 10% is deducted towards the percentage of disability, it will come to Rs.3,56,400/- which would be fair and reasonable calculation in respect of loss of income. But the lower Court has given Rs.1,000 https://hcservices.ecourts.gov.in/hcservices/ per percentage of disability and awarded (98x1000) 98,000/- which is very meagre. Hence, under this head, the award is modified to Rs.3,56,400/-. The lower Court granted a sum of Rs.6000/- towards medical bill which is hereby confirmed. Insofar as the amount of Rs.25,000 towards vertiral fracture and Rs.20,000/- towards fracture of rib are concerned, it cannot be granted when compensation under the head permanent disability has been granted. 8. The Court below has not awarded any amount towards pain and suffering. Taking into consideration that the claimant was in the hospital for more than four months, a sum of Rs.50,000/- is awarded under this head. Further, the Court has not granted any amount towards extra nourishment. Taking into consideration the age and the treatment he undergone, a sum of Rs.10,000/- is awarded under this head. The lower Court has not granted any amounts towards transport. Hence, a sum of Rs.5,000/- is awarded under the head Transport charges. The Court below has not awarded any amount towards attendant charges. Taking into consideration that he was hospitalised for four months, a sum of Rs.5,000/- is awarded under this head. Thus, totally, the Award is enhanced to Rs.4,32,400/-. Out of this, 80% would be liable to be paid by the Insurance company and the 20% is fastened on the claimant. 9. Insofar as C.M.A.No.410 of 2007 (the claimant, namely, Aruldoss) is concerned, as per Ex.P32, Disability certificate, Doctor has certified 50% disability since he is not able to stand or sit and unable to pass motion by squatting position. But no other difficulty has been mentioned. Even though the disability recommended by the Doctor is very high, the lower Court reduced the same to 15% and on that basis, awarded a sum of Rs.15,000/- . The lower Court awarded a sum of Rs.20,436/- towards medical bills and Rs. 20,000/-towards fracture. Thus, the Court below awarded a sum of Rs.55,436/-. No doubt, 50% disability is very high. Further, he was hospitalised for 8 days. Hence, the percentage of disability can be reduced to 25% and at the same time, the Court below has only granted Rs. 1,000/- per percentage which may not be correct taking into consideration the age and the fracture he sustained in the hip. As per the decision of the Hon`ble Supreme Court up to Rs.2000/- can be awarded per percentage of disability. Hence, (25 x 2000) Rs. 50,000/- is awarded under the head disability. But the lower Court has not granted any amount towards pain and suffering. Hence, a sum of Rs.15,000/- is awarded towards pain and suffering. The lower Court has awarded a sum Rs. 20,436/- towards medical bill. But as per the evidence, his father who was employed at Vellore CMC hopsital, which do not charge or collect any money from the patients, whose parents are working in the very same hospital itself and it is also clearly mentioned that no receipt has been produced. Therefore, the said amount has to be set aside. But the lower Court has not awarded any amount towards extra nourishment and transport. Taking into consideration the age of the claimant, Rs.10,000/- is awarded under the head transport and extra nourishment. Hence, compensation should be increased from Rs.55,436 to Rs.75,000/- Out of this 80% shall be borne by the Insurance company and the remaining 20% is fastened on the claimant. https://hcservices.ecourts.gov.in/hcservices/ 10. Insofar as the CMA.No.411 of 2007 is concerned,the claimant sustained fracture on the left side 4,5 and 6 ribs, on the right side 2,3 ribs and right shoulder blade bone. He was admitted on 18.11.2004 and discharged on 29.11.2004. As per the Doctors' evidence and discharge certificate Ex.P33, he got disability at 60%. As per the discharge certificate, he sustained the following injuries:- 1. Abrasion over the left forehead 2. Sutured laceration over the left cheek 3. Tenderness over both sides of the chest with subcutaneous emphysema. 4. Tenderness, swelling and abnormal mobility over right clavicle 11. After considering the oral and the documentary evidence, finding that the disability assessed at 60% is high, the lower Court reduced the same to 20% which is fair and reasonable. The lower Court has granted Rs.20,000/- towards disability by fixing Rs.1,000/- per percentage of disability. Taking into consideration the age and as per the decision of the Hon`ble Supreme Court, it can be increased to Rs.2,000 per percentage. Hence, a sum of Rs.40,000 (20 x 2000) is awarded under this head. The lower Court has granted Rs.24,229/- towards medical bills. Since no receipt has been produced and he has taken free treatment, the amount of Rs.24,229 granted under the head medical bills is hereby set aside. Similarly, compensation of Rs.10,000/- granted under the head fracture of clavical bone and Rs. 17,000/- under the head fib fracture are overlapping as per the Full bench of this Court. Hence, compensation awarded under those headings are set aside. The lower Court has not granted any amount towards pain and suffering. Considering the fracture sustained by the claimant, a sum of Rs.15,000/- is awarded under the head pain and suffering. Further, no amount was granted by the Court below towards Transport and Extra nourishment. Considering the fact that the claimant was hospitalised for more than 10 days, a sum of Rs.10,000/- each is awarded under the head Transport and Extra Nourishment. Ultimately, the award is modified as follows:- Disability : Rs. 40,000 Pain and suffering : Rs. 15,000 Extra nourishment : Rs. 10,000 Transport : Rs. 10,000 ========== Rs.75,000.00 ========== 12. In the result, the claimant is entitled to Rs.75,000 as against 71,229/- awarded by the Court below. Out of this, 80% shall be borne by the Insurance company and the remaining 20% is fastened on the claimant. 13. Insofar as interest is concerned, the lower Court has granted 6%. In view of the fact that the accident that took place in the year 2000, insofar as enhanced compensation is concerned, the claimants are entitled to interest at 7.5% from the date of claim https://hcservices.ecourts.gov.in/hcservices/ petition till the date of deposits. 14. In the result, all the three appeals are allowed and the Award is enhanced from Rs. 1,49,000/- to 4,32,400/-, Rs.55,436/- to Rs.75,000 and Rs.71,229/- to Rs.75,000/-. Out of the amount awarded, only 80% is payable by the insurance company in each of the cases and the balance 20% is to be borne by the claimants themselves. No costs. Consequently, connected Miscellaneous Petitions are closed. 15. 2nd respondent is directed to deposit the enhanced compensation along with interest at 7.5.% within a period of 8 weeks from the date of receipt of a copy of this order. On such deposit, the appellant are at liberty to withdraw, less the amount, if any, already withdrawn. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar ga/rsh To 1.The Motor Accidents Claims Tribunal, Sub Court, Gudiyattam. 2.The Section Officer, V.R.Section, High Court, Madras 2 cc to Mr.V.Pari Vallal, Advocate, Sr.No.60736 3 cc to Mr.D.Bhaskaran, Advocate, Sr.No.60818,60819,60820 CMA Nos.409-411 of 2007 NG {CO} TP/11.1.2011. https://hcservices.ecourts.gov.in/hcservices/