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2007 DIGILAW 58 (MAD)

V. Karupannan & Another v. Vallieswari

2007-01-04

P.D.DINAKARAN

body2007
Judgment :- P.D. Dinakaran, J. This appeal is directed against the judgment dated 23. 1998 made in M.C.O.P.No.116 of 1996, whereby the Motor Accidents Claims Tribunal (Sub Judge), Salem, has allowed the claim petition and awarded a compensation of Rs.3,09,709/-(Rupees Three lakh nine thousand seven hundred and nine only) with interest at 12% p.a. for the injuries sustained by the respondent/claimant, in a motor accident said to have taken place on 212. 1995 near Kacheri Road at Erode. 2. 1. On 212. 95 at about 6.45 p.m., when the respondent/claimant was travelling as a pillion rider in the scooter bearing Registration No.TN-36-A-2606 driven by one Sakthivel near Kacheri Road at Erode, the lorry bearing Registration No.TTS-6810 belonging to the first appellant herein was driven by its driver in a rash and negligent manner, on account of which, it dashed behind the scooter, as a result, the respondent/claimant sustained grievous injuries including fracture. 2. 2. As the respondent/claimant suffered grievous injuries, she filed a claim petition in M.C.O.P.No.116 of 1996 claiming that she was aged 32 years at the time of accident and was working in a power press as a peon earning Rs.1,200/-per month and due to the said accident, she suffered permanent disability and other losses and hence, her claim for Rs.5,00,000/- under various heads has to be allowed. 3. The said claim was resisted by the appellants on the grounds that the accident had occurred only on account of the negligent driving of the rider of the scooter and not on account of rash and negligent driving of the driver of the lorry and since the rider of the scooter was not impleaded as a party, the petition is not maintainable for non-joinder of necessary party. The amount of compensation claimed by the first respondent was also disputed that the same is excessive and that the claimant has to prove with regard to her age, job and income. 4. The Tribunal, after framing the issues and after taking into consideration the evidence, both oral and documentary, by its impugned judgment, held that the accident occurred only due to negligent driving of the driver of the lorry of the first appellant and hence, the appellants are liable to pay compensation to the respondent/claimant. 4. The Tribunal, after framing the issues and after taking into consideration the evidence, both oral and documentary, by its impugned judgment, held that the accident occurred only due to negligent driving of the driver of the lorry of the first appellant and hence, the appellants are liable to pay compensation to the respondent/claimant. The Tribunal also held that the respondent/claimant is entitled to the compensation for the injuries sustained by her and accordingly, determined a sum of Rs.3,09,709/-as compensation under the following heads: Permanent disability:: Rs. 7,500/- Loss of earning capacity:: Rs.1,92,000/- Pain and suffering:: Rs. 7,500/- Medical expenses:: Rs. 86,384/- Transport charges:; Rs. 15,825/- Misc. Expenses:: Rs. 500/- Rs.3,09,709/- 3. The learned counsel appearing for the appellants submits that the Tribunal has erred in awarding compensation of Rs.1,92,000/-under the head, loss of earning capacity by fixing the monthly income at Rs.1,000/-, without any document to prove the same and by applying the multiplier of 16 on assumption and presumption. The learned counsel contends that in view of the decision of the Full Bench of this Court in Cholan Roadways Corporation Ltd. V. Ahmed Thambi ( 2006 (4) CTC 433 ), that when loss of earning capacity is already compensated, permanent disability need not be separately itemised. In any event, the learned counsel contends that the award of Rs.3,09,709/-as compensation for the injuries sustained by the respondent/claimant is untenable in law. 4. Per contra, the learned counsel appearing on behalf of the respondent/claimant, submits that the Tribunal, only on analysing the evidence on record in a proper and perspective manner, arrived at the quantum of compensation to be awarded to the respondent/claimant and as such, no interference by this Court is called for and hence, the same has to be confirmed. 5. Heard and considered the rival submissions and also perused the order of the Tribunal. 6. On going through the order of the Tribunal, I find some force in the contention of the learned counsel for the appellants in respect of the compensation awarded towards loss of earning capacity at Rs.1,92,000/-. Even though the Tribunal fixed Rs.1,000/-as monthly income of the injured, I am of the view that applying the multiplier of 16 in case of an injury is on the higher side. Even though the Tribunal fixed Rs.1,000/-as monthly income of the injured, I am of the view that applying the multiplier of 16 in case of an injury is on the higher side. However, considering the treatment undergone by the respondent/claimant as well as considering the fact she has suffered 50% disability as per the evidence of the doctor, I am of the view that applying the multiplier of 12 would meet the ends of justice. Accordingly, applying the multiplier of 12, the compensation towards loss of earning capacity can be worked out to Rs.1,44,000/-. 7. A Full Bench of this Court in Cholan Roadways Corporation Ltd. V. Ahmed Thambi ( 2006 (4) CTC 433 ), cited supra, wherein the Honble Chief Justice A.P.Shah, on behalf of the other two Honble Judges held that while awarding damages, the Tribunal should itemise the award under each of the head namely, pecuniary losses and non-pecuniary losses and when loss of earning capacity is compensated under the head of nonpecuniary losses, permanent disability need not be separately itemised. In the instant case, as rightly pointed out by the learned counsel for the appellants, the Tribunal awarded compensation both towards loss of earning capacity as well as towards permanent disability. The Tribunal considering the disability suffered by the respondent/claimant, arrived at a sum of Rs.7,500/-towards permanent disability. Following the Full Bench decision of this Court, cited supra, I am of the opinion that the award of Rs.7,500/- towards permanent disability cannot be granted, but, instead, as the Tribunal has awarded only Rs.7,500/-towards pain and suffering, I feel it appropriate that an amount of Rs.13,500/-under the head pain and suffering would meet the ends of justice. 8. The amount of compensation awarded under the other heads is not seriously disputed. Accordingly, the award of compensation by the Tribunal is modified to the extent that the amount awarded towards loss of earning capacity is reduced to Rs.1,44,000/-, the amount awarded towards permanent disability is rejected in view of the decision of the Full Bench of this Court, cited supra, and instead the amount awarded towards pain and suffering is enhanced to Rs.13,500/-. Totally, the respondent/claimant is entitled to a compensation of Rs.2,60,209/-. 9. As regards the interest granted at 12%, in view of the decision of the Supreme Court in Kaushnuma Begum Vs. New India Assurance Co. Totally, the respondent/claimant is entitled to a compensation of Rs.2,60,209/-. 9. As regards the interest granted at 12%, in view of the decision of the Supreme Court in Kaushnuma Begum Vs. New India Assurance Co. Ltd. [ 2001 (1) Supreme 5 ), the respondent/claimant is entitled to an interest at 9% p.a. on the above modified amount. It is stated that pending the appeal, the appellants had deposited the entire amount of compensation. The appellants are at liberty to withdraw the excess amount, after paying the compensation as ordered by this Court. With the above modification, the appeal is disposed of. No costs.