United India Insurance Company Limited v. T. Muthulakshmi & Another
2008-02-07
R.BANUMATHI
body2008
DigiLaw.ai
Judgment :- Being aggrieved by the award of compensation of Rs.2,75,000/- the Appellant/Insurance company has preferred this appeal. 2.Brief facts which are necessary for disposal of this appeal are as follows:- (i) On 21. 1999-3.30 P.M. the claimant as pedestrian was proceeding towards East from West in Madapet Main Road. At that time, a Motor Cycle bearing Registration No.TN-31-B 4579 driven by second respondent in rash and negligent manner came from behind and dashed against her, as a result of which, the Claimant sustained fracture in both bones in her left leg, cut injury in left leg, swelling in her upper lip, simple and multiple injuries. The Claimant was taken to Government Hospital, Panruti where she had taken first aid treatment and from there, she was referred to Government Hospital, Cuddalore for further treatment. Later, she took treatment at Krishna Hospital and Research Centre, Cuddalore. Alleging that the accident was done to rash and negligent driving of the Motor Cycle, the claimant has filed Claim Petition claiming compensation of Rs.5,00,000/-. (ii) Opposing the Claim, the Insurance Co. has filed counter stating that the accident was not due to rash and negligent driving of the Motor Cycle and that the Claimant is solely responsible for the accident. Insurance Co. has further alleged that the driver of the Motor Cycle does not possess a valid driving licence to drive the vehicle at the time of accident. The Insurance Co. has further stated that the Motor Cycle was not insured with it at the time of accident and that the Insurance Co. has neither received any Claim Form from the First Respondent-Owner of the Motorcycle nor produced particulars of Motorcycle. The Insurance Co. has The Insurance Co. has also disputed the age, income of the Claimant, the nature of injuries sustained by the Claimant, period of treatment and percentage of disability. (iii) Before the Tribunal, Claimant examined herself as P.W.1. Dr.Raj was examined as P.W.2. Exs.P.1 to P.71 were marked. No oral and documentary evidence were adduced on the side of the Insurance Co. Upon consideration of oral and documentary evidence, Tribunal held that the accident was due to rash and negligent driving of Motorcycle and held that the Insurance Co. is liable to pay the compensation of Rs.2,75,000/-under various heads. 3.
Exs.P.1 to P.71 were marked. No oral and documentary evidence were adduced on the side of the Insurance Co. Upon consideration of oral and documentary evidence, Tribunal held that the accident was due to rash and negligent driving of Motorcycle and held that the Insurance Co. is liable to pay the compensation of Rs.2,75,000/-under various heads. 3. Challenging the award, the learned counsel for the Appellant-Insurance company Mr.M.B.Gopalan has submitted that the quantum of compensation awarded by the Tribunal is on the higher side and the Tribunal erred in applying the multiplier method, thereby arriving at an excessive amount of compensation, It was further submitted that the Tribunal has not adopted any rational method for arriving at compensation of Rs.2,75,000/- and the same is to be reduced. 4. Supporting the finding of the Tribunal, the learned counsel for the First respondent/Claimant Mr.N.Damodaran has submitted that having regard to the nature of injuries, the Tribunal has awarded just compensation and the same cannot be interfered with. 5. It is not necessary to narrate the entire facts in detail as to how the accident had occurred, who is responsible for the accident and who is liable to pay the compensation, it is for the reason the Tribunal has recorded the findings in favour of the Claimant. Further, these findings are not under challenge. Only the quantum of compensation is in dispute. In her evidence, P.W.1 has stated that in the accident she sustained fracture injury in the left leg, head injury on the lateral side and abrasion in the upper lip and multiple injuries all over the body. After the accident the claimant had taken first aid treatment in Government Hospital, Cuddalore. Thereafter, she was admitted in a private hospital and had taken treatment as inpatient for more than two months. X-ray reported fracture of both tibia and fibula of left leg. P.W.1 has further stated that even after the treatment she has great difficulty in walking and that she is not in a position to carry on her normal work. 6. P.W.2-Dr.Raj has examined the claimant on 17. 2001. On examination, the claimant was found to have pain and swelling in the left leg. P.W.2 has opined that even walking for a distance and climbing stairs and squatting on the floor would be painful and difficult.
6. P.W.2-Dr.Raj has examined the claimant on 17. 2001. On examination, the claimant was found to have pain and swelling in the left leg. P.W.2 has opined that even walking for a distance and climbing stairs and squatting on the floor would be painful and difficult. P.W.2 has taken a fresh X-ray which showed old fracture of tibia and fibula with malunion. P.W.2 has opined that the victim has deformed left leg and P.W.2 has assessed the permanent disability at 40%. 7. P.W.1 has stated that prior to the accident she was doing rice business and after the accident she is not in a position to carry on her rice business. On the basis of the evidence of P.W.1, the Tribunal had taken the monthly income at Rs.3000/- per month and adopted the multiplier 18 and awarded Rs.2,59,200/-for permanent disability and loss of earning power. As rightly submitted by the learned counsel for the Appellant/Insurance company, the Claimant has not produced any evidence showing that she was doing rice business and that she was earning the monthly income of Rs.3000/-. The Tribunal appears to have awarded lump sum compensation of Rs.2,59,200/- for permanent disability and loss of income. To ensure transparency it is always desirable to itemise the quantum of compensation. In 2006 (4) CTC 433 (Cholan Roadways Corporation Limited v. Ahmed Thambi), the Full Bench of this Court has held as follows:- "19. In order to avoid any future confusion and to bring more clarity and transparency in the award of damages, it is necessary that the Tribunal, while awarding damages, should itemise the award under each of the head namely, pecuniary losses and nonpecuniary losses. In the non-pecuniary losses the Tribunal shall consider: (a) pain and suffering, (b) loss of amenity, (c) loss of expectation of life, hardship, mental stress, etc., (d) loss of prospect of marriage and under the head pecuniary losses, the Tribunal shall consider loss of earning capacity and loss of future earnings as one component apart from medical and other expenses and loss of earning, if any from the date of accident till the date of trial. When loss of earning capacity is compensated as also the nonpecuniary losses under (a) to (d), permanent disability need not be separately itemised." 8.
When loss of earning capacity is compensated as also the nonpecuniary losses under (a) to (d), permanent disability need not be separately itemised." 8. As the Tribunal has not itemised the award and has awarded lump sum compensation, I have carefully examined the materials on record and the evidence of P.W.1 & 2 and Ex.P71 Wound Certificate. The claimant is said to have taken treatment nearly for two months, hence, a sum of Rs.30,000/-could be awarded for pain and suffering. For Medical expenses a sum of Rs.16,400/-is awarded. For Transport charges & Extra nourishment a sum of Rs.14,000/-is awarded. P.W.2 has assessed the permanent disability at 40%. Therefore, for permanent disability and loss of earning power awarding compensation of Rs.1,25,000/-would be reasonable. For loss of amenities an amount of Rs.15,000/-is awarded. Thus the compensation amount of Rs.2,75,000/- awarded by the Tribunal is reduced to Rs.2,00,400/- which is payable to the Claimant with interest at the rate of 9% p.a. From the date of petition, under the following Heads. Medical Expenses ... Rs. 16.400/-Pain and Suffering ... Rs. 30,000/- Transport charges and Extra nourishment ... Rs. 14,000/-Permanent disability and Loss of earning power ... Rs.1,25,000/-Loss of Amenities ... Rs. 15,000/- Total Rs.2,00,400/- 9. In the result, "The Order of the Principal Subordinate Judge/Motor Accident Claims Tribunal, Cuddalore dated 30.08.2001 in M.C.O.P.No.934 of 1999 is modified and this C.M.A. is allowed in part. "The compensation amount of Rs.2,75,000/-awarded by the Tribunal is reduced to Rs.2,00,400/-. "The Appellant-Insurance Co. is said to have deposited the entire award amount before the Tribunal, out of which, the First Respondent/Claimant is said to have withdrawn part of the amount. The Claimant is entitled to withdraw the balance amount payable to him (as per the Judgment in this Appeal) along with interest at 9% thereon. "The excess amount shall be refunded to the Second Appellant-Insurance Co. on filing necessary Application before the Tribunal. There is no order as to costs in this Appeal.