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2010 DIGILAW 3258 (MAD)

A. Kasim v. Gurdeo Kaur

2010-08-02

CHITRA VENKATARAMAN

body2010
JUDGMENT :- 1. The Insurance Company as well as the claimant are on appeal before this Court against the award granted by the Tribunal. The Insurance Company challenges the issue of contributory negligence fixing the liability at 65% on the Insurance Company as well as compensation granted in this case. As far as the claimant is concerned, the appeal is on the percentage of distribution of negligence as well as seeking an enhancement of the compensation by adopting the multiplier. 2. A perusal of the award shows that the claimant made a petition for compensation of Rs.20,00,000/-, but restricted to Rs.15,00,000/-, for the injuries suffered in the alleged accident. On 11.1.2000, at about 2.30 am, the claimant was driving his Tempo Traveller from Bangalore to Kancheepuram. At that time, the lorry insured with the appellant, applied sudden brake; in the process, it hit against the Tempo Traveller coming behind the lorry; thereby the driver of the Tempo Traveller suffered grievous injuries. He was admitted in the Government Hospital as an in-patient. It is stated that he continues to have his treatment even now. He was employed in K.R.L. Travels and Tours, Ranipet and was earning a sum of Rs.4,500/- per month. In support of the claim, the claimant/appellant in C.M.A.No.1293 of 2008 examined himself as P.W.1. Apart from that, he examined two doctors who issued the disability certificate marked as Exs.P11 and P15. The discharge summaries are marked as Exs.P1 to P3 and the wound certificate is marked as Ex.P4. Ex.P15 is the disability certificate as regards the eye, marked by the claimant. As P.W.1, the claimant reiterated the contentions in the claim petition. The First Information Report, marked as Ex.P10, was lodged by one of the passengers in the Tempo Traveller. Admittedly, the said person was not examined by the claimant in this case. 3. A perusal of the First Information Report shows that the complainant, along with the rest of the family members, was returning from Bangalore in the early hours of the day on 11.1.2000 around 2.30 am. When the offending lorry applied the brake, the claimant, driver of the Tempo Traveller, hit at the back of the lorry, thereby the accident occurred. It is relevant to extract what had been given as a complaint in the First Information Report. When the offending lorry applied the brake, the claimant, driver of the Tempo Traveller, hit at the back of the lorry, thereby the accident occurred. It is relevant to extract what had been given as a complaint in the First Information Report. The relevant portion as to the manner of accident has been set out therein as follows: "TAMIL" 4. Admittedly, apart from the driver, the passengers too suffered injuries. The evidence of the claimant as P.W.1, however, stated that while the offending lorry attempted to overtake another vehicle, the driver of the offending lorry suddenly took to the left and dashed against the van. The evidence of P.W.1 brings out the inconsistency as to the manner of accident as to the one shown in the First Information Report and in the evidence of P.W.1 as to the manner of accident. 5. Learned counsel appearing for the claimant pointed out that, in the charge sheet, it was clearly stated that the offending lorry driver was responsible for causing the accident. Per contra, learned counsel appearing for the Insurance Company pointed out to the inconsistency between the First Information Report and the contention of P.W.1-claimant that when the definite case as per the earliest of the documents showed that the claimants Tempo Traveller was the one which hit against the lorry, the contention that in the process of overtaking another lorry that the offending lorry caused the accident, was not substantiated. However, the Tribunal referred to both these aspects and came to the conclusion that going by the nature of the accident, this is a case of contributory negligence and fixed the ratio of negligence as 35:65 as attributable to the appellant at 35% and the lorry insured with the Insurance Company at 65%. 6. A perusal of the award in this regard, along with the evidence, clearly reveal that there is hardly any material to show the distance maintained between the offending lorry and the Tempo Traveller, driven by the claimant. Although learned counsel for the first respondent would insist that the charge sheet had made it clear as to the negligence on the part of the lorry driver, one cannot go solely by the contents of the charge sheet in the matter of fixing the negligence aspect. Although learned counsel for the first respondent would insist that the charge sheet had made it clear as to the negligence on the part of the lorry driver, one cannot go solely by the contents of the charge sheet in the matter of fixing the negligence aspect. The earliest of the documents that speak on the accident is the First Information Report lodged by one of the passengers in the van. The said person was not examined by the appellant to disprove the statement in the First Information Report that the accident was caused by the erring lorry driver, who had driven the vehicle in a rash and negligent manner. 7. In any event, given the fact that the vehicle coming behind has to maintain a safe distance from the one going ahead of it, the fact that the erring lorry, while applying the brake, hit against the vehicle coming at the back, clearly indicated the negligence of the van driver as well as to the speed of the lorry, thereby the rash driving of the lorry driver. All that one could infer from the narration as to the manner of the accident in this case is that, both drivers have to be held responsible for causing the accident that had happened and given the fact that the passenger in the Tempo Traveller driven by the claimant stated that the Tempo Traveller had invited the accident by hitting against the lorry going ahead of it, this Court feels that as against the ratio of 35:65, the negligence has to be equally distributed between the driver of the lorry and the driver of the Tempo Traveller. In the circumstances, the view of the Tribunal, fixing the negligence at the ratio of 35:65 stands modified as 50:50. 8. On the aspect of the compensation paid, learned counsel appearing for the appellant pointed out that in a case of grievous injury suffered, the proper course herein would be to go for multiplier method. The claimant was the driver of the Tempo Traveller. He was aged about 39 years at the time of the accident. Going by the certificate issued by the Orthopaedic Surgeon that the claimant had undergone surgery and was admitted in the hospital more than once, compensation has to be paid to meet the ends of justice, as there is total loss of earning capacity. He was aged about 39 years at the time of the accident. Going by the certificate issued by the Orthopaedic Surgeon that the claimant had undergone surgery and was admitted in the hospital more than once, compensation has to be paid to meet the ends of justice, as there is total loss of earning capacity. Hence, the Tribunal erred in not adopting multiplier method in this case. Apart from that, the relief granted under the head of extra nourishment, transportation and loss of amenities, also have to be taken note of in his case in compensating the claimant in a fair manner. 9. It is seen from the narration herein that the claimant was admitted in the hospital as inpatient from 10.11.2000 to 8.1.2001 and from 30.10.2002 to 31.10.2002 and from 6.1.2003 to 11.1.2003. Exs.P1 to P3 are the discharge summaries. A perusal of the discharge summary dated 8.1.2001 -Ex.P1 shows the nature of injury suffered as follows: 1. Laceration: 5 x 1 cm Rt eye brow 2. Rt. Thigh: Abnormal mobility , tenderness, DP & PTA, pulsations present. 3. Lt knee: abnormal mobility, creptics, Lt leg. Upper 3rd of tibia, Haemarthrosin (F), knee joint. DPA + PTA pulsations. 4.(R) Hip: Tenderness over the greater trochantine. 10. The claimant had undergone surgery for fixing of a plate. The discharge summary further shows that there were no postoperative complications and the claimant was directed to take up hip and knee exercise. He was asked to come for review later. Except Exs.P2 and P3 to note down the status of the claimant, they do not reveal as to the alleged injury in the eye. Be that as it may, the documents Exs.P1 to P3 evidence the fact as regards the injury that the claimant had suffered in the leg. The wound certificate Ex.P4 pointed out to the injury at the time of admission as follows: "(i) Cut injury over Rt. Forehead (ii) Swelling Rt cheek, (iii) Swelling Lf. hand. (iv) Rt thigh in Thomas Splint (v) POP in the left leg. " 11. Going by the above-said document, it is clear that the injury suffered by the claimant was as regards the fracture suffered in the legs. Apart from that, the claimant is also stated to have suffered injuries over the body too. In the background of this, the certificates issued by the doctors as to the disability have to be seen. Going by the above-said document, it is clear that the injury suffered by the claimant was as regards the fracture suffered in the legs. Apart from that, the claimant is also stated to have suffered injuries over the body too. In the background of this, the certificates issued by the doctors as to the disability have to be seen. 12. A reading of the evidence of the Doctor who certified 74% disability as certified by P.W.2 and 20% disability as certified by P.W.4, shows that admittedly, P.Ws.2 and 4 had not given any treatment to the claimant, nor are they aware of the type of treatment given to the claimant. 13. P.W.2 stated that on examination of the claimant, the claimant had suffered 74% permanent disability, and in the left leg, there was a mal union also. The bones in the right hip and in the right thigh had joined correctly. However, there is a reduced movement capacity and the claimant has to undergo further surgery for removal of the plates in the hip and the thigh and one in the left leg. The evidence further pointed out that the claimant cannot drive as before. P.W.4, in his evidence, stated that there was a scar over the right eye brow and that the claimant is not in a position to open his eyes fully. There is restriction in the movement of the eyes. The evidence of the doctor and the certificate issued under Exs.P11 and P15 are of the years 2005 and 2006 respectively. The accident occurred in the year 2000. In the absence of any explanation as to the claimant not examining the doctors who gave treatment and going by the wound certificate and the discharge summaries, it is difficult for this Court to accept the plea as regards the defective vision as certified in the evidence of P.W.4 and Ex.P15 certifying the disability at 20%. In any event, even going by the evidence of P.W.4 as regards the defective eye-sight, there being no material to substantiate that the claimant did suffer an injury in the accident on the eyes, the extent of 20% disability on the eye cannot be sustained. Further, admittedly, P.W.4 was not the doctor who treated him. In any event, even going by the evidence of P.W.4 as regards the defective eye-sight, there being no material to substantiate that the claimant did suffer an injury in the accident on the eyes, the extent of 20% disability on the eye cannot be sustained. Further, admittedly, P.W.4 was not the doctor who treated him. Quite apart from this alleged disability on the eyes, even as regards the 74% disability, P.W.2, who deposed in 2005, was not the doctor who treated him to speak on the impact of the injury suffered in the accident that occurred on 11.1.2000. P.Ws.2 and 4 admitted that they did not know what type of treatment was given to the claimant. In fact, P.W.2 admitted that the injuries suffered in the legs got cured after the treatment. Ex.P1, which is the discharge summary, shows the date of admission in the Government General Hospital as 10.11.2000 and the date of discharge as 8.1.2001. Ex.P2, which is also a discharge summary from the Madras Institute of Neurology, gives the date of admission as 30.10.2002. Ex.P3, yet another discharge summary, gives the date of admission as 6.1.2003. Ex.P4, the wound certificate issued by the Government General Hospital, states that the injuries were stated to have been caused on 10.11.2000. 14. It must be pointed out herein that there are no documents to speak on the kind of treatment that the claimant had during the interregnum period between 2001 and 2005 when the claimant is stated to have had his treatment under P.W.2. Apart from the above documents, the only other document to speak on the state of affairs of the claimant is the disability certificate dated 28.9.2005 issued by P.W.2 who merely certifies the disability at 74%. There is hardly any material to show that the certificate was issued after considering Exs.P1 to P4. The typed set of papers filed before this Court, even though in the Index, states that the evidence are enclosed, yet, no such copies were placed before this Court. In any event, it is difficult to act on the evidence of P.W.2 alone to accept the disability at 74%. It is relevant to point out herein that considering the same, this Court directed the claimant to appear before the Lok Adalat wherein the assistance of an Orthopaedician could be availed of to test the extent of disability. In any event, it is difficult to act on the evidence of P.W.2 alone to accept the disability at 74%. It is relevant to point out herein that considering the same, this Court directed the claimant to appear before the Lok Adalat wherein the assistance of an Orthopaedician could be availed of to test the extent of disability. However, the claimants counsel rejected the said direction. 15. In the circumstances, based on the materials available alone that one can look at the disability suffered on account of the injury suffered to the hip and the leg. Hence, going by the records, I am constrained to hold that if at all the claimant is entitled to a compensation, it could be only as regards the injury by way of fracture in the legs. There being no material to link the injuries suffered in the accident as causing the disability to the eyesight and looking at the distance of time between the date of the accident and the disability certificate, I am not in a position to accept the plea of the claimant that the accident had resulted in a defective vision, disabling the claimant from taking up his avocation. 16. This takes us to the next issue as to the compensation payable in this case. It is no doubt true that in the decision of the Full Bench of this Court reported in (2006) 4 MLJ 362 (Cholan Roadways Corporation Ltd., rep. by its Managing Director Vs. Ahmed Thambi and Others), adoption of multiplier as regards awarding pecuniary compensation for the injuries suffered, is not ruled out. Yet, in a given case, unless and until there are materials enough to show the total disability therein, the possibility of accepting the plea of the claimant for adopting multiplier for the injuries suffered, does not arise. 17. The claimant herein is stated to have earned a sum of Rs.4,500/-per month. Ex.P9 is the salary certificate. P.W.3, the employer, was examined herein. P.W.3 pointed out in his evidence that he paid the claimant a sum of Rs.4,500/-per month when he was running the Travels, till 2001. Admittedly, no records were produced before the Court. 17. The claimant herein is stated to have earned a sum of Rs.4,500/-per month. Ex.P9 is the salary certificate. P.W.3, the employer, was examined herein. P.W.3 pointed out in his evidence that he paid the claimant a sum of Rs.4,500/-per month when he was running the Travels, till 2001. Admittedly, no records were produced before the Court. Going by the nature of injury suffered and its impact as certified by the doctor, even if 75% is taking as the disability (certified as 74%), I feel, in the nature of things, all that the claimant is entitled to by way of compensation would be to the tune of Rs.2,000/- towards every percentage of the disability suffered, totalling to a sum of Rs.1,50,000/-. The claimant has not produced any materials to substantiate the expenses that he may have to incur on his future treatment. The claimant had his treatment in the Government Hospital originally. Except for the expenses that he had incurred towards the purchase of medicines, admittedly, he had not expended for the surgery that he first underwent. In the circumstances, I find it difficult to grant any relief towards future medical expenses in this case. 18. It must be pointed out herein that taking note of the submission of the learned counsel appearing for the claimant, this Court originally referred the case to the Lok Adalat to decide on the compensation payable on the disability suffered and arrive at a settlement. However, nothing moved positively from the side of the claimant to accept any settlement. Even at the time of hearing of the appeal, this Court suggested for a settlement, which the claimant rejected. In the circumstances, the matter is listed again before this Court. On the basis of the materials available herein, this Court considered the claim and passed the order on merits. 19. As to the grant of relief under the other heads, it may be noted that the Tribunal granted Rs.2,000/- towards transportation. Considering the nature of injury suffered, this Court feels that the claimant deserves a sum of Rs.10,000/-towards transportation charges. As regards extra nourishment, the claimant was granted Rs.2,000/-, as against which, this Court grants a sum of Rs.10,000/-. On the loss as to damage to the clothes, the Tribunal granted a sum of Rs.300/-as against a claim of Rs.1,000/-. Considering the nature of injury suffered, this Court feels that the claimant deserves a sum of Rs.10,000/-towards transportation charges. As regards extra nourishment, the claimant was granted Rs.2,000/-, as against which, this Court grants a sum of Rs.10,000/-. On the loss as to damage to the clothes, the Tribunal granted a sum of Rs.300/-as against a claim of Rs.1,000/-. In the circumstances, even though there is no evidence as regards the other materials said to have suffered a damage, even on a reasonable estimate, the damage to the clothes and other articles carry a relief of Rs.1,000/-. Hence, as against Rs.300/-granted by the Tribunal, the claimant is entitled to a compensation of Rs.1,000/-. As regards Ex.P5 on the medical bills, the Tribunal granted a sum of Rs.10,000/-as a reasonable compensation. It must be noted that even though the claimant had undergone treatment in the Government Hospital and the treatment before the private nursing home not established as relatable to the injury suffered in the accident, a sum of Rs.1,000/- is granted towards reimbursement of medical bills. 20. As regards pain and suffering, the Tribunal granted Rs.10,000/-. The claimant is entitled to a further sum of Rs.15,000/-, totalling in all to a sum of Rs.25,000/-in this regard. 21. As regards the inconvenience and the loss of amenities suffered, the Tribunal awarded a sum of Rs.10,000/-, which remains as it is without any further modification. As regards loss of expectancy of life, the Tribunal granted Rs.5,000/-which is also retained as it is without any modification. The claimant has sought for Rs.25,000/- towards attender expenses. The Tribunal granted a sum of Rs.12,000/- as compensation. Considering the nature of injury suffered in the thigh as well as to the hip, the claimant is entitled to have compensation of Rs.20,000/- on this aspect. The claimant suffered loss of earnings from 10.1.2000 to the date of filing the claim petition. The Tribunal granted a sum of Rs.18,000/- towards loss of earnings from the date of treatment. Considering the period of treatment, the grant of compensation remains as it is. As regards the claim of assistance of bystanders during the period of treatment, the Tribunal granted a sum of Rs.6,000/-. The same remains as it is without any disturbance. The Tribunal granted a sum of Rs.18,000/- towards loss of earnings from the date of treatment. Considering the period of treatment, the grant of compensation remains as it is. As regards the claim of assistance of bystanders during the period of treatment, the Tribunal granted a sum of Rs.6,000/-. The same remains as it is without any disturbance. In the circumstances, taking the contributory negligence at equal measure, this Court feels that barring the disability aspect, the claimant is entitled to have the relief under the head of pain and suffering, transportation, additional nutrition, amenities in life and bystanders relief, paid fully from the Insurance Company. On the compensation awarded on the disability suffered, the claimant would be entitled to have the awarded compensation paid by the Insurance Company, the appellant in C.M.A.No.3165 of 2008, to the extent of 50% only. With the above said modification, the award is granted in favour of the claimant to the tune of Rs.2,56,000/- as follows: Permanent disability: Rs.1,50,000/- Transportation charges: Rs. 10,000/- Extra nourishment: Rs. 10,000/- Damage to clothes and other articles: Rs. 1,000/- Medical bills: Rs. 1,000/- Pain and suffering: Rs. 25,000/- Loss of amenities: Rs. 10,000/- Loss of expectancy of life: Rs. 5,000/- Attender charges: Rs. 20,000/- Loss of earning during the period of treatment: Rs. 18,000/- Assistance by bystanders: Rs. 6,000/- --------------- Rs.2,56,000/- --------------- 22. On the relief granted under the head of permanent disability to the tune of Rs.1,50,000/-, on the 50% liability fixed on the Insurance Company, the claimant is entitled to interest at 7.5% per annum and on the balance of the compensation, i.e., on a sum of Rs.1,92,770/-, the claimant is entitled to have the interest payment at 7½% per annum from the date of the petition to the date of payment. 23. After dictating the order, learned counsel appearing for the claimant pointed out that no dispute is raised by the claimant as regards the relief granted as regards the transport expenses. Learned counsel further pointed out that since the claimant is not desirous of getting any reimbursement but interested in getting an award by applying the multiplier alone, this Court should grant the prayer as sought for, lest justice would fail. Hence, she insisted on multiplier to be adopted by this Court. This Court feels that this is not a case where multiplier has to be adopted. Hence, she insisted on multiplier to be adopted by this Court. This Court feels that this is not a case where multiplier has to be adopted. The persistent contention as to the desire of the claimant for the full claim amount to be paid or else that the claimant is not desirous of any award is not of any consequence as far as the decision making process is concerned. The choice to receive the compensation as ordered by the Court is a matter entirely in the hands of the claimant and it is not for the Court to offer any decision on this nor does it have an impact on the decision arrived at by this Court on the merits of the case. Hence, recording the statement of the learned counsel, the award stands modified to the extent of compensation stated above. 24. After pronouncing the order, once again learned counsel appearing for the claimant pleaded for time to consult her client on a settlement in this case. Giving one more opportunity, this Court made it clear to the claimant that in the event of the claimant agreeing to the settlement of the case at Rs.2.5 lakhs as offered by the appellant, an affidavit be filed before this Court so that the matter could be decided once and for all. Failing any such affidavit, this Court made it clear that the order passed would stand as it is. On the counsel undertaking to file the affidavit agreeing to the offer of the appellant at Rs.2.5 lakhs, this Court adjourns this case to 12.08.2010. C.M.A.Nos.1293 and 3165 of 2008 CHITRA VENKATARAMAN, J. 1. Today, learned counsel for the appellant submitted that since the claimant is not immediately available, it is not possible for her to file a memo as had been undertaken earlier on 02.08.2010, to accept the compensation of Rs.2,50,000/-. In the circumstances, the order passed already stands confirmed. 2. The decision reported in 2005 (1) CTC 38 (United India Insurance Company Ltd. Vs. Veluchamy), now placed by the learned counsel before this Court, indicates reiteration of the law that in a case of a personal injury, the Court must evaluate the evidence and probabilities in each case. This Court pointed out that compensation in cases of bodily injuries should be substantial and not merely token. Veluchamy), now placed by the learned counsel before this Court, indicates reiteration of the law that in a case of a personal injury, the Court must evaluate the evidence and probabilities in each case. This Court pointed out that compensation in cases of bodily injuries should be substantial and not merely token. In the circumstances, in the matter of assessing pecuniary loss for the injuries suffered by the victim in the accident, the Division Bench pointed out that the applicability of Schedule II of the Motor Vehicles Act is not ruled out. Moreover, considering the nature of injuries suffered, a fair compensation that may be paid by the insurer shall be based on the percentage of the disability. 3. It must be noted that the appellant does not dispute the proposition of law as to the relevance of the multiplier adopted in the case of an injury. Hence, given the fact that there is hardly any material or evidence placed before the Court as regards the disability having its impact on the earning capacity and the alleged injury in the eye not being there in the accident register, rightly the Insurance Company contended that the claimant is not entitled to have the compensation based on the multiplier method. In the circumstances, I have no hesitation in rejecting the prayer of the claimant in this regard. Hence, the order passed on 02.08.2010 stands as it is without modification. In the result, C.M.A.No.1293 of 2008 stands allowed to the extent stated in the order dated 02.08.2010 and C.M.A.No.3165 of 2008 stands dismissed. No costs.