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2012 DIGILAW 3553 (MAD)

J. Jeevanantham @ Jeeva v. M. Sivalingam

2012-08-13

R.BANUMATHI, R.SUBBIAH

body2012
Judgment :- R. SUBBIAH, J, 1. These appeals arise out of a common award (14.02.2008) passed by the Motor Accidents Claims Tribunal (Chief Judge, Court of Small Causes), Chennai, in M.C.O.P.Nos. 1272 and 1256 of 2006 respectively. 2. The case of the appellants, in brief, are as follows: On 01.03.2006 at about 01.30 Hours, the appellant in CMA No.2795 of 2008 (Shanmughanathan) was driving TATA 709 Van bearing registration No.TN 07 AZ 2830 from south to north in 100 feet Jawaharlal Road at a moderate speed and when he was proceeding near the junction of 18th Main Road, Thirumangalam, Chennai, a car bearing registration No.TN 72 U 3442 came from east to west direction in a rash and negligent manner, cut across the 100 feet Jawaharlal Road and came to the western half of the road. Because of hectic speed, the driver of the car unable to make 'U' turn while turning towards north direction and he came to the western side of the road. On seeing the reckless speed of the car, the driver of the van applied sudden brake and in order to avoid dashing against the car, swerved the van to the left side and dashed against the tree on the western side; due to which, the driver had sustained fractures and injuries and the occupants of the van also sustained various fractures and injuries. Hence, two separate claim petitions were filed, one by the driver of the van and another by one of the occupants of the van, namely, the appellant in CMA No.2794 of 2008 (Jeevanantham @ Jeeva) claiming a sum of Rs.7 lakhs and Rs.32 lakhs as compensation respectively. 3. Respondents 1 and 2, the owners of the car and van remained ex parte before the Tribunal. 4. Resisting the said case, the 3rd respondent insurance company filed separate counter stating that the accident is only due to the rash and negligent driving of the driver of the van in question and the car is in no way responsible for the accident. 5. The Tribunal tried both petitions together and on the side of the appellants, P.Ws.1 to 6 were examined and Exs.P-1 to P-19 were marked and on the side of the 3rd respondent insurance company, R.W.1 was examined and Ex.R-1, the investigation report was marked. The Sub-Inspector of Police, Thirumangalam Police Station was examined as C.W.1. 5. The Tribunal tried both petitions together and on the side of the appellants, P.Ws.1 to 6 were examined and Exs.P-1 to P-19 were marked and on the side of the 3rd respondent insurance company, R.W.1 was examined and Ex.R-1, the investigation report was marked. The Sub-Inspector of Police, Thirumangalam Police Station was examined as C.W.1. The Tribunal, after considering the entire evidence, came to the conclusion that the accident had occurred due to the negligent act of the drivers of both vehicles and thus, fixed contributory negligence at the ratio of 50% each on the part of the driver of the van as well as the car. By coming to such conclusion, the Tribunal assessed compensation on different heads and passed a common award for a sum of Rs.1,80,000/- in respect of claim made by the driver of the van and directed the insurance company to pay 50% of that amount since he had also contributed negligence in causing the accident. So far as the claim made by the occupant of the van i.e. in M.C.O.P.No.1272 of 2006, the Tribunal arrived at a sum of Rs.1,70,000/-and directed the 3rd respondent insurance company to pay the entire compensation amount. The said award is challenged in these appeals. 6. It is the submission of the learned counsel for the appellants that at the time of accident, the van was proceeding from south to north at a moderate speed and it is the car bearing registration No.TN 72 U 3442 came in a rash and negligent manner from the side road namely, 18th Main Road and entered into the main road without noticing the oncoming vehicle, which resulted in the accident. Under such circumstances, the Tribunal ought to have fixed entire liability only on the part of the driver of the car. Therefore, by setting aside the finding rendered by the Tribunal and by fixing entire liability on the part of the driver of the car, the insurance company has to be directed to pay the entire amount of compensation in respect of the claim made by the appellant in CMA No.2795 of 2008. Therefore, by setting aside the finding rendered by the Tribunal and by fixing entire liability on the part of the driver of the car, the insurance company has to be directed to pay the entire amount of compensation in respect of the claim made by the appellant in CMA No.2795 of 2008. Apart from that, the amount awarded by the Tribunal is on the lesser side, particularly in the claim petition filed by the appellant in CMA No.2794 of 2008, wherein the total disability suffered by the victim is 100% and in such a situation, the Tribunal, by adopting the multiplier method, ought to have awarded the amount under the head of permanent disability. But, instead of doing so, the Tribunal has awarded only a consolidated sum of Rs.50,000/-towards permanent disability, which had resulted in awarding inadequate compensation. Thus, the learned counsel appearing on behalf of the appellants prayed for the enhancement of the award amount in both appeals. 7. Per Contra, it is the submission of the learned counsel appearing for the 3rd respondent insurance company that the investigation officer was examined as C.W.1 before the Tribunal, who had categorically stated in his evidence that the accident had occurred only due to the rash and negligent driving of the driver of the van and in fact, on completion of investigation, the police have filed charge sheet only against the driver of the van. Under such circumstances, the finding rendered by the Tribunal with regard to the liability needs no interference. That apart, considering the nature of injuries only, the Tribunal has awarded the amounts and there is no need to enhance the amount further in both cases. 8. Keeping in mind the submissions made by both sides, we have carefully gone through the materials available on record. It is not in dispute that the accident had taken place at the junction of 18th Main Road and 100 feet road. A perusal of the sketch would show that the car came from the east-west direction in 18th Main Road and entered into 100 feet road and when the driver of the car attempted to turn towards north direction on the main road, the front portion of the car and van dashed against each other. It is the submission of the appellants that the van was coming on the main road. It is the submission of the appellants that the van was coming on the main road. Under such circumstances, no liability could be fixed on the driver of the van and only the driver of the car has to be blamed for the entire accident since he had suddenly entered into the main road. But, we are of the opinion that the accident had taken place at the junction of 18th Main Road and 100 feet road. When the driver of the van while nearing the junction, he ought to have reduced the speed. Had the driver of the van reduced the speed, he could have averted the accident. But the manner of the accident would show that the driver of the van also came in a rash and negligent manner at a reckless speed without noticing the car coming from the side of the road, namely, 18th main road, which had resulted in the accident. In fact, C.W.1, the Sub-Inspector of Police, Thirumangalam Police Station, had categorically stated in his evidence that the accident is the result of rash and negligent act of the driver of the van alone. In his cross examination, no favourale reply to the case of the appellants was brought out. In that situation, we do not find any error in the finding rendered by the Tribunal that the accident is the result of rash and negligent driving of the drivers of both vehicles. Therefore, we are not inclined to interfere with the said finding. 9. So far as the quantum of compensation awarded by the Tribunal is concerned, in the claim petition filed by the driver of the van in O.P.No.1256 of 2006, the Tribunal has awarded a sum of Rs.1,80,000/- as total compensation under the following heads: Rs. Loss of earning capacity .. 90,000/- Partial loss of earning .. 5,000/- Transport to hospital and } extra nourishment } 5,000/-Medical expenses and pain} and suffering } 50,000/- Permanent disability 30,000/-Thereafter, by deducting 50% of the amount towards contributory negligence, the Tribunal has directed the insurance company to pay Rs.90,000/- as compensation. In order to speak about the injuries sustained by the claimant, he examined one Dr.Amarnath Chouley as P.W.6 and marked the disability certificate issued by himas Ex.P-15. In order to speak about the injuries sustained by the claimant, he examined one Dr.Amarnath Chouley as P.W.6 and marked the disability certificate issued by himas Ex.P-15. A careful perusal of Ex.P-1, discharge summary, would show that the claimant had sustained lacerated wounds in both hands, fracture of nasal bones, radial styloid fracture of right hand and lacerated wound in the left hand. The doctor, P.W.6 had assessed the total disability suffered by the victim as 40%. But the Tribunal, by applying the multiplier method, has awarded a sum of Rs.90,000/-under the head "loss of earning capacity". That apart, the Tribunal has awarded a sum of Rs.30,000/- towards permanent disability and another sum of Rs.50,000/-towards medical expenses and pain and suffering. 9. In jury cases, Court must ascertain the effect of permanent disability. In Raj Kumar .vs. Ajay Kumar & another (2010(2) TN MAC 581 (SC), the Supreme Court has laid down the guidelines for ascertaining the compensation for permanent disability. The above guidelines are appropriate in applying the multiplier in functionall disability. The Court must first decide whether there is any functional disability in relation to the avocation of the injured Claimant. Whether (i) the Claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the Claimant could still effectively carry on the activities and functions, which he was earlier carrying on , or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. 10. The Claimant sustained lacerated wounds in both hands, fracture of nasal bones, radial styloid fracture of right hand and lacerated wound in the left hand. The point for determination is whether the injuries affects the functioning of the entire body. Considering the nature of injuries sustained by the victim, we are of the opinion that the adoption of multiplier method in this case is totally unwarranted since the nature of injuries sustained by the victim would in no way affect his avocation, who is the driver by profession. Only when the disability suffered by the victim incapacitates from discharging his duties, the same would amount to functional disability and then only, the claimant is entitled to get compensation by applying the multiplier method. Only when the disability suffered by the victim incapacitates from discharging his duties, the same would amount to functional disability and then only, the claimant is entitled to get compensation by applying the multiplier method. In the instant case, as observed above, the nature of injuries sustained by the claimant has no bearing in discharging the normal activities of the victim. Moreover, he was in hospital only for three days as in-patient. Under such circumstances, we are of the opinion that the Tribunal ought not to have awarded the amount by applying the multiplier method. Similarly, we find that the amount awarded under other heads are also extremely on the higher side. Since the insurance company has not preferred any appeal, now we are not inclined to interfere with the amount awarded by the Tribunal. 11. So far as the other claim made by the appellant in C.M.A.No.2794 of 2008 is concerned, we find from the evidence on record that the victim had sustained multiple compound comminuted fracture in the left leg below the knee, ankle, right hand fore arm and wrist and multiple fracture in the right leg ankle and spinal cord and severe injury in the abdomen and other injuries in skull and other internal and external injuries all over the body. In order to speak about the injuries, he examined P.W.6 doctor, who had stated in his evidence that this appellant had sustained multiple fractures in various parts of the body; he lost mobility in both his legs; he had no control over urination and he sustained impotency. That apart, the fracture in left elbow is mal-united and as such, the movements are restricted to 20% and the spinal card movement is restricted to 30% and the impotency is 50% and thus, P.W.6 assessed the total disability at 100%. He has also issued the disability certificate, marked as Ex.P-17. But, the Tribunal has awarded only a sum of Rs.1,70,000/- as compensation under the following heads: Rs. Loss of partial earning 17,500/-Transport to hospital and } damages to clothing and articles } 10,000/- Extra nourishment 15,000/- Medical expenses 25,000/- Pain and suffering and } mental agony } 50,000/- Permanent disability 50,000/- 12. It is the submission on behalf of this appellant that the doctor had assessed the disability at 100%. Loss of partial earning 17,500/-Transport to hospital and } damages to clothing and articles } 10,000/- Extra nourishment 15,000/- Medical expenses 25,000/- Pain and suffering and } mental agony } 50,000/- Permanent disability 50,000/- 12. It is the submission on behalf of this appellant that the doctor had assessed the disability at 100%. But, we are of the opinion that on account of the fractures, the doctor had assessed 50% disability i.e.20% disability for the fracture of left elbow and 30% disability for the fracture of spinal card. So far as the remaining 50% is concerned, the doctor had assessed only in respect of impotency suffered by the victim. Therefore, the learned counsel for the 3rd respondent insurance company submitted that even if this Court comes to the conclusion that the Tribunal ought to have awarded the amount towards permanent disability by applying the multiplier method, the same could not be for 100% disability. As contended by the learned counsel for the 3rd respondent, we are of the opinion that considering the evidence of P.W.6, the functional disability could be taken only as 50%. Since the nature of injuries sustained by the victim will definitely have a bearing on the avocation of the claimant, who is a loadman, by fixing 50% disability and by applying the multiplier method, we are of the view that the amount awarded by the Tribunal has to be enhanced to arrive at a just and proper compensation. 13. Considering the present days' cost of living, a sum of Rs.3,000/- could be fixed as monthly income of the claimant. If so, the annual income would be Rs.36,000/-(Rs.3,000/- x 12). The victim was aged about 26 years at the time of accident and as such, the correct multiplier that has to be applied is 18 as per the Second Schedule of Motor Vehicles Act. If we apply the multiplier of 18, the total amount works out to Rs.6,48,000/- (Rs.3000/- x 12 x 18 years). Since this Court has come to the conclusion that the functional disability is 50%, the claimant is entitled to Rs.3,24,000 (Rs.3000 x 12 x 18 x 50%). Therefore, the sum of Rs.50,000/-awarded by the Tribunal towards permanent disability is enhanced to Rs.3,24,000/-. In view of the same, the sum of Rs.17,500/- awarded by the Tribunal towards "loss of partial earning" is hereby set aside. Therefore, the sum of Rs.50,000/-awarded by the Tribunal towards permanent disability is enhanced to Rs.3,24,000/-. In view of the same, the sum of Rs.17,500/- awarded by the Tribunal towards "loss of partial earning" is hereby set aside. Further, we are of the opinion that in view of the multiple injuries, the appellant could not carry on his avocation as he was doing before the accident and as such, he is entitled some amount under the head 'loss of amenities'. Considering the facts and circumstances, a sum of Rs.50,000/-is hereby awarded under the head "loss of amenities". Further, we are of the view that the appellant is entitled for a reasonable compensation under the separate head 'mental agony' due to the injuries sustained by him which resulted in impotency. Hence, a sum of Rs.50,000/-is awarded under the head 'mental agony'. Except the said modification, the amounts awarded under other heads are confirmed since in our view, they are reasonable. Consequently, the total amount of Rs.1,70,000/- awarded by the Tribunal is enhanced to Rs.5,24,000/-and the break-up details are as follows: Transport to hospital Rs. 10,000/- Extra nourishment 15,000/- Medical expenses 25,000/- Pain and suffering 50,000/- Permanent disability 3,24,000/- Loss of amenities 50,000/- Mental agony 50,000/- Total 5,24,000/- In the result, C.M.A.No.2794 of 2008: This Appeal is party allowed. The 3rd respondent insurance company is directed to deposit the enhanced amount with interest at 7.5% per annum from the date of petition within a period of six weeks before the Tribunal, after deducting the amount already deposited. On such deposit, the appellant is permitted to withdraw the entire amount. No order as to costs. .M.A.No.2795 of 2008: This appeal is dismissed. No order as to costs.