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2012 DIGILAW 3628 (MAD)

Ameen Sheriff alias Noor Basha v. M. Ramachandran

2012-08-21

ARUNA JAGADEESAN

body2012
Judgment :- 1. This Civil Miscellaneous Appeal is filed against the Judgement and Decree dated 27.2.2008 made in MCOP.No.2758/2004 by the learned II Judge, Small Causes Court (MACT) Chennai. 2. The undisputed facts are that the claimant/appellant herein was travelling as a passenger from Devakottai to Chennai in the bus bearing Reg.No.TMN-3936, which dashed against the lorry which came in the opposite direction, as a result of which, the claimant and other passengers travelled in the bus sustained grievous injuries. According to the claimant, the accident had occurred only due to the rash and negligent driving of the offending lorry. The Tribunal found that the driver of the offending lorry was negligent in causing the accident and awarded a compensation of Rs.7,42,610/-to the claimant. The claimant being not satisfied with the compensation has filed this appeal for enhancement of the same. 3. It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly, all these findings are recorded in favour of the claimant by the Tribunal. Secondly, none of these findings, though recorded in favour of the claimant, are under challenge at the instance of any of the Respondents. In this view of the matter, there is no justification to burden the judgement by detailing facts on all these issues. Hence, the finding of the Tribunal with regard to the negligence aspect fixing the same on the part of the driver of the offending vehicle is liable to be confirmed and accordingly, it is confirmed. 4. The claimant was working as a Fabricator in Sadiq Al-Haras Aluminium Work Shop, Saudi Arabia and was earning 2500 Riyal (Rs.27500). His right hand above elbow was amputated. The claimant had filed Ex.P11 salary certificate, but the same was not accepted by the Tribunal and the Tribunal assessed his monthly income at Rs.7500/-. The age of the claimant was proved to be 33 years at the time of the accident as could be seen from Ex.P10 Passport issued to him. His right hand above elbow was amputated. The claimant had filed Ex.P11 salary certificate, but the same was not accepted by the Tribunal and the Tribunal assessed his monthly income at Rs.7500/-. The age of the claimant was proved to be 33 years at the time of the accident as could be seen from Ex.P10 Passport issued to him. The facts on record proved that the claimant was admitted in Government Rajaji Hospital, Madurai for five days and was further treated in Aisha Hospital Private Limited in Chennai for 18 days and he has taken continuous treatment as an outpatient in the same hospital for one month. The Doctor J.R.R.Thiagarajan PW.5 has assessed the disability at 90 per cent in his disability certificate Ex.P15. Having assessed the monthly income of the claimant at Rs.7500/- p.m., after deducting 1/3rd towards his personal expenses, the Tribunal calculated the loss of future earning due to the disability suffered by the claimant at Rs.5000/- per month and by applying the multiplier of 13 and taking the disability at 80 per cent, the Tribunal arrived at the total loss of future earning at Rs.6,24,000/-. To this, the Tribunal has added Rs.20,000/- towards pain and suffering, Rs.5000/-for transportation expenses, Rs.5000/- for extra nourishment, Rs.15000/- for attendant's charges and Rs.50,000/- for loss of marriage prospects. Based on Ex.P9 medical bills, the Tribunal has awarded only Rs.23,610/-towards medical expenses, though the claimant claimed to have spent Rs.29,608/-for medical expenses in Ex.P6. Thus, the Tribunal awarded a sum of Rs.7,42,610/- as total compensation to the claimant. 5. The main dispute is with regard to the non pecuniary damages as well as actual loss of earning and the future loss of earnings. From the evidence on record, it is more than apparent that the right hand of the claimant has been amputated by 10 cm below the shoulder. PW.5 has issued disability certificate and according to him, the disability to the right arm is 90 per cent. It is urged on behalf of the claimant that the Tribunal erred in fixing the monthly income of the injured at Rs.7500/-ignoring the salary certificate produced by the claimant, which is not controverted to by the Respondent. 6. Mr.A.Shanmugaraj, the learned counsel for the Appellant invited my attention to the salary certificate which is marked as Ex.P11. It is urged on behalf of the claimant that the Tribunal erred in fixing the monthly income of the injured at Rs.7500/-ignoring the salary certificate produced by the claimant, which is not controverted to by the Respondent. 6. Mr.A.Shanmugaraj, the learned counsel for the Appellant invited my attention to the salary certificate which is marked as Ex.P11. The said certificate issued by the Employer shows that the claimant was employed as a Fabricator and the consolidated remuneration payable to him was 2500 Riyals. He pointed out that considering the prevailing currency notes, on the date of the accident, the monthly salary of the claimant was Rs.27,500/-. The learned counsel submitted that the said document was not objected to and it was not the case of the Respondent that the claimant was not employed as a Fabricator in the Company, viz Sadiq Al-Haras Aluminium Work Shop, Saudi Arabia and that the earning stated in Ex.P11 is not correct one. He submitted that the Tribunal erred in ignoring the said certificate without any basis. He therefore submitted that compensation awarded by determining the monthly income at Rs.7500/-is improper and grossly inadequate. He submitted that the monthly income will have to be taken adding fifty per cent of the income for future prospects. Relying upon the decision of the Honourable Supreme Court reported in 2003-ACJ-12-SC (Nagappa Vs. Gurudayal Singh), he urged that just compensation be awarded by making calculations in terms of the decision of the Honourable Supreme Court in the case of Sarla Verma Vs. DTC (2009-ACJ-1298-SC) . 7. The learned counsel for the 2nd Respondent Insurance Company supported the impugned Judgement and Decree. He submitted that the salary certificate Ex.P11 has not been duly proved by examining the Employer. He submitted that the name of the Company in Ex.P11 is different from that of one which is mentioned in the claim petition. He submitted that the burden was on the Appellant to prove the income at the time of the accident and he has failed to establish the income as alleged by him. He, therefore, submitted that the income assessed by the Tribunal is proper and the compensation awarded by the Tribunal is just and proper. He invited attention of the court to the fact that there is no application in the appeal for grant of enhancement in compensation claimed before the Tribunal in the claim petition. 8. He, therefore, submitted that the income assessed by the Tribunal is proper and the compensation awarded by the Tribunal is just and proper. He invited attention of the court to the fact that there is no application in the appeal for grant of enhancement in compensation claimed before the Tribunal in the claim petition. 8. I have given careful consideration to the submissions made by the learned counsel for the parties. It is not necessary to deal with the aspect of negligence, as there is no cross appeal or cross objection preferred by any of the Respondents and therefore, the only question which requires for consideration is as regards quantum of compensation. In the claim petition filed by the Appellant, it is stated that the claimant was employed with Sadiq Al-Haras Aluminium Work Shop, Saudi Arabia as a Fabricator and his monthly income was Rs.27500/-(2500 Riyal). The same is the evidence by the Appellant in his examination before the court. He has produced in evidence the salary certificate as Ex.P11 without any objection on the part of the Respondent. The Appellant has been cross examined by the learned counsel for the Respondent. In cross examination, the Appellant has not been controverted with regard to Ex.P11 salary certificate. Not even a suggestion has been made that the Appellant was not employed in the Company stated by the Appellant and was not drawing salary as quoted in the salary certificate. There is absolutely no challenge to the statement made by the Appellant and the certificate issued by the Employer of the Appellant. Hence, there was no necessity for the Appellant to prove that the Company is one and the same. 9. On a perusal of Ex.P11, it is seen that the same has been attested by the authorities concerned. The entries in the document bear the signature of the authorities concerned and their respective rubber stamps have been affixed. Thus, the net result of the aforesaid discussion is that the Appellant has established that the Appellant was employed as Fabricator in Sadiq (SAD) Ali-Haras Aluminium Work Shop and Ex.P11 shows that he was paid monthly salary of Rs.27,500/- (2500 Saudi Riyals). 10. Next the question which remains to be considered is what should be the income of the Appellant for the purpose of arriving at the multiplicand. 10. Next the question which remains to be considered is what should be the income of the Appellant for the purpose of arriving at the multiplicand. The Tribunal has ignored the salary certificate on the ground that it has not been proved and proceeded to fix the monthly income at Rs.7500/- without any basis to arrive at such a figure. The monthly income as reflected from Ex.P11 is Rs.27,500/-. 11. Regarding future prospects, since the salary of the Appellant has been taken as such for the purpose of arriving at the monthly income making no deduction towards personal expenses, no further amount is added to the income for future prospects. 12. PW.5 Dr.J.R.R.Thiagarajan has assessed his disability at 90 per cent. It is the case of the claimant that after the severe injuries resulting in amputation, he is not in a position to do the work as Fabricator and lost his fabricator job. The loss of future earning on account of disability would depend upon several factors such as the nature of work carrying on by the injured, his profession and his inability to gainfully engage himself in any other avocation or job. 13. The principles of law regarding various heads under which compensation is required to be awarded in personal injury cases are well settled by a catena of decisions of the Honourable Supreme Court . The Honourable Supreme Court in the case of State of Haryana Vs. Jasbir Kaur (2003-ACJ-1800-SC) has stated in paragraph 7 with regard to what is just and reasonable compensation in relation to assessment of compensation under the Act as under:- "7. It has to be kept in view that the Tribunal constituted under the Act, as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But, at the same time, it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. But, at the same time, it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be 'just' compensation is the vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances and attending peculiar or special features, if any. Every method or mode adopted for assessing the compensation has to be considered in the background of 'just' compensation, which is the pivotal consideration. Though by use of the expression, 'which appears to it to be just', a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression 'just' denotes fairness, equitability and reasonableness and non arbitrariness. If it is not so it cannot be just." 14. Thus, as observed by the Honourable Supreme Court , the measure of damages cannot be arrived at by precise mathematical calculation and it would depend upon particular facts and circumstances and attendant peculiar or special features, if any, and every method or mode adopted for assessing compensation has to be considered in the background of just compensation which is pivotal consideration. The Honourable Supreme Court has made it further clear that though the Tribunals have wide discretion in assessing quantum of compensation, the determination has to be rational and to be done by judicious approach and not the outcome of whims, wild guesses and arbitrariness. 15. Keeping the above principles in mind, let us proceed to find out what is the functional disability suffered by the Appellant. PW.5 has stated that there is amputation of right arm below the shoulder that is 4"(10cm) below the shoulder as a result of which, there has been no possibility to fix artificial upper limb to the Appellant. 15. Keeping the above principles in mind, let us proceed to find out what is the functional disability suffered by the Appellant. PW.5 has stated that there is amputation of right arm below the shoulder that is 4"(10cm) below the shoulder as a result of which, there has been no possibility to fix artificial upper limb to the Appellant. He has further stated that the Appellant would not be in a position to do his normal day today work. In his cross examination, he has stated that he will not be able to do any work. Accordingly, he has assessed the permanent disability caused on account of amputation of the particular limb only and not with reference to the whole body. The loss of future earnings cannot be assessed just on the basis of the evidence of physical permanent disability without properly considering as to whether that permanent disability has resulted in functional disability and if so to what extent. In order to find out as to whether the injured has suffered loss of future earnings on account of permanent disability, there must be cogent and acceptable evidence to prove that the permanent disability has come in the way of the injured carrying on his avocation, as he was doing earlier and whether he was disabled or incapacitated to do any work and gainfully engage himself in any other avocation or job. 16. Admittedly, in this case, there is no evidence to prove that he is totally disabled to do any other work. PW.5's evidence is to the effect that he has suffered permanent disability to an extent of 90 per cent with reference to a particular limb. No doubt, in this case, there is evidence to the effect that the Appellant cannot do the work as Fabricator, but certainly it is not as if he has become incapable to earn any amount by doing some other job or business. He is still capable to manage some other business, run the shop where only sitting is required and there are so many like avenues which cannot be lost sight. He can even manage his field of work with the help of others and do supervisory work. 17. At this juncture, it is relevant to refer to the observations made by the Honourable Supreme Court reported in 2011-1-ACJ—1 (Raj Kumar Vs. He can even manage his field of work with the help of others and do supervisory work. 17. At this juncture, it is relevant to refer to the observations made by the Honourable Supreme Court reported in 2011-1-ACJ—1 (Raj Kumar Vs. Ajay Kumar) wherein it has been laid down thus:- "Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (sic disability) (this is also relevant for awarding compensation under the head loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out 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 so that he continues to earn or can continue to earn his livelihood." 18. Keeping in view all these factors and the principles laid down by the Honourable Supreme Court , I am of the considered view that the Appellant's earning capacity must have been reduced by 50 per cent if not more. Therefore, I am of the view that his loss of earnings should be taken as Rs.13,750/- per month and Rs.1,65,000/- per year. The Tribunal has applied the multiplier of 13 which requires modification. As per the law laid down by the Honourable Supreme Court inSarla Verma Vs. DTC (2009-ACJ-1298-SC), the appropriate multiplier is 16. Therefore, the total loss of future earning due to the disability suffered by the claimant would come to Rs.26,40,000/-. 19. Coming to the question of non pecuniary damages, the claimant has been awarded Rs.20,000/- for pain and suffering which requires enhancement and it is enhanced to Rs.50,000/-. The Tribunal has awarded Rs.5000/-for transportation expenses, Rs.5000/- for extra nourishment, Rs.50,000/-for the loss of marriage prospects which remain unaltered and confirmed. As per the documents, Rs.26,610/- for medical expenses is awarded and Rs.25000/-for attendant's charges is awarded. The Tribunal has awarded Rs.5000/-for transportation expenses, Rs.5000/- for extra nourishment, Rs.50,000/-for the loss of marriage prospects which remain unaltered and confirmed. As per the documents, Rs.26,610/- for medical expenses is awarded and Rs.25000/-for attendant's charges is awarded. In all, the claimant is entitled to a sum of Rs.28,01,610/-as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization. 20. The learned counsel for the Appellant pressed into service the decision of the Honourable Supreme Court rendered in Nagappa Vs. Gurudayal Singh (2003-ACJ-12-SC) in support of his contention that though the claim made by the claimant is Rs.10 lakhs, amount more than the said claim will have to be granted. In paragraph 10 of the said decision, the Honourable Supreme Court has observed thus:- "10. Thereafter, Section 168 empowers the Claims Tribunal to 'make an award determining the amount of compensation which appears to it to be just'. Therefore, only requirement of determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation." 21. The Honourable Supreme Court in 2011-ACJ-2845 (Ibrahim Vs. Raju and others) has held that the Tribunal or the court can award compensation more than the amount claimed. It has been held as follows:- "21. .... This approach is in tune with the judgement in Nagappa Vs. Gurudaya Singh (2003-ACJ-12-SC). In that case, the court considered a similar issue, referred to the judgements of Bombay High Court in Municipal Corporation of Greater Bombay Vs. Kisan Gangaram Hire (1987-ACJ-311-BOmbay), Orissa High Court in Mulla Md.Abdul Wahid Vs. Abdul Rahim (1994-ACJ-348-Orissa), and Punjah & Haryana High Court in Devki Nandan Bangur Vs. State of Haryana (1995-ACJ-1288-P&H) and observed:- "21. For the reasons discussed above, in our view, under the Motor Vehicles Act, there is no restriction that the Tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/court is to award 'just compensation which his reasonable on the basis of the evidence produced on record. Further in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. The function of the Tribunal/court is to award 'just compensation which his reasonable on the basis of the evidence produced on record. Further in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub section (4) to Section 166, even report submitted to the Claims Tribunal under sub section (6) of Section 158 can be treated as an application for compensation under the Motor Vehicles Act. If required, in appropriate cases, the court may permit amendment to the claim petition. " 22. In yet another decision reported in 2011-ACJ-2869 (Sanjay Batham Vs. Munnalal Parihar and others) the Honourable Supreme Court following the decision reported in Nagappa Vs. Gurudaya Singh (2003-ACJ-12-SC), held that in the absence of any bar in the Act, the Tribunal and for that reason any competent court is entitled to award higher compensation to the victim of an accident. 23. In view of the parameters laid down by the Honourable Supreme Court in the decisions cited supra, the Appellant will be entitled to enhancement in the sum. 24. In the result, this Civil Miscellaneous Appeal is allowed . The impugned award is enhanced from Rs.7,42,610/- to Rs.28,01,610/-as mentioned above. In all, the claimant is entitled to a total compensation of Rs.28,01,610/-(Rupees twenty eight lakhs one thousand six hundred and ten only) with interest 7.5% p.a. from the date of the claim petition till the date of realization as detailed below:- The the 2nd Respondent/Insurance Company is directed to deposit the enhanced award amount with interest at 7.5% p.a. from the date of the claim petition till the date of deposit within a period of eight weeks from the date of receipt of a copy of this order. The claimant is directed to pay the requisite court fee within a period of four weeks from the date of receipt of a copy of this order. On the 2nd Respondent/ Insurance Company depositing enhanced award amount and on the claimant paying the requisite court fee as stated above, the claimant is entitled to with draw the entire amount with interest. No costs.