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2014 DIGILAW 502 (KAR)

Managing Director v. S. K. Syed Zabiulla

2014-04-29

N.K.PATIL, PRADEEP D.WAINGANKAR

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Judgment : 1. Though these appeals are posted for Admission, they are taken up for final disposal, with the consent of the learned counsel appearing for the parties. 2. These two appeals respectively by the State Express Transport Corporation (TN) Limited and the injured claimant are directed against the same judgment and award dated 30th September 2009, passed in MVC No. 1657/2002, by the XIX Additional Small Cause Judge & Motor Accident Claims Tribunal, Bangalore (SCCH-17), (for short, 'Tribunal'). 3. While the State Express Transport Corporation has filed the appeal, on the ground that, the Tribunal is not justified in directing it and also the M.G.R. Transport Corporation to jointly indemnify the award and that the second respondent/MGR Transport Corporation alone is liable to indemnify the award; the injured claimant has filed the appeal on the ground that the compensation awarded by Tribunal is on the lower side and needs to be enhanced and thus, both have sought for modification of the impugned judgment and award passed by Tribunal. 4. The facts in brief are that, the injured claimant claims to be aged about 50 years, at the time of accident, doing scrap motors business, earning a sum of Rs.50,000/- per month. He was hale and healthy prior to the accident. That at about 11:45 A.M. on 15- 12-2001, when the injured claimant was proceeding in a luggage auto with vehicle parts at Anna. Street, near Vellington point, a Kanchipuram Bus bearing Registration No.TN-21/N-0254, which was proceeding in the same direction, driven by its driver in a rash and negligent manner, dashed against the auto, due to which, the injured claimed fell down and sustained grievous injuries. Immediately he was shifted to Rayapeta Government Hospital, Chennai and thereafter to Apoilo Hospital, Chennai. 5. It is the case of the injured claimant that, on account of the road traffic accident, he has sustained severe injuries such as neurosurgical problem and the Doctor has assessed neuropsycological and cognitive deficit at 42% and permanent avocation disability with respect to business at 100% and for the treatment of the said injuries, he has spent considerable amount towards conveyance, nourishing food and attendant charges, apart from medical expenses and other incidental expenses and therefore, he has to be compensated reasonably. 6. 6. On account of the injuries sustained in the accident, the injured claimant tiled the claim petition before the Tribunal, seeking compensation of a sum of Rs.50,00,000/-against the two Corporations, i.e. State Express Transport Corporation Limited and M.G.R. Transport Corporation. The said claim petition had come up for consideration before the Tribunal on 30th September, 2009. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs.4,76,691/- under different heads, with 6% interest per annum, from the date of petition till the date of realization and directed both the Corporations to indemnify the said amount. Being aggrieved by the quantum of compensation as also the direction issued to indemnify the award, the State Express Transport Corporation (TN) Limited is in appeal before this Court, seeking reduction of compensation and a] so to set aside the direction and being dissatisfied with the compensation awarded by Tribunal, as being inadequate and on the lower side, the injured claimant has filed the appeal seeking enhancement of compensation, by modifying the impugned judgment and award passed by Tribunal. 7. We have heard learned counsel appearing for State Express Transport Corporation (TN) Limited and also the learned counsel appearing for injured claimant, for considerable length of time. 8. Learned Counsel appearing for State Express Transport Corporation (TN) Limited, vehemently submitted that the Tribunal grossly erred in directing the State Express Transport Corporation (TN) Limited and the MGR Transport Corporation to jointly indemnify the award and the same is liable to be set aside and the entire liability is to be fixed on the M.G.R. Transport Corporation, for the reason that, the Bus belongs to them, i.e. MGR Transport Corporation. To substantiate the said submission, he pointed out that the Bus involved in the accident belongs to MGR Transport Corporation, Kanchipuram and therefore, the entire liability to indemnify the award is to be fastened on the said Corporation and the direction issued by Tribunal to both the Corporations to indemnify the award jointly is liable to be set aside. Further, on instructions, he submitted that the entire award has already been satisfied by the M.G.R. Transport Corporation, which proves beyond reasonable doubt that, they, i.e. State Express Transport Corporation (TN) Limited is not liable to indemnify the award as directed by the Tribunal. Further, on instructions, he submitted that the entire award has already been satisfied by the M.G.R. Transport Corporation, which proves beyond reasonable doubt that, they, i.e. State Express Transport Corporation (TN) Limited is not liable to indemnify the award as directed by the Tribunal. Therefore, he vehemently submitted that, the impugned judgment and award passed by Tribunal is liable to be modified in so far as it relates to issuing direction to both the Corporations jointly to indemnify the award and a direction may please be issued to the second respondent alone, i.e. the MGR Transport Corporation to indemnify the entire award, instead of directing both the Corporation to jointly indemnify the award. 9. As against this, learned counsel appearing for injured claimant, inter alia submitted that, the compensation awarded by Tribunal towards all the heads is on the lower side and liable to be enhanced, for the reason that, the injured claimant was aged about 50/52 years, doing scrap motors business, earning a sum of Rs.50,000/-per month and hale and healthy prior to the accident and on account of the grievous injuries and disability sustained in the road traffic accident, he was hospitalized on many occasions and he has spent huge amount towards conveyance, nourishing food and attendant charges apart from medical and other expenses. He further submitted that the Tribunal has disbelieved the disability assed by the non-treated Doctors and awarded compensation by clubbing all the three heads, namely injury, pain and sufferings, conveyance, nourishing food and attendant charges and also loss of amenities, discomfort and unhappiness on account of disability instead of awarding the compensation under each head. Because of the grievous injuries and disability sustained, the non treated Doctors, based on the medical records available, have assessed neuropsycological and cognitive deficit of 42% and permanent avocation disability with respect to business at 100%. But, the Tribunal erred in not assessing reasonable percentage of permanent disability, in spite of observing that all the documents show that the injured claimant is having some neurosurgeon problem not to the extent of 100%, that completely restricts him to do his avocation. Further, he submitted that, on account 01 the grievous injuries and disability sustained, the injured claimant has taken treatment for a period of 41 days, out of which he was in ICU for 18 days and underwent two surgeries and also took follow-up treatment. Further, he submitted that, on account 01 the grievous injuries and disability sustained, the injured claimant has taken treatment for a period of 41 days, out of which he was in ICU for 18 days and underwent two surgeries and also took follow-up treatment. He also submitted that, the Tribunal further erred in not awarding any compensation towards loss of future income, when in fact, the injured claimant has sustained permanent neuropsychological disability, as assessed by Doctors, which affects his avocation and which is not disputed by Tribunal also. Therefore, he submitted that reasonable compensation may be awarded under each head, after assessing the permanent disability by modifying the impugned judgment and award passed by Tribunal. 10. After careful consideration of the submission of the learned counsel appearing for the parties, after perusal of the impugned judgment and award passed by the Tribunal and after evaluation of the original records available on file, the points that arise for our consideration in these two appeals are: I] Whether the Tribunal is justified in directing both the Corporations to jointly indemnify the award? II] Whether the quantum of compensation awarded by Tribunal is just and reasonable? 11. Re-Point II : Alter perusal of the entire material available on file; it emerges that, occurrence of accident and the resultant injuries sustained by the injured claimant are not in dispute. It is the specific case of the appellant/State Express Transport Corporation (TN) Limited that, the offending bus bearing Registration No.TN-21/N-0254 belongs to the second respondent/MGR Transport Corporation and the said Corporation is liable to indemnify the award passed in respect of the injured claimant for the injuries sustained by him in the road traffic accident. It is their further case that, in spite of pointing out by the counsel who represented the State Express Transport Corporation (TN) Limited and filing their objections that, the second respondent/MGR Transport Corporation is liable to indemnify the award and not the State Express Transport Corporation (TN) Limited, the Tribunal has slipped into an error in directing both the Corporation to jointly indemnify the award. Further, as rightly pointed out by the learned counsel appearing for State Express Transport Corporation (TN) Limited, the second respondent/MGR Transport Corporation, in pursuance of the impugned judgment and award passed by Tribunal, has satisfied the entire award amount, by depositing the same. Further, as rightly pointed out by the learned counsel appearing for State Express Transport Corporation (TN) Limited, the second respondent/MGR Transport Corporation, in pursuance of the impugned judgment and award passed by Tribunal, has satisfied the entire award amount, by depositing the same. This shows that there is no dispute regarding the ownership of the offending bus bearing No.TN-21/N-0254, which is involved in the accident. If this is accepted, then, the direction issued by Tribunal to both the Corporations to jointly indemnify the award is liable to be set aside and the second respondent/MGR Transport Corporation alone is to be directed to indemnify the award. Accordingly, we answer the point No. 1 in the "Negative", holding that the second respondent/MGR Transport Corporation is directed to indemnify the entire award. 12. Re-Point II] : So far as the quantum of compensation awarded by Tribunal for the injuries sustained by injured claimant is concerned, it can be seen that, occurrence of accident and the resultant injuries sustained by injured claimant are not in dispute. The Tribunal, after critical evaluation of the oral and documentary evidence available on file and also considering the number of bills and prescriptions produced by the injured claimant and also the nature and duration of treatment undergone by injured claimant on account of the grievous injuries and disability sustained, has erred in not awarding reasonable compensation under all the heads and that the compensation awarded towards three heads by clubbing the same is not sustainable and liable to set aside and the compensation is liable to be awarded under each head. 13. It is not in dispute that the injured claimant was doing scrap motors business. He has stated that he was earning a sum of Rs.50.000/- per month. But, he has not produced an iota of document or bank statement to show that he was getting the said income nor has he produced the income tax returns, showing the said income. Except making oral statements, he has not produced an iota of document. Therefore, the said statements of the injured claimant cannot be accepted. Therefore, considering the age, avocation and the year of accident, we re-assess the income of the injured claimant at Rs.5,000/- per month, to meet the ends of justice. Except making oral statements, he has not produced an iota of document. Therefore, the said statements of the injured claimant cannot be accepted. Therefore, considering the age, avocation and the year of accident, we re-assess the income of the injured claimant at Rs.5,000/- per month, to meet the ends of justice. It is not in dispute that, on account of the grievous injuries sustained, the injured claimant was hospitalized for 41 days, out of which, he was in ICU for 18 days and also undergone two surgeries. Admittedly, the injured claimant has not examined the treated Doctor nor has the treated Doctor assessed the disability. But, based on the medical records available, the Doctor at Apollo Speciality Hospital has deposed that the injured claimant is having neuropsycological and cognitive deficit of 42% and permanent avocation disability at 100%, The said Doctor is also cross examined. Another Doctor at Abhaya Hospital has seconded the opinion of the Doctor at Apollo Hospital. Further, it can be seen that a repeat CT Brain on 25-12-2006 revealed evidence of extensive gliotic (permanent brain scarring. The Tribunal has also observed that the oral and documentary evidence show that the injured claimant is having some Neurosurgeon problem not to the extent of 100% that completely restricts him to do his avocation. Having held so, the Tribunal is not justified in not assessing the permanent disability and not awarding reasonable compensation towards loss of future income. Mere non examination of the treated Doctor cannot take away the legitimate entitlement of compensation by the injured claimant, when there is substantive and credible material including oral and documentary evidence to believe that there is some percentage of disability. Therefore, having regard to the nature of injuries sustained, disability assessed by PWs2 and 3, Doctors at two different Hospitals based on the medical records available on file, etc. we re-assess the whole body disability at 60%, to meet the ends of justice. Further, it cannot be disputed that, during treatment and follow-up treatment and also surgeries, the injured claimant has undergone lot of unsaid pain and agony and during this period, he must have spent considerable amount towards conveyance, nourishing food and attendant charges. Further, for the age of the injured claimant being 50/52 years, the proper multiplier applicable is 11' as per the decision of the Hon'ble Apex Court in Sarla Verma's case ( 2009 ACJ 1298 ). Further, for the age of the injured claimant being 50/52 years, the proper multiplier applicable is 11' as per the decision of the Hon'ble Apex Court in Sarla Verma's case ( 2009 ACJ 1298 ). Accordingly, having regard to the age, avocation, nature of injuries, permanent whole body disability re-assessed by us, nature and duration of treatment and the facts and circumstances of the case on hand, we award a sum of Rs.3,96,000/- (i.e. Rs.5,000/- x 12 x 11' x 60/100) towards loss of future income as Tribunal has failed to award any compensation; Rs.1,50,000/- towards injury, pain and sufferings, Rs.1,00,000/- towards loss of amenities, discomfort and unhappiness and Rs.50,000/-towards conveyance, nourishing food and attendant charges as against Rs.64,000/-; Rs.4,09,000/- towards medical expenses as against Rs.3,58,691/-; Rs.30,000/- towards loss of income during treatment period, at the rate of Rs.5,000/-per month for a period of six months; and a sum of Rs.50,000/- towards future medical expenses as against Rs.54,000/-awarded by Tribunal. 14. Thus, the total compensation would work out to Rs.11,85,000/- as against Rs.4,76,691/- awarded by Tribunal. There would be enhancement of compensation by a sum of Rs.7,08,309/-with 6% interest per annum, from the date of petition till the date of realization. Accordingly we answer point No.II] in the 'Negative' and award the aforesaid total compensation. 15. In the light of the facts and circumstances of the case, as stated above, the appeal filed by State Express Transport Corporation Limited is allowed and the appeal filed by injured claimant is allowed in part. The impugned judgment and award dated 30th September 2009, passed in MVC No. 1657/2002, by the XIX Additional Small Cause Judge & Motor Accident Claims Tribunal, Bangalore (SCCH-17), is hereby modified; The direction issued by Tribunal to both the Corporations to jointly indemnify the award amount is hereby set aside, by directing the second respondent/MGR Transport Corporation alone to indemnify the entire award, as held while answering point No.1, above; Further, the injured claimant is held entitled to total compensation of Rs. 1,85,000/- as against Rs.4,76,691/-awarded by Tribunal and there would be enhancement of compensation by a sum of Rs.7,08,309/- with 6% interest per annum, from the date of petition till the date of realization. 1,85,000/- as against Rs.4,76,691/-awarded by Tribunal and there would be enhancement of compensation by a sum of Rs.7,08,309/- with 6% interest per annum, from the date of petition till the date of realization. The break up is as follows: Further, in view of answering point No. 1 in the 'Negative', above, the second respondent/MGR Transport Corporation is hereby directed to deposit the remaining amount, after deducting the compensation, if any, already deposited by it, within four weeks from the date of receipt of a copy of this judgment. Out of the enhanced compensation of Rs.7,08,309/-, a sum of Rs.5,00,000/'-with proportionate interest shall be invested in the name of the injured claimant, in any nationalized or schedule Bank, in Fixed Deposit, for a period of ten years, renewable for another ten years, with liberty to the injured claimant to withdraw the periodical interest; Remaining sum of Rs.2,08,309/- with proportionate interest shall be released in favour of the injured claimant, immediately; However, the apportionment of compensation made by the Tribunal in respect of the compensation awarded by it remains unaltered; The statutory amount deposited by the appellant/State Express Transport Corporation (TN) Limited shall be refunded to it, through its authorized representative or counsel, forthwith. Office is directed to draw the award, accordingly.