P.R. Shivakumar, J.
1. By consent of parties, dispensing with notice to the other respondents, who do not have any interest in the outcome of the appeal and who remained ex parte before the Tribunal, the main civil miscellaneous appeal itself is taken up for final disposal.
2. This civil miscellaneous appeal is directed against the judgment and award of the Motor Accidents Claims Tribunal (Principal Sub-Judge), Nagercoil dated 20.2.2006, made in M.C.O.P. No. 100 of 2003, by which the driver, owner and the insurer of the alleged offending vehicle involved in the accident have been directed to pay a sum of Rs. 21,15,000 as compensation for the injuries sustained by the injured person, namely, the respondent-herein/claimant in the above said M.C.O.P. together with interest at the rate of 12 per cent per annum on the above said amount from the date of filing of the M.C.O.P. till realisation and cost.
3. The respondent Nos. 1 to 4 herein preferred the claim petition M.C.O.P. No. 100 of 2003 on the file of Motor Accidents Claims Tribunal (Principal Sub-Judge), Nagercoil, praying for an award, directing respondent Nos. 1 to 3 therein-appellant and respondent Nos. 5 and 6 in this appeal to pay a sum of Rs. 30,00,000 as compensation for the injuries sustained by injured respondent herein/claimant in the above said M.C.O.P. in a vehicular accident that allegedly took place on 12.1.2001 at about 3.45 p.m. at Therekalputhoor.
4. According to the respondent Nos. 1 to 4-the claimants in the M.C.O.P., the injured-Balasubramanian (respondent-claimant No. 1) on the above said date was proceeding slowly and cautiously in his motor cycle bearing registration No. TN 74-E 4809 along with a pillion rider Subramanian from Nagercoil to Sivagnanapuram (Kurukkal Madam) and when they reached Therekalputhoor at about 3.45 p.m., the lorry bearing registration No. TN 32-Y 2669 came there in the opposite direction driven by its driver, the respondent No. 5 herein/respondent No. 1 in M.C.O.P., in a rash and negligent manner and dashed against the said motor cycle as a result of which Balasubramanian, the respondent herein/claimant No. 1 sustained multiple injuries including severe head injuries. Contending that due to rash and negligent driving of the above said lorry by the respondent No. 5 herein/respondent No. 1 in the M.C.O.P. was the cause of the accident; that the injuries sustained by the respondent herein/claimant No. 1 resulted in total permanent disability and that respondent Nos. 5 and 6 herein and appellant herein-respondent Nos. 1 to 3 in the M.C.O.P., in their capacities as driver, owner and insurer of the said lorry respectively, were bound to compensate the injured respondent-claimant No. 1, respondent-claimant Nos. 1 to 4 had prayed that an award should be passed, directing the respondent Nos. 5 and 6 and the appellant herein/respondent Nos. 1 to 3 in M.C.O.P. to pay the above said amount as compensation with future interest and cost. In order to substantiate their claim, the claimants examined three witnesses as PWs 1 to 3 and relied on 25 documents marked as Exhs. A1 to A25.
5. The driver and owner of the alleged offending vehicle, who had been arrayed as respondent Nos. 1 and 2 in the M.C.O.P., did not contest the claim and remained ex parte. The insurer who had been arrayed as the respondent No. 3 in the M.C.O.P. alone resisted the claim by filing a counter-statement denying the petition allegations regarding the negligence aspect, the age, occupation and the income of the injured respondent-claimant No. 1 at the time of accident, the nature of injuries, the nature and extent of disability suffered by him and reasonableness of the amount claimed in M.C.O.P. as compensation. No witness was examined and no document has been marked on the side of the respondents.
6. At the conclusion of inquiry, on an appreciation of evidence adduced on both sides, the Tribunal held respondent No. 5 herein-respondent No. 1 in M.C.O.P., the driver of the lorry bearing registration No. TN 32-Y 2669 to be at fault and hence mulcted the liability on the respondent Nos. 5 and 6 and the appellant herein-respondent Nos. 1 to 3 in the M.C.O.P. in their capacities as driver, owner and the insurer of the said lorry, to pay compensation for the injuries sustained and the resultant permanent disability suffered by respondent herein/claimant. The Tribunal found him to have suffered a permanent disability of 100 per cent and awarded a total sum of Rs. 21,15,000 as compensation and directed the respondent Nos. 5 and 6 and the appellant herein-respondent Nos. 1 to 3 in the M.C.O.P. to pay the above said amount with an interest at the rate of 12 per cent per annum from the date of claim petition till realisation and cost. Since the respondent-claimant Nos. 2 to 4 in M.C.O.P. had not claimed any compensation for themselves and they made the claim only on behalf of the claimant No. 1, the Tribunal dismissed the M.C.O.P., so far as the respondent herein-claimant Nos. 2 to 4 in M.C.O.P. are concerned.
7. Aggrieved by and challenging the award, appellant insurance company has brought forth this civil miscellaneous appeal before this Court on the question of negligence as well as quantum of compensation.
8. We have heard the submissions made by Mr. K. Baskaran, learned Counsel appearing for the appellant and also by Mr. Xavier Rajini, learned Counsel appearing for the respondent Nos. 1 to 4 and paid its anxious consideration to the same.
9. There is no dispute regarding the factum of accident that took place on 12.1.2001 at about 3.45 p.m. involving the motor cycle bearing registration No. TN 74-E 4809 and the lorry belonging to the respondent No. 6 herein-respondent No. 2 in M.C.O.P. bearing registration No. TN 32-Y 2669. It is also not in dispute that the respondent No. 5 herein-respondent No. 1 in the M.C.O.P. was the driver in-charge of the said lorry at the time of accident and that the above said lorry stood insured with the appellant herein-respondent No. 3 in M.C.O.P. during the relevant period. It has also been admitted that respondent No. 1 herein/claimant No. 1 in M.C.O.P. was the rider of the above said motor cycle and he sustained multiple injuries including the severe head injuries in the above said accident. It is the case of respondent Nos. 1 to 4 herein/claimant Nos. 1 to 4 in M.C.O.P. that while the injured respondent-claimant No. 1 was proceeding in his motor cycle along with PW 2, the pillion rider, slowly and cautiously, the driver of the above said lorry that came in the opposite direction drove it in a rash and negligent manner, dashed it against the said motor cycle and thus caused the accident. The wife of the injured respondent No. 1 herein/claimant No. 1 who also figured as the claimant No. 2 in the M.C.O.P. deposed as PW 1. But admittedly, she was not an eyewitness for the accident and hence her evidence will not be helpful to decide the question of negligence. PW 2, Subramanian who was travelling along with the injured respondent No. 1 in the motor cycle as pillion rider happened to be the person who lodged the complaint with the police regarding the accident, based on which a criminal case was registered against the respondent No. 5 herein/respondent No. 1 in the M.C.O.P., the driver of the lorry, in Crime No. 4 of 2001 on the file of Traffic Police Station, Kottar, Nagercoil.
10. Copy of the first information report, copy of the observation mahazar prepared by the Investigating Officer, copy of the rough sketch prepared by him, copy of the report of the Motor Vehicles Inspector and the certified copy of the judgment of the Judicial Magistrate No. II, Nagercoil in the above said case in S.T.C. No. 3554 of 2001 have been produced and marked on the side of the claimants as Exhs. A1 to A5. Exhs. A1 to A4 clearly support the case of claimants that it was the respondent No. 5 herein-respondent No. 1 in M.C.O.P., the driver of the lorry who acted in a rash and negligent manner in driving the vehicle and caused the accident in question. From Exh. A4, it is quite clear that there was no mechanical defect in either of the vehicles involved in the accident and that the accident was purely due to human error. Exh. A5, the judgment of the Judicial Magistrate No. II, Nagercoil in S.T.C. No. 3554 of 2001 evidences that the respondent No. 5 herein-respondent No. 1 in M.C.O.P. admitted the offence and pleaded guilty and based on his admission he was convicted for the offences under Sections 279, 337 and 338, Indian Penal Code. It is a well settled proposition of law that the judgments of the criminal courts are neither binding on the civil court/Motor Accidents Claims Tribunal nor relevant in a civil case or a claim for compensation under the Motor Vehicles Act, except for the limited purpose of showing that there was a criminal prosecution which ended in conviction or acquittal. But there is an exception to the general rule. When an accused pleads guilty and is convicted based on his admission, then the judgment of criminal court becomes admissible and relevant in civil proceedings and proceedings before the Motor Accidents Claims Tribunal, not because it is a judgment of the criminal court, but as a document containing an admission. Of course, admissions are not the conclusive proof of the fact admitted therein. But unless and until they are proved to be incorrect or false by the person against whom the admissions are sought to be used as evidence, the same shall be the best piece of evidence. In this case, though the appellant did have the right to lead evidence to disprove the facts admitted in the criminal case, no evidence has been adduced on the side of the appellant in the proceedings before the Motor Accidents Claims Tribunal. In addition to the above said admissions, there are other reliable evidence both oral and documentary adduced on the side of the claimants to prove negligence on the part of the driver of the lorry. In view of the overwhelming evidence adduced on the side of the claimants, apart from the unrebutted admission made by the driver of the offending vehicle in the criminal case, the finding of the Tribunal that the accident occurred solely due to rash and negligent driving of the above said lorry bearing registration No. TN 32-Y 2669 belonging to the respondent No. 6 herein and insured with the appellant herein does not suffer from any infirmity or discrepancy. Hence, this Court comes to the conclusion that there is no reason, whatsoever, to interfere with the above said finding of the Tribunal regarding the negligence aspect and the same deserves to be confirmed.
11. So far as the question of quantum is concerned, the learned Counsel for the appellant argued that the amount awarded by the Tribunal as compensation was highly excessive and unreasonable and hence liable to be slashed down drastically by this Court in this civil miscellaneous appeal. Per contra, the learned Counsel for the respondent Nos. 1 to 4 would contend that the amount awarded by the Tribunal can, at no stretch of imagination, be termed either excessive or unreasonable and that there is no scope, whatsoever, for the downward revision of the same.
12. In the light of the submissions made by the learned Counsel on either side, the said issue can be approached to find out whether the amount awarded as compensation is unreasonably excessive requiring downward revisions in this civil miscellaneous appeal
13. The Tribunal has awarded a total sum of Rs. 21,15,000 with the following split-up particulars:
Compensation for loss of income Rs. 25,000Compensation for pastand future transportexpenses Rs. 10,000Compensation for pastand future extranourishment Rs. 25,000Compensation fordamages caused toclothes and personalarticles Rs. 5,000Compensation forpast and future medicalexpenses Rs. 8,00,000Compensation for painand suffering Rs. 50,000Compensation for lossof future earningcapacity Rs. 8,00,000Compensation forpermanent disability Rs. 4,00,000Total Rs. 21,15,000
14. A sum of Rs. 4,00,000 was claimed as compensation for the medical expenses incurred up to the date of filing M.C.O.P. and a further sum of Rs. 4,00,000 was claimed for future medical expenses. In all a total sum of Rs. 8,00,000 was claimed as compensation for past and future medical expenses. Medical bills evidencing the expenses incurred for treatment and purchase of medicines have been produced on the side of the claimants and marked as Exhs. A13 to A19 and Exhs. A21 to A24. The genuineness of the said medical bills has not been disputed. A sum of Rs. 8,21,890 is covered by the said bills. Even then, since the claimants had made a claim of Rs. 8,00,000 alone as compensation for medical expenses, the Tribunal restricted the award of compensation for medical expenses to Rs. 8,00,000. Therefore, this Court is of the considered view that, at no stretch of imagination, the said amount awarded as compensation by the Tribunal towards medical expenses can be termed excessive or unreasonable.
15. As against the claim of Rs. 21,000 as compensation for the damage caused to clothes and personal articles like chain, watch and ring, the Tribunal has awarded a sum of Rs. 5,000. There is the evidence of PW 1 that the watch, chain and ring usually worn by the injured respondent-claimant No. 1 were found missing after the accident. Under these circumstances, the above said sum of Rs. 5,000 awarded as compensation for the damage caused to clothes and personal articles, in the opinion of this Court, is quite reasonable and hence no interference is warranted.
16. As against the claim of Rs. 80,000 towards past and future expenses on extra nourishment, Tribunal has awarded a sum of Rs. 25,000. Injured respondent-claimant No. 1 had taken continuous treatment from the date of accident till the disposal of M.C.O.P. and even after being discharged from the hospital, he is still in continuous treatment. Taking into consideration the nature of injuries and the duration of treatment and the further fact that the injured still needs not only continuous treatment but also extra nourishment, the said amount awarded by the Tribunal is quite reasonable and hence the same is confirmed. A sum of Rs. 10,000 has been awarded as compensation for the past and future transport expenses. The learned Counsel for the appellant has not made any serious challenge to the above said amount awarded as compensation for transport expenses. This Court is also satisfied that the same is quite reasonable and hence the same deserves to be confirmed.
17. Clear evidence both oral and documentary, have been adduced on behalf of the claimants that the injured respondent-claimant No. 1 was employed as a telephone contract work supervisor in A.P. Sen & Co., Chennai and was drawing a monthly salary of Rs. 4,000. Exh. A7 is the salary certificate. Based on the said salary certificate, the Tribunal took the annual income of the deceased prior to the accident as Rs. 48,000. It is obvious from Exh. A8 that the respondent No. 1 herein prior to the accident had appeared for the written examination for promotion as Sub-Inspector. Therefore, Tribunal has rightly observed that there was fair chances of his getting a better job and earning more amount as remuneration. Therefore, taking that aspect also into consideration and the expected future increment in his present job, the average monthly income can be taken as Rs. 4,500. PW 3, the medical officer who examined the injured-claimant No. 1, issued Exh. A25, disability certificate assessing the permanent disability at 100 per cent. He assessed the total permanent disability suffered by the injured-claimant at 118 per cent and since the rule does not permit certification of the disability exceeding 100 per cent, he certified that the permanent disability suffered by the respondent-claimant No. 1 was 100 per cent. The Tribunal has also accepted that the claimant No. 1 has lost his earning capacity completely. As per the oral and documentary evidence adduced on the side of the claimants, the injured respondent-claimant No. 1 has been reduced to a bundle of vegetables and he is not able to do anything without the help of others. The Tribunal has correctly found the loss of earning capacity to be 100 per cent.
18. Clear evidence has been adduced to show that the respondent No. 1 was aged 26 years at the time of accident. Hence in case of total permanent disability adoption of multiplier method for assessing the compensation for loss of earning capacity shall be proper. Even then, the Tribunal, without giving the particulars of assessment of loss of earning capacity, has simply awarded a sum of Rs. 8,00,000 as lump sum compensation for loss of future earning capacity. As it is a case of injury resulting in total permanent disability, the question of deducting 1/3rd amount from the income of the injured will not arise. But at the same time, since a lump sum payment is awarded at present for the future loss of earnings also, it shall be just and proper to take into consideration the contingencies like the chance of the injured-claimant passing away earlier. This is achieved by selecting an appropriate multiplier, which shall be lesser than the multiplier that can be selected in fatal cases. Normally, for a person aged about 26, the maximum multiplier '18' can be adopted in fatal cases. Since it is a case of total permanent disability, selecting '15' as multiplier shall be reasonable. Then total amount of compensation shall be Rs. 8,10,000. The Tribunal has awarded only a sum of Rs. 8,00,000 as compensation for the loss of future earning capacity. Therefore, this Court is of the opinion that there cannot be any grievance for the appellant over the award of a sum of Rs. 8,00,000 as compensation towards loss of future earning capacity. In fact, the learned Counsel for the appellant having been convinced that the amount awarded as compensation for future loss of earning capacity is quite reasonable has not advanced any argument in this regard. Hence the same could be confirmed.
19. On the other hand, learned Counsel for the appellant vehemently argued that there was duplication of award of compensation, since the Tribunal had awarded a further sum of Rs. 4,00,000 as compensation for the loss of comforts occasioned due to the permanent disability suffered by the respondent-claimant No. 1, over and above, the sum of Rs. 8,00,000 awarded as compensation for loss of future earning capacity. In support of his contention, the learned Counsel relied on the judgment of the Full Bench of Madras High Court in Cholan Roadways Corporation Ltd. v. Ahmed Thambi : (2006)4MLJ362 . In case of injuries resulting in permanent disability, two methods of assessment of compensation for permanent disability are possible. One by awarding a lump sum payment for the permanent disability which will take into its fold, the loss of future earning capacity and loss of amenities in life and the other by awarding separate amounts for loss of future earning capacity and loss of amenities in life caused by the permanent disability. As per the Full Bench judgment of Madras High Court cited above, what is prohibited is awarding separate amount of compensation for loss of earning capacity, when lump sum payment is awarded for permanent disability as such or awarding separate amount as compensation for permanent disability as such, after separately itemising compensation for loss of earning capacity. In case loss of earning capacity is separately assessed without awarding lump sum amount for permanent disability as such, there is no prohibition for separately assessing compensation for loss of amenities in life caused by the permanent disability. Therefore, this Court is not in a position to fully accept the above said contention of the learned Counsel for the appellant that there is duplication of award of compensation. The award of separate amounts: (1) for loss of earning capacity and (2) for loss of amenities in life caused by the permanent disability is perfectly in accordance with the view expressed by the Full Bench of Madras High Court in the judgment cited supra.
20. In this case, the Tribunal has rightly adopted the method of assessing compensation for the loss of future earning capacity separately and awarding a separate sum as compensation for loss of amenities in life caused to the injured-claimant due to the permanent disability. But at the same time, this Court is able to find some force and substance in the contention raised by the learned Counsel for the appellant that a sum of Rs. 4,00,000 awarded as compensation for loss of amenities in life caused due to the permanent disability is excessive and hence the same deserves to be reduced drastically. Taking into account the fact that the injured at the age of 26 years has been reduced into a bundle of vegetables and that he is not able to do anything without the help of others, this Court is of the considered view that reducing the above said amount to Rs. 1,75,000 shall be quite reasonable. At the same time, this Court takes note of the fact that the Tribunal has awarded only a sum of Rs. 50,000 as compensation towards pain and suffering. The respondent-claimant No. 1 had been under treatment till the disposal of M.C.O.P. and still he needs continuous treatment. It is quite evident that he has already undergone lot of physical and mental agony and he still undergoes such a physical and mental agony. He will be enduring the said pain and suffering for the years to come till his lifetime. Hence, this Court is of the considered view that the compensation under the head of pain and suffering has got to be increased to Rs. 75,000 from Rs. 50,000. If such adjustments are made, then the total amount of compensation shall be Rs. 19,15,000. For the sake of convenience, at the cost of repetition, the particulars of assessment are given as under:
Compensation for lossof income Rs. 25,000Compensation fortransport expenses Rs. 10,000Compensation for extranourishment Rs. 25,000Compensation fordamages caused toclothes and personalarticles Rs. 5,000Compensation formedical expenses Rs. 8,00,000Compensation forpain and suffering Rs. 75,000Compensation forloss of future earningcapacity Rs. 8,00,000Compensation forloss of amenities inlife caused due to thepermanent disability Rs. 1,75,000--------------Total Rs. 19,15,000--------------
21. The next contention raised by the learned Counsel for the appellant is that the interest awarded by the Tribunal is excessive and unreasonable and hence the same deserves to be reduced by this Court. Taking into account the current bank rates for the advances and deposits, this Court feels that the award of interest at the rate of 12 per cent is slightly on higher side and that reducing the rate of interest to 8 per cent shall be quite reasonable and hence the interest awarded by the Tribunal is reduced from 12 per cent to 8 per cent.
22. For all the reasons stated above, the reasonable compensation to which claimants are entitled is fixed at Rs. 19,15,000 as against a sum of Rs. 21,15,000 awarded by the Tribunal. This Court hereby concludes that compensation awarded by the Tribunal shall be reduced to Rs. 19,15,000 from Rs. 21,15,000 and in all other respects, subject to the above said modification, the award of the Claims Tribunal shall stand confirmed.
23. In the result, this appeal is allowed in part and the award of the compensation made by the Tribunal is hereby reduced to Rs. 19,15,000 from Rs. 21,15,000 and the interest is also reduced from 12 per cent to 8 per cent.
24. In all other respects, subject to the above said modification, the award of Claims Tribunal shall stand confirmed. Consequently, connected M.P. Nos. 2 and 3 of 2007 are closed. No costs.