1. This appeal arises against the judgment and decree dated 28.03.2006 made in M.A.C.T.O.P.No.3190 of 2004 on the file of the Motor Accidents Claims Tribunal (Court of Small Causes), Chennai.
2.Claimant is the appellant and the brief facts of the case are as follows:
On 28.02.2004 at about 17.30 hours, when the appellant/claimant, tailor by profession, was proceeding in his motorcycle bearing Registration No.TN 01 E 3320 in East Coast Road from south to north, near Vettuvankeni, the tipper lorry bearing Registration No.TN 10 B 9090 driven by its driver in a rash and negligent manner, came from opposite direction and hit against the claimant, as a result of which, the claimant's vehicle dashed against another motor cycle and the lorry finally dashed against the shop. In the accident, the claimant sustained multifarious fractures and injuries all over the body. The claimant was initially admitted to Malar Hospital, Adyar, Chennai and thereafter he was shifted to Government General Hospital, Chennai. A criminal case was registered in Crime No.116 of 2004 on the file of Neelankarai Police Station. Stating that due to the accident, he has suffered permanent and partial disability, sustained loss of earning power and spent huge amounts towards medical expenses, the claimant has filed a claim petition, claiming compensation of Rs.46,00,000/-.
3. Before the Tribunal, the claimant examined himself as P.W.1 and also examined P.Ws.2 to 5 and marked Exs.P1 to P21. On the side of the second respondent, one Murali was examined as R.W.1 and Ex.R1 was marked.
4. In his evidence, P.W.1-claimant/appellant stated that he was aged 29 years at the time of accident and was owning a tailoring shop by name "Welcome Tailors", in which five persons were employed. He was earning Rs.12,000/- to Rs.15,000/- per month. In the accident, he suffered multiple fractures leading to impairment of left hand and partial impairment of right hand and because of the nerve injury in the left shoulder and left lower arm, movement of the left hand has been restricted. He would also claim that as per the opinion of Orthopaedic Surgeon, he had 45.5% permanent disability and as per the opinion of Neurosurgeon, he has got 50% disability. The claimant would further claim that the accident happened due to the negligent driving of the driver of the vehicle owned by the first respondent and hence he should be compensated.
5. The Tribunal taking into consideration the evidence let in by both parties, came to the conclusion that the driver of the first respondent driven the vehicle in a rash and negligent manner and as the driver has also accepted the offence and paid the fine, the entire liability would rest on the lorry owner. Taking into consideration the disability suffered by the claimant, the Tribunal has awarded compensation of Rs.8,53,537/- as under: Loss of income .. Rs.4,32,000.00
(Rs.2,000/- x 12 x 18)
Transport charges .. Rs. 30,000.00
Extra nourishment .. Rs. 50,000.00
Damages to clothing .. Rs. 1,000.00
Attendant charges .. Rs. 30,000.00
Past medical expenses .. Rs. 2,10,537.00
Pain and suffering .. Rs. 50,000.00
Loss of amenities .. Rs. 50,000.00
= = = = = = = =
Total .. Rs. 8,53,537.00
= = = = = = = =
6.Aggrieved against the same, the claimant/appellant has come forward with this appeal for enhancement of compensation. The claimant/appellant would contend that the award given was much low as the Tribunal has failed to take into consideration that the claimant/appellant was a qualified tailor and even as per the evidence of P.W.1/claimant, in the normal course, he was earning Rs.6,000/- per month and during festival seasons, he was earning Rs.15,000/- per month and the Tribunal ought to have taken average income of Rs.10,000/- per month. The claimant/appellant would further contend that the amounts awarded under other heads are also much low and seeks enhancement of compensation.
7.The second respondent-insurance company resisted the appeal on the specific ground that though the claimant/appellant has not chosen to examine anyone to show that he was running the tailoring shop and that he was earning Rs.12,000/- - Rs.15,000/- per month, the Tribunal has fixed the income at Rs.3,000/- per month and after deducting 1/3rd amount towards personal expenses and adopting 18 multiplier, the Tribunal calculated the loss of income at Rs.4,26,000/- which is on the higher side and amounts granted under various heads are totally exorbitant. Learned counsel for the second respondent would specifically plead that the amounts awarded under the heads 'extra nourishment' and 'loss of amenities' were questioned by the insurance company.
8. We have heard the learned counsel for the appellant and the learned counsel for the second respondent-insurance company.
9.On a careful perusal of all the relevant documents, especially Ex.P4-discharge summary issued by Malar Hospital and also Ex.P7 O.P. chit and Ex.P8 discharge summary given by Voluntary Health Services, we are able to identify that the claimant/appellant has suffered serious injuries because of the accident and the evidence of doctors viz., P.Ws.3 and 5, Orthopaedic Surgeon and Neuro Surgeon, would categorically indicate that the claimant has suffered permanent disability to the tune of 45.5% and 50% respectively. The Orthopaedic Surgeon also opined that the free movement of left hand was restricted. But he has not stated that it is totally impaired. At the same time, the claimant/appellant himself has not given any evidence to show that he is totally incapacitated whereas he is able to move the hands and also walk with little bit of limping. Taking into consideration the evidence of the doctors as well as the disability coupled with the X ray and disability certificates viz., Exs.P16 and P20, we are of the opinion that the claimant/appellant did not sustain an injury, which resulted in the loss of earning. Under those circumstances, we will have to now assess the quantum of compensation payable to the petitioner. Of course, the insurance company did not argue much on the question of liability.
10. When we analyse the various heads under which the Tribunal has granted compensation, in so far as the income is concerned, the Tribunal has rightly stated that even though the claimant/appellant claims himself as a tailor, he has not even examined any one other than himself to bring forth that he was running tailoring shop, in which, he has employed 5-6 persons and he has also not examined any customer to show that he was a tailor. Above all these things, as rightly pointed out by the learned counsel for the second respondent counsel as well as rightly observed by the Tribunal, if really the claimant/appellant was a tailor, he would have maintained register or measuring book, in which, normally the tailors maintain their customers' measurements of the dress materials. In this case, if really the claimant had been working as a tailor for more than 10 years, he would have maintained details in the book for the relevant years. The claimant has not even produced a single scrap of paper or receipt for payment of rent for shop etc., to show that he was a tailor. In those circumstances, it can only be considered that the income has not been proved at all. If the income is not proved with any documents or any evidence, the Supreme Court has categorically held that even an ordinary person would be deemed to have earned Rs.100/- per day and thus the Tribunal has rightly fixed Rs.3,000/- per month as income. Deducting 1/3rd amount for personal expenses, the Tribunal has taken Rs.2,000/- per month as income, adopted 18 multiplier and calculated Rs.4,32,000/- as loss of income (Rs.2,000/- x 12 x 18 = Rs.4,32,000/-), which according to law is correct. We confirm the compensation in so far as loss of income is concerned. Similarly, Rs.50,000/- awarded under the head 'loss of amenities' is also maintained.
11. Insofar as the compensation for pain and suffering is concerned, the Tribunal has granted only Rs.50,000/-. The petitioner was hospitalised for a period of 45 days from 29.02.2004 to 15.04.2004 and thereafter he was again hospitalised between 30.06.2004 and 29.07.2004 for a period of 29 days, thus totally 74 days he had been inpatient in the hospital. Apart from that, he was further taking treatment even during the period between 14.03.2005 and 18.03.2005. Hence we feel it necessary that Rs.50,000/- awarded towards pain and suffering need to be increased and therefore, we increase the compensation from Rs.50,000/- to Rs.1,00,000/-.
12. Coming to the Part I claim, as far as the loss of earning, though the claimant/appellant had claimed for the period commencing from 29.02.2004 to 31.12.2005, no amount was granted. As we rightly pointed out earlier, he was in hospital for a period of 74 days as inpatient. Therefore, we feel that a sum of Rs.25,000/- would be a fair and reasonable compensation towards loss of earning from 29.02.2004 to 31.12.2005, as claimed by the claimant/appellant. As far as transportation to hospital is concerned, the Tribunal has granted Rs.30,000/-, which we feel reasonable and acceptable. Similarly, compensation awarded by the Tribunal under the heads 'extranourishment' and 'medical expenses' are confirmed.
13. The award of the Tribunal in M.C.O.P.No.3190 of 2004 dated 28.03.2006 is modified and the compensation awarded by the Tribunal is enhanced to Rs.9,28,537/-. The modified compensation is as follows: Loss of income .. Rs.4,32,000.00
(Rs.2,000/- x 12 x 18)
Loss of income for the
period from 29.02.2004
to 31.12.2005 .. Rs. 25,000.00
Transport charges .. Rs. 30,000.00
Extra nourishment .. Rs. 50,000.00
Damages to clothing .. Rs. 1,000.00
Attendant charges .. Rs. 30,000.00
Medical expenses .. Rs. 2,10,537.00
Pain and suffering .. Rs. 1,00,000.00
Loss of amenities .. Rs. 50,000.00
= = = = = = = =
Total .. Rs. 9,28,537.00
= = = = = = = =
14. Learned counsel for the insurance company has stated that entire amount has already been deposited and also been withdrawn by the claimant/appellant. Therefore, the insurance company is directed to deposit enhanced amount of Rs.75,000/- along with interest from the date of claim petition i.e. 11.08.2004 at the rate of 7.5% per annum, within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant/appellant is entitled to withdraw the entire amount. 15.In the result, the Civil Miscellaneous Appeal is partly allowed. No costs.