Prayer
Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the judgment and decree dated 03.07.2007 in M.C.O.P.No.69 of 2003 on the file of Motor Accident Claims Tribunal (Sub-Court), Tuticorin.
JUDGMENT
R.BANUMATHI,J.
1. Being aggrieved with the quantum of compensation of Rs.15,45,000/- awarded to the Claimant for the injuries sustained by him in the road traffic accident on 07.02.2002, Appellant-Tamil Nadu State Transport Corporation has preferred this appeal.
2. Brief facts are that the Respondent-Claimant is a qualified Master of Foreign going Ship and he is authorised to drive all kinds of Ships in Merchant Navy. Claimant is also stated to be engaged in survey and allied works in Tuticorin. He was also doing contract Pilot work with Tuticorin Port Trust. On 7.2.2002, the Claimant attended Tuticorin Port Trust Pilot work and after his return from the Port Trust, he went in his motorcycle bearing registration No.TM-69 D 1416 to distribute wedding invitation card of his daughter. When he was proceeding near Thermal Nagar to Fishing Harbour from South to North, the Appellant-Transport Corporation bus bearing registration No.TN-72 N 0579 driven in a rash and negligent manner came from North to South and hit against the motorcycle. In the accident, Claimant had sustained fracture in right leg, injury in right shoulder, fracture in right fingers and right fore arm and also lacerated wounds in the right thigh. After the accident, Claimant was admitted in AVM Hospital, Tuticorin where he had taken treatment as inpatient for various spells of time. Regarding the accident, a criminal case was registered against the driver of the bus in Crime No.124 of 2002 under Sections 279 and 338 IPC of South Police Station, Tuticorin. Alleging that the accident was due to rash and negligent driving of the bus driver and that after the accident, the Claimant is unable to attend his office and unable to carry on the contract Pilot work at Tuticorin Port Trust, Claimant filed Claim Petition claiming compensation of Rs.20,00,000/-.
3. Resisting the Claim Petition, Appellant-Transport Corporation filed counter contending that on 07.2.2002, Appellant-Transport Corporation driver was driving the bus bearing registration No.TN-72 N 0579 from Thermal Nagar to Fishing Harbour from North to South in a slow speed, observing the traffic rules and at that time, the Claimant came in his motorcycle bearing registration No.TN-69 D 1416 from South to North in a high speed without observing the traffic rules and dashed against the bus and the Claimant was solely responsible for the accident. Since the Appellant-Transport Corporation bus driver is no way responsible for the accident, Appellant-Transport Corporation is not liable to pay compensation to the Claimant.
4. Before the Tribunal, Claimant-S.Selvaraj examined himself as P.W.1. Dr.Thangamani, attached to AVM Hospital was examined as P.W.2. Dr.T.Raghupathy Raja, Chief Doctor in City Hospital, Tuticorin was examined as P.W.3. T.Sinthadurai, Assistant Secretary, Marine Department, Tuticorin Port Trust was examined as P.W.4. Sri Ram, Chartered Accountant/Auditor of the Claimant was examined as P.W.5. Exs.P1 to P43 were marked on the side of Claimant. On the side of Appellant-Transport Corporation, the driver of the bus (Albert Dasan) was examined as R.W.1 and Ex.R1-copy of judgment in STC.No.2543 of 2002 dated 14.2.2003 on the file of Judicial Magistrate No.I, Tuticorin was marked.
5. Upon consideration of oral and documentary evidence, Tribunal held that the accident was due to rash and negligent driving of the bus driver and that Appellant-Transport Corporation is liable to pay compensation to the Claimant. Tribunal has adopted multiplier 5 and taken the income of the Claimant at Rs.35,000/- per month for one year and for the remaining four years, the monthly income was taken at Rs.20,000/- and the total income was calculated at Rs.13,80,000/- (Rs.35,000 x 12 = Rs.4,20,000/- plus Rs.20,000 x 12 x 4 = Rs.9,60,000/-). Deducting one-fourth for personal expenses, the balance of Rs.10,35,000/- was taken as loss of income. Adding medical expenses and the other damages, Tribunal has awarded total compensation of Rs.15,45,000/-payable with interest at the rate of 7.5% per annum.
6. Mr.S.Baskaran, learned counsel for Appellant-Transport Corporation contended that Tribunal erred in fixing the entire negligence on the part of the bus driver and based upon the evidence, Tribunal ought to have fixed contributory negligence on the part of the Claimant.
7. That apart, Mr.S.Subbiah, learned counsel for Respondent-Claimant contended that since the criminal case was registered only against the bus driver, Tribunal has rightly held that the bus driver was responsible for the accident.
8. On 07.2.2002 - 1.00 P.M., the Respondent-Claimant was proceeding in his motorcycle bearing registration No.TN-69 D 1416 from South to North and the bus bearing registration No.TN-72 N 0579 came in the opposite direction from North to South dashed against the motorcycle. Claimant-Selvaraj, who was examined as P.W.1 has spoken about the rash and negligent driving of the bus driver. The recitals in Ex.P1-FIR corroborates the version of P.W.1. The charge sheet in STC.No.2543 of 2002 was also laid against the bus driver. Registration of Ex.P1-FIR and laying of charge sheet against the bus driver are prima facie indication that the bus driver was responsible for the accident.
9. In his evidence RW1-Albert Dasan, driver of the bus has stated that he was carefully driving the bus and that the motorcyclist came on the wrong side and contributed to the accident. It is pertinent to note that the driver of the bus has not given any complaint regarding accident. If really, the driver of the bus was not responsible for the accident, nothing prevented him from lodging a complaint. Apart from the interested testimony of RW1-driver, no other independent evidence was adduced on the side of Appellant-Transport Corporation to substantiate the plea of contributory negligence. Appellant-Transport Corporation only relies upon the judgment of the criminal case which ended in acquittal. It was necessary to be borne in mind that strict proof of an accident caused in a particular manner may not be possible to be done by the Claimant. The Claimant has to merely to establish his case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. Therefore, it would not lead to the conclusion that the Claimant would have contributed to the accident. Finding of the Tribunal that the bus driver was responsible for the accident and that the Appellant-Transport Corporation is liable to pay compensation is based on the evidence on record and cannot be interfered with.
10. In the accident, Claimant had sustained fracture in right leg, injury in right shoulder, fracture in right fingers and lacerated wounds. Claimant had also sustained injury in his knee joint. After the accident, Claimant had taken treatment in AVM Hospital, Tuticorin for various spells from 07.02.2002 to 06.07.2002. Dr.Thangamani, attached to AVM Hospital, Tuticorin was examined as P.W.2. In his evidence, P.W.2-Dr.Thangamani has stated that the right knee joint was affected and surgery was done by fixing the artificial knee joint. Exs.P33 to P35 are the treatment reports given by AVM Hospital, Tuticorin. For medical expenses, Tribunal has awarded Rs.4,00,000/- based on Exs.P33 to P35- treatment reports and other medical bills -Exs.P5 to P11 - series and the same is maintained.
11. In his evidence, PW.1 has stated that he is not in a position to do Port contract Pilot work and that he could not walk for a long distance and lift the heavy weight. P.W.3-Dr.Raghupathy Raja, Chief Doctor in City Hospital, Tuticorin examined the Claimant and assessed the disability. In his evidence, P.W.3-Dr.Raghupathy Raja has stated that the right thigh and leg bones were malunited; shortening of 3 cms. right lower limb; knee flexion 80% and restricted the movement of right wrist. P.W.3 had opined that the Claimant is unfit to do any job; cannot climb ladder, stair case; cannot sit on floor; cannot walk for long distance and is not able to lift heavy weight and technical works. P.W.3 has assessed the permanent disability at 40% i.e. 12% for injuries over forearm; 18% for knee joint and 10% for shortening of right lower limb and issued Ex.P36-disability certificate.
12. Claimant was a qualified Master of Foreign going Ship. Ex.P14 is the Licence of Competence to Merchant Marine Officer. He was authorised to drive all kinds of Ships in Merchant Navy and for many years, he served as Captain in Foreign going Ships. At the time of accident, the Claimant was engaged in contract Pilot work with Tuticorin Port Trust. Claimant was also doing survey and allied works under the name and style Ericson & Richards Ship and Marine Surveyors. In Ex.P15, it is stated that in view of the major accident and the consequential disability of the Claimant, he will cease to head the Ericson & Richards (Tuticorin) and that he will hand over the management of the office to the another person.
13. In his evidence, P.W.1 has stated that from out of his contract Pilot work, he was earning another Rs.1,50,000/- per month and from survey and allied works, he was earning Rs.1,50,000/- per month, totalling Rs.3,00,000/- per month. Claimant claims that he was getting Rs.1,50,000/- per month from contract Piloting work. Claimant had produced Ex.P25 - details of Pilot statement from the month of August 2001 to February 2002. To show the details of Pilotage acts, Claimant had produced Ex.P38 - details of pilotage acts by contract pilots including the claim and the details of payment paid from year 2000 to July 2002. Exs.P25 and Ex.P38 does not contain any seal that it is an authenticated documents. Even though Claimant claims that he is getting the income of Rs.3,00,000/- per month, his evidence is not supported by any documentary evidence. Ex.P27 is the Income tax return for the assessment year 2002-2003 where his income is stated as Rs.2,81,240/-. Even though Claimant claims that after the accident, he could not get along with his Pilot work, by perusal of Ex.P40-letter addressed by Tuticorin Port Trust to the Claimant, it is seen that Claimant has made an application on 16.10.2003 requesting Tuticorin Port Trust to engage him as contract Pilot. Claimant was informed that the practice of engagement of additional Pilot on contract basis on act-wise basis has been withdrawn and that Tuticorin Port Trust is engaging the Pilot on consolidated payment basis. Thus it is seen that the Claimant is not deprived from pursuing his normal avocation. That apart, at the time of accident, Claimant was aged 68 years. It cannot be said that even after 68 years, Claimant would have vigorously pursued his normal avocation like a young pilot.
14. Considering Ex.P27-income tax return and Ex.P40-letter addressed by Tuticorin Port Trust to the Claimant and the evidence of P.W.1, the monthly income of the deceased is taken at Rs.25,000/-. Deducting 20% for income tax, his income is taken at Rs.20,000/- per month which the Tribunal also adopted for four years. As pointed out earlier, at the time of accident, the Claimant was aged 68 years. Therefore, multiplier 5 is adopted.
15. Tribunal has committed an error in calculating the income and thereafter deducting one-fourth for personal expenses and taking the remaining three-fourth as compensation on account of loss of income. Only in death cases, the amount to be deducted for personal expenses and the remaining is to be taken as loss of income. Therefore, the approach adopted by the Tribunal in deducting one-fourth for personal expenses is erroneous and cannot be endorsed with.
16. In hurt cases, the injured Claimant is to be compensated for his permanent disability and also for loss of earning due to his inability. The whole idea is to put the Claimant in the same position as he was in so far as money can. At the same time, Court/Tribunal has to see that the compensation awarded is not to be excessive or wind fall.
17. In 2011 ACJ 1 (SC) [Raj Kumar v. Ajay Kumar), the Supreme Court considered some of the precedents and held as under:- The provision of the Motor Vehicles Act, 1988 ('the Act', for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. ...... (underlining added) (5)The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i)Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earnings during the period of treatment;
(b) Loss of future earnings on account of permanent disability. (iii)Future medical expenses.
Non-pecuniary damages (General damages)
(iv)Damages for pain, suffering and trauma as a consequence of the injuries. (v)Loss of amenities (and/or loss of prospects of marriage). (vi)Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
18. In 2012 ACJ 28 (Govind Yadav v. New India Assurance Company Limited), the Supreme Court held as under:-
15. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Co. Ltd., 2010 ACJ 2867 (SC) and Raj Kumar v. Ajay Kumar, 2011 ACJ 1 (SC), must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earnings and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.
19. We shall now consider whether the compensation awarded by the Tribunal is just and reasonable. As pointed out earlier, the monthly income of the deceased is taken at Rs.20,000/-. In Ex.P36-disability certificate, P.W.3- Dr.Raghupathy Raja has assessed the disability at 40%. Taking the monthly income at Rs.20,000/- and adopting multiplier 5 and also taking 40% disability, amount of compensation for permanent disability, loss of earning suffered by the Claimant is calculated at Rs.4,80,000/- (Rs.20,000 x 12 x 5 x 40 v 100 = Rs.4,80,000/-).
20. Apart from awarding compensation under the head loss of earning, Tribunal also awarded Rs.35,000/- for permanent disability at 40%. Compensation cannot be awarded under two separate heads, one for loss of income and again under the head permanent disability and therefore, the said amount of Rs.35,000/- awarded by the Tribunal for permanent disability is deleted.
21. Tribunal has awarded Rs.20,000/- for pain and suffering. As pointed out earlier, the injured was aged 68 years. He had taken treatment in AVM Hospital, Tuticorin for various spells. During the period of treatment, a surgery was done and artificial knee joint was also fixed. Considering the nature of injuries and the period of treatment undergone, compensation of Rs.20,000/- awarded by the Tribunal for pain and suffering is enhanced to Rs.50,000/-. Tribunal has awarded Rs.5,000/- for transport to hospital and extra-nourishment and the same is enhanced to Rs.10,000/-. Tribunal awarded Rs.25,000/- for future prospects and amenities in life and the same is retained only under head loss of amenities. Tribunal awarded Rs.25,000/- for loss of happiness and the same is deleted. Thus the total compensation of Rs.15,45,000/- awarded by the Tribunal is reduced to Rs.9,65,000/- as under:- Medical Expenses ... Rs. 4,00,000.00
Loss of earning/Permanent
Disability ... Rs. 4,80,000.00
(Rs.20000x12x5x40v100)
Pain and suffering ... Rs. 50,000.00
Transport Charges and
Extra-nourishment ... Rs. 10,000.00
Loss of amenities ... Rs. 25,000.00
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Total ... Rs. 9,65,000.00
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The Tribunal has awarded interest at the rate of 7.5% per annum and the same is maintained.
22. In the result, the compensation of Rs.15,45,000/- awarded by the Tribunal in M.C.O.P.No.69 of 2003 dated 03.07.2007 on the file of Sub Court, Tuticorin is reduced to Rs.9,65,000/- payable with interest at the rate of 7.5% per annum from the date of filing of Claim Petition till the date of realisation and the appeal is partly allowed.
It was stated before us that Appellant-Transport Corporation has deposited the entire compensation amount awarded by the Tribunal along with accrued interest. Claimant is said to have withdrawn 50% of the compensation amount along with proportionate accrued interest. Claimant is permitted to withdraw the balance reduced compensation along with accrued interest, immediately after the receipt of copy of the judgment. Appellant-Transport Corporation is also permitted to withdraw the excess amount along with proportionate accrued interest lying in the credit of M.C.O.P.No.69 of 2003 on the file of Sub-Court, Tuticorin, immediately after the receipt of copy of the judgment. Consequently, connected M.P. is closed. There is no order as to costs in this appeal.