A. Govindarajan Vs. S. Karunanithi and Another - Court Judgment

Excerpt:
motor vehicles act, 1988 - section 173 – (prayer: civil miscellaneous appeal filed under section 173 of motor vehicles act, 1988 against the order dated 30.09.2008 made in m.c.o.p. no.433 of 2002 on the file of motor accident claims tribunal/principal district judge, pudukkottai.) judgment (judgment of the court was delivered by g.m.akbar ali, j) 1. this appeal is filed against the order of dismissal dated 30.09.2008 passed by the motor accident claims tribunal/principal district court, pudukkottai, in m.c.o.p.no.433 of 2002. 2. the appellant herein, who is represented by his mother and next friend, a.shanmugavadivu, filed a claim petition before the motor accident claims tribunal/principal district and sessions court, pudukkottai, dated 30.09.2008 in m.c.o.p.no.433 of 2002, claiming compensation for injuries sustained in a road accident on 17.12.2011. 3. according to the appellant, he was a practicing advocate with standing experience of 9 years and was earning not less than rs.15,000/- per month from his profession and rs.25,000/- per month from agriculture, thus totally, he was earning a sum of rs.40,000/- per month. he was unmarried and marriage was fixed with one sudha of dindigul and marriage was to take place on 20.01.2002. in order to distribute the invitation cards to his relatives sand friends, the appellant came to pudukkottai and on completion of the distribution of invitation cards, he was returning by his motor cycle bearing regn.no.tn-59 q 8014 with care and caution on the left side of the road. when he was nearing valayan vayal in namanasamuthiram – thirumayam main road, a mahendra seated van bearing no.py 02–y-7111 was going in front of the vehicle of the appellant at higher speed. suddenly, the driver of the said van, without any reason applied brake and without any communication, stopped the vehicle. the appellant, though was going slowly, could not stop his vehicle in time and unfortunately, the motor cycle collided with the said van in the middle of the road. he was thrown out of his motor cycle and he sustained the following injures:- 1. post traumatic diffuse severe axonal injury – head injury 2. multiple contusion with intra ventricular hemorrhage of the brain. 3. left clavicular fracture 4. fracture – left femur initially, he was admitted in the government head quarters hospital at pudukkottai, and thereafter, he was taken to apollo hospital, madurai, and he was admitted as inpatient on 17.12.2001 and continued his treatment till 25.3.2002. he fell unconscious and so kept in artificial ventilation for 20 days and was discharged only after 25.3.3002. even after treatment, he could not move and he has become disabled. he also lost his memory power and speaking power. since he has sustained such injuries, he is almost in vegetative state and therefore, he has filed the claim petition through his mother claiming compensation of rs.1,54,30,000/-. 4. the second respondent/insurance company denied various averments made in the claim petition and also assailed the claim of rs.1,54,30,000/-. resisting the claim petition, the second respondent/insurance company filed a detailed written statement. according to the second respondent, mahendra van bearing regn.no.py-02–y-7111 was proceeding from north to south on namanasamuthiram to thirumayam main road at valaiyan vayal and the driver of the van was driving slowly and cautiously and while negotiating a curve, the appellant drove the motor cycle in a high and uncontrollable speed coming behind the van closely and dashed against the rear body of the van and caused the accident. without leaving sufficient space of 10 metres behind the van, the appellant was closely following the said van in high speed and dashed against the van on the rear side. the appellant was at fault. therefore, the negligence is only on the part of the appellant and not on the part of the driver of the van, which has been insured with the second respondent. 5. a detailed additional written statement was also filed by the second respondent/insurance company denying that the appellant is totally disabled, and the percentage of disability of 70% was also denied by the second respondent. the second respondent/insurance company submitted that a private investigator was appointed and he found that the marriage of the petitioner with one sudha took place on 3.3.2004 at king metro hotel in madurai and the appellant, in fact, was seen walking in the marriage. 6. with the above averments, the parties went on enquiry before the motor accident claims tribunal, pudukkottai. 7. in order to prove the claim of the claimant/appellant, the mother of the appellant was examined as pw.1 and pw.2 was examined to speak on the accident and 2 doctors were examined as pw.3 and pw.4 on the side of the appellant. on the side of the respondents, one sudha, the person who married the appellant, was examined as rw.1 and private investigator was also examined along with the officials of the respondent insurance company. elaborate enquiry was conducted before the tribunal. the second respondent/insurance company vehemently contested the claim on each and every aspect. 8. as far as the negligence is concerned, the tribunal analysing the evidence adduced on the petitioner's side as well as the driver of the van held that the injured/the claimant had come at uncontrollable speed and without maintaining the same speed, the accident would not have occurred. on this finding, the tribunal held that the claimant was responsible for the accident and he is solely negligent, and thus fixed the negligence on the part of the appellant. however, the tribunal proceeded to consider the amount of compensation which can be granted to the appellant. 9. before the tribunal, rw.1 deposed that she was married to the appellant on 3.3.2004 and the appellant came to marriage hall, which was in the first floor and contracted the marriage and lived with him for eight months and has got separated due to some misunderstandings. considering the evidence of rw.1 and also considering the evidence of doctors who were examined on behalf of the injured, the tribunal found that there is no truth in the averments made in the claim petition that the petitioner/appellant is not in a position to walk, speak and he has become totally disabled and bed ridden. by holding so, the tribunal has awarded a sum of rs.3,00,726/- . however, having found that the petitioner/appellant himself is negligent, the tribunal dismissed the claim in entirety. aggrieved by the dismissal of the entire claim, the petitioner/appellant is before this court on the ground that the tribunal has not considered the evidence of the petitioner/appellant as well as doctors who were examined on the side of the petitioner/appellant. 10. learned counsel for the appellant submitted that the appellant was a practicing advocate and when he was proceeding in his motor cycle, mahendra van, which was proceeding in a rash and negligent manner, suddenly stopped in the middle of the road and therefore, there was collision. the learned counsel traversed the evidence of eye witness pw.2 and documentary evidence adduced on behalf of the appellant. the learned counsel pointed out that the evidence of driver of the van who was examined as rw.4 cannot be relied on as he is an interested witness to safeguard his own liability. pw.2 who has seen the accident has stated that the van was proceeding without any signal and all of a sudden stopped in the middle of the road and therefore, the claimant's two wheeler dashed against the van. 11. even though the tribunal has fixed negligence upon the claimant, by perusal of the evidence and materials, we found that the fir ex.p.2 was registered against the van driver. that apart, charge sheet was also filed against van driver – rw.4. driver pw.4 has admitted his guilt in his evidence, which would clearly show that he had no substantial defence to put-forth in the criminal case. by perusal of ex.p.2 fir and ex.p.5 charge sheet and taking into account the admission of guilt by rw.4 and also evidence of pw.2, we are of the considered view that both the claimant/injured as well as driver of the van has equally contributed to the negligence and negligence is to be fixed at the ratio of 50:50. therefore, the tribunal is wrong in fixing the entire negligence on the part of the claimant. 12. as far as the compensation is concerned, the learned counsel for the appellant submitted that even now the claimant is in vegetative state and he is not attending to his work. learned counsel pointed out that in the accident, he suffered multiple fractures such as,- 1. post traumatic diffuse severe axonal injury – head injury 2. multiple contusion with intra ventricular hemorrhage of the brain. 3. left clavicular fracture 4. fracture – left femur. the learned counsel also pointed out that he was inpatient in apollo hospital and he was in unconscious and was in vegetative state and took treatment from 17.12.2001 to 25.3.2002. learned counsel further submitted that, for minor fracture, no one would have been admitted in the hospital for much long time, which points to the injuries he sustained including blocking found in brain, which has affected the appellant's neurology. as per the doctors' evidence, the claimant has lost his memory power and he would not speak properly and he could not walk properly and even now he is being assisted by his parents and others. 13. on the contrary, mr.g.prabhu rajadurai, learned counsel for the second respondent/insurance company submitted that rw.1 would state that the marriage took place on 3.3.2004 at king metro hotel in madurai, and the appellant was able to walk and he ascended steps with the help of stick to reach the first floor. learned counsel further pointed out that except fracture which is assessed for disability of 70% under ex.a.17, there is no other document, to show that he was in vegetative state. the learned counsel also pointed out that when the claimant/appellant has not gone into the box or come to the court, the court cannot assess what type of disability he is suffering and therefore, assessment of the disability is on the higher side. 14. we have heard mr.n.balakrishnan, learned counsel appearing for the appellant and mr.g.prabhu rajadurai, learned counsel appearing for the second respondent and perused the materials available on record. 15. admittedly, the appellant has suffered head injury and there is hemorrhage in the brain and there are fractures on the left clavicular fracture as well as on left femur. it is a clear statement by the claimant that he fell unconscious and was kept in artificial ventilation for 20 days and thereafter, he was discharged only after four months, which goes to show the injuries sustained. apart from that, discharge summary ex.a.9, would also show severe diffuse axonal injury in the form of bifrontal contusions, intra ventricular hemorrhage with total effacement of the brain stem cisterns; diffuse cerebral edema seen. wherever there is hemorrhage from contusion in brain, it will definitely affect the functions of the brain and there will be partial or permanent injury to any of the limb. 16. in this case, the doctor has deposed that he has seen the patient and the patient could not speak properly and he could not remember things and he is assessed 70% of disability under ex.a.37. the claimant is an advocate by profession, which needs thinking power, physical strength and oratory skills. if an advocate is suffering hemorrhage in the brain, we are of the considered view that it will make him not to function properly and discharge his duties as an advocate. 17. therefore, we are of the considered view that it is a fit case to adopt multiplication theory of assessing loss of income caused to the appellant. the appellant has stated that he was earning rs.15,000/- from advocacy and rs.25,000/- from the agriculture, totally rs.40,000/-. however, there is no evidence to that effect. 18. in support of his contention, the learned counsel for the appellant relied on the decision in national insruance co.ltd., vs. p.sathishkumar and two others [2012 (1) tn mac 177 (db)] where a division bench of this court enhanced the monthly income of the claimant rs.4,500/- fixed by the tribunal to rs.9,000/- as claimed by the claimant for 100% disability. secondly, the learned counsel relied on the decision in s.achuthan and another v. m.gopal and another [2004 (2) tn mac 36 (db)], where a division bench of this court had an occasion to decide the case on practicing advocate having four years of independent practice, the court fixed the monthly income at rs.10,000/-. 19. following the principle laid down in both the decisions, we are of the view that the claimant is a practicing advocate in the mofisil court and he would have earned a sum of rs.7,500/- per month. the age of the claimant at the time of the accident is 36 years. therefore, as per the schedule of the motor accident claims tribunal, the multiplier is 16. it is also to be pointed out that he suffered 70%. therefore, the loss of income may be rs.7,500 x 12 x 16 x 70/100 = rs.10,08,000/-. we are modifying the compensation as follows:- loss of earning rs.7,500 x 12 x 16 x 70/100rs.10,08,000/-medical expensesrs. 2,00,000/-pain and sufferingrs. 70,000/-extra nourishmentrs. 32,000/-transportrs. 20,000/-loss of amenitiesrs. 70,000/-marital lifers. 2,00,000/-totalrs. 16,00,000/-since negligence is contributory and fixed at the ratio of 50:50, the claimant/injured is entitled to rs.8,00,000/-. the respondents are liable to pay rs.8,00,000/- being 50% of rs.16,00,000/- and interest @ 7.5% p.a. from the date of petition till the date of deposit. 20. civil miscellaneous appeal is partly allowed and the order dated 30.09.2008 passed in m.c.o.p. no.433 of 2002 by the motor accident claims tribunal/principal district and sessions court, pudukkottai, is set aside. respondents 1 and 2 are jointly and severally directed to pay rs.8,00,000/- along with interest @ 7.5% p.a. as stated above within a period of eight weeks from the date of receipt of a copy of this judgment. on such deposit, the claimant is permitted to withdraw the entire amount.

Judgment:

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Order dated 30.09.2008 made in M.C.O.P. No.433 of 2002 on the file of Motor Accident Claims Tribunal/Principal District Judge, Pudukkottai.)

JUDGMENT

(Judgment of the Court was delivered by G.M.AKBAR ALI, J)

1. This Appeal is filed against the order of dismissal dated 30.09.2008 passed by the Motor Accident Claims Tribunal/Principal District Court, Pudukkottai, in M.C.O.P.No.433 of 2002.

2. The appellant herein, who is represented by his mother and next friend, A.Shanmugavadivu, filed a claim petition before the Motor Accident Claims Tribunal/Principal District and Sessions Court, Pudukkottai, dated 30.09.2008 in M.C.O.P.No.433 of 2002, claiming compensation for injuries sustained in a road accident on 17.12.2011.

3. According to the appellant, he was a practicing Advocate with standing experience of 9 years and was earning not less than Rs.15,000/- per month from his profession and Rs.25,000/- per month from agriculture, thus totally, he was earning a sum of Rs.40,000/- per month. He was unmarried and marriage was fixed with one Sudha of Dindigul and marriage was to take place on 20.01.2002. In order to distribute the invitation cards to his relatives sand friends, the appellant came to Pudukkottai and on completion of the distribution of invitation cards, he was returning by his motor cycle bearing Regn.No.TN-59 Q 8014 with care and caution on the left side of the road. When he was nearing Valayan Vayal in Namanasamuthiram – Thirumayam Main Road, a Mahendra Seated Van bearing No.PY 02–Y-7111 was going in front of the vehicle of the appellant at higher speed. Suddenly, the driver of the said van, without any reason applied brake and without any communication, stopped the vehicle. The appellant, though was going slowly, could not stop his vehicle in time and unfortunately, the motor cycle collided with the said van in the middle of the road. He was thrown out of his motor cycle and he sustained the following injures:-

1. Post Traumatic Diffuse Severe Axonal Injury – Head Injury

2. Multiple Contusion with Intra Ventricular Hemorrhage of the brain.

3. Left Clavicular Fracture

4. Fracture – Left Femur

Initially, he was admitted in the Government Head Quarters Hospital at Pudukkottai, and thereafter, he was taken to Apollo Hospital, Madurai, and he was admitted as inpatient on 17.12.2001 and continued his treatment till 25.3.2002. He fell unconscious and so kept in artificial ventilation for 20 days and was discharged only after 25.3.3002. Even after treatment, he could not move and he has become disabled. He also lost his memory power and speaking power. Since he has sustained such injuries, he is almost in vegetative state and therefore, he has filed the claim petition through his mother claiming compensation of Rs.1,54,30,000/-.

4. The second respondent/Insurance Company denied various averments made in the claim petition and also assailed the claim of Rs.1,54,30,000/-. Resisting the claim petition, the second respondent/Insurance Company filed a detailed written statement. According to the second respondent, Mahendra Van bearing Regn.No.PY-02–Y-7111 was proceeding from North to South on Namanasamuthiram to Thirumayam Main Road at Valaiyan Vayal and the driver of the van was driving slowly and cautiously and while negotiating a curve, the appellant drove the motor cycle in a high and uncontrollable speed coming behind the Van closely and dashed against the rear body of the van and caused the accident. Without leaving sufficient space of 10 metres behind the Van, the appellant was closely following the said Van in high speed and dashed against the Van on the rear side. The appellant was at fault. Therefore, the negligence is only on the part of the appellant and not on the part of the driver of the van, which has been insured with the second respondent.

5. A detailed Additional Written statement was also filed by the second respondent/Insurance Company denying that the appellant is totally disabled, and the percentage of disability of 70% was also denied by the second respondent. The second respondent/Insurance Company submitted that a private investigator was appointed and he found that the marriage of the petitioner with one Sudha took place on 3.3.2004 at King Metro Hotel in Madurai and the appellant, in fact, was seen walking in the marriage.

6. With the above averments, the parties went on enquiry before the Motor Accident Claims Tribunal, Pudukkottai.

7. In order to prove the claim of the claimant/appellant, the mother of the appellant was examined as PW.1 and PW.2 was examined to speak on the accident and 2 doctors were examined as PW.3 and PW.4 on the side of the appellant. On the side of the respondents, one Sudha, the person who married the appellant, was examined as RW.1 and private investigator was also examined along with the officials of the respondent insurance company. Elaborate enquiry was conducted before the Tribunal. The second respondent/Insurance Company vehemently contested the claim on each and every aspect.

8. As far as the negligence is concerned, the Tribunal analysing the evidence adduced on the petitioner's side as well as the driver of the van held that the injured/the claimant had come at uncontrollable speed and without maintaining the same speed, the accident would not have occurred. On this finding, the Tribunal held that the claimant was responsible for the accident and he is solely negligent, and thus fixed the negligence on the part of the appellant. However, the Tribunal proceeded to consider the amount of compensation which can be granted to the appellant.

9. Before the Tribunal, RW.1 deposed that she was married to the appellant on 3.3.2004 and the appellant came to marriage hall, which was in the first floor and contracted the marriage and lived with him for eight months and has got separated due to some misunderstandings. Considering the evidence of RW.1 and also considering the evidence of doctors who were examined on behalf of the injured, the Tribunal found that there is no truth in the averments made in the claim petition that the petitioner/appellant is not in a position to walk, speak and he has become totally disabled and bed ridden. By holding so, the Tribunal has awarded a sum of Rs.3,00,726/- . However, having found that the petitioner/appellant himself is negligent, the Tribunal dismissed the claim in entirety. Aggrieved by the dismissal of the entire claim, the petitioner/appellant is before this Court on the ground that the Tribunal has not considered the evidence of the petitioner/appellant as well as doctors who were examined on the side of the petitioner/appellant.

10. Learned counsel for the appellant submitted that the appellant was a practicing Advocate and when he was proceeding in his Motor Cycle, Mahendra Van, which was proceeding in a rash and negligent manner, suddenly stopped in the middle of the road and therefore, there was collision. The learned counsel traversed the evidence of eye witness PW.2 and documentary evidence adduced on behalf of the appellant. The learned counsel pointed out that the evidence of driver of the van who was examined as RW.4 cannot be relied on as he is an interested witness to safeguard his own liability. PW.2 who has seen the accident has stated that the van was proceeding without any signal and all of a sudden stopped in the middle of the road and therefore, the claimant's two wheeler dashed against the van.

11. Even though the Tribunal has fixed negligence upon the claimant, by perusal of the evidence and materials, we found that the FIR Ex.P.2 was registered against the van driver. That apart, charge sheet was also filed against van driver – RW.4. Driver PW.4 has admitted his guilt in his evidence, which would clearly show that he had no substantial defence to put-forth in the criminal case. By perusal of Ex.P.2 FIR and Ex.P.5 charge sheet and taking into account the admission of guilt by RW.4 and also evidence of PW.2, we are of the considered view that both the claimant/injured as well as driver of the van has equally contributed to the negligence and negligence is to be fixed at the ratio of 50:50. Therefore, the Tribunal is wrong in fixing the entire negligence on the part of the claimant.

12. As far as the compensation is concerned, the learned counsel for the appellant submitted that even now the claimant is in vegetative state and he is not attending to his work. Learned counsel pointed out that in the accident, he suffered multiple fractures such as,-

1. Post Traumatic Diffuse Severe Axonal Injury – Head Injury

2. Multiple Contusion with Intra Ventricular Hemorrhage of the brain.

3. Left Clavicular Fracture

4. Fracture – Left Femur.

The learned counsel also pointed out that he was inpatient in Apollo Hospital and he was in unconscious and was in vegetative state and took treatment from 17.12.2001 to 25.3.2002. Learned counsel further submitted that, for minor fracture, no one would have been admitted in the hospital for much long time, which points to the injuries he sustained including blocking found in brain, which has affected the appellant's neurology. As per the doctors' evidence, the claimant has lost his memory power and he would not speak properly and he could not walk properly and even now he is being assisted by his parents and others.

13. On the contrary, Mr.G.Prabhu Rajadurai, learned counsel for the second respondent/Insurance Company submitted that RW.1 would state that the marriage took place on 3.3.2004 at King Metro Hotel in Madurai, and the appellant was able to walk and he ascended steps with the help of stick to reach the first floor. Learned counsel further pointed out that except fracture which is assessed for disability of 70% under Ex.A.17, there is no other document, to show that he was in vegetative state. The learned counsel also pointed out that when the claimant/appellant has not gone into the Box or come to the Court, the Court cannot assess what type of disability he is suffering and therefore, assessment of the disability is on the higher side.

14. We have heard Mr.N.Balakrishnan, learned counsel appearing for the appellant and Mr.G.Prabhu Rajadurai, learned counsel appearing for the second respondent and perused the materials available on record.

15. Admittedly, the appellant has suffered head injury and there is hemorrhage in the brain and there are fractures on the Left Clavicular Fracture as well as on Left Femur. It is a clear statement by the claimant that he fell unconscious and was kept in artificial ventilation for 20 days and thereafter, he was discharged only after four months, which goes to show the injuries sustained. Apart from that, discharge summary Ex.A.9, would also show severe diffuse axonal injury in the form of bifrontal contusions, intra ventricular hemorrhage with total effacement of the brain stem cisterns; diffuse cerebral edema seen. Wherever there is hemorrhage from contusion in brain, it will definitely affect the functions of the brain and there will be partial or permanent injury to any of the limb.

16. In this case, the Doctor has deposed that he has seen the patient and the patient could not speak properly and he could not remember things and he is assessed 70% of disability under Ex.A.37. The claimant is an advocate by profession, which needs thinking power, physical strength and oratory skills. If an advocate is suffering hemorrhage in the brain, we are of the considered view that it will make him not to function properly and discharge his duties as an advocate.

17. Therefore, we are of the considered view that it is a fit case to adopt multiplication theory of assessing loss of income caused to the appellant. The appellant has stated that he was earning Rs.15,000/- from advocacy and Rs.25,000/- from the agriculture, totally Rs.40,000/-. However, there is no evidence to that effect.

18. In support of his contention, the learned counsel for the appellant relied on the decision in National Insruance Co.Ltd., Vs. P.Sathishkumar and two others [2012 (1) TN MAC 177 (DB)] where a Division Bench of this Court enhanced the monthly income of the claimant Rs.4,500/- fixed by the Tribunal to Rs.9,000/- as claimed by the claimant for 100% disability. Secondly, the learned counsel relied on the decision in S.Achuthan and another v. M.Gopal and another [2004 (2) TN MAC 36 (DB)], where a Division Bench of this Court had an occasion to decide the case on practicing advocate having four years of independent practice, the Court fixed the monthly income at Rs.10,000/-.

19. Following the principle laid down in both the decisions, we are of the view that the claimant is a practicing advocate in the Mofisil Court and he would have earned a sum of Rs.7,500/- per month. The age of the claimant at the time of the accident is 36 years. Therefore, as per the schedule of the Motor Accident Claims Tribunal, the multiplier is 16. It is also to be pointed out that he suffered 70%. Therefore, the loss of income may be Rs.7,500 X 12 X 16 X 70/100 = Rs.10,08,000/-. We are modifying the compensation as follows:-

Loss of earning

Rs.7,500 x 12 x 16 x 70/100	Rs.10,08,000/-
Medical Expenses	Rs. 2,00,000/-
Pain and Suffering	Rs. 70,000/-
Extra Nourishment	Rs. 32,000/-
Transport	Rs. 20,000/-
Loss of Amenities	Rs. 70,000/-
Marital Life	Rs. 2,00,000/-
Total	Rs. 16,00,000/-

Since negligence is contributory and fixed at the ratio of 50:50, the claimant/injured is entitled to Rs.8,00,000/-. The respondents are liable to pay Rs.8,00,000/- being 50% of Rs.16,00,000/- and Interest @ 7.5% p.a. from the date of petition till the date of deposit.

20. Civil Miscellaneous Appeal is partly allowed and the Order dated 30.09.2008 passed in M.C.O.P. No.433 of 2002 by the Motor Accident Claims Tribunal/Principal District and Sessions Court, Pudukkottai, is set aside. Respondents 1 and 2 are jointly and severally directed to pay Rs.8,00,000/- along with interest @ 7.5% p.a. as stated above within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant is permitted to withdraw the entire amount.