(Prayer: This Civil Miscellaneous Appeal has been filed under Section 173(1) of Motor Vehicle Act against the judgment and award dated 06.05.2004 made in M.C.O.P.No.83/09 on the file of the Motor Accident Claim Tribunal (Chief Judicial Magistrate) at Pudukottai (which was presented before the District Judge, Pudukkottai, on 29.08.1997, taken on file as MCOP.No.456/97 and after transfer to the court of CJM, renumbered as MCOP No.83/99 for enhancement of compensation.)
J. Nisha Banu, J.
1. The deceased / first appellant, namely, Ashokan was the claimant before the Motor Accident Claims Tribunal, Pudukottai.
2. Not satisfied with the compensation determined by the Motor Accident Claims Tribunal, Pudukottai, the present Civil Miscellaneous Appeal has been preferred and during the pendency of the same, the claimant-appellant died, whereupon, his parents/legal heirs were brought on record as appellants 2 and 3 and now, they contest this appeal.
3. The case of the appellants is as follows:-
The deceased / first appellant / claimant, who was working as Managing Partner in Central Trading Firm at Ponnamaravathy and also as computer operator in Anbu Trading Corporation, was earning more than Rs.6,000/- per month. On the fateful day, namely, 26.10.1995, while he was returning home, after visiting his ailing father in a private hospital, Madurai, in the bus, originally belonging to the first respondent bearing registration No.TN 63 N 0451 and later to the second respondent, collided with another bus owned by the first respondent bearing registration No.TN-63-0371. In the said accident, the first appellant/deceased had suffered grievous multiple injuries all over the body. Initially, he was treated at Madurai for the ailments and later, he was shifted by Air to Madras, where, he was shifted to various hospitals and treated by different Medical Experts. Despite the best treatment given to him, he had gone to a vegetative state. The Tribunal, by its judgment, dated 06.05.2004, had awarded a sum of Rs.8,10,200/- in favour of the claimant/appellant. As against the same, the present Civil Miscellaneous Appeal came to be preferred and, during pendency of the same, unfortunately, the deceased/appellant died on 10.10.2006 and thus, his parents are now contesting the case.
4. The case of the respondents / Transport Corporation is as follows:-
4.1. The respondents had denied all the averments made by the appellants by stating that, despite a careful driving, due to the heavy rain and poor condition of the road, the accident had happened and therefore, they were not liable to pay compensation.
4.2. Before the tribunal, the deceased claimed the following amounts as compensation under the following heads:
|21(a).PARTICULARS OF LOSS AND EXPENSES:|
|PART - I|
|(a) Loss of Income||Rs.40,00,000/-|
|(b) Partial loss of earning from ---to||---|
|At the rate of of Rs.--- a day/week|
|(d) Transport to Hospital||......|
|(e) Extra Nourishment||---|
|(f) Damages to clothings and articles||......|
|PART - II|
|(g) Compensation for pain and suffering||---|
|(h) Compensation for continuing permanent disability.||---|
|(i) Compensation for the loss of earning power||---|
5. From the tabular column, it is seen that the Tribunal had awarded a sum of Rs.8,10,200/- in favour of the first appellant herein. As stated above, the present appeal is prosecuted by his parents, seeking enhancement of the compensation.
6. Learned Counsel appearing on behalf of the appellants would point out that, now, the appellants have lost their young and energetic son. At the time of the accident, he was just 23 years old and due to said accident, he remained bed-ridden for almost a decade with 100% disability. He would submit that, had the first appellant been alive, he would have earned a lucrative income by then. In this context, he referred to the case law in New India Assurance Co.Ltd Vs Kalpana (Smt) and Others reported in (2007) 3 SCC 538, to highlight the proposition laid down by the Hon'ble Apex court to the effect that, even in the absence of any definite material about the income, monthly contribution to the family, after deduction for one's personal expenses, a sum of Rs.3,000/- can be fixed as the income per month. He would further submit that the age of the claimants/ dependants has no nexus with computation of compensation. That being so, the multiplier adopted by the tribunal is not in tune with the well settled legal pronouncements rendered both by this Court as well as the Hon'ble Apex Court. In this context, he relies upon the judgment of the Apex Court reported in 2013(2)TNMAC 481 (SC), M.Mansoor and another Vs. United India Insurance Co.Ltd. Another. In the very same decision, the Apex Court, by quoting Sarla Verma Vs Delhi Tranport Corporation, 2009(2) TNMAC 1 (SC), has applied the multiplier of 18 in respect of the deceased therein, who was 24 years old, whereas, in the case on hand, the Court below has very unfairly adopted the multiplier of 12. That apart, the Tribunal has miserably failed to award reasonable sum under various heads and therefore, the ultimate Award passed by it absolutely requires interference from this Court.
7. Per contra, the learned Counsel appearing on behalf of the respondents would submit that the first appellant did not produce any Salary Certificate to substantiate his claim that he was drawing a sum of Rs.6,000/- in a private firm. Had it been true, he would have filed income tax assessment before the authorities concerned. Therefore, he would contend that already the Award arrived at by the Tribunal is on the higher side, hence, the Appeal may have to be dismissed.
8. We have carefully considered the rival submissions advanced on either side and meticulously perused the materials available on record.
9. The point for consideration in this appeal as to whether the tribunal had adopted the correct multiplier and whether the appellants are entitled to higher compensation than the one awarded by the Tribunal.
10. As far as the manner of accident is concerned, since the first appellant/deceased was unable to speak due to the accident, the Tribunal examined P.W.2-Jayamani, who travelled along with the first appellant at the time of accident and her evidence is corroborated with the complaint given by the driver of the ill-fated bus. Moreover, the Tribunal has also recorded a finding that the learned Counsel for the respondents did not agitate regarding the manner of accident. Therefore, as regards negligence, the findings of the tribunal is confirmed.
10.1. Coming to the quantum of compensation, there is no dispute that the present appellants have lost their beloved young son and the accident was caused due to a rash and negligent driving of the driver/respondent. The mental trauma undergone by them between the date of the accident and till his death, nearly for a decade, cannot be stated in terms of words. Though the respondents dispute the income of the deceased, it is to be borne in mind that he was a Graduate in and he has computer knowledge. In those days, there was a huge demand for Graduate with computer knowledge. Therefore, the appellant definitely would have earned a decent and reasonable income. In this context, the respondents Corporation cannot make any hue and cry as the issue on income is already well settled by the Apex Court, as rightly pointed out by the learned Counsel for the appellant. It is more relevant at this juncture to point out that in the case reported in (2007) 3 SCC 538, New India Assurance Co.Ltd Vs. Kalpana, it was categorically held that, in the absence of any definite material about the income, monthly contribution to the family after deduction for personal expenses can be fixed at Rs.3,000/-. As already observed, it is quite obvious that in those days computer was very much in demand and definitely, his future prospectus/future income to the family of the claimants cannot be completely ignored. But, unfortunately, the tribunal has failed to award any amount towards future prospectus for the deceased. Therefore, awarding 50% towards future prospectus of the deceased would meet the ends of justice. Accordingly, a sum of Rs.1,500/- is granted towards future prospectus of the deceased. Along with the loss of income, if future prospectus is added, it works out to Rs.4,500/-. At the time of accident, the age of the deceased was 23 years and thus, as per the dictum laid down in Sarla verma's case cited supra and Amrit Bhanu Shali Vs National Insurance Company Ltd, 2012 (2) TNMAC 321 (SC) and also the decision reported in 2013(2) TNMAC 481 (SC), Mansorr and another Vs. United India Insurance Co.Ltd, the correct multiplier should be 18. Accordingly, by applying multiplier 18%, we can safely conclude that the the loss of income of the deceased could be at Rs.9,72,000/-. (Rs.4,500 x 18 x 12). Accordingly, a sum of Rs.9,72,000/- is awarded under the head of loss of income.
10.2. As far as medical expenses are concerned, the claim of the appellant was Rs.8,10,200/- and the Tribunal has awarded a sum of Rs.4,68,200/-. The present appellants pleaded that since the first appellant was in a vegetative state, two attendants were hired to take care of his son, however, the tribunal has failed to consider that aspect. At any rate, it is not in dispute that the deceased was bedridden for almost a decade. In such types of cases, there cannot be any quarrel over getting attendants to take care of the injured person, apart from the fact that the parents of the deceased spent considerable span of time in taking care of the ailing son throughout day and night. Though the court below has stated that the bills submitted under Exhibits A.7 to A.10 and Ex.A.20 are true, the Court has adopted hyper-technical view that those bills are marked after filing of the claim petition. When the Court is of the view that the bills are genuine, naturally, it should have awarded the amount as claimed by the claimant though it is belatedly submitted by the claimant. Furthermore, the claimants definitely would have spent future medical expenses towards doctors, medicines, transportation, etc., even after approaching the Court below as well as the High Court. The Supreme Court in the case of Jakir Hussein Vs. Sabir and Others, reported in (2015) 7 SCC 752, has considered the future medical expenses and expenses during pendency of appeals. In the case on hand, such sort of things have not been considered by the Tribunal. Therefore, this Court is of the view that the Court below erred in rejecting the medical claim which were marked under Exhibits A.7 to A.10 and Ex.A.20. It is seen from the original records under Ex.A.7, the appellants have spent a sum of Rs.44,570.60/-; under Ex.A.8, a sum of Rs.1,93,361.80; under Ex.A.9, a sum of Rs.1,27,033.53; under Ex.A.10, a sum of Rs.1,79,407.50 and Ex.A.20, a sum of Rs.85,629/- respectively. Altogether he has spent a sum of Rs.6,30,001/- under Exs.A.7 to A.10 and Ex.A.20. It is also the findings of the tribunal that the bills for the medical expenses were calculated till the date of filing of the petition and the bills filed after the filing of the petition was not considered. The amount works out under Exs.A.7 to A.10 and Ex.A.20 is Rs.6,30,000/- and if it is added along with the medical expenses granted by the Tribunal, it works out to Rs.10,98,200/-. Though the appellants in order to save their son, would have spent a sizeable amount of money under various means, like consulting of doctors, procuring of medicines, transportation, nutrition etc., since the appellant himself restricts his claim to Rs.8,10,200/- towards medical expenses, this Court finds that the claim made by the appellant is absolutely justifiable and accordingly, we grant a sum of Rs.8,10,200/- towards medical expenses, as claimed by the appellants.
10.3. In the case on hand, in ground No.6, it is specifically pleaded that the first appellant was brought in a wheel-chair to the lower Court for atleast three times in view of the disability at the rate of 100% suffered by him, due to the accident. For procuring the wheel-chair, the appellants claimed that they have spent a sum of Rs.10,650/-. However, the Tribunal has rejected the said claim on the only ground that no bill has been produced in this regard. In a case of this type, the Tribunal should not have stood on technicalities rather than applying logic. A person with 100% disability would naturally require a wheelchair for his everyday needs along with an attendant. Therefore, this Court deems it fit to award a sum of Rs.10,650/- towards procuring the wheelchair as claimed by the appellants.
10.3. In the case on hand, needless to mention that the pain and sufferings undergone by the first appellant and his parents due to the accident is indescribable. The deceased was battling for his life almost a decade with his grievous injuries. But, unfortunately, the tribunal has not awarded any amount under this head also. Due to his disability, there is no dispute that the appellant had taken treatment at various hospital and spent sizeable amount towards transport expenses and other miscellaneous expenditure also. Even before the court below, owing to the gravity of the accident, it was demonstrated that the appellants took them their son by air to Madras for treatment and further, he was also taken to Vellore and back to Madurai. The said aspect was not seriously disputed by the respondents. Definitely, the appellants would have used various modes of vehicles in order to save his son. The untold sufferings suffered by the claimants in this regard has been completely ignored by the Court below. Hence, it is just and appropriate that a sum of Rs.2,00,000/- is awarded towards pain and sufferings.
10.4. In the case of K.Suresh Vs New India Assurance Co.Ltd, reported in2013-1-L.W.302, the Supreme Court is of the view that even if loss of earnings is granted, the claimant is also entitled under the head of 'permanent disability' also. In a normal scenario, a sum of Rs.2,000/- is awarded for each percentage of disability. In the case on hand, the disability of the appellant is 100%, which can be seen from the evidence of doctors. The first appellant was 23 years old at the time of accident and with 100% disability, he would have suffered much more in running his life. Further, after the accident, he survived for ten years with his untold sufferings. Therefore, this Court awards a sum of Rs.2,00,000/- under the head of permanent disability.
10.5. As far as marital life is concerned, due to the accident, the first appellant has completely lost his marital life and therefore, the award given under the head of marital life of Rs.50,000/- does not warrant any interference at the hands of this Court. Hence, the amount awarded by the Tribunal is confirmed.
11. Therefore, we answer both the points in favour of the appellants. Consequently, the appellants are entitled to get higher compensation in the light of decision reported in 2011 ACJ 2197, Abdul Rahim and another Vs. Sundaresan and another, in the following manner:-
|Sl.No.||Head(s)||Amount awarded by the Tribunal||Amount modified/awarded by this Court|
|1.||Loss of future Income||Rs.1,92,000/||Rs.9,72,000/-|
|2.||Compensation for medical expenses||Rs.4,68,200/-||Rs.8,10,200/-|
|3.||Compensation for Pain and sufferings||Nil||Rs.2,00,000/-|
|4.||Compensation for future prospectus||Nil||Considered along with the future of income|
|5.||Compensation for Transport expenses||Considered along with the medical expenses||Considered along with pain and sufferings.|
|6.||Compensation for wheelchair||Rejected||Rs.10,650/-|
|7.||Compensation for permanent disability||Rs.1,00,000/-||Rs.2,00,000/-|
|8.||Compensation for marital life||Rs.50,000/-||Rs.50,000/-|
13. Accordingly, the Civil Miscellaneous Appeal is allowed and the Award of the Tribunal is modified to the extent indicated above. The amount, if any, received by the the appellants shall be adjusted and rest of the amount be paid to them at an early date, preferably, within a period of four weeks from the date of receipt of a copy of this order. No order as to costs.