(Prayer: Memorandum of Grounds of Civil Miscellaneous Appeal under Section 173 of the Motor Vehicles Act, 1988 against the award and decree dated 24.02.2016 made in M.C.O.P.No.2313 of 2013 passed by the Motor Accidents Claims Tribunal, (II Judge, Court of Small Causes), Chennai.)
1. Aggrieved by the impugned award passed by the Motor Accident Claims Tribunal (II Judge, Court of Small Causes), Chennai in M.C.O.P.No.2313 of 2013 dated 24.2.2016, both the Insurance Company and the Claimant have brought these appeals questioning the quantum of compensation awarded and for enhancement of the compensation, respectively. With the consent of the learned counsel on either side, both the appeals are taken up together and disposed of by this common order. For convenience, the parties will be hereinafter referred to as the Claimant and the Insurance Company in this order.
2. Learned counsel for the Claimant has submitted that on 14.3.2013 at about 12.00 hours, when the Claimant was riding a motorcycle bearing Registration No.TN 04 AE 9959 from north to south direction in MKB Nagar East Avenue road, near Mullai Nagar over bridge, one Tata Ace van bearing Registration No.TN 18 C 3397, coming in the opposite direction in a very high speed, dashed against the motorcycle, as a result of which the Claimant sustained multiple fractures and injuries. As the driver of the Tata Ace van was solely and directly responsible for the accident, the Insurance Company, being the insurer of the said offending vehicle, is vicariously liable for payment of compensation to the injured Claimant. Therefore a claim petition was filed seeking a total compensation of Rs.19,00,000/-. In support of the petition, the injured Claimant, who was examined as P.W.1, has deposed that he had sustained communited fracture of right tibia proximal one-third right ankle bimelloles fracture and the injuries sustained by the Claimant have also been properly explained by the doctor, Mr.Amarnath R.Sowlee, being examined as P.W.3, in his evidence as follows:-
When the injured, after taking first-aid treatment at the Government Stanley Hospital, Chennai, was undergoing the further conservative treatment at Puthur bone setting hospital, the fracture on the upper side of tibia did not get united. Since the injured Claimant was a lorry loadman of the chemical barrels and other materials at Kondithope Market earning a sum of Rs.15,000/- to Rs.17,000/- per month, the Tribunal, in the absence of any documents produced to prove the income, has fixed only a sum of Rs.6,500/- per month and added 30% thereof towards future prospects. On this score, a sum of Rs.8,450/- has been taken as the monthly income for the purpose of arriving at the loss of future earning capacity. Adding further, the learned counsel for the Claimant submitted that when the doctor, P.W.3, who has examined the injured, has fixed the disability at 65% considering the fracture of right proximal tibia and fracture of bimellolos ankle sustained by the injured, the Tribunal, after considering the fact that the injured was a lorry loadman of the chemical barrels, has wrongly fixed the functional disability at 50%, therefore, on this ground, the 65% partial permanent disability as per the disability certificate, Ex.P6 should be accepted.
3. On the contrary, the learned counsel for the Insurance Company submitted that the Tribunal has committed a serious error in awarding compensation both under the heads of functional disability and loss of future earning capacity, when the injured in this case had taken only conservative treatment, therefore, a sum of Rs.1,80,000/- under the head of functional disability and a sum of Rs.7,09,800/- under the head of loss of future earning capacity by the Tribunal, being on the higher side, are to be interfered with by this Court.
4. This Court is not inclined to accept any of the contention made by the learned counsel on either side. The Claimant might be a lorry loadman of the chemical barrels. But nowhere the Claimant has produced any acceptable evidence to show that he was earning a sum of Rs.15,000/- to Rs.17,000/- per month from such employment. Hence the Tribunal, in the absence of any documentary evidence, has fixed the notional monthly income of the Claimant at Rs.6,500/- and also added 30% thereof towards the future prospects. As rightly found by the Tribunal, when the Claimant all along has claimed that he was working as a loadman, after sustaining grievous injuries, namely, communited fracture of right tibia proximal one-third right anke bimelloles fracture, for which he was taking conservative treatment and that the fracture has not completely cured, because there was a mal-union on the upper one-third tibia and bowing collateral ligament loosening, post sublimations of right knee, widening and mal-union of right of bimelleola bone joint space, as a result he is permanently limping and unable to walk, the functional disability arrived at by the Tribunal at 50% apart from the addition of 30% towards future prospects, cannot be found fault with. Accordingly, the sum of Rs.7,09,800/- arrived at by the Tribunal towards the loss of future earning capacity is hereby confirmed.
5. Now to answer the contention advanced by the learned counsel for the Insurance Company that the Tribunal has wrongly awarded compensation under both the heads of loss of future earning capacity and functional disability, it is just and necessary to refer to the judgment of the Apex Court in the case of B.Kothandapani v. Tamil Nadu State Transport Corporation Ltd., 2011 ACJ 1971, wherein the Apex Court has held the Tribunal was justified in awarding compensation towards permanent disablement in addition to the amount awarded for the loss of earning capacity, since the injured, after sustaining permanent disability, has to forego personal comforts and has to depend on others for his normal avocations and day-to-day work. The relevant paragraphs of the judgment of the Apex Court read as follows:-
10. The High Court, relying on its own Full Bench decision in Cholan Roadways Corporation Ltd. vs. Ahmed Thambi and Others, 2006 ACJ 2703 (Madras) and after finding that since the claimant had been awarded a sum of Rs. 3,00,000/- towards the loss of earning capacity, set aside the award of Rs. 1,50,000/- granted under the head 'permanent disability' and awarded a further sum of Rs.50,000/- in addition to the amount awarded by the Tribunal.
11. In Ramesh Chandra vs. Randhir Singh and Ors., 1990 ACJ 777 (SC), while considering award of compensation for permanent disability (right foot amputated) caused by the accident under Section 110-B of the Motor Vehicles Act, 1939 which is similar to Section 168(1) of the Motor Vehicles Act, 1988, this Court upheld the award of compensation under separate head of pain, suffering and loss of enjoyment of life, apart from the head of loss of earnings. The discussion and ultimate conclusion are relevant which reads as under:-
7. With regard to ground XIX covering the question that the sum awarded for pain, suffering and loss of enjoyment of life etc. termed as general damages should be taken to be covered by damages granted for loss of earnings is concerned that too is misplaced and without any basis. The pain and suffering and loss of enjoyment of life which is a resultant and permanent fact occasioned by the nature of injuries received by the claimant and the ordeal he had to undergo. If money be any solace, the grant of Rs 20,000 to the claimant represents that solace. Money solace is the answer discovered by the Law of Torts. No substitute has yet been found to replace the element of money. This, on the face of it appeals to us as a distinct head, quite apart from the inability to earn livelihood on the basis of incapacity or disability which is quite different. The incapacity or disability to earn a livelihood would have to be viewed not only in praesenti but in futuro on reasonable expectancies and taking into account deprival of earnings of a conceivable period. This head being totally different cannot in our view overlap the grant of compensation under the head of pain, suffering and loss of enjoyment of life. One head relates to the impairment of person s capacity to earn, the other relates to the pain and suffering and loss of enjoyment of life by the person himself. For these reasons, we are of the considered view that the contentions raised by the truck owner appellant in that behalf must be negatived and we hereby negative them.
12. It is true that the compensation for loss of earning power/capacity has to be determined based on various aspects including permanent injury/disability. At the same time, it cannot be construed that compensation cannot be granted for permanent disability of any nature. For example, take the case of a non-earning member of a family who has been injured in an accident and sustained permanent disability due to amputation of leg or hand, it cannot be construed that no amount needs to be granted for permanent disability. It cannot be disputed that apart from the fact that the permanent disability affects the earning capacity of the person concerned, undoubtedly, one has to forego the other personal comforts and even for normal avocation they have to depend on others. In the case on hand, two doctors had explained the nature of injuries, treatment received and the disability suffered due to partial loss of eye-sight and amputation of middle finger in the right hand and we have already adverted to the avocation, namely, at the time of accident, he was working as Foreman in Armstrong Hydraulics Ltd. Taking note of his nature of work, partial loss in the eye sight, loss of middle finger of the right hand, it not only affects his earning capacity but also affects normal avocation and day-to-day work. In such circumstance, we are of the view that the Tribunal was fully justified in granting a sum of Rs.1,50,000/- towards permanent disability.
6. In the light of the above ratio, the award of a sum of Rs.1,80,000/- to the injured Claimant for 50% functional disability at the rate of Rs.3,000/- per percentage of disability by the Tribunal is also confirmed. In addition thereto, a sum of Rs.50,000/- towards transportation, nourishment and miscellaneous expenditure, a sum of Rs.30,000/- towards medical expenses, a sum of Rs.10,000/- towards attender charges, a sum of Rs.39,000/- towards loss of earning during the period of treatment, a sum of Rs.50,000/- towards damages for pain, suffering and trauma and a sum of Rs.25,000/- towards loss of amenities as ordered by the Tribunal will stand confirmed. In the result, the award of the Tribunal for a total compensation of Rs.10,93,800/-, rounded to Rs.10,94,000/- together with 7.5% per annum from the date of petition till realisation payable by the Insurance Company to the Claimant stands confirmed. Accordingly, both the appeals filed by the Claimant and the Insurance Company are dismissed. Consequently, interim order stands vacated and the C.M.P.No.10824 of 2016 is also dismissed. No costs.
7. It is seen from the records that pursuant to the interim order, the Insurance Company had deposited only 50% of the award amount with proportionate interest and costs. Hence, the Insurance Company is directed to deposit the balance 50% of the award amount together with interest to the credit of the M.C.O.P.No.2313 of 2013 on the file of the Motor Accident Claims Tribunal (II Judge, Court of Small Causes), Chennai within a period of four weeks from the date of receipt of a copy of this order. On such a deposit being made, the Claimant is entitled to withdraw the entire amount with accrued interest by making appropriate application before the Tribunal.