Madras High Court
The Managing Director vs S.Ramanathan ...1St on 26 February, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
C.M.A(MD)No.1092 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 31.01.2025
Pronounced on : 26.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
C.M.A.(MD)No.1092 of 2021
&
C.M.P.(MD)No.10383 of 2021
The Managing Director,
K.S.R.T.C. K.H. Road,
Bangalore – 27,
Karnataka State. ... Appellant/ 1st Respondent
Vs.
1.S.Ramanathan ...1st Respondent / Petitioner
2.C.Ravichandran
3.The Branch Manager,
United India Insurance Company Limited,
Branch Office – III, 137-D, Cherry Road,
Salem – 636 001.
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1/32
C.M.A(MD)No.1092 of 2021
4.R.M.Sankar
5.The Branch Manager,
The Oriental Insurance Company Limited,
No.14-1581/1, Palace Road Extension,
Kuppamm,
Andhra Pradesh. ...Respondents 2 to 5 / Respondents 2 to 5
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the fair and decreetal order dated
26.08.2020 made in MCOP No.214 of 2013 on the file of Motor
Accident Claims Tribunal, III Additional Subordinate Court,
Tiruchirappalli and allow this Civil Miscellaneous Appeal.
For Appellant : Mr.E.Rajeshwaran
For Respondents : Mr.N.Sudhagar Nagaraj – for R1
Mr.J.S.Murali – for R3
JUDGMENT
(Judgment of this Court was delivered by R.POORNIMA, J.)
The appellant / 1st respondent / Transport Corporation has
filed this Civil Miscellaneous Appeal against the fair order and decreetal
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order dated 26.08.2020 passed in M.C.O.P.No.214 of 2013 by the Motor
Accident Claims Tribunal, III Additional Subordinate Court,
Tiruchirappalli.
2. Brief facts of the petition filed by the claimant before the
Tribunal are as follows:
(a) The petitioner was travelling as a passenger in the bus
bearing Registration No.KA 01 F 8397 belonging to the 1st respondent
while the bus was nearing Bhudhan Chandai over bridge, the driver of
the bus drove the bus in rash and negligent manner with the hectic speed,
and unable to control the steering and dashed behind the Lorry bearing
Registration No.KA 01 B 4667 belonging to the second respondent and
insured with the third respondent. Immediately, after the accident, a Van
bearing registration No.AP 03 X 4564, belonging to the 4th respondent
and insured with the 5th respondent which was also coming on the same
direction and dashed behind the bus. The accident occurred due to the
rash and negligent driving of the above three vehicles.
(b) As a result of which, the petitioner and several others
were sustained multiple grievous injuries. The petitioner had sustained
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multiple injuries all over his body, including the fracture on left thigh,
left leg and fracture on right leg.
(c) Immediately, the petitioner was taken to C.M Hospital,
Namakkal, wherein, first aid given and then referred to Ganga Medical
Center Hospital, Coimbatore. Accordingly, he was admitted on
16.06.2011 in the hospital for further treatment and was discharged on
03.08.2011 with advice to take further treatment. The petitioner again
admitted for treatment on 11.10.2011 to 16.10.2011. On 12.10.2011, the
petitioner undergo a major operation by removal of external fixator and
Tube Cast application on the left leg. Further the petitioner was
undergoing treatment as out patient. Accordingly, he continues his
medical treatment till date.
(d) The petitioner further states that in spite of best medical
treatment given to him, the injuries have not properly healed and
normalcy of the petitioner not restored. There are deformities and
disfiguration over the both legs. There is shortening of both legs,
immobilization, etc., in the course of medical treatment, the petitioner
had suffered severe pain and mental agony. So far, the petitioner spend a
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sum of Rs.10,00,000/- for medical expenditure. The petitioner undergo
another major operation for removal of steel plates which will incur
medical expenditure for more than Rs.2,00,000/-.
(e) Due to the accident, the petitioner unable to do any kind
of work much less is normal day-to-day work is unable to walk stand, sit,
squat, run as before. In the result grocery business totally stand still. The
petitioner needs help for his day-to-day activities with support of another
person throughout the lifetime.
(f) A criminal case has been registered against the first
respondent driver in crime No.300/11 under section 279, 337, 338 IPC by
the Sendamangalam Police.
(g) The petitioner was aged about 52 years at the time of
accident and he was hale and healthy. He was running a grocery shop in
the name and style of M/S.Lakshmi Maligai Shop at Thottiyam. The
petitioner earning a sum of Rs.1,00,000/- per month. He is an income tax
assessee. Because of the accident, the petitioner has completely thrown
out of his avocation. He employed a person, viz., Balaji to manage the
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entire business. His monthly salary is Rs.15,000/- and hence, there is
huge loss of money to the petitioner.
(h) The petitioner is entitled to claim compensation under
the heads of loss of income, loss of earning capacity in future, pain and
sufferings, transport, medical expenses, disfiguration, extra nourishment,
permanent disability, personal attendance, and damages.
(i) The petitioner modestly estimate to Rs.60,00,000/-
includes no fault liability under section 140 of the MV Act. The FIR
was filed against the first respondent driver, all offending vehicles driver
are responsible for the accident and arose composite negligence. The
respondents 3 and 5 are the insurance company are jointly and severally
liable to pay compensation. Hence, the petition.
3. The brief averments contained in the counter filed by the
1st respondent are as follows:
(a) The date, time and manner of the accident are denied.
The driver of this respondent drove the vehicle with due care and
caution, observing the traffic rules.
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(b) On 14.06.2011 while the driver of the first respondent's
bus bearing Registration No.KA 01 F 8397 driven with all care and
caution from Bangalore to Madurai, at about 2.30 a.m., the first
respondent bus was moving on the over bridge near Budhan Chandai a
fully loaded with mud bricks lorry bearing Registration No.KA.01 B
4667 belonging to the second respondent was going almost in the center
of the road. Due to heavy load, the lorry was not able to move on front
and started reverse back side and therefore, the driver of the 1st
respondent's bus applied break and turned the bus to avoid the accident
and at that time, the 4th respondent Van bearing registration No.AP 03 X
4564 came from the backside and dashed behind the 1st respondent bus.
As a result of which, the 1st respondent bus moved ahead and dashed
behind the Lorry bearing Registration No.KA 01 B 4667. This was how
the accident happened. The first respondent driver is no way responsible
for the cause of accident.
(c) The accident happened only due to the negligence on the
part of the drivers of 2nd respondent lorry and 4th respondent van. Both
are jointly and severally liable for the accident. The accident has
happened due to the composite negligent on the part of second and fourth
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respondent driver.
(d) Without prejudice to the above contention, this
respondent does not admit the age, occupation, monthly income and
nature of treatment and period of treatment of the injured. The petitioner
alone is put to strict proof of the same by documentary evidence.
(e) That the 1st respondent denied the nature of injuries,
period of treatment and expenses, and the petitioner is put to strict proof
of the same. The age, avocation and earnings mentioned in the petition
are denied as false. The petition is eligible for interest only at the rate of
6%, if any award is passed against this Corporation.
(f) As per Section 206A of Income Tax Act 1961, inserted
with effect from 01.04.2010, if it is failed to furnish PAN Tax will be
deducted at 20%
(g) That the driver of the 1st respondent's bus paid a sum of
Rs.10,000/- to the petitioner on humanitarian grounds and the same shall
be adjusted in the award amount. This respondent is not liable to pay
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compensation, and the compensation claimed by the petitioner is high
and excessive. Hence, the petition is liable to be dismissed.
4. The brief averments contained in the counter filed by the
third respondent are as follows :
(a) That the petitioner is put to strict proof of age and
income. The amount claim is highly exorbitant without any basis. In
order to make exorbitant claim consolidate claim is made with baseless
particular.
(b) That this respondent admitted that he is the owner of the
Tuskar lorry bearing registration No.KA 01 B 4667, at time of accident
(c) The manner in which the alleged accident have been
taken place has not been properly set out in the petition against the
second and third respondent. In fact, the petitioner has expressed the
true facts and has come forward with false allegation against the second
and third respondent.
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(d) The true facts are as follows:
The petitioner is the passenger in the first respondent bus.
The accident took place at Namakkal – Salem Main Road, the road runs
north to South. The Tuskar lorry bearing Registration No.KA 01 B 4667
is belonging to the 2nd respondent, driven by its driver with brick load
with care and caution and slowly towards left side of the above road, at
that time, the 1st respondent bus bearing Registration No.KA 01 F 8397
driven by its driver in a rash and negligent manner has overtake the 2nd
respondent lorry without adhering any traffic rules and regulations
overtake without notifying that another 407 van, which was coming
behind the 1st respondent bus and due to the reckless driving of the first
respondent driver dashed the right side of the 2nd respondent, Lorry and
the fourth respondent 407 van bearing registration No.AP 03 X 4564
dashed behind the 1st respondent bus without control. The petitioner who
was travelled as a passenger of the 1st respondent bus sustained simple
injuries. For the factual matrix of the accident, the 2nd and 3rd
respondents are not liable to pay any compensation to the petitioner as
neither composite negligence, nor contribution negligence in any manner.
(e) That the prima facie of the case is filed by the petitioner
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on the basis of FIR and the defacto complainant has given before the
concerned Police Station against the 1st respondent bus driver only who
drove the bus in a rash and negligent manner by one Sivandas, who was
travelled as a passenger in the 1st respondent bus and the petitioner also
gave the statement before the concerned police that the 1st respondent bus
driver alone drove the bus in rash and negligent manner to cause the
accident
(f) That the earning capacity of the petitioner is a ridiculous
and unbelievable and the petitioner is put to strict proof of the same.
(g) That the claim is unreasonable, meaningless and too
high. The interest claim is not in accordance with the prevailing Bank
interest prescribed by the Reserve Bank of India.
(h) That the driver of the second respondent who has not
possessed valid driving licence and there was no valid permit, fitness
certificate and other documents to drive the 1st respondent vehicle on the
road and the first respondent did not adopt the legal procedures as
established in the policy and the policy condition has breached by the
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respondent, the second respondent will not be liable to pay compensation
to the petitioner.
5. Brief averment contained in the counter filed by the 5th
respondent as follows :
(a) The petition is not maintainable. The petitioner is not
entitled for the relief as prayed for.
(b) That there are three vehicles involved in this accident, a
bus bearing registration No: KA 01 F 8397 and lorry bearing registration
No: KA 01 B 4667 and Van bearing registration No: AP 03 X 4564. This
respondent came to know that the bus driven by its driver in a rash and
negligent manner with hectic speed and without observing any of the
traffic rules, dashed behind the lorry which belongs to the second
respondent. Immediately after the accident the said heavy vehicles were
obstructed the road and for that reason, the van belongs to the 4th
respondent dashed behind the bus. Therefore the bus driver was solely
responsible for the accident.
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(c) That the Police registered FIR against the Bus driver.
Therefore, the claim against this respondent may be dismissed with cost.
(d) That the petitioner had not produced any documents to
show his monthly income.
(e) The petitioner may be sustained simple injuries only, it
has been exaggerated to boost the claim of compensation. He is a normal
person as he was before the accident. However, he has come up with the
present petition claiming excessive compensation. Hence, the petition is
liable to be dismissed.
4. On the side of the petitioner, PW1 and P.W.2 were
examined and Ex.P1 to Ex.P38 were marked. The medical board issued
disability certificate which was marked as Ex.C1. On the side of the
respondents, RW1 and RW2 were examined and no document was
marked.
5. After hearing both side, the trial Judge awarded
compensation of Rs.29,45,800/- under the following heads :
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Loss of future income Rs.7,26,000/-
Pain and sufferings Rs.1,00,000/-
Medical expenses Rs.19,86,507/-
Extra nourishment Rs.30,000/-
Transport expenses Rs.39,250/-
Damages to clothing and Rs.4,000/-
articles
Loss of income Rs.40,000/-
Attender expenses Rs.20,000/-
Total Rs.29,45,800/-
The learned Judge directed the respondent Corporation to pay the entire
amount after deducting the amount of Rs.10,000/- paid by the driver of
the bus at the time of accident, within a period of two months.
6. Aggrieved by the said order, the present Civil
Miscellaneous Appeal has been filed by the Transport Corporation who is
the 1st respondent before the lower Court against the negligence and
quantum with the following among other grounds :
(i) That the Tribunal ought not to have fixed the negligence on the
part of the driver of the appellant since one another witness who is RW1
Police authority also examined. Admittedly, R.W.1 who was not at all
eye witness and Investigation Officer, but based on the file given
evidence.
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(ii) That the Tribunal ought to fix the negligence on the whole part
of lorry driver based on the evidence.
(iii) That the Tribunal ought not to have given more amounts in all
the heads.
(iv) That the disability taken at 50% is also on the higher side, and
also adding the future prospects at 10% by relying on Pranay Sethi’s case
which is a case of death wherein the Supreme Court laid down guidelines
for assessment of compensation in death cases. The Medical Board
while assessing disability suffered by the petitioner except mentioning
the injuries.
(v) That the appellant is questioning the award of the Tribunal on
negligence and quantum.
Hence, prayed to set aside the judgment of the trial Court and allow the
Civil Miscellaneous Appeal.
8. Heard the learned counsel on either side and perused the
material available on records.
9. Ex.P1 is the FIR in Crime No.300/2011 was registered for
the offence under sections 279, 337, 338 IPC filed against the driver of
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bus bearing Registration No.KA 01 F 8397 before the Sendamangalam
Police Station. The complaint was lodged by one Sivandas who is
passenger of vehicle bearing Registration No.KA 01 F 8397 in which
complainant stated that on 15.06.2011 at about 2.30 a.m., driver of the
bus driven the vehicle in a rash and negligent manner and dashed against
the van bearing registration No.AP 03 X 4566 on the left side, he
sustained injury, also stated that the petitioner was also sustained injuries
in the accident. Ex.P2 is the accident register issued by Dr.Sivalingam,
C.M. Hospital, Namakkal, in which the injuries sustained by the
petitioner are described as follows :
Injuries :
(1) Contusion deformity Swelling with lacerated wound
6x5x3cm over Left Thigh with shattered compound
complicated Fracture left distal Femur
(2) Contusion swelling Deformity left leg with Fracture
Tibia and Fibula left uppers.
(3) Contusion Swelling deformity Right leg with
Fracture Right Intercondylar Fracture Tibia and Fibula
upper end.
(4) Contusion pelvic Left 8 x 5
(1) x-ray left femur with knee shattered multi
fragmented fracture left distal femur
(2) x-ray Right leg shattered NF Intercondylar Fracture
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Tibia and Fibula right upper end.
(3) X-ray pelvis Ap view normal
(4) X-ray Left Leg MF Fracture Lett Proximal Tibia and
Fibula Left upper end.
Only First aid treatment done. Discharged at request
15-06-2011.
Ex.P3 is the wound certificate issued by the Ganga Medical Centre
Private Limited, Coimbatore, which reveals that he was admitted in the
hospital on 16.6.2011 and discharged on 3.8.2011, Doctor certified that
injuries are grievous in nature. Ex.P4 are prescriptions, Ex.P5 is a
medical bill issued by C.M. Hospital, Namakkal for a sum of Rs.15,745/-
Ex.P6 medical bills for a sum of Rs.25,995/-, Ex.P7 cash bill issued by
Ganga Hospital for a sum of Rs.1,84,140/-, Ex.P8 is medical bills for a
sum of Rs.19,830/-, Ex.P9 discharge summary issued by Ganga Medical
Hospital Private Limited, Ex.P.10 are photographs of the petitioner,
Ex.P11 is discharge summary issued by the Ranga Medical Hospital,
which shows that he was admitted on 11.10.2011 and discharged on
16.10.2011 for external fixator removal tube cast application left click,
Ex.P12 medical bills for Rs.9,048/-, Ex.P13 medical bills for Rs.6,660/-,
Ex.P14 is issued by physiotherapist for Rs.30,000/-. Ex.P15 is also
medical bills Rs.14,231/-, Ex.P16 discharge summary issued by SRM
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Institute show that he was admitted on 09.03.2015 and discharged on
29.03.2015 for total knee replacement, Ex.P17 medical bills for
Rs.65,688/-, Ex.P18 discharge summary reveals that the petitioner was
admitted on 21.08.2016 and discharged on 29.08.2016, Ex.P19 medical
bills for Rs.52,394/-, Ex.P20 registration certificate for vehicle bearing
Registration No.KA 01 F 8397, Ex.P21 MVI report issued for the
vehicle bearing Registration No.KA 01 F 8397 and the Motor Vehicle
Inspector stated that the accident was not due to any mechanical defects
of the vehicle, Ex.P22, is the Motor Vehicle Inspection report issued for
the vehicle bearing Registration No.KA 01 B 4667; the Motor Vehicle
Inspector stated that the accident was not happened due to any
mechanical defect of the vehicle, Ex.P23 is the driving license of the
driver, Ex.P.24 is the insurance policy of the bus bearing Registration
No.KA 01 B 4667, The policy was in force at the time of accident,
Ex.P25 with the national permit for the above vehicle, Ex.P26 is the RC
for the vehicle bearing Registration No.AP 03 X 4564 of the 3rd
respondent, Ex.P27 is the national permit for the above vehicle, Ex.P.28
is driving license of the 3rd Respondent driver, Ex.P29 is the insurance
policy of the vehicle bearing Registration No.AP 03 X 4564 of the 3rd
respondent; Ex.P.30 is goods carriage permit, Ex.P31 rough sketch of the
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place of occurrence, Ex.P.32 is the income tax return form of the
petitioner for year 2010 - 2011, Ex.P33 is the letter issued to the
Commercial Tax Officer by the Lakshmi provision Ex.P35 disability
certificate issued by Dr.Rajendran, dated 21.01.2017, assessed disability
at 68%. Ex.P36 is a medical bill issued by SIMS Hospital, Vadapalani,
for a sum of Rs.3,24,871, Ex.P37 is a discharge summary issued by SIMS
Hospital, which shows that he was admitted on 19.02.2020 and
discharged on 29.02.2020 under the head of history of illness, it was
mentioned that patient left knee sinus since 1 ½ (one and a half) years.
Patient underwent left total knee replacement in 2015. He developed
sinus in the left knee post surgery and was treated for the same many
times. He came for further treatment. In the discharge summary, it was
mentioned that he was undergone surgery on 20.02.2020. Ex.P38 cash
bill issued by Jeslin Orthotics and Prosthotics Centre, Chennai for a sum
of Rs.1,000/-. Ex.C1 is the Medical Board certificate issued by the Office
of the Joint Director of Health Service, Trichy, assist the percentage of
disability at 50%.
10. Now in this case, the point for consideration is
(i) Whether the first respondent is solely responsible
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for the rash and negligent act that resulted in the
petitioner's injury.
(ii) Whether the quantum of compensation awarded
by the trial court is just and proper or liable to be set
aside ?
11.Point No.1
The learned counsel for the appellant submits that the driver
of the Lorry and van not at all examined before the Tribunal. The driver
of the Appellant Corporation has been examined as RW1 who deposed
that the accident took place on 15.06.2011 at about 2.30 a.m. at Bridge.
As per Ex.P2 rough sketch the accident happened on the middle of the
road, RW1 clearly stated that the lorry belong to the 2nd Respondent was
proceeding in front of the bus, unable to ply in the bridge due to heavy
load, the lorry, reverse back on the bridge, the driver of the appellant
Corporation was trying to stop and turn on right side, due to negligence
of the Lorry driver, the Lorry dashed against the first respondent bus.
Without taking into the evidence of RW1, the Tribunal wrongly came to
the conclusion that the appellant Corporation is liable to pay
compensation
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12. It is true that except RW1, the other respondent not
adduced any evidence. Ex.P1 is the complaint given by one Sivandass
against the first respondent driver, in which he clearly stated that the
negligence was on the part of the first respondent, the petitioner also
clearly stated that the accident took place due to the rash and negligent
act of the driver of the first respondent. The first respondent blamed the
second respondent, but no such complaint was lodged by the first
respondent against the second respondent driver. RW1, admitted that a
sum of Rs.10,000/- was paid by the 1st respondent Corporation towards
compensation to the petitioner. If there is no negligence on the part of the
first respondent, they did not offer any compensation. The appellant
stated that the complaint against the lorry driver was preferred by them
but the same was not produced on their behalf. One Thiru.Shakthivel was
examined as RW1. He clearly stated that the Investigating Officer
concluded that the accident was occurred due to the negligent act of the
driver of RW1. Based on the above evidence and document, the trial
court hold that the first respondent is the sole reason for the accident.
Therefore, the first respondent Corporation is liable to pay compensation
and point No.1 is answered accordingly.
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13.Point No.2
As far as fixation of compensation is concerned, as per the
petitioner, he was running a grocery shop and earning a sum of
Rs.30,000/-. But the trial Court fixed the notional income at the rate of
Rs.10,000/- per month, at the time of accident due to non-production of
documents by the petitioner to show his income. The petitioner has not
filed any cross objection to enhance the income. Therefore, we do not
need to interfere with the same.
14. At the time of accident, the petitioner was aged about 51
years, as per the ratio laid down by the Court in National Insurance
Company Limited vs. Pranay Sethi and Others reported in AIR 2017
SC 5157. in order to addition for future prospectus in para 61 of the
judgement. It was held that in case the deceased was self-employed or
on fixed salary and addition of 40% of the established income should be
warrant where the deceased was below the age of 40 years. An addition
of 25% where the deceased was between the age of 40 to 50 years and
10% where the deceased was between the age of 50 to 60 years should be
regarded as the necessary method of computation. The established
income means the income minus the tax component. The trial Court
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added 10% towards future prospects, which is correct, and hence, no
interference is required.
15. The learned counsel for the appellant argued that the trial
Court fixed 50% disability to the claimant is on the higher side.
16. In this regard, we rely upon the judgment reported in
Rajkumar v. Ajay Kumar reported in 2011 (1) SCC 343, The Hon'ble
Supreme Court sets out certain guidelines to assess compensation for the
disablement of the injured by the Motor Accidental Claims Tribunal, in
which paragraph Nos.10 and 13 are extracted as follows:
''10. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves three
steps. The Tribunal has to first ascertain what activities
the claimant could carry on in spite of the permanent
disability and what he could not do as a result of the
permanent ability (this is also relevant for awarding
compensation under the head of loss of amenities of life).
The second step is to ascertain his avocation, profession
and nature of work before the accident, as also his age.
The third step is to find out whether (i) the claimant is
totally disabled from earning any kind of livelihood, or
(ii) whether in spite of the permanent disability,
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the claimant could still effectively carry on the activities
and functions, which he was earlier carrying on, or (iii)
whether he was prevented or restricted from discharging
his previous activities and functions, but could carry on
some other or lesser scale of activities and functions so
that he continues to earn or can continue to earn his
livelihood. For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual loss of
earning capacity may virtually be hundred percent, if he
is neither able to drive or do carpentry. On the other
hand, if the claimant was a clerk in government service,
the loss of his left hand may not result in loss of
employment and he may still be continued as a clerk as
he could perform his clerical functions; and in that event
the loss of earning capacity will not be 100% as in the
case of a driver or carpenter, nor 60% which is the
actual physical disability, but far less. In fact, there may
not be any need to award any compensation under the
head of `loss of future earnings', if the claimant
continues in government service, though he may be
awarded compensation under the head of loss of
amenities as a consequence of losing his hand.
Sometimes the injured claimant may be continued in
service, but may not found suitable for discharging the
duties attached to the post or job which he was earlier
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holding, on account of his disability, and may therefore
be shifted to some other suitable but lesser post with
lesser emoluments, in which case there should be a
limited award under the head of loss of future earning
capacity, taking note of the reduced earning capacity. It
may be noted that when compensation is awarded by
treating the loss of future earning capacity as 100% (or
even anything more than 50%), the need to award
compensation separately under the head of loss of
amenities or loss of expectation of life may disappear
and as a result, only a token or nominal amount may
have to be awarded under the head of loss of amenities
or loss of expectation of life, as otherwise there may be a
duplication in the award of compensation. Be that as it
may.
13.We may now summarise the principles
discussed above:
(i) All injuries (or permanent disabilities arising
from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with
reference to the whole body of a person, cannot be
assumed to be the percentage of loss of earning capacity.
To put it differently, the percentage of loss of earning
capacity is not the same as the percentage of permanent
disability (except in a few cases, where the Tribunal on
the basis of evidence, concludes that percentage of loss
of earning capacity is the same as percentage of
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permanent disability).
(iii) The doctor who treated an injured-claimant or
who examined him subsequently to assess the extent of
his permanent disability can give evidence only in regard
the extent of permanent disability. The loss of earning
capacity is something that will have to be assessed by the
Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in
different percentages of loss of earning capacity in
different persons, depending upon the nature of
profession, occupation or job, age, education and other
factors.''
9.A Division Bench of this Court in United India
Insurance Co. Ltd., vs. Veluchamy and another reported
in I (2006) ACC 416, sets out the parameters as to when
the multiplier method can be adopted in the case of
injury. In Paragraph 11 of the decision reads thus:-
"11. The following principles emerge from the
above discussion:
(a) In all cases of injury or permanent disablement
'multiplier method' cannot be mechanically applied to
ascertain the future loss of income or earning power.
(b) It depends upon various factors such as nature
and extent of disablement, avocation of the injured and
whether it would affect his employment or earning
power, etc. and if so, to what extent?
(c) (1) If there is categorical evidence that because
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of injury and consequential disability, the injured lost his
employment or avocation completely and has to be idle
for the rest of his life, in that event loss of income or
earnings may be ascertained by applying the 'multiplier
method' as provided under the Second Schedule to Motor
Vehicles Act, 1988. (2) Even so there is no need to adopt
the same period as that of fatal cases as provided under
the Schedule. If there is no amputation and if there is
evidence to show that there is likelihood of reduction or
improvement in future years, lesser period may be
adopted for ascertainment of loss of income.
(d)Mainly it depends upon the avocation or
profession or nature of employment being attended by
the injured at the time of accident."
In the above judgement it was held that the person with permanent
disability concerning the whole body of a person cannot be assumed to
be the percentage of loss of earning capacity. But the percentage of loss
of earning capacity is not the same as the percentage of permanent
disability. The Doctor got treated and injured claimant or who examined
him subsequently, to assist with the extent of his permanent disability can
give evidence only regarding the extent of permanent disability. The loss
of earning capacity is something that will have to be assessed by the
Tribunal concerning that evidence in entire. The same permanent
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disability may result in different percentage of the loss of earning
capacity in different persons, depending upon the nature of profession,
occupation, or job, age, education, and other factors.
17. A perusal of the record shows that, immediately after the
accident, the injured petitioner was admitted to CM Hospital, Namakkal,
and thereafter was admitted to Ganga Medical Centre and Hospital (P)
Limited, Coimbatore, from 16.06.2011 to 03.08.2011. Ex.P9 discharge
summary issued by the Ganga Hospital shows that the petitioner was
discharged with improvement. The discharge summary shows that he
sustained injury on the left femur, 1/3 fracture on both bones, in the left
leg, and 1/3 of both bones right leg. Consequently, he showed some
prescriptions and bills showing that he had undergone knee replacement
surgery and till date he is in treatment.
18. The learned counsel for the appellant stated that the
subsequent operation was not related to injury sustained by the petitioner
in the accident, but it was due to his diabetic condition. The Photographs,
Ex.P10 shows that the petitioner sustained injuries close to the knee and
extend to his leg. Therefore, there is every possibility for the petitioner to
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undergo knee replacement surgery. He was assessed with 50% disability,
the petitioner was crossed 50 years and he may not be able to do work as
before. Therefore, we hold that permanent disability assessed based on
the medical report at 50% is reasonable. The petitioner's income was
fixed at Rs.10,000 as income, and the future prospects were at 10% as
per Pranay Sethi's case, which is reasonable. The age of the victim at the
time of the accident is 51 years, therefore, the multiplier is fixed at 11.
19. Taking into consideration, the trial Court properly
arrived the permanent disability income at Rs.7,26,000/- ( Rs.11,000 x 12
x 11 x 50% ) is reasonable. Considering the medical bill a sum of
Rs.19,86,507/- was awarded, the amount awarded on the other heads are
reasonable. The sum of Rs.10,000/- paid by the first respondent to the
petitioner was also deducted. Therefore, we conclude that the
compensation awarded by the trial Court is proper and no interference is
required and point No.2 is answered accordingly.
20. In view of the above stated reasons, we do not find any
infirmity in the impugned award passed by the Tribunal and the same is
confirmed. The appellant is directed to deposit the entire award amount
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with accrued interest and costs, less the amount already deposited, if any,
to the credit of the claim petition within a period of four weeks from the
date of receipt of a copy of this order. On such deposit, the 1 st
respondent/claimant is permitted to withdraw the same, less the amount
already withdrawn, if any, together with proportionate interest and costs,
by filing appropriate petition before the Tribunal.
21. In the result, the Civil Miscellaneous Appeal is
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
(G.R.S., J.) & (R.P., J.)
26.02.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
RM
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To
1.The III Additional Sub Court
Motor Accident Claims Tribunal,
Trichy.
Copy to
1.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court, Madurai.
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G.R.SWAMINATHAN, J.
AND
R.POORNIMA, J.
RM
Judgment in
26.02.2025
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