Tuesday 23 June 2015

In motor accident claim appeal, can claimant be awarded more compensation than what he had claimed?


It is the statutory duty of the Claims Tribunal to award 'just compensation' to the road accident victims. It must be fair, reasonable and equitable. In ascertaining the same, the Tribunal need not be carried away/bound by the amount mentioned in the claim petition.
26. Some times, in the claim petitions, the victims claim astronomical figures. Some times without really knowing their sufferings, they claim lesser amount. After evidence, assessing the just compensation, the Tribunal may arrive at more amount than the amount claimed.
27. In NAGAPPA Vs. GURUDAYAL SINGH [2004 (2)TN MAC 398 (SC): AIR 2003 SC 674] and TAMIL NADU STATE TRANSPORT CORPORATION Ltd., KARAIKUDI Vs. POTHUMPONNU AND OTHERS [2010 (1) CTC 104], it was held that the Tribunal has the power to grant more amount as compensation.
28. In RAJESH AND OTHERS Vs. RAJBIR SINGH AND OTHERS [2013 (3) CTC 883 : CDJ 2013 (SC) 485], a three- Judge Bench of the Hon'ble Apex Court considered this aspect and held as under:-
"13. Whether the Tribunal is competent to award compensation in excess of what is claimed in the Application under Section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case. At Paragraph 10 of Nagappa's case (supra), it was held as follows:- "10. Thereafter, Section 168 empowers the Claims Tribunal to "make an award determining the amount of compensation which appears to it to be just". Therefore, only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation."
14. The principle was followed in the later decisions in Oriental Insurance Company Limited vs. Mohd. Nasir and another [AIR 2009 SC 1219] and in Ningamma and another vs. United India Insurance Company Limited [(2009) 13 SCC 710].
16. There is another reason why the Court should award proper compensation irrespective of the claim and, if required, even in excess of the claim. After the amendment of the Act by Act No. 54 of 1994 with effect from 14.11.1994, the Report on motor vehicle accident prepared by the police officer and forwarded to the Claims Tribunal under sub- Section (6) of Section 158 has to be treated as an Application for Compensation. ...............
19. In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such other details. It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. Thus, on that ground also we hold that the Tribunal/Court has a duty, irrespective of the claims made in the Application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation."
29. Thus, the Tribunals constituted under the Motor Vehicles Act in granting 'just compensation' can award more than the amount claimed in the claim petition.
Madras High Court

The Managing Director vs S.Yobu ..on 2 July, 2013

 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED:  02/07/2013

Coram:
THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR
AND
THE HONOURABLE MR.JUSTICE P.DEVADASS

C.M.A (MD)No.24 of 2011
and
M.P.(MD)Nos.1 of 2011 & 1 of 2012


The Managing Director,
Tamil Nadu State Transport Corporation Ltd.,

Vs


1.S.Yobu   
2.C.Povas   
    

1. In this appeal, the State Transport Corporation questions its liability as well as the quantum of compensation awarded.
Facts in brief:
2. On 24.4.1997, first respondent travelled as a pillion-rider in the bike driven by his brother. Accident took place. First respondent sustained multiple grievous injuries. He claimed compensation in M.C.O.P.No.47 of 2002. The Tribunal rejected the contention of the Corporation that its bus was not involved in the accident and found that the accident was due to its bus driver's negligence.
Compensation
3. On 06.08.2010, considering the extent of disability, loss of earning capacity, income and other relevant aspects, the Tribunal awarded him compensation with 7.5% interest p.a. as under:
Sl.
No. Description       Amount

1. Permanent disability and
   Loss of earning power   =Rs.20,40,000.00
2. Medical expenses    =Rs.   74,982.20
3. Pain and suffering    =Rs. 1,00,000.00
4. Extra nourishment    =Rs.   25,000.00
     Total   =Rs.22,39,982.20
     

Award .. Assailed
4. The learned counsel for the appellant assailed the award on various grounds. The First Information Report itself has been lodged by the bus driver. Negligence on his part has not been established. That apart, there is variations as to the injuries mentioned in the Wound certificate and in evidence. Further, the Doctor certified the disability at 60%, however, the Tribunal raised it to 100%. In this respect, the learned counsel cited UNITED INDIA INSURANCE CO. LTD., COIMBATORE vs. BOOPATHY RAJ AND ANOTHER [2010 (2) TN MAC 205 (DB)]. The claimant has been employed in a Gulf country and earned in Gulf money. The economic situation in that country and our country are not same. In the circumstances, the entire foreign income cannot be adopted to determine the compensation. In this connection, the learned counsel citedORIENTAL INSURANCE CO. LTD., vs. DEO PATODI AND OTHERS [2009 (1) TN MAC 629 (SC)] and pointed out that 25% of the income of a person employed in a foreign country alone has been taken. The Tribunal cannot award compensation for loss of earning capacity as well as for disability as it would amount to double compensation. In this respect, the learned counsel cited BOOPATHY RAJ (supra). The claimant himself claimed only Rs.10,00,000/- in the claim petition. However, the Tribunal awarded more than that. It cannot be done.
Award : Supported
5. The learned counsel for the claimant/first respondent would submit that taking into account relevant aspects, the Tribunal awarded him reasonable compensation. The fact that the FIR given by the driver itself was closed by the police as 'Mistake of Fact' indicates that he had lodged the complaint with cooked up version. That apart, the evidence of the claimant and of the bus driver would go to show that the driver was at fault. The injuries sustained in the accident by the claimant cannot be brushed aside, finding some mistake in recording the injuries in the wound certificate. The claimant is a qualified motor mechanic. He was employed in a foreign country. For his marriage, he visited India. He met with accident. Because of that, now he cannot work as a motor mechanic. It is 100% disability. He suffered functional as well as physical disability. Then he was only 31 years old. He lost prospects of marriage and amenities of life. There can be compensation under both the heads separately. In this respect, the learned counsel cited B.KOTHANDAPANI vs. TAMIL NADU STATE TRANSPORT CORPORATION LTD., [2011(2) TN MAC 62 (SC)] and RAJ KUMAR vs. AJAY KUMAR AND ANOTHER [2011 ACT 1]. Even in abroad, he earned much, it was more than Rs.15,000/- p.m. in Indian money. However, the Tribunal took only Rs.10,000/- per month. Subsequently, in his evidence, the claimant claimed Rs.30,00,000/-. It is not the law that the claims Tribunal cannot award more than the amount claimed in the claim petition.
Negligence:
6. On 24.4.1998, at about 9.30 a.m., P.W.1, Yobu, travelled as a pillion- rider in the bike, near Kattavilai in Kanyakumari District. At that time, from the opposite side the Transport Corporation bus came, driven by RW1. The road accident took place. P.W.1 sustained multiple grievous injuries. He was taken to the hospital.
7. R.W.1 lodged complaint with police, implicating an Ambassador Car excluding his bus. After investigation, the police referred his F.I.R. as 'Mistake of Fact'. It is the conclusion/decision of the police. It cannot be substituted for the decision of the Tribunal. The Tribunal has to decide the question of negligence independently based on the evidence adduced before it. In doing so, it cannot try it like a complicated civil suit by a Civil Court or a criminal case in a Sessions Court. It must assess the evidence applying basic standards of proof. But, it need not follow the technical rules of evidence embodied in the Evidence Act.
8. The evidence of P.W.1 is that at the time of accident, he travelled in the bike as a pillion-rider and R.W.1 came driving the bus in a rash and negligent manner from the opposite side and dashed against the bike and he was thrown out. P.W.1 is the injured eyewitness in this case.
9. R.W.1/bus driver in his Ex.P1, complaint stated that at that time from the opposite side, an Ambassador car came, the bike tried to overtake it and in this process, the accident took place. In its counter, the Corporation took the specific plea that the bike had hit against the ambassador car and the bus driver had stopped the bus along the road and the bus is not at all involved in the accident. However, in Ex.P1, R.W.1 had stated that the bike had hit on the headlight of the bus. In his evidence, he could not deny this. Ex.P16 observation mahazer and Ex.P17 sketch of the scene place mentions no Ambassador car, except the bike and the Corporation bus. In the FIR, it was stated by P.W.1 that at that time the bus Conductor Paramasivam and certain passengers have seen the accident and they have assisted him in sending the injured to the hospital. However, none of them has been examined to speak to Corporation's version of manner of accident. Though in Ex.P.1, R.W.1 has given the full details of the bike, he did not give any particulars about the so-called Ambassador car.
10. All the above, goes to show that the bus driver was rash and negligent in driving the bus and caused the accident. In the circumstances, we concur with this finding of the Tribunal.
Disability: Extent of
11. On the date of accident, the claimant was 31 years old. He is a qualified Motor Mechanic (See Ex.P12 Certificate). In this accident, he sustained multiple grievous injuries. Actually, he sustained injury and fracture in his right hand. This is what stated by him in his evidence also. Evidence of P.W.2 Dr.Ratheesh also supports the said version. The Tribunal also noticed the same. However, in Ex.P3, Wound certificate, it is described that left hand has been injured. It is against the reality of the situation. There may be a mistake in mentioning correctly the injured hand. But, the fact remains that P.W.1 sustained grievous injuries and fracture in his right hand. Besides that, he had also sustained injury on his forehead. He was also treated for neurological problem.
12. P.W.2 determined his disability at 60% (See Ex.P18 Certificate). P.W.1 was issued with Ex.P19 Disability Certificate by Government Doctor, wherein his disability has been mentioned as 80%. The Tribunal, noticing the fact that because of the disability he could not work as a Motor Mechanic, fixed the disability at 100%.
13. For instance, when a Carpenter suffer amputation of his hands, he cannot function as a Carpenter. When a driver suffer amputation of his legs, he cannot function as a driver. In such cases, so far as their such functional disability is concerned, it is total, although they may engage themselves in other jobs or errands or could not earn at all. This is 'functional disability'.
14. Besides the above disability, because of the disability, he may be disabled from enjoying/use of his limbs/enjoying the amenities of life. This is also a kind of disability. It is to be decided based on the medical evidence. It is 'physical disability'. But, both the disabilities are not one and the same. They are separate. The Tribunal referring to a Full Bench decision of this Court rendered in CHOLAN ROADWAYS CORPORATION LTD., KUMBAKONAM Vs. AHMED THAMBI AND OTHERS [2006 (4) M.L.J. 362 (FB) observed that both the items cannot be compensated separately.
15. However, in B.KOTHANDAPANI Vs. TAMIL NADU STATE TRANSPORT CO. Ltd.[2011 (2) TN MAC 62 (SC)], the Hon'ble Apex Court did not approve AHMED THAMBI (supra). It was held that under both the heads compensation could be awarded separately. The very same issue has been again considered by the Hon'ble Apex Court in RAJ KUMAR Vs. AJAY KUMAR AND ANOTHER [2011 ACJ 1]. The Hon'ble Apex Court illustrated both type of disabilities and held that each has to be compensated separately.
16. The claimant is a qualified Motor Mechanic. For such type of persons hands are tools to operate the tools of the trade. If the hands are lost or one of them could not be used then his valuable tool is lost, thereafter, he could not be a Motor Mechanic.
17.In this case, P.W.2-Dr.Rateesh determined his disability at 60%. It is with reference to his right hand. Either in the evidence of P.W.1 or P.W.2 it is stated that after the accident, P.W.1 could not engage himself in any job at all. That is how P.W.2 had certified his disability, partial permanent [See Ex.P18].
18. It is pertinent here to mention that in Ex.P19 certificate his disability was assessed at 80%. Thus, 100% disability determined by the Tribunal is not acceptable to us. However, considering the effect of the disability on his functioning as a Motor Mechanic, we determine his disability at 80%.
Income:
19. He is a qualified Mechanic. Then he was 31 years old. He was employed as a Mechanic in Shanfari Automotive Co. LLC, in Oman. Then he was paid 120/- Oman Riyal per month (See Ex.P14 Salary certificate). The Tribunal converted it to Rs.15,000/- in Indian rupees. However, it did not take it as it is. It took Rs.10,000/- p.m. Of course, it cannot be denied that the economic position in Oman and in India are not same. The value of the currency of both the countries is not the same.
20. In ORIENTAL INSURANCE CO. LTD. Vs. DEO PATODI AND OTHERS [2009 (1) TN MAC 629 (SC)], the Hon'ble Apex Court noticing the huge salary of the deceased in U.S. Dollars with high British qualifications took only 25% of his income. But, that is not the case before us. The claimant is less qualified and also less paid. Further, as per Ex.P14, besides the salary, he was also provided with free food and accommodation in abroad. In the circumstances, considering his age, qualification and employment, Rs.10,000/- p.m. taken by the Tribunal cannot be faulted.
Multiplier Method:
21. The disability of the claimant is such that he has lost his earning power. However, it is partial permanent. His loss of earning capacity has been assessed at 80%. In the circumstances, adopting the multiplier method will give him 'just compensation'. The Tribunal took the multiplier '17'. It is as per second schedule to M.V. Act. We shall not disturb it.
Determination of compensation amount:
22. The claimant lost 80% of his earning capacity. It comes to Rs.16,32,000/- (Rs.10,000/ x 12 x 17 x 80%). Besides the economic disability, he also suffers from physical disability. Now, he cannot use his affected hand as before. It is day-to-day suffering for him in so many ways. Thus, towards disability compensation, he is awarded Rs.3,00,000/-.
23. Because of the disability, he lost his marriage prospects. Under this head, he is awarded Rs.75,000/-. His mobility has been restricted for a considerable period and some one has to attend on him. Towards Attendant charges Rs.10,000/- is awarded. Towards Transportation charges Rs.8,000/- and towards property damage Rs.2,000/- have been awarded. The Tribunal awarded Rs.74,982.20 towards Medical expenses. As the Medical expenses are in the nature of reimbursement, we award this amount. For pain and suffering and for Extra nourishment, reasonable amounts were awarded by the Tribunal. Thus, we are not disturbing those amounts.
More amount than the claim: Permissibility
24. In the claim petition, the claimant claimed Rs.10,00,000/-. Of course, during his re-examination, he raised it to Rs.30,00,000/- and also offered to pay the additional Court Fee. The Tribunal awarded him Rs.22,00,000/-.
25. It is the statutory duty of the Claims Tribunal to award 'just compensation' to the road accident victims. It must be fair, reasonable and equitable. In ascertaining the same, the Tribunal need not be carried away/bound by the amount mentioned in the claim petition.
26. Some times, in the claim petitions, the victims claim astronomical figures. Some times without really knowing their sufferings, they claim lesser amount. After evidence, assessing the just compensation, the Tribunal may arrive at more amount than the amount claimed.
27. In NAGAPPA Vs. GURUDAYAL SINGH [2004 (2)TN MAC 398 (SC): AIR 2003 SC 674] and TAMIL NADU STATE TRANSPORT CORPORATION Ltd., KARAIKUDI Vs. POTHUMPONNU AND OTHERS [2010 (1) CTC 104], it was held that the Tribunal has the power to grant more amount as compensation.
28. In RAJESH AND OTHERS Vs. RAJBIR SINGH AND OTHERS [2013 (3) CTC 883 : CDJ 2013 (SC) 485], a three- Judge Bench of the Hon'ble Apex Court considered this aspect and held as under:-
"13. Whether the Tribunal is competent to award compensation in excess of what is claimed in the Application under Section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case. At Paragraph 10 of Nagappa's case (supra), it was held as follows:- "10. Thereafter, Section 168 empowers the Claims Tribunal to "make an award determining the amount of compensation which appears to it to be just". Therefore, only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation."
14. The principle was followed in the later decisions in Oriental Insurance Company Limited vs. Mohd. Nasir and another [AIR 2009 SC 1219] and in Ningamma and another vs. United India Insurance Company Limited [(2009) 13 SCC 710].
16. There is another reason why the Court should award proper compensation irrespective of the claim and, if required, even in excess of the claim. After the amendment of the Act by Act No. 54 of 1994 with effect from 14.11.1994, the Report on motor vehicle accident prepared by the police officer and forwarded to the Claims Tribunal under sub- Section (6) of Section 158 has to be treated as an Application for Compensation. ...............
19. In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such other details. It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. Thus, on that ground also we hold that the Tribunal/Court has a duty, irrespective of the claims made in the Application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation."
29. Thus, the Tribunals constituted under the Motor Vehicles Act in granting 'just compensation' can award more than the amount claimed in the claim petition.
Modified compensation:
30. Now, the amount awarded by the Tribunal is revised as under..
Sl.
No. Description Amount in Rs.
1 Loss of Earning capacity 16,32,000/-
2 Disability 3,00,000/-
3 Loss of Marriage prospects 75,000/-
4 Attendant charges 10,000/-
5 Transportation charges 8,000/-
6 Property damage 2,000/-
7 Pain and suffering 1,00,000/-
8 Extra-nourishment 25,000/-
9 Medical Bills 74,982/-
Total     22,26,982/-

Net result..

31. This Civil Miscellaneous Appeal is allowed in part. The first respondent is awarded a total compensation of Rs.22,26,982/- with 7.5% interest p.a. from the date of filing the claim petition till deposit with costs. Cost of this appeal shall be borne by the parties. Within 3 weeks the first respondent shall pay the additional Court Fee in this Court. Thereafter, within four weeks of receipt of a copy of this Judgment, the entire amount, less amount already deposited, shall be deposited by the appellant. On such deposit, the entire amount, less amount, if any already received, shall be paid to the first respondent. Consequently, the connected Miscellaneous Petitions are closed.
srm/smn2 To
1.The Motor Accidents Claims Tribunal, (Sub Judge) Padmanabhapuram.
2.The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai.
N.PAUL VASANTHAKUMAR, J.
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