(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, to set aside the fair and decreetal order dated 08.12.2021 passed in M.C.O.P.No.74 of 2019, on the file of the learned Chief Judicial Magistrate, Motor Accident Claims Tribunal, Karur.)

M.D. Sumathi, J.

1. This Civil Miscellaneous Appeal has been preferred by the appellant/insurance company, challenging the fair and decreetal order dated 08.12.2021 passed in M.C.O.P.No.74 of 2019, on the file of the learned Chief Judicial Magistrate, Motor Accident Claims Tribunal, Karur.

2. Brief facts:

2.1. The first respondent/claimant filed the claim petition stating that he was aged about 40 years at the time of the accident and was working as a self-employed labourer/coolie, earning a sum of Rs. 25,000/- per month.

                     2.2. On 30.01.2019, at about 8.00 p.m., while the claimant was travelling as a pillion rider on a motorcycle ridden by one Venugopal on the Karur–Coimbatore Main Road near K.Paramathi Selvapuram Bus Stop, a Maruthi Alto 800 Car bearing Registration No.TN-37-CV-6673, belonging to the first respondent, came from the opposite direction and dashed against the motorcycle. According to the claimant, the accident occurred due to the rash and negligent driving of the car driver.

                     2.3. In the accident, the claimant sustained grievous injuries, including fractures to his hand, leg and hip. He was initially taken to Senthil's Emergency Care Hospital, Coimbatore, and thereafter shifted to Kovai Medical Centre and Hospital, Coimbatore, where he was admitted as an inpatient for about one month and underwent surgeries.

                     2.4. An FIR was registered in Crime No.33 of 2019 against the driver of the car for the offences under Sections 279 and 338 of the Indian Penal Code.

3. Before the Tribunal, Venugopal, the petitioner in MCOP.No. 74/2019 was examined as PW.1 and Karthik, the petitioner in MCOP.No.73/2019 was examined as PW.2. On the side of the petitioners, Ex.P1 to Ex.P31 were marked. On the side of the respondents none examined and no documents were marked. The owner of the offending vehicle, namely, the first respondent, remained ex parte before the tribunal.

4. The Insurance Company contested the claim petition contending that the accident occurred solely due to the rash and negligent riding of the motorcycle and that the rider of the motorcycle did not possess a valid driving licence. The Insurance Company also disputed the nature and extent of the disability and the quantum of compensation claimed by the claimant.

5. The Tribunal, after considering the oral and documentary evidence, came to the conclusion that the accident occurred due to the negligence of the driver of the insured car and consequently fastened the liability upon the respondents. The Tribunal assessed the permanent disability at 50%, fixed the monthly income at Rs.12,000/-, added 40% towards future prospects and applied the multiplier of 16. Accordingly, a sum of Rs.16,12,800/- was awarded towards permanent disability. The Tribunal also awarded amounts under various other heads towards pain and suffering, transportation, attendant charges, extra nourishment, medical expenses, loss of amenities, damage to clothes, future treatment and loss of enjoyment of life. Aggrieved by the said award, the Insurance Company has preferred the present appeal.

6. The learned counsel appearing for the appellant/Insurance Company contended that the Tribunal erred in fixing negligence upon the driver of the insured car. According to the appellant, the motorcycle rider was solely responsible for the accident and did not possess a valid driving licence. It is further contended that the Doctor who assessed the disability was not the Doctor who treated the claimant and, therefore, the disability certificate ought not to have been accepted without referring the claimant to a Medical Board. The learned counsel further contended that the Tribunal had fixed the monthly income at Rs.12,000/- without sufficient evidence and had erroneously added 40% towards future prospects. It was also argued that the amounts awarded towards pain and suffering, loss of amenities, loss of enjoyment of life and future treatment resulted in duplication and that the medical bills had not been properly proved.

7. The following points arise for consideration in this appeal:

                     1. Whether the Tribunal was justified in fixing negligence upon the driver of the insured car?

                     2. Whether the assessment of 50% permanent disability and the compensation awarded on that basis require interference?

                     3. Whether the monthly income and addition towards future prospects require reduction?

                     4. Whether the other amounts awarded by the Tribunal are excessive or overlapping?

                     5. Whether the award of the Tribunal warrants interference?

                     6. Negligence.

8. The first contention of the appellant is that the accident occurred solely due to the negligence of the motorcycle rider. This Court is unable to accept the said contention. The claimant specifically pleaded that the car bearing Registration No.TN-37-CV-6673 came from the opposite direction and dashed against the motorcycle. An FIR was also registered against the driver of the car in Crime No.33 of 2019 for the offence under Sections 279 and 338 of IPC. As per Ex.P6-copy of judgment, the driver of the car namely, Prashanth, admitted his substance of accusation and convicted and paid fine before the criminal Court in STC.No.1647/2019. There is no contra evidence and documents are available in this case. More importantly, the owner of the offending vehicle, who was the first respondent before the Tribunal, remained ex parte and did not enter the witness box to dispute the manner of accident. The Insurance Company, which raised the plea of negligence on the part of the motorcycle rider, has not established the said defence by acceptable evidence. Though Ex.P4-certified copy of Motor Vehicle Report shows that the driving licence of the rider of the Motorcycle, RC and Insurance of the motorcycle were not produced for inspection, mere allegation that the motorcycle rider did not possess a driving licence cannot, by itself, establish that the accident occurred due to his negligence. The absence of a driving licence and the cause of the accident are two different matters. Unless the Insurance Company establishes a causal connection between the alleged absence of licence and the occurrence of the accident, the said contention cannot be accepted for the purpose of exonerating the insurer.

9. The Tribunal has considered the materials available on record and has rightly arrived at the conclusion that the accident occurred due to the rash and negligent driving of the driver of the insured car. This finding is based upon appreciation of evidence and does not suffer from perversity.Accordingly, the finding regarding negligence is confirmed.

Permanent disability:

10. The appellant next contends that the Doctor who assessed the disability had not treated the claimant and therefore the disability certificate ought not to have been accepted. This contention also cannot be accepted merely on the ground that the Doctor was not the treating Doctor. The question before the Tribunal was the extent of functional disability suffered by the claimant as a consequence of the injuries sustained in the accident. The Doctor, having examined the claimant and assessed the disability on the basis of the injuries and the resulting functional limitations, is competent to give evidence regarding the disability. The appellant has not produced any contra medical evidence to establish that the disability assessed by the Doctor was wholly incorrect or exaggerated. Non constitution of a Medical Board, by itself, does not render the evidence of the Doctor unacceptable. As per evidence PW3, due to loss of tactile sensation in the urinary tract, the petitioner has become impotent and is suffering from erectile dysfunction/loss of virility and the said defect cannot be rectified and the petitioner is unable to lead family life. After considering the above said medical evidence, the Tribunal has rightly assessed the disability at 50%. Hence, this Court does not find any irregularity or illegality to interfere with the findings of the Tribunal.

Monthly income:

11. The claimant had stated that he was earning Rs.25,000/- per month as a self-employed labourer. However, in the absence of documentary proof regarding his exact income, the Tribunal adopted a notional monthly income of Rs.12,000/-. Considering the nature of the avocation of the claimant, his age and the year of accident, this Court finds that the monthly income fixed by the Tribunal at Rs.12,000/- cannot be said to be exorbitant or unreasonable. On the contrary, the Tribunal has adopted a reasonable income in the absence of documentary evidence. Therefore, there is no justification for reducing the same.

Future prospects:

12. The Tribunal has added 40% towards future prospects. The claimant was aged about 40 years and was admittedly engaged in selfemployment. The principle of addition towards future prospects is not confined only to persons having permanent salaried employment. A selfemployed person is also entitled to an appropriate addition towards future prospects, subject to the principles laid down by the Hon'ble Supreme Court in Pranay Sethi case. Therefore, the mere fact that the claimant was a labourer/coolie cannot be a ground to completely deny future prospects. The addition made by the Tribunal, in the facts and circumstances of the present case, does not call for interference.

Deduction towards personal expenses:

13. The contention of the appellant that one-third of the income ought to have been deducted towards personal expenses is also not acceptable in the manner projected. The compensation under the present case has been assessed on the basis of permanent disability and loss of earning capacity suffered by the claimant. The claimant was not a deceased person whose dependency compensation was being calculated. Therefore, the formula applicable to a claim for loss of dependency in a fatal accident cannot mechanically be applied to the present case. Hence, this contention is rejected.

14. Compensation towards permanent disability:

The Tribunal calculated the compensation as follows:

Rs.12,000/-(monthly income) + 40% future prospects = Rs.16,800/-

Rs.16,800/- × 12 × 16(multiplier) × 50% = Rs.16,12,800/-

15. Having regard to the age of the claimant, the nature of injuries, the permanent disability assessed and the effect of the injuries upon his earning capacity, this Court does not find the said calculation to be so excessive or erroneous as to warrant appellate interference.

Pain and suffering, loss of amenities and loss of enjoyment of life:

16. The appellant contended that once compensation has been awarded by applying the multiplier method, separate amounts towards pain and suffering and loss of enjoyment of life ought not to have been awarded. This Court is unable to accept the contention in its entirety. Compensation under the head of permanent disability/loss of earning capacity is intended to compensate the economic loss suffered by the injured claimant. Compensation towards pain and suffering and loss of amenities is intended to compensate the non-pecuniary consequences of the injuries. These are distinct heads of compensation. The mere fact that compensation has been calculated by applying the multiplier method does not automatically bar an award under conventional/non-pecuniary heads. The claimant had suffered fractures to the hand, leg and hip, had undergone surgery and had been hospitalised for about one month. In such circumstances, the amounts awarded towards pain and suffering and loss of amenities cannot be termed excessive. The amount awarded towards loss of enjoyment of life is also considered in the context of the permanent disability suffered by the claimant. Therefore, no interference is warranted.

Future treatment:

17. The appellant contended that the Tribunal ought not to have awarded Rs.50,000/- towards future treatment in the absence of sufficient evidence. However, the claimant had suffered serious fractures and had undergone surgeries. The Tribunal, having considered the medical materials available on record, awarded a moderate sum of Rs.50,000/- towards future treatment. The said amount is neither exorbitant nor disproportionate considering the nature of injuries. In the absence of any contra medical evidence establishing that no further treatment would be required, this Court is not inclined to interfere with the said award.

Medical expenses:

18. The Tribunal awarded Rs.9,57,843/- towards medical expenses based upon the medical records and bills produced by the claimant. The appellant has merely alleged that the medical bills are fictitious and created for the purpose of the claim petition. Such an allegation, without establishing the same through cogent evidence, cannot be accepted. The claimant had admittedly been hospitalised and had undergone surgeries following the accident. The medical records corroborate the treatment undergone by him. The Tribunal, after examining the materials placed before it, accepted the medical expenses. This Court finds no perversity or infirmity in the said finding.

Other heads:

19. The amounts awarded towards transportation, attendant charges, extra nourishment, loss of amenities and damage to clothes are reasonable considering the nature of the injuries and the period of hospitalisation. The Tribunal has not awarded any exorbitant amount under these heads. Hence, no interference is called for.

20. This Court is conscious of the fact that an appellate Court should interfere with an award of the Motor Accident Claims Tribunal only when the Tribunal has committed a patent error of law, ignored material evidence or arrived at a conclusion which is perverse or wholly unreasonable. In the present case, the Tribunal has considered the pleadings, oral and documentary evidence and the medical records before arriving at its conclusions. The appellant has not demonstrated any material error in the finding of negligence. The assessment of disability and income is also within the realm of reasonable appreciation of evidence. The amounts awarded under the various heads are supported by the nature of injuries and treatment undergone by the claimant. This Court therefore finds no compelling reason to interfere with the award.

21. In the result,

(i) The Civil Miscellaneous Appeal is dismissed. The award dated 08.12.2021 passed by the Motor Accident Claims Tribunal, Chief Judicial Magistrate, Karur, in M.C.O.P.No.74 of 2019 is confirmed.

(ii) The appellant/Insurance Company is directed to deposit the entire award amount, if not already deposited, together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, within a period of six weeks from the date of receipt of a copy of this judgment, after adjusting the amount, if any, already deposited.

(iii) On such deposit, the claimant is permitted to withdraw the amount as per the apportionment made by the Tribunal, by filing an appropriate application before the Tribunal.

(iv) There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.