S. Manikumar, J.@mdashBeing aggrieved by the award, dated 12.9.2013, made in M.C.O.P. No. 3984 of 2011, on the file of the Motor Accident Claims Tribunal (Third Court of Small Causes), Chennai, Iffco Tokio General Insurance Company has preferred this appeal. In the accident, which occurred on 16.8.2011, involving a Car, bearing Registration No. TN 52 X 0626, owned by the 2nd respondent and insured with the appellant-Insurance Company, the respondent/claimant sustained a closed fracture of right shaft of humerus with DNVD, and other multiple injuries all over the body. A case in Cr. No. 323/TM1/2011, has been registered on the file of Thirumangalam Traffic Investigation Police Station, against the driver of the Car. After the accident, the respondent/claimant has been admitted in Soundarapandian Bone and Joint Hospital and treated as in-patient for 8 days, i.e., from 16.8.2011 to 22.8.2011. During the period of hospitalisation, open reduction and internal fixation and DCP platting through posterior approach has been done.
2. Before the Claims Tribunal, the respondent/claimant examined himself as PW. 1 and reiterated the manner of accident. To support his version, PW. 3, eye-witness, has been examined. To corroborate his testimony, Ex. P1 FIR, Ex. P2 Rough Sketch, Ex. P3 Accident Register, Ex. P4 Discharge Summary, Ex. P5 Medical Bills, Ex. P6 Estimation for future medical expenses, Ex. P7 Identity Card, Ex. P8 Salary Certificate, Ex. P9 Weight Lifting Certificate, Ex. P10 Driving licence, Ex. P11 X-Ray, Ex. P13 Authorisation Letter, Ex. P14 Loss of Pay Certificate and Ex. P15 Attendance Registrar. PW. 2, Doctor, who clinically examined the respondent/claimant, with reference to the medical records, has assessed the disability at 45% and issued Ex. P12 Disability Certificate.
3. Denying the negligence and the manner of accident, the appellant-Insurance Company has contended that the driver of the car, insured with them, was not negligent in causing the accident. They further contended that the driver of the car has been charged under Section 182 of the Motor Vehicles Act, for driving without a transport endorsement and therefore, put the respondent/claimant, to strict proof. Without prejudice to the above, they disputed the age, avocation and income of the respondent/claimant and the compensation claimed under various heads. On their behalf, Mr. Arunkumar, Legal Executive of the Company has been examined as RW. 1 and marked Ex. R1 Charge-sheet, Ex. P2 Driving Licence Register, Ex. P3 Insurance Policy and Ex. P4 Notice with an Acknowledgement Card.
4. On evaluation of pleadings and evidence, the Claims Tribunal held that the driver of the Car, bearing Registration No. TN 52 X 0626, owned by the 2nd respondent and insured with the appellant-Insurance Company, was negligent in causing the accident. As regards liability, finding that the 2nd respondent, owner of the Car, has violated the terms and conditions of the Insurance Policy, by allowing the driver, who did not possess a valid and effective driving licence and badge, to drive the car, insured with the appellant-Insurance Company, the Tribunal has ordered that the appellant-Insurance Company should initially pay the compensation amount to the respondent/claimant and then, to recover the same, from the owner of the Car, 2nd respondent, without initiating any separate proceedings. Considering the medical evidence adduced, the Claims Tribunal has awarded Rs. 2,99,000 with interest at the rate of 7.5% per annum. Heard the learned Counsel for the parties and perused the materials available on record.
5. Learned Counsel for the appellant-Insurance Company contended that when the owner of the vehicle has violated the policy condition, by allowing the driver, who did not possess a valid and effective driving licence, to drive the Car and, therefore, the appellant-Insurance Company ought to have been exonerated from payment of compensation to a third party victim. The said contention is no longer res integra in view of the Division Bench decisions of this Court in
6. The question as to whether, it is open to the insurer to seek for total exoneration for payment of compensation to a third party victim or whether it has only a right of recovery, Section 149(4) and (5) of the Motor Vehicles Act, has been extensively considered in ICICI Lombard General Insurance Company v. Annakkili, reported in 2012 (1) TN MAC 226, wherein this Court following the principles of law laid down by the Apex Court and the Division Bench judgments that payment of compensation to a third party victim or legal representatives of the deceased, as the case may be, being statutory and considering the interpretation given by the Supreme Court to Sections 147, 149(4) and (5) vis-a-vis the defences open to the Insurance Company under Section 149(2)(a)(ii) of the Motor Vehicles Act and by holding that the very introduction of the words, "pay compensation to the third party and recover the same from the insured" in Section 149(4) and (5) of the Act, would reflect the divine intention of the Legislature to protect the interest of the third parties, vis-a-vis inter se disputes between the insured and insurer, held that the insurer cannot avoid its liability to pay compensation to a third party, but such avoidance can be made only, if willful breach of terms and conditions of the policy by the insured, by consciously and recklessly allowing the driver, who did not possess a valid and effective driving licence, to drive the vehicle and even if such breach is proved, payment of compensation to the third party victim cannot, at any stretch of imagination, be avoided by the Company and that the only remedy open to the insurer in law is to pay the compensation to the third party victims and recover from the insured. In view of the above, the insurer cannot be totally exonerated from payment of compensation to third party, but it can avoid its liability only to the insured.
7. In a recent decision in
"Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy."
8. As the owner of the vehicle, against whom, right of recovery has been granted has not preferred any appeal, in the light of the decisions made in ICICI Lombard General Insurance Company Ltd. v. Annakkili and Others, reported in 2012 (1) TNMAC 226 and
9. Quantum of compensation is assailed on the ground that the Tribunal has erred in awarding Rs. 99,000 for loss of income, without any supporting evidence. Except the above, no other grounds have been urged.
10. Challenge to the a ward of Rs. 99,000 towards loss of earning cannot be countenanced for the reason that as per Ex. P14 - Leave Certificate, marked through PW. 3, the respondent/claimant was on leave from 17.8.2011 to 8.11.2011 and that he has been paid salary from his earned leave amount. Loss of earning, during the period of treatment, is one of the factors to be considered for payment of compensation. Had the respondent/claimant not sustained the grievous injuries and hospitalised from 16.8.2011 to 22.8.2011, during which period, to undergo open reduction and internal fixation and DCP plating through posterior approach, for the closed fracture at right shaft of humerus with DNVD, there would not have been any necessity for the respondent/claimant to avail the earned leave.
11. Loss of earning was due to the accident caused by the driver of the Car, insured with the appellant-Insurance Company and, hence, they have to indemnify the loss, caused due to the tortuous act of the insured. The insured is liable to pay ''just compensation'' under the head, loss of income, during the period of treatment, as per the mandate of the Motor Vehicles Act, by virtue of the contract of insurance. Thus, both the insurer and insured are jointly and severally liable to pay compensation towards loss of earning.
12. Let me extract few decisions, as to what ''just compensation'' means,
(i) In
"In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of disability caused. But all the aforesaid elements have to be viewed with objective standards."
(ii) In
"The object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The elements of damage recognised by law are divisible into two main groups, pecuniary and non-pecuniary. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what McGregor says, is generally more important than money, it is the best that a Court can do. In Re: The Medianna (1900) A.C. 1300, Lord Halsbury L.C. observed as under--
"How is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident...But nevertheless the law recognises that as a topic upon which damages may be given."
(iii) In yet another decision in
"Broadly speaking, in the case of death the basis of compensation is loss of pecuniary benefits to the dependents of the deceased which includes pecuniary benefits to the dependents of the deceased which includes pecuniary loss, expenses, etc. and loss to the estate. The object is to mitigate hardship that has been caused to the legal representatives due to the sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring the value of human life and the measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor should it be a source of profit for the person in whose favour it is awarded."
At paragraph 15 of the said judgment, the Supreme Court has held that:
"Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of ''just'' compensation which is the pivotal consideration. Though by use of the expression ''which appears to it to be just'', a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness, and non-arbitrariness. If it is not so, it cannot be just."
(iv) In
(Emphasis supplied)
(v) In
"The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example, death of the only son to a mother, she can never be compensated in monetary terms. The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any Court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so. In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in
13. In the light of the discussion and decisions, this Court is not in agreement with the objections raised by the appellant-Insurance Company regarding the award of Rs. 99,000 towards loss of income. On the contrary, as per the decisions, stated supra, the appellant-Insurance Company is liable to pay compensation under the head, loss of earning.
14. Though during the course of arguments, learned Counsel for the appellant-Insurance Company submitted that the Claims Tribunal ought not to have awarded Rs. 70,000 towards future medical expenses, there is no specific challenge in the memorandum of grounds. Nevertheless, it could be seen that the compensation of future medical expenses, has been awarded, on the basis of Ex. P6 Estimation for future medical expenses. In the light of the above, the oral objection is overruled.
15. Considering the nature of injuries, viz., closed fracture at right shaft of humerus with DNVD, the respondent/claimant had undergone open reduction and internal fixation and DCP plating through posterior approach, resulting in immobilisation for a period of three months and the consequent disablement at 45%,, assessed by PW. 2, Doctor, would certainly cause severe pain and suffering.
16. Pain is one, which is experienced momentarily, but it may continue even for a longer period, depending upon the gravity and situs of the injury, whereas, suffering is loss of happiness, on account of the same. Pain has no difference between Rich and Raff. The compensation of Rs. 20,000 awarded towards pain and suffering is less.
17. Considering the failure on the part of the Claims Tribunal to award a just and reasonable compensation under various heads, this Court is inclined to exercise the power under Order 41 Rule 33 of C.P.C. and suo motu enhance the same, taking support from the following decisions:
(i) In National Insurance Co. Ltd. v. M. Jayagandhi, reported in 2008 (1) TNMAC 177, on the question as whether in the absence of any Cross Objection, the High Court could suo moto enhance the compensation, by exercising power under Order 41, Rule 33, CPC, this Court, at paragraphs 37 and 38, held as follows--
7. The question arising for consideration is whether in the absence of any Cross Objection, the Appellate Court could suo motu enhance the compensation. The Appellate Court exercising power under Order 41 Rule 33, CPC could enhance the quantum of compensation even without Cross-Objection. The Courts and Tribunals have a duty to weigh various factors and quantify the amount of compensation which should be just. Reference could be made to the decision of the Supreme Court in
38. Of course, the claimants who are widow, minor daughter and mother have not filed any cross-objection. Even without a cross-objection, questioning the quantum, the Court could suo motu enhance compensation under Order 41 Rule 33, CPC. In this context, reference could be made to
(6) I am in general agreement with the basic proposition of law that has been canvassed by the appellant''s learned Advocate when he points out that it is a well settled principle that a party who suffers an order or a decree and does not Appeal against it or assail it would normally not be permitted at the hearing of the Appeal to try and take advantage of the situation by asking for enhancement. The issue is not that but really as to whether this situation prescribes an absolute and total bar to the Court granting a relief if in the interest of justice such a relief is an absolute must. One has to view the situation from a rather practical point of view the first of them being with regard to the very poor quality of legal assistance that is usually available in and around the M.A.C.T. and thereafter, the second aspect of the matter being that the status of the parties and their general condition themselves may be such that they are unable to agitate the matter further and the third aspect of the matter which is relevant having regard to the present case, is the possibility of certain further tragic occurrences such as deaths that may have intervened, all of which may contribute to a situation wherein the Court finds that no Appeal or cross-objections have been filed. The essence of doing justice requires that compensation when awarded has got to be reasonable and fair and it has also got to be adequate having regard to the totality of the circumstances. The hearing of the Appeal involves a total review of the case and the Appeal is virtually an extension of the proceedings before the lower Court. The law is well settled with regard to one interesting aspect of the matter, namely, that the Courts do come across a few instances where instead of over-pitching the case before the Trial Court, a very modest amount is claimed and the Tribunals in these circumstances have been wrongly limiting the relief to the amount that has been claimed on the ground that even though the party is entitled to something higher, what was asked for is a lower figure. This Court had occasion to correct these orders and to lay down that the Tribunal is required to pass an order quantifying the compensation correctly irrespective of what has been claimed on the basis of the principle that it is not the amount that is claimed in that matter, insofar as if the Court has to the power to award a lesser amount, that it is equally equipped with the power to award a higher amount. It is that principle which applies with equal force to the Appellate Court and though I do not dispute that a Court would normally not permit a party to ask for enhancement unless an Appeal or cross-objections have been filed but there could be a very small category of cases in which the Court would make an exception, the reason being that the essence of doing justice requires that a Court will not refuse a relief only because of a technical or a procedural bar. I need to amplify here that if the technicalities are upheld, the result would be doing injustice insofar as the party will be left with a compensation lesser than what a fair evaluation entitles the party to. Again, I do not on the basis of the law as enunciated by the Courts in the decisions set out by me above, subscribe to the view that there exists any bar in the way of this Court exercising such powers. The powers do exist under Order 41 Rule 33, Civil Procedure Code and more importantly, such powers can certainly be exercised under Section 151, Civil Procedure Code in the interest of justice. Applying the above decision, in
(ii) In Tamil Nadu State Transport Corporation v. Saroja and Ors., reported in 2008 (1) TNMAC 352, this Court has considered the question as to whether compensation can be enhanced suo moto in exercise of power under Order 41 Rule 33 and the point is answered as follows--
On point--
The learned Counsel for the respondents/claimants placing reliance on Order 41 Rule 33 of CPC and the various decisions emerged thereunder would pray that the compensation might be enhanced even though no cross-objection has been filed by the claimants, whereas the learned Counsel for the appellant - Transport Corporation would cite the decision of the Hon''ble Apex Court in Oriental Insurance Co. Ltd. v. R. Swaminathan & Ors., 2006 (2) ACC 701 (SC), and develop his arguments to the effect that unless there is a cross objection, the question of enhancing the compensation would not arise. Hence, it is just and necessary to refer to the decision of the Hon''ble Apex Court in Oriental Insurance Co. Ltd. v. R. Swaminathan & Ors., 2006 (2) ACC 701 (SC). An excerpt from it would run thus: Apparently the first respondent claimant was satisfied with the Tribunal''s Award as he did not file any Appeal there against to the High Court. Nonetheless, being aggrieved by the Single Judge''s judgment, the claimant filed a Letters Patent Appeal before the Division Bench of the High Court. This Appeal was allowed and by the impugned judgment the High Court has awarded total compensation amounting to Rs. 7,44,000 under different heads with a direction for payment of interest at 18% from the date of Petition. The appellant-Insurance Company is aggrieved thereby and is in Appeal before us. The issue that arises in this case is, whether the Division Bench of the High Court was justified in increasing the compensation amount beyond the amount awarded by the Tribunal despite the fact that the Award of the Tribunal was not at all challenged by the claimant. The only reason given by the Division Bench of the High Court for doing so is: In this connection, we may observe that we are aware of the fact that we are enhancing the compensation even though the injured has not claimed it. But, the question is covered by catena of decisions justifying enhancement of compensation even if cases where the injured has not preferred an Appeal, provided the circumstances of the case warrants the same. To say the least, this was a very facial way of interfering with the award when no interference was called for. We called upon the learned Counsel on both sides to show us at least one case (out of the catena of judgments referred to in the impugned judgment) in support of this proposition. Learned Counsel frankly confessed that there was none. On the other hand, the learned Counsel for the appellant drew our attention the judgment of this Court in
7. A mere perusal of the excerpt from the said decision would clearly indicate that the Hon''ble Apex Court in that decision has not laid down as a universal rule of interpretation of Order 41 Rule 33 of CPC. Taking into consideration, the method and manner in which the Division Bench of this Court in the Letters Patent Appeal, without citing adequate reasons and precedents, enhanced the compensation amount to an extent of Rs. 7,44,000 with 18% interest from that of Rs. 3,00,000 awarded by the Single Bench of the same Court, the Hon''ble Apex Court found fault with it.
8. Furthermore, the above excerpt also would reveal that without even relying upon any precedent, the Division Bench of this Court, simply enhanced the compensation and that too to the extent of double that of what the Single Judge of this Court ordered. It is also clear that when the Hon''ble Apex Court wanted a precedent in that regard, the learned Counsel for the appellant therein cited only the decision of the Hon''ble Apex Court in
(i) Municipal Board, Mount Abu v. Hari Lal, 1988 ACJ 281.
(ii)
(iii)
(iv)
9. The perusal of the aforesaid Judgments of the Hon''ble Apex Court would clearly highlight that without filing cross-appeal, the respondents in the Appeal could pray for reliefs and that the High Court under Order 41, Rule 33 could grant such reliefs also. This Court in several cases adhering to the aforesaid decisions of the Hon''ble Apex Court held that under Order 41 Rule 33 of C.P.C., this Court could enhance the compensation in appropriate cases. An excerpt from the decision of this Court in
"The Appellate Court could exercise the power under Rule 33 even if the Appeal is only against a part of the decree of the lower Court. The Appellate Court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any Appeal or objection. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The Appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The words (as the case may be require) used in Rule 33 Order 41 have been put in wide terms to enable the Appellate Court to pass any order or decree to meet the ends of Justice. What then should be the constraint? We do not find many, we are giving any liberal interpretation. The rule itself is liberal enough, the only constraints that we could see may be these: That the parties before the lower Court should be there before the Appellate Court. The question raised must properly arise out of judgment of the lower Court. If these two requirements are there, the Appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It is true that the power of the Appellate Court under Section 33 is discretionary. But, it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities."
10. And then the Division Bench of this Court in the decision in
"At this stage, learned Counsel appearing for the respondent/claimants would submit that the Tribunal has awarded interest only from the date of the judgment and not from the date of the petition. The learned Counsel for the respondents/claimants would submit that even though no Appeal has been filed by the respondents/claimants or no cross-objections have been filed by them, this Court has discretionary power by virtue of Order 41, Rule 33 of Code of Civil Procedure and also in view of the rulings of the Supreme Court in
11. Over and above that the decision of the Hon''ble Three Judges Bench of the Hon''ble Apex Court, in
Firstly, under the provisions of Motor Vehicles Act, 1988 (hereinafter referred to as ''the M.V. Act''), there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if Tribunal/Court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. Only embargo is--it should be ''just'' compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the M.V. Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Under the proviso to Sub-section (1), all the legal representatives of the deceased who have not joined as the claimants are to be impleaded as respondents to the application for compensation. Other important part of the said Section is Sub-section (4) which provides that ''the Claims Tribunal shall treat any report of accidents forwarded to it under Sub-section (6) of Section 158 as an application for compensation under this Act''. Hence, Claims Tribunal in appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no specified amount is claimed.
(iii) In Tamil Nadu State Transport Corporation v. Pothumponnu, CMA (MD 1 No. 714 of 2009, dated 5.8.2009, this Court, held as follows:
"7. Notice can be issued to the opposite parties/respondents only in case where their rights are going to be affected be way of variation/reduction. In this case, the claimants are going to be benefited. Hence, no notice is necessary in the appeal. When the Tribunal commits a mistake that too a material mistake, this Court cannot close its eyes and decide the matter mechanically. When the mistake is noticed by this Court, this Court has got power to do away with it, even while dismissing the appeal at the admission stage itself. The presence of the respondent is not a must. When there is a case for admission, the matter can be admitted and notice can be ordered. When there is no case made out for admission, the appeal deserved to be dismissed. While dismissing, the material irregularity committed by the Tribunal can be set right by awarding suitable amounts to the respondents without notice to them. The presence of the claimants or absence does not make any difference. Even if they are present and they do not bring it to the notice of this Court about the irregularity, this Court can always remedy the same suo motu under Order 41 Rule 33 of the Code of Civil Procedure and Section 173 of the Motor Vehicles Act and invoking Articles 227 of the Constitution of India. Moreover, Sections 163 and 166 are beneficial provisions of the Motor Vehicles Act aimed at consoling and compensating the victims of the accident. This Court''s approach should be humane in nature not whittled down by technicalities. The powers of the Court are wide enough to do complete justice."
18. In the case on hand, Ex. P2 Discharge Summary issued by Soundarapandian Bone and Joint Hospital, shows that the respondent/claimant was hospitalised between 16.8.2011 and 22.8.2011 and underwent open reduction and internal fixation and DCP plating through posterior approach, for the closed fracture at right shaft of humerus with DNVD. Compensation of Rs. 20,000 towards pain and suffering is inadequate and hence, it is enhanced to Rs. 40,000.
19. Ex. P14 Leave Certificate shows that respondent/claimant was on leave from 17.8.2011 to 8.11.2011. Though the Claims Tribunal, while awarding compensation of Rs. 99,000 towards loss of income, has observed that the respondent/claimant was not entitled to leave salary from his earned leave account, this Court is of the view that a permanent employee is also entitled to earned leave salary, as he had been forced to take earned leave, which he could later on surrender and seek payment, subject to the maximum fixed. Reference can be made to a decision of the Delhi High Court in
"10. Admittedly, the Second Respondent took leave on account of his incapacity to attend to his duties because of the injuries suffered in the accident. He admitted that he was paid the salary for the leave taken by him. The Second Respondent lost leave for a period of six months, which he could have availed for other purposes. Although, the Second Respondent did not suffer any financial loss but loss of leave which he may be entitled to encash on year to year basis or at the time of his superannuation, has to be compensated in terms of money.
11. The Claims Tribunal, therefore, rightly awarded the compensation for loss of leave at the rate of his salary. The Claims Tribunal''s finding in this regard cannot be faulted."
Hence, the respondent/claimant is entitled to Rs. 99,000 towards loss of earning, on earned leave salary.
20. When the respondent/claimant was hospitalised, somebody would have taken care of him and therefore, a sum of Rs. 4,000 is awarded under the head, attendant charges, toss of amenities as per the Full Bench decision of this Court in
21. In the result, the respondent/claimant is entitled to Rs. 4,38,000, with interest at the rate of 7.5% per annum (excluding Rs. 70,000 awarded towards future medical expenses), as apportioned hereunder:
In the result, the Civil Miscellaneous Appeal is dismissed. The appellant-Insurance Company is directed to deposit the amount now determined, less the amount already deposited, with accrued interest and costs, to the credit of M.C.O.P. No. 3984 of 2011, on the file of the Motor Accident Claims Tribunal (Third Court of Small Causes), Chennai, within a period of four weeks from the date of receipt of a copy of this order. The respondent/claimant is permitted to withdraw the said amount, by making necessary applications before the Tribunal. No costs. Consequently, connected Miscellaneous Petitions are also closed.
