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2010 DIGILAW 1282 (MAD)

Sharmila v. M. Suresh Kumar

2010-03-25

D.HARIPARANTHAMAN

body2010
JUDGMENT : Hariparanthaman, J. The appellant was the claimant. She rode a TVS Scooty on 10.2.2004 at 10.15 p.m., at Karur-Trichy Road. A lorry owned by respondent No. 1 came from the opposite direction and hit against her at Pasupathipalayam, Karur and dragged her for 100 ft causing grievous injuries on both hands, both legs and also at hip and on the spinal cord. She was immediately taken to Loka Hospital at Karur and on 11.2.2004, she was taken to Kovai Medical Centre Hospital at Coimbatore from Loka Hospital. She was treated as inpatient up to 14.2.2004. She was treated as inpatient at Ganga Hospital, Coimbatore from 14.2.2004 to 13.4.2004. She was also treated at ANNS Homoeo Hospital at Chennai and thereafter, she was taking treatment as outpatient. She is a B.E. graduate in Computer Science and she passed B.E. in May 2003 with first class. She also participated in sports while she studied in the engineering course. She got married to a homoeopathy doctor on 12.11.2003. She was certified that she had suffered 80 per cent permanent partial disability. She filed M.C.O.P. No. 8 of 2005, claiming compensation of Rs. 20,00,000. Before the Tribunal, appellant was examined as first witness and the doctor who gave disability certificate was examined as second witness, on the side of the appellant. Documents Exh. A1 to Exh. A22 were marked on the side of the appellant. No witness was examined on the side of the respondents and no documents were marked. The Tribunal passed an award on 6.3.2006, granting a sum of Rs. 7,11,000 as compensation. The appeal is preferred by the appellant seeking enhancement of compensation. 2. Heard the submissions made by the learned counsel appearing on either side. 3. The Tribunal granted Rs. 7,11,000 as compensation under the following heads: (1) Medical expenses as per Exh. A10 and All Rs. 3,66,000 (2) As per Exh. A19, for 8 grievous injuries, each at Rs. 25,000 Rs. 2,00,000 (3) Disability compensation Rs. 80,000 (4) Pain and suffering Rs. 25,000 (5) Extra nourishment Rs. 5,000 (6) Loss of amenities and enjoyment of life Rs. 25,000 (7) Transport charges Rs. 10,000 Total Rs. 7,11,000 4. The learned counsel for the appellant submits that the Tribunal erroneously held that the appellant was not entitled to any compensation for loss of income, as she was not in employment. 25,000 (5) Extra nourishment Rs. 5,000 (6) Loss of amenities and enjoyment of life Rs. 25,000 (7) Transport charges Rs. 10,000 Total Rs. 7,11,000 4. The learned counsel for the appellant submits that the Tribunal erroneously held that the appellant was not entitled to any compensation for loss of income, as she was not in employment. The learned counsel for the appellant has serious objection to this portion of the award, declining to grant compensation towards loss of future income. The learned counsel submits that the appellant was an engineering graduate in Computer Science with first class. Exh. A13 is the degree awarding B.E. certificate by Periyar University. As per Exh. A13, she passed B.E. Computer Science in first class in May 2003. The learned counsel has also brought to the notice of this court that a call letter, Exh. A10, dated 3.3.2004, from Infosys Technologies Limited was sent to the appellant to appear for written test on 21.3.2004 while she was bedridden in the hospital. It is submitted that the average earnings of computer engineers are Rs. 30,000 p.m. Therefore, the Tribunal was not justified in refusing to grant any award towards loss of future income. The learned counsel has relied on a Division Bench judgment of this court in National Insurance Co. Ltd. Vs. T.A. Nicholas and Others, (2010) ACJ 1289 : (2011) 1 TAC 241, wherein the Division Bench took Rs. 10,000 as the salary of a B.E. Computer Science student. 5. The learned counsel further submits that in view of the nature of injuries and the treatment given to the appellant and more particularly insertion of iron plates and rods at many places in her body, the Tribunal should have awarded compensation towards future medical expenses. It is submitted that she was aged 23 years only at the time of accident and that, therefore, those foreign bodies could be removed at later point of time and the appellant would have to meet expenses for removal of these iron plates and rods. It is further submitted that the appellant requires continuous medical treatment due to the nature of injuries which she received in the accident. The learned counsel has taken me through the discharge summary. Exh. A8, and also the photographs, Exh. A9, and also the evidence of PW 2, doctor who issued Exh. A19, disability certificate. It is further submitted that the appellant requires continuous medical treatment due to the nature of injuries which she received in the accident. The learned counsel has taken me through the discharge summary. Exh. A8, and also the photographs, Exh. A9, and also the evidence of PW 2, doctor who issued Exh. A19, disability certificate. The appellant took treatment as inpatient for more than two months and that she had undergone many surgeries and that, therefore, the Tribunal should have awarded Rs. 1,00,000 towards loss of expectancy in life. The Tribunal should also have awarded a sum of Rs. 3,00,000 as future medical expenses as she already spent Rs. 3,66,000 as per Exh. A10 and Exh. A11. It is also submitted that the Tribunal awarded on lower side towards pain and suffering and loss of amenities and enjoyment in life. According to the appellant, the Tribunal should have awarded Rs. 1,00,000 each for pain and suffering and for loss of amenities and enjoyment in life. 6. On the other hand, the learned counsel for the respondent No. 2, insurance company, submits that since the appellant was not in employment, the Tribunal was perfectly justified in refusing to grant any compensation towards loss of income. The learned counsel further submits that in the event of granting certain amounts towards loss of income, the amount of Rs. 80,000 for disability compensation has to be deleted. It is further submitted that Tribunal was not justified in granting Rs. 2,00,000 for 8 grievous injuries, while the Tribunal awarded compensation for pain and suffering and loss of amenities and enjoyment in life. The learned counsel also submits that though the doctor certified that the appellant suffers 80 per cent permanent partial disability, in view of the admission made by the doctor during cross-examination, it should be taken that that there is no disability. 7. The learned counsel for the appellant in reply submits that insurance company did not choose to challenge the findings of the Tribunal and that the Tribunal has categorically held that there was no contra medical evidence let in by the respondent No. 2 and that the appellant suffers 80 per cent permanent partial disability. 8. I have considered the submissions made by the learned counsel appearing on either side and perused the records. 9. The Tribunal has held in para 19 of the award as follows: (Omitted as in vernacular) 10. 8. I have considered the submissions made by the learned counsel appearing on either side and perused the records. 9. The Tribunal has held in para 19 of the award as follows: (Omitted as in vernacular) 10. The Tribunal did not grant any compensation for loss of income. The reason for declining to grant any compensation under this head was that the appellant was not in employment. But the Tribunal failed to take note of the fact that the appellant was an engineering graduate in Computer Science with first class and she got a call letter from a reputed company Infosys Technologies Limited to appear for a written test on 21.3.2004 while she was in the hospital. The Tribunal should have taken judicial notice of the fact that the computer engineers are highly paid persons and that, therefore, the Tribunal was not justified in refusing to grant any compensation towards loss of income. 11. Learned counsel for the appellant submits that Rs. 30,000 should be taken as the monthly earnings for computation of loss of income. However, I am not inclined to take Rs. 30,000 as the monthly earnings for the purpose of computation of loss of income. In view of the imponderables in getting employment and the salary that the appellant could receive, I am of the view that Rs. 10,000 could be taken as monthly earnings of the appellant for the purpose of computation of loss of income. I am fortified by the decision of the Division Bench of this court in National Insurance Co. Ltd. Vs. T.A. Nicholas and Others, (supra) In the said case, the Division Bench had taken Rs. 10,000 as the monthly earnings as fixed by the Tribunal for an engineering student. 12. The learned counsel for respondent No. 2 seriously disputed the disability certificate, Exh. A19, certifying that the appellant suffered 80 per cent permanent partial disability. The learned counsel for the respondent No. 2 states that the doctor examined as PW 2 by the appellant during cross-examination deposed that the injuries got healed without causing any disability. 13. On the other hand, learned counsel for the appellant submits that in view of the grievous injuries in both legs and hands, besides in hip and spinal cord, the appellant was totally crippled and she could not do her normal activities. 14. 13. On the other hand, learned counsel for the appellant submits that in view of the grievous injuries in both legs and hands, besides in hip and spinal cord, the appellant was totally crippled and she could not do her normal activities. 14. The learned counsel for appellant also submits that the respondent No. 2 did not choose to let in any contra evidence to dispute the disability suffered by the appellant. The learned counsel has brought to my notice para 15 of the judgment, which is extracted hereunder: (Omitted as in vernacular) 15. In view of the rival contentions, it has to be ascertained as to whether 80 per cent could be taken as permanent partial disability for working out the compensation or it should be taken at lesser percentage. 16. I am not in agreement with the submission of learned counsel for respondent No. 2 that the appellant did not suffer any disability. Apart from the injuries in both hands and legs, she suffered injuries in spinal cord. The following are the injuries as per Exh. A2, wound certificate: Injuries as per Exh. A2: (1) Sutured wound right arm, fracture shaft of right humerus. (2) Left elbow fracture of proximal ulna and head of radius. (3) Left wrist fracture of distal radius. (4) Degloving injury lower right thigh - 15 cm lacerated wound volar aspect, 6 cm deep wound on medial side. X-ray fracture medial condyle of femur. (5) Right ankle fracture of lateral malleolus. (6) Degloving injury of sole of right foot, fracture/dislocation right great toe. (7) Sutured wound anterior aspect of left ankle and bimalleolar fracture. (8) Pelvis fracture of superior interior pubic rami, fracture ola of secrum left, fracture transverse process of L5 vertebra right. 17. Those eight injuries are grievous injuries as per wound certificate. The appellant had undergone four surgeries as per Exh. A8 and the details of the surgeries as per Exh. A8 are as follows: Operation 1: 16.2.2004: Debridement of right upper limb and lower limb with medical gastrochemius flap for right knee with SSG of remaining area. Operation 2: 23.2.2004: Debridement of right foot dorsal and plantar aspect and over thigh and upper limb. Operation 3: 10.3.2004: Debridement with SSG of raw areas over the right arm and right foot plantar aspect. Operation 4: 24.3.2004: Debridement and local transposition flap left elbow. 18. Operation 2: 23.2.2004: Debridement of right foot dorsal and plantar aspect and over thigh and upper limb. Operation 3: 10.3.2004: Debridement with SSG of raw areas over the right arm and right foot plantar aspect. Operation 4: 24.3.2004: Debridement and local transposition flap left elbow. 18. The learned counsel for the appellant relies on the following deposition of the doctor: (Omitted as in vernacular) The appellant also deposed on the same lines. Hence I have no hesitation to come to a conclusion that the contention of the respondent No. 2 that the appellant did not suffer from any disability has to be rejected. 19. Learned counsel for the respondent No. 2 has heavily relied on the admission made by doctor during cross-examination to the effect that in view of the young age of the appellant, there is a possibility of speedy recovery and that due to modern treatment, there could not be any disability further. 20. The learned counsel relies on the following statement of the doctor during cross-examination in support of his submission: (Omitted as in vernacular) As rightly contended by the learned counsel for the respondent No. 2, the appellant was not a manual labourer and that she is only a Computer Engineer and she could do only desk work. 21. In these circumstances, in the case of an engineering student who suffered 85 per cent permanent partial disability, a Division Bench of this court in National Insurance Co. Ltd. Vs. T.A. Nicholas and Other, (supra) had taken 30 percent disability. Here again, I like to take 30 per cent disability for the purpose of computation of loss of income. 22. The annual loss of income comes to Rs. 1,20,000, by taking Rs. 10,000 as the monthly loss. Considering the age of the appellant, i.e., 23 years, the proper multiplier is 18 as per the decision of Hon'ble Supreme Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , Hence 100 per cent loss of income is Rs. 1,20,000 x 18 = Rs. 21,60,000 and 30 per cent loss of income is Rs. 6,48,000. In my view the appellant is entitled to Rs. 6,48,000 towards loss of income. 23. The learned counsel for the appellant has correctly submitted that Tribunal committed error in not granting any amount for future medical expenses. 1,20,000 x 18 = Rs. 21,60,000 and 30 per cent loss of income is Rs. 6,48,000. In my view the appellant is entitled to Rs. 6,48,000 towards loss of income. 23. The learned counsel for the appellant has correctly submitted that Tribunal committed error in not granting any amount for future medical expenses. Since plates were inserted in the body of the appellant at the age of 23, in future it could cause certain complications and/or those foreign bodies would be removed by future surgeries. The same is not in dispute. When the Tribunal chose to award Rs. 3,66,000 for medical expenses based on Exh. A10 and Exh. A11, besides awarding Rs. 10,000 towards transport charges, the appellant should be awarded towards future medical expenses. I am of the view that Rs. 2,00,000 would be a fair and just compensation to meet future medical expenses. 24. The learned counsel for the appellant submits that the Tribunal awarded on lower side for pain and suffering and for loss of amenities and enjoyment of life, while nothing was awarded towards loss of expectancy in life. 25. On the other hand, learned counsel for the respondent No. 2 submits that since Rs. 2,00,000 was awarded for grievous injuries, besides awarding Rs. 25,000 for pain and suffering and Rs. 25,000 towards loss of amenities and enjoyment in life, no interference is called for. Taking into consideration the nature of injuries that was extracted above and the long period of treatment and also the four surgeries undergone by the appellant, I like to rearrange the amount of Rs. 2,50,000 awarded by the Tribunal for eight injuries, pain and suffering and loss of amenities. In my view, the appellant should be awarded Rs. 1,00,000 towards pain and suffering, Rs. 1,00,000 towards loss of amenities and enjoyment of life and Rs. 50,000 towards loss of expectancy in life. 26. Since the appellant is granted loss of future income, the amount of Rs. 80,000 awarded under the head of permanent disability is deleted, accepting the contention of the learned counsel for the respondent No. 2. The learned counsel for the respondent No. 2 relies on the decision of the Full Bench in Tehal Singh and Another Vs. Pargat Singh and Others, (2006) ACJ 2703 : (2009) 153 PLR 453, 27. 80,000 awarded under the head of permanent disability is deleted, accepting the contention of the learned counsel for the respondent No. 2. The learned counsel for the respondent No. 2 relies on the decision of the Full Bench in Tehal Singh and Another Vs. Pargat Singh and Others, (2006) ACJ 2703 : (2009) 153 PLR 453, 27. Taking into account the nature of injuries and the treatment at different hospitals, the appellant is entitled to at least Rs. 20,000 towards extra nourishment. 28. In these circumstances, the following compensation is awarded to the appellant: (1) Loss of income Rs. 6,48,000 (2) Medical expenses Rs. 3,66,000 (3) Future medical expenses Rs. 2,00,000 (4) Pain and suffering Rs. 1,00,000 (5) Loss of amenities and enjoyment in life Rs. 1,00,000 (6) Loss of expectancy Rs. 50,000 (7) Transport charges Rs. 10,000 (8) Extra nourishment Rs. 25,000 Total Rs. 14,99,000 29. Respondent No. 2 is directed to pay the enhanced amount at the same rate of interest as ordered by the Tribunal within a period of six weeks from the date of receipt of a copy of this order. The appellant is permitted to withdraw the same on payment of deficit court-fee. The appeal is allowed in above terms. No costs.