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2011 DIGILAW 104 (MAD)

United India Insurance Co Ltd v. V. Mahendran

2011-01-07

B.RAJENDRAN

body2011
Judgment :- 1. The insurance company has come forward with this appeal aggrieved by the quantum of compensation of Rs.15,36,960/- granted by the court below in favour of the claimant/first respondent herein for the injuries sustained by him in a road accident. 2. The facts which gave rise to the claim petition was that on 07.08.2002 at about 00.30 hours, when the claimant was riding his motor cycle Hero Honda bearing Registration No. TN-09-R-2106 in C.P.T. Tharamani Road towards Thiruvanmaiyur, near Dhanampal Polytechnic, the Mahindra Jeep bearing Registration No. TN-09-5600 was driven by its driver in a rash and negligent manner in high speed, with the result, it hit the claimant from behind. In the impact, the claimant sustained multiple injuries all over the body namely (i) fracture femur upper 1/3 right (ii) multiple abrasions on both legs (iii) soft tissue injury over the right upper eyelid and right earlobe (iv) lacerated wound over the left wrist – extensor surface – cut tendon exposing Had Mallixary fracture. Immediately, the claimant was taken to Malar Hospital, Chennai – 20. Subsequently, the claimant was taken to Saraswathy Hospital, Madipakkam, Chennai – 600 091 and also treated at S.R.M.C. Hospital, Porur, Chennai – 600 016. Due to the accident, the claimant slipped into coma and still he is in coma stage. At the time of accident, the claimant was 24 years old, working as a Supervisor – Caples in M/s. LUB DUB Medical Technologies Private Limited earning Rs.8,000/- per month. Since the claimant was in coma, his father, as a guardian, had filed the claim petition, claiming Rs.50,03,000/- as compensation. 3. Before the court below, the father of the claimant examined himself as PW1 besides two other witnesses as Pws 2 and 3. Ex.P1 to P41 were marked on the side of the claimant. On behalf of the respondents in the claim petition, no witnesses were examined or documents marked. The court below, upon consideration of the oral and documentary evidence, awarded a sum of Rs.15,36,960/- as compensation for the injuries sustained by the claimant. 4. The insurance company admits the date, time and manner in which the accident took place as also the liability to pay the compensation. The court below reduced 20% of the compensation amount towards contributory negligence, which is not questioned by both sides. The insurance company is only questioning the quantum of compensation awarded by the court below. 4. The insurance company admits the date, time and manner in which the accident took place as also the liability to pay the compensation. The court below reduced 20% of the compensation amount towards contributory negligence, which is not questioned by both sides. The insurance company is only questioning the quantum of compensation awarded by the court below. 5. The learned counsel for the appellant would mainly contend that the court below grossly erred in awarding a huge sum of Rs.4,80,000/- towards loss of earning for ten years. Having awarded amount under the said head, it is not open to the court below to award another sum of Rs.3,00,000/- towards future loss of life. Further, the court below awarded interest at the rate of 9% per annum instead of 7.5% per annum. 6. The learned counsel for the claimant/first respondent herein would contend that at the time of accident, the claimant was aged 24 years and his entire life was shattered due to the accident. The claimant was in coma stage from the date of accident till date for a period of nearly ten years and his disability was assessed by the Doctor at 100%. Further, the claimant's right leg was amputated above knee and the pain and suffering undergone by the claimant as well as family members is enormous. The parents of the claimant were subjected to mental agony and trauma, which cannot be measured in terms of money. In any event, the compensation awarded by the court below is befitting to the nature and extent of the injuries sustained by the claimant in the accident and he prayed for dismissal of the appeal. 7. Heard both sides. The short point for consideration in this appeal is whether the amount awarded by the court below is fair and reasonable. 8. As stated above, the court below fixed 20% as contributory negligence on the part of the claimant which is not questioned by the claimant before this Court by filing any appeal. 9. In so far as quantum is concerned, the insurance company is mainly aggrieved by the grant of Rs.3,00,000/- towards loss of expectancy of life apart from awarding Rs.4,80,000/- towards loss of earning for ten years. 10. 9. In so far as quantum is concerned, the insurance company is mainly aggrieved by the grant of Rs.3,00,000/- towards loss of expectancy of life apart from awarding Rs.4,80,000/- towards loss of earning for ten years. 10. This is one of the rare cases where a 24 year old boy, at his tender age, had met with an accident in which he sustained grievous injury and resultantly, he slipped into coma immediately after the accident. During the course of treatment extended to him, his right leg above knee was amputated. It is brought to the notice of this Court that even today, the claimant is in coma. It is also seen from the records that at the time of accident, the claimant was hale and healthy and he was working as a Supervisor – Caples in M/s. LUB DUB Medical Technologies Private Limited earning Rs.8,000/- per month. The appointment order as well as salary certificate issued by the employer was produced to this effect under Ex.P36. The father of the claimant was examined as PW1 as the claimant was in coma. He narrated the details of the sufferings which the claimant and his family members are confronting all these years The entire medical history bills and records issued by Malar Hospital, Chennai; Ramachandra Hospital, Porur, including bills produced for purchase of blood under Exs. P2 to P34 would reveal the extent of medical treatment given to the claimant. These documents indicate the extent of pain and suffering and mental agony suffered not only by the claimant but his whole family and it cannot be simply equated in terms of money. The Court below has also categorically extracted all the relevant paragraph of the evidence and also the medical report. 11. With this back ground, we have to analyse whether the quantum of compensation granted by the court below is reasonable or not. The court below granted a sum of Rs.2,00,000/- towards 100% disability sustained by the claimant. For 100% disability sustained by a young boy of 24 years, the amount of Rs.2,00,000/- granted is very meager and it cannot be said to be on the higher side. The court below granted a sum of Rs.2,00,000/- towards 100% disability sustained by the claimant. For 100% disability sustained by a young boy of 24 years, the amount of Rs.2,00,000/- granted is very meager and it cannot be said to be on the higher side. At the same time, when once compensation is awarded under the head of disability, the court below is not justified in granting amount separately under the head of disability and loss of earning for ten years, which the court below had assessed at Rs.4,80,000/-. 12. Taking into consideration the age of the claimant as well as the income, the court below had taken a sum of Rs.6,000/- per month as monthly income and after giving 1/3rd deduction, arrived at the sum of Rs.4,000/- per month as his monthly contribution to the family. But in my opinion, the court below erroneously applied the multiplier 10'. In the case of a 24 year old boy sustaining 100% disability in an accident, the fair and reasonable multiplier to be adopted, as per the Motor Vehicles Act, is 16'. If multiplier 16 is adopted, the compensation to be arrived at will be (Rs.4,000 X 12 X 16) Rs.7,68,000/-, which will be the fair and reasonable amount to be awarded under the head permanent disability. Out of this amount, if 20% contributory negligence is deducted, at Rs.1,53,600/-, then the claimant is entitled to Rs.6,14,400/- towards permanent disability. Consequently, the amount awarded by the court below at Rs.4,80,000/- under loss of earning for ten years are hereby set aside. 13. As rightly pointed out by the learned counsel for the appellant, when once amount was awarded under the heading loss of earning power, the court below ought not to have granted another sum of Rs.3,00,000/- towards future loss of life and therefore, the award of Rs.3,00,000/- granted by the court below is also hereby set aside. 13. For pain and suffering, the court below had granted Rs.1,00,000/-. The above narration of the difficulties faced by the claimant and his family members, the period of hospitalisation and the nature and extent of treatment being taken by the claimant would deserve him higher compensation amount. Accordingly, the amount awarded by the court below at Rs.1,00,000/- towards pain and suffering is hereby enhanced to Rs.2,00,000/-. 15. The above narration of the difficulties faced by the claimant and his family members, the period of hospitalisation and the nature and extent of treatment being taken by the claimant would deserve him higher compensation amount. Accordingly, the amount awarded by the court below at Rs.1,00,000/- towards pain and suffering is hereby enhanced to Rs.2,00,000/-. 15. As far as loss of marital life is concerned, the court below awarded Rs.50,000/-, which I feel is fair and reasonable and therefore it is confirmed. 16. As rightly pointed out by the learned counsel for the claimant/first respondent herein, no amount was awarded by the court below towards attendant charges. For all these years, admittedly, the claimant was in coma and an able person as an attendant, is certainly required. Therefore, necessarily, somebody should be employed by the parents of the claimant to take care of the claimant in hospital. Considering this aspect, I award a sum of Rs.50,000/- to the claimant towards attendant charges, which will be the fair and reasonable compensation. 17. Similarly, no amount was awarded by the court below under the heading Extra Nourishment and transportation. Considering the over all facts and circumstance of the case, the claimant deserves to be granted some amount towards these two heads. Accordingly, the claimant is awarded a sum of Rs.25,000/- towards extra nourishment and transportation charges. 18. If it is so, the total compensation, which the claimant is entitled to will be Rs.19,30,221/- as follows:- Permanent Disability :Rs.6,14,400.00 Pain and suffering:Rs.2,00,000.00 Loss of marital life :Rs. 50,000.00 Attendant charges : Rs. 50,000.00 Extra nourishment and transport :Rs. 25,000.00 Medical Expenses :Rs.7,91,621.79 --------------------- Rs.17,31,021.79 ---------------------- 19. Therefore, what was awarded as compensation by the court below for the injuries sustained by the claimant at Rs.15,36,960/- cannot be said to be on the higher side and as there is no cross appeal filed by the claimant, the award passed by the court below is confirmed and the appeal filed by the insurance company is dismissed. 20. As far as interest is concerned, the court below granted 9% interest since the accident took place in the year 2001. The learned counsel for the appellant would contend that the interest ought to have been awarded at 7.5%. 20. As far as interest is concerned, the court below granted 9% interest since the accident took place in the year 2001. The learned counsel for the appellant would contend that the interest ought to have been awarded at 7.5%. It is also brought to the notice of this Court that the insurance company had deposited Rs.12,36,960/- along with interest at the rate of 9% per annum as per the directions of this Court with liberty to the claimant to withdraw that amount and therefore the claimant had also withdrawn the amount. Under those circumstances, the balance amount due and payable by the insurance company is directed to be deposited with interest at the rate of 7.5% per annum within a period of eight weeks from the date of receipt of a copy of this judgment and on such deposit, the claimant is permitted to withdraw the compensation amount with accrued interest.