Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 3786 (MAD)

New India Assurance Co. Ltd. v. B. Karthik Raja

2013-11-04

K.KALYANASUNDARAM, R.BANUMATHI

body2013
Judgment : R. Banumathi, J. 1. Questioning the quantum of compensation awarded by the Tribunal in M.C.O.P.No.3709 of 2006, dated 01.03.2011, for the injuries sustained by the claimant -B.Karthik Raja, the insurance company has preferred the appeal in C.M.A.No.2298 of 2011. Seeking enhancement of compensation, the claimant preferred cross objection in Cross Objection No.76 of 2012. 2. Brief facts are that on 31.07.2003 at 14.00 hours, when the claimant was riding his motor cycle bearing Regn. No.TN 59 S 5598 on Conran Smith Road, Royapettah from north to south, the lorry (water tanker) bearing Regn. No.TN 21 T 7596 belonging to the second respondent, driven by its driver in a rash and negligent manner, came from behind and hit the backside of the claimant's motorcycle and dragged him for a distance of few metres. In the accident, the claimant sustained grievous injuries all over the body. A case was registered in Crime No.353 of 2003 on the file of J5 Sastri Nagar Police Station for the offence under Section 337 I.P.C. and Section 184 of Motor Vehicles Act. The claimant was aged 19 years at the time of accident and studying first year B.Tech in S.R.M. Institute of Science and Technology. Alleging that the accident was due to the rash and negligent driving of the driver of the second respondent's lorry, the claimant has filed the claim petition, claiming compensation of Rs.45 lakhs. 3. Resisting the claim petition, the appellant insurance company filed a counter affidavit, denying the manner of accident and its liability. The appellant insurance company also denied the injuries sustained by the claimant, period of treatment, disability suffered and the expenses incurred by him. 4. To substantiate the claim, the claimant examined himself as P.W.1. Dr.K.J.Mathiazhagan, who treated the claimant was examined as P.W.2. On the side of claimant, Exs.P1 to P13 were marked. On the side of insurance company, P.Jegannathan, Investigator of General Insurance was examined as R.W.1 and Wordsworth Manivannan, Registrar of S.R.M. University was examined as R.W.2 and Exs.R1 to R3 were marked. 5. Upon consideration of the oral and documentary evidence, the Tribunal held that the accident was due to the rash and negligent driving of the driver of the second respondent's lorry and the appellant insurance company is liable to pay the compensation. 5. Upon consideration of the oral and documentary evidence, the Tribunal held that the accident was due to the rash and negligent driving of the driver of the second respondent's lorry and the appellant insurance company is liable to pay the compensation. The claimant was aged 19 years at the time of accident and studying first year B.Tech in S.R.M. Institute of Science and Technology. The claimant, being a student, the Tribunal taken the notional income of the claimant as Rs.7,500/-. The claimant sustained three fractures and P.W.2 doctor assessed the disability at 65%. Since the claimant sustained three fractures and injury in the urinary path, the Tribunal fixed the disability at 60%, adopted multiplier method and awarded Rs.9,72,000/-(Rs.7,500/- x 12 x 18 x 60% = Rs.9,72,000/-) for future loss of income/earning power. The Tribunal awarded total compensation of Rs.17,60,000/- as under: Due to oversight, the Tribunal has not added Rs.1,000/-awarded by it towards 'Damages to clothing and articles' and committed arithmetical mistake in calculating the total compensation as Rs.17,59,000/- instead of Rs.17,60,000/-. 6. In the accident, the claimant sustained fracture of dislocation of joint and fracture of pelvis and fracture shaft of right femur and also fracture of left transverse process L5 and multiple fracture injuries all over the body and also urethral injury. After the accident, the claimant was admitted in Apollo Hospitals on 31.07.2003 and taken treatment till 18.10.2003 and discharged on 18.10.2003. Ex.P3 is the discharge summary issued by the Apollo Hospitals for the first spell of treatment. Ex.P3 contains the nature of operative treatment given to the claimant. Ex.P4 is the Urologist's report. By perusal of Ex.P4, it is seen that the claimant also suffered injuries in the urinary path. On 11.10.2003, he had undergone cystoscopy and visual internal urethrotomy and prior to discharge, the urethral catheter was removed and he was passing urine very well. The claimant went for review on 11.12.2003 and was found doing well. 7. The claimant was again admitted in the hospital on 20.10.2005 and discharged on 28.10.2005. During that spell of treatment, the claimant underwent surgery on 27.10.2005 for removal of implants (sacro iliac joint) and removal of implants right femur (plate). Ex.P5 is the discharge summary issued by the Apollo Hospitals for the second spell of treatment taken by the claimant. 7. The claimant was again admitted in the hospital on 20.10.2005 and discharged on 28.10.2005. During that spell of treatment, the claimant underwent surgery on 27.10.2005 for removal of implants (sacro iliac joint) and removal of implants right femur (plate). Ex.P5 is the discharge summary issued by the Apollo Hospitals for the second spell of treatment taken by the claimant. By perusal of Ex.P5, it is seen that the fracture shaft right femur with plate in situ was removed. 8. In his evidence, the claimant/P.W.1 stated that he is having pain and stiffness in joint in the right leg and that he is not in a position to fold the right leg and there is no 100% movement of the right leg. P.W.1 stated that because of the accident, he discontinued his studies and that he continues to have pain in the back and therefore, he is unable to do any work. 9. In his evidence, P.W.2 - Dr.K.J.Mathiazhagan stated that he examined the claimant and found that the claimant is having pain and stiffness in the right leg and there is shortening of the right leg by 2 inches. P.W.2 stated that the claimant is unable to walk fast and climb staircase/sit cross-legged. P.W.2 assessed the permanent disability at 65% and issued Ex.P13 disability certificate. 10. R.W.2, who is working as Registrar in S.R.M. University has stated that the claimant joined First year B.Tech (Food Processing and Engineering) Course and due to the accident, he discontinued the same and left the college on 31.07.2003. From the evidence of P.Ws.1 and 2, it is seen that the claimant could not continue his studies. 11. The Tribunal observed that in all cases of injury or permanent disablement, multiplier method cannot be mechanically applied and that it depends upon various factors. However, referring to the evidence of P.Ws.1 and 2, the Tribunal held that the accident has spoiled the employment opportunities and future earning power of the claimant and therefore, held that it is a fit case for adopting multiplier method. The Tribunal has taken the monthly income of the claimant at Rs.7,500/- per month and taking the disability at 60% and adopting multiplier 18, calculated the future loss of income/earning power at Rs.9,72,000/- (Rs.7,500/- x 12 x 18 x 60% = Rs.9,72,000/-). 12. The Tribunal has taken the monthly income of the claimant at Rs.7,500/- per month and taking the disability at 60% and adopting multiplier 18, calculated the future loss of income/earning power at Rs.9,72,000/- (Rs.7,500/- x 12 x 18 x 60% = Rs.9,72,000/-). 12. As discussed earlier, when the claimant was admitted in Apollo Hospitals for the second time in 2005 for implant removal and the fracture shaft right femur with plate was removed. By perusal of Ex.P5, it is seen that at the time of discharge, normal physical activities was advised to the claimant. By perusal of Ex.P5 disability certificate, it is seen that even though the claimant had sustained 60% disability, there is no impairment or deprivation with respect to the whole body. Of course, because of the accident, the claimant could not continue his studies at that time. But after completing the course of treatment, the claimant could have continued his studies. 13. In RAJ KUMAR VS. AJAY KUMAR AND ANOTHER, ( (2011) 1 SCC 343 = 2010) (2) TN MAC 581 (SC) = 2011 ACJ 1 ), it was held that the Tribunal/Courts should adopt multiplier method only if there is permanent disablement with respect to the whole body. Considering the steps in deciding the permanent disability and also the quantum of loss of future earning capacity, the Honourable Supreme Court held as under: "12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement; (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. The same principle was reiterated in the case of GOVIND YADAV VS. NEW INDIA INSURANCE COMPANY LIMITED, ( (2011) 10 SCC 683 = 2012 ACJ 28) and LAXMAN VS. DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LIMITED AND ANOTHER, (2011) 10 SCC 756 = 2012 ACJ 191 ). 14. In this case, though the claimant had sustained 60% disability, there is no impairment with respect to the whole body in carrying on the avocation. We are of the view that the Tribunal was not right in adopting the multiplier method. Having regard to the nature of injuries and the disability suffered by the claimant, we are of the view that a lumpsum compensation of Rs.5,00,000/-could be awarded towards future loss of income/earning power and accordingly, Rs.5,00,000/-is awarded for future loss of income/earning power. 15. We are of the view that the Tribunal was not right in adopting the multiplier method. Having regard to the nature of injuries and the disability suffered by the claimant, we are of the view that a lumpsum compensation of Rs.5,00,000/-could be awarded towards future loss of income/earning power and accordingly, Rs.5,00,000/-is awarded for future loss of income/earning power. 15. As pointed out earlier, the claimant sustained fracture injuries and the fractures are malunited and the claimant has difficulty in walking, stiffness in the right leg and knee joint and there is also shortening of the right leg by two inches. The Tribunal has not awarded any compensation towards loss of amenities and therefore, a sum of Rs.2,00,000/- is awarded towards loss of amenities. 16. The Tribunal has not awarded any compensation towards attendant charges. Having regard to the nature of treatment taken by the claimant, an amount of Rs.25,000/- is awarded towards attendant charges. 17. For the injuries sustained by the claimant, he had taken treatment as inpatient for about 78 days and considerable amount would have been spent by his family members towards transport charges. Therefore, the amount of Rs.5,000/- awarded by the Tribunal towards transport charges is maintained as reasonable. 18. In the accident, the claimant was dragged to some distance by the lorry, after being hit by the same and his clothes have been damaged. Considering the same, the Tribunal has awarded Rs.1,000/-towards damages to cloth and articles and the same is maintained. 19. Considering the fact that the claimant has taken treatment in the hospital for more than two months, the Tribunal has awarded Rs.5,000/-towards extra nourishment and the same is maintained. 20. The claimant was admitted in the hospital on 31.07.2003 and discharged on 18.10.2003 and again in the year 2005, he was admitted on 20.10.2005 and discharged on 21.10.2005. Taking into account the nature of treatment taken by the claimant and relying upon Ex.P6 series - medical bills, the Tribunal has awarded Rs.6,77,000/-towards medical expenses and the same is maintained as reasonable. 21. The claimant has sustained fracture of pelvis, right femur and L5 in his back and he has also sustained injury in the urinary path. The claimant was treated as inpatient and for nearly more than two months he was in the hospital and he underwent number of surgeries. 21. The claimant has sustained fracture of pelvis, right femur and L5 in his back and he has also sustained injury in the urinary path. The claimant was treated as inpatient and for nearly more than two months he was in the hospital and he underwent number of surgeries. Even after treatment, due to the disablement suffered by the claimant, he continues to suffer. Taking into account the pain suffered by the claimant, the Tribunal has awarded Rs.1,00,000/- towards pain and suffering. In our considered view, the said amount awarded by the Tribunal is reasonable and the same is maintained. 22. The quantum of compensation awarded by the Tribunal at Rs.17,60,000/-is reduced to Rs.15,13,000/-, rounded off to Rs.15,15,000/-and the reduced compensation is payable with interest at the rate of 7.5% per annum. 23. The amount of compensation awarded by the Tribunal at Rs.17,60,000/- is reduced to Rs.15,15,000/-as under: 24. In the result, the compensation awarded by the Tribunal (II Judge, Court of Small Causes), Chennai in M.C.O.P.No.3709 of 2006 at Rs.17,60,000/- is reduced to Rs.15,15,000/- payable with interest at the rate of 7.5% per annum. Accordingly, the appeal filed by the insurance company in C.M.A.No.2298 of 2011 is partly allowed. The Cross Objection filed by the claimant in Cross Objection No.76 of 2012 is dismissed. No costs. Consequently, connected miscellaneous petition is closed. 25. By order dated 25.07.2011 in M.P.No.1 of 2011 in C.M.A.No.2298 of 2011, interim stay was granted on condition that the insurance company should deposit a sum of Rs.10 lakhs along with proportionate interest and costs. Subsequently, by order dated 23.07.2013 in M.P.No.1 of 2013 in C.M.A.No.2298 of 2011, the claimant was permitted to withdraw a sum of Rs.11,41,410/-. 26. Having regard to the above, the appellant insurance company is directed to deposit the balance amount of compensation, less the amount already deposited, along with accrued interest within a period of four weeks from the date of receipt of a copy of the judgment. On such deposit, the claimant is permitted to withdraw the entire amount deposited.