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2014 DIGILAW 3296 (MAD)

New India Assurance Co. Ltd. v. B. Mahesh

2014-09-12

G.CHOCKALINGAM, V.DHANAPALAN

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Judgment (V. Dhanapalan, J.) 1. Questioning the quantum of compensation awarded by the Tribunal (V Judge, Court of Small Causes), Chennai made in MCOP No.4352 of 2010 dated 21.10.2013, the insurance company has filed C.M.A.No.994 of 2014. 2. Being dissatisfied with the award amount of Rs.35,46,500/- the claimant has filed Cross Objection in Cross Objn. No.83 of 2014, seeking enhancement of compensation. 3. The brief facts of the case are that on 05.11.2010 at about 11.00 hours, when the claimant was riding his motorcycle bearing Regn. No.TN 22 AR 7844 on Sabari Salai from Madipakkam to Karthikeyapuram, another motorcycle bearing Regn. No.TN 22 AM 7484 rode by its rider in a rash and negligent manner came from opposite side and dashed against the claimant. In the accident, the claimant sustained grievous injuries. A criminal case was registered in Crime No.1491 of 2010 on the file of St. Thomas Mount Traffic Investigation Department. Alleging that the accident was caused due to the rash and negligent riding of the first respondent (deceased), the claimant has filed claim petition claiming compensation of Rs.40 lakhs. 4. Resisting the claim petition, the insurance company has filed counter stating that the accident was only due to gross negligence of the claimant, who rode the motorcycle in a rash and negligent manner and hit against another motorcycle bearing Regn. No.TN 22 AM 7484. The insurance company also denied the age, occupation and income of the claimant. 5. Before the Tribunal, the claimant examined himself as P.W.1 and Dr.N.Saichandran was examined as P.W.2. On the side of the claimant, Exs.P1 to P38 were marked. On the side of the insurance company, no oral or documentary evidence was adduced. 6. Over the claims and rival claims, the Tribunal has formulated the following questions: (1) Whether the petitioner sustained injuries due to the rash and negligent driving of the driver of the 1st respondent's vehicle? (2) Whether the respondents are liable to pay the compensation? (3) Whether the petitioner is entitled for the compensation, if so, what is the just compensation? 7. On consideration of the oral and documentary evidence, the Tribunal held that the accident was caused due to the rash and negligent riding of the rider of the motorcycle/first respondent and the insurance company is liable to pay the compensation. Thus the Tribunal awarded total compensation of Rs.35,46,500/- as under: Loss of income for 2 months months Rs. 7. On consideration of the oral and documentary evidence, the Tribunal held that the accident was caused due to the rash and negligent riding of the rider of the motorcycle/first respondent and the insurance company is liable to pay the compensation. Thus the Tribunal awarded total compensation of Rs.35,46,500/- as under: Loss of income for 2 months months Rs. 37,308.00 Transportation Rs. 53,659.00 Extra nourishment Rs. 10,000.00 Damage to clothes Rs. 1,000.00 Medical expenses Rs. 4,61,127.00 Attender charges Rs. 1,00,000.00 Purchase of artificial leg Rs. 33,000.00 Purchase of artificial leg (future) Rs. 1,00,000.00 Physiotherapy charges Rs. 50,000.00 Future medical expenses Rs. 1,50,000.00 Pain and suffering Rs. 1,00,000.00 Loss of amenities Rs. 1,00,000.00 Loss of earning power Rs.23,50,404.00 Total Rs.35,46,498.00 Rounded off to Rs.35,46,500/- Aggrieved against the award of the Tribunal, the insurance company has filed the appeal and the claimant has filed the cross objection. 8. Heard the learned counsel for the appellant insurance company and the learned counsel for the claimant/cross objector. 9. Learned counsel for the appellant insurance company submitted that the amount awarded by the Tribunal is exorbitant and the amounts awarded under certain heads are against the legal principles and the disability could have been fixed at 60% and not at 75%. The principle adopted by the Tribunal towards the loss of earning by applying multiplier method in the absence of any evidence is improper. The claimant is still running the business and as the business does not involve any manual exertion, the amount awarded under the head loss of earning power is improper. He has also contended that the amounts awarded by the Tribunal under various heads are without any basis. 10. Per contra, Mr.U.M.Ravichandran, learned counsel for the claimant would submit that the Tribunal, on going through the oral and documentary evidence and on looking into various factors and the principles involved in arriving disability factor, particularly the documentary evidence as to the percentage of disability and discharge summary of the Apollo hospital, awarded a just and fair compensation. Therefore, there is no warranting circumstance to interfere with the said award and he would make a plea that the cross objection filed by the claimant need to be examined and the amount may be enhanced under certain heads. 11. Therefore, there is no warranting circumstance to interfere with the said award and he would make a plea that the cross objection filed by the claimant need to be examined and the amount may be enhanced under certain heads. 11. The appellant has not challenged the negligence aspect before the Tribunal and no serious contention has been raised before this Court as to the negligence aspect. As the appellant has challenged only the excessive compensation awarded by the Tribunal, we are not inclined to dwell into the negligence aspect. The Tribunal has taken into consideration the evidence of P.W.1/claimant to the effect that he has sustained injury due to the rash and negligent riding of the first respondent's motorcycle and Ex.P1 – copy of F.I.R. registered against the rider of the motorcycle bearing Regn. No.TN 22 AM 7484, from which it is seen that charge sheet was laid against the rider of the said motorcycle under Sections 279 and 337 I.P.C. and in the absence of any contra evidence on the side of the insurance company before the Tribunal that the negligence is on the part of the claimant, we have no hesitation to confirm such finding rendered by the Tribunal. 12. It is not in dispute that the second respondent is the owner of the offending vehicle which has been insured with the appellant insurance company at the time of accident. In his evidence, the claimant has stated that he was aged about 42 years at the time of accident and that he was the Proprietor and Call Driver of M/s.Sun Tourist Cabs and earning a sum of Rs.25,000/- per month. To prove the same, he filed Ex.P23 Pan Card and income tax returns Ex.P24 for the assessment years 2004 to 2011. For the assessment year 2004-2005, the income was shown as Rs.98,778/-and for the assessment years 2005-2006, 2007-2008, 2008-2009, 2009-2010 and 2010-2011, the income was shown as Rs.1,00,367/-, Rs.1,77,124/-, Rs.1,03,810/- Rs.2,12,248/- and Rs.2,35,450/- respectively. As the accident occurred on 05.11.2010, to arrive the income of the injured claimant, the nearest two assessment years to the date of accident have been taken into account viz., the assessment years 2009-2010 and 2010-2011 and average annual income of the claimant has been fixed at Rs.2,23,849/- and the monthly income has been fixed at Rs.18,654/-. As the accident occurred on 05.11.2010, to arrive the income of the injured claimant, the nearest two assessment years to the date of accident have been taken into account viz., the assessment years 2009-2010 and 2010-2011 and average annual income of the claimant has been fixed at Rs.2,23,849/- and the monthly income has been fixed at Rs.18,654/-. Though the appellant raised a plea that the income arrived by the Tribunal is not correct, on examination of the income tax returns for various assessment years including the relevant period in question, we are not inclined to traverse on such plea of the insurance company as to the income. We are fully satisfied that the income fixed by the Tribunal is justifiable amount and reason assigned thereon is also found to be genuine. Accordingly, we confirm the income fixed by the Tribunal. 13. The next question is what would be the percentage of disability to be taken into consideration to award the compensation as claimed. 14. A perusal of Ex.P3 discharge summary issued by the Apollo Hospital shows that the claimant sustained communited fracture distal third femur (left) and compartment syndrome left leg left foot, for which, open reduction and internal fixation left femur and fasciotomy left leg was done on 06.11.2010. On the same day, re-exploration of left femur and leg wound was done and on 08.11.2010, amputation below knee was done. On 12.11.2010, wound debridement was done and on 15.11.2010, stump closure below knee was done. On discharge, the claimant was advised to do pelvic bridging exercises and stump exercises and to walk with crutches support. 15. Similarly, Ex.P4 – discharge summary issued by Apollo Hospitals, reveals that stump debridement under sedation was done and on discharge, the claimant was advised to do stump exercises/elevation. From the above, it is clear that the claimant was treated as inpatient from 06.11.2010 to 19.11.2010 and he also underwent various surgeries on 06.11.2010, 08.11.2010, 12.11.2010 and 15.11.2010. From Ex.P5 – discharge summary issued by the Apollo Hospitals, it is seen that the claimant was readmitted in the same hospital and treated as inpatient from 25.01.2011 to 01.02.2011, during which period, abscess – incision and drainage was done. 16. In his evidence, Dr.N.Sai Chandran/P.W.2 has stated that the claimant had sustained 60% disability and issued Ex.P35 – disability certificate. 16. In his evidence, Dr.N.Sai Chandran/P.W.2 has stated that the claimant had sustained 60% disability and issued Ex.P35 – disability certificate. The Tribunal extracted the relevant portion of the evidence of P.W.2, which reads as under: “The petitioner sustained crush injury left leg and thigh due to loss of muscles and skin and communition of both bones left and non viability below knee amputation was done. Due to bone and skin infection repeated stump revision amputation was done, fracture of the left thigh bone is fixed with plated screws, the plate and screw fixed are need to be removed, and the petitioner is walking with the help of walker and hence assessed the disability at 60%.” 17. Considering the evidence of P.W.2 and relying on the various decisions of the Supreme Court, the Tribunal held that though the functional disability of the claimant as a driver would be 100%, he would not have any difficulty in continuing his travel business and therefore, fixed the loss of earning power at 75%. The claimant was aged 42 years at the time of accident and as per the II Schedule of the Motor Vehicles Act, for the age group of 41 – 45 years, the proper multiplier to be adopted is 14. Taking the monthly income as Rs.18,654/- and by applying multiplier 14, the Tribunal computed the compensation as Rs.23,50,404/- (Rs.18,654/- x 12 x 14 x 75% = Rs.23,50,404/-) under the head 'loss of earning power'. 18. Further, considering the fact that the claimant underwent amputation of left leg below knee and also considering the prolonged period of treatment, the Tribunal awarded Rs.37,308/-towards loss of income for a period of two months, during which, he would not have attended work. Taking into consideration the fact that the claimant would have spent considerable amount towards transportation and on the basis of Ex.P29 – travel bills, the Tribunal awarded Rs.53,659/- for transportation charges. The claimant took treatment as inpatient and his left leg was amputated below knee, he was in need of assistance of a nurse and therefore, the Tribunal awarded a sum of Rs.1,00,000/- towards attender charges and towards extra nourishment, Rs.10,000/- was awarded. Since the clothes of the claimant got damaged in the accident, the Tribunal awarded Rs.1,000/- towards damage to clothes. 19. Since the clothes of the claimant got damaged in the accident, the Tribunal awarded Rs.1,000/- towards damage to clothes. 19. On a perusal of the medical records, x ray and the disability certificate, it is seen that the claimant sustained communited fracture distal third left femur, for which, he underwent surgeries and his left leg below knee was amputated. Ex.P27 is the photograph showing the amputation of the left leg below knee. Considering the pain and suffering undergone by the claimant during the treatment period and for the subsequent period, the Tribunal has awarded Rs.1,00,000/- under the head 'pain and suffering'. As the claimant could not walk, climb stairs and he can walk only with the help of walker, the Tribunal awarded Rs.1,00,000/- towards loss of amenities. The claimant has produced Ex.P15 – bills issued by Sundaram Prosthetic Orthotic Services to show that he has spent a sum of Rs.33,000/- towards purchase of artificial leg. Accepting the same, the Tribunal awarded Rs.33,000/- towards purchase of artificial leg. Apart from that, the Tribunal also awarded Rs.1,00,000/- for purchase of artificial leg in future. Based on Ex.P14 – receipts for physiotherapy charges, the Tribunal awarded Rs.50,000/- for physiotherapy charges. Considering the fact that the claimant has to incur expenses towards removal of implants in future and also other medical expenses and considering Ex.P21 – estimation for implants removal given by the Apollo Hospitals, the Tribunal awarded Rs.1,50,000/- towards future medical expenses. Altogether, the Tribunal awarded compensation of Rs.35,46,498/-, rounded off to Rs.35,46,500/-. 20. A challenge has been made to compensation awarded by the Tribunal as to the percentage of disability and the computation arrived thereon. Though the Tribunal has taken the loss of earning power at 75% and the doctor/P.W.2 assessed the disability at 60%, taking into account the medical reports and the capacity of the claimant to continue with the avocation, we are not inclined to accept what is now contended by the learned counsel for the appellant insurance company in toto. However, we are of the considered opinion that the percentage of disability arrived by the Tribunal at 75% could be reduced to 65%. Relying on the decision of the Supreme Court in Reshma Kumari and Others Vs. Madan Mohan and another (2013 8 SCC 89), wherein it has been held that multiplier method has to be followed for arriving at just compensation, the Tribunal adopted multiplier method. Relying on the decision of the Supreme Court in Reshma Kumari and Others Vs. Madan Mohan and another (2013 8 SCC 89), wherein it has been held that multiplier method has to be followed for arriving at just compensation, the Tribunal adopted multiplier method. Therefore, we are not inclined to accept the contentions raised by the learned counsel for the appellant insurance company in this regard as well as on other aspects. Accordingly, we fix the compensation in the following manner: We do not find any reason to interfere with the amounts awarded by the Tribunal under the heads “loss of income for two months” and “transportation charges” at Rs.37,308/- and Rs.53,659/- and the same are confirmed. So far as the head “extra nourishment”, the Tribunal has awarded only a meagre sum of Rs.10,000/- and therefore, the same is enhanced to Rs.50,000/-. Considering the manner of accident, we are of the view that the amount awarded under the head “damage to clothing” at Rs.1,000/- is very low. Therefore, we enhance the amount to Rs.10,000/-. In so far as the other heads viz., medical expenses, attendant charges and charges of purchase of artificial limb, the amounts awarded by the Tribunal are just and reasonable and they are confirmed. For purchase of artificial limb, the Tribunal awarded Rs.33,000/- but it awarded Rs.1,00,000/- for purchase of artificial limb in future. It is not in dispute that the claimant has to purchase artificial limb in future but the amount awarded by the Tribunal would have been nearer to Rs.33,000/-. Therefore, we reduce that amount from Rs.1,00,000/- to Rs.33,000/-. The amount of Rs.50,000/-awarded by the Tribunal under the head “physiotherapy charges” is confirmed as just and reasonable. Similarly, the amounts awarded under the other heads except loss of earning power are confirmed. By taking permanent disability at 65%, we compute the loss of earning power as Rs.20,37,016.80 (Rs.18,654/- x 12 x 14 x 65% = Rs.20,37,016.80), rounded off to Rs.20,37,020/-. The amount of compensation awarded by the Tribunal is reduced to Rs.32,15,000/-, as under: Loss of income for 2 months Rs. 37,308.00 Transportation Rs. 53,659.00 Extra nourishment Rs. 50,000.00 Damage to clothes Rs. 10,000.00 Medical expenses Rs. 4,61,127.00 Attender charges Rs.1,00,000.00 Purchase of artificial leg Rs. 33,000.00 Purchase of artificial leg (future) Rs. 33,000.00 Physiotherapy charges Rs. 50,000.00 Future medical expenses Rs. 1,50,000.00 Pain and suffering Rs. 1,00,000.00 Loss of amenities Rs. 37,308.00 Transportation Rs. 53,659.00 Extra nourishment Rs. 50,000.00 Damage to clothes Rs. 10,000.00 Medical expenses Rs. 4,61,127.00 Attender charges Rs.1,00,000.00 Purchase of artificial leg Rs. 33,000.00 Purchase of artificial leg (future) Rs. 33,000.00 Physiotherapy charges Rs. 50,000.00 Future medical expenses Rs. 1,50,000.00 Pain and suffering Rs. 1,00,000.00 Loss of amenities Rs. 1,00,000.00 Loss of earning power Rs.20,37,020.00 Total Rs.32,15,114.00 Rounded off to Rs.32,15,000/- 21. In the result, the appeal in C.M.A.No.994 of 2014 is allowed in part and the cross objection is dismissed. No costs. Consequently, connected miscellaneous petition is closed. 22. It is stated that the appellant insurance company has already deposited the entire compensation amount awarded by the Tribunal along with proportionate interest. Hence the claimant is permitted to withdraw the reduced compensation amount along with proportionate interest, less the amount already withdrawn and the appellant insurance company is permitted to withdraw the excess amount along with proportionate interest.