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2014 DIGILAW 812 (MAD)

R. HARRISH v. G. DIVAKARAN

2014-04-01

S.RAJESWARAN, S.VAIDYANATHAN

body2014
JUDGMENT S. Vaidyanathan, J. 1. These appeals arise from the judgment in M.C.O.P. No. 1881 of 2008, dated 9.8.2011, on the file of the Motor Accidents Claims Tribunal (IV Court of Small Causes), Chennai, in and by which the Tribunal has awarded a sum of Rs. 27,84,500 as compensation with interest at 7.5 per cent per annum to the claimant, namely, Harish who sustained grievous injuries in the road accident on 4.4.2008. The appellant in C.M.A. No. 1077 of 2012, who is the claimant, has come forward with the appeal, being not satisfied with the quantum of compensation awarded by the Claims Tribunal, whereas appellant in C.M.A. No. 1258 of 2013, Oriental Insurance Co. Ltd., has come forward with the appeal, questioning the quantum of compensation awarded by the Tribunal. 2. For the sake of convenience, claimant will be referred to as 'the appellant' and Oriental Insurance Co. Ltd. will be referred to as 'the respondent No. 1' and the owner of the vehicle will be referred to as 'the respondent No. 2'. 3. Necessary relevant facts are stated hereunder to appreciate the case of both the parties and to find out whether they are entitled to the reliefs as prayed for by them in these appeals respectively. 4. Appellant is a student in Engineering College, respondent No. 3. On 4.4.2008 at about 08:30 hours, while the appellant was travelling in a bus bearing registration No. TN 23-C 9576 from West Mambalam to reach his college along Tambaram-M.M. Forgings, Karanaithangal village, a lorry bearing registration No. TN 02-H 7164 came in a rash and negligent manner from opposite direction and dashed against the rear right wheel of the bus, as a result of which the appellant along with three students sustained grievous injuries. The accident occurred due to rash and negligent driving of the driver of the lorry. Appellant has filed a claim petition in M.C.O.P. No. 1881 of 2008 before the Tribunal, claiming a compensation of Rs. 50,00,000. 5. The claim petition has been resisted by the respondent No. 1, insurance company, by filing a detailed counter-affidavit, disputing the manner of the accident stating that the accident was not due to rash and negligent driving of the lorry, but there was contributory negligence on the part of appellant since he kept his hand protruding beyond the windowsill of the bus. The injuries sustained by the claimant were disputed and stated that the compensation claimed is highly excessive. 6. The Tribunal, to determine the just compensation, examined the claimant and two others as P.Ws. 1 to 3 and marked 13 documents as Exhs. P1 to P13. No evidence was adduced on behalf of the respondents. 7. On evaluation of the pleadings and evidence both oral and documentary, the Tribunal awarded a sum of Rs. 27,84,500 as compensation payable by the respondent No. 1, insurance company, together with interest at 7.5 per cent per annum from the date of filing of the petition till the date of payment. Aggrieved by the same, both the claimant and the insurance company have come forward with the present appeals. 8. The learned counsel appearing for the claimant would contend that the Tribunal has not adequately compensated under different heads, viz., permanent disability since the claimant's right hand got amputated up to shoulder level, pain and suffering, mental agony, loss of earning capacity, loss of amenities of life including loss of marriage, etc. He also pointed out that the Tribunal has not considered the future prospects of the claimant. 9. Per contra, the learned counsel appearing for the respondent No. 1, the insurance company, would submit that the Tribunal had erroneously awarded a huge compensation contrary to the principles for awarding the compensation. He pointed out that awarding Rs. 2,00,000 towards loss of education, Rs. 50,000 for transport, Rs. 25,000 towards extra nourishment, Rs. 1,00,000 towards medical expenses, Rs. 1,40,300 towards future medical expenses, Rs. 50,000 for attendant charges, Rs. 75,000 towards mental agony and Rs. 1,00,000 towards pain and suffering, is excessive and awarding Rs. 18,43,200 towards loss of earning capacity is highly speculative and contrary to the decision of the Hon'ble Apex Court. Therefore, the learned counsel sought for reducing the award amount. 10. Heard the learned counsel appearing for the appellant-claimant and the respondent No. 1, insurance company. We have also gone through the documents made available on record. 11. It is not in dispute that the claimant was aged 18 years and he was an engineering student at the time of accident. It is also not in dispute that the claimant had sustained grievous injuries and his right hand got amputated up to shoulder level. We have also gone through the documents made available on record. 11. It is not in dispute that the claimant was aged 18 years and he was an engineering student at the time of accident. It is also not in dispute that the claimant had sustained grievous injuries and his right hand got amputated up to shoulder level. PW 2 is the Medical Officer and she deposed that she examined the claimant and found that he suffered AE amputation of right hand the claimant was having artificial limb as stump level is 2 inches. She assessed the permanent disability at 80 per cent. The Tribunal has fixed the disability at 80 per cent and taking note of the fact that his movement was curtailed due to his amputation which hampered him in carrying out his day-to-day work and such hindrance will be throughout his life, the Tribunal awarded the loss of earning capacity by adopting multiplier 16 while fixing the monthly salary at Rs. 12,000 based on the fact that the claimant was an engineering student and awarded a sum Rs. 18,43,200 towards loss of earning capacity. 12. It is to be noted that compensation for loss of earning power/capacity has to be determined based on various aspects including the permanent injury/disability. It cannot be disputed that apart from the fact that the permanent disability affects the earning capacity of the person concerned undoubtedly, one has to forego the other personal comforts and even for normal avocation, one has to depend on others. In the case on hand, as per Exh. P13, disability certificate, the claimant had sustained 80 per cent disability since his right hand got amputated up to his shoulder level, as a result of which the claimant was unable to do his day-to-day work at his tender age and he will not only physically but also mentally suffer throughout his life by cursing his fate and it is obvious that his future movement is also curtailed due to his amputation as he cannot ride any vehicle and it is reported that due to this, he lost his education also. 13. Considering the fact that claimant was 18 years of age at the time of occurrence of the accident, applying the principle of Smt. Sarla Verma and Others Vs. 13. Considering the fact that claimant was 18 years of age at the time of occurrence of the accident, applying the principle of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, AIR 2009 SC 3104 , we are of the view that for calculating the amount of compensation, the multiplier 16 adopted by the Tribunal is erroneous and it should be 18. The Tribunal has fixed the monthly income of the claimant at Rs. 12,000 based on the fact that claimant was an engineering student and after completion of his studies, there would be every likelihood of earning Rs. 40,000 per month. We agree with the view of the Tribunal in fixing the monthly income of the claimant at Rs. 12,000. The issue regarding calculation of future prospects came up before the Hon'ble Supreme Court in Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, AIR 2014 SC 1052 , wherein, having followed the decision in Santosh Devi Vs. National Insurance Company Ltd. and Others, AIR 2012 SC 2185 and on considering that claimant therein was aged 24 years who suffered permanent functional disability at 85 per cent, the Hon'ble Supreme Court has held that the claimant is entitled to 50 per cent increment towards future prospects. 14. Thus, the total amount which is awarded under the head of 'loss of earning capacity', including 50 per cent for future prospects, works out to be Rs. 23,32,800 (Rs. 12,000 x 12 x 18 x 90/100). 15. As regards compensation awarded by the Tribunal under the heads of 'pain and suffering' and 'loss of marital prospects', considering the nature of the injury sustained by the claimant, we are of the view that the compensation awarded by the Tribunal at Rs. 1,00,000 and Rs. 2,00,000 respectively appears to be on lower side and they require to be enhanced in view of the decision in G. Ravindranath @ R. Chowdhary Vs. E. Srinivas and Another, AIR 2013 SC 2974 . In the said decision, the Hon'ble Supreme Court has granted Rs. 4,00,000 towards loss of amenities of life and prospects of marriage and Rs. 3,00,000 for pain and suffering to the claimant therein, who was a 19-year-old student studying in PUC second year and sustained grievous injuries. Accordingly, the claimant is entitled to Rs. 5,00,000 towards loss of amenities of life and prospects of marriage and Rs. 4,00,000 towards loss of amenities of life and prospects of marriage and Rs. 3,00,000 for pain and suffering to the claimant therein, who was a 19-year-old student studying in PUC second year and sustained grievous injuries. Accordingly, the claimant is entitled to Rs. 5,00,000 towards loss of amenities of life and prospects of marriage and Rs. 3,00,000 towards pain and suffering. 16. As regards the compensation awarded by the Tribunal under other heads, viz., loss of education, transport to hospital and future transport expenses, extra nourishment, damage to cloth, medical expenses, future medical expenses and attendant charges, we are of the view that the Tribunal has adequately awarded and there is no need to modify the same. 17. Accordingly, the award of the Tribunal is modified as follows: 18. As regards the award of interest, the Tribunal has rightly awarded 7.5 per cent per annum from the date of claim petition till the date of deposit. Therefore, we do not find any reason to interfere with the same and the same is confirmed. 19. For the foregoing reasons, the appeal in C.M.A. No. 1258 of 2013 preferred by Oriental Insurance Co. Ltd. is dismissed and the appeal in C.M.A. No. 1077 of 2012 preferred by the claimant is partly allowed. Consequently, connected M.Ps. if any are closed. Accordingly, appellant in C.M.A. No. 1258 of 2013 is directed to deposit the above modified award amount, i.e., Rs. 37,74,100 with accrued interest at 7.5 per cent per annum from the date of petition till the date of payment, within a period of 8 weeks from the date of receipt of a copy of this order, after deducting the amount if any already paid pursuant to the interim orders of this court. On such deposit being made, the claimant is permitted to withdraw award amount on filing a proper application before the Tribunal.