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2015 DIGILAW 3845 (MAD)

National Insurance Company Ltd. v. L. Paulraj

2015-12-22

N.KIRUBAKARAN, V.RAMASUBRAMANIAN

body2015
JUDGMENT : N. KIRUBAKARAN, J. 1. How an accident can play havoc in the life of a person could be well understood by this case. 2. The first respondent, on 06.05.2004, travelled along with his mini fishing boat in a mini lorry. The driver drove the lorry in a rash and negligent manner and the lorry capsized. In the accident, the first respondent suffered injuries all over his body, especially in the spinal cord. He is unable to sit, walk and cannot attend his day-to-day works. He was immediately admitted in Thiraviam Orthopaedic Hospital, Nagercoil and thereafter, shifted to Kerala Institute of Medical Sciences, where he took prolonged treatment as inpatient. Because of the injuries, the claimant suffered 100% disability and therefore, filed a claim petition which was contested by the third respondent appellant. However, the Tribunal held that the second respondent driver was rash and negligent in driving the mini lorry and fastened the liability on the third respondent appellant to the tune of Rs. 25,00,000/- (Rupees Twenty Five Lakhs only) even though the Tribunal determined the compensation of Rs. 38,40,000/- (Rupees Thirty Eight Lakhs Forty Thousand only), as the claim was restricted to the tune of Rs. 25,00,000/-. The said award of the Tribunal is being questioned by the Insurance Company, both on liability as well as quantum. The first respondent/claimant also filed a counter claim for enhancement. 3. The learned Counsel for the appellant would submit that the mini lorry is a goods carriage vehicle and the first respondent claimant is only an unauthorised passenger and therefore the Insurance Company is not liable to pay the compensation. Secondly, he would find fault with the Tribunal for not giving any finding with regard to the plea of gratuitous passenger. Thirdly, he would submit that the Tribunal fixed an exorbitant amount of Rs. 20,000/- p.m in the absence of any material evidence in that regard. The appropriate multiplier 15' should have been fixed as per the judgment in Sarla Verma and Others v. Delhi Transport Corporation and another reported in 2009 (2) TN MAC 1 (SC), whereas the Tribunal fixed multiplier 16' and Rs. 3,32,703/- awarded towards medical expenses is on the higher side. Hence, he seeks to allow the appeal. 4. The appropriate multiplier 15' should have been fixed as per the judgment in Sarla Verma and Others v. Delhi Transport Corporation and another reported in 2009 (2) TN MAC 1 (SC), whereas the Tribunal fixed multiplier 16' and Rs. 3,32,703/- awarded towards medical expenses is on the higher side. Hence, he seeks to allow the appeal. 4. On the other hand, the learned Counsel appearing for the claimant would submit that the claimant only travelled as the owner of the goods in the mini lorry, as he carried his mini Yahama fishing boat after finishing his fishing voyage and the same is proved by the evidence of PW.1 as well as Ex.P1-FIR, apart from the report filed by the Insurance Company in Ex.R1. The claimant proved that the mini lorry was driven in a rash and negligent manner by examining himself as PW.1 and also through Ex.P1-FIR. Further it is reported in Ex.R1 namely the report of the appellant investigating officer along with annexure that the second respondent driver was accused in C.C.No.315 of 2014 on the file of the learned Judicial Magistrate, Nanguneri on 02.11.2004. Therefore, the rash and negligent driving of the mini lorry by the second respondent was categorically proved by the claimant. Hence as insurer of the mini lorry, the Insurance Company was rightly fastened with the liability by the Tribunal. Further, he would submit that the Tribunal did not take into consideration the future prospects as the claimant was aged about 36 years at the time of accident. Therefore, he seeks to include future prospects. Even amounts under important heads were not awarded including the damage caused to the fishing boat. Though the claimant restricted his claim to Rs. 25,00,000/-, the Tribunal having found that the claimant is entitled to Rs. 41,72,103 apart from the compensation towards pain and sufferings and disability, the Tribunal should not have awarded only Rs. 25,00,000/-. Therefore, he seeks for enhancement. He relied upon the judgment of the Honourable Supreme Court in Neeta W/o Kallappa Kadolkar and others v. Divisional Manager, MSRTC, Kolhapur reported in 2015 (1) TN MAC 161 (SC) and this Court's judgment in R.Mallika and two others v. A. Babu and four others reported in 2015 (2) TN MAC 171 seeking higher monthly income. 5. Heard the parties and perused the materials available on records. 6. 5. Heard the parties and perused the materials available on records. 6. The accident which occurred on 06.05.2004, has been proved by Ex.P1- FIR as well as by the report filed by the appellant in Ex.R1. It is proved by the claimant that he travelled as the owner of the goods in the mini lorry insured with the appellant insurance company. Ex.P1-FIR dated 06.05.2004, itself categorically stated that the claimant was travelling in the mini lorry along with his fishing boats belonging to him. Further, the said fact had been admitted by Insurance Company's Investigator report dated 07.03.2005, that the claimant travelled in the mini lorry with his fishing boat as owner which has been marked as Ex.R1. 7. It is disheartening to note that the claimant suffered serious injuries in the accident leading to vegetative status of the claimant. He sustained the following injuries as per Ex.P3 discharge summary dated 09.06.2004 : Compression Fracture D12. Fracture Transverse Process L1, 2, L4 Paraplegia Multiple Fracture Ribs Fracture Superior & Inferior Pubic Rami Rt Fracture At Temporal Bone. The medical records Ex.P2 to P11 would categorically prove that the claimant sustained injuries in the spinal cord and he is unable to move both limbs and neurologically, he sustained Paraplegia D12 level. He lost sensation below L1 dermatome. He was operated for spinal fixation with moss Miami system in Kerala Institute of Medical Sciences (KIMS), Trivandrum. When he was about to be operated for spinal fixation on 11.05.2004, the claimant developed cardiac arrest on table before the surgery. Thereafter he was revived and spinal fixation had been done on 19.05.2004. PW.1 claimant is immobile and therefore, he was unable to appear before the Tribunal even for giving evidence and only on commission, he was examined. PW.3-Doctor spoke about the injuries and disability sustained by the claimant categorically. Disability certificate Ex.P23 would show that the claimant sustained 100% disability. PW.1 categorically stated that he suffered spinal cord injury and he is unable to sit, stand and walk and raise from the bed and he is unable to depend upon others for his day-to-day activities. The said position is also confirmed by the PW.3 Doctor's evidence. 8. The claimant also suffered rib fractures and Urethra damage, Cystic Urethroscopy and Urethrogram revealed a false passage. The said position is also confirmed by the PW.3 Doctor's evidence. 8. The claimant also suffered rib fractures and Urethra damage, Cystic Urethroscopy and Urethrogram revealed a false passage. An optical internal urethrotomy was carried out and an Foleys catheter is left per via naturalas as revealed in Ex.P6 Certificate issued by Dr. J. Mathias Hospital, Nagercoil. In view of the aforesaid position and other injuries, the claimant sustained 100% disability which was rightly reached by the Tribunal based on documentary and oral evidence. Consequently, the claimant lost 100% earning capacity, as he could not do any work. 9. It was claimed by the first respondent/claimant that he is a fisherman and he had been doing fishing right from the beginning, by travelling throughout Indian territorial waters and he was earning about Rs. 25,000/- p.m. However, there is no proof except oral evidence of PW2, a similarly placed person like the claimant who is doing fishing. However, the Tribunal determined the monthly income at Rs. 20,000/- as he would be going for fishing for 15 days. The contention of the learned Counsel for the appellant that in the absence of any material evidence, the Tribunal should not have fixed Rs. 20,000/- p.m in the absence of material evidence has got force. However, the learned Counsel appearing for the first respondent claimant relied upon the judgment of the Honourable Supreme Court in Neeta W/o Kallappa Kadolkar and others v. Divisional Manager, MSRTC, Kolhapur reported in 2015 (1) TN MAC 161 (SC) in which the Honourable Supreme Court determined the monthly salary of a Carpenter at Rs. 12,000/-. The said judgment was also followed by this Court in R.Mallika and two others v. A. Babu and four others reported in 2015 (2) TN MAC 171 to contend that Rs. 12,000/- p.m has to be fixed as monthly income and further 50% as to be added as future prospects as the claimant age was 36 at the time of accident. However, the accident occurred in 2004 and therefore the judgment in Neeta case cannot be applied as the said judgment is with regard to 2011 accident. The Honourable Apex Court in Syed Sadiq v. Divisional Manager, United India Insurance Company Limited reported in 2014 (1) TNMAC 459 determined Rs. 6,500/- monthly income of a carpenter. However, the accident occurred in 2004 and therefore the judgment in Neeta case cannot be applied as the said judgment is with regard to 2011 accident. The Honourable Apex Court in Syed Sadiq v. Divisional Manager, United India Insurance Company Limited reported in 2014 (1) TNMAC 459 determined Rs. 6,500/- monthly income of a carpenter. The Honourable Supreme Court in Sarla Verma and Others v. Delhi Transport Corporation and another reported in 2009 (2) TN MAC 1 (SC) and in Santosh Devi v. National Insurance Co., Ltd., reported in 2012 (2) TN MAC 1 (SC) held that 50% has to be added towards future prospects. Therefore, 50% is required to be added as future prospectus and the monthly income would be Rs. 6,500/- + 50% = Rs. 9,750/-. 10. Since 100% disability is sustained by the claimant, the Tribunal rightly adopted the multiplier to arrive at the compensation. As rightly pointed out by the learned Counsel appearing for the appellant, the Tribunal instead of taking 15' multiplier as per Sarla Verma and Others v. Delhi Transport Corporation and another reported in 2009 (2) TN MAC 1 (SC), wrongly took 16'. Therefore, following the judgment in Sarla Verma case the multiplier 15' is adopted and the loss of income is re-determined as follows:- Rs. 9,750/- x 15 x 12 = Rs. 17,55,000.00 11. The claimant sustained serious injuries in the spinal cord and he was operated and he has been taking treatment throughout and he is bedridden. The pain and sufferings and mental agony underwent by the claimant cannot be estimated. Therefore, a sum of Rs. 2,00,000/- is awarded towards pain and suffering. No amount was awarded towards transportation. The claimant was first admitted in Thiraviam Orthopaedic Hospital, Nagercoil and later admitted in Kerala Institute of Medical Sciences (KIMS), Trivandrum, and thereafter he was admitted in Dr. J. Mathias Hospital, Nagercoil and Ananthapuri Hospital and Research Institute, Thiruvananthapuram and Sushrushath Hospital, Nagercoil. He was treated as an inpatient from 08.05.2004 to 09.06.2004 in Kerala Institute of Medical Sciences(KIMS), Trivandrum, again on 04.11.2004 to 06.11.2004 and again from 18.11.2005 to 06.01.2006 in Ananthapuri Hospital and Research Institute, Thiruvananthapuram. He has been continuously taking Physiotherapy. Therefore, the travelling expenses would have been more. Hence, a sum of Rs. 1,00,000/- is awarded as travelling expenses. 12. No amount was awarded towards loss of amenities. As he is completely immobile, a sum of Rs. He has been continuously taking Physiotherapy. Therefore, the travelling expenses would have been more. Hence, a sum of Rs. 1,00,000/- is awarded as travelling expenses. 12. No amount was awarded towards loss of amenities. As he is completely immobile, a sum of Rs. 2,00,000/- is awarded towards loss of amenities. A sum of Rs. 1,00,000/- is awarded towards extra nourishment. As his lower limb became immobile and loss of sensation, he cannot perform marital obligations to his wife and therefore for the loss of marital pleasure a sum of Rs. 2,00,000/- is awarded. Taking into consideration the prolonged treatment and also the dependency of the claimant and others throughout his life, a sum of Rs. 2,00,000/- is awarded towards attender charges. As per the judgment of the Honourable Supreme Court in B.Kothandapani v. Tamil Nadu State Transport Corporation Limited reported in 2011 (6) SCC 420 , in view of 100% disability sustained by the claimant, Rs. 2,00,000/- is awarded towards disability. Towards medical expenses, the claimant incurred a sum of Rs. 3,32,703/- as per Ex.P12 to P19 - medical receipts and the Tribunal rightly awarded the said amount and the same is confirmed. For future medical expenses, no amount was awarded by the Tribunal. Considering the pathetic condition of the claimant and necessity to take continuos treatment, a sum of Rs. 2,00,000/- is awarded, as per the judgment of Apex Court in Sanjay Verma v. Haryana Roadways reported in 2014 (3) SCC 210 . 13. The Tribunal determined the compensation at Rs. 41,72,703/- apart from the amounts towards pain and sufferings and other amounts, awarded only Rs. 25,00,000/- as claimed by the claimant. Irrespective of the claim made, what has to be awarded should be just and proper compensation, even more than compensation claimed as declared by the Honourable Apex Court judgment Nagappa v. Gurudayal Singh and others reported in 2003 (2) SCC 274 . It can neither be excessive nor less. Therefore, this Court, in an attempt to "console, comfort and compensate" the victim Rs. 25,00,000/-(Rupees Twenty Five Lakhs Only) awarded by the Tribunal is enhanced to Rs. 34,87,703/- (Rupees Thirty Four Lakhs Eighty Seven Thousand Seven Hundred and Three only) rounded off to Rs. 35,00,000/- (Rupees Thirty Five Lakhs only) along with interest at the rate of 8%, enhancing the rate of interest 6% as awarded by the Tribunal. 25,00,000/-(Rupees Twenty Five Lakhs Only) awarded by the Tribunal is enhanced to Rs. 34,87,703/- (Rupees Thirty Four Lakhs Eighty Seven Thousand Seven Hundred and Three only) rounded off to Rs. 35,00,000/- (Rupees Thirty Five Lakhs only) along with interest at the rate of 8%, enhancing the rate of interest 6% as awarded by the Tribunal. The enhanced compensation is as follows: Heads Amounts Loss of Income Rs. 17,55,000.00 Pain and Sufferings Rs. 2,00,000.00 Travelling Expenses Rs. 1,00,000.00 Loss of Amenities Rs. 2,00,000.00 Extra Nourishment Rs. 1,00,000.00 Loss of Marital Pleasure Rs. 2,00,000.00 Attender Charges Rs. 2,00,000.00 Disability Rs. 2,00,000.00 Medical Expenses Rs. 3,32,703.00 Future Medical Expenses Rs. 2,00,000.00 TOTAL Rs. 34,87,703.00 14. In the result, the Civil Miscellaneous Appeal filed by the Insurance Company is dismissed and the Cross Objection filed by the claimant is allowed as stated above. The appellant Insurance Company is directed to deposit the entire award amount passed by this Court less already deposited within a period of eight weeks from the date of receipt of a copy of this order. On such deposit the claimant is initially entitled to withdraw only Rs. 15,00,000/- (Rupees Fifteen Lakhs only) and the balance amount shall be deposited in any one of the nationalised bank at least for a period of three years in interest bearing fixed deposit permitting the claimant to withdraw the interest in every three months. No costs. Consequently, connected Miscellaneous petitions are closed.