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2019 DIGILAW 2107 (MAD)

Reliance General Insurance Co. Ltd. v. S. Santhana Krishnan

2019-08-16

N.KIRUBAKARAN, R.HEMALATHA

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JUDGMENT : N. Kirubakaran, J. 1. The appeal has been preferred by the insurance company against the award of Rs. 18,26,425 and a cross-objection has been filed by the claimant aggrieved over the very same quantum of compensation awarded to him for the injuries sustained in the accident occurred on 4.9.2006, when he was travelling on his motor cycle as a pillion rider which was driven rashly and negligently by the rider of the two-wheeler causing accident. Therefore, claim petition. 2. On contest, the Tribunal found that the accident occurred because of rash and negligent driving of the two-wheeler and fixed the liability on the rider of the vehicle and directed the insurance company to pay the amount as insurer of the vehicle. 3. Heard Mr. P. Suresh Srinivasan, learned counsel for the insurance company, and Mr. P.R. Dhilip Kumar, learned counsel for the claimant. 4. With regard to the negligence aspect, the Tribunal, based on PW 1's evidence and the filing of the F.I.R. against the rider of the vehicle which has been marked as Exh. P1, has found that the rider of the two-wheeler alone was responsible for the accident. Moreover, there is no rebuttal evidence and, therefore, the finding regarding the negligence aspect as given by the Tribunal is confirmed. 5. The Tribunal taking note of the fact that the claimant sustained traumatic brachial plexus palsy, right subclavian artery injury and the claimant had undergone surgery on 13.9.2006 whereby subclavian to axillary artery reversed saphenous vein graft sural nerve grafting C7 to upper trunk done and further as it is mentioned that right upper limb is flaccid, no active movement in the right shoulder, elbow, forearm, wrist and fingers, there is loss of sensation in the right upper limb from below as proved by PW 2 doctor's evidence and from Exh. P6 to Exh. P8, viz., discharge summaries determined the disability at 90 per cent. The Tribunal based on Exh. P11, viz., disability certificate issued by Government Institute of Rehabilitation Medicine also confirmed 90 per cent disability. 6. While fixing the disability at 90 per cent, the Tribunal took note of complete and permanent non-use of right limb which is equivalent to loss of one hand. The Tribunal also referred to Workmen's Compensation Act, 1923, Schedule I, Part-I, Sl. P11, viz., disability certificate issued by Government Institute of Rehabilitation Medicine also confirmed 90 per cent disability. 6. While fixing the disability at 90 per cent, the Tribunal took note of complete and permanent non-use of right limb which is equivalent to loss of one hand. The Tribunal also referred to Workmen's Compensation Act, 1923, Schedule I, Part-I, Sl. No. 1 that the loss of sensation and complete non-use of limb would amount to amputation and determined the loss of earning capacity at 90 per cent. However, as rightly pointed out by Mr. P. Suresh Srinivasan, learned counsel for the insurance company, that though the claimant sustained 90 per cent disability, the loss of earning capacity fixed at 90 per cent is on the higher side. Though the Workmen's Compensation Act speaks about 90 per cent loss of earning capacity especially when one of the limbs was amputated, in this case, the limb was not amputated. However, it is equivalent, as rightly found by the Tribunal, to amputation, as there was complete, permanent loss of use of right hand. Taking note of the above, 90 per cent loss of earning capacity determined by the Tribunal is on the higher side and the same is reduced to 75 per cent. 7. The claimant was a student undergoing graduation course in Law and, therefore, notional income of Rs. 6,000 was fixed by the Tribunal in the absence of material evidence. The monthly income of Rs. 6,000 fixed by the Tribunal is on the lower side and this court redetermines the said amount. The Hon'ble Supreme Court in the judgment delivered in Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd., 2014 ACJ 627 (SC), fixed the monthly income at Rs. 6,500 for a vegetable vendor, who sustained injuries in the accident which occurred in the year 2008 whereas in this case, the accident occurred in the year 2009 after a year and hence, this court redetermines the monthly income at Rs. 8,000. 8. No amount was added towards future prospects. The age of the deceased is 20 years and, therefore, 50 per cent has to be added towards future prospects. Further, the Tribunal has adopted right multiplier 18' as per the judgment in Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC) and hence, the loss of income would be Rs. 8. No amount was added towards future prospects. The age of the deceased is 20 years and, therefore, 50 per cent has to be added towards future prospects. Further, the Tribunal has adopted right multiplier 18' as per the judgment in Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC) and hence, the loss of income would be Rs. 8,000 + 50 per cent x 12 x 18 x 75 per cent = Rs. 19,44,000. 9. Rs. 25,000 awarded by the Tribunal towards transportation is too low as the claimant has to be further hospitalised and he has to follow up the treatment. Taking into consideration that the claimant had undergone four surgeries and subsequent treatment, this court enhances the same to Rs. 50,000 and similarly, Rs. 25,000 awarded towards extra nourishment is enhanced to Rs. 50,000. Rs. 4,10,025 awarded towards medical expenses as per Exh. P10, viz., medical bills is confirmed. Rs. 1,00,000 awarded for pain and suffering is very less considering the nature of injuries sustained by him and surgeries undergone by him and the suffering he has to endure throughout his life and hence, the same is enhanced to Rs. 2,00,000. No amount has been awarded for loss of amenities and hence, Rs. 1,00,000 is awarded under this head. Further, Rs. 1,00,000 awarded for future medical expenses is confirmed. Therefore, the sum of Rs. 18,26,425 awarded by the Tribunal is modified as follows: Sl. No. Head Amount (1) Loss of income Rs.19,44,000 (2) Loss of amenities Rs.1,00,000 (3) Pain and suffering Rs.2,00,000 (4) Future medical expenses Rs.1,00,000 (5) Medical bills Rs.4,10,025 (6) Transportation Rs.50,000 (7) Extra nourishment Rs.50,000 Total Rs.28,54,025 10. Hence, the total compensation payable in this case is Rs. 28,54,025. The interest awarded by the Tribunal at the rate of 7.5 per cent per annum is confirmed. Additional court-fee, if any, shall be paid by the claimant within a period of 2 weeks from the date of receipt of a copy of this order. If the requisite court-fee is not paid by the claimant, Tribunal is directed to deduct the requisite court-fee from the compensation amount awarded to the claimant and thereafter, transfer the remaining award amount to the claimant's account. It is made clear that the claimant would not be entitled to any interest for the delay period in filing the cross-objection. 11. If the requisite court-fee is not paid by the claimant, Tribunal is directed to deduct the requisite court-fee from the compensation amount awarded to the claimant and thereafter, transfer the remaining award amount to the claimant's account. It is made clear that the claimant would not be entitled to any interest for the delay period in filing the cross-objection. 11. The insurance company is directed to deposit the entire award amount as per the order of this court before the Tribunal along with interest and costs (excepting for future medical expenses) after deducting the amount, if any, already deposited within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made, the Tribunal is directed to transfer the amount to the account of the claimant through RTGS within a period of one week. 12. Accordingly, the appeal filed by the insurance company is dismissed and the cross-objection filed by the claimant is partly allowed. No costs.