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2021 DIGILAW 1665 (MAD)

Leela Prasad v. M. Guru Murthy

2021-06-03

R.SUBBIAH, S.KANNAMMAL

body2021
JUDGMENT : S. KANNAMMAL, J. 1. This civil miscellaneous appeal has been filed by the appellant/claimant for enhancement of compensation awarded by the Motor Accident Claims Tribunal II Court of small causes, Chennai, in M.C.O.P No.5519/2013 dated 07.06.2019. 2. As per the averments in the claim petition filed before the Tribunal, on 01/02.09.2012 at about 01.15 hrs while the claimant was proceeding in his motorcycle bearing registration number TN 07 BB 0892 on the Shollinganallur to Medavakkam Road, near the entrance of Mahindra Satyam Software Company Ltd, a TATA Indica car bearing registration number TN-22-CV-1416 came from the same direction in a rash and negligent manner and hit behind the motorcycle driven by the claimant. In the impact, the claimant sustained multiple grievous fracture injuries. Immediately, the claimant was admitted in SRM Hospital, Chennai where he underwent treatment as an in-patient from 02.09.2012 to 30.12.2012 initially and thereafter, again from 06.05.2013 to 08.05.2013. According to the claimant, he had incurred enormous expenses towards his hospitalisation. It is also stated that the claimant was employed as Compounding Specialist I in a company called Symrise Private Limited and earning Rs.1,56,221/- per year. By reason of the injuries sustained in the accident, he had lost his employment and livelihood. Therefore, he filed the claim petition contending that the respondents therein namely owner of the Car as well as its insurer are liable to compensate him for the injuries sustained by him in the accident. He therefore filed the claim petition in M.C.O.P No.5519/2013 against the respondents claiming a sum of Rs. 1,00,00,000 (Rs.1 crore) as compensation. 3. Before the Tribunal, the first respondent/owner of the car remained ex-parte. The claim petition was contested only by the Insurance Company namely the second respondent. 4. The second respondent/insurance company filed a counter statement denying the averments made by the claimant in the claim petition. It was specifically averred that the manner of accident portrayed by the claimant in the claim petition is not correct. The Insurance Company also specifically denied the age, avocation, income and other particulars furnished by the claimant in the claim petition and prayed for dismissal of the claim petition. 5. Before the Tribunal, in order to prove the averments in the claim petition, the claimant examined himself as PW1 and three other witnesses as Pw1 to 4 and marked Exs. P1 to P46. 5. Before the Tribunal, in order to prove the averments in the claim petition, the claimant examined himself as PW1 and three other witnesses as Pw1 to 4 and marked Exs. P1 to P46. On behalf of the respondents in the claim petition, neither any witness was examined nor any document was marked. 6. On appreciation of the oral and documentary evidence produced on the side of the claimant, the tribunal arrived at a finding that the accident had occurred due to the rash and negligent driving of the driver of the car owned by the first respondent. By arriving at such a conclusion the tribunal awarded a sum of Rs.48,39,000 as compensation for the injuries sustained by the claimant and directed the second respondent/insurance company to pay the said compensation amount. 7. As against the award passed by the Tribunal fixing the liability on the part of the Insurance Company, they have not filed any appeal. The present appeal has been filed by the claimant for enhancement of the compensation. Therefore, we are not traversing into the findings rendered by the Tribunal with respect to negligence. We are only examining the correctness or otherwise of the award of the Tribunal with respect to the quantum of compensation. 8. The learned counsel for the appellant/claimant submitted that the sum of Rs.48,39,000/- awarded by the Tribunal in total as compensation as against the total claim of Rs.1,000,000,00 (Rs.1 crore) claimed by the claimant is an inadequate compensation. In this regard, it is further submitted that the tribunal failed to consider the age and income of the injured at the time of accident in the proper perspective which resulted in awarding a meager amount as compensation. According to the counsel for the appellant, the claimant sustained fracture, dislocation of D-6-7 with cord transection with paraplegia. Due to such injuries, both the lower limbs are paralysed and knees are in numbness. The learned counsel would further submit that the appellant had underwent wound debridement and flap rotation by plastic surgeon on 19.10.2012 and another surgery on 19.11.2012. Inspite of such surgeries, the claimant could not recover from his ailment, besides he require continued treatment through out the rest of his life. It is also submitted that by reason of the accident, the claimant had lost his livelihood and became bed-ridden. Inspite of such surgeries, the claimant could not recover from his ailment, besides he require continued treatment through out the rest of his life. It is also submitted that by reason of the accident, the claimant had lost his livelihood and became bed-ridden. In order to substantiate the gravity of the injuries sustained by the claimant, the claimant examined PW4, Dr. Gowri, who has deposed about the disablement of the claimant, but such testimony was grossly ignored by the Tribunal while awarding compensation. 9. The learned counsel for the appellant would submit that having regard to the nature of injuries sustained by the claimant, the Tribunal ought to have awarded compensation by adopting multiplier method. The Tribunal failed to appreciate that the disability sustained by the claimant is 100% and it had resulted in his functional disability. Even though the claimant had incurred medical expenses to the tune of Rs. 9,86,957/- which are supported by medical bills, for the reasons unknown the tribunal awarded only a sum of Rs.3,86,000 towards medical expenses. It is further submitted that the tribunal ought to have awarded more compensation under the heads of transportation, pain and sufferings, disfigurement, future prospects, future medical expenses, extra nourishments. On the other hand, the amount awarded by the Tribunal under the above heads are pittance and/or disproportionate to the nature of injuries sustained by the claimant. The learned counsel for the appellant therefore prayed this Court to enhance the compensation awarded by the Tribunal proportionate to the nature of injuries sustained by the claimant. 10. The learned counsel appearing for the insurance company, on the other hand, supported the judgement and decree passed by the tribunal as fair and reasonable. He would further submit that it is true that the claimant sustained grievous injuries in the accident. However, for the purpose of getting compensation, the injuries sustained by the claimant have been exaggerated out of proportion. He therefore prayed for dismissal of the Civil Miscellaneous Appeal. 11. We have heard the counsel for both sides and perused the materials placed on record. The Tribunal, on appreciation of the oral and documentary evidence, awarded compensation under various heads as under. Sl.No Head under which the amount is awarded Amount awarded by the Tribunal(in Rs.) 1 Loss of earning Power Rs.22,03,200/- 2 Pain and Sufferings Rs.5,00,000/- 3 Attendant charges Rs. 5,00,000/- 4 Transportation Rs. The Tribunal, on appreciation of the oral and documentary evidence, awarded compensation under various heads as under. Sl.No Head under which the amount is awarded Amount awarded by the Tribunal(in Rs.) 1 Loss of earning Power Rs.22,03,200/- 2 Pain and Sufferings Rs.5,00,000/- 3 Attendant charges Rs. 5,00,000/- 4 Transportation Rs. 50,000/- 5 Loss of Amenities Rs.2,00,000/- 6 Loss of life expectancy Rs.2,00,000/- 8 Medical Expenses Rs. 3,86,000/- 9 Future Medical Expenses Rs. 5,00,000/- 10 Loss of Marital Prospectus Rs.3,00,000/- Total Rs.48,39,200/- 12. Before proceeding to examine the rival submissions, we wish to observe that this is a pathetic case where the claimant, who was aged 25 years at the time of accident, had sustained grievous injuries and is in a vegetative condition. His movements are restricted entirely and he require an assistant for discharging each and every domestic chores. He cannot independently do any work and is totally dependent on others. The marital prospects of the deceased have been lost and his future is bleak. The Tribunal also observed that the claimant is in a paraplegic state and he does not have any sensation as to what is happening below the chest level. He does not have the urinating sensation or he could not know when he has to attend to his natural call. The evidence on record suggest that a separate urine bag is tag to him and this has to be emptied frequently. The claimant is also wearing diaper which also requires frequent change. Thus this is a clear case that the claimant is completely bed-ridden and is in a vegetative condition. 13. The Tribunal, in utter disregard to the aforesaid evidence made available, in our opinion, awarded the compensation towards loss of income by taking only 90% disability. This approach of the Tribunal is erroneous and it is liable to be interfered in this appeal. The claimant is suffering functional disability which has completely eroded his natural life. Therefore the disability of the claimant has to be treated as 100% for the purpose of awarding compensation as against 90% taken by the Tribunal. 14. On perusal of records there is no doubt that the claimant suffered lot due to injuries sustained by him by accident. Still he is suffering since he has no sense below the chest. Therefore the disability of the claimant has to be treated as 100% for the purpose of awarding compensation as against 90% taken by the Tribunal. 14. On perusal of records there is no doubt that the claimant suffered lot due to injuries sustained by him by accident. Still he is suffering since he has no sense below the chest. The claimant at the age of 25 years lost his life totally and any amount of money would not compensate the same. In the case of Jagdesh vs. Mohan and others reported in 2018 (4) Supreme Court Cases 571, the apex Court has observed in a case where the injured suffered loss of his two hands in the accident that it would be denial of justice to compute the disability at 90% when the disability is indeed total. In the present case on hand the claimant has no sense below his chest due to the accident which is more pathetic. Similarly, in Govind Yadav vs. New India Insurance Company reported in 2011 (10) Supreme Court Cases 683, in paragraph 17 it was held as under: “14. In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 , the Court considered some of the precedents and held: "The provision of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life." 15. Before the Tribunal, the claimant has only produced an appointment order under Ex.P34 which suggest that he will be paid Rs.1,36,024/- towards gross salary per year. In other words, the salary of the claimant, even as per Ex.P34 will be Rs.11,335/- per month. Admittedly, even to show the receipt of such monthly income, except the appointment order, the claimant did not produce any other document. The claimant also did not produce the bank statement to show that some amount is being credited to his account month after month by his employer. The claimant also did not examine his employer to substantiate the monthly income. The Tribunal therefore taken a sum of Rs.1,36,000/- as annual income of the claimant and awarded a sum of Rs.22,03,200/- for 90% disability. 16. Before the Tribunal, the respondents did not seriously dispute the earning capacity of the claimant. In other words, the fixation of Rs.1,36,000/- as annual income of the claimant has not been questioned. The Tribunal therefore taken a sum of Rs.1,36,000/- as annual income of the claimant and awarded a sum of Rs.22,03,200/- for 90% disability. 16. Before the Tribunal, the respondents did not seriously dispute the earning capacity of the claimant. In other words, the fixation of Rs.1,36,000/- as annual income of the claimant has not been questioned. It is to be observed that under Ex.P34, an appointment order was issued to the claimant. Ex.P34 atleast shows that the claimant is having the capability and is potential to be employed. Therefore, for the purpose of fixation of compensation under the head 'loss of income' Ex.P34 can be considered. Even under Ex.P34, the monthly income of the claimant is stated to be Rs.11,335/- per month. The accident had taken place on 02.09.2012. During the year 2012, a young person like the claimant, who was 25 years by then, could have atleast earned Rs.10,000/- per month. Therefore, in the absence of any other documents to support Ex.P34, we are of the view that a sum of Rs.10,000/- can be fixed as notional income of the claimant to determine the compensation under the head loss of income. 17. If Rs.10,000/- is taken as the monthly income, the annual income of the claimant could be arrived at Rs.1,20,000/-. As the claimant was aged 25 years at the time of accident, 40% of the amount thereof has to be added towards future prospects. In such case, the annual income of the claimant will scale up to (Rs.14000 X 12) Rs.1,68,000/-. The claimant was aged 25 years at the time of accident and therefore, the correct multiplier to be applied is 18' as per the oft-quoted decision of the Honourable Supreme Court in Sarla Varma case. Accordingly, the loss of income payable to the claimant is determined as (Rs.1,68,000 X 18) Rs.30,24,000/- which would be the fair and reasonable amount payable to the claimant. 18. The learned counsel for the appellant vehemently contended that the claimant spent a total sum of Rs.9,86,957/- as could be evident from Ex.P23 to Ex.P33. However, the Tribunal awarded only Rs.3,86,000/- by ignoring Ex.P23 from consideration. The Tribunal excluded Ex.P23 on the ground that it was a tentative payment bill and the actual payment bill has not been produced. 18. The learned counsel for the appellant vehemently contended that the claimant spent a total sum of Rs.9,86,957/- as could be evident from Ex.P23 to Ex.P33. However, the Tribunal awarded only Rs.3,86,000/- by ignoring Ex.P23 from consideration. The Tribunal excluded Ex.P23 on the ground that it was a tentative payment bill and the actual payment bill has not been produced. However, even under Ex.P23, the claimant has paid Rs.1,15,000/- as advance but that was not taken into account at all by the Tribunal while awarding compensation under the head medical expenses. 19. In the light of the above submissions of the counsel for the claimant, we have perused the original records. As per the records, the following payments were made by the claimant under Ex.P24 to P34, even after excluding Ex.P23 and they are:- Ex.P24 Rs. 5,700.00 Ex.P25 Rs. 32,705.00 Ex.P26 Rs.3,39,175.00 Ex.P27 Rs. 1,077.00 Ex.P28 Rs. 16,480.30 Ex.P29 Rs. 5,000.00 Ex.P30 Rs. 3,504.00 Ex.P31 Rs. 3,300.00 Ex.P32 Rs. 3,350.00 Ex.P33 Rs. 7,800.03 Rs.4,18,093.33 20. Thus, even after excluding Ex.P23 from consideration, the claimant had incurred a total sum of Rs.4,18,093.00 towards medical expenses, which he is entitled to. 21. As far as Ex.P23 is concerned, a careful scrutiny of it would reveal that the claimant had paid a sum of Rs.1,15,000/- towards advance as against the tentative expenses arrived thereof at Rs.5,83,449.00 and the balance payable is Rs.4,68,449.00 as per Ex.P23. It is not known as to whether the balance amount of Rs.4,68,449/- has been paid or not. Therefore, we are of the view that under Ex.P23, the claimant is entitled to a sum of Rs.1,15,000/- paid by him. Thus, on cumulative assessment of Exs. P23 to P33, the claimant is entitled to a total sum of Rs.5,33,093/- (Rs.4,18,093 + Rs.1,15,000/-) rounded off to Rs.5,30,000/-. 22. It is the submission of the learned counsel appearing for the appellant/claimant that the amount awarded by the Tribunal under the various other heads are on the lower side and prayed for enhancement of the compensation amount. It is submitted that the claimant suffered injuries resulting in a total loss of functionality and it would require future medical expenses. It is further submitted that due to the injuries sustained in the accident the claimant's entire body below chest was senseless. He has to confine himself in the wheel chair in the rest of his life. It is submitted that the claimant suffered injuries resulting in a total loss of functionality and it would require future medical expenses. It is further submitted that due to the injuries sustained in the accident the claimant's entire body below chest was senseless. He has to confine himself in the wheel chair in the rest of his life. Even he is unable to sit in the chair independently, using urinary tube for releasing urine besides wearing diaper too. He require an assistant to clean his body often, take bath and to do all other normal chores which he could not independently undertake. It is also submitted that the physical pain and suffering, the mental discomfort and inability to do any independent work would cause him enormous mental pain and strain and it warrants appropriate enhancement of compensation than the one awarded by the Tribunal. 23. Having regard to the above, taking into account the vegetative condition of the claimant, we are of the view that the amount of Rs.50,000/- awarded by the Tribunal transportation requires enhancement upto Rs.1,00,000/- to meet the ends of justice. 24. For loss of amenities, the Tribunal awarded Rs.2,00,000/-, which in our view, can be scaled up to Rs.3,00,000/-. 25. For loss of expectation of life, the Tribunal awarded Rs.2,00,000/-. Here again, it can be scaled up to Rs.3,00,000/- in order to render complete justice. 26. In the light of the above, we hereby re-determine the compensation amount awarded by the Tribunal as under: Sl.No Head under which the amount is awarded Amount awarded by the Tribunal(in Rs.) 1 Loss of earning Power Rs.30,24,000/- 2 Pain and Sufferings Rs.5,00,000/- 3 Attendant charges Rs. 5,00,000/- 4 Transportation Rs. 1,00,000/- 5 Loss of Amenities Rs.3,00,000/- 6 Loss of life expectancy Rs.3,00,000/- 8 Medical Expenses Rs.5,30,000/- 9 Future Medical Expenses Rs. 5,00,000/- 10 Loss of Marital Prospectus Rs.3,00,000/- Total Rs.60,54,000/- 27. In the result, the Civil Miscellaneous Appeal is partly allowed by modifying the Judgment and Decree dated 07.06.2019 made in M.A.C.T.O.P. No. 5519 of 2013 on the file of the Motor Accident Claims Tribunal, II Court of Small Causes, Chennai. No costs. Resultantly, the compensation awarded thereof by the Tribunal is enhanced to Rs.60,54,000/- as mentioned above. In the result, the Civil Miscellaneous Appeal is partly allowed by modifying the Judgment and Decree dated 07.06.2019 made in M.A.C.T.O.P. No. 5519 of 2013 on the file of the Motor Accident Claims Tribunal, II Court of Small Causes, Chennai. No costs. Resultantly, the compensation awarded thereof by the Tribunal is enhanced to Rs.60,54,000/- as mentioned above. The second respondent-Insurance Company is directed to deposit the award amount now determined by this Court along with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P. No. 5519 of 2013. On such deposit, the appellant/claimant is permitted to withdraw the award amount along with interest and costs, less the amount already withdrawn if any, by filing necessary application before the Tribunal. The appellant is directed to pay court fee proportionate to the enhancement of the compensation amount determined by us in this appeal. Consequently, connected Miscellaneous Petition is closed.