Shriram General Insurance Co. Ltd. , v. Gurram Naga Raju
2024-08-30
NYAPATHY VIJAY, RAVI NATH TILHARI
body2024
DigiLaw.ai
JUDGMENT : Nyapathy Vijay, J. This Appeal is filed by the Insurance company questioning the Award and Decree dated 17.11.2016 passed in M.V.O.P.No.368 of 2011 by the Motor Vehicle Accident Claims Tribunal-cum-I Additional District Court, Guntur. 2. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Tribunal. 3. The brief facts so far: Appellant is the Insurance company. The Claimant, who was working in the Railways for the injuries received by him in a motor accident that occurred on 18.01.2011. According to the claimant, on 18.01.2011 at about 7.30 a.m, while the claimant was coming on his motorcycle bearing No. AP 07 AC 2888 from Vijayawada to his house, near Manipal Hospital Centre, Tadepalli, a lorry bearing No. AP 16 W 9126 driven by respondent No.3 in a rash and negligent manner dashed the motorcycle of the claimant. As a result, the petitioner sustained serious injuries and his right leg was amputated almost upto the groin area. The claimant was shifted to Nagarjuna Hospital, Kanuru, Vijayawada. A case under section 337 I.P.C., was registered against the driver of the lorry. At the time of accident, the claimant was aged 45 years and his salary was Rs.26,570/-. A compensation of Rs.30,00,000/- was sought by him. 4. Respondent No.1 is the owner of the lorry and 2nd respondent is the insurer of the lorry. Respondent Nos.1 and 3 remained ex parte. Respondent No.2 i.e. the Insurance company filed its usual formatted counter denying every aspect of the claim petition. 5. In the course of examination on behalf of the claimant, P.Ws1 to 4 were examined and Exs.A.1 to A.13 were marked. Exs.X.1 to X.5 were also marked. 6. The Tribunal framed the following issues: 1. Whether the accident occurred due to the rash and negligent driving of driver of Lorry bearing No.AP-16-W-9126 and caused injuries to the petitioner Gurram Naga Raju? 2. Whether the petitioner is entitled for compensation, and if so, from whom and at what rate? 3. To what relief? 7. The Tribunal, after considering the oral and documentary evidence, held that the accident occurred due to rash and negligent driving of the driver of the lorry and awarded an amount of Rs.35,00,000/- towards compensation. 8. Heard Smt. A.Jayanthi, learned counsel for the appellant and Sri Siva Prasad Katakamsetty, learned counsel for respondent No.1. 9.
3. To what relief? 7. The Tribunal, after considering the oral and documentary evidence, held that the accident occurred due to rash and negligent driving of the driver of the lorry and awarded an amount of Rs.35,00,000/- towards compensation. 8. Heard Smt. A.Jayanthi, learned counsel for the appellant and Sri Siva Prasad Katakamsetty, learned counsel for respondent No.1. 9. Scope of Appeal: There is no dispute about the manner of accident, medical expenses incurred by claimant and extent of amputation suffered by the claimant. The only point for consideration in this appeal is, whether the methodology of compensation arrived at by the Tribunal is sustainable? 10. Arguments: Learned counsel for the appellant contended that the claimant was an employee of the South Central Railways and there is no loss of employment and the Tribunal could not have granted compensation under the head „loss of income’. It was contended that the Tribunal awarded compensation applying the multiplier method which is applicable only in case of death. According to the counsel for the appellant, the medical expenses would have been reimbursed to the claimant as he is an employee of the South Central Railways. The counsel for the appellant placed reliance on a judgment of the Hon’ble Supreme Court in Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343 . It was her contention that though the amputation of the right leg of the claimant is a fact, but that cannot be treated as 100% disablement for claiming compensation from the employer. 11. Learned counsel for the respondent cited judgment of Hon’ble Supreme Court in Hari Om Const. v. National Insurance Company Limited and others, (2023) ACJ 595 wherein, the Hon’ble Supreme Court adopted multiplier method while awarding compensation to an individual, who had suffered injuries. It was contended that the condition of the claimant is such that it has to be considered in a sympathetic way and the normal prosthetic legs could not fit the claimant due to the extent of amputation. It was his contention that only an expensive hydraulic knee joint carbon foot and suction joints only could be fitted to the claimant. 12. Reasoning of the Court: The multiplier method as explained in the judgments of the Hon’ble Supreme Court are primarily applicable towards loss of income that is coming under the head of pecuniary damages.
It was his contention that only an expensive hydraulic knee joint carbon foot and suction joints only could be fitted to the claimant. 12. Reasoning of the Court: The multiplier method as explained in the judgments of the Hon’ble Supreme Court are primarily applicable towards loss of income that is coming under the head of pecuniary damages. In this case, there is no loss of income per se to the claimant as he had continued in the job at South Central Railways post the accident also. Therefore, the compensation of Rs.26,47,512/- awarded by the Tribunal towards loss of income by applying the multiplier method is not correct as held by Hon’ble Supreme Court in the cited case Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343 . 13. The heads under which compensation can be awarded in the cases of injuries are specified by the Hon’ble Supreme Court in Raj Kumar’s case (1 supra) at Para 6 and the same is extracted hereunder: “6. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, 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. 14. Coming to the pecuniary damages, the claimant would be entitled to medical expenses. The compensation under this head should be classified into past medical expenses and future medical expenses.
14. Coming to the pecuniary damages, the claimant would be entitled to medical expenses. The compensation under this head should be classified into past medical expenses and future medical expenses. Compensation towards Medical expenses (a) Medical Expenses: The counsel for the appellant contended that the medical expenses incurred by the claimant i.e. Rs.4,55,000/-, Rs.6,350/- and Rs.7,662/- under Ex.A.7, Ex.A.8 and Ex.A.9, respectively, could not have been granted as the employer would have reimbursed the same. However, the claimant in the cross-examination specifically denied making any claim for reimbursement of medical expenses. In the face of specific denial, it was for the Insurance company to establish the same, however, there is nothing available on record regarding reimbursement of medical expenses incurred by the claimant. In the absence of proof of reimbursement, this Court is inclined to reject the plea of the counsel for the appellant on this aspect. (b) Future Medical Expenses: The petitioner would also be entitled to future medical expenses as the petitioner cannot be called upon to file recurring applications for compensation. The Orthopedic Surgeon, who treated the claimant, was examined as P.W.2. He stated that the claimant cannot do any work with his right hand and that the right leg of the claimant was amputated substantially above the knee. P.W.2 stated that Jaipur artificial limbs will not be effective considering the extent of amputation. P.W.4 is a Prosthetist working in Ottobock HealthCare India Pvt., Ltd., Hyderabad. He stated that they had fitted hydraulic knee joint, carbon foot and suction socket, which is a sensitive part to the claimant and the cost of that was Rs.4,55,000/-. The expenditure was supported by Ex.A.7. 15. The artificially fitted limbs would require changes in the lifetime of the claimant as the longevity of prosthetics will depend on how often the claimant wears and treats it, body changes, and activity level. The Hon’ble Supreme Court in Mohd.Sabeer @ Shabir Hussain v. Regional Manager, U.P. State Road Transport Corporation, 2022 Livelaw (SC) 1017 considered life of prosthetic limb and awarded compensation so that the claimant can buy three prosthetic limbs and maintain the same at least till the age of 70 years. Paragraph 23 of the said Judgment is extracted for ready reference; “23.
Paragraph 23 of the said Judgment is extracted for ready reference; “23. As per the current compensation given for the prosthetic limb and its maintenance, it would last the Appellant for only 15 years, even if we were to assume that the limb would not need to be replaced after a few years. The Appellant was only 37 years at the time of the accident, and it would be reasonable to assume that he would live till he is 70 years old if not more. We are of the opinion that the Appellant must be compensated so that he is able to purchase three prosthetic limbs in his lifetime and is able to maintain the same at least till he has reached 70 years of age. For the Prosthetic limbs alone, the Appellant is to be awarded compensation of Rs. 7,80,000 and for maintenance of the same he is to be awarded an additional Rs. 5,00,000/-.” 16. In this case, there is no mention of the frequency at which the prosthetic limb has to be changed. However, it is a matter of prudence that the prosthetic limb of the claimant would have to be changed at least once in his lifetime. Therefore, factoring inflation vis-a-vis the cost incurred under Ex.A.7, this Court is inclined to grant an amount of Rs.7,50,000/- towards prosthetic limbs alone. The future medical expenses are assessed @ Rs.50,000/- 17. Attendant Charges: A physical frame that has been battered and shattered cannot be restored but the compensation given, should be in a position to help the injured to be put back in the position he was, at least with the help of the an attendant. The right leg of the claimant was amputated almost till groin area and he would be requiring an attendant all-through. The methodology to be arrived at in computing non-pecuniary damages was explained by the Hon’ble Supreme Court in the case of Kajal v. Jagdish Chand and others, (2020) 4 SCC 413 . In the said case, the Hon’ble Supreme Court, while computing the nonpecuniary damages of a young child whose disability was assessed at 100%, had opined that the attendant charges should also be on the multiplier system rather than random payment by the Courts. 18.
In the said case, the Hon’ble Supreme Court, while computing the nonpecuniary damages of a young child whose disability was assessed at 100%, had opined that the attendant charges should also be on the multiplier system rather than random payment by the Courts. 18. In the said case, the Hon’ble Supreme Court opined that the claimant therein required two attendants and adopted a multiplier of 18 and awarded compensation of Rs.21,60,000/- under that head. Paragraphs 22 to 24 of the said judgment are extracted as under: “Attendant charges 22. The attendant charges have been awarded by the High Court @ Rs. 2,500/- per month for 44 years, which works out to Rs. 13,20,000/-. Unfortunately, this system is not a proper system. Multiplier system is used to balance out various factors. When compensation is awarded in lump sum, various factors are taken into consideration. When compensation is paid in lump sum, this Court has always followed the multiplier system. The multiplier system should be followed not only for determining the compensation on account of loss of income but also for determining the attendant charges etc. This system was recognised by this Court in Gobald Motor Service Ltd. vs. R.M.K. Veluswami, AIR 1962 SC 1 . The multiplier system factors in the inflation rate, the rate of interest payable on the lump sum award, the longevity of the claimant and also other issues such as the uncertainties of life. Out of all the various alternative methods, the multiplier method has been recognised as the most realistic and reasonable method. It ensures better justice between the parties and thus results in award of 'just compensation' within the meaning of the Act. 23. It would be apposite at this stage to refer to the observation of Lord Reid in Taylor vs. O' Connor, 1971 AC 115 : "Damages to make good the loss of dependency over a period of years must be awarded as a lump sum and that sum is generally calculated by applying a multiplier to the amount of one year's dependency.
That is a perfectly good method in the ordinary case but it conceals the fact that there are two quite separate matters involved, the present value of the series of future payments, and the discounting of that present value to allow for the fact that for one reason or another the person receiving the damages might never have enjoyed the whole of the benefit of the dependency. It is quite unnecessary in the ordinary case to deal with these matters separately. Judges and counsel have a wealth of experience which is an adequate guide to the selection of the multiplier and any expert evidence is rightly discouraged. But in a case where the facts are special, I think that these matters must have separate consideration if even rough justice is to be done and expert evidence may be valuable or even almost essential. The special factor in the present case is the incidence of Income Tax and, it may be, surtax." 24. This Court has reaffirmed the multiplier method in various cases like Municipal Corporation of Delhi v. Subhagwanti and Ors., 1966 ACJ 57 , U.P. State Road Transport Corporation and Ors. vs. Trilok Chandra and Ors., (1996) 4 SCC 362 , Sandeep Khanduja vs. Atul Dande and Ors, (2017) 3 SCC 351. This Court has also recognised that Schedule II of the Act can be used as a guide for the multiplier to be applied in each case. Keeping the claimant's age in mind, the multiplier in this case should be 18 as opposed to 44 taken by the High Court. 19. The above judgment of the Hon’ble Supreme Court was followed in a series of judgments of recent origin viz., Master Ayush v. The Branch Manager, Reliance General Insurance Co. Ltd., & another, 2022 Livelaw (SC) 330, Abhimanyu Partap Singh v. Namita Sekhon & another 2022 Livelaw (SC) 569 and Divya v. The National Insurance Co. Ltd., & Another 2022 Livelaw (SC) 892. 20. Applying the said principle to the facts of this case, the extent of amputation of the right leg of the claimant has to be treated as 100% as the right leg was amputated almost up to the groin area. The claimant would be requiring at least two attendants all through to attend the daily works for the rest of his life.
The claimant would be requiring at least two attendants all through to attend the daily works for the rest of his life. The minimum wages for domestic workers as per G.O.Ms No.60 dated 01.11.2011 issued under Minimum Wages Act, 1948 is Rs.4,521/- for 8 hours. In the opinion of this Court, taking into consideration future attendant wages, this Court fixes average monthly attendant charges at the rate of Rs.5,000/- and adopts a multiplier of 14 as the claimant was aged about 45 years at the time of accident. The claimant’s entitlement of compensation under this head, is as under: Rs.5,000 x 12 x 14 x 2 = Rs.16,80,000/- 21. Conveyance charges: Coming to the conveyance charges, this Court is of the opinion that the principle of multiplier method would have to be adopted even while computing the conveyance charges to the claimant. Though, the claimant has a job in the South Central Railways, he cannot attend office on his own nor is he in a position to attend the Office by availing any public transport. Conveyance charges do not come under the salary given to the claimant and therefore, this Court is of the opinion that the conveyance charges have to be provided to the claimant by adopting the same multiplier. The entitlement of compensation to the claimant under this head is as under: Rs.5,000/- x 12 x 14 = Rs.8,40,000/- 22. Pain, suffering and loss of amenities: The determination of damages towards this head is not easy and there is no accepted methodology in giving compensation under this head. While awarding compensation under this head, the physical disability alone is not the criteria, but the psychological impact caused by amputation on the life of the claimant should also be factored in. 23. The amputation to the claimant and persons similarly situated is medically acknowledged, in various journals as leading to depression, anxiety, loss of self-esteem and eventually to isolation from the social life. With advancing age, these problems would only become more acute. The normal joys of life like going to a movie, restaurant, travel, a stroll in the park or bazaar etc., with his family and friends are difficult to enjoy and a concentrated effort has to be made by people around the claimant in spending a normal evening like others. 24.
With advancing age, these problems would only become more acute. The normal joys of life like going to a movie, restaurant, travel, a stroll in the park or bazaar etc., with his family and friends are difficult to enjoy and a concentrated effort has to be made by people around the claimant in spending a normal evening like others. 24. This reduced quality of life and emotional distress have a traumatic impact on the quality of life of the individual. Therefore, this Court is inclined to grant an amount of Rs.7,50,000/- towards pain, physical and psychological suffering and loss of amenities. Though no material compensation can negate the trauma of the claimant, the law only knows the language of monetary compensation. 25. The Revised Compensation: Therefore, the revised compensation payable to the claimant is as under: (1) Attendant charges Rs.5,000/- x 12 x 14 x 2 = Rs.16,80,000/- (2) Conveyance charges Rs.6,000/- x 12 x 14 = Rs.8,40,000/-- (3) Pain suffering and loss of amenities Rs.7,50,000/- (4) Medical Expenses Rs. 4,55,000/-+Rs 6,350+Rs 7,662/- =Rs.4,69,012/- (5) Future Medical treatment Rs.8,00,000/- (6) Miscellaneous expenses Rs 1,00,000/- Total Rs.46,39,012/- 26. Interest: The interest @ 9% awarded by the Tribunal is fair and is supported by the Judgments of Hon’ble Supreme Court in Rahul Sharma & Another v. National Insurance Company Limited and others, (2021) 6 SCC 188 and Kirthi and another v. Oriental Insurance Company Limited (2021) 2 SCC 166 on this aspect. 27. The revised compensation is higher than the compensation awarded by the Tribunal. A coordinate Division Bench of this Court in the case of National Insurance Company Ltd v. E.Susheelamma 2023 LiveLaw (AP) 41 held that grant of “just compensation” is an obligation on the Courts considering the scheme of the Act and compensation can be enhanced even in the appeal filed by the Insurance company. Following the same, the compensation in the present case is enhanced as indicated above. 28. Result: The appeal is disposed of enhancing the compensation awarded by the Tribunal to the extent indicated above. The Insurance company shall deposit the balance amount within a period of one month from today before the Tribunal and the claimant is entitled to withdraw the amount. No order as to costs. As a sequel, the miscellaneous petitions, if any, shall stand closed.