Madras High Court
M/S.Cholamandalam Ms General ... vs P.Kapil Chand Jain on 26 November, 2014
Author: M.Jaichandren
Bench: M.Jaichandren, Aruna Jagadeesan
In the High Court of Judicature at Madras Date : 26.11.2014 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN and THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN C.M.A. No.1038 of 2013 and M.P.No.1 of 2013 M/s.Cholamandalam MS General Insurance Co.Ltd., Dare House, No.2, N.S.C.Bose Road, Chennai 600 001. .. Appellant vs. 1. P.Kapil Chand Jain 2. M.Palani Swamy .. Respondents Prayer: Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the judgment and decree passed by the Motor Accidents Claims Tribunal, II Court of Small Causes, Chennai, made in MCOP.No.2797 of 2011 dated 21.12.2012. For appellant : Mr.M.B.Gopalan For respondents : Mr.N.Sundaram Caveator for R1 R2- Exparte. J U D G M E N T
[The judgment of the Court is delivered by Aruna Jagadeesan, J.] The appeal is filed by the Cholamandalam Insurance Company, aggrieved by the award dated 21.12.2012 passed by the Motor Accident Claims Tribunal (II Judge, Court of Small Causes), Chennai, in M.C.O.P.no.2797 of 2011 awrding a total compensation of Rs. 1 crore in favour of the respondent for having suffered injuries resulting in amputation of both legs in a Motor Vehicle Accident which occurred on 16.04.2011.
2. The claimant sustained the following injuries.
i) Crush and avulsion of both legs resulting in amputation of both legs;
ii) Fracture of right clavicle Open reduction on internal fixation done under GA for clavicle fracture;
Skin grafting done for both stumps at knee level for both legs.
3. The Tribunal awarded a sum of Rs.1,00,00,000/-, as total compensation, with interest at 7.5% per annum from the date of the claim petition till the date of payment, to the claimant/1st Respondent, as detailed below:-
Sl.No. Compensation under various heads Award amount 1 Future loss of earnings Rs.88,17,400/-2
Artificial limbs Rs.4,86,000/-3
Medical expenses Rs.2,70,000/-4
Future medical expenses Rs.1,00,000/-5
Pain and sufferings Rs.1,00,000/-6
Attendant charges Rs.80,000/-7
Loss of amenities & mental agony Rs.50,000/-8
Loss of marital prospects Rs.50,000/-9
Extra Nourishment Rs.24,000/-10
Transport to hospital Rs.20,100/-11
Damage to clothing and articles Rs.2,500/-
Total Rs.1,00,00,000/-
3. After initial treatment at Government Kamarajar Hospital, Chidambaram, the respondent underwent treatment at Apollo First Med Hospital, Chennai as an inpatient from 16.04.2011 to 29.04.2011. During the course of treatment at Apollo Med Hospital, both the legs of the claimant were amputated below the knee on 16.04.2011. He also underwent surgery for clavicle bone on 18.04.2011 and skin grafting was done on 21.04.2011. The 1st respondent/ claimant is a young entrepreneur having a business concern in the name of Tara Enterprises at Chidambaram as Distributor of SIM cards and Recharge cards for AIRCEL Ltd. With TIN No.33594441785. The Certificate of Registration under the seal of the Deputy Commercial tax Officer, chidambaram was marked as Ex.P12. The respondent was also appointed as an authorised distributor for AIRCEL Limited, a mobile network provider in Tamil Nadu for their operations at Sethiathope, Srimushnam, Cholatharam, Kumarakudi and Palayankottai as may be seen fromex.p14. The first respondent/claimant had also deposited Rs.2 lakhs as caution deposit with AIRCEL Ltd., as seen from eX.P13. He was assessed to income tax from the year 2008 onwards. The income tax returns for the assessment years, 2008-2009, 2009-2010, 2010-2011, 2011-2012 and 2012-2013 are marked as Exs. P15, P16, P17, P18 and P33 respectively. The bank statement for the year 2008 to 2011 are marked as Exs.P34 to P37 showing the business transaction of M/s. Tara Agencies run by the first respondent/claimant.
4. From the income tax returns and the bank statement for the relevant years, it appears that the respondent was having a good growth in respect of volume of sales and income from the business. However, the same declined after the accident on 16.04.2011. Taxable income for the assessment year 2008-2009 was Rs.2,48,996/- for which Rs.24,102/- has been paid as income tax, in 2009-2010 was Rs.4,83,966/- for which Rs.51,288/- was paid as income tax, in 2010-2011 was Rs.5,44,286/- for which Rs.65,817/- was paid as income tax, for 2011-2012, the income was Rs.7,51,839/- and income tax of Rs.76,016/- was paid.
5. For the assessment year 2012-2013, the income tax returns shows that the income declined to Rs.4,22,792/- from Rs.7,51,839/- as that of the previous year, i.e., nearly 43.76%. The table showing the income, growth and the decline consequent upon the accident on 16.04.2011 is as under:
Sl.No Financial Year Assessment Year Income Rs.
Income Tax paid Rs.
Growth/ Decline 1 2007-2008 2008-2009 2,48,996 24,102 NIL 2 2008-2009 2009-2010 4,83,966 51,288 94.36% 3 2009-2010 2010-2011 5,44,286 65,817 12.5% 4 2010-2011 2011-2012 7,51,839 76,016 38% 5 2011-2012 2012-2013 4,22,792 13,677 (-)43% Thus, it is abundantly clear that only due to hard work of the respondent/claimant, the business graph went up and it got declined due to the incapacity of the claimant to move around and do business as before. It was wholly due to the injuries sustained in the accident. The respondent had met with an accident at the age of 26 years resulting in total immobility due to amputation of both legs below knee.
6. As per the income tax returns, during the past 5 years, his income works out to be Rs.4,90,375.80 per annum. Considering the age of the respondent, there is every chance for the respondent/claimant to earn much more than what he was earning at the time of accident. As held by the larger Bench of the Honourable Supreme Court in Reshmakumar vs. Madan Mohan 2013 ACJ 1253 confirming the judgment in Sarla Verma vs. Delhi Transport Corporation (2009(2) TN MAC 1 (SC) depending upon the age of the victim, 50% or 30% of the earnings can be added as the future earning prospects for a person with regular and defined income. In Rajesh vs. Rajbir Singh & others 2013 ACT 1403, the larger Bench of the Honourable Supreme court affirming the judgment of the Apex Court in Santhosh Devi vs. National Insurance Co. 2012 ACJ 1428 held that 30% of the present earnings can be added towards future prospects even in case of persons working in un-organized sector and self-employed viz., plumbers, carpenters, coolies etc.
7. A claimant who had suffered injuries in a motor vehicle accident resulting in amputation of both legs is entitled to 100 percent compensation in terms of Schedule-I appended to the Workmen's Compensation Act, 1923. The amount of compensation which represents the loss of income can be calculated either in terms of the structured formula appended to the Motor Vehicles Act or on the basis of the other materials brought on record. It is already brought on record that he had suffered loss in the business to an extent of 43 percent.
8. Our attention has been drawn to a decision of the Honourable Supreme Court in New India Assurance Company Limited v. Charlie(2005 ACJ 1131 (SC), wherein 1/3rd was directed to be deducted towards personal expenditure, however, no legal principle was laid down therein. In the same decision cited supra, it has been held that in a case, where the injured had suffered 100 percent disability, the legal principle for determination of compensation applicable to a deceased can, in appropriate cases, taking note of all the relevant factors be reasonably applied even in a case of a totally permanent disabled person.
9. Taking into consideration, the present income of the respondent as Rs.40,865/- per month and the permanent disability of 100 percent and adding 30 percent for future prospects and also deducting 1/3rd towards miscellaneous and personal expenses, the loss of income is arrived at Rs.25,000/- per month. The claimant was 26 years of age at the time of accident. Taking the multiplier to be 18, the total loss of income comes to Rs.54,00,000/- (25000 x12 x 18 x 100).
10. It is difficult to measure any terms of money for the pain and sufferings which has been suffered by the claimant on account of serious injuries caused to him in the accident. Since the compensation is required to be paid for pain and sufferings an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim in a motor accident. In the instant case, the claimant was 26 years of age and amputation of both legs had been done. That apart, he has undergone surgery for clavicle bone and skin grafting has also been done.
11. In the facts and circumstances of this case, the respondent/ claimant would be entitled to Rs.1,00,000/- towards pain and sufferings as awarded by the Tribunal. The Tribunal has awarded Rs.80,000/- as attendant charges which is just and reasonable and the same shall be maintained. Similarly, the amount of Rs.20,000/- awarded towards transport to hospital ; Rs.24,000/- towards extra nourishment, Rs.2,500/- for damages to clothing and articles, Rs.2,70,000/- for medical expenses (borne by records) shall all be retained.
12. It is claimed that the respondent/ claimant on the advise of the doctors at Apollo First Med Hospital, Chennai, consulted M/s. Otto Bock Health Care India Pvt.Ltd., Chennai, for artificial limb fixation and after various, corrective surgery and visits was put on artificial limbs for both legs at a cost of Rs.4,86,000/-. The payment receipt/ Invoice was issued by M/s. Otto bock Health care for Rs.4,86,000/- marked as Exs. P9 and P38. In support of the said claim, the authorised representative from M/s. Otto bock Health care was examined as P.W.4 The evidence indicated that the respondent/claimant had also taken a premises on rent on the ground floor at No.20/7, Subbaraya Mudali Street, Pudupet, Chennai, after his discharge from Apollo First Med Hospital, to facilitate out patient treatment, periodical consultation and for fixing artificial limbs/prosthesis at Otto Bock Health care, since he cannot move back and forth from Chidambaram to Chennai. Since the process of fixing artificial limbs that too, for both legs is a long drawn process and a painful exercise, the doctors/Consultants had put him on various tests, exercises etc. to ensure that the prosthesis fit the respondent/claimant properly. As seen from the evidence of P.W.4 and Ex.P10 because of the physiological changes and apparent change in stump volume, sockets and foam cover needs to be changed whenever required. There will be a need to change consumables like co-polymer lines, proflex sleeves, prosthetic socks and cosmetic stockings etc. every year and the average recurring expenses is estimated as Rs.50,000/- to Rs.60,000/- per year. Apart from this, it is stated in Ex.P10 that the average life of prosthesis/ artificial limb is 5 to 7 years and it was recommended that the entire prosthesis is changed after 5 to 7 years on periodical basis depending upon the growth of the limb.
13. Hence, apart from incurring a huge sum of Rs.4,86,000/- towards cost of artificial limit it is claimed that the claimant will incur Rs.50,000/- to Rs.60,000/- every year and the artificial limp has to be changed completely once in 5 to 7 years during his life time. It is further claimed that the claimant had incurred Rs.6,210/- + Rs.88,576/- towards change and replacement of proflex sleeves, prosthetic socks and cosmetic stockings etc. on 04.07.2012 and 31.05.2013 after the award of the Tribunal.
14. It is urged by the learned counsel for the appellant /Insurance Company that this was merely an estimate for purchase of knee prosthesis and he has stated that the respondent/ claimant cannot be awarded compensation merely on this estimate. But considering the evidence placed on record and the future medical expenses he is liable to incur, we deem it proper to award Rs.10,00,000/- for future expenses and Rs.4,86,000/- for artificial limbs. The claimant will not be entitled to any interest for the future medical expenses of Rs.10,00,000/- in the light of the decision of the Honourable Supreme Court in R.D.Hattangudi vs. Messrs. Pest Control India Private Limited (1995 ACJ 3666) wherein it is held that the interest is to be paid over the amount which has become payable on the date of award and not which is to be paid for expenditure to be incurred in future. Therefore, he is not entitled to interest at Rs.10,00,000/- awarded for future medical expenses. The compensation awarded for loss of amenities, loss of marital prospects at Rs.50,000/- each is on the lower side. Therefore, we enhance it to Rs.1,00,000/- each under the heads of loss of amenities and loss of marital prospects.
15. The compensation awarded is re-computed as under:
Sl.No. Compensation under various heads Award amount 1 Future loss of earnings Rs.54,00,000/-2
Future medical expenses Rs.10,00,000/-3
Artificial limbs Rs.4,86,000/-4
Medical expenses Rs.2,70,000/-5
Loss of amenities & mental agony Rs.1,00,000/-6
Loss of marital prospects Rs.1,00,000/-7
Pain and sufferings Rs.1,00,000/-8
Attendant charges Rs.80,000/-9
Extra Nourishment Rs.24,000/-10
Transport to hospital Rs.20,100/-11
Damage to clothing and articles Rs.2,500/-
Total Rs.75,82,600/-
Thus, the overall compensation amount is reduced from Rs.1,00,00,000/- to Rs.75,82,600/-.
16. In the result,
i) The civil miscellaneous appeal is allowed and the compensation awarded by the Motor Accidents Claims Tribunal, II Court of Small Causes, Chennai, in M.C.O.P.2797 of 2011, by order, dated 21.12.2012, is reduced from Rs.1,00,00,000/- to Rs.75,82,600/-.
ii) Except the amount awarded towards future medical expenses i.e., Rs.10,00,000/- the remaining amount shall carry interest at Rs.7.5 % per annum.
iii) The appellant shall deposit the compensation amount, less the amount already deposited, within a period of eight weeks from the date of receipt of a copy of this order.
iv) On such deposit, the Claimant is entitled to withdraw the amount lying to the credit of MCOP.No.2797 of 2011 on the file of Motor Accidents Claims Tribunal, II Court of Small Causes, Chennai, along with accrued interest, on his filing appropriate Application before the Tribunal.
v) There shall be no order as to costs.
vi) Consequently, connected miscellaneous petition is closed.
(M.J.J.) (A.J.J.)
26.11.2014
Index:Yes/No
Internet: Yes/No
vsi
To
The Motor Accidents Claims Tribunal,
II Court of Small Causes,Chennai.
M.JAICHANDREN,J.
and
ARUNA JAGADEESAN,J.
Vsi
C.M.A. No.1038 of 2013
26.11.2014