M/S The Oriental Insurance Company ... vs Yazhmozhi on 28 August, 2024

[Cites 2, Cited by 0]

Madras High Court

M/S The Oriental Insurance Company ... vs Yazhmozhi on 28 August, 2024

C.M.A(MD)No.950 of 2018 is filed by the Insurance Company assailing the award dated 30.11.2017 passed in MCOP No.848 of 2010 by the Motor Accident Claims Tribunal-cum-V Additional District Judge, Madurai. The claimant in the said O.P, has come up with Cross Objection seeking enhancement of compensation. Since both the appeal and the cross objection arise out of the same award passed in MCOP No.848 of 2010 dated 30.11.2017, both are heard together and disposed of by this common Judgment. For the purpose of clarity, the parties are referred to as per their rank before the Tribunal.

2. The case of the claimant is that on 02.02.2008, the claimant had travelled in a private bus bearing Reg.No.TN-58-K-2868 from Madurai to Chennai to go to her College at Anna University, Chennai. At about 10.30 p.m when the bus 3/16 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.950 of 2018 & Cro.Obj(MD)No.45 of 2023 reached near Vanchinagaram in Madurai, the driver of the bus drove the bus in a rash and negligent manner and in a high speed and suddenly turned the bus, due to which, the bus was capsized upside down on the right side of the road. In the impact, the claimant was injured all over the body and serious crush injury on the right hand below the wrist. Immediately, she was taken to Melur Government Hospital. After first aid, she was admitted in AVSS Hospital, Madurai for better treatment. Her right hand below the wrist was amputated. At the time of accident, the claimant was 18 years and she was studying B.E Computer Science in Anna University, Chennai. The accident had happened only due to the rash and negligent driving of the driver of the bus. The owner of the bus remained exparte before the Tribunal. The offending bus was insured with the appellant Insurance Company. Hence, the claimant claimed Rs.40,00,000/- as compensation.

3. The Insurance Company filed their counter disputing the manner of the accident and its liability to pay the compensation. It was contended that when the bus was nearing Vanjinagaram in Madurai, an unknown vehicle, which was driven by its driver in a rash and negligent manner without observing traffic rules, came in the opposite direction. In order to avoid collision with that vehicle, the 4/16 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.950 of 2018 & Cro.Obj(MD)No.45 of 2023 driver of the bus applied brake gently, however, the bus turned upside down on the road. Hence, the Insurance Company is not liable to pay compensation. It is stated that the claim is excessive.

4. To substantiate the case, on the side of the claimant, P.Ws.1 and 2 were examined and Exs.P1 to Ex.P.20 were marked. On the side of the appellant/Insurance Company, no one was examined and no document was produced.

5. The Tribunal, after considering the oral and documentary evidence, held that the driver of the bus was responsible for the accident and awarded compensation of Rs.99,15,416/- to the claimant. Challenging the same, this appeal and the cross objection have been filed.

6. The learned counsel for the Insurance Company would submit that as per the claim petition, at the time of accident, the claimant was 18 years old and she was studying B.E., Computer Science in Anna University, Chennai. Because of the injuries and amputation, she was not able to continue her studies. However, 5/16 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.950 of 2018 & Cro.Obj(MD)No.45 of 2023 the Tribunal failed to consider the fact that the claimant, after completing her graduation, joined Satish Bhawan Space Centre, Sriharikota, as a Junior Scientist, where she worked from 25.05.2016 to 24.05.2017 in the pay scale of Rs. 56,100-1,77,500. He would further submit that though the disability was assessed at 65%, the Tribunal took the functional disability at 80%, which is on the higher side. The Tribunal failed to ascertain the claimant's avocation, profession and nature of work before the accident. In spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which she was earlier carrying on. The disability has not affected her earning capacity. The claimant could pursue her B.E course, despite the disability with outstanding marks, she could have very well continued her studies and could have cleared her M.E course as well. The claimant has not produced a letter of resignation and relieving order issued by ISRO to show that she resigned for the reason that she wanted to pursue higher studies. In such view of the matter, the loss of functional disability taken at 80% by the Tribunal, is not correct. In fact, the claimant was employed after completion of B.E course and could have continued with the said service despite the amputation. The learned counsel would further submit that when there is no definite evidence that the claimant could not continue with her 6/16 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.950 of 2018 & Cro.Obj(MD)No.45 of 2023 service because of the disability, the Tribunal ought to have awarded reasonable compensation for permanent disability, pain and sufferings and loss of amenities. The Tribunal has miserably failed to award reasonable compensation but with sympathetic view, has awarded exorbitant award for loss of income to the claimant.

7. The learned counsel for the claimant would submit that the accident had occurred only due to the rash and negligent driving of the driver of the bus bearing Reg.No.TN-58-K-2868, in which, she had travelled. Though the Insurance Company has taken the defence that the accident had occurred only due to the rash and negligent driving of the driver of the opposite vehicle, no witness was examined to prove their case. The claimant has discharged her initial burden. The burden has been shifted to the appellant/Insurance Company. It is for the appellant/Insurance Company to discharge their onus in the manner known to law, which falls in this case. He would further submit that at the time of accident, the claimant was only 18 years and she was an Engineering student. In S.S.L.C, she secured 478 marks out of 500 marks and in the Higher Education, she secured 1166 marks out of 1200 marks and got admission in Anna University at Chennai in the Course of Computer Science. Even in the first year, she passed first 7/16 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.950 of 2018 & Cro.Obj(MD)No.45 of 2023 semester with Grade 'A' & 'S' and secured 9.26 grade point out of 10. Therefore, she was having bright future and after completing the first semester, she met with the accident. Due to the accident, she was able to complete the four years course after seven years. Due to the accident, her right hand was amputated. Though she joined M.E Course at Anna University, Chennai, she could not pursue her study. However, she joined Indian Space Research Organization (ISRO) as Junior Scientist and worked from 25.05.2016 to 24.05.2017 and the level of pay matrix is stated as Rs.56,100-1,77,500. In order to prove the same, a Xerox copy of the Pay Slip has been marked as Ex.P.18. As per Ex.P.18, her basic pay is Rs. 56,100/- and she was earning between Rs.57,222/- and Rs.64,422/- per month as salary from November 2016 to March 2017. The disability certificate has been issued by the Medical Board, Government Rajaji Hospital, Madurai. As per Ex.P. 12 disability certificate, the claimant has 65% of permanent disability in relation to her right forearm amputation and the said condition is non-progressive. At the time of accident, the claimant was only 18 years B.E., Graduate in Computer Science. Therefore, the functional disability of the claimant is 100%, being a Computer Engineer, as per the decision of the Honourable Supreme Court in the case of Syed Sadiq vs. United India Insurance Company Ltd., reported in 8/16 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.950 of 2018 & Cro.Obj(MD)No.45 of 2023 (2014)2 SCC 735. However, the Tribunal has taken the functional disability only as 80%. Considering Exs.P.17 and P.18, the income of the claimant even otherwise can be taken as Rs.50,000/- per month which is just and reasonable compensation. Therefore, the Tribunal has considered the said fact and age and also the bright future of the claimant and that she sustained injuries and being a lady and her right hand was amputated, were taken into consideration. Hence, the Tribunal has taken the monthly income as Rs.50,000/- and by applying multiplier '18' and adopting 80% disability, has awarded Rs.86,40,000/- [50000x18x12x80/100]. Though the claimant claimed Rs.40,00,000/- as compensation, the Tribunal has awarded Rs.99,15,416/- together with interest at 7.5% per annum, under the following heads:

                                                 Heads                              Rs.
                            Damage to clothing and other articles                   500/-
                            For Medical Treatment Expenses                    10,51,156/-
                            Transport Expenses                                   23,760/-
                            Pain and Suffering                                 1,00,000/-

Permanent disability & Loss of earning power 86,40,000/-

                            Loss of Marriage Prospects                         1,00,000/-
                            Total                                             99,15,416/-




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C.M.A(MD)No.950 of 2018 & Cro.Obj(MD)No.45 of 2023

8. The learned counsel would further submit that even though the appellant Insurance Company has taken a view that the offending vehicle was not insured, however, they have not taken the said stand before the Tribunal or in the counter and no evidence was let in and therefore, the Tribunal has passed the award. He would further submit that Tribunal failed to consider the marriage prospects and future treatment of the claimant and failed to consider the fact that the claimant is a bright student, who was an Engineering Graduate and also passed first semester and due to the accident, she could not complete the course in time. The claimant is a 18 years girl and her right hand was amputated. Though an artificial arm was fixed, she could not carry her day-to-day needs as in the original hand. Hence, the Tribunal ought of have fixed 100% disability as per the decision of the Honourable Supreme Court in the case of Syed Sadiq (cited supra). The Tribunal without any reason has taken only 80% disability, for which, they also filed separate cross objection.

9. In reply, the learned counsel for the Insurance Company would submit that the claimant was the Engineering Student and she got admission for M.E in Anna University, Chennai, and immediately after completing M.E course, she 10/16 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.950 of 2018 & Cro.Obj(MD)No.45 of 2023 wanted to join as Research Officer in ISRO and she joined. She was able to earn salary immediately soon after completing this course. Due to the accident, there was no loss of earning. Further, the Medical Board has given disability certificate only for 65% permanent disability. However, the Tribunal has awarded 80% disability, though the citation referred to by the learned counsel for the claimant is not applicable to the present case on hand. In this case, the claimant was able to complete the course and secure the job and was getting income. Therefore, there is no disability of cent percent. Even the Tribunal has awarded on the higher side for the disability of 80% instead of 65%. Therefore, the cross objection is liable to be dismissed.

10. Heard both sides and perused the materials available on record.

11. The accident is not in dispute and in the accident, the claimant sustained injury, which is also not in dispute. At the time of the accident, the claimant was 18 years and she completed her school studies and joined B.E Computer Science in Anna University, which are also not in dispute. The said fact that the claimant was a bright student and got admission in the Anna 11/16 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.950 of 2018 & Cro.Obj(MD)No.45 of 2023 University and she passed first semester and secured high score, are also not in dispute. Though the manner of the accident and liability were disputed by the appellant Insurance Company, the defence was not substantiated by producing any oral and documentary evidence and also no contra evidence was produced against the claimant's witness. Due to the accident, the claimant has sustained injuries in the right hand and the right hand was amputated, which was also not in dispute. Subsequently, she completed four years Engineering course after seven years. The three years delay in completing the course is also not in dispute. Though she got admission in the Anna University, however, according to the claimant, she could not pursue her study due to various reasons including suffering and also disability. Therefore, if the accident had not happened, she could have completed her studies within time and could have secured a job even in the better place and better position. During 2008, the computer science course was in peak and the bright students, who completed the computer science, secured a good job and also their life style has also gone somewhere else. In this case, the claimant is a girl and due to the accident, she could not complete the course within the stipulated time. Though she got selected in the campus interview through Anna University, she wanted to pursue study, she could 12/16 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.950 of 2018 & Cro.Obj(MD)No.45 of 2023 continue the post graduate degree and hence, she joined in the job. Even otherwise, if the accident had not happened, she could have reached top of the different positions and monthly salary would also be different in the short span of time. Even at the time of deciding the claim petition, she was 27 years and she could not get married. Being a girl, unmarried and amputation had happened, it is very difficult to settle in her life and that cannot be compensated in terms of money. Therefore, though the medical board has given disability as 65%, considering all the facts, the Tribunal has fixed 80%.

12. Though the learned counsel for the claimant referred to the Judgment of the Honourable Supreme Court in the case of Syed Sadiq, the facts and circumstances of the above said case is entirely different from the present case on hand. No doubt, the claimant was able to pursue her study and secured the job and getting salary, but we cannot ignore the fact that she could not complete her study in time, she could not get settle in her life in time, she could not enjoy her teenage life and happiness and furthermore, her marriage prospects is in question mark. Therefore, the Tribunal has rightly applied its mind. Though the medical board had issued certificate with 65% disability, the Tribunal has taken the 13/16 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.950 of 2018 & Cro.Obj(MD)No.45 of 2023 disability as 80%. However, there are sufficient oral and documentary evidence, which shows that the claimant has secured job and earning salary. Hence, 100% disability for the purpose of loss of earning power cannot be considered in this case. Since the appellate Court as fact finding Court, this Court has re- appreciated the evidence.

13. Considering the facts and circumstances of case that the right hand was amputated and the medical board has issued certificate as 65% disability and considering the age and also other material facts and other aspects, the Tribunal has considered the disability at 80%. Therefore, this Court finds no reason to interfere with the award and the compensation awarded by the Tribunal reflects just compensation.

14. In fine, both the Civil Miscellaneous Appeal filed by the Insurance Company and the Cross Objection filed by the claimant are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.

                                                                 [P.V.,J.]      [K.K.R.K.,J.]
                 skn                                                         28.08.2024
                 NCC : Yes/No
                 Index : Yes / No
                 Internet : Yes


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C.M.A(MD)No.950 of 2018 & Cro.Obj(MD)No.45 of 2023 To

1.The Motor Accident Claims Tribunal

-cum-V Additional District Judge, Madurai.

2.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.

15/16 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.950 of 2018 & Cro.Obj(MD)No.45 of 2023 P.VELMURUGAN, J.

and K.K.RAMAKRISHNAN, J.

skn COMMON JUDGMENT MADE IN C.M.A(MD)No.950 of 2018 & Cross Obj(MD)No.45 of 2023 and C.M.P(MD)Nos.10252 of 2018 & 16776 of 2023 28.08.2024 16/16 https://www.mhc.tn.gov.in/judis

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