Madras High Court
The Oriental Insurance Co. Ltd vs Anthonyraj @ Kavin Anthony on 22 October, 2018
Author: S.Manikumar
Bench: S.Manikumar, M.Govindaraj
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.10.2018
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
C.M.A.NO.593 OF 2015
AND CMP NO.1 OF 2015
CROSS OBJECTION NO.30 OF 2016
The Oriental Insurance Co. Ltd.,
Kancheepuram. ... Appellant in CMA.593/15/
1st Respondent in Cross Obj.No.30/2016
Versus
1.Anthonyraj @ Kavin Anthony
@ Anthony ... 1st Respondent in CMA.593/15/
Cross Objector
2.K.Sivakumar
3.The Managing Director,
Tamil Nadu State Transport
Corporation Ltd., Villupuram. ... Respondents 2 and 3 in
both CMAs' and Cross Obj.
PRAYER: Civil Miscellaneous Appeal is filed against the judgment and
decree in M.C.O.P.No.576 of 2009, dated 06.09.2014, on the file of
the Motor Accident Claims Tribunal (II nd Additional District Court)
Poonamallee.
For Appellant : Mr.S.Manohar
For Cross Objector/
1st respondent : Mr.K.Suriyanarayanan
For 3rd Respondent : Mr.K.J.Sivakumar
http://www.judis.nic.in
2
JUDGMENT
(JUDGMENT OF THE COURT WAS MADE BY M.GOVINDARAJ, J.) Being aggrieved by the judgment and decree in M.C.O.P.No.576 of 2009, dated 06.09.2014, on the file of the Motor Accident Claims Tribunal (II nd Additional District Court) Poonamallee, the Oriental Insurance Co. Ltd., has preferred the present appeal. Not satisfied with the quantum of compensation, the first respondent/claimant has also filed cross-objection, seeking enhancement.
2.Short facts leading to the appeal are as follows:
On 09.05.2009, about 23.00 Hours, while the petitioner was travelling on the road, as passenger in Government Bus, bearing Registration No.21 N 1227, from Pondicherry to Chennai, near Vilambur Village, in East Coast Road, a private bus, bearing Registration No. TN 23 AS 9238, owned by the second respondent herein and insured with the appellant-Insurance Company, came in the opposite direction, in a rash and negligent manner, dashed against http://www.judis.nic.in 3 the bus, due to which, the respondent/claimant sustained grievous injuries and admitted in PIMS hospital, Pondicherry. During the period of treatment, his right hand was fully amputated. In this regard, a case in Cr.No.387 of 2009, has been registered against the driver of the private bus, for the offenses, under Sections 279 and 338 IPC., on the file of Chunambedu Police Station. For amputation of his right hand, the injured claimed compensation of Rs.25,00,000/-.
3.The appellant-Insurance Company has disputed the manner of accident, contending inter alia that on the date of accident, the Government bus, bearing Registration No. TN 21 N 1227, driven by its driver, viz., K.Kannan, in a rash and negligent manner, from Pondicherry to Chennai and near Vilampur Village, on the lake curve portion road, the said bus brushed against the unknown vehicle, due to which, the respondent/claimant, who was traveling in the said bus, by protruding his hand, outside the body of the bus, violating the cautions mentioned inside the Government bus, sustained injury, along with four other passengers. Since the driver, K.Kannan, being an influenced person, along with union peoples, made out a false/fabricated FIR, against the driver of the private bus, bearing http://www.judis.nic.in 4 Registration No.TN-23-AS-9238. However, the Police, on investigation, found that the private bus, bearing Registration No.TN 23 AS 9238, is not negligent in causing the accident and therefore, closed the file as “Action Dropped” in FAD.No.28 of 2010, on 13.10.2010. Therefore, it was contended that the accident occurred only due to the rash and negligent driving of the driver of Government bus, in which, the respondent/claimant was travelling and hence, the claim petition be dismissed in limine for non-joinder of necessary party, viz., owner of the Government Bus, bearing Registration No.TN 21 N 1227. Without prejudice to the above, they disputed the age, avocation and income of the injured and the compensation claimed under various heads.
4.Thereafter, the claim petition was amended, vide order dated 25.01.2011 in I.A.No.1388 of 2010, claiming compensation of Rs.61,30,000/- on the grounds that the injured was working as Associate Director in various Film Industries and also a member in the Tamil Nadu Thiraipada Iyakkunargal Sangam (TANTIS) and his Associate Director Membership card number in 1709. He was also working as Assistant Director in G.V.Films Ltd., Chennai and earned a salary of Rs.20,000/- per month. He produced many serials and his name got http://www.judis.nic.in 5 familiar. Thereafter, he run a production company, in the name and style of “Kavin Arts”, by which, he produced and directed a short film called, “IRUL”, which was published in popular TV Channels. He also produced many short film, in association with various film industries and earned good money. According to him, due to the accident, he lost his earning capacity and hence, claimed compensation.
5.Subsequently, the Managing Director, Tamil nadu State Transport Corporation (Villupuram) Ltd., has impleaded as 3rd respondent, vide order in I.A.No.1055 of 2011, dated 29.02.2012.
6.Before the claims tribunal, the respondent/claimant examined himself as P.W.1., P.W.2 and P.W.3 are directors in film industry. P.W.4. is the doctor, who clinically examined the respondent/claimant, with reference to the medical records. Ex.P1 – ID Card, Ex.P2 – Ration Card, Ex.P3 – Agreement, Ex.P4 – FIR, Ex.P5 – Photographs and CD, Exs.P6 & P7 – Discharge Summary, Ex.P8- Medical Certificate, Exs.P9 to P11 and P18 to P21 – Medical Bills, Ex.P12 – Member card, Ex.P13 – Salary Certificate, Exs.P14 to P16, P22 and P23 – Publication in the Newspaper, Ex.P24 – Disability Certificate, http://www.judis.nic.in 6 Ex.P25 – X-Ray, Ex.P26- University Certificate for Klaviyal Pulan, Ex.P27 – University Transfer Certificate, Ex.P28 – New Salary particulars book, Ex.P29 – Certificate given by Tamio Nadu Director's Assosciation, Ex.P30 – Irul Film CD, Ex.P31 – 4777 film CD, Ex.P32 – Megam film CD, Ex.P33 – Athikalai Film CD and Ex.P34 – Avan Ivan film CD, have been marked on the side of the respondent/Claimant. On behalf of the appellant -Insurance Company, two witnesses, viz., Thiru.Narendran and Thiru.Kannan, have been examined as R.Ws.1 and 2 and returned and Thiru.Kannan, have been examined as R.Ws.1 and 2 and returned cover has been marked as Ex.R1.
7. On evaluation of Pleadings and evidence, the claims tribunal found that the driver of the private bus, bearing Registration No. TN 23-AS-9238, owned by the second respondent herein and insured with the appellant – Insurance Company, was negligent in causing the accident and hence, quantified the compensation at Rs.30,00,000/-, with the interest at the rate of 7.5% per annum, from the date of claim, till the date of deposit. The amount apportioned under various heads is as follows:
http://www.judis.nic.in 7 Disability compensation : Rs. 2,70,000/-
Medical Bills : Rs. 1,80,000/-
Expenses for artificial limb : Rs. 6,02,000/-
Pain and suffering : Rs. 2,00,000/-
Extra Nourishment : Rs. 50,000/-
Loss of income : Rs. 5,00,000/-
Attendant Charges : Rs. 1,00,000/-
Loss of amenities : Rs. 70,000/-
Loss of earning capacity : Rs.10,00,000/-
Damages to clothes : Rs. 3,000/-
Transportation : Rs. 25,000/-
8. Heard both sides.
9. On perusal of the materials available before this Court, it could be seen that the claimant let in evidence as to the manner in which the accident has taken place, which is supported by the evidence of R.W.2, the driver of the third respondent bus. From the narration, it could be inferred that the damage to the Government bus had taken at the rear end on the right side. It is well proved that the driver of the second respondent bus had caused the accident. The Tribunal relying on Ex.A1 - Identity card, Ex.A4- FIR and evidence of RW2, has rightly came to the conclusion that the driver of the second http://www.judis.nic.in 8 respondent was solely responsible for the accident. Since the bus was insured with the appellant insurance company, the liability is rightly fastened on them. Therefore, the finding of the Tribunal is based on oral and documentary evidence. The contention of the appellant insurance company is not supported with any legal evidence. There is nothing on the record to show that the driver of the third respondent Transport Corporation has contributed for the accident. In fact, the appellant should have examined the driver or conductor of the bus belonging to the second respondent in the appeal. In the absence of any proof contrary to evidence, this Court is not inclined to accept the contention that the liability should be fixed on the third respondent Transport Corporation.
10.In so far as the compensation is concerned, it is well proved that the claimant has lost his right hand in the accident, which causes permanent disability, depriving the claimant for the usage of his right hand. The P.W.4 Doctor has assessed the disability caused due to the loss of right hand is 90% vide. Exs.P24 and 25. The Tribunal has rightly awarded the sum of Rs.2,70,000/- towards permanent disability, fixing a sum of Rs.3,000/- per disability. There is no http://www.judis.nic.in 9 infirmity in awarding the compensation for permanent disability and it does not require any interference. The award of compensation towards medical expenses is borne out by Exs.P9, P10, P11 and P18 to P21, which clearly established that a sum of Rs.1,78,838/- was spent towards medical expenses. Therefore, the award of compensation for a sum of Rs.1,80,000/- under the head "medical expenses" is just and reasonable. The quotation for original limb has clearly shows the that the cost of original limb is Rs.6,02,000/-. The claimant is only 27 years old at the time of accident and during his life time he may have to change the original limb at least twice. However, the Tribunal has awarded only a sum of Rs.6,02,000/- without considering the future requirements. Therefore, we do not find that the award of Rs.6,02,000/- for fixing the original limb is excessive. It is not the case of the respondents that the cost of original limb is lesser than the award amount and no evidence has been given on this aspect.
11.The award of compensation for pain and suffering at Rs.2,00,000/-, in the considered opinion of this Court, appears to be lesser. Medical certificates produced vide. Exs.P8 and Ex.P25;
photograph and Compact Disk-Ex.P5; Discharge summary - Exs.P6 and http://www.judis.nic.in 10 P7 shows that the claimant should have suffered both mental and physical agony. The loss of right hand, which is a vital part for a person's functioning, would definitely cause severe mental agony. One would be unconsciously tempted to use the right hand forgetting that he has lost it, particularly, when the claimaint is an upcoming Director of films, to visualise the frames, he obviously tend to use both the hands. Further, in the absence of right hand, no doubt it is true that he is forced to use his left hand for all purposes. In such circumstances, the award under the head pain and suffering should have been higher than Rs.2,00,000/- awarded by the Tribunal. If all the above factors are considered, a sum of Rs.3,50,000/- would be just compensation and accordingly it is increased by Rs.1,50,000/-. The nature of injury and treatment given to the claimant is very severe and naturally it requires expenses towards his nutrition and diet. The award of Rs.50,000/- is not very high, but reasonable and therefore, we are inclined to accept the same, as awarded by the Tribunal. Vide Ex.P13 - P.W.2 Director had given evidence that the claimant was receiving a sum of Rs.20,000/- per month as Assistant Director. This evidence is further supported by the evidence of P.W.3.-Film Director. Exs.P12, 14, 15, 16, 17, 22, 23, 29, 30 and 34 http://www.judis.nic.in 11 are the media reports as well as the compact disks of the films, in which the claimant, has played a role either in making or production of the film. In such circumstances, the Tribunal assessed the income of claimant at Rs.20,000/-, which in our considered view, based on documentary evidence and the same was not disputed by any evidence on the side of the appellant, has to be accepted. As per the claim petition, the claimant has undergone treatment from 10.05.2009 to 10.11.2009. Therefore, we are inclined to grant a sum of Rs.1,20,000/- towards loss of income during the period of treatment. The Tribunal has awarded a sum of Rs.5,00,000/- towards loss of income during the period of treatment, which is now reduced by Rs.3,80,000/- and Rs.1,20,000/- is awarded during the treatment period. Even after discharge also, the claimant would need the assistance of an attender to take care of him and to assist in his daily routines.
12. The Tribunal has awarded a sum of Rs.1,00,000/-. However, on the basis of the present day cost index, we consider that he has to pay a minimum of Rs.100/- per day i.e., Rs.3,000/- per month to any attender. Based on this, the amount calculated will http://www.judis.nic.in 12 come around Rs.36,000/- per annum. The Tribunal has awarded a sum of Rs.1,00,000/- and we consider it as reasonable. As discussed above, the claimant has lost his right hand which is the vital organ in the body of the person, without right hand, the prospects of a person getting chances for a Director of film is certainly reduced. Likewise, in personal life also getting a match could be diminished. Other aspects, the usage of right hand is deprived and physical appearance also is cause of concern. In such circumstances, the claimant has entitled to get compensation for loss of amenities. The Tribunal awarded a sum of Rs.70,000/- which we consider as very low. In so far as, loss of future income is concerned, the Tribunal assessed Rs.20,000/- as monthly income. The percentage of loss is fixed as 90%. Since the claimant is 27 years, as held by the Hon'ble Supreme Court in SARLA VERMA (SMT) AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER [2009 (6) SCC 121] the claimant is entitled to 50% towards the future prospects. Thus, the monthly income is arrived at Rs.30,000/- and after deducting 1/2nd towards personal expenses, it comes to Rs.15,000/- per month. Thus, the loss of future income is calculated as Rs.15,000 x 90/100 x 18 x 12 = Rs.29,16,000/-. The Tribunal has only awarded a sum of http://www.judis.nic.in 13 Rs.10,00,000/-. Therefore we are inclined to increase the same by Rs.19,16,000/-. The award in respect of conventional damages and transportation as Rs.3,000/- and Rs.25,000/- respectively is confirmed as it is reasonable. Thus, the compensation is reworked as under:
For permanent disability : Rs. 2,70,000/-
On medical expenses : Rs. 1,80,000/-
Cost of artificial limb : Rs. 6,02,000/-
Pain and suffering : Rs. 3,50,000/-
For nutrition : Rs. 50,000/-
For loss of income during treatment: Rs. 1,20,000/-
For attender charges : Rs. 1,00,000/-
Loss of amenities : Rs. 2,00,000/-
Loss of future income : Rs.29,16,000/-
Conventional damages : Rs. 3,000/-
Transportation : Rs. 25,000/-
Total : Rs.48,16,000/-
Though the claimant is entitled to a sum of Rs.48,16,000/-, the Tribunal has awarded only a sum of Rs.30,00,000/- towards compensation and therefore, we are inclined to interfere with the award passed by the Tribunal. In view of reworking of compensation, we are of the considered opinion that the claimant is entitled to http://www.judis.nic.in 14 Rs.48,16,000/- and we are inclined to allow cross objection.
13. In the light of the reworking, Civil Miscellaneous Appeal No.593 of 2015 is dismissed and Cross Objection No.30 of 2016, is allowed as indicated above. M/s.Oriental Insurance Co. Ltd., is directed to deposit the amount, now determined by this Court, less the amount already deposited, with proportionate accrued interest at the rate of 7.5% and costs, to the credit of M.C.O.P.No.576 of 2009, on the file of the Motor Accidents Claims Tribunal (II Additional District Court) Poonamallee, within a period of four weeks, from the date of receipt of a copy of this order. On such deposit being made, the claimant is permitted to withdraw the same, by making necessary applications before the Tribunal. Consequently, the connected miscellaneous petition is closed. No costs.
[S.M.K.J] [M.G.R.J]
22.10.2018
Index : Yes/No
Internet : Yes/No
bkn/tk
http://www.judis.nic.in
15
To
The Motor Accident Claims Tribunal
(II Additional District Court)
Poonamallee.
http://www.judis.nic.in
16
S.MANIKUMAR, J.
AND
M.GOVINDARAJ, J.
bkn/tk
C.M.A.NO.593 of 2015
AND CMP NO.1 of 2015
Cross Objection No.30 of 2016
22.10.2018
http://www.judis.nic.in