Madras High Court
R.Harrish vs G.Divakaran on 1 April, 2014
Author: S.Rajeswaran
Bench: S.Rajeswaran, S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 01-04-2014 CORAM: THE HON'BLE MR.JUSTICE S.RAJESWARAN AND THE HON'BLE MR.JUSTICE S.VAIDYANATHAN C.M.A.NOs.1077 of 2012 and 1023 OF 2013 CMA No.1077 of 2012: R.Harrish .. Appellant Versus 1. G.Divakaran 2. The Oriental Insurance Co.Ltd., Divisional Office No.7, 377, Anna Salai, III Floor, Chennai-600 018. 3. Sri Krishna Engineering College, Panapakkam, Padappai (near), Via Tambaram, Chennai-601 301. 4. United India Insurance Co.Ltd., No.98-A, Dr.Radhakrishnan Salai, Auras Corporation Centre, Mylapore, Chennai-600 004. .. Respondents For Appellant : Mr. M.Muthurajan For Respondents : Mr.M.Venkata Raghavan for R2 Mr.S.Arun Kumar for R4 CMA No.1258 of 2013: The Oriental Insurance Co.Ltd., Divisional Office No.7, 377, Anna Salai, III Floor, Chennai-600 018. .. Appellant versus 1. R.Harrish 2. G.Divakaran 3. Sri Krishna Engineering College, Panapakkam, Padappai (near), Via Tambaram, Chennai-601 301. 4. M/s.United India Insurance Co.Ltd., No.98-A, Dr.Radhakrishnan Salai, Auras Corporation Centre, Mylapore, Chennai-600 004. .. Respondents Prayer: These appeals are filed against the judgment and decree in MCOP No.1881 of 2008, dated 09.08.2011 on the file of the Motor Accidents Claims Tribunal, (IV Court of Small Causes), Chennai. For Appellants : Mr. M.Venkataraghavan For Respondents : Mr.N.Muthurajan for R1 COMMON JUDGMENT
(Judgment of this Court was delivered by S.VAIDYANATHAN, J.) These appeals arise from the judgment and decree, dated MCOP No.1881 of 2008, dated 09.08.2011 on the file of the Motor Accidents Claims Tribunal, (IV Court of Small Causes), Chennai in and by which, the Tribunal has awarded a sum of Rs.27,84,500/- towards compensation with interest at 7.5% p.a. to the claimant, namely, Harrish who sustained grievous injuries in the road accident on 04.04.2008.
2. The appellant in CMA No.1077 of 2012, who is the claimant, has come forward with the appeal, having not satisfied with the quantum of the compensation awarded by the Tribunal, whereas, the appellant in CMA No.1259 of 2013, the Oriental Insurance Company Limited, has come forward with the appeal, questioning the quantum of compensation awarded by the Tribunal.
3. For the sake of convenience, the claimant will be referred as 'the appellant and the Oriental Insurance company will be referred to as 'the first respondent' and the owner of the vehicle will be referred to as 'the second respondent'.
4. Necessary relevant facts are stated hereunder to appreciate the case of both the parties and to find out whether they are entitled to the reliefs as prayed for by them in these appeals respectively.
5. The appellant is a student in 3rd respondent/Engineering College. On 04.04.2008 at about 8.30 hours, while the appellant was travelling in a bus bearing Registration No.TN-23-C-9576 from West Mambalam to reach his college along Tambaram-M.M.Forgings, Karanaithangal village, a lorry bearing Registration No.TN-02-H-7164 came in a rash and negligent manner in opposite direction and dashed against the rear right wheel of the bus. As a result of which, the appellant along with three students sustained grievous injuries. The accident occurred due to the rash and negligent driving of the driver of the lorry. The appellant has filed a claim petition in MCOP No.1881 of 2008 before the Tribunal, claiming a compensation of Rs.50,00,000/-.
6. The claim petition has been resisted by the first respondent/Insurance Company by filing a detailed counter affidavit, disputing the manner of the accident as stating that the accident was not due to rash and negligent driving of the lorry, but there was contributory negligence on the part of appellant since he kept his hand protruding beyond the window sill of the bus. The injuries sustained by the claimant were disputed and stated that the compensation claimed is highly excessive,
7. The Tribunal, to determine the just compensation, examined the claimant and two others as PWs.1 to 3 and marked 13 documents as Exs.P1 to P13. No evidence was adduced on behalf of the respondents.
8. On evaluation of the pleadings and evidence both oral and documentary, the Tribunal awarded a sum of Rs.27,84,500/- as compensation payable by the first respondent/Insurance Company together with interest at 7.5% p.a. from the date of filing of the petition till the date of payment. Aggrieved over the same, both the claimant and the Insurance Company have come forward with the present appeals.
9. The learned counsel appearing for the claimant would contend that the Tribunal has not adequately compensated under the different heads, viz., permanent disability since the claimant's right hand got amputated upto shoulder level, pain and suffering, mental agony, loss of earning capacity, loss of amenities of life including loss of marriage, etc. He also pointed out that the Tribunal has not considered the future prospects of the claimant.
10. Per contra, the learned counsel appearing for the first respondent/Insurance company would submit that the Tribunal had erroneously awarded a huge compensation contrary to the principles for awarding the compensation. He pointed out that awarding Rs.2,00,000/- towards loss of education, Rs.50,000/- towards transport, Rs.25,000/- towards extra nourishment, Rs.1,00,000/- towards medical expenses, Rs.1,40,300/- towards furture medical expenses, Rs.50,000/- towards attender charges, Rs.75,000/- towards mental agony and Rs.1,00,000/- towards pain and suffering, is excessive and and awarding Rs.18,43,200/- towards loss of earning capacity is highly speculative and contrary to the decision of the Hon'ble Supreme Court. Therefore, the learned counsel sought for reducing the the award amount.
11. Heard the learned counsel appearing for the appellant/claimant and the first respondent/Insurance Company. We have also gone through the documents made available on record.
12. It is not in dispute that the claimant was 18 years and he was a Engineering student at the time of accident. It is also not in dispute that the claimant had sustained grievous injuries and his right hand got amputated upto shoulder level. PW.2 is the Medical Officer and she deposed that she examined the claimant and found that he suffered AE amputation of right hand the claimant was having artificial limb as stump level is 2 inches. She assessed the permanent disability at 80%. The Tribunal has fixed the disability at 80% and taking note of the fact that the future movement was curtailed due to his amputation which hampered him in carrying out his day-today work and such hindrance will be throughout his life, the Tribunal awarded the lossy of earning capacity by adopting multiplier 16 while fixing the monthly salary at Rs.12,000/- based on the fact that the claimant was an Engineering Student and awarded a sum Rs.18,43,200/- towards loss of earning capacity.
13. It is to be noted that the compensation for loss of earning power/capacity has to be determined based on various aspects including the permanent injury/disability. It cannot be disputed that apart from the fact that the permanent disability affects the earning capacity of the person concerned undoubtedly, one has to forego the other personal comforts and even for normal avocation, they have to depend on others. In the case on hand, as per Ex.P13 Disability Certificate, the claimant had sustained 80% disability since his right hand got amputated upto his shoulder level, as a result of which, the claimant was unable to do his day-to-day work at his tender age and he not only physically but also mentally suffers throughout his life by cursing his fate and it is obvious that his future movement also curtailed due to his amputation as he cannot ride any vehicle and it is reported that due to this, he lost his education also.
14. Considering the fact that the claimant was 18 years at the time of occurrence of the accident, applying the principle of "Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC), we are of the view that for calculating the amount of compensation, the multiplier (16) adopted by the Tribunal is erroneous and it should be 18. The Tribunal has fixed the monthly income of the claimant at Rs.12,000/- based on the fact that the claimant was an Engineering Student and after completion of his studies, there would be every likelihood of earning Rs.40,000/- per month. We agree with the view of the Tribunal in fixing the monthly income of the claimant at Rs.12,000/-. The issue regarding calculation of future prospects came up before the Hon'ble Supreme Court, in "Syed Sadiq and others versus Divisional Manager, United India Insurance Co.Ltd." reported in 2014 ACJ 627", wherein, having followed the decision in "Santhosh Devi versus National Insurance Co.Ltd. (2012) ACJ 1428 (SC)" and on considering that the claimant therein was aged 24 years who suffered permanent functional disability at 85%, the Hon'ble Supreme Court has held that the claimant is entitled to 50% increment in the future prospects.
15. Thus, the total amount which awarded under the head of "loss of earning capacity"including 50% towards future prospects, works out to be Rs.23,32,800/- (Rs.12000/-x12x18x90/100).
16. As regards compensation awarded by the Tribunal under the heads of "pain and suffering" and "loss of marital prospects" are concerned, considering the nature of the injury sustained by the claimant, we are of the view that the compensation awarded by the Tribunal at Rs.1,00,000/- and Rs.2,00,000/- appears to be on lower side and they require to be enhanced in view of the decision in "G.Ravindranath versus E.Srinivas and another"reported in 2013 ACJ 2131". In the said decision, the Hon'ble Supreme Court has granted Rs.4,00,000/- towards loss of amenities of life and prospects of marriage and Rs.3,00,000/- towards pain and suffering to the claimant therein, who was a 19 years old student studying in PUC second year and sustained grievous injuries. Accordingly, the claimant is entitled to Rs.4,00,000/- towards loss of amenities of life and prospects of marriage and Rs.3,00,000/- towards pain and suffering.
17. As regards the compensation awarded by the Tribunal under other heads, viz., loss of education, transport to hospital and future transport expenses, extra-nourishment, damage to cloth, medical expenses, future medical expenses and attender charges are concerned, we are of the view that the Tribunal has adequately awarded and there is no need to modify the same.
18. Accordingly, the award of the Tribunal is modified as follows:
Sl.No. Particulars Amount granted by the Tribunal Amount granted by this Court 1 Loss of earning capacity Rs. 18,43,200/-
Rs. 23,32,800/-2
Loss of education Rs. 2,00,000/-
Rs. 2,00,000/-
3 Transport to Hospital & Future Transport expenses Rs. 50,000/- Rs. 50,000/- 4 Extra nourishment Rs. 25,000/- Rs. 25,000/- 5 Damage to clothing Rs. 1,000/- Rs. 1,000/- 6 Medical expenses Rs. 1,00,000/- Rs. 1,00,000/- 7 Future medical expenses Rs. 1,40,300/- Rs. 1,40,300/- 8 Attender charges Rs. 50,000/- Rs. 50,000/- 9 Mental agony Rs. 2,00,000/- Rs. 2,00,000/- 10 Loss of marital prospects Rs. 2,00,000/- Rs. 5,00,000/- 11 Pain and suffering Rs. 1,00,000/- Rs. 3,00,000/- Total Rs. 27,84,500/- Rs. 37,74,100/-
19. As regards the award of interest is concerned, the Tribunal has rightly awarded 7.5% p.a. from the date of claim petition till the date of deposit. Therefore, we do not find any reason to interfere with the same and the same is confirmed.
20. For the foregoing reasons, the appeal in CMA No.1258 of 2013 preferred by the Oriental Insurance Company Limited is dismissed and the appeal in CMA No.1077 of 2011 preferred by the claimant, is partly allowed. Consequently, connected MPs if any are closed.
21. Accordingly, the appellant in CMA No.1258 of 2013 is directed to deposit the above modified award amount, i.e. Rs.37,74,100/- with accrued interest at 7.5% p.a. from the date of petition till the date of payment, within a period of eight weeks from S.RAJESWARAN, J.
AND S.VAIDYANATHAN, J.
the date of receipt of a copy of this order, after deducting the amount if any already paid pursuant to the interim orders of this Court. On such deposit being made, the claimant is permitted to withdraw award amount on filing a proper application before the Tribunal.
Suk (S.R.,J.) (S.V.N.,J.) 01.04.2014 To The Motor Accidents Claims Tribunal, IV Court of Small Causes, Chennai. C.M.A.NOs.1077 of 2011 and 1258 of 2013