Madras High Court
No.1/37 vs Metropolitan Transport on 28 April, 2018
Author: S.Ramathilagam
Bench: S.Vimala, S.Ramathilagam
In the High Court of Judicature at Madras
Reserved on
20.12.2017
Pronounced on
28.04.2018
C O R A M
THE HONOURABLE MRS.JUSTICE S.VIMALA
&
THE HONOURABLE MRS.JUSTICE S.RAMATHILAGAM
C.M.A.No.3410 of 2017
Mrs.K.Bindu (Unconscious),
Rep. by her husband
Mr.P.R.Sujith,
Appointed as Guardian as per order in
M.P.No.225 of 2013 dt.17.01.2013,
No.1/370, 1st Cross Street,
Karthikeyapuram,
Madipakkam,
Chennai 600 091. ...Appellant
Vs
Metropolitan Transport
Corporation Ltd.,
Rep. by its the Managing Director,
Pallavan Salai,
Chennai 600 002. ..Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to enhance the award dated 08.01.2014 passed by III Small Causes Judge, Chennai in M.A.C.T.O.P.No.2410 of 2009 from Rs.44,48,040/- to Rs.75,00,000/-.
For Appellant : Mr. Muthusekaran
For Respondent : Mr. S. Sivakumar
J U D G M E N T
S.RAMATHILAGAM, J.
This Civil Miscellaneous Appeal has been preferred against the judgment and decree dated 08.01.2014 passed in M.A.C.T.O.P.No.2410 of 2009 by the appellant for enhancement of the award.
2. The brief facts of the claim petition is as follows;
(i) As per the claim petition, at the time of accident i.e. on 14.01.2009, while the claimant along with her daughter were standing in the corner of the road (Anna Salai), Mount Road, the bus bearing Registration No.TN - 01 N - 7291, which belongs to the respondent - Transport Corporation, driven by its Driver in a rash and negligent manner, hit the claimant and her daughter. Due to the said accident, the claimant sustained grievous injuries. Initially, the claimant was admitted in Apollo Speciality Hospital, Chennai from 14.01.2009 to 27.02.2009, thereafter from 15.04.2009 to 29.04.2009 and subsequently, from 29.04.2009 to 15.06.2009. Further, she has taken treatment at Vijaya Health Centre, Chennai for the period from 08.03.2010 to 13.03.2010 and in CMC Hospital, Vellore for the period from 08.11.2010 to 25.12.2010.
(ii)According to the claimant, at the time of accident, she was 34 years, she has been employed as Assistant Manager in a private Concern and earning a sum of Rs.18,000/- p.m. Therefore, the claimant has filed the claim petition, claiming a sum of Rs.75,00,000/- as compensation, before the Tribunal.
(iii)The Transport Corporation-respondent herein filed a counter contending that the injuries stated to have been sustained by the claimant are not severe and warranting reduction in head. It was also contended that due to the negligence contributed by the claimant, without noticing the oncoming bus, the accident had occurred. Therefore, according to the Transport Corporation, out of the compensation amount awarded, proper deduction has to be made towards contributory negligence. The Transport Corporation also denied the monthly income of the claimant and other details furnished by her in the claim petition.
(iv) Before the Tribunal, six witnesses were examined and twenty nine exhibits were marked on the side of the appellant and only one witness was examined and no document was marked on the side of the respondent.
(v)Based on the evidence and documents, the Tribunal found that due to rash and negligent driving of the respondent Transport Corporation bus, the accident has occurred and hence, the respondent is liable to pay compensation as claimed by the claimant.
3.The Tribunal after examining the witnesses and assessing the documents relied before it, awarded the amount of Rs.44,48,040/- as total compensation under various heads together with interest at the rate of 7.5% from the date of petition till the date of realisation. The details of compensation awarded under various heads is furnished below;
Description Amount in Rupees Loss of Income Rs. 2,10,120/-
Transport to Hospital
Rs. 25,000/-
Extra Nourishment
Rs. 1,00,000/-
Damage to clothing
Rs. 1,000/-
Medical Expenses
Rs. 3,00,000/-
Attender Charges
Rs. 1,00,000/-
Loss of amenities of life
Rs. 1,00,000/-
Loss of expectation of life
Rs. 1,00,000/-
Pain and sufferings
Rs. 1,50,000/-
Loss of earning capacity
Rs.33,61,920/-
Total Compensation
Rs.44,48,040/-
4.Aggrieved by the award passed by the tribunal, the claimant has preferred the present Civil Miscellaneous Appeal claiming enhanced compensation.
5.The appellant has raised the following grounds in the appeal:
(i)Even though the negligence is on the part of the Driver of the respondent Corporation, the learned Judge has erred in awarding lesser amount of compensation.
(ii)The learned Judge has erred in not awarding adequate amount of compensation under the heads of loss of earning for the period of treatment, medical expenses, loss of income to the family members, future medical expenses, loss of amenities of life and loss of expectation of life and pain suffering.
(iii)The learned Judge has not considered future prospects of the claimant.
6.Heard the learned counsel for the appellant and the learned counsel for the respondent.
7.The Tribunal, after assessing the evidence and pursuing the documents Exs.P.4 to P.9, P.12, P.15 and P.16, for determining the compensation, has observed as follows:
"Ex.P.4 Discharge summary reads to the effect that the petitioner has taken treatment as inpatient at Apollo Speciality Hospital from 14.1.2009 to 27.2.2009. On examination, no eye opening, no motor response intubated and GCS 2T/15, cranial nerves PERL right 3mm, left 3mm, Doll's eye movement present and punctured wound in the right ankle. She had suffered diffuse axonal injury and bilateral equinus deformity. CT brain plain revealed multiple right temporal small haemorrhagic contusions diffuse SAH with no mass effect, or midline shift. In view of low consciousness level, patient was intubated and electively ventilated. Tracheostomy was done to facilitate tracheal suctioning. Gradually she was improved and became afebrile. At discharge she is opening eyes spontaneously.
Ex.P.5, Discharge summary shows that she had taken inpatient treatment at Apollo Speciality Hospital from 15.4.2009 to 29.4.2009. During the period she was evaluated thoroughly. Tracheosotomy tube was blocked and further removed as patient tolerated well. It was decided to start on robotic mobilisation. For the same she was transferred to Apollo Main Hospital.
Ex.P.6 Discharge summary shows that she had taken inpatient treatment at Apollo Hospital from 29.4.2009 to 15.6.2009. Ex.P.7 Discharge summary shows that he had taken inpatient treatment at Vijaya Health Care hospital from 08.03.2010 to 13.03.2010. Ex.P.8 Discharge summary shows that she had taken inpatient treatment at Christian Medical College Hospital from 8.11.2010 to 25.12.2010. In physiotherapy, she was given stretches for the tight adductors and flexors of the hip and supinators and flexors of the elbow, she was progressed to walk in walker with one person support and she was able to walk with walker for 50 metres with speed of 5 meters/min. In occupational therapy, she was given training for the improving ADL independence and she was also given activities to improve the trunk control. In speech therapy, she was given exercises for identification of the pictures, use of communication chart and oromotor exercises. At the time of discharge she was dependent for all her activities of daily living, she was given home program to follow at home."
8.The above said discharge summaries would reveal that the injured was under treatment for a prolonged period and at the end, it has been stated that at the time of discharge, she was dependent for all her activities of daily living, she was given home program to follow at home.
9.The observation of the Doctors is that the injured is depending on others for all her activities of daily living. Further, it is observed that Ex.P.9 series are the prescriptions and Ex.P.12 are the photos with C.D. Ex.P.16 is the MRI brain report. Ex.P.29 Disability Certificate issued by P.W.6 Dr.Kotteeswaran also speaks about the same.
10.On a perusal of the documents, especially Ex.P.4, the age of the injured person is stated as 54. The injury sustained by the claimant and in spite of the effective treatment given to her at the time of discharge, she was found to be depending upon others for all her activities.
11.On a perusal of the evidence of P.W.6, the Doctor, who examined before the Tribunal, has issued a disability certificate Ex.P.29, in which, the disability has been assessed at 100%. The evidence of P.W.6 reads as follows:
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12.From the above evidence and the documents, it is observed that the injured person has sustained disability at 100% and her age is also 53 as per medical records.
13.From the evidence of P.W.4 and by examining Ex.P.22, the service particulars with salary details, it is observed that the injured was working as Assistant Manager in Saravana Stocks Private Limited and earning a sum of Rs.17,510/- being salary for the month of December 2008 and Ex.P.4, the salary certificate, also proves the same.
14.The attender of the injured during the period of her prolonged treatment was examined before the Tribunal as P.W.3, who deposed that she was attending the injured person for all her needs every morning from 7.00 a.m to 7.00 p.m., for which, she was paid a sum of Rs.6,000/- and Rs.1,000/- for conveyance and for which, Ex.P.18, Nursing charges bill was also filed for a sum of Rs.27,600/-.
15.From perusal of above documents, the evidence of Doctors and the disability certificate, it is very much observed that the injured person is now in the vegetative state. Before the accident, she was working as Assistant Manager of Saravana Stocks (P) Ltd., Mylapore, Chennai and earning Rs.18,000/- per month and now, she is in a stage of mass and she could not do anything by herself. In spite of medical expenses and effective treatment given to her, she is in the same stage.
16.The learned counsel for the petitioner, while arguing before the trial Court on the side of the claimant, relied on a decision in Kavita vs. Deepak and others (2012 ACJ [2161]). The learned Judge, while calculating loss of earning power adopted the decision of the Supreme Court in Sarala Verma and others vs. Delhi Transport Corporation and another (2009 [2] TNMAC 1), adopted the multiplier 16, as per the age of the claimant fixed by the documents and awarded a sum of Rs.33,61,920/- (Rs.17,510/- x 12 x 16 x 100%). The said amount arrived at by the Tribunal based on the document and evidence is a proper one and hence the amount of Rs.33,61,920/- awarded under the head loss of earning capacity is hereby confirmed.
17.While perusing the status of the injured person, it is seen that she is in vegetative state and she is unable to do anything for her own and she needs a dependant to look after her till her life time and the same is such a pathetic one. Not only the injured person is in a painful condition, but her family members, who are taking care of her needs and noticing her are also in a painful and pathetic condition. Now they are in the responsibility of providing her future medical treatment. Hence, a sum of Rs.2,00,000/- is awarded under the head future medical expenses.
18.For the loss of amenities in life, the amounts awarded by the Tribunal is very low and hence, the amount awarded by the Tribunal is enhanced from Rs.1 lakh to Rs.2 lakhs.
19. The tribunal after considering the fact that due to the major injury sustained by the claimant in her brain, her life span would be affected and longvity of her life would be shortened, has rightly awarded a sum of Rs.1,00,000/- under the head of expectation of life, hence the same is confirmed.
20.For Attender Charges, already documents have been filed and the Tribunal awarded a sum of Rs.1,00,000/- under the said head. Considering the period of treatment and evidence and documents, the amount of Rs.1,00,000/- awarded under the head of attender charges has to be enhanced. Hence, a sum of Rs.1,50,000/- is awarded under this head.
21.For Medical Expenses, the amount awarded by the Tribunal at Rs.3,00,000/- by the Tribunal is quite reasonable and hence the same is hereby confirmed.
22.The amount of Rs.1,50,000/- awarded under the head of Pain and suffering for the prolonged treatment taken by her is very low and the same is enhanced to Rs.2,00,000/-. Further the amount awarded under transportation expenses appears to be on the lower side, hence, it is hereby enhanced from Rs.25,000/- to Rs.50,000/-. The amount awarded under the head damage to clothing appears to be reasonable and the same is confirmed.
23.The amount of Rs.2,10,120/- awarded under the head of Loss of Income during the treatment period by the Tribunal is just and proper and the same has been given based on the period of treatment underwent by the injured and the discharge summaries Ex.P.4 to Ex.P.7.
24.The amount of Rs.1,00,000/- awarded under the head Extra Nourishment is quite a reasonable one and the same is confirmed.
25. Once the person who is an earning member along with the responsibility of running a family as a dual player has now become an object to be taken care of and needs to be taken care of, and her services to the family has severed, a reasonable amount needs to be awarded for the purpose of taking care of the claimant. At the same time, they have lost the guidance of the claimant. Though no amount of money can remedy the grievance, as a monetary support, a sum of Rs.2,00,000/- is awarded under the head 'loss of care and guidance' is quite reasonable one.
26. The attender looked after the injured person when she was under treatment. Regarding the remaining period of the life time of the injured person, while considering her status, as spoken by the Doctor for the future attender benefits, this court is inclined to award a sum of Rs.2,00,000/- under the head of future attender benefits.
27. Thus the amounts of compensation awarded by the tribunal and enhanced compensation awarded by this court under various heads are tabulated hereunder.
Description Amount awarded by the Tribunal Amount awarded by this Court Loss of Income Rs.2,10,120/-
Rs. 2,10,120/-
Transport to Hospital Rs.25,000/-
50,000/-
Extra Nourishment Rs.1,00,000/-
Rs. 1,00,000/- Damage to clothing Rs.1,000/- Rs. 1,000/- Medical Expenses Rs.3,00,000/- Rs. 3,00,000/- Attender Charges Rs.1,00,000/- Rs. 1,50,000/- Loss of amenities of life Rs.1,00,000/- Rs. 2,00,000/- Loss of expectation of life Rs.1,00,000/- Rs. 1,00,000/- Pain and sufferings Rs.1,50,000/- Rs. 2,00,000/- Loss of earning capacity Rs.33,61,920/- Rs. 33,61,920/- Future medical expenses --- Rs. 2,00,000/- Total Compensation Rs.44,48,040/- Rs. 48,73,040/- 28. In fine, the appeal is partly allowed. No costs.
The compensation awarded by the Tribunal is enhanced by this Court from Rs.44,48,040/- to Rs.48,73,040/- along with interest awarded by the Tribunal.
The respondent/Transport Corporation is directed to deposit the compensation amount as awarded by this Court together with interest awarded by the Tribunal along with proportionate costs, after adjusting the amount, if any, already deposited, within a period of eight weeks from the date of receipt of a copy of this order.
On such deposit being made, the guardian shall be entitled to receive a sum of Rs.20 lakhs. The balance amount shall be in kept in a fixed deposit, initially for a period of three years and renewable thereafter and the interest accrued thereon shall be withdrawn by the guardian / husband, once in three months, directly from the Bank.
[S.V.J.] [S.R.T.,J.] 28.04.2018 Index : Yes/No Internet : Yes/No msr To
1. The III Small Causes Judge, Chennai 2 The Record Keeper, V.R.Section, High Court, Madras S.VIMALA, J.
& S.RAMATHILAGAM,J., msr PRE-DELIVERY JUDGMENT IN C.M.A.No.3410 of 2017 28.04.2018 Pre-Delivery Judgment in C.M.A.No.3410 of 2017 To THE HONOURABLE MRS.JUSTICE S.RAMATHILAGAM From M.Sasirekha, P.A. to Hon'ble Judges