Madras High Court
The Manager vs S.Sasikumar on 8 November, 2013
Author: R.Banumathi
Bench: R.Banumathi, K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.11.2013 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE K.KALYANASUNDARAM Civil Miscellaneous Appeal Nos.3130 of 2012 and 3268 of 2013 The Manager, M/s.ICICI Lombard General Insurance Company Limited, Arinand Plaza, 1st Floor, No.84 & 85, Waltax Road, Chennai-600 003. ... Appellant in CMA.No.3130/2012 & 2nd Respondent in CMA.No.3268/2013 Vs. S.Sasikumar (Bed-ridden in Coma stage) rep. by his father and natural guardian Sekar) ... 1st Respondent in CMA.No.3130/2012 & Appellant in CMA.No.3268/2013 R.P.Baskar ... 2nd Respondent in CMA.No.3130/2013 & 1st Respondent in CMA.No.3268/2013 Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles Act, 1988 against the Order made in M.C.O.P. No.274 of 2009 dated 05.1.2012 on the file of Motor Accident Claims Tribunal (Additional Subordinate Judge), Chengalpattu. ***** For Appellant in CMA.3130/2012 : Mr.N.Vijayaraghavan & 2nd Respondent in CMA.3268/2013 For 1st Respondent in CMA.3130/2012 : Mr.Um.Ravichandran & Appellant in CMA.3268/2013 COMMON JUDGMENT
R.BANUMATHI,J Being aggrieved by the award of compensation of Rs.14,99,976/- awarded by the Tribunal in M.C.O.P.No.274 of 2009 dt. 05.1.2012 on the file of Motor Accident Claims Tribunal (Additional Subordinate Judge), Chengalpattu for the injuries sustained by the Claimant-Sasikumar in the road traffic accident on 20.8.2009, ICICI Lombard General Insurance Company Limited has filed C.M.A.No.3130 of 2012.
2. Being dissatisfied with the quantum of compensation, injured Claimant has filed C.M.A.No.3268 of 2013 for enhancement of further sum of Rs.6,00,000/-. Since the both the appeal arise out of the same award, both the appeals were taken up and heard together and disposed of by this common judgment. For convenience, the parties are referred as per their array in C.M.A.No.3130 of 2012.
3. Brief facts are that on 20.8.2009 at about 12.50 hours, the Claimant was proceeding in his bi-cycle on Red-hills road, Kallikuppam. When he was nearing Meenakshmi Auto Mechanic shop, the container lorry bearing registration No.TN-28 P 6517, owned by the 2nd Respondent and insured with Appellant-Insurance Company driven by its driver in a rash and negligent manner and dashed at the back side of the cycle. Due to hitting, Claimant fell down and sustained grievous head injury and also injuries all over the body and went into coma stage. Immediately after the accident, Claimant was admitted in Sri Ramachandra Medical Centre, Porur. Thereafter, he was admitted in Government General Hospital, Chennai and then he was admitted in Sri Devi Hospitals, Koyambedu, Chennai and still the Claimant is in coma stage. Regarding the accident, a criminal case in Crime No.924 of 2009 under Sections 279 and 337 I.P.C. of Poonamallee Traffic Investigation Team-I, Poonamallee was registered against the container lorry driver. At the time of accident, Claimant was working as Welder and was earning Rs.6,000/- per month. Stating that the accident was due to rash and negligent driving of the container lorry driver and that 1st Respondent-Claimant is in coma stage, the 1st Respondent-Claimant, represented by his father Sekar filed the Claim Petition claiming compensation of Rs.15,00,000/-.
4. Denying the accident, Appellant-Insurance Company has filed the counter stating that the accident occurred due to the negligence of the 1st Respondent-Claimant and that Appellant-Insurance Company is not liable to pay compensation to the 1st Respondent-Claimant. Appellant-Insurance Company also denied the occupation, monthly income and the percentage of disability suffered by the 1st Respondent-Claimant and that the compensation claimed by the Claimant is excessive.
5. Before the Tribunal, the father of injured Claimant viz., Sekar was examined as P.W.1. Eye-witness Kumar was examined as P.W.2. Dr.Gopalan was examined as P.W.3. Nurse Rathi, who is looking after the injured Claimant was examined as P.W.4. Manikandan, who was then working along with the injured Claimant was examined as P.W.5. Exs.P1 to P25 were marked on the side of Claimants. On the side of Appellant-Insurance Company, no oral and documentary evidence was adduced. Exs.C1 to C3 were marked as Courts documents.
6. Upon consideration of oral and documentary evidence, Tribunal held that the accident was due to rash and negligent driving of the contained lorry driver and that Appellant-Insurance Company, who is the insurer of container lorry is liable to pay compensation. Insofar as quantum of compensation, Tribunal held that because of injuries sustained, 1st Respondent-Claimant is in coma stage and is in unconscious state and that 1st Respondent-Claimant sustained 100% disability. Taking the monthly income of the deceased at Rs.4,000/- per month and adopting multiplier 16, Tribunal has calculated the loss of income/permanent disability at Rs.7,68,000/-. Adding compensation under other heads, Tribunal has awarded total compensation of Rs.14,99,976/- as under:-
Loss of earning ... Rs. 7,68,000.00 (Rs.4000 x 12 x 16) Medical expenses ... Rs. 2,80,476.00 Transport to hospital ... Rs. 40,000.00 Extra-nourishment ... Rs. 25,000.00 Damages to clothing Damages to articles ... Rs. 2,500.00 Loss of estate ... Rs. 10,000.00 Pain and suffering ... Rs. 1,00,000.00 Attendant charges ... Rs. 54,000.00 Future Attendant charges ... Rs. 1,00,000.00 Future Medical expenses ... Rs. 1,00,000.00 Future Transport charges ... Rs. 20,000.00
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Total ... Rs. 14,99,976.00 --------------------
6. There is no challenge as to the manner of accident and as to who was responsible for the accident, insurance of the vehicle and fastening of liability upon the Appellant-Insurance Company. Therefore, it is not necessary for us to elaborate upon the manner of accident, the insurance of the vehicle and the liability of the Appellant Insurance Company. Only quantum is under challenge in this appeal.
7. Mr.N.Vijayaraghavan, learned counsel for Appellant-Insurance Company has submitted that Tribunal erred in awarding a huge sum as compensation and the compensation awarded by the Tribunal is not in consonance with the facts and circumstances of case. It was submitted that Tribunal erred in assessing the disability at 100% and and same is on the higher side. Learned counsel would submit that compensation awarded under other heads like pain and suffering, transport charges, extra-nourishment, medical expenses, future medical expenses, future transport charges are on the higher side and prayed for reduction of compensation awarded by the Tribunal.
8. Per contra, Mr.Um.Ravichandran, learned counsel for 1st Respondent-injured Claimant has submitted that consequent to the injuries sustained in the accident, the 1st Respondent-Claimant is in coma stage and unable to do his normal work and was bed-ridden and that the 1st Respondent-Claimant was looking after by P.W.3-nurse and every month the father of the 1st Respondent is paying salary of Rs.4,500/- to P.W.3-nurse. Learned counsel further submitted that by way of attender charges, the father of 1st Respondent has incurred huge amount and also 1st Respondent-Claimant was periodically taken for treatment and for that also the father of 1st Respondent incurred huge amount and submitted that the compensation awarded by the Tribunal is very much low and seek for enhancement.
9. Since the 1st Respondent-Claimant is in coma stage, the father of 1st Respondent-injured Claimant was examined as P.W.1. In his evidence, P.W.1 has stated that his son studied S.S.L.C. and had also completed typewriting high speed. Exs.P17 is the S.S.L.C. mark sheet and Exs.P18 and P19 are the typewriting pass certificates. P.W.1 further stated that his son has completed Autocad Course and produced Ex.P21 certificate to show that 1st Respondent had completed Autocad Course. In his evidence, P.W.1 has stated that at the time of accident, he was working as Welder under one Mani and was getting salary of Rs.6,000/- per month. Apart from monthly salary, he was also getting Rs.25/- as daily batta. After the accident his son is in coma stage and was bed-ridden.
10. To prove the injuries sustained by the 1st Respondent-Claimant, 1st Respondent had produced Ex.P2-Accident Register issued by the Sri Ramachandra Medical Centre, Porur. Ex.P6 is the discharge summary issued by Government General Hospital, Chennai. By perusal of Ex.P6-discharge summary, it is seen that in the accident, the 1st Respondent had sustained (i) brain stem contusion; (ii) intra hemispheric bleed/IVA; (iii) right fronto parietal contusion and had taken treatment from 28.8.2009 to 30.9.2009. Ex.P7 is the discharge summary issued by Sri Devi Hospitals, Chennai and 1st Respondent-Claimant was diagnosed for (i) hemispheric bleed IVH; (ii) right fronto parietal contusion; (iii) left ZMC fracture; (iv) fracture over right proxomal tibia. By perusal of Ex.P7-discharge summary, it is seen that 1st Respondent-Claimant has taken treatment as inpatient from 30.9.2009 to 05.10.2009 and had advised to come after 15 days for review.
11. In his evidence, P.W.3 Dr.Gopalan has stated that he had examined the 1st Respondent-Claimant Sasikumar on 25.10.2011 based on the medical reports issued by Sri Ramanchandra Medical Centre and Sri Devi Hospitals, Chennai respectively and issued Ex.P23 Disability Certificate. At the time of his examination, injured-Sasikumar was in coma stage and was holding catheter for passing urine. In his evidence, P.W.3 Doctor has stated that on examination, he found because of injuries sustained in the accident in his head, Sasikumar was in coma stage. P.W.3 had also stated that he arranged for taking X-ray. After taking X-ray, P.W.3-Doctor found the following in the brain of 1st Respondent-Claimant:-
(i)Linear undisplaced fracture in left Zygoma
(ii)Haemorrhagic contusions in bilateral frontal lobes and high parietal regions.
(iii)Interhemispheroc fissure bleed.
(iv)Tentorial bleed.
(v)Minimal SAH in bilateral high parietal regions.
(vi)Petechial haemorrhages in Midbrain, left temporal and occipital lobe and right internal capsule suggestive of diffuse axonal injury.
(vii)Diffuse cereberal edema.
In his evidence, P.W.3 further stated that injured Claimant is in coma stage and it is difficult to cure. P.W.3 has stated that based on the medical reports and also the personal examination, he assessed the disability at 100%. Ex.P23 is the disability certificate issued by P.W.3-Doctor assessing the disability at 100%.
12. The evidence of P.W.1 and P.W.3-Doctor is corroborated by the report of the Advocate Commissioner, which is marked as Ex.C1. In his report, the Advocate Commissioner has stated that at the time of his visit, 1st Respondent-Claimant was bed-ridden and unable to move on his own and urine collected in a catheter by way of a tube and motion were collected using bedpan. The Advocate Commissioner had also noticed heavy bedsore on the body of the claimant and due to malfunctioning of nervous system, his hands and legs were folded and his eyes were only opened. It was also stated that at the time of his visit, a nurse was taking care of 1st Respondent-injured Claimant and when the Advocate Commissioner enquired the nurse, she told, she is taking care for the past two years, for that she was paid Rs.4,500/- per month. Advocate Commissioner had also taken photos of 1st Respondent and recorded video and the photos and CD were marked as Exs.C2 and C3 respectively.
13. Considering the evidence of P.W.3 and Exs.P2, P6, P7, P23 and also the report of Advocate Commissioner, Tribunal held that 1st Respondent-Claimant had 100% disability and is in coma stage. The said finding of the Tribunal is based on evidence. Therefore, we are of the view that the disability taken by the Tribunal at 100% is based on documentary evidence and the same is confirmed.
14. Insofar as the monthly income taken by the Tribunal, learned counsel for Appellant-Insurance Company has submitted that the monthly income of Rs.4,000/- taken by the Tribunal is on the higher side. Per contra, the learned counsel for 1st Respondent-Claimant has submitted that at the time of accident, 1st Respondent-Claimant was working as welder and was earning Rs.6,000/- per month. In his evidence, P.W.1-father of the 1st Respondent has stated that his son was working as welder under Mani at Kathangadai and was earning Rs.6,000/- per month. The co-employee of Sasikumar namely Manikandan was examined as P.W.5. In his evidence, P.W.5 has stated that he and Sasikumar were working in Sree Balaji Engineering, East Coast Road, Kathangadai, Cheyur Taluk owned by one Mani and both of them were paid Rs.6,000/- per month as salary. Ex.P5 is the salary certificate issued by Sree Balaji Engineering, East Coast Road, Kathangadai, Cheyur Taluk. By perusal of Ex.P5-salary certificate, it is seen that Sasikumar was paid salary of Rs.6,000/- per month.
15. Tribunal has taken the monthly income of Sasikumar at Rs.4,000/- by observing that as a Welder, 1st Respondent-injured might have worked only for 20 days per month. Tribunal was not right in saying that 1st Respondent would work only for 20 days in a month. Taking the daily wages at Rs.200/- for 20 working days, Tribunal had fixed the monthly income of the injured Claimant at Rs.4,000/-. Appellant-Insurance Company has not adduced any evidence or produced any documents to show that 1st Respondent-Claimant was worked 20 days only in a month and was earning Rs.4,000/-. Per contra, 1st Respondent-Claimant had produced Ex.P22-salary certificate to show that at the time of accident, he was working as Welder in Sree Balaji Engineering, East Coast Road, Kathangadai, Cheyur Taluk.
16. Based on Ex.P22-salary certificate and oral evidence of P.Ws.1 and 5, the monthly income of the 1st Respondent is fixed at Rs.6,000/- per month. As pointed out earlier, 1st Respondent-Claimant has sustained 100% disability and was bed-ridden and still is in coma stage and he was totally immobilized. At the time of accident, 1st Respondent-Claimant was aged 20 years. Considering the immobilisation and permanent deprivation, for calculating the loss of income, as per the decision in RAJ KUMAR VS. AJAY KUMAR AND ANOTHER, ((2011) 1 SCC 343 = 2010) (2) TN MAC 581 (SC) = 2011 ACJ 1), multiplier method could be adopted in injury cases. The Tribunal has rightly adopted multiplier method for awarding compensation for permanent disability. As pointed out earlier, at the time of accident, injured was aged 20 years. As per Second Schedule to M.V. Act, for the age group 20-25, the proper multiplier to be adopted is "16". Taking the monthly income of the deceased at Rs.6,000/- and disability at 100% and also adopting multiplier "16", the loss of income/permanent disability is calculated at Rs.11,52,000/- (Rs.6,000 x 12 x 16 = Rs.11,52,000/-).
17. Tribunal has awarded Rs.2,80,476/- for "medical expenses". Exs.P11 and P15 are the medical bills showing that 1st Respondent-Claimant has incurred Rs.2,80,476/- towards medical expenses. Considering the period of treatment and also the injuries sustained in the accident, Rs.2,80,476/- awarded by the Tribunal for medical expenses is maintained.
18. Tribunal has awarded Rs.40,000/- for "transport to hospital"; Rs.25,000/- for "extra-nourishment"; Rs.40,000/- for "damages to clothing"; Rs.2,500/- for "damages to articles" and Rs.10,000/- for "loss of estate", which in our considered view is just and reasonable and the same are maintained.
19. Tribunal has awarded Rs.1,00,000/- for "pain and suffering". In the accident 1st Respondent has sustained grievous head injury and went in to coma stage. After the accident, Claimant had taken treatment in Sri Ramachandra Hospital, Porur; Government General Hospital, Chennai and Sri Devi Hospitals, Chennai as inpatient. Considering the fact that due to injuries sustained in the accident, 1st Respondent-Claimant went in to coma stage and also considering the fact that at the age of 20 years, because of injuries sustained he was immobilized, we are of the view that it would be appropriate to enhance the compensation for "pain and suffering" to Rs.1,50,000/-.
20. Tribunal has awarded Rs.1,00,000/- for "future medical expenses". As pointed out earlier, the 1st Respondent-Claimant is in coma stage and was bed-ridden and totally immobilized. Considering the fact that 1st Respondent-Claimant needs continuous treatment, it would be just and reasonable to enhance the same. Accordingly, Rs.1,00,000/- awarded by the Tribunal for "future medical expenses" is enhanced to Rs.1,50,000/-.
21. Tribunal has awarded Rs.54,000/- for "attendant charges" based on Ex.P16-receipts issued by M.R.Nursing Care, Chennai and the same is maintained. For "future attendant charges", Tribunal has awarded Rs.1,00,000/-. In her evidence, P.W.3-Rathi has stated that she was appointed as nurse by M/s.L.S.Medical Service to look after the 1st Respondent-Claimant, who is in coma stage. In her evidence, P.W.3 has stated that she is going to first respondent's residence every day to look after 1st Respondent and she used to give sponge bath and dressing every day. In her evidence, P.W.3 has stated that she is giving spoon-feed to 1st Respondent by condensing the food particles to semi solid and making it to reach food valve by giving water each time. According to P.W.3, though the eyes of 1st Respondent-Claimant was open, 1st Respondent lies on the bed like a plant. P.W.3 further stated that physiotherapy treatment is periodically given to the 1st Respondent. In her evidence, P.W.3 also stated that for doing service to 1st Respondent, she was paying Rs.4,500/- per month. Considering the evidence of P.W.3 and also the fact that the service of P.W.3 requires in future, Rs.1,00,000/- awarded by the Tribunal for "future attendant charges" is enhanced to Rs.1,50,000/-.
22. Tribunal has not awarded any amount for "physiotherapy treatment". In her evidence, P.W.3 has stated that 1st Respondent-Claimant was given physiotherapy treatment daily and for that the parents of 1st Respondent-Claimant incurring Rs.300/- per day. Considering the evidence of P.W.3 and also the physiotherapy treatment undergoing by the 1st Respondent-Claimant, we are of the view that it would be appropriate to award Rs.25,000/- for "physiotherapy treatment". Tribunal has awarded Rs.20,000/- for "future transport charges" and the same is maintained. In modification, the total compensation of Rs.14,99,976/- awarded by the Tribunal is enhanced to Rs.21,00,000/- as under:-
Loss of income/Permanent disability ... Rs.11,52,000.00 (Rs.6000 x 12 x 16) Medical expenses ... Rs. 2,80,476.00 Transport charges ... Rs. 40,000.00 Extra-nourishment ... Rs. 25,000.00 Damages to clothing ... Rs. 40,000.00 Damages to articles ... Rs. 2,500.00 Loss of estate ... Rs. 10,000.00 Pain and suffering ... Rs. 1,50,000.00 Future medical expenses ... Rs. 1,50,000.00 Attender charges ... Rs. 54,000.00 Future attender charges ... Rs. 1,50,000.00 Physiotherapy charges ... Rs. 25,000.00 Future transport charges ... Rs. 20,000.00
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Total ... Rs.20,98,976.00 Rounded off to ... Rs.21,00,000.00 -------------------
Tribunal has awarded interest at the rate of 7.5% per annum and the same is maintained.
23. In the result, the compensation of Rs.14,99,976/- awarded by the Tribunal in M.C.O.P.No.274 of 2009 dated 05.1.2012 on the file of Motor Accident Claims Tribunal (Additional Sub-Judge), Chengalpattu is enhanced to Rs.21,00,000/- and the appeal - C.M.A.No.3268 of 2013 preferred by the 1st Respondent-Claimant is allowed. Consequently, the appeal - C.M.A.No.3130 of 2012 preferred by the Appellant-Insurance Company is dismissed.
It was stated before us that Appellant-Insurance Company has deposited the entire compensation amount awarded by the Tribunal along with accrued interest and 1st Respondent-Claimant is said to have withdrawn 50% of the deposited amount.
1st Respondent-Claimant is permitted to withdraw the remaining 50% lying in the credit of M.C.O.P.No.274 of 2009 on the file of Motor Accident Claims Tribunal (Additional Sub-Judge), Chengalpattu immediately after the receipt of copy of this judgment.
Appellant-Insurance Company is directed to deposit the enhanced amount of Rs.6,00,000/- along with accrued interest at the rate of 7.5% per annum from the date of this judgment (08.11.2013) to the date of deposit within a period of eight weeks from the date of receipt of copy of this judgment. On such deposit, the 1st Respondent-Claimant is permitted to withdraw the same along with accrued interest.
Consequently, connected M.P. if any is closed. There is no order as to costs in these appeals.
(R.B.I.,J.) (M.K.K.S.,J.)
08.11.2013
Index: Yes/No
Internet: Yes/No
bbr
To
The Motor Accident Claims Tribunal
Additional Sub-Judge,
Chengalpattu.
R.BANUMATHI,J and K.KALYANASUNDARAM,J
bbr
Common Judgment in
C.M.A.Nos.3130 of 2012 and 3286 of 2013
08.11.2013