Madras High Court
M.Gunasundari vs M/S.Brills Tranports on 21 August, 2009
Author: N. Kirubakaran
Bench: N. Kirubakaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.08.2009
CORAM:
THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN
C.M.A.No. 1758 of 2000
M.Gunasundari .. Appellant
(Declared the appellant as major
and discharged her father S.Manoharan
from guardianship vide order dated
01.03.2004 made in CMP NO.2820/04)
vs.
1.M/s.Brills Tranports,
No.69, Vallur Kottam High Road,
Nungambakkan, Chennai 600 034
2. New India Assurance Company Ltd,
No.71, Thambu Chetty Street,
Chennai 600 001 .. Respondents
The Civil Miscellaneous Appeal against the Judgement and decree dated 28.07.2000 made in MACT O.P No.1668/1997 on the file of the VI Judge, Motor Accidents Claims Tribunal (Court of Small causes) at Chennai.
For Appellant : Mr.C.Munusamy
For Respondents : Mr.D.Venugopal for R2
ORDER
The fate should not have been so cruel to the girl. However, it was. This is the case of a girl, whose future became crippled and miserable, 12 years old girl who is supposed to lead her life with dreams fun, joy and enjoyment like her friends was crippled because of the accident occurred on 29.11.2996. She was riding her bicycle which was hit by an oil tanker lorry belonging to the first respondent herein. As a result, she sustained injuries resulting in amputation of her right leg near hip, dislocation of portion in left leg ankle and knee, severe injuries in the head and internal injuries in chest and stomach. Hence the claim petition was filed to the tune of Rs.11.00 lakhs and the same was resisted by the second respondent-Insurance Company.
2. On appreciation of pleadings and evidence on record, the Tribunal came to the conclusion that the accident occurred because of the negligent driving of the first respondent Oil tanker lorry and considering various aspects and granted a sum of Rs.5,20,000/-. Aggrieved by the quantum of compensation, the present appeal has been preferred by the claimant.
3. Mr.C.Munusamy, learned counsel for the claimant submitted that she was a school going girl aged about 12 years and lost her future by the accident and contented the amount granted by the Tribunal is very meagre considering the loss caused to the claimant. The Tribunal granted Rs.5,20,000/- in the following manner.
1)Transportation charges Rs. 2,500/-
2)Extra Nourishment Rs. 17,000/-
3)Damage clothes Rs. 500/- 4)Cost of medicine Rs. 10,000/- 5)Loss of marital life Rs. 75,000/- 6)Additional transport expenses Rs. 40,000/- 7)Pain and Suffering Rs. 50,000/- 8)Permanent disability Rs. 75,000/- 9)Loss of earning power Rs.2,50,000/- ----------------------- Rs.5,20,000/- ------------------------
4. A perusal of the award would show that no reason was given by the Tribunal for arriving the loss of income at Rs.2,50,000/-. When the girl lost her leg and injuries to the important organs of school going child, the Tribunal is expected to apply its mind and consider the matter humanely. The Tribunal formed under Motor Vehicle Act which is a beneficial legislation, should have considered the intention of the parliament while awarding compensation. Unfortunately in this case the Tribunal failed to consider those important aspects and dealt with the matter very casually and mechanically. The Tribunal should have seen the victim was a school going girl and the girl's future was totally shattered by the accident. A girl who is supposed to lead her life with joy, fun enjoyment with dreams.
5. When 90% disability was proved before the Tribunal, the Tribunal should have applied the second schedule of Motor Vehicle Act and calculated the loss of income. Whereas, in this case no reasoning nor the calculation was given by the Tribunal to arrive at a sum of Rs.2,50,000/- as loss of income.
6. Ex.P.13 is the disability certificate issued by the PW-3 Doctor. The evidence of PW-5 would undoubtedly prove the grievous injuries sustained by the girl victim. When 95% disability was proved before the Tribunal, the Tribunal should have adopted the second schedule of Motor Vehicle Act and calculated the loss of income. At the time of accident she was studying 7th standard. As per the second schedule for non earning member, the notional annual income is Rs.15,000/-. However, two years lapsed after the introduction of second schedule since 1994; Hence it is appropriate to take a sum of Rs.3,000/- as monthly income. since the age of the victim was 12 at the time of accident, the proper multiplier, according to second schedule, would be 15. As the claimant's leg was amputated and there were injuries internally and also dislocation problems, it is appropriate not to deduct 1/3 towards personal expenses as per the Judgment of the Apex Court in National Insurance Co. Ltd. Vs. Ramprasad Varma reported in 2009 (1) TNMAC 134 and the loss of income is arrived as Rs.3000 X 12 X 15= Rs.5,40,000/-.
7. The Tribunal awarded Rs.50,000/- for pain and suffering . Considering the nature of the injuries caused to the various parts and also amputation of leg, this Court enhances the amount to a sum of Rs.75,000/-. It is very difficult for the injured girl getting married as her right leg was amputated. Hence this Court awards a sum of Rs.1,00,000/- instead of Rs.75,000/- towards loss of marital prospects. Additional transportation is concerned a sum of Rs.40,000/- was awarded by the Tribunal and the same is confirmed; for medical expenses a sum of Rs.10,000/- alone was awarded inspite of proving the same by Ex.P.8. Hence, as per Ex.P.8 a sum of Rs.21,161 is granted; For damage to clothes a sum of Rs.500/- was awarded and the same is confirmed; For extra nourishment a sum of Rs.17,000/- was awarded and this court enhances the amount to Rs.25,000 considering the nature of injuries and the problem she has to face throughout her entire life; For transportation is concerned a sum of Rs.2,500/- is granted.
8. In Sapna Vs. United India Insurance Company Ltd and another reported in (2008) 7 SCC 613 in that case twelve year old girl sustained injuries in her leg and became crippled and completely disabled. In that case a sum of Rs.75,000/- was awarded for future treatment and for artificial limit. Hence relying upon the aforesaid judgment for future medical expenses including fixing of artificial leg a sum of Rs.75,000/- is granted, by considering the injuries and the medical problems faced in her life by the accident. As far as disability is concerned a sum of Rs.75,000/- was awarded by the Tribunal and the same is confirmed. Future prospects of the girl has to be considered while awarding compensation. The above proposition was held by the Apex Court in Bijay kumar Vs.Bidhydhar Dulta and others reported in 2006 (3) SCC 242 and in R.K.Malik and another Vs. Kiranpal and others reported in 2009 (8) SCALE 451. Hence a sum of Rs.25,000/- is awarded towards future prospects.
9. When the school going girl was crippled, her entire future became bleak and no amount could compensate her loss. She has to lead her entire life depending on others for each and everything. In our society physically handicapped people are not treated equally, sometimes there are made subjects of mockery and jokes. A stigma is attached to their status as handicapped. This is happening every day inspite of passing of many acts benefiting physically handicapped people. We have to hang our heads in shame for discriminatory treatment meted out to the physically handicapped and this Courts expects the attitude of the society would change soon.
10. The Tribunal's award is enhanced from Rs.5,20,000/- to Rs.9,79,161/- in the following manner:
Loss of Income Rs.5,40,000.00 Pain and Sufferings Rs. 75,000.00 Marital Prospects Rs.1,00,000.00 Additional Transportation Rs. 40,000.00 Medical Expenses Rs. 21,161.00 Damage to clothes Rs. 500.00 Extra nourishment Rs. 25,000.00 Transportation Rs. 2,500.00 Future medical expenses Rs. 75,000.00 Future Prospects Rs. 25,000.00 Permanent Disability Rs. 75,000.00 ------------------ Total Rs.9,79,161.00 ------------------
11. The appeal is partly allowed and the enhanced amount would carry of 12% from the date of claim till realisation. The entire amount as per the Tribunal was deposited before the Tribunal. If any balance amount is available with the Tribunal, apart from the amount already withdrawn by the claimant as per the Tribunal Award, the Tribunal is directed to pay it to the claimant within 10 days from the date of receipt of a copy of this order. The learned counsel for the appellant requests four weeks time for depositing the enhanced amount. Accordingly four weeks time is granted. The Tribunal is directed to pay the amount to be deposited by the respondent-Insurance Company within one week from the date of deposit of amount. There will be no order as to costs.
21.08.2009 Index : Yes/No Internet: Yes/No pbn To The VI Judge, Motor Accidents Claims Tribunal (Court of Small Causes), Chennai.
N. KIRUBAKARAN, J.
pbn C.M.A.No.1758 of 2000 21.08.2009