Madras High Court
Mr.Chinnasamy vs K.Ravi on 12 April, 2010
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 12/04/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.1670 of 2008 Mr.Chinnasamy ... Appellant / Petitioner Vs 1. K.Ravi 2. The Branch Manager, New India Assurance Company Limited, Coimbatore. ... Respondents / Respondents (The first respondent remained exparte before the trial court. Hence notice is dispensed with) Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the fair and decreetal order made in M.C.O.P.No.25 of 2006 dated 28.08.2007, on the file of the Motor Accident Claims Tribunal, Sub Court, Periyakulam. !For Appellants ... Mr.K.Kumaravel ^For Respondents ... Mr.K.Elangovan for R.2 * * * * * :JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellant against the fair and decreetal order made in M.C.O.P.No.25 of 2006 dated 28.08.2007, on the file of the Motor Accident Claims Tribunal, Sub Court, Periyakulam.
2. On 02.03.2004, the appellant travelled in a Mahindra van, bearing Registration No.TN-39-5-2828 belonging to the first respondent and the same was insured with the second respondent, along with his four friends viz., Mr.Packiaraj, Mr.Sekhar, Mr.Ponnuthurai and Mr.Sendrayan. He belongs to Endapuli post, Periyakulam Taluk. They travelled from the said place to Kumbakarai, a picnic spot, to take bath. After taking bath at Kumbakarai, they returned back to their native place. At about 6.30 p.m., the accident took place, when the van proceeded near Marukal bridge. The van dashed against the tamarind tree and capsized. The accident was due to the rash and negligent driving of the van driver. In the accident, Mr.Ponnuthurai died on the spot. Others got injured. The appellant was grievously injured. He got injured at the spinal card that resulted in paraplegia and was taken to the Government Hospital at Periyakulam immediately in an unconscious state. The Government Hospital, Periyakulam referred him to Government Rajaji Hospital, Madurai. On 03.03.04 he got shifted to Madurai Meenakshi Mission Hospital. He was inpatient in the said hospital upto 09.03.2004. Again he got admitted in Government Hospital, Periyakulam. He filed M.C.O.P.No.25 of 2006 on the file of the Motor Accident Claims Tribunal, Sub Court, Periyakulam claiming Rs.5,00,000/- as compensation.
3. Before the Tribunal, besides examining himself as witness, he examined the doctor who gave disability certificate. Exs.P.1 to P.12 were marked on his side. On the side of the second respondent Insurance Company two witnesses were examined and Exs.R.1 to R.4 were marked. The Tribunal passed an award dated 28.08.2007 granting Rs.2,02,248/- as compensation with 7.5% interest and costs. This appeal is preferred by the claimant seeking enhancement. The appellant seeks Rs.2,97,752/- more besides the award by the Tribunal.
4. Heard Mr.K.Kumaravel, learned Counsel for the appellant and Mr.K.Elangovan, learned Counsel for the second respondent.
5. The Tribunal awarded compensation of Rs.2,02,248/- under the following heads:
(i) loss of income till filing of the application Rs. 33,000
(ii) for transport charges Rs. 1,000
(iii) for medical expenses Rs. 13,248
(iv) for attendant charges Rs. 5,000
(v) for pain and sufferings Rs. 10,000
(vi) for permanent disability Rs. 90,000
(vii) for loss of marital prospects Rs. 50,000
------------
Total Rs.2,02,248
-----------
6. The learned Counsel for the appellant submits that while the appellant suffered 100% disability as per Ex.P.7, the Tribunal erroneously proceeded as if the appellant suffered 90% disability. Even for this 90% disability, the Tribunal failed to award any compensation for future loss of income, when the Tribunal awarded Rs.33,000/- towards loss of income from the date of accident till the date of filing of the application. He took me through Ex.P.7, the disability certificate and the evidence of the doctor, P.W.2 in detail. He submits that the movement of the appellant is totally restricted below the hip and that he is really crippled. It is submitted that he is totally bed ridden and he could not pass motion or urine without the help of the others.
7. The Tribunal relied on Ex.R.4, the accident register maintained in the Government Hospital and erroneously came to the conclusion that certain deformity from his childhood aggravated the injury and resulted in paraplegia and fixed 90% permanent partial disability.
8. The learned Counsel for the appellant submits that such a conclusion of the Tribunal is erroneous. The chest deformity from his childhood has nothing to do with paraplegia and there is no evidence to come to such a conclusion.
9. The learned Counsel further submits that the appellant deposed before the Tribunal and also produced Ex.P.4, certificate given by a tailor that the appellant was employed in his shop from 1983-1991 and the appellant was having tailoring shop from 1994. He also produced Ex.P.5 for having purchased a tailoring machine. Therefore, the Tribunal correctly held that the appellant was a tailor. However, the Tribunal erroneously fixed Rs. 1,500/- only as monthly earnings of the appellant as a tailor. Even the said monthly earnings as a tailor was not taken into account for computing his future loss of income and only the loss of income from the date of the accident till filing of the application was awarded by the Tribunal, based on the monthly earnings fixed by the Tribunal.
10. The learned Counsel further submits that the Tribunal awarded Rs.10,000/- towards pain and sufferings, which is very much on the lower side, as he was totally crippled. It is submitted that he should be awarded Rs.1,50,000/- towards pain and sufferings, taking into account the injuries at the spinal card. The learned Counsel further submits that nothing was awarded towards loss of amenities and enjoyment in life. It is submitted that the Tribunal ought to have awarded Rs.1,50,000/- towards loss of amenities and enjoyment in life. The Tribunal awarded only Rs.50,000/- for loss of marriage prospects and the Tribunal should have awarded Rs.1,50,000/- towards loss of marriage prospects.
11. The learned Counsel relies on the judgments of Honourable Apex Court in Nagappa Vs. Gurudayal Singh and others reported in (2003)2 SCC 274 and The APSRTC Vs. M.Ramadevi and Others reported in 2008(1) TNMAC 234(SC) and submits that the purpose of the Motor Vehicles Act is to grant just compensation to the accident victim and since the Tribunal awarded less compensation, this Court is entitled to grant enhanced compensation beyond the prayer in the appeal in consonance with Section of 168 of the Motor Vehicles Act.
12. On the other hand, the learned Counsel for the second respondent Insurance Company submits that there is no infirmity in the award made by the Tribunal. It is submitted that the Tribunal was correct in fixing the disability at 90% as the appellant had a chest deformity from his childhood and that deformity aggravated the situation and resulted in paraplegia. The learned Counsel relies on Exs.R.3 and R.4 to fix the percentage of disability as 90% The learned Counsel submits that as per the decision of the Division Bench of this Court in United India Insurance Company Ltd., Tiruchengode vs. Veluchamy and another reported in 2005 (1) CTC 38, the lesser multiplier should be chosen to grant compensation. When "17" could be the multiplier for the age of the appellant at the time of the accident, the learned Counsel for the second respondent suggests that "15" could be taken as multiplier in terms of the judgment of the Division Bench referred to above. The learned Counsel also submits that there is no justification for giving enhanced amount towards loss of amenities and enjoyment in life.
13. I have considered the submissions made on either side and perused the records.
14. In the light of the arguments made by both sides it has to be seen whether the Tribunal was justified in fixing the permanent partial disability at 90% or it should be taken as 100% disability.
15. Ex.P.7 is the disability certificate. In Ex.P.7 it is stated as follows:
"Traumatic paraplegia at T11-T12 vertebra. Grievous injury".
It is stated as follows, under the caption present condition:
"Traumatic spinal lying at T11-T12 causing backwards displacement of vertebra causing compression of the spinal canal at lower homaid spinal card and the area of the spinal and causing traumatic paraplegia. All modalities below that level is of O noseraion. No movement of both lower extrements. Not control over bladder and bowl. He has to be lifted and moved by others."
The break up of details of disability is given as follows in the disability certificate.
"1. Loss of modality in both lower limbs - 30%
2. Loss of stability in both lower limbs - 30%
3. Loss of serration - 20%
4. Bladder and Bowl disfunction - 20%
------
Total -100%
-------"
It is stated as follows in the remarks column "He can not do his tailor duty due to his present disability".
16. P.w.2, the doctor deposed as follows:
"fle;j 18.03.2006 md;W kDjhuh; rpd;dr;rhkpia kUj;Jt rpfpr;ir MtzA;fspy; efy;fis ghh;itapl;L Ez;fjph; glbkLj;J kDjhuiu Beuoahf ghpBrhjpj;J Cdk; fzpj;Bjd;. 02.03.2004 md;W Vw;gl;l thfd tpgj;J fhaA;fSf;fhf bghpaFsk; muR kUj;Jtkidapy; rpfpr;ir bgw;w gpd;g[ Bky; rpfpr;irf;fhf muR uh$h$p kUj;Jtkidf;F te;J mjd; gpwF kJiu kPdhl;rp kp&d; kUj;Jtkidapy; mj;jpahtrpa rpfpr;ir bgw;W kPz;Lk; bghpaFsk; muR kUj;Jtkidapy; bjhlh;e;J cs;Behahspahf rpfpr;ir bgw;w gpd;g[ ehd; mtUf;F g[w Behahspahf rpfpr;ir mspj;Js;Bsd;. tpgj;jpy; mthpd; jz;Ltlj;jpy; 11tJ 12tJ khh;g[ jz;Ltl vYk;gpy; mogl;L mit gpd;gf;fkhf efh;e;J jz;Ltlj;ij mGj;jp mjw;F fPBH ve;j naf;fKk; ny;yhj mstpw;F ghjpj;Jtpl;lJ "
17. During cross examination also he deposed that as per Ex.P.11, the hospital records of Periyakulam Government Hospital, he suffered due to paraplegia and that he could not move his legs and passing of motion and urine was not under his control. He stood by the certificate Ex.P.7.
18. Reliance by the second respondent on Exs.R.3 and R.4 is of no use. Ex.R.3 is the certificate given by the Meenakshi Mission Hospital. Ex.R.3 is Ex.P.6. When the appellant got discharged from the Meenakshi Mission Hospital on 09.03.2004, the hospital authorities stated that they could not give final opinion on the injury suffered by the appellant. In fact in Ex.R.3, it is stated that the appellant got injured at spinal card and his both limbs were affected. Ex.R.3 is extracted as follows:
"The above mentioned person has come/has been brought to the Accident and Emergency unit of this hospital with the history of RTA. The examination of the above said patient commenced at 8.45p.m. hrs on 03.03.2004 and the following injuries were noted.
-KYPLOSIS STARTING FROM TO AND UP TO L2 VERTEBRAL LEVEL
-T7 AND T8 VERTEBRAL BONY TENDERNESS
-PARASPINAL SPASM
-ABSENCE OF TOUCH AND PIN-PRICK SENSATION DOWNWARDS BOTH LOWER LIMBS.
(i) This patient was admitted in this hospital as an inpatient in the department of ORTHOPAEDICS from 03.03.2004 to 09.03.2004. The patient and attendance are not willing for further treatment in this hospital. Hence the patient is discharged against medical advice and as the treatment is not over. Opinion regarding the injuries cannot be given."
19. Therefore, the second respondent could not rely on this document in support of his submission to fix the percentage of disability at 90%. Likewise Ex.R.4, the accident register is also of no use to him. Ex.R.4 is the accident register maintained by the Government Hospital. Immediately after the accident on 02.03.2004, he was taken to the Government Hospital at Periyakulam and the nature of injuries were recorded in the accident register. Therefore, the entries made on 02.03.2004 could not help to come to any conclusion about the percentage of disability suffered by the injured. Further it is recorded therein that he had chest deformity from childhood. No one could come to a conclusion that chest deformity led to paraplegia and the disability. There is absolutely no evidence in this regard, to come to such a conclusion.
20. Further, it is relevant that nothing was suggested to P.W.2, the doctor who gave evidence in support of the appellant, when he was in witness box, that the chest disability from the childhood caused the disability. More importantly, the second respondent did not choose to examine any doctor in support of his defence. In fact, the learned Counsel for the appellant has produced a print out taken from internet regarding paraplegia. This print out is taken from Wikipedia Encyclopedia. The following is stated regarding paraplegia as per the Wikipedia Encyclopedia:
"Paraplegia is an impairment in motor and / or sensory function of the lower extremities. It is usually the result of spinal cord injury or a congenital condition such as spina bifidawhich affects the neural elements of the spinal canal. The area of the spinal canal which is affected in paraplegia is either the thoracic, lumbar, or sacral regions. If the arms are also affected by paralysis, quadriplegia is the proper terminology. If only one limb is affected the correct term is monoplegia. While some people with paraplegia can walk to a degree, many are dependent on wheelchairs or other supportive measures. Impotence and various degrees of urinary and fecal incontinence are very common in those affected. Many use catheters and/or a bowel management program (often involving suppositories, enemas, or digital stimulation of the bowels) to address these problems. With successful bladder and bowel management, paraplegies can prevent virtually all accidental urinary or bowel discharges."
21. Based on the Ex.P.7 and the evidence of the doctor P.W.2 and Wikipedia statement, I am of the view that the Tribunal ought to have held that the appellant suffered 100% disability.
22. The Tribunal granted Rs.33,000/- towards loss of income from the date of accident to the filing of the application, but failed to grant any compensating for future loss of income. The Tribunal erroneously fixed Rs.1,500/- as monthly earnings for a tailor. As per the decision of the Honourable Apex Court in Kalpana's case reported in 2007(1) TNMAC (1) SC, in cases where monthly earnings are not established by adducing proper evidence, it could be taken as Rs.3,000/- as monthly earnings.
23. The issue regarding application of multiplier is also under dispute. While the appellant seeks to take "17" as multiplier as the appellant was aged "31" years at the time of the accident, the second respondent relies on the decision of Division Bench of this Court in Veluchamy's case and seeks to apply '15" as multiplier.
24. I am not in agreement with the submission made by the learned Counsel for the second respondent. In Veluchamy's case, this Court came to the conclusion that even though the owner cum driver of the van lost his leg, he could still operate the van by appointing some other person and carry on his business and thus adopted lesser multiplier. In this case, I am of the view that since the person suffers from paraplegia due to the accident, he could not take care of himself and he is dying every day and he could not even pass motion or urine without the held of others. He is really a vegetable. Hence the judgment relied on by the second respondent is of no use.
25. In these circumstances, I am inclined to take "17" as multiplier. Hence, the compensation towards loss of income comes to Rs.3,000/- x 12 x 17 = Rs.6,12,000/-
26. The learned Counsel for the appellant is correct in his submission that awarding Rs.10,000/- towards pain and sufferings is on lower side. I am not inclined to award Rs.1,50,000/- as submitted by the learned Counsel for the appellant. I am of the view that Rs.1,00,000/- has to be awarded towards pain and sufferings and he is also entitled to Rs.1,00,000/- towards loss of amenities and enjoyment in life, taking into account the nature of injuries suffered at his spinal card and the total inability and also he could not pass motion and urine without the help of others. At the age of "31" years, he suffered grievous injuries and totally lost his marriage prospects. Hence I am inclined to award Rs.1,00,000/- towards loss of marriage prospects. I am fortified by the judgment of the Division Bench of this Court in United India Insurance Company Limited Vs. S.Saravanan and Another reported in 2009(2) TNMAC 103(DB), in this regard. Paragraph 24 of the above said judgment is extracted hereunder for that purpose:
"24. Therefore, if we take Rs.10,000/- as the claimant's monthly income, then his annual income would have been Rs.1,20,000/-. The multiplier to be adopted in this case will be 17 and thus calculating, the pecuniary loss to the family would be to the tune of Rs.20,40,000/-. The Tribunal has awarded Rs.1,00,000/- towards Transport Expenses and Rs.1,00,000/- for extra nourishment. We do not see how the Tribunal had arrived at these amounts. However, in view of the finding that the claimant is in a vegetative sale, extra expenditure is bound to be incurred by the wife to sustain her injured husband and in these circumstances, though there is no evidence for the claim towards transport expenses and extra nourishment. We confirm the same. The Tribunal has awarded only Rs.1,00,000/- for future medical expenses. The copies of medical bills have been enclosed in the typed set of papers, which give an indication of the huge expenditure that has been incurred on behalf of the claimant. Since for past expenses a sum of Rs.5,22,553/- has been spent, we do not think we would be erring if we award a sum of Rs.5,00,000/- for future medical expenses. The award of Rs.5,22,553/- for medical expenses as per Ex.P.22, is therefore, not disturbed. The award of Rs.1,00,000/- for pain and suffering is also not disturbed. All these amounts add upto a sum of Rs.33,62,553/-. We round it off to Rs.35,00,000/-. We think it is only just and reasonable that we have awarded more than what was claimed, taking into account the condition of the claimant and the bills produced."
27. The learned Counsel for the second respondent submits that while awarding future loss of income, the amount award towards disability compensation of Rs.90,000/- has to be set aside. He relies on the Full Bench decision in Cholan Roadways Corporation Ltd. represented by its Managing Director, Kumbakonnam vs. Ahmed Thambi and six others reported in 2006 (3) L.W. 1025.
28. The learned Counsel for the appellant has no serious objection for the same and accordingly, Rs.90,000/- awarded towards disability compensating is set aside.
29. Hence, the following compensating is awarded to the appellant by this Court:
(i) loss of income till filing of the application Rs. 33,000
(ii) loss of future income Rs.6,12,000
(iii) for transport charges Rs. 1,000
(iv) for medical expenses Rs. 13,248
(v) for attendant charges Rs. 5,000
(vi) for pain and sufferings Rs.1,00,000
(vii) for loss of amenities and enjoyment in life Rs.1,00,000
(viii)for loss of marital prospects Rs.1,00,000
-----------
Total Rs.9,64,248
-----------
30. In my considered view, as per the decisions of the Honourable Apex Court in Nagappa's case and Rama Devi's case referred to in paragraph 10 of the judgment, this Court has to fix just and fair compensation as per Section 168 of Motor Vehicles Act. Accordingly, I fix the same at Rs.9,64,248/- for the reasons stated above.
31. The second respondent Insurance Company is directed to deposit Rs.7,62,000/-(Rs.9,64,248 - Rs.2,02,248) to the credit of M.C.O.P.No.25 of 2006, on the file of the Motor Accident Claims Tribunal, Sub Court, Periyakulam, with the same rate of interest as awarded by Tribunal from the date of application within a period of a six weeks from the date of receipt of a copy of this order. On such deposit being made, the appellant is entitled to withdraw the same, after paying the necessary court fee. Accordingly, this Civil Miscellaneous Appeal is allowed. No costs.
To:
The Motor Accident Claims Tribunal, Sub Court, Periyakulam.