Madras High Court
The Divisional Manager vs S.N.Bhaskaran on 24 July, 2014
Author: V.Dhanapalan
Bench: V.Dhanapalan, G.Chockalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.07.2014 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN AND THE HONOURABLE MR. JUSTICE G.CHOCKALINGAM C.M.A. No.1676 of 2013 The Divisional Manager, Bajaj Allianz General Insurance Co. Ltd., No.25/16, 4th Floor, Prince Tower, College Road, Nungambakkam, Chennai 600 035. ... Appellant vs. 1. S.N.Bhaskaran 2. Anthony ... Respondents Civil Miscellaneous Appeal filed under Section 173 Motor Vehicles Act, 1988 against the Judgment and decree, dated 17.09.2012 made in M.C.O.P.No.76 of 2011 on the file of the Motor Accidents Claims Tribunal (Sub Court), Tiruttani. For Appellant : Mr.S.Manohar For Respondents : Mr.S.Udayakumar, for R1 J U D G M E N T
(Judgment of the Court was delivered by V.Dhanapalan,J.) Heard Mr.V.Manohar, learned counsel for the appellant/Insurance Company and Mr.S.Udhayakumar, learned counsel appearing for the 1st respondent/claimant.
2. Aggrieved by the award dated 17.09.2012 made in M.C.O.P.No.76 of 2011 on the file of the Motor Accidents Claims Tribunal, (Sub Court), Tiruttani, the Insurance Company has preferred this appeal.
3. Brief facts leading to the appeal are as follows:
On 02.07.2010, when the 1st respondent/claimant was travelling in his two-wheeler bearing Registration No.TN 20 AC 0988 on the left side of the road near Raja Nagaram Erikkarai on Pallipat to R.K.Pet Road, the driver of the 2nd respondent herein drove the Lorry bearing Registration No.TN 32 Z 7173 coming from opposite direction rashly and negligently and hit the motorcycle. Due to the accident, the 1st respondent/claimant sustained grievous lacerated injuries and fracture, abrasion on his both legs and amputation of Right leg above knee. The appellant is the insurer of the 2nd respondent's Lorry. According to the 1st respondent/claimant, the accident occurred only due to the rash and negligent driving of the driver of the Lorry. Hence, the 1st respondent/claimant filed a claim petition seeking Rs.25,00,000/- as compensation from the owner and insurer of the Lorry.
4. The appellant-Insurance Corporation resisted the claim petition that the accident occurred due to collusion between two vehicles i.e. the Motor cycle and the Lorry and contributory negligence may be taken into consideration and hence, would submit that the Insurance Company is not liable to pay any compensation.
5. Before the Tribunal, the 1st respondent/claimant examined himself as P.W.1. P.W.2 is the Doctor and P.W.3 is the employer of the claimant. On behalf of the claimant, Exs.P1 to P20 were marked. On the side of both the respondents, no witnesses were examined and no documents were marked.
6. The Tribunal, on evaluation of pleadings and evidence, found that the driver of the 2nd respondent's Lorry, insured with the appellant-Insurance Company was responsible for the accident and awarded a sum of Rs.23,88,827/- as compensation with future interest at the rate of 7.5% per annum. The compensation awarded by the Tribunal under different heads are as under:
S.No. Heads Amount I Pecuniary Loss :
1.
Injuries Rs.12,24,000.00
2.
Transportation Rs. 50,000.00 3. Extra Nourishment Rs. 50,000.00 II Non-pecuniary Loss : 1. Pain and Suffering Rs. 1,00,000.00 2. Loss of income during Treatment period Rs. 36,000.00 3. Medical Bills Rs. 3,28,827.00 4. Attender Charges Rs. 2,00,000.00 5. Loss of Amenities Rs. 1,00,000.00 6. Future Medical Expenses Rs. 3,00,000.00 Total Rs.23,88,827.00
Aggrieved by the said award, the appellant Insurance Company is before this Court seeking modification of compensation.
7. Learned counsel for the appellant, citing Sarla Verma's case, would submit that the injured claimant was aged 31 years at the time of accident and therefore, the multiplier of '16' ought to have been applied, whereas, the Tribunal has erroneously applied the multiplier of '17' in this case.
8. On the other hand, learned counsel appearing for the 1st respondent/claimant would contend that the claimant suffered grievous injuries due to the accident and his right leg above knee has been amputated, which has caused 100% disability and therefore, would submit that the compensation awarded by the Tribunal is in no way contrary to law and there is no reason to interfere with the same. He would further submit that due to the disability, the 1st respondent/claimant cannot drive any vehicle or sit and attend to clerical jobs or any other work involving physical exertion.
9. The only aspect questioned by the appellant Insurance Company is the quantum of compensation arrived by the Tribunal. There is no issue with regard to negligence.
10. A perusal of the judgment of the Tribunal would reveal that the 1st respondent/claimant, immediately after the accident, was admitted to Tiruttani Government Hospital at Sholinghur and after first aid, he was admitted to Vellore CMC Hospital and underwent treatment from 02.07.2010 to 07.07.2010. After discharge from CMC Hospital, the claimant was further admitted in MIOT Hospital, Chennai on 07.07.2010 for amputation of right leg. Since amputation of right leg was unavoidable, the claimant was admitted in Apollo Hospital, Chennai and his right leg was amputated on 08.07.2010 and open reduction internal fixation left ankle and debridement and right AK stump was done on 13.07.2010. The claimant's treatment continued at Apollo Hospital till 16.07.2010 and he was continuously taking treatment there as outpatient for the fracture in left leg and knee joint.
11. P.W.1, the claimant had deposed that due to amputation of right leg and fracture in the left leg, which has caused permanent disability, he is unable to do any kind of work. P.W.2-Doctor, who examined the claimant deposed that since the claimant's right thigh bone and right leg tibia bone and ankle are completely damaged and blood vessels blocked and since the treatment failed, as per the recommendation of AIIMS, his right leg was amputated. He further deposed that the claimant is walking with one leg alone with the help of a stick and is unable to do his regular work and assessed his disability at 100% and issued a Certificate vide Ex.P19 to that effect.
12. Though the percentage of disability certified by P.W.2 Doctor has been disputed, the Tribunal has taken note of the claimant's disability at 100% based on proper material evidence, as his right leg has been amputated and therefore, it could be a compelling factor for the Tribunal to take such a decision. Also we have no reason to disbelieve the decision taken by the Tribunal with regard to the percentage of disability.
13. With regard to the income of the claimant, it is seen that in his evidence, P.W.1 has deposed that he is a Weaver and he bought thread loom from Ponniamman Lungi Company in Ammaiyarkuppam Village. By weaving, he earned a sum of Rs.6,000/- per month. In proof of his employment and salary, P.W.3, namely, Ekambaram, Proprietor of Ponniamman Lungi Company, was examined and he deposed that the claimant is a weaver and he received threadloom from his Company and weaved the same in his residence and supplied Lungies to his Company. The Certificate issued by P.W.3 Ekambaram, marked as Ex.P20, would show that the claimant earned a sum of Rs.6,000/- per month. Though P.W.3 was cross-examined by the appellant/Insurance Company, nothing was culled out from his evidence to disprove the income prospect of the claimant. Hence, the Tribunal fixed the income of the claimant as Rs.6,000/-.
14. It is seen that at the time of accident, the claimant was aged 31 years, which is evident vide Ex.P4-Driving Licence showing his date of birth as 16.06.1979. As per Schedule II of the Motor Vehicles Act, the Tribunal, applying the multiplier of 17 to the monthly income of Rs.6000/- and taking into account the disability at 100%, arrived at a sum of Rs.12,24,400/- (Rs.6000/- x 12 x 17 x 100%/100) as compensation towards injuries.
15. While analysing the compensation awarded under the head 'injuries', the question before us is whether the Tribunal has rightly applied the multiplier.
16. It is the strong plea of the learned counsel for the appellant Insurance Company that the Tribunal ought to have taken '16' as the multiplier while fixing compensation towards injuries in view of the dictum laid down in Sarla Verma's case.
17. As regards the multiplier to be adopted, the Tribunal followed the guidelines given by the Supreme Court in the case of Sarla Verma and Others vs. Delhi Transport Corporation and another reported in 2009 (2) TN MAC 1 (SC), wherein the Hon'ble Supreme Court, compared the multiplier indicated in various decisions with the multiplier mentioned in the second schedule of Section 163-A of Motor Vehicles Act and identified a table. Relevant portion of the said judgment would read as under:
19. In New India Assurance Co. Ltd. vs. Charlie [2005 (10) SCC 720], this Court noticed that in respect of claims under section 166 of the MV Act, the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in TN State Road Transport Corporation Ltd. vs. Rajapriya [2005 (6) SCC 236] and UP State Road Transport Corporation vs. Krishna Bala [2006 (6) SCC 249]. The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under section 166 of MV Act) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under section 163A of MV Act (with appropriate deceleration after 50 years) :
Age of deceased Multiplier Scale as envisaged in General Manager, Kerala State Road Transport Corporat-ion, Trivandr-um v. Susamma Thomas and others, 1994(2) SCC 176 Multiplier Scale as adopted by U.P. State Road Transport Corporat-ion and others v. Trilok Chandra and others, 1996 (4) SCC 362 Multiplier Scale in U.P. State Road Transport Corporation and others v. Trilok Chandra and others, 1996(4) SCC 362 as clarified in New India Assurance Company Ltd. v. Charlie and another, 2005 (10) SCC 720 Multiplier Specified in Second Column in the Table in Second Schedule to the MV Act Multiplier actually used in Second Schedule to M.V. Act (as seen from the quantum of compensation) (1) (2) (3) (4) (5) (6) Upto 15 years
-
-
-15 20
15 to 20 years 16 18 18 16 19 21 to 25 years 15 17 18 17 18 26 to 30 years 14 16 17 18 17 31 to 35 years 13 15 16 17 16 36 to 40 years 12 14 15 16 15 41 to 45 years 11 13 14 15 14 46 to 50 years 10 12 13 13 12 51 to 55 years 9 11 11 11 10 56 to 60 years 8 10 9 8 8 61 to 65 years 6 8 7 5 6 Above 65 years 5 5 5 5 5
20. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas (set out in column 2 of the table above); some follow the multiplier with reference to Trilok Chandra, (set out in column 3 of the table above); some follow the multiplier with reference to Charlie (Set out in column (4) of the Table above); many follow the multiplier given in second column of the Table in the Second Schedule of MV Act (extracted in column 5 of the table above); and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in column 6 of the table above). For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second Schedule to MV Act. Some Tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A of MV Act. In cases falling under section 166 of the MV Act, Davies method is applicable.
21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.
18. Following the ratio laid down in Sarla Verma's case, the Honourable Apex Court, in the case of Reshma Kumari and others vs. Madan Mohan and another reported in 2013 (2) CTC 680, has held as under:
"34. If the multiplier as indicated in Column (4) of the table read with paragraph 42 of the Report in Sarla Verma and others v. Delhi Transport Corporation and another, 2009 (2) TNMAC 1(SC),is followed, the wide variations in the selection of multiplier in the claims of compensation in fatal accident cases can be avoided. ...
39. In our view, the standards fixed by this Court in Sarla Verma and others v. Delhi Transport Corporation and another, 2009 (2) TNMAC 1 (SC), on the aspect of deduction for personal living expenses in paragraphs 30, 31 & 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding para is made out."
19. In view of the dictum laid down by the Honourable Supreme Court in the above decisions, we have to accept the Tabular Column showing the multiplier to be adopted. Taking note of the same, the proper multiplier to be adopted in this case to the age of the 1st respondent/claimant is '16' instead of '17'. Accordingly, applying the multiplier of '16' to the income of Rs.6000/- per month, the compensation towards 'injuries' is worked out as Rs.11,52,000/- [Rs.6000/- x 12 x 16 x 100%/100]. Therefore, the award under the head 'injuries' is modified from Rs.12, 24,000/- to Rs.11,52,000/-.
20. As regards compensation awarded under other heads, we are of the considered opinion that they need not be interfered, as the Tribunal has awarded the same based on clear evidence. Accordingly, we confirm the compensation awarded under other heads, as they are justifiable.
21. Thus, the award of the Tribunal is modified and the 1st respondent/claimant is entitled to a sum of Rs.23,16,827/- as compensation. The rate of interest awarded by the Tribunal shall remain unchanged.
With the above modification and observation, this Civil Miscellaneous Appeal is allowed in part. No costs. Consequently, connected M.P.No.1 of 2013 is closed.
Index : Yes [V.D.P.,J.] [G.C.,J.]
24.07.2014
abe
To :
The Motor Accidents Claims Tribunal (Sub Court), Tiruttani.
V.DHANAPALAN,J.
AND
G.CHOCKALINGAM,J.
Abe
Judgment in
C.M.A.No.1676 of 2013
Dated: 24.07.2014