Madras High Court
M/S Reliance General Insurance Co.Ltd vs P.Rajakumar on 29 January, 2013
Author: T.Raja
Bench: T.Raja
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/01/2013 CORAM THE HONOURABLE MR.JUSTICE T.RAJA C.M.A.(MD).No.770 of 2012 and Cross Objection (MD) No.2 of 2013 C.M.A.(MD) No.770 of 2012 M/s Reliance General Insurance Co.Ltd., rep.by its Regional Manager 80 Feet Road, Anna Nagar Madurai 625 020 ... Appellant vs 1. P.Rajakumar 2. S.Velmurugan ... Respondents Memorandum of Grounds of Civil Miscellaneous Appeal under Section 173 of the Motor Vehicles Act, 1988, against the fair and decretal order dated 14.10.2011 made in M.C.O.P.No.954 of 2009 on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Madurai. !For Appellant ... Mr.S.Srinivasa Raghavan ^For Respondents... Mr.K.Kumaravel for R1 Mr.B.Jeyakumar for R2 Cross.Obj.(MD) No.2 of 2013 P.Rajakumar .. Cross Appellant vs 1. M/s The Reliance General Insurance Co.Ltd., rep.by its Regional Manager 80 Feet Road, Anna Nagar Madurai 2. S.Velmurugan .. Respondents Memorandum of Grounds of Cross Appeal under Order 41, Rule 22 of the Civil Procedure Code, against the fair and decretal order dated 14.10.2011 made in M.C.O.P.No.954 of 2009 on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Madurai. For Appellant ... Mr.K.Kumaravel For Respondent ... Mr.S.Srinivasa Raghavan for R1 Mr.B.Jeyakumar for R2 :JUDGMENT
There are two appeals, one by the Reliance General Insurance Company Limited and another cross appeal by the claimant himself, challenging the quantum of compensation awarded by the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Madurai in M.C.O.P.No.954 of 2009 dated 14.10.2011, in respect of excess and low compensation respectively. Hence, both the appeals are taken up for common disposal. For convenience, the parties will be hereinafter referred to as "the Insurance Company" and "the cross objector" in this judgment.
2. The facts in brief leading to the filing of the appeals are given as under:
On 27.2.2009 at about 6.45 p.m., near Samayanallur overbridge on the Madurai-Dindigul national highway, while the cross objector was riding his motorcycle bearing Registration No.TN-59-U 8754, unfortunately, a passenger bus bearing Registration No.TN-63-H-9109, allegedly driven by its driver in a rash and negligent manner, hit on the back of the motorcycle driven by the cross objector, as a result, the cross objector fell down and the wheel of the bus ran over his legs and resultantly, the cross objector lost his right leg apart from his left foot got crushed and he became a permanent handicapped person on account of the following injuries viz., right leg amputated, left foot crushed and all bones were broken on left foot and skin taken from left thigh for grafting on the foot apart from multiple injuries. In view of the amputation of his right leg and crushed left foot with all bones broken, he is unable to walk or ride bicycle. Even though he was admitted in the hospital and after a long treatment for amputating his right leg, the cross objector is unable to concentrate even on light work. Before the unfortunate accident, the cross objector, being a computer software engineer, was earning a sum of Rs.60,000/- per month by running a Cyber Media Software Consultancy (Wireless Network and Mobile Computing) at No.14, First Floor, North Veli Street, Madurai by doing computer sales and services. In proof of his business, he also filed the income tax saral forms carrying the Permanent Account Number (PAN) ADLP 23002 for the years 2008-09 and 2009-10. It was also pleaded that in the course of cyber media software consultancy services, he used to visit various places and procure orders for sales and service in his motorcycle and since his right leg has been amputated, with the help of artificial equipments, he is not able to continue his service as he was doing prior to the accident. Under this background, to prove that he lost his right leg and had taken long treatment for about 61 days i.e., from 27.2.2009 to 27.4.2009 including for medical expenses, transport, extra-nourishment, a claim for Rs.25,00,000/- was laid before the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Madurai. It was further pleaded that the cross objector also registered a case in Crime No.49 of 2009 on the file of Samayanallur Police Station under Sections 279 and 338 of Indian Penal Code against the bus driver and the same is also pending before the learned Judicial Magistrate No.IV, Madurai. Finally, it was pleaded that the cross objector is the only earning member in his family and since his right leg has been amputated, he is justified in laying the claim for Rs.25,00,000/- as compensation.
3. Opposing the claim, the Insurance Company filed a detailed counter affidavit before the Tribunal by taking a stand that the claim of Rs.25,00,000/- was grossly exaggerated. Further, the claim towards loss of earning was totally disputed and the expenses towards transport, extra-nourishment and pain and suffering were objected to be highly inflated, since the accident was not due to the rash and negligent driving of the bus driver, but was solely due to the fault of the cross objector himself. Therefore, it was pleaded that the Insurance Company was not liable to pay any compensation.
4. On consideration of the case of both sides, the Tribunal, while holding that the accident occurred only due to the rash and negligent driving of the bus driver, it further held that the Insurance Company was liable to compensate the loss to the cross objector, and after determining the amounts under various heads, ultimately arrived at a compensation of Rs.12,07,885/- to be paid to the cross objector together with 7.5% interest per annum from the date of petition till the date of realisation. Admitting their liability upto Rs.7,07,885/-, the Insurance Company has preferred the appeal only insofar as the quantum of Rs.5,00,000/- awarded by the Tribunal. On the other hand, feeling aggrieved by the meagre amount of compensation awarded by the Tribunal, the cross objector has filed the cross appeal.
5. The learned counsel for the Insurance Company contended that the Tribunal ought not to have granted a sum of Rs.90,000/- towards loss of earning during the period of treatment viz., from 27.2.2009 to 27.4.2009. It was further contended that the Tribunal ought not to have granted Rs.1,00,000/- towards pain and suffering. It was also contended that the award of Rs.6,00,000/- for fixation of artificial limbs for six times is unsustainable, since the said amount has not been actually incurred by the cross objector and no interest can be claimed on such amount.
6. On the other hand, the learned counsel for the cross objector vehemently contended that the amount of compensation awarded by the Tribunal is too meagre while considering the nature of injuries sustained by the cross objector. When it is an admitted fact by both sides that the cross objector suffered amputation of right leg below the knee and also multiple injuries all over the body and his left foot also got crushed with all the bones broken, resultantly, he has been completely rendered jobless by not attending to his computer software services and it was also proved beyond doubt before the Tribunal, the Tribunal erred in fixing only a sum of Rs.10,000/- as the monthly income of the deceased when the cross objector has produced evidence of earning a sum of Rs.60,000/- per month by producing the income tax saral forms for having paid tax for the years 2008-09 and 2009-10. Further, the learned counsel pleaded that the Insurance Company neither proved before the Tribunal nor before this Court by placing any oral or documentary evidence that the cross objector was not running the Cyber Media Software Consultancy Services at No.14, First Floor, North Veli Street, Madurai. He further pleaded that though it is an admitted fact that the cross objector lost his right leg at the age of 39 years while he was doing computer software business, the challenge made by the Insurance Company against the quantum of compensation fixed by the Tribunal must necessarily fail. Instead, this Court should enhance the compensation awarded by the Tribunal considering the permanent disability of the petitioner after the occurrence of the alleged accident.
7. Heard the learned counsel on either side and perused the records. After considering the case of both sides, the Tribunal took into account three aspects, firstly, that the cross objector at the time of the unfortunate accident on 27.2.2009 was running a software consultancy office in the name of Cyber Media Software Consultancy Services (Wireless Network and Mobile Computing) at No.14, First Floor, North Veli Street, Madurai and was earning a sum of Rs.60,000/- per month, for which he has also produced the documentary evidence issued by the Income Tax department, namely, income tax saral forms, Ex.P6 showing that the cross objector had paid income tax for the years 2008-09 and 2009-10 under the Permanent Account Number (PAN) DDLP 23002. Secondly, taking note of the admitted fact that the cross objector has suffered amputation in his right leg and also sustained multiple injuries all over his body, came to the conclusion that he cannot lead a normal life on the loss of his left leg below the knee. The Tribunal also found that the cross objector suffered unbearable pain and suffering and spent a huge amount towards the medical expenses including for fixation of artificial leg, which cost about Rs.2 lakhs, and further sums could be required for replacement of the artificial leg once in three/four years in addition to the medical expenses. The Tribunal, having found that the left leg of the cross objector was also reduced, reached a conclusion that the cross objector has suffered 80% permanent disability on the basis of the certificate issued by the doctor of Vadamalayan Hospitals, Madurai, which was marked as Ex.P21, and awarded a sum of Rs.1,60,000/- as compensation under the said head.
8. The Tribunal under the head of loss of earning for a period of 9 months from 27.2.2009 to 27.10.2009, by taking into account the income tax saral forms produced by the cross objector, awarded a sum of Rs.90,000/-. The said conclusion was reached by the Tribunal rightly taking into account the net profit reflected in the income tax saral forms in a sum of Rs.1,67,100/- for the previous year and after arriving at the net profit at Rs.13,925/- per month and fixing the monthly income of the cross objector at Rs.10,000/-. As the claimant/cross objector was unable to continue with his software consultancy services for about nine months after the accident, the Tribunal fixed the sum of Rs.90,000/- under the head of loss of earning. The Tribunal also awarded a sum of Rs.20,000/- for transport expenses on the ground that the injured/cross objector has to travel in private vehicle throughout his life for replacement of the the top skin and by considering his disability. Under the head extra nourishment, the Tribunal awarded a sum of Rs.25,000/-. Similarly, a sum of Rs.2,000/- was awarded for damages to clothes and articles.
9. Under the head of medical expenses, the Tribunal awarded a sum of Rs.2,10,885/- by taking into account the medical bills under the Ex.P14 and Ex.P16 series as well as Ex.P24 and Ex.P25, insurance policy and bills. The Tribunal further found that at the time of accident, the cross objector was aged 39 years and that he has to undergo replacement of artificial leg once in three/four years and that a sum of Rs.1,00,000/- is required for each replacement and also considering the fact that at least six replacements could be made, awarded a sum of Rs.6,00,000/- for replacement of the artificial leg. Finally, a sum of Rs.1,00,000/- was awarded towards pain and suffering.
10. The argument of the learned counsel for the Insurance Company that the Tribunal has wrongly awarded Rs.90,000/- for the loss of earning for the period of treatment undergone by the cross objector is excessive and arbitrary, is completely unjustifiable for the reason that the Tribunal, while fixing the said amount of Rs.90,000/-, has rightly perused the income tax saral forms issued by the income tax department for the years 2008-09 and 2009-10 carrying PAN-DDLP 23002 under Ex.P6 produced by the cross objector showing that he received a net profit of Rs.1,67,100/- during those years. The Tribunal has rightly appreciated that the monthly net profit enjoyed by the cross objector was Rs.13,925/- and on that basis arrived at the monthly income of the cross objector at Rs.10,000/-. The Tribunal, taking into account that the cross objector would not have done the software services for at least nine months after the accident, awarded a sum of Rs.90,000/- for loss of earning. The said fixation cannot be found fault with.
11. While coming to the permanent disability suffered by the cross objector, the Tribunal found that the cross objector had lost his right leg and 7.5 cms of his right leg was completely amputated, for which he was also wearing artificial leg. Therefore, accepting the disability certificate, Ex.P21 issued by the doctor and also the treatment register, Ex.P23 issued by Vadamalayan Hospitals, Madurai which also recommended for replacement of top skin once in a year and also the artificial leg has to be replaced once in three/four years, fixed a sum of Rs.2,000/- for each percentage of disability and accordingly awarded compensation of Rs.1,60,000/- for 80% disability. When the cross objector had produced income tax saral forms for having paid tax for the years 2008-09 and 2009-10 with PAN-DDLP 23002 showing that he was earning Rs.60,000/- per month, the Insurance Company, without disproving the above documents that Ex.P5 saral forms and Ex.P6 pan card were not issued by the income tax department and without disproving the fact that the cross objector was earning Rs.60,000/- per month, has filed the appeal questioning the quantum of compensation fixed by the Tribunal. On the other hand, the submission of the learned counsel for the cross objector that it is an admitted fact by both sides that the cross objector suffered loss of right leg and also multiple injuries, resultantly, he was completely rendered jobless and it was also proved before the Tribunal that he was not able to carry on his computer software business after the unfortunate accident on 27.2.2009, carries more force. Further, the Insurance Company neither proved before the Tribunal or before this Court by placing any oral or documentary evidence that the cross objector was not running the Cyber Media Software Consultancy Services at No.14, First Floor, North Veli Street, Madurai. The further fact to be noted is that the cross objector had lost his right leg at the age of 39 years while he was doing computer software business, hence, the challenge made by the Insurance Company against the quantum of compensation awarded under the said head has to necessarily fail.
12. In regard to the fixation of Rs.6,00,000/- by the Tribunal towards the replacement of artificial leg once in three/four years, though it was argued by the learned counsel for the Insurance Company that the said fixation of Rs.6,00,000/- is on the higher side, the Insurance Company cannot forget their own case that when the cross objector made his claim before the Tribunal on the basis of sufficient income proof including the filing of income tax saral forms issued by the Income Tax department showing that he was earning Rs.60,000/- per month, without there being any contra evidence produced by the Insurance Company, the Tribunal has fixed the monthly income of the cross objector at Rs.10,000/-. Therefore, the cross objector has come in appeal for enhancement of the same. When it is an admitted case by both sides that the cross objector has suffered amputation of his right leg and his left foot also got crushed, as a result, he has suffered permanent disability, the doctor, who had come to the witness box, has also recommended for replacement of artificial leg once in three/four years. The evidence of the doctor shows that the cross objector was aged 39 at the time of the unfortunate accident and he had to undergo the replacement of the artificial leg at least six times in his life time. Therefore, when the cross objector had to spend huge money towards the purchase of artificial leg in view of the permanent amputation of his right leg, this Court is inclined to award a sum of Rs.4,50,000/- to meet the expenditure of purchase of artificial leg for about six times in his life time at a cost of Rs.75,000/- for each replacement, instead of the award of Rs.6,00,000/- by the Tribunal. Since the Tribunal has awarded only a meagre amount towards transport expenses, this Court enhances the said sum to Rs.50,000/- considering the fact that the cross objector has to make frequent visits to the hospital in his lifetime. Likewise, this Court also enhances the compensation under the head extra-nourishment to Rs.45,000/- considering the nature of multiple injuries sustained by the cross objector and for taking treatment for a long time. The fixation of Rs.2,000/- by the Tribunal for the damages to clothes requires no interference.
13. As argued by the learned counsel for the cross objector, the Tribunal ought to have fixed Rs.2,00,000/- towards pain and suffering, instead of Rs.1,00,000/-, for the reason that the cross objector met with an accident, in which not only his right leg was required to be amputated, but also his left foot got crushed and all the bones were broken. He also sustained multiple injuries all over his body. The doctors have also removed skin from his left thigh for grafting on the foot, as a result, 7.5 cms of his right leg got reduced and he is not able to lead a normal life with the loss of his right leg. Further, due to the crushed left foot, he is neither able to walk nor even ride a bicycle. When it is found that only with the help of walking equipments, the cross objector would be able to move in his entire lifetime, he being a software engineer and is not able to concentrate even on light work, no doubt, his future is impaired. I find force in the said submission for the reason that the cross objector, on being hit by the offending vehicle, got his right leg amputated. Being a skilled and efficient software engineer, the cross objector admittedly suffered injuries viz., his right leg got amputated, left foot got crushed and the skin taken from the left thigh for grafting on the foot apart from multiple injuries all over the body. During his business in software, he was making a huge monthly income of Rs.60,000/-. No doubt, after the amputation of his right leg and due to the mental pain and depression in remobilising his software business, as he had to travel to various places on his own to receive/procure orders, he became handicapped and cannot even concentrate on light work. Therefore, it must be mentioned that his future has completely gone bleak, hence, the award of compensation of Rs.1,00,000/- towards pain and suffering is considered low and this Court finds that a sum of Rs.2,00,000/- would be a just and fair compensation. Accordingly, the compensation awarded towards pain and suffering is increased to Rs.2,00,000/-. This approach of mine gets the support from the judgment of the Apex Court in S.Achuthan v. M.Gopal and another, 2003 ACJ 1210, where the injured suffered compound fracture of left tibia and fibula, closed fracture shaft of left femur, compound fracture of third proximal phalanx of left middle finger etc., and he was hospitalised twice and remained inpatient and underwent several surgeries. There was skin grafting, muscle grafting and plates were also fixed in left thigh. By looking into the plight of the injured that he cannot squat and would need assistance in walking, climbing stairs and also further finding that he was unfit to practice his profession as a lawyer, the Apex Court accepted the award of Rs.3,00,000/- for pain and suffering. Taking a lead from the said judgment, when a young skilled software engineer in the present case lost his right leg along with multiple injuries all over his body, which made his normal life topsy-turvy, as he is not able to walk freely, sit and attend to the call of nature as he was doing prior to the accident, the enhancement of the compensation towards pain and suffering to Rs.2,00,000/- would meet the ends of justice.
14. In view of all the above, this Court, by readjusting the compensation awarded under the above heads, do not find any merit in both the appeals. Accordingly, the civil miscellaneous appeal and the cross appeal are dismissed. Consequently, M.P.(MD) No.1 of 2012 is also dismissed. No costs.
ss To The Motor Accident Claims Tribunal (Chief Judicial Magistrate) Madurai