Madras High Court
S.Neethipathi vs The Managing Director on 18 June, 2018
Bench: N.Kirubakaran, Krishnan Ramasamy
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.06.2018
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
and
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
C.M.A.Nos.1193 & 1293 of 2018
and CMP.No.10320 of 2018
CMA.No.1193 of 2018
S.Neethipathi ... Appellant
Vs
1. The Managing Director
TNSTC Villupuram II,
Rangapuram, Vellore.
2. Nagaraj
3. The General Manager,
Sriram General Insurance Company Limited,
No.4, Lady Dasilka Cherry Street,
Mylapore, Chennai. ... Respondents
PRAYER : Civil Miscellaneous Appeal filed against the award and
decree dated 20.04.2017 made in M.A.C.T.O.P.No.27 of 2015 on the
file of the Motor Accidents Claims Tribunal, Special Subordinate
Judge, Tirupattur
For Appellant : Mr.F.Terry Chella Raja
For Respondents : Mr.K.J.Sivakumar for R1
http://www.judis.nic.in
R2 & R3 set exparte
2
CMA.No.1293 of 2018
The Managing Director
TNSTC Villupuram II,
Rangapuram, Vellore. ... Appellant
Vs
1. S.Neethipathi
2. Nagaraj
3. The General Manager,
Sriram General Insurance Company Limited,
No.4, Lady Dasilka Cherry Street,
Mylapore, Chennai. ... Respondents
PRAYER : Civil Miscellaneous Appeal filed against the award and
decree dated 20.04.2017 made in M.A.C.T.O.P.No.27 of 2015 on the
file of the Motor Accidents Claims Tribunal, Special Subordinate
Judge, Tirupattur
For Appellant : Mr.K.J.Sivakumar
For Respondents : Mr.F.Terry Chella Raja for R1
R2 & R3 set exparte
COMMON JUDGMENT
(Judgment of the Court was delivered by N.KIRUBAKARAN, J ) These appeals have been preferred against the award passed by the Tribunal, awarding a sum of Rs.10,14,750/-. Both the Transport Corporation as well as claimant are before this Court. The claimant http://www.judis.nic.in 3 has filed CMA.No.1193 of 2018 and the Transport Corporation has filed CMA.No.1293 of 2018.
2. For the sake of convenience hereinafter, the appellant in C.M.A. No.1193 of 2018 would be referred as claimant and the appellant in C.M.A.No.1293 of 2018 would be referred as Transport Corporation.
3. CMA.No.1193 of 2018 has been preferred by the claimant against the award of Rs.10,14,750/- as compensation for the injuries and disabilities sustained by him in the accident which occurred on 25.09.2014. When the Claimant was traveling by bus belonging to the first respondent's Transport Corporation from Chennai to Tirupattur, the bus dashed against the stationary lorry belonging to the second respondent and insured with the third respondent. In the accident, the claimant sustained grievous injuries especially on the right leg. Therefore the claim petition. On contest, the Tribunal found that the accident occurred because of the rash and negligent driving of the bus driver and taking 60% as disability, awarded Rs.3,000/- per percentage of disability and including other amounts, awarded a sum of Rs.10,14,750/-. The said award is being questioned regarding the http://www.judis.nic.in 4 adequacy of the quantum by the claimant.
4. Heard the learned counsel for the claimant and the learned counsel for the Transport Corporation.
5. A perusal of the record would show that the injured was examined as PW1 and Ex.P1 would also disclose that the FIR has been registered against the driver of the bus. Though RW1 driver of the bus stated that the lorry was stopped in the middle of the road, it has to be seen that because of the break down only, the lorry was stopped in the middle of the road. But, there is no independent oral and documentary evidence to prove the same. If that is so, the first respondent's Transport Corporation bus driver should have been careful enough to go slow while approaching the lorry which was stopped in the middle of the road. If any vehicle is stopped due to break down in the middle of the road, there would have been signal or reflector placed to show that the lorry is stopped due to break down. Further it is the evidence of PW1 that the bus was driven in a rash and negligent manner and the bus dashed against the median first and thereafter hit against the lorry which was parked on the road. The very fact that the bus hit the median would disclose the rash and negligent driving of the bus driver. Therefore the Tribunal found that http://www.judis.nic.in 5 the driver of the bus was responsible for the accident. Therefore the finding reached by the Tribunal that the accident occurred because of the negligence on the part of first respondent Transport Corporation bus driver is sustained.
6. The claimant suffered compound Grade-III B fracture of both bone right leg with extensive degloving and crushed muscles. Ex.P3- discharge summary would show that the appellant was admitted immediately after the accident on 25.09.2014 and dishcarged on 29.04.2015 and in the hospital, the claimant underwent the following surgeries:-
“He was evaluated by plastic &
Reconstructive surgeon, Diabetologist and
Anesthetist.
On 26.09.2014 he underwent Wound Debridement, External Fixator application & Tibial plating under spinal anesthesia.
On 18.10.2014 he underwent Would Debridement under spinal anesthesia.
On 13.10.2014 he underwent Wound Debridement under spinal anesthesia.
On 18.10.2014 he underwent Wound Debridement under spinal anesthesia.
http://www.judis.nic.in On 24.10.2014 he underwent Wound Debridement 6 and split skin grafting under spinal anesthesia”.
7. Therefore it is evident that the claimant under went six surgeries. Subsequently, he was admitted in MIOT hospital on 19.02.2018 and on 21.02.2018 and he underwent a surgery called implant removal right proximal tibia as an elective procedure and on 26.02.2018 discharged from MIOT hospital as evident from Ex.P.4. Though subsequently the appellant also got admitted in the hospital, the said document was not marked before this Court. The claimant is also present before this Court. The right leg of the claimant below the knee got crushed and the bones are visible and some muscle is absent because of Debridement. With this condition, it is impossible for the claimnt to do any work and he is walking with a help of stick. When that is his position it is not known as to how the Tribunal did not adopt multiplier method and awarded only Rs.3,000/- for 60% permanent disability. 60% permanent disability was determined by the Medical Board as per Ex.P.22 discharge certificate. Though it is 60% disability, the appellant lost 100% earning power. With this physical condition, it is impossible for him to get any work and he cannot do any work at all and therefore there is 100% loss of earning power. The Tribunal mechanically awarded Rs.3,000/- per percentage for disability. The determination of Rs.1,80,000/- towards permanent disability fixed by http://www.judis.nic.in 7 the Tribunal is set aside. This Court determines the loss of income by applying multiplier method. The claimant stated to be a Panipoori seller as per the pleadings and was earning Rs.12,500/- per month. The accident occurred on 25.09.2014 and any manual worker would charge not less than Rs.12,000/- per month in the year 2014. The Tribunal did not adopt multiplier method. The Honourable Supreme Court in the judgment delivered in Syed Sadiq Vs.United India Insurance Company, reported in 2014 (1) TNMAC 459, fixed the monthly income at Rs.6,500/- for a vegetable vendor, who sustained injuries in the accident which occurred in the year 2008. In the present case, the accident had occurred during the year 2014, about six years later and therefore, it would be appropriate to determine the monthly income as Rs.12,000/-.
8. As per the Constitution Bench judgment of the Honourable Supreme Court in National Insurance Company Limited V. Pranay Sethi and others, reported in 2017 (2) TN MAC 609 (SC), since the claimant was aged about 34 years at the time of accident, 40% has to be added towards future prospects and the total monthly income of the injured is arrived at Rs.16,800/- = (12,000 + 40% of 12,000). The appropriate multiplier for the age of 34 years is “16”.
http://www.judis.nic.in Therefore, 8 total loss of income is arrived at Rs.32,25,600/- (Rs.16,800/-x 12 x 16)
9. Medical Expenses:-
The Tribunal awarded a sum of Rs.7,87,950/- towards medical expenses. The said amount has been determined including the advance amount paid by the claimant. But, what has to be taken towards Medical Bills, is the actual amount. Since the petitioner has included advance bills in Ex.P.11, Ex.P.12 and Ex.P.14, the same cannot be granted. Therefore, this Court awards a sum of Rs.4,58,254/- towards medical expenses. However, considering the contention of the appellant and the nature of injuries sustained by him, this Court deems it appropriate to award a sum of Rs.50,000/- towards future medical expenses.
10. Nutrious food :-
The Tribunal has awarded a sum of Rs.10,000/- towards nutrious food and the same is enhanced to Rs.50,000/-
11. Pain and suffering:-
The Tribunal awarded a sum of Rs.30,000/- towards pain and suffering. Since the injuries sustained by the claimant was grievous http://www.judis.nic.in 9 and he underwent seven surgeries and had been hospitalised three times, definitely the pain and suffering underwent by the appellant cannot be estimated and therefore, a sum of Rs. 2,00,000/- is awarded towards Pain and Suffering.
12. Attender charges:-
The Tribunal has awarded a sum of Rs.6,800/- towards attender charges and the same is confirmed.
13. Transportation charges:-
As no amount is awarded towards “transportation” a sum of Rs.10,000/- is awarded.
14. Loss of amenities:-
As no amount is awarded towards “ loss of amenities” a sum of Rs.2,00,000/- is awarded.
The modified award amount is as follows:-
Head Amount (Rs.)
1.Loss of income due to permanent Rs.32,25,600/- disability
2. Pain and suffering Rs. 2,00,000/-
3.Medical bills Rs. 4,58,254/-
http://www.judis.nic.in 4.Future medical expenses Rs. 50,000/- 10
Head Amount (Rs.)
5.Extra nourishment Rs. 50,000/-
6.Transportation charges Rs. 10,000/-
7. Loss of amenities Rs. 2,00,000/-
8.Attender charges Rs. 6,800/-
Total Rs.42,00,654/-
15. Hence, the total compensation payable in this case is Rs.42,00,654/- and the same is rounded off to Rs.42,00,000/-
16. The interest awarded by the Tribunal at the rate of 7.5% per annum is unaltered. The claimant is directed to pay the additional court fee for the enhanced amount, if any.
17. The first respondent/Transport Corporation is directed to deposit the entire award amount before the Tribunal as per the modified award passed by this Court along with interest and costs, within a period of twelve weeks from the date of receipt of a copy of this order, after deducting the amount already deposited, if any, failing which, the Chairman-cum-Managing Director and Chief Financial Officer-cum-Chief Accounts Officer shall appear before this Court. On such deposit being made, the Tribunal is directed to transfer 50% of the award amount with interest and costs to the bank account of the claimant through RTGS within a period of one week http://www.judis.nic.in 11 thereon. Taking into consideration, the position of the family members as well as the future of the appellant, the balance 50% shall be deposited in interest bearing Fixed Deposit in any of the Nationalised Bank atleast for a period of six years and the appellant is permitted to withdraw interest accruing on such deposit once in three months. If the appellant is permitted to withdraw the entire amount he may not be in a position to manage the amount properly.
18. Accordingly, CMA.No.1293 of 2018 is dismissed and CMA.No.1193 of 2018 is partly allowed by enhancing the award of the Tribunal from Rs.10,14,750/- to Rs.42,00,000/- with interest and costs. No costs. Connected miscellaneous petition is also closed.
(N.K.K.J.) (K.R.J)
18.06.2018
Internet : Yes/No
Index : Yes/No
Speaking order/Non-Speaking order
dpq
http://www.judis.nic.in
12
N.KIRUBAKARAN, J.
and
KRISHNAN RAMASAMY, J.
dpq
To
The Special Subordinate Judge, Tirupattur (Motor Accident Claims Tribunal) C.M.A.Nos.1193 & 1293 of 2018 and CMP.No.10320 of 2018 Dated : 18.06.2018 http://www.judis.nic.in