Telangana High Court
The Unted India Insurance Co.Ltd., vs T.V. Vijaya Saradhi And Another on 9 June, 2023
Author: G. Radha Rani
Bench: Chillakur Sumalatha, G.Radha Rani
THE HONOURABLE Dr. JUSTICE CHILLAKUR SUMALATHA
AND
THE HONOURABLE Dr. JUSTICE G. RADHA RANI
M.A.C.M.A.No.669 of 2010
JUDGMENT:(per Hon'ble Dr. Justice G. Radha Rani) This appeal is filed by the insurance company - respondent No.2 aggrieved by the decree and judgment dated 01.09.2008 in O.P.No.1401 of 2005 on the file of the V Additional Metropolitan Sessions Judge (Mahila Court) - cum - XIX Additional Chief Judge, City Criminal Courts at Hyderabad in awarding compensation of Rs.1,57,30,000/- with interest at 7% per annum.
2. The parties are hereinafter referred as arrayed before the Motor Accidents Claim Tribunal.
3. The claimant filed a petition under Section 166 of the Motor Vehicles Act, 1988 (for short, 'the MV Act') claiming compensation of Rs.2,50,00,000/- for the injuries sustained by him in a motor accident occurred on 24.09.2004 at about 4:40 P.M. His contention was that on the date of accident while he was standing near Y.N. Car Accessories on road 2 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 No.12, Banjara Hills, Hyderabad to purchase car accessories for his new car along with his son Master T.V. Sankeerth Saradhi, a lorry tipper bearing No.AP11 W 2799 came in a rash and negligent manner from MLA's colony road i.e., Road No.12, Banjara Hills towards Masab Tank 'T' Junction and dashed one motor cycle bearing No.AP-10/BN 1851 from behind resulting in the death of the pillion rider Smt. Indira on the spot and with the same high speed, the said lorry also dashed the petitioner and his minor son who were standing in front of Y.N. Car Accessories, due to which the petitioner sustained grievous injuries and his right leg was crushed under the front wheels of the lorry and also caused minor injuries to his son. The petitioner was immediately taken to CARE Hospitals, Banjara hills wherein he was admitted as inpatient for about two months. The rider of the motorcycle by name Sri G. Vithelesh lodged a complaint before P.S. Banjara Hills which was registered as Crime No.700/2004 for the offences under Sections 337, 338 and 304-A of I.P.C. and under Section 186 of the M.V. Act against the driver of the lorry by name M. Krishnaiah.
3.1. The petitioner further submitted that the doctors in CARE Hospitals had performed surgeries to save his right leg but inspite of the best 3 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 care and medical treatment, the doctors could not save his right leg from amputation. His right leg was amputated much above the right knee. He spent about Rs.15 Lakhs towards his medical treatment. He further submitted that he had a brilliant academic and professional career also. After graduating with distinction in Electronics Engineering, he did his Masters in Industrial Engineering from NITIE, Bombay one of the most reputed Industrial Management Schools in the world. Later he joined with TATA's for an overseas assignment and moved to Detroit in 1984. Within a year, he got an opportunity with Montran in New York, where he grew to be a Project Manager. In 1987, he moved to Brussels for few years to work with an international finance telecommunications provider (SWIFT). In the year 1991, the petitioner was made in-charge of a global project for connecting all the major banks in India to the global net work to be able to fulfill the banking transactions across the countries. During that time, the petitioner dealt closely with Finance Ministry and Reserve Bank of India as a representative of his parent company from Brussels.
3.2. He further submitted that he moved back from Brussels to New York to provide consulting services for institutions like Alpine Capital, 4 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 Concordant Technologies and Miradiant Networks. His accomplishments included being a consultant to Federal Reserve Bank of New York (equivalent to RBI) and Merrill Lynch, one of the financial giants in the world. He took over as Vice President of GTREX in New York in May 2004. He had been working as an international consultant in finance related technologies all through his career and though the United States had been his primary place of residence for the past twenty years, he travelled extensively all over the world and lived in many places in Europe and America. Travelling overseas was an integral part and a necessity for the nature of his job. In the same capacity, as an International Consultant for technology, the petitioner came to India in June 2004 to explore the possibilities of opening a branch office in Hyderabad for GTREX as its Vice President and Chief Technology Officer. Unfortunately, the project had to be abandoned halfway and the petitioner had to discontinue his services with the Company due to the serious accident. The earning capacity of the petitioner had come to a grinding halt. His life became paralyzed. He became crippled and permanently disabled. His life was shattered, as such claimed compensation from respondent Nos.1 and 2, the owner and the insurer of the lorry bearing No. AP11 W 2799.
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4. The respondent No.1 remained ex-parte. The respondent No.2 filed counter contending that the accident occurred was due to the negligence of the petitioner as he did not move away from the line of the lorry inspite of having the last opportunity to move away. The respondent No.2 filed an additional counter affidavit subsequently and contended that the petitioner was put to strict proof of the existence of GTREX incorporation in the USA or that they had any plan or intention to set up any centre in India and that too at Hyderabad or that he was paid Rs.10,000/- US dollars per month as salary. He contended that the salary certificate was a fabricated document. The same was a computer generated letter indicating no details of the existence of GTREX or its identification as per rules.
5. Based on the said pleadings, the Motor Accidents Claim Tribunal framed the following issues:
a) "Whether the accident took place on 24.9.2004 at about 4.40p.m., due to rash and negligent driving of Lorry Tipper bearing No. AP 11 W 2799, by its driver?
b) Whether the petitioner is entitled to claim compensation from the respondents, if so, to what amount and from whom?
c) To what relief?"
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6. The claimant examined himself as PW.1 and got examined the Consultant Orthopaedic Surgeon working in Care Hospital, Banjara Hills as PW.2 and a Chartered Accountant as PW.3 and an eye witness to the accident as PW.4. Exs.A1 to A27 were marked on behalf of the claimant. Respondent No.2 got examined the Assistant Manager of his company as RW.1 and a Chartered Accountant as RW.2. The copy of insurance policy was marked as Ex.B1 and the opinion of the Chartered Accountant was marked as Ex.B2.
7. Considering the oral and documentary evidence on record, the Motor Accidents Claim Tribunal partly allowed the petition for a sum of Rs.1,57,30,000/-(Rupees One Crore Fifty Seven Lakhs and Thirty Thousand only) with interest at the rate of 7% per annum from the date of the petition till the date of deposit with proportionate costs and held that respondent Nos.1 and 2 are jointly and severally liable to pay the compensation and they are directed to deposit the said amount within one month from the date of the award.
8. Aggrieved by the said award, the insurance company preferred this appeal contending that the Tribunal ought to have seen that the respondent
- petitioner was standing on the road without following the traffic rules and 7 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 was responsible for the accident. The Tribunal ought to have seen that the accident was due to the negligence on the part of the respondent - claimant. The Tribunal ought to have apportioned compensation by following the principle of contributory negligence on the part of the respondent injured. The Tribunal erred in considering Exs.A17, A19 to A26 which were not proved by the respondent. The Tribunal failed to appreciate the fact that the petitioner did not loose his earning capacity in a permanent manner and failed to consider the tax records of USA produced by the respondent which were not proved through any acceptable evidence. The Tribunal failed to appreciate the fact that the respondent failed to submit his income tax returns for the years 2005, 2006 & 2007. The Tribunal erred in applying the multiplier 12. The Tribunal ought to have considered the disability as functional disability which might not effect the earning capacity. The Tribunal ought to have followed the principles of law as decided by the Hon'ble Apex Court and prayed to allow the appeal.
9. Heard Sri A. Ramakrishna Reddy, learned counsel for the appellant and Sri G. Sanjeeva Reddy, learned counsel for the respondent No.1 8 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010
10. Now the points for consideration in this appeal are as follows:
I. Whether there is any contributory negligence on the part of the respondent No.1/claimant?
II. Whether the Tribunal erred in awarding compensation of Rs.1,57,30,000/- with interest at 7% per annum? III. To what result?
P O I N T No.I:
11. The claimant examined himself as PW.1. He stated that on 24.09.2004 at about 4.40 P.M., he along with his son Master T.V. Sankeerth Saradhi were standing on the pavement just in front of Y.N. Car Accessories on Road No.12, Banjara Hills, Hyderabad to purchase car accessories for his newly purchased car. At that point of time, a lorry tipper bearing No.AP 11 W 2799 came in a rash and negligent manner from MLA Colony Road i.e., from Road No. 12 towards Masab Tank 'T' Junction and dashed against him and his minor son. Due to which he sustained grievous injuries and his right leg was crushed under the front wheel of the lorry and his son also sustained minor injuries. He also stated that the said lorry also dashed against the motor cyclist by name G. Vittalesh and the pillion rider Smt. G. Indira from behind.
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12. Nothing was elicited in his cross-examination to disbelieve the manner of accident as stated by the claimant. It was only suggested to him that the accident did not occur due to the negligence of the truck driver, which was denied by the witness. It was further elicited that the door of the shop was at a distance of 20' feet from the pavement.
13. Thus, the evidence of this witness would disclose that he was standing on the pavement along with his son at the time of the accident and the lorry after hitting the motor cyclist, hit the claimant who was standing on the pavement.
14. The petitioner got examined the rider of the motorcyle Sri G. Vittalesh as PW.4. PW.4 stated that on 24.09.2004, he went to B.R. Ambedkar University along with his sister by name Smt B. Indira and after submitting some applications in the University, he and his sister were returning from B.R. Ambedkar University, Jubliee hills, Hyderabad on his motorbike and when reached near Y. N. Car Accessories at 4:40 P.M., at that point of time, a lorry tipper bearing No. AP 11 W 2799 came in a rash and negligent manner with high speed from MLA Colony Road i.e., from Road 10 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 No. 12 and hit his motorcycle from behind, due to which, he and his sister fell down and the said lorry ran over his sister Indira resulting in her instantaneous death. With the same rashness and speed, the said lorry tipper driver also dashed T. Vijaya Saradhi and his son, whose name he came to know later. He stated that after the accident he lodged the complaint before the Police Banjara Hills and the police registered a case in Crime No.700 of 2004 on the same day. He stated that the accident took place solely due to the rash and negligent driving by the driver of lorry tipper bearing No. AP 11 W 2799. It was suggested to him that PW.1 contributed to the accident by negligently standing on the road without observing the traffic on the road, which was denied by the witness. Nothing more was elicited in his cross-examination to disbelieve his evidence.
15. The certified copy of the complaint given by PW.4 to the police marked as Ex.A1, the certified copy of the FIR marked as Ex.A2, the accident report marked as Ex.A3 and the certified copy of the chargesheet marked as Ex.A4 were corroborating the evidence of PWs.1 and 4. The police filed the chargesheet against the driver of the tipper lorry bearing No. AP 11 W 2799. The evidence of PWs.1 and 4 would disclose that the petitioner was standing 11 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 on the pavement, the tipper lorry which was supposed to go on the road came and hit the motor cyclist from his behind and the persons standing on the foot path. It itself would disclose the rash and negligent manner with which the driver of the lorry was driving the vehicle.
16. There was nothing elicited in the evidence of PWs.1 and 4 to show that there was any negligence on the part of the petitioner or that he contributed to the accident. No evidence was adduced by the respondent No.2 to prove the plea of contributory negligence taken by them. In the absence of any evidence adduced by the respondent No.2, the trial court had rightly disbelieved the said plea taken by the respondent No.2 and answered issue No.1 holding that the accident occurred due to rash and negligent driving of the tipper lorry bearing No.AP11W2799.
17. We do not find any necessity to interfere with the observations made by the Motor Accident Claims Tribunal in this regard. As such, point No.1 is answered holding that there was no contributory negligence on the part of the respondent No.1 claimant in the accident.
12 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 P O I N T No.2:
18. Learned counsel for the appellant insurance company contended that respondent No.1 - claimant failed to prove the tax records of USA by way of acceptable evidence; the tax records filed by the respondent No.1 -
claimant ought to have been attested by Indian Embassy; the Tribunal erred in taking the income as 96,000 dollars per annum; in cases of NRI's, less multiplier had to be applied; the interest also might be granted @ 6% per annum and relied upon the judgments of the Hon'ble Apex Court in United India Insurance Company Limited Vs. Patricia Jean Mahajan & others1 and United India Insurance Company Limited Vs. Satinder Kaur @ Satwinder Kaur2 on the aspect that lower multiplier has to be taken in cases of NRIs. He also relied upon the judgments of the Hon'ble Apex Court in Smt. Kushinama Begum & Ors. Vs. The New India Assurance Co. Ltd.3 and Chandrakanth Tiwari Vs. The New India Assurance Co. Ltd.4 to award lower interest rate. He relied upon the judgments of the Hon'ble Apex Court in Savitha Vs. M/s. Cholamandalam MS General Insurance 1 (2002) 6 SCC 281 2 Civil Appeal Nos.2705 and 2706 of 2020 dated 30.06.2020 3 Civil Appeal No.6 of 2001 dated 03.01.2001 4 Civil Appeal No.2527 of 2020 dated 08.06.2020.
13 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 Company Ltd.5 and Sri Anthony @ Anthony Swamy Vs. The Managing Director, KSRTC6 to award the interest @ 6% per annum. He also relied upon the judgment of the Hon'ble Apex Court in Jiju Kuruvilla & Ors. Vs. Kunjujamma Mohan & Ors.7 on the aspect that the date of filing the claim petition was the proper date for fixing the rate of exchange at which the foreign currency amount had to be converted into currency of the country (INR).
19. Learned counsel for respondent No.1 - claimant on the other hand contended that the respondent No.1 had an exemplary career in both academic and profession. He was working as Vice President in a company by name GTREX in New York at the time of the accident. The entries in his passport would reveal his extensive travelling throughout the world. The tax returns filed by the petitioner were certified by the Chartered Accountant of New York. The transcripts of his income tax details were furnished by the Internal Revenue Service (IRS) of United States Department of Treasury, they were authenticated documents. The annual report of GTREX for the year 2004 was a public domain document from Securities and Exchange 5 Civil Appeal No.2611 of 2020 dated 16.06.2020 6 Civil Appeal No.2551 of 2020 dated 10.06.2020 7 Civil Appeal Nos.4945 and 4946 of 2013 dated 02.09.2013 14 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 Commission (SEC) of United States which was equivalent to Securities and Exchange Board of India (SEBI), the highest authority of Corporation in the United States. Every company submits its annual reports to SEC periodically in US. All these documents marked under Exs.A19 to A25 were dispatched by the IRS under the covering letter marked as Ex.A27. There is no reason to suspect the genuinity of the above documents. The Tribunal rightly considered all these aspects and also the necessity of issuance of certificate under Section 65-B of the Indian Evidence Act. There is no necessity to interfere with the well reasoned award of the Tribunal and prayed to dismiss the appeal.
20. The Tribunal on considering the evidence of PW.1 and the Exs.A19 to A25 and A27 held that the tax returns are annexed by covering letter dated 28.12.2007 signed by the Director, Electronic Products & Services Support, IRS, US Department of Treasury observed that the petitioner had sufficiently proved the genuineness of the income tax returns filed by him and the mistakes which crept in Ex.A9 were also explained by PW.3. The petitioner's evidence as PW.1 on oath had more sanctity than the certificate under Section 65-B of Indian Evidence Act, giving ample opportunity to 15 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 respondent No.2 to rebut the genuineness of the said record. The respondent No.2 insurance company examined another Chartered Accountant as RW.2, but his cross-examination would show that he deposed based on a general understanding of things and common course of events, but not specifically regarding the procedure followed by the US Government in issuing the income tax returns, accepted the said documents. However, considering that the income tax returns marked as Ex.A6 would show that the income of the petitioner was not uniform during those years, during the year 2003, his income was only 96,862 dollars but during the year 2002, the income of the claimant was 1,24,215 dollars and there was no reason put forth by the claimant as to why his income has gone down to that level, considering the variations in the income, had taken the income of the claimant as 96,000 dollars per annum only. Though PW.2 Orthopaedic Surgeon stated in his evidence that the petitioner sustained 50% disability due to the amputation of his right leg above knee, the Tribunal had taken only 30% as disability affecting his future income and considered the exchange value of the dollars in Indian rupees at the time of passing the award which was ranging between Rs.43/- and Rs.45/- and fixed it as Rs.40/-. Considering the age of the claimant as 49 years, the Tribunal had taken the multiplier as per the Second 16 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 Schedule of the M.V.Act as 12 and arrived at a compensation of Rs.1,38,24,000/- under the head 'loss of future income' and in all awarded a sum of Rs.1,57,30,000/-.
21. The Hon'ble Apex Court in United India Insurance Company Limited Vs. Patricia Jean Mahajan & others (1 supra) wherein in a petition filed under Section 166 of the MV Act for compensation on account of death of a doctor, who went to America, specialized in the field of nephrology and became an American national, died in a motor vehicle accident in India, held that:
"The court can not be totally oblivion to the realities. The 2nd Schedule while prescribing the multiplier, had maximum income of Rs. 40,000 p.a. in mind , but it is considered to be a safe guide for applying prescribed multiplier in cases of higher income also but in cases where the gap in income is so wide as in the present case income is 2,26,297$, in such a situation, it can not be said that some deviation in the multiplier, would be impermissible. Therefore, a deviation from applying the multiplier as provided in the 2nd Schedule may have to be made in this case. Apart from factors indicated earlier the amount of multiplicand also becomes a factor to be taken into account which in this case comes to 226297$ that is to say an amount of around Rs. 68 lacs per annum by converting it at the rate of Rs .30. By Indian standards it is certainly a high amount. Therefore, for the purposes of fair compensation, a lesser multiplier can be applied to a heavy amount of multiplicand. A deviation would be reasonably permissible in figure of multiplier 17 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 even according to the observations made in the case of Susamma Thomas where a specific example was given about a person dying at the age of 45 leaving no heirs being a bachelor except his parents." and reduced the multiplier from 13 to 10.
22. Learned counsel for the appellant relied upon the judgment of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. Vs. Deo Patodi and others8 wherein also a student, who was aged about 22 years doing his Business Administration course in UK and a part time job with World Bank with a monthly salary of Rs.80,000/- and was offered an employment in the capacity of EU Controller in GOA LLC, a company registered in USA at an annual renumeration of Rs.18 lakhs per annum, died in a motor vehicle accident in India on 12.06.2003 held that the standard of living in the western countries cannot be followed in the absence of any material placed before the court. Even in a case where the victim of the case was earning salary in U.S. dollars, a lower multiplier should be applied.
23. He also relied upon the judgment of the Hon'ble Apex Court in Chanderi Devi & Anr. Vs. Jaspal Singh & Ors.9 wherein the deceased was working as a cook in Germany and was alleged to be earning Rs.1,00,000/- 8 Civil Appeal No.3492 of 2009 dated 12.05.2009 9 Civil Appeal No.3238 of 2015 dated 31.03.2015 18 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 per month and wherein also a certificate showing the income of the deceased as well as the income tax payment made by him were filed before the court, the Hon'ble Apex Court observed that:
"..on considering the facts, circumstances of the case and plausibly estimating as to how much a cook of similar nature as the deceased would have earned in India in the year 2006, we are of the view that it would be just and reasonable for us to ascertain the income of the deceased at the time of his death at Rs.15,000/- per month." (though the appellants claimed the income of the deceased at Rs.62,975/- per month i.e., 1145 Euros)
24. The learned counsel for the appellant also contended that the documents filed by the respondent No.1 - claimant were not attested by the Indian Embassy and relied upon the judgment of the Hon'ble Apex Court in United India Insurance Company Limited Vs. Satinder Kaur @ Satwinder Kaur (2 supra) wherein the deceased who was residing in Doha, Qatar since 1984 was met with an accident in India on 18.11.1998 and died in the said accident. The claimants filed a letter purported to have issued by his employer showing that he was drawing a salary of 6,700 dollars per month, disbelieved the same on the ground that the same was not attested by the Indian Embassy at Doha. The Hon'ble Apex Court gave its reasons for disbelieving the said document and observed that:
19 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 "The letter dated 27.06.1997 seems to be suspicious for two other grounds. One, as per the Employee Contract Form dated 21.08.1984 certified by the Indian Embassy at Doha, the deceased was engaged by the firm Ali Al Fayyad Trading Contracting Est., Doha in 1984. The letter dated 27.06.1997 issued by the High Speed Group, stated that the deceased was employed with them since 1984. This leads to a serious doubt about the authenticity of the letter. Furthermore, the salary is mentioned in U.S. Dollars, rather than Qatari Riyal, even though the High Speed Group is a local company in Qatar.
Second, the letter dated 27.06.1997 was addressed to the Counselor, New Zealand Consulate for a visa to be issued to the deceased for his annual vacation to New Zealand during the period June - August, 1997. The passport entries however, do not show that the deceased travelled to New Zealand.
Consequently, we have serious doubts about the authenticity and veracity of the letter dated 27.06.1997, and decline to make it the basis for computing the income of the deceased at the time of his death.
... The High Court has committed an error in awarding such an exorbitant amount on the basis of an unverified document, the authenticity of which was seriously disputed."
25. The Hon'ble Apex Court in the above case had not mentioned as a general rule that all the documents need to be attested by the Indian Embassies of those countries. Due to specific reasons discussed in the above case, the Hon'ble Apex Court declined to take the said letter as basis for 20 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 computing the income of the deceased. The same is not applicable to the facts of this case.
26. PW.1 filed the certified copies of his income tax returns for the years 1995 to 2005 (for 11 years) filed before the Department of Treasury, Internal Revenue Services in United States. The same were certified by the Chartered Accountants and tax consultant by name P. Nagaraj and Associates LLC in New York. He also got examined the Chartered Accountant, by name P.V. Suresh Kumar as PW.2, who gave his evidence that he had examined the certified individual income tax returns of US Government pertaining to the petitioner. The said income tax returns of the petitioner were relating to the years 1995 to 2004. The copies of income tax returns were certified by the US tax consultant under the covering letter dated 15.07.2007 under Ex.A7. He relied on the said documents for the purpose of issuing the certificate marked under Ex.A9. All the figures were duly supported by the returns. All the said documents were filed by Nagaraj and Associates LLC, accountant and tax consultant, Great Neck, New York. They placed reliance on the certificate of P.Nagaraj under Ex.A7 as reliable as its social security number had been 21 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 incorporated in the returns prepared and filed by him. The social security number was one of the mandatory requirements of the U.S. Government.
27. The respondent No.1 - claimant in his further examination on 21.06.2008 submitted the transcripts of his income tax details pertaining to the year 2003, 2004 and 2005 furnished by the Internal Revenue Service, U.S. Department of Treasury. He stated about the practice prevalent wherein the IRS, US Department of Treasury upon request by the individual furnishes the transcripts of income tax details and enclosed the covering letter dated 28.12.2007 issued by the IRS, US Department of Treasury, which was marked as Ex.A27.
28. Nothing was elicited in his cross-examination to disbelieve the genuinity of the said documents. The Tribunal also rightly considered the variations in the income of the petitioner in these documents and taken it on the lower side @ 96,000 dollars per annum. We do not find any irregularity or illegality in the observation of the Tribunal in the said regard.
29. PW.2, the Consultant Orthopedic Surgeon working in Care Hospitals, Banjara Hills, Hyderabad stated that the petitioner was admitted in 22 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 Care hospital on 24.09.2004. He was diagnosised for 'open comminuted fracture both right tibia and fibula, right leg skin loss from above knee to above ankle'. The petitioner was under his treatment from 24.09.2004 to 01.11.2004 as in-patient in Care hospital. Initially after his admission in the hospital, the petitioner was subjected to primary debridement and external stabilization - reconstruction with free laissimus dorsi flap. Three weeks later, the petitioner's right limb had to be amputated above knee level due to septisemia. The petitioner even after his discharge from the hospital was under his constant periodical check up. The petitioner sustained permanent disability of 50% due to amputation of his right leg above knee level and he issued the disability certificate marked as Ex.A8 on 24.07.2007 .
30. He further stated that even after the amputation, the petitioner would experience some ill-effects. The petitioner would be subjected to constant pain through out his life. He would be under general feeling and presence of limb (phantom limb) which would cause mental agony. Due to the amputation of the right leg he would always limp in future. There would be early degeneration of his other joints. The impact of amputation of the right leg also would result in back pain and also pain in other leg. So also due 23 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 to the impact of amputation, petitioner's life span and longevity would be reduced or decreased. The petitioner was also disabled in such a way that he could not pursue his day to day activities without the support of a permanent attendant. He admitted the bills marked under Exs.A12 and A13 to A15 and the discharge summary marked under Ex.A16.
31. Though PW.2 stated that the respondent No.1 - claimant sustained 50% disability, the Tribunal had taken the disability as only 30%, observing that the evidence of PW.2 would show that the petitioner was presently able to work with the artificial leg without the help of any support. Though the evidence of PW.1 would show that his avocation would involve extensive travelling, it could not be held that the travelling of the petitioner would be totally obstructed due to the amputation of his right leg. With the advanced sophistication in the preparation of artificial legs, it was possible that a person could almost walk normally with the said leg. But, however there would be some hampering in the efficiency caused by the inhibition of loss of leg and by placing reliance on the judgment of the High Court of Andhra Pradesh in APSRTC, Managing Director, Mushirabad, Hyderabad Vs. S. Dhanamjaya Reddy10 wherein it 10 2001(6)ALD 790(DB) 24 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 was held that though the petitioner was retained in the job with same salary, he would not be in a position to do the job with the same vigor and fitness as was done by him prior to the accident, taken the disability affecting the future income of the petitioner as only 30%.
32. We do not find any necessity to interfere with the observation of the Tribunal on this aspect also.
33. Considering the age of the claimant as 49 years, the relevant multiplier as per the judgment of the Hon'ble Apex Court in Sarla Verma Vs. Delhi Transport Corporation11 is 13. However, the Tribunal had applied multiplier 12 as per the Second Schedule of the MV Act. However, considering the judgments of the Hon'ble Apex Courts in United India Insurance Company Limited Vs. Patricia Jean Mahajan & others (1 supra) and Oriental Insurance Co. Ltd. Vs. Deo Patodi and others (8 supra), it is considered fit to reduce the multiplier as adopted by the Tribunal from 12 to 10.
34. As observed by the Hon'ble Apex Court in Jiju Kuruvilla & Ors. Vs. Kunjujamma Mohan & Ors. (7 supra), the proper date for fixing 11 (2009) 6 SCC 121 25 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 the rate of exchange from the foreign currency to be converted into the Indian currency is to be taken as on the date of filing of the claim petition but not the date of the award. However, as reported by the learned counsel for the appellant, the dollar rate at the time of accident i.e., on 24.09.2004 was Rs.43.40/-. The Tribunal considered it as ranging between Rs.43/- to Rs.45/- but taken the same as Rs.40/-. Hence, we do not find any necessity to interfere with the same.
35. Considering the income of the petitioner as 96000 $ per annum, as the disability is taken as only 30%, it would come to 28,800 dollars. By converting it into Indian currency at the rate of Rs.40/- per dollar, it would come to Rs.11,52,000/-. By applying multiplier '10', the amount awarded for loss of future earnings on account of permanent disability is calculated as Rs.11,52,000/- x 10 = Rs.1,15,20,000/-.
36. Considering the judgments of the Hon'ble Apex Court in Smt. Kushinama Begum & Ors. Vs. The New India Assurance Co. Ltd. (4 supra), Chandrakanth Tiwari Vs. The New India Assurance Co. Ltd., Savitha Vs. M/s. Cholamandalam MS General Insurance Company Ltd. (5 supra) and Sri Anthony @ Anthony Swamy Vs. The Managing 26 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 Director, KSRTC (6 supra), it is considered fit to reduce the rate of interest to 6% per annum from 7% as awarded by the Tribunal.
37. Considering the nature of injury sustained by the petitioner i.e., amputation above knee of his right leg and he was in hospital as inpatient itself for a period of almost two months, the loss of earnings can be calculated for a period of 6 months. As his income is considered as 96,000 $ per annum, it is considered as 8000$ per month and by calculating it for 6 months, considered as 48,000 $ and by converting it into Indian Currency @ Rs.40/- per dollar considered as Rs.19,20,000/-.
38. The documents marked under Exs.A12 to A15 which were confirmed by PW.2 would disclose that the petitioner incurred an amount of Rs.7,99,750/- under Ex.A12, Rs.1,00,720/- each under Exs.A13 and 14 and Rs.1,76,260/- under Ex.A15. As such, the same need to be awarded to the claimant under the head 'medical expenses', which would amount to Rs.11,77,450/-.
27 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010
39. As the claimant might have incurred some amount for fixing artificial leg and which need to be changed periodically, it is considered fit to award an amount of Rs.2,00,000/- under this head.
40. It is difficult to assess the exact amount of compensation for the pain and agony suffered by the claimant and for having become a lifelong handicapped. No amount of compensation can restore the physical frame of the appellant. It is impossible to equate the money with the human sufferings or personal deprivation. Money cannot renew a broken and shattered physical frame. The Tribunal awarded an amount of Rs.50,000/- under the head 'pain and suffering'. But on considering the evidence of PW.2 wherein he stated that the impact of amputation would reduce his lifespan and longevity and there would be early degeneration of other joints, it is considered fit to increase the amount to another Rs.50,000/-, i.e., Rs.1,00,000/- is awarded under this head.
41. The claimant was awarded Rs.15,000/- under the head 'loss of amenities of life'. Considering that this head must take into account all aspects of a normal life that had been lost due to the injury caused and as per the judgment of the Hon'ble Apex Court in K.D.Hattangadi Vs. Pest 28 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 Control (India) Ltd.12, it included a variety of matters such as inability to walk, run or sit, dance, the loss of ability to freely move or travel without assistance, it is considered fit to enhance the compensation under this head to Rs.1,00,000/-. .
42. As the claimant might have incurred some amount towards transportation 'to' and 'fro' to the hospitals, an amount of Rs.25,000/- is awarded under the head 'transportation charges'.
43. As the claimant might have incurred some amount towards the extra-nutritious diet taken by him during the period of his recovery, he is also entitled to an amount of Rs.25,000/- under the head 'Extra-nourishment'.
44. As such, the compensation awarded to the respondent No.1 - claimant under various heads is as follows:
S.No. Heads Compensation
Awarded (in Rs.)
1. Loss of future income on 1,15,20,000
account of permanent disability
2. Loss of earnings 19,20,000
3. Medical expenses 11,77,450
4. Artificial leg 2,00,000
5. Pain and suffering 1,00,000
12
1995 (1) SCC 551
29 Dr.CSL,J & Dr.GRR,J
M.A.C.M.A.No.669 of 2010
6. Loss of amenities 1,00,000
7. Transportation charges 25,000
8. Extra-nourishment 25,000
TOTAL 1,50,67,450
45. In the result, the appeal is allowed in part by reducing the sum awarded by the Tribunal from Rs.1,57,30,000/- to Rs.1,50,67,450/- (Rupees One Crore Fifty Lakhs Sixty Seven Thousand Four Hundred and Fifty Only) with interest @ 6% per annum from the date of petition till the date of realisation with proportionate costs. The appellant - insurance company is directed to deposit the said amount within three months from the date of this judgment. The claimant is permitted to withdraw the amount deposited by the insurance company.
Miscellaneous Applications, if any pending, shall stand closed.
_____________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA ____________________________ Dr. JUSTICE G. RADHA RANI June 09, 2023 ss 30 Dr.CSL,J & Dr.GRR,J M.A.C.M.A.No.669 of 2010 THE HONOURABLE Dr. JUSTICE CHILLAKUR SUMALATHA AND THE HONOURABLE Dr. JUSTICE G. RADHA RANI M.A.C.M.A.No.669 of 2010 June 09, 2023 ss