Madras High Court
The New India Assurance Co. Ltd vs Shammy John on 21 August, 2014
Author: V.Dhanapalan
Bench: V.Dhanapalan, G.Chockalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.08.2014 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN AND THE HONOURABLE MR. JUSTICE G.CHOCKALINGAM C.M.A. No.2924 of 2013 and C.M.A.No.2410 of 2013 C.M.A.No.2924 of 2013 The New India Assurance Co. Ltd., Old No.114, New No.204, Kutchery Road, Mylapore, Chennai 600 004. ... Appellant vs. 1. Shammy John 2. R.Samuel Gnanaraj ... Respondents C.M.A.No.2410 of 2013: Shammy John ... Appellant vs. 1. R.Samuel Gnanaraj 2. The New India Assurance Co. Ltd., Old No.114, New No.204, Kutchery Road, Mylapore, Chennai 600 004. ... Respondents * * * * * * * Civil Miscellaneous Appeals in C.M.A.No.2924 of 2013 and C.M.A.No.2410 of 2013 filed under Section 173 of the Motor Vehicles Act, 1988 seeking to set aside the Judgment and decree, dated 26.02.2013 made in M.C.O.P.No.2930 of 2011 on the file of the Motor Accidents Claims Tribunal, (II Judge, Court of Small Causes), Chennai. For Appellant in C.MA.No.2924/2013 & 2nd respondent in C.M.A.No.2410/2013 : Mr. M.Krishnamoorthy For 1st respondent in C.M.A.No.2924/2013 & Appellant in C.M.A.No.2410/2013 : Mr.K.Varadhakamaraj For 2nd respondent in C.M.A.No.2924/2013 & 1st respondent in C.M.A.No.2410/2013 : Exparte C O M M O N J U D G M E N T
(Judgment of the Court was delivered by V.Dhanapalan,J.) Heard Mr.M.Krishnamurthy, learned counsel appearing for New India Assurance Company and Mr.K.Varadhakamaraj, learned counsel appearing for the claimant.
2. Both the Insurance Company and the claimant have filed the above Civil Miscellaneous Appeals before this Court challenging the judgment and decree dated 26.02.2013 made in M.C.O.P.No.2930 of 2011 on the file of the Motor Accidents Claims Tribunal (II Judge, Court of Small Causes), Chennai.
3. As both the appeals arise out of a common cause of action, they are taken up for disposal by a common judgment.
4. It was the averment of the claimant before the Tribunal that on 26.07.2008 at 2.00 hours, when he was riding his motorcycle bearing Registration No.TN-02-T-4209 on Periyar EVR Salai and Vasu Street Junction proceeding from South to North direction, a Van bearing Registration No.TN-22-AX-0963 belonging to one R.Samuel Gnanaraj proceeding from west to east direction came in a rash and negligent manner and hit the claimant's motorcycle, thereby, the claimant was thrown out and sustained grievous injuries. The claimant pleaded that the Van driver was responsible for the accident and claimed a sum of Rs.1,00,00,000/- as compensation from the Insurance Company and the Owner of the Van which caused the accident.
5. The Insurance Company resisted the claim petition before the Tribunal that the accident occurred solely due to the rash and negligent driving of the motorcycle by the claimant and there was neither rashness nor negligence on the part of the driver of the Eicher Van. It is his submission that the claimant rode the motorcycle in an uncontrollable speed along down Dr.Gurusamy Bridge, cut across Periyar EVR Salai, unmindful of the vehicles coming on the main road and entered the northern portion of the road with the same speed and on seeing the reckless act of the claimant, the driver of the Van swerved the Van towards left and stopped the Van and in the meantime, the claimant dashed against the Van. The claimant was guilty of riding the two-wheeler without wearing helmet, thereby violating traffic rules and thus, the accident occurred solely due to the negligence of the claimant. The Insurance Company has further stated that the medical expenses have been paid by Family Health Plan Limited, Anugrah a B Court, 2-A, 2nd Floor, No.19, Nungambakkam High Road, Chennai-34 and thus the claimant is not entitled to claim once again. Since the quantum claimed by the claimant is very high, the Insurance Company sought dismissal of the claim petition.
6. Before the Tribunal, on behalf of the claimant, three witnesses were examined and Exs.P1 to P18 were marked. The claimant was examined as P.W.1; Dr.N.Saichandran was examined as P.W.2 and one Thiru.P.Saravanan, Senior Manager in Frost & Sullivan Company was examined as P.W.3. On the side of the Insurance Company, no oral evidence was adduced, but Ex.R1-copy of rough sketch was marked during cross-examination of P.W.1.
7. The Tribunal, on evaluation of pleadings and evidence, found that the accident occurred due to the rash and negligent driving of the driver of the Eicher Van, thereby held him responsible for the accident and awarded a sum of Rs.50,00,000/- as compensation with 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 1 Loss of income for 6 months Rs. 62,000.00 2 Transportation Rs. 50,000.00 3 Extra nourishment Rs. 50,000.00 4 Damage to clothes and articles Rs. 3,000.00 5 Medical expenses Rs.11,56,000.00 6 Future Medical expenses Rs. 50,000.00 7 Attender Charges Rs. 75,000.00 8 Loss of Amenities, Enjoyment in life, discomfort, hardship and mental agony to the petitioner Rs. 1,50,000.00 9 Loss of Marital status Rs. 1,50,000.00 10 Pain and suffering Rs. 2,50,000.00 11 Loss of earning Power Rs.30,04,000.00 Total Rs.50,00,000.00 Challenging the quantum of compensation that it is on the higher side, the Insurance Company is before this Court by way of C.M.A.No.2924 of 2013 and seeking enhancement of compensation, the claimant has approached this Court in C.M.A.No.2410 of 2013.
8. Mr.M.Krishnamurthy, learned counsel appearing for the Insurance Company would contend that the Tribunal has awarded excessive compensation under different heads. He would mainly contend that the Tribunal has applied wrong multiplier and fixed the disability of the claimant at 90%, which is also on the higher side. On these grounds, he would seek reduction of compensation awarded by the Tribunal.
9. On the other hand, Mr.K.Varadhakamaraj, learned counsel appearing for the claimant would mainly contend that the Tribunal, without taking note of the grievous injuries sustained by the claimant, went wrong in not awarding any amount towards disability as against the claim of Rs.10,00,000/-. He would further contend that the compensation awarded under other heads, viz. future medical expenses, pain and suffering and loss of amenities, is certainly on the lower side.
10. We have given careful consideration to the submissions made by the learned counsel on either side and perused the material documents available on record.
11. As the challenge made in these appeals is only with regard to the quantum of compensation awarded by the Tribunal, we are not going into the question of negligence. Before analysing the correctness of the compensation awarded by the Tribunal under various heads, what needs to be ascertained are : (i) whether the Tribunal is right in determining the age of the deceased as 28 years (ii) whether the Tribunal has rightly fixed the monthly income of the deceased as Rs.10,301/- and (iii) whether the Tribunal has correctly fixed the disability of the claimant at 90%.
12. As regards the age of the claimant, it is seen that the date of birth of the claimant is mentioned as 03.07.1980 in Ex.P12-copy of the Transfer Certificate. None disputed this document. The date of accident was 26.07.2008. Therefore, the Tribunal fixed the age of the claimant as 28 years. Since this finding of age is based on the doucmentary evidence, we have no reason to doubt it.
13. With regard to the income of the claimant, it is seen that he was working as a Marketing Executive in Frost and Sullivan Company, Nandanam as could be seen from Ex.P13 - copy of the Identity Card of the claimant. Further, Ex.P12 would show that the claimant has completed B.Sc. Electronic Science, Computer Courses in Unix, C, C++, C# and Post Graduate Diploma in Communication and Network Technology. In proof of his avocation, one Mr.P.Saravanan, Senior Manager of Frost and Sullivan Company was examined and he deposed that at the time of accident, the claimant was working as Executive Engineer (Marketing) and he was paid a sum of Rs.10,301/- per month and that his job is permanent. Ex.P16 is the Authorisation Letter issued by the claimant's employer and Ex.P17 is the Offer letter issued to the claimant. Ex.P18 - Pay Slip for the month of July 2008 would show that the claimant's monthly income was Rs.10,301/-. Thus, the Tribunal has rightly fixed the income of the injured claimant at Rs.10,301/- per month.
14. Coming to the third question that the disability of the claimant is fixed on the higher side, the nature of injuries suffered by the claimant and the period of treatment need to be taken into account. Ex.P3 - copy of the Accident Register and Ex.P4 Discharge Summary (1) issued by Apollo Hospitals would show that the claimant was admitted on 26.07.2008 and discharged on 06.09.2008, i.e. he took treatment for a period of 41 days. He was diagonised with post-traumatic raw areas left forearm, right palm, left knee and ankle region and had undergone surgeries on 26.07.2008, 21.08.2008 and 28.08.2008, whereby, debridement with free lateral arm flap cover right hand, debridement with SSG cover right thigh and debridement with SSG cover left thigh were done to him. Further, Ex.P5-Discharge Summary (2) would show that the claimant took continuous treatment in the same hospital as inpatient from 16.10.2008 till 20.10.2008 for a period of 5 days and had undergone surgery on 17.10.2008, whereby, K-wire fixation with local flap was done.
15. Ex.P6 Discharge Summary (3) would show that the claimant took treatment at Billroth Hopsitals as an inpatient from 22.07.2009 to 25.07.2009 for a period of 4 days and had undergone surgery on 24.07.2009, whereby debridement/sequesterectomy removal of rod (left) radius was done under GA. Further, Ex.P7 Discharge Summary (4) would show that the claimant took continuous treatment in Billroth Hospitals for deep abscess left leg and ankle as inpatient from 02.10.2009 to 07.10.2009 for a period of 6 days, whereby, incision and drainage of abscess left AL & posterior compartment left foot was done under SA on 03.10.2009. Ex.P8 Discharge Summary (5) issued by Billroth Hospitals would show that the claimant took continuous treatment there as an inpatient from 09.11.2009 to 16.11.2009 for a period of 8 days, whereby, Drainage of Abscess left posterior compartment left and left distal radius was done under GA on 10.11.2009. Further, Ex.P9 Discharge Summary (6) issued by Billroth Hospitals would show that the claimant took treatment as an inpatient there from 18.11.2010 to 20.11.2010 for a period of 3 days, whereby, left below elbow amputation was done under GA on 18.11.2010.
16. P.W.2 Dr.N.Saichandran deposed that he examined the claimant clinically and on the basis of various discharge summaries Exs.P4 to P9, assessed the disability as per Ex.P15 at 125%, out of which, 70% is permanent and 55% is partial permanent for the injuries of left below elbow amputation, right hand palm degmoving injury, loss of muscle wound covered with muscle piffle graft and nerve injury sustained right hand gry and muscle power tone only 3/5 grade, degloving injury and extreme loss of skin and muscle right thigh and left thigh ankle and foot and heal multiple skin grafting done ugly sear the left lower limb due to nerve injury left foot drop present. He further deposed that now the claimant wears modified slippers for his both foot toes and due to his muscle contraction, muscle loss and repeated skin grafting done implease sear on both lower limbs, he needs the constant assistance of another person for moving freely to do his daily personal activities and hence, assessed disability at 70% as total and permanent for left upper limb below amputation, 25% for loss of muscle left thigh and leg with foot drop left ankle and loss of sensation, 15% for right leg thigh and leg scar adherence with limb and 15% for right hand muscle loss flap cover and nerve injury, total disability restricted to 100%, which is supported by Ex.P15, Disability Certificate. P.W.2, in his cross-examination, admits that he did not give treatment to the injured. Though Ex.P.14 - X-ray was taken, report was not filed. Ex.P11 - Photos along with C.D. of the claimant would clearly show the injuries of the claimant. Since the assessment of disability by P.W.2 appeared to be on the higher side, the Tribunal fixed the permanent disability of the claimant at 90%. A perusal of the Discharge Summaries issued by the Hospitals and the photographs of the claimant would show that he has sustained grievous injuries. Therefore, considering the nature of injuries sustained by the claimant, we are of the view that the Tribunal has rightly fixed the permanent disability at 90%.
17. Thus, we find that the Tribunal has rightly fixed the age of the claimant as 28 years, his monthly income at Rs.10,301/- and his permanent disability at 90%. Taking note of the same, what has to be seen now is whether the Tribunal has rightly awarded compensation under different heads.
18. Loss of earning power: The Tribunal, placing reliance on Sarla Verma's case, added 50% of monthly salary as Loss of Future prospects and arrived at a sum of Rs.15,452/- as income [Rs.10,301/- x 50% = Rs.15,451.50, rounded of to Rs.15,452/-]. As the injured claimant was aged 28 years at the time of accident, applying the multiplier of '18', the Tribunal computed the compensation towards "Loss of earning power" at Rs.30,04,000/- [Rs.15,452/- x 12 x 18 x 90%].
18(a). It is the strong plea of the learned counsel appearing for the Insurance Company that the Tribunal ought to have taken '17' as the multiplier while fixing compensation towards injuries in view of the dictum laid down in Sarla Verma's case.
18(b). 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, -7 for 61 to 65 years and M-5 for 66 to 70 years. 18(c). In view of the dictum laid down by the Honourable Supreme Court in Sarla Verma's case, the correct multiplier to be adopted in this case as per column (4) of the Table is '17' and not '18'. Accordingly, applying the multiplier of '17' to the income of Rs.15,452/- per month, the compensation towards "loss of earning power" is worked out as Rs.28,36,987/- rounded of to Rs.28,37,000/- [Rs.15,452/- x 12 x 17 x 90%]. Therefore, the award under the head "loss of earning power" is modified from Rs.30,04,000/- to Rs.28,37,000/-.
19. Loss of income for 6 months: The compensation of Rs.62,000/- awarded under the head "Loss of income for 6 months" [Rs.10,301/- x 6 months = Rs.61,806/-, rounded of to Rs.62,000/-] is correct and it is confirmed.
20. 'Transportation charges', 'Extra nourishment' and 'Damages to Clothes and Articles': A sum of Rs.50,000/- has been awarded towards Transportation charges; Rs.50,000/- towards Extra nourishment and Rs.3,000/- towards Damage to Clothes and Articles, which according to us, is reasonable and the same are confirmed.
21. Medical expenses : A sum of Rs.11,56,000/- has been awarded under the head 'Medical expenses'. A perusal of the Medical Bills furnished vide Ex.P10 would show that the claimant has incurred huge expenses towards surgeries and treatment. Therefore, we do not find any reason to interfere with the compensation awarded by the Tribunal under this head and it is accordingly confirmed.
22. Future Medical Expenses : Though the Tribunal has awarded a sum of Rs.50,000/- under this head, it is seen that the claimant has not made any claim towards Future Medical expenses. Further, the claimant has not produced any proof in support of the same. Therefore, the compensation of Rs.50,000/- awarded under this head stands deleted.
23. Attender Charges : A sum of Rs.75,000/- is awarded towards Attender Charges and it is stoutly resisted by the counsel appearing for the Insurance Company that it is on the higher side. Therefore, we find it appropriate to reduce the compensation under this head and it is accordingly reduced to Rs.25,000/-.
24. Loss of Amenities, Enjoyment in Life, Discomfort, Hardship and Mental Agony : The Tribunal has awarded a sum of Rs.1,50,000/- under this head. Though the Insurance Company has raised a plea that the said amount is excessive, a perusal of the material records gives an impression that the claimant's mental agony is unending, as he has lost his left below elbow and sustained various other injuries. However, considering the gravity of the injuries sustained by the claimant and also taking note of the submissions made by the learned counsel for the Insurance Company, we deem it fit to reduce the compensation and accordingly, it is reduced to Rs.1,00,000/-.
25. Loss of marital status: Even under this head, the Tribunal has awarded a sum of Rs.1,50,000/- as compensation. At the time of accident, i.e. in the year 2008, the claimant was aged only 28 years. Amputation of his left below elbow and several other injuries would have caused loss of marital prospects. Therefore, the award under this head is confirmed.
26. Pain and suffering: The Tribunal has awarded a sum of Rs.2,50,000/- under this head taking note of the surgeries undergone by him. Learned counsel for the Insurance Company would contend that the said amount is excessive and sought reduction of the same. In view of the settled legal principles, we find that the compensation awarded towards pain and suffering is excessive and accordingly, we reduce it to Rs.1,00,000/-.
27. Accordingly, the award passed by the Tribunal is modified and the new break-up details are as follows:
S.No. Description Amount awarded by Tribunal Amount awarded by this Court Award confirmed or modified 1 Loss of income for 6 months Rs. 62,000.00 Rs. 62,000.00 confirmed 2 Transportation Rs. 50,000.00 Rs. 50,000.00 confirmed 3 Extra nourishment Rs. 50,000.00 Rs. 50,000.00 confirmed 4 Damage to clothes and articles Rs. 3,000.00 Rs. 3,000.00 confirmed 5 Medical expenses Rs.11,56,000.00 Rs.11,56,000.00 confirmed 6 Future Medical expenses Rs. 50,000.00
-
Deleted 7 Attender Charges Rs. 75,000.00 Rs. 25,000.00 Decreased 8
Loss of Amenities, Enjoyment in life, discomfort, hardship and mental agony to the petitioner Rs. 1,50,000.00 Rs. 1,00,000.00 Decreased 9 Loss of Marital status Rs. 1,50,000.00 Rs. 1,50,000.00 confirmed 10 Pain and suffering Rs. 2,50,000.00 Rs. 1,00,000.00 Decreased 11 Loss of earning Power Rs.30,04,000.00 Rs.28,37,000.00 Decreased Total Rs.50,00,000.00 Rs.45,33,000.00 Decreased by Rs.4,67,0000/-
28. The award of the Tribunal is thus modified and the claimant is entitled to a sum of Rs.45,33,000/- (Rupees Forty Five Lakhs Thirty Three Thousand) as compensation along with interest at the rate of 7.5% per annum.
29. As per the order of this Court dated 27.08.2013 in M.P.No.1 of 2013, the entire award amount has been deposited to the credit of M.C.O.P.No.2930 of 2011 on the file of the Motor Accidents Claims Tribunal, II Small Causes Court, Chennai and the claimant was permitted to withdraw a consolidated sum of Rs.20,00,000/- from the award and the balance amount was ordered to be deposited in any one of the Nationalised Banks. In the light of the above modification in the award amount, as there is reduction in the award, the Insurance Company is permitted to withdraw the reduced compensation and it is open to the claimant to withdraw the balance amount of compensation.
30. In fine, C.M.A.No.2924 of 2013 filed by the Insurance Company is allowed with the above modification in the award amount and C.M.A.No.2410 of 2013 filed by the claimant is dismissed. No costs. Consequently, connected M.P.No.1 of 2013 in C.M.A.No.2924 of 2013 is closed.
[V.D.P.,J.] [G.C.,J.] 21.08.2014 Index : Yes abe To : The Motor Accidents Claims Tribunal, (II Judge, Court of Small Causes), Chennai. V.DHANAPALAN,J. AND G.CHOCKALINGAM,J. Abe Common Judgment in C.M.A.No.2924 of 2013 and C.M.A.No.2410 of 2013 Dated: 21.08.2014