New India Assurance Co. Ltd. vs K. Kartheeswaran and Another

E. Padmanabhan, J.—The above appeal has been preferred against the judgment and award of the Motor Accidents Claims Tribunal at

Chennai (V Judge, Court of Small Causes), dated 4.4.2000 made in M.C.O.P. No. 917 of 1997, by the insurer of the vehicle being aggrieved by

the award.

This Court ordered notice of motion on 12.12.2000 and granted interim stay of further proceedings of the said award on condition that the

appellant deposits 25 per cent of the amount awarded by the Claims Tribunal within a period of eight weeks. This Court called for the records

relating to the said claim petition by order dated 12.4.2001. As per the orders of the Hon''ble Chief Justice, the above appeal is posted before this

Division Bench.

Heard Mr. Krishnamurthy, learned Counsel appearing for the appellant, Mr. C. Munuswamy for Mr. M. Swamikannu, learned Counsel

appearing for the respondent No. 1. None appears for the respondent No. 2, who remained ex pane before the Tribunal.

The respondent No. 1 is the claimant before the Claims Tribunal. Respondent No. 2 is the owner of the vehicle and appellant herein is the

insurer of the vehicle. The claimant in all claimed Rs. 16,00,000 as compensation alleging that the accident has been caused by the rash and

negligent driving of the respondent No. 1''s vehicle by its driver. The respondent No. 1 remained absent. The respondent No. 2, insurer, alone

contested the claim petition. The Tribunal below awarded a total compensation of Rs. 14,87,500 under various heads by its judgment and award

dated 4.4.2000. Being aggrieved, the insurer of the vehicle has come by way of appeal. For convenience, the parties will be referred as arrayed

before the Claims Tribunal.

The claimant, who was aged around 17 years on 17.4.1996 the date of the accident, had filed the claim petition pleading that the respondent

No. 1''s vehicle bearing registration No. TNJ 3749, a lorry, was driven rashly and negligently by its driver, had caused the accident. As a result of

the accident, the claimant sustained number of grievous injuries. The claimant''s left leg above knee was amputated. The claimant also suffered

dislocation of bone of left ankle, knee, both shoulders and right hand elbow, besides suffered head injury and other multiple grievous injuries in the

accident. The claimant was admitted in the hospital on 17.9.1996, the date of the accident, and he was treated as an inpatient till 7.10.1996 in the

Government General Hospital, Madras. The claimant was admitted in the Vijaya Hospital on 7.10.1996 and continued further treatment till

2.1.1997.

The claimant, a school student, could not attend the school nor he could go to work nor he could sit or stand or walk nor he could use his hand.

On that basis, the claimant claimed a total compensation of Rs. 16,00,000 under various heads such as transportation to hospitals; extra

nourishment; damage to clothing and cycle; towards materials; cost of private treatment; medicine and hospital expenses; loss of income; loss of

acceptance to proper marital alliance; additional transportation expenses; deprivation of participation in sports and games; mental agony and

torture due to amputation; compensation for pain and suffering; compensation for continuing permanent disability and compensation for the loss of

earning power.

In the counter filed by the respondent No. 2, excepting a bald denial with respect to the accident as well as the liability, the respondent insurer

contended that the claim petition is not sustainable and the claim of Rs. 16,00,000 is highly excessive. Though the insurer reserved a right to file an

additional counter, but for reasons best known, the insurer has not filed an additional counter.

Before the Tribunal, the claimant examined himself as CW 1, Mehaboob Yousuf as CW 2, an eyewitness and Dr. J.R. Thiyagarajan as CW 3.

The claimant marked 16 exhibits, which includes five discharge summaries, medical bills, lab. reports, bills relating to the purchase of medicine, bills

regarding transportation, medical opinion, school certificate, first information report, rough sketch, disability certificate as well as X-ray. Neither the

insurer nor the owner of the vehicle have examined any witness.

As regards the negligence, here and now we have to point out that the learned Counsel not only did not advance any contention, but also

accepted that the findings of the Claims Tribunal is a well considered finding and he is not challenging the same. The learned Counsel only

challenged the quantum of compensation as awarded by the Tribunal below. The learned Counsel in fact fairly stated that he is not challenging the

findings regarding negligence.

As seen from the evidence of CW 3, the claimant, who is aged 20 years, his leg had been amputated six inches below hip joint. Claimant has

also suffered injury in his shoulder as well as the right hand. Towards loss of leg and injury to shoulder, which has restricted the movement of his

hand, CW 3 had deposed that disability is 90 per cent. Exh. C-15 is the certificate. That apart Exhs. C-l to C-5, C-10 and C-11 would show the

grievous nature of injuries sustained at the age of 17 years by the claimant, a school going youth. The permanent disability is arrived at 90 per cent

and this is not being challenged by the counsel for appellant. On that basis, the Tribunal had assessed the compensation.

Tribunal awarded Rs. 14,87,500 under various heads as detailed hereunder:

Towards transportation Rs. 50,000

Towards medical

expenses Rs. 2,00,000

Loss of income Rs. 47,500

Towards nourishment Rs. 40,000

Towards pain and

suffering as a result of

amputation Rs. 1,00,000

Towards pain and

suffering for other

grievous injuries Rs. 1,00,000

Towards permanent

disability Rs. 2,00,000

Compensation for loss

of earning power Rs. 6,00,000

Loss of expectation of

proper marital life and

alliance Rs. 1,50,000

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Total Rs. 14,87,500

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The Tribunal also awarded interest at 12 per cent per annum.

In this appeal only the quantum of compensation and rate of interest awarded are being challenged.

The following points arise for consideration in this appeal:

(1) What is the quantum of compensation which the claimant is entitled to for the injuries and permanent disability sustained?

(2) At what rate the claimant is entitled to payment of interest?

(3) To what relief, if any?

Taking up the second point for consideration, the Tribunal has awarded 12 per cent interest on the total compensation of Rs. 14,87,500

awarded by it. In this respect, the counsel for the appellant relied upon the recent pronouncement of the Apex Court in Smt. Kaushnuma Begum

and Others Vs. The New India Assurance Co. Ltd. and Others, where the Supreme Court laid down that it is reasonable to grant interest at the

rate of 9 per cent per annum from the date of claim made by the claimant and till date of payment.

In the light of the said pronouncement, the learned Counsel for the claimant fairly stated that the award of interest at 12 per cent per annum by

the Claims Tribunal could be modified and interest be awarded at 9 per cent per annum. Hence, we hold that the claimant is entitled to payment of

interest at the rate of 9 per cent per annum from the date of claim petition and till the date of payment.

Taking up the first point for consideration, the following factors we shall not lose sight of:

(i) The claimant is just 17 years of age on the date of the accident;

(ii) The claimant was studying in the 9th standard in the High School. This is clear from School Leaving Certificate, Exh. C-12;

(iii) The permanent disability which the claimant has suffered has been assessed at 90 per cent;

(iv) The right leg of the claimant had been amputated above knee and six inches below the hip joint and there is restriction in his shoulder

movement considerably.

It is the opinion of CW 3, the doctor, Dr. J.R. Thiyagarajan, that no artificial limb could be fixed and claimant''s movement is totally impaired.

The claimant was undergoing treatment from 17.9.1996 to 2.1.1997 as inpatient in the Government General Hospital and in Vijaya Hospital.

Claimant also was hospitalized in MIOT Hospital as seen from Exhs. C-3 and C-4. CW 3 had also spoken about it in detail. The claimant was

once again admitted in MIOT Hospital on various dates even subsequently also after the earlier discharge. Claimant had undergone several

operations.

As a result of the amputation, the injury in his leg continues and there is oozing of liquid, which continues to flow from the amputated leg even

on the date when the trial was in progress before the Tribunal below. Apart from that, claimant had suffered grievous injuries on his shoulders, right

hand elbow, head and various other multiple internal and external injuries, besides injury to his head and chest. The details of injuries as spoken to

by CW 1 is not in dispute nor it could be challenged as not only CW 1 and CW 3, but also Exhs. C-1 to C-6, C-10 and C-11 would speak

volumes in favour of the claimant.

It is the evidence of CW 1, claimant, that he is totally immobilized. He has to stop his educational career. He is unable to sit or stand or lie

down or walk without the assistance of others and he is still undergoing treatment. The claimant also has suffered disability in his shoulder as a

result of which he could not swing his hand and he could not use his shoulder even to use his crutches so that his body weight could be thrown on

the crutches. Practically the claimant had been rendered a pulp as a result of the accident and after nearly two years and odd, even on the date of

the trial, the claimant''s condition is so pathetic and so shocking that he needs to continue treatment.

This is the reason the expert had opined that the permanent disability is 90 per cent. It is not as if the claimant is above the middle age, but he

was just 17 years on the date of the accident. For all purposes throughout his career, he has to depend on one or more persons to attend on him

even for bare necessities such as having a bath or go to the toilet or to the hospital or for further treatment as rehabilitation by fixing an artificial limb

is not possible. The claimant had undergone more than half a dozen surgeries and skin-grafting. In the light of the said facts, we have to assess the

compensation.

Exh. C-10 is the certificate issued by the leading Orthopaedic Surgeon Dr. Mohandass. Though there was an attempt to fix an artificial limb

even at a cost of Rs. 1,25,000, it was not successful. The claimant had deposed that he is not able to raise, move and stand and not able to walk

without any assistance. He will not be able to travel by bus or other transport vehicles. The claimant also had deposed that he will not get married

at all. This is a deprivation of marital life and his chance of getting married is totally bleak. The claimant also deposed that as a result of the head

injury, he gets headache and also he loses consciousness very often. CW 3, Dr. Thiyaga-rajan, had deposed that claimant has no limb on the right

side and he had suffered shoulder injury. The evidence of CW 3 had not been challenged seriously excepting one suggestion that the 90 per cent

disability assessment is excessive, which the said doctor had denied.

In the light of the said injuries and permanent disability, taking into consideration of the age, the permanent disability being 90 per cent, the

Claims Tribunal had assessed the compensation and awarded Rs. 14,87,500. As regards the total compensation awarded towards loss of

earnings, the Claims Tribunal, though assessed it at Rs. 10,00,000, has awarded only Rs. 6,00,000 as the claimant has confined his claim only to

the extent of Rs. 6,00,000 under this head. It is well settled that even though a claim may be reduced in one or more heads, but it could be granted

under other heads also. The compensation for loss of earning power alone was arrived at Rs. 6,00,000 is too meagre a sum as the claimant is just

20 years on the date of the judgment and 17 years on the date of the accident, but for the accident, his average age would be more than 65 years

and he would have lived for another 40 years at least. Therefore, the loss of earning power arrived at by the Claims Tribunal below at Rs.

6,00,000 is far below.

Nowadays it is found that a last grade servant earns Rs. 5,000 and the Tribunal had estimated the loss of income for 30 years. It should have

been assessed by adopting 35 years as multiplier and on that basis, we award Rs. 6,50,000 under this head. The Claims Tribunal had disallowed

Rs. 10,000 towards transportation to the hospital. This in our view cannot be sustained. The claimant is totally disabled and he should have been

transported from the place of accident to the hospital and from there to other hospitals. Claims Tribunal ought to have granted at least Rs. 4,000

instead of disallowing the entire Rs. 10,000. Hence, we award Rs. 4,000 towards transportation. Claims Tribunal has awarded Rs. 40,000

towards extra nourishment. We find that the award of Rs. 40,000 is just and reasonable.

The Tribunal disallowed damage to the cycle and dress materials. The claimant was on his cycle at the time of the accident and in the nature of

injury sustained the cycle also suffered damage. The Tribunal should have awarded at least Rs. 600. The Tribunal has awarded Rs. 2,00,000,

being cost of treatment and hospital expenses. Taking into consideration the number of operations undergone and the period during which the

claimant was hospitalized, we reduce the award under this heading to a sum of Rs. 1,75,000 as just and reasonable compensation as the claimant

has not produced receipts to cover Rs. 2,00,000. For the pain and suffering and loss of income to the family members, the Tribunal has awarded

Rs. 47,500. This in our view is on the higher side and we reduce it to Rs. 15,000, which would be the just and reasonable amount, since it is found

that the father is working in the midday meals scheme and the mother is a housewife. Therefore, taking into consideration of the salary earned, we

award Rs. 15,000 under this head as just and reasonable compensation towards loss of income to the family members and their suffering.

As regards the loss of expectation of proper marital life and alliance, Claims Tribunal has awarded just Rs. 1,50,000. In our view, even this is

on the higher side and we reduce the same to Rs. 50,000 which would be the just and proper compensation. The Tribunal has awarded additional

transport expenses of Rs. 50,000 though Rs. 75,000 is claimed. Transport expenses not only started from the time of the accident and it continues

and it will continue throughout the claimant''s life. Therefore, the award of Rs. 50,000 cannot be held to be excessive.

The Tribunal had disallowed the claim under the heading inability to participate in sports and games. Any youth and particularly school going

youth of normal health definitely takes part in some games or physical exercises or competition or in ACC/NCC, while at school. This accident has

totally disabled the appellant and under this heading a nominal sum of Rs. 5,400 is awarded. The award of Rs. 1,00,000 towards mental agony

and torture due to amputation as claimed cannot be held to be excessive. The compensation awarded towards pain and suffering at Rs. 1,00,000

also cannot be held to be excessive. The compensation towards the continuing permanent disability has been assessed at Rs. 2,00,000 by the

Tribunal below. We do not find any reason to interfere with this award.

In all we assess the compensation under various heads and award damages as detailed here:

Towards loss of income Rs. 6,50,000

Transportation expenses Rs. 4,000

Towards extra

nourishment Rs. 40,000

Towards damage to

cycle and dress material Rs. 600

Towards medicine and

hospitalization expenses Rs. 1,75,000

Towards suffering and

loss of income to family

members Rs. 15,000

Towards loss of

marital life Rs. 50,000

Towards additional

transportation expenses Rs. 50,000

Towards inability to

participate in sports

and games Rs. 5,400

Towards mental agony Rs. 1,00,000

Towards pain and

suffering Rs. 1,00,000

Towards continuing

permanent disability Rs. 2,00,000

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Total Rs. 13,90,000

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In the result, we modify the award of the Claims Tribunal and the revised total compensation payable at Rs. 13,90,000 with 9 per cent interest

per annum from the date of the claim petition. Amounts, if any, already paid, shall be given credit. The appeal is allowed in part to the extent

indicated above, and in other respects, the award of the Tribunal is confirmed, but without costs. Consequently, connected C.M.P. is closed.