Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
4. 11.2013 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR and THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA Civil Miscellaneous Appeal No.212 of 2013 ICICI Lombard General Insurance Co. Ltd., Zenith House, Keshavrao Khade Marg, Mahalaxmi, Mumbai - 400 034. ... Appellant/3rd Respondent vs. 1.Chinnasamy, 2.V.Ramadas, 3.Tmt.D.Nallammal. (R2 and 3 are set ex parte in lower court) ... Respondents/Petitioner and Respondents 1 and 2 Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 1.8.2012 passed in M.C.O.P.No.945 of 2010 on the file of the Motor Accidents Claims Tribunal (Principal Sub Court), Coimbatore. For appellant : Ms.R.Sreevidhya For 1st respondent : Mr.Kalyanasundaram, Senior Counsel for Mr.V.Srinivasan for R1 ----- JUDGEMENT Judgment of the Court was delivered by PUSHPA SATHYANARAYANA,J.
The ICICI Lombard General Insurance Company is the appellant in the above appeal challenging the award and decree dated 1.8.2012 passed in M.C.O.P.No.945 of 2010 on the file of the Motor Accidents Claims Tribunal (Principal Sub Court), Coimbatore with 9% interest both in respect of negligence and quantum of compensation.
2. Heard Ms.R.Sreevidhya, learned counsel appearing for the appellant and Mr.Kalyanasundaram, learned senior counsel representing Mr.V.Srinivasan, learned counsel appearing for the first respondent. It is stated that the respondents 2 and 3 remained ex parte before the Tribunal and hence, notice to them may be dispensed with. Accordingly, the notice to the respondents 2 and 3 is dispensed with.
3. It is a case of injury. The brief facts of the case are as follows:- The accident in this case happened on 9.10.2009 at 5.40 hours. While the claimant, the first respondent herein, was crossing the Trichy Road, the lorry driven by the second respondent and belonged to the third respondent came in a rash and negligent manner and hit against the claimant and the wheel of the lorry run over left leg and knocked him down due to the impact of the said accident. The claimant suffered fractures and crush injuries. For the injury suffered, he filed a claim for compensation in a sum of Rs.30,00,000/-.
4. The said Original Petition was contested by the appellant on the ground that the claimant was under the influence of alcohol and he was carelessly walking across the busiest road and he was negligent which resulted in the accident.
5. Before the Tribunal, the injured claimant, was examined as P.W.1. One Dr.Madhu Periyasamy was examined as P.W.2 and one Mr.Shanmughanathan, Health Inspector, Coimbatore Corporation was examined as P.W.3. Exs.P-1 to P-18 were marked. On the side of the respondents, no document was filed and no witness was examined.
6. Considering the oral and documentary evidence, the Tribunal granted the following amounts as compensation with 9% interest:- Sl.No.Head Amount granted by the Tribunal 1 Future loss of earnings for the injury sustained by the claimant in the accident Rs.16,07,256/- 2 Compensation for purchase of artificial limb Rs. 2,37,320/- 3 Medical expenses Rs. 12,974/- 4 Pain and sufferings Rs. 30,000/- 5 Transport expenses Rs. 5,000/- 6 Nutrition expenses Rs. 5,000/- 7 Expenses for the attendant Rs. 10,000/- 8 Loss of amenities Rs. 10,000/- Total Rs.19,17,550/- 7. The points that arose for consideration are:- (1) Whether the accident was happened due to rash and negligent driving of the second respondent herein?. (2) Whether the quantum of compensation arrived at by the Tribunal is correct?. (3) To what relief the injured claimant, the first respondent herein, is entitled to?.
8. Point No.1: The claimant in his evidence has deposed that he reported for duty on 9.10.2009 at 6th Ward Office, Coimbatore Corporation and for attending his duty he crossed the Trichy Road in front of Santhi Gears from North to South. At that time, all of a sudden the lorry bearing Registration No.TAL9799driven by the second respondent herein and belonged to the third respondent herein came from West to East direction in a rash and negligent manner and hit against the claimant and the lorry wheel run over the left leg and caused the accident. The FIR was marked as Ex.P-1, the rough sketch was marked as Ex.P-2 and the copy of charge sheet was marked as Ex.P-3.
9. The contention of the appellant insurance company is that the claimant was under the influence of alcohol at the time of accident and that in the discharge summary Doctors mentioned that the claimant was suffering with alcoholic syndrome. However, there is no evidence to substantiate the claim of the appellant insurance company that the claimant was under the influence of alcohol. Whenever the plea of contributory negligence is taken, it is for the person who alleged the plea, should establish the same. Whereas in this case, the respondents have not let any substantiated evidence to prove that the claimant was under the influence of alcohol. However, the claimant had examined P.W.2, the doctor who had attended on him immediately after the accident and deposed that the claimant was not under the influence of alcohol at the time of accident. Hence, the contention of the appellant insurance company that the claimant had contributed to the negligence and responsible for the accident is not sustainable. It is pertinent to note that as per Ex.P-4, the driver of the lorry himself admitted the guilty of rash and negligent driving at the time of accident. Hence there is no evidence let in by the appellant insurance company to establish that the claimant was under the influence of alcohol which caused the accident. Hence, the Point No.1 is answered in favour of the claimant.
10. Point No.2:- It is borne out by records that the left leg of the claimant is amputated and he was treated as inpatient from 9.10.2009 to 2.11.2009. The wound certificate and discharge summary given in the hospital have been marked as Exs.P-7 and P-8. Ex.P-9 is the photograph which also shows that the left leg of the injured claimant has been amputated. The report of the doctor also states that the limb is not salvageable. Exs.P-9 and P-10 show the gravity of injury sustained by the claimant. The permanent disability suffered by the claimant is said to be 70%. Ex.P-14, the disability certificate issued by the doctor also narrates the injury sustained by the claimant and he assessed the partial permanent disability to the extent of 70% as per Section 2 of the Workmen's Compensation Act. The appellant though disputed the percentage of disability given by the doctor P.W.2, to disprove the same, he has not adduced any evidence. Hence, the contention of the appellant that the percentage of disability as deposed by P.W.2 as per Ex.P-14 is on the higher side is not acceptable.
11. The another contention of the appellant insurance company is that the claimant was an alcohol dependence, as such, he is not entitled for compensation. This is also not substantiated by any evidence let in on behalf of the appellant insurance company. Hence, this contention is also not acceptable.
12. Now the question of quantum of compensation is to be considered. It is stated that the claimant was working as Sanitary Worker at CMC Hospital, Coimbatore, and earning Rs.12,756/- as monthly salary and due to accident his left leg was amputated, he is unable to continue as sanitary worker and he voluntarily retired from the job on 31.7.2010.
13. It is stated that the claimant is the sole breadwinner of the family to look after his wife and two daughters. There is no other source of income. There is no records produced by the appellant insurance company that the injured claimant had any other income other than the service as sanitary worker. The salary certificate is marked as Ex.P-16. The copy of extract of pay register, East Zone, Coimbatorre Corporation is marked as Ex.P-17. The above documents Exs.P-16 and P-17 were marked through P.W.3, Mr.Shanmughanathan, Health Inspector, Coimbatore Corporation.
14. From the above documents it is clear that the claimant suffered partial permanent disability at 70% which is prevented or restricted from discharging his work as a Sanitary worker, as such, he was compelled to retire from service. At the time of accident the injured claimant was earning a sum of Rs.12,756/- per month and Rs.1,53,072/- per annum.
15. The age of the claimant is said to be 45 years. To disprove this, there is no evidence adduced on behalf of the appellant. Instead the claimant, aged about 45 years, who has been working as sanitary worker, due to the accident, has lost his left leg above knee is unable to continue his employment and was compelled to retire from service.
16. Considering the age of the injured claimant, the Tribunal adopted multiplier 15. After applying the principles laid down by the Apex Court in the case of Rajkumar vs. - Ajay Kumar and another reported in 2011 ACJ1 Illustration ".C". to para 14, the Tribunal fixed the future loss of earnings of the injured claimant. Illustration ".C". to para 14 reads as follows:- ".Illustration 'C': The injured was 25 years and a final year engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70 per cent. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning capacity was also assessed as 70 per cent. The calculation of compensation will be as follows: (a) Minimum annual income he would have got if had been employed as an engineer - Rs.60,000/- (b) Loss of future earnings per annum (70 per cent of the expected annual income) - Rs.42,000/- (c) Multiplier applicable (25 years)- 18 (d) Loss of future earnings (Rs.42,000 x 18) - Rs.7,56,000/- [Note: The figures adopted in illustrations (A) and (B) are hypothetical. The figures in illustration (C), however, are based on actuals taken from the decision in Arvind Kumar Mishra, 2010 ACJ2867(SC)]..". In view of the principles set out in the above decision, the Tribunal has not deducted the 1/3 from the salary of the claimant. Therefore, the claimant is entitled to get Rs.16,07,256/- (Rs.1,53,072/- x 15 x 70% = Rs.16,07,256/-) as loss of future earnings for the injury sustained in the accident.
17. The left leg of the injured claimant is amputated above the knee. The functional disability of the claimant to be considered as he is unable to walk, stand and climb steps and is looking for help of others for carryout day-to-day routine works. The injured claimant is advised to use artificial limb for which he is in need of Rs.2,37,320/- which is supported by Ex.P-18 which is fitment proposal given by Ottobock Ltd., Mumbai. Considering the age of the injured claimant, the Tribunal thought it fit to award a sum of Rs.2,37,320/- as per Ex.P-18 for purchase of artificial leg and the same is justified.
18. The claimant also produced medical bills for a sum of Rs.12,973.75 as per Ex.P-11 which has not been objected by the appellant.
19. Further, the Tribunal granted a sum of Rs.30,000/- towards pain and sufferings; Rs.5,000/- towards transport expenses; Rs.5,000/- towards nutrition expenses; Rs.10,000/- towards the expenses for the attendant for taking care of the injured claimant in the hospital and at the Home and Rs.10,000/- towards loss of amenities. Thus, Tribunal had awarded a sum of Rs.19,17,550/- as total compensation.
20. An objection was raised by the appellant insurance company with regard to the multiplier 15 applied in this case, in view of the Apex Court's decision in the case of Sarla Verma vs. - Delhi Transport Corporation reported in 2009(2) TNMAC1(SC). It is contended that considering the age of the injured claimant as 45 years, the appropriate multiplier would be 14.
21. However, we are not inclined to interfere with the quantum of compensation, as we find that the compensation awarded by the Tribunal in respect of pain and sufferings for the injured claimant, who suffered amputation of left leg above the knee; and the compensation granted towards transport expenses, nutrition expenses, attendant charges and loss of amenities are also meagre or marginal. The Tribunal could have granted higher compensation under the above heads considering the age of the injured claimant and the grievous nature of the injury suffered. Consequently, the marginally higher multiplier applied by the Tribunal would be justified for the shortfall under the various heads mentioned above.
22. We, however, taking note of the present banking rate of interest, modify/reduce the interest portion alone to 7.5% as against 9% granted by the Tribunal. Accordingly, the Point No.2 is answered.
23. Point No.3:- In the result, the Civil Miscellaneous Appeal is allowed in part as follows:- (i) The award of the Tribunal with regard to compensation is confirmed. (ii) The interest granted by the Tribunal is reduced to 7.5% per annum from 9% per annum. (iii) Eight weeks time is granted to deposit the balance award amount as ordered by this Court. (iv) On such deposit, the claimant is permitted to withdraw the award amount as ordered by this Court as above. (v) Three will be no order as to costs in this appeal. (R.S.,J.) (P.S.N.,J.) 04.11.2013 Index: Yes Internet: Yes ts To The Principal Subordinate Judge, (Motor Accidents Claims Tribunal) Coimbatore. R.SUDHAKAR,J.
And PUSHPA SATHYANARAYANA,J.
ts Judgment in C.M.A.No.212 of 2013 04.11.2013