United India Insurance Vs. Govindaraj - Court Judgment

SooperKanoon Citationsooperkanoon.com/1169555
CourtChennai High Court
Decided OnJun-06-2014
JudgeTHE HON?BLE MR. JUSTICE S. MANIKUMAR
AppellantUnited India Insurance
RespondentGovindaraj
Excerpt:
in the high court of judicature of madras dated:06. 06.2014 coram: the honble mr. justice s. manikumar c.m.a.no.1645 of 2014 and m.p.no.1 of 2014 m/s.united india insurance co. ltd., branch office, dharapuram. ... appellant vs. 1.govindaraj 2.k.ganesan  respondents the civil miscellaneous appeal is filed under section 173 of the motor vehicles act against the award & decree dated 20.01.2004 made in m.c.o.p.no.879 of 2001 on the file of the motor accidents claims tribunal (additional district judge, ftc.v), coimbatore at thiruppur. for appellant : ms.k.grahalakshmi for ms.n.mala judgment ms.k.grahalakshmi, learned counsel representing the counsel on record submitted that the quantum of compensation alone is the challenge in this appeal. submission of the learned counsel is placed on record.2. in the accident, which occurred on 04.06.2001, involving two motorcycles, bearing regn.nos.tn39j9856 and tn39 3048, insured with the appellant insurance company, the respondent sustained a fracture in the frontal bone, lost three teeth, mandible fracture, injuries in the forehead and other parts of the body. at the time of accident, he was aged 27 years and as an electrician, stated to have earned rs.4,500/- per month. a case in cr. no.488 of 2000, has been registered for offence, under sections 279 and 337 ipc against the rider of the motorcycle bearing regn.no.tn39j9856.3. according to the respondent, the accident occurred due to rash and negligent riding of the motorcycle, bearing regn.no.tn39j9856, which dashed against the bike, driven by him. for pecuniary and non-pecuniary losses suffered, the respondent has filed m.c.o.p.no.879 of 2001 on the file of the motor accidents claims tribunal (additional district judge, ftc.v), coimbatore at thiruppur.4. the insurance company opposed the claim, denying the negligence on the rider of the motorcycle bearing regn.no.tn39j9856, insured with them. they further submitted that it was the respondent who was negligent in causing the accident. it is also their contention that the vehicle insured with them was driven, without a valid and effective driving licence and that there was a violation of section 3 of the motor vehicles act, 1998 and for the abovesaid reasons prayed for dismissal of the claim petition.5. before the claims tribunal, the respondent examined himself as pw1 and reiterated the manner of accident. he has marked ex.p1, fir, ex.p2, wound certificate, ex.p3, discharge summary, ex.p4, motor vehicle inspector's report, ex.p5, medical bills (6 nos.), ex.p7, driving licence, ex.p8, disability certificate and ex.p9, x-ray. pw2, is the doctor, who assessed the disablement. no oral or documentary evidence has been adduced on behalf of the insurance company.6. upon evaluation of pleadings and evidence, the claims tribunal held that the rider of the motorcycle bearing regn.no.tn39j9856 insured with the company, was negligent in causing the accident. on the basis of the medical evidence, the claims tribunal awarded compensation of rs.5,28,935/- with interest at the rate of 9% per annum from the date of claim till the date of realisation. as the learned counsel for the appellant submitted that the award is challenged only on the quantum of compensation, this court is of the view that there is no need to advert to the aspect of negligence fixed on the rider of the motorcycle bearing regn.no.tn39j9856 and insured with the appellant-insurance company.7. to prove the nature of injuries, period of treatment, extent of disablement suffered, the respondent/claimant, has adduced oral evidence to the effect that in the accident, which occurred on 04.06.2001, he lost three teeth. there was a fracture in the head and a portion of the bone has been removed. he was hospitalised for two months. upon perusal of ex.p2, wound certificate and ex.p3, medical records, the claims tribunal has recorded as follows: diagnosis: rta  acute sdh left temporal region  thin edh right temporal region fractured bone excised and clot evacuated before ii fracture maxilla fracture left zygoma list of injuries:1. a sutured laceration 5 cm long over right temporal region. 2.a small abrasion 2 cm in size over right upper eyelid. 3.right black eye (+) dental opinion:1. lefort ii fracture maxilla 2.fracture left zygoma ecg  sinus tachcardia left a trial abnormality x ray skull lat  there is a tissured fracture over the temporo  pariental region x ray c spine ap, kat  there is no fracture bilateral cervical ribs are seen x ray chest ap supine  there is no fracture lungs are clear hilar shadows are normal 8. pw2, doctor, assistant surgeon, coimbatore medical college hospital, has deposed that he examined the respondent / claimant on 18.10.2003 with reference to the medical records. he has deposed that the respondent sustained injury in the head and that a portion of bone has been removed. there were fractures in the face and contusion in brain. he has also noticed a scar in the right side of the head. brain has been covered only with skin and considering the nature of injuries, discomfort expressed and the likelihood of injuries due to the removal of a portion of bone in the skull, opined that there is every possibility of an injury to brain. it is the further evidence of pw2, that the injured expressed pain, at the time, when he touched the left side of the face. there was loss of sensation in the left hand and legs. hands of the injured were disfunctional. according to pw2, the respondent would not be in a position to work as electrician, as before, and he find would it difficult to even sleep properly. while, clinically examining the respondent, pw2, doctor has also taken ex.p9, x-ray, wherein, there was a clear indication of removal of bone, in the right side of the skull. he has assessed the extent of disablement as 55%, and issued ex.p8, disability certificate.9. though, the respondent, claimed that as electrician, he earned a sum of rs.4,500/- per month, there was no document to support the monthly income. however, taking into consideration the avocation pleaded and tiruppur district being a big industrial city, the claims tribunal fixed the monthly income as rs.3,000/-. he was aged 27 years, at the time of accident. therefore, following, the decision of this court in imthiaz ahamed vs. banumathi and others, reported in 2003 acj142 the claims tribunal, has awarded a sum of rs.55,000/- towards, 55% permanent disability. in addition to the above, the claims tribunal has computed the loss of earning capacity, by applying '18' multiplier and awarded rs.3,56,000/- (rs.3,000/- x 12 x 18 x 55 x 100). for pain and suffering, the claims tribunal has awarded rs.10,000/- and for nutrition, awarded rs.3,000/-. the claims tribunal has failed to consider that the respondent ought to have been awarded a just and reasonable compensated under the head attendant charges also.10. a full bench of this court in cholan roadways corporation ltd., kumbakonnam vs. ahmed thambi and others reported in 2006 (4) ctc433 has set out broad guidelines for computing the total compensation in respect of injury cases. paragraph no.19 of the judgment of the full bench would be relevant for the purpose of assessment of a just and reasonable compensation. ".in order to avoid any future confusion and to bring more clarity and transparency in the award of damages, it is necessary that the tribunal, while awarding damages, should itemise the award under each of the head namely, pecuniary losses and non-pecuniary losses. in the non-pecuniary losses and the tribunal shall consider a) pain and suffering b) loss of amenity, c) loss of expectation of life, hardship, mental stress, etc., (d) loss of prospect of marriage and under the head pecuniary loses, the tribunal shall consider loss of earning capacity and loss of future earnings as one component apart from medical and other expenses and loss of earning, if any from the date of accident till the date of trial. when loss of earning capacity is compensated as also the non-pecuniary losses under (a) to (d), permanent disability need not be separately itemised.".11. having observed hat the respondent was hospitalised for a considerable period, on account of the gravity of injury and surgery, and the period of convalescence, the claims tribunal ought to have awarded a just and reasonable compensation under the head attendant charges, as he would have taken the assistance of somebody in the hospital. the award of rs.10,000/- under the head pain and sufferings, is less, for the reason that the respondent would have certainly undergone severe pain and suffering at the time of accident and treatment. as rightly observed by the doctor, on account of removal of a portion of the bone in the head, covered only with skin and muscles, the respondent has to be more careful, in the future, to avoid any injury to the head. sufferings for the rest of his life is inevitable. the respondent/claimant would have experienced severe pain and suffering at the time of accident and during the period of treatment. pain is one, which is experienced momentarily, but it may continue even for a longer period, depending upon the gravity and situs of the injury, whereas, suffering is loss of happiness, on account of the same. pain has no difference between rich and raff. in the opinion of this court, the quantum of compensation of rs.10,000/- awarded under the head pain and suffering is inadequate. medical expenses incurred is duly supported by ex.p5, series of medical bills.12. though, the appellant insurance company has contended that the claims tribunal has erred in adopting a higher multiplier of '18', for the purpose of computing the loss of earning and further contended that the award is excessive, having regard to the nature of injuries, period of treatment, the extent of disablement suffered by the respondent/claimant with lots of discomfort in the both limbs, the quantum cannot be said to be grossly excessive. further, considering, the avocation and the extent of permanent disablement assessed by pw2, doctor and following the decisions of the apex court in raj kumar v. ajay kumar reported in 2011 acj1(sc) and b.kothandapani vs. tamilnadu state transport corporation, in civil appeal nos.4330-4331 of 2011, dated 12.05.2011, the compensation awarded under the head disability and loss of future earning, though appear to be overlapping, cannot be said, to have been awarded, without any basis. the injured was aged about 27 years. with the extent of disablement and incapacity in the limbs, certainly, he cannot work as electrician, and therefore, application of '18' multiplier, for the purpose of computing the loss of future income cannot be said to be erroneous. s.manikumar, j., ars 13. in the light of the discussion and decisions stated supra, this court is of the view that the award cannot be said to be grossly excessive, warraning interference. hence, the civil miscellaneous appeal is dismissed. no costs. consequently, the connected miscellaneous petition is closed.14. consequent to the dismissal of the appeal, the appellant  insurance company, is directed to deposit the entire award amount, with proportionate accrued interest and costs, less the statutory deposit, to the credit of m.c.o.p.no.879 of 2001 on the file of the motor accidents claims tribunal (additional district judge, ftc.v), coimbatore at thiruppur, if not deposited earlier, within a period of four weeks, from the date of receipt of a copy of this order. on such deposit, the 1st respondent/claimant, is permitted to withdraw the award amount with proportionate accrued interest and costs, by making necessary applications. 06.06.2014 index: yes/no internet: yes/no ars to 1. the motor accidents claims tribunal additional district judge, ftc.v, coimbatore at thiruppur.2. the section officer, vr section, high court, madras. s.manikumar, j., ars c.m.a. no.1645 of 2014 06.06.2014
Judgment:

IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED:

06. 06.2014 CORAM: THE HONBLE MR. JUSTICE S. MANIKUMAR C.M.A.No.1645 of 2014 and M.P.No.1 of 2014 M/s.United India Insurance Co. Ltd., Branch Office, Dharapuram. ... Appellant Vs. 1.Govindaraj 2.K.Ganesan  Respondents The Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act against the award & Decree dated 20.01.2004 made in M.C.O.P.No.879 of 2001 on the file of the Motor Accidents Claims Tribunal (Additional District Judge, FTC.V), Coimbatore at Thiruppur. For Appellant : Ms.K.Grahalakshmi for Ms.N.Mala JUDGMENT

Ms.K.Grahalakshmi, learned counsel representing the counsel on record submitted that the quantum of compensation alone is the challenge in this appeal. Submission of the learned counsel is placed on record.

2. In the accident, which occurred on 04.06.2001, involving two motorcycles, bearing Regn.Nos.TN39J9856 and TN39 3048, insured with the appellant Insurance company, the respondent sustained a fracture in the frontal bone, lost three teeth, mandible fracture, injuries in the forehead and other parts of the body. At the time of accident, he was aged 27 years and as an Electrician, stated to have earned Rs.4,500/- per month. A case in Cr. No.488 of 2000, has been registered for offence, under Sections 279 and 337 IPC against the rider of the motorcycle bearing Regn.No.TN39J9856.

3. According to the respondent, the accident occurred due to rash and negligent riding of the motorcycle, bearing Regn.No.TN39J9856, which dashed against the bike, driven by him. For pecuniary and non-pecuniary losses suffered, the respondent has filed M.C.O.P.No.879 of 2001 on the file of the Motor Accidents Claims Tribunal (Additional District Judge, FTC.V), Coimbatore at Thiruppur.

4. The Insurance Company opposed the claim, denying the negligence on the rider of the motorcycle bearing Regn.No.TN39J9856, insured with them. They further submitted that it was the respondent who was negligent in causing the accident. It is also their contention that the vehicle insured with them was driven, without a valid and effective driving licence and that there was a violation of Section 3 of the Motor Vehicles Act, 1998 and for the abovesaid reasons prayed for dismissal of the claim petition.

5. Before the claims tribunal, the respondent examined himself as PW1 and reiterated the manner of accident. He has marked Ex.P1, FIR, Ex.P2, Wound certificate, Ex.P3, Discharge summary, Ex.P4, Motor Vehicle Inspector's report, Ex.P5, Medical Bills (6 nos.), Ex.P7, Driving licence, Ex.P8, Disability certificate and Ex.P9, x-ray. PW2, is the Doctor, who assessed the disablement. No oral or documentary evidence has been adduced on behalf of the Insurance Company.

6. Upon evaluation of pleadings and evidence, the claims tribunal held that the rider of the motorcycle bearing Regn.No.TN39J9856 insured with the company, was negligent in causing the accident. On the basis of the medical evidence, the claims tribunal awarded compensation of Rs.5,28,935/- with interest at the rate of 9% per annum from the date of claim till the date of realisation. As the learned counsel for the appellant submitted that the award is challenged only on the quantum of compensation, this Court is of the view that there is no need to advert to the aspect of negligence fixed on the rider of the motorcycle bearing Regn.No.TN39J9856 and insured with the appellant-Insurance company.

7. To prove the nature of injuries, period of treatment, extent of disablement suffered, the respondent/claimant, has adduced oral evidence to the effect that in the accident, which occurred on 04.06.2001, he lost three teeth. There was a fracture in the head and a portion of the bone has been removed. He was hospitalised for two months. Upon perusal of Ex.P2, Wound certificate and Ex.P3, medical records, the claims tribunal has recorded as follows: DIAGNOSIS: RTA  ACUTE SDH LEFT TEMPORAL REGION  THIN EDH RIGHT TEMPORAL REGION FRACTURED BONE EXCISED AND CLOT EVACUATED BEFORE II FRACTURE MAXILLA FRACTURE LEFT ZYGOMA List of injuries:

1. A sutured laceration 5 cm long over right temporal region. 2.A small abrasion 2 cm in size over right upper eyelid. 3.Right black eye (+) DENTAL OPINION:

1. Lefort II Fracture Maxilla 2.Fracture left zygoma ECG  Sinus tachcardia left a trial abnormality x Ray skull Lat  There is a tissured fracture over the temporo  pariental region X Ray C spine AP, Kat  There is no fracture Bilateral cervical ribs are seen X Ray chest AP Supine  There is no fracture Lungs are clear Hilar shadows are normal 8. PW2, Doctor, Assistant Surgeon, Coimbatore Medical College Hospital, has deposed that he examined the respondent / claimant on 18.10.2003 with reference to the medical records. He has deposed that the respondent sustained injury in the head and that a portion of bone has been removed. There were fractures in the face and contusion in brain. He has also noticed a scar in the right side of the head. Brain has been covered only with skin and considering the nature of injuries, discomfort expressed and the likelihood of injuries due to the removal of a portion of bone in the skull, opined that there is every possibility of an injury to brain. It is the further evidence of PW2, that the injured expressed pain, at the time, when he touched the left side of the face. There was loss of sensation in the left hand and legs. Hands of the injured were disfunctional. According to PW2, the respondent would not be in a position to work as Electrician, as before, and he find would it difficult to even sleep properly. While, clinically examining the respondent, PW2, Doctor has also taken Ex.P9, X-ray, wherein, there was a clear indication of removal of bone, in the right side of the skull. He has assessed the extent of disablement as 55%, and issued Ex.P8, disability certificate.

9. Though, the respondent, claimed that as Electrician, he earned a sum of Rs.4,500/- per month, there was no document to support the monthly income. However, taking into consideration the avocation pleaded and Tiruppur District being a big industrial City, the claims tribunal fixed the monthly income as Rs.3,000/-. He was aged 27 years, at the time of accident. Therefore, following, the decision of this Court in Imthiaz Ahamed Vs. Banumathi and others, reported in 2003 ACJ142 the claims tribunal, has awarded a sum of Rs.55,000/- towards, 55% permanent disability. In addition to the above, the claims tribunal has computed the loss of earning capacity, by applying '18' multiplier and awarded Rs.3,56,000/- (Rs.3,000/- x 12 x 18 x 55 x 100). For pain and suffering, the claims tribunal has awarded Rs.10,000/- and for nutrition, awarded Rs.3,000/-. The claims tribunal has failed to consider that the respondent ought to have been awarded a just and reasonable compensated under the head attendant charges also.

10. A Full Bench of this Court in Cholan Roadways Corporation Ltd., Kumbakonnam vs. Ahmed Thambi and others reported in 2006 (4) CTC433 has set out broad guidelines for computing the total compensation in respect of injury cases. Paragraph No.19 of the judgment of the Full Bench would be relevant for the purpose of assessment of a just and reasonable compensation. ".In order to avoid any future confusion and to bring more clarity and transparency in the award of damages, it is necessary that the Tribunal, while awarding damages, should itemise the award under each of the head namely, pecuniary losses and non-pecuniary losses. In the non-pecuniary losses and the tribunal shall consider a) pain and suffering b) loss of amenity, c) loss of expectation of life, hardship, mental stress, etc., (d) loss of prospect of marriage and under the head pecuniary loses, the tribunal shall consider loss of earning capacity and loss of future earnings as one component apart from medical and other expenses and loss of earning, if any from the date of accident till the date of trial. When loss of earning capacity is compensated as also the non-pecuniary losses under (a) to (d), permanent disability need not be separately itemised.".

11. Having observed hat the respondent was hospitalised for a considerable period, on account of the gravity of injury and surgery, and the period of convalescence, the claims tribunal ought to have awarded a just and reasonable compensation under the head attendant charges, as he would have taken the assistance of somebody in the hospital. The award of Rs.10,000/- under the head pain and sufferings, is less, for the reason that the respondent would have certainly undergone severe pain and suffering at the time of accident and treatment. As rightly observed by the Doctor, on account of removal of a portion of the bone in the head, covered only with skin and muscles, the respondent has to be more careful, in the future, to avoid any injury to the head. Sufferings for the rest of his life is inevitable. The respondent/claimant would have experienced severe pain and suffering at the time of accident and during the period of treatment. Pain is one, which is experienced momentarily, but it may continue even for a longer period, depending upon the gravity and situs of the injury, whereas, suffering is loss of happiness, on account of the same. Pain has no difference between Rich and Raff. In the opinion of this Court, the quantum of compensation of Rs.10,000/- awarded under the head pain and suffering is inadequate. Medical expenses incurred is duly supported by Ex.P5, series of medical bills.

12. Though, the appellant Insurance Company has contended that the claims tribunal has erred in adopting a higher multiplier of '18', for the purpose of computing the loss of earning and further contended that the award is excessive, having regard to the nature of injuries, period of treatment, the extent of disablement suffered by the respondent/claimant with lots of discomfort in the both limbs, the quantum cannot be said to be grossly excessive. Further, considering, the avocation and the extent of permanent disablement assessed by PW2, Doctor and following the decisions of the Apex Court in Raj Kumar v. Ajay Kumar reported in 2011 ACJ1(SC) and B.Kothandapani Vs. Tamilnadu State Transport Corporation, in Civil Appeal Nos.4330-4331 of 2011, dated 12.05.2011, the compensation awarded under the head disability and loss of future earning, though appear to be overlapping, cannot be said, to have been awarded, without any basis. The injured was aged about 27 years. With the extent of disablement and incapacity in the limbs, certainly, he cannot work as Electrician, and therefore, application of '18' multiplier, for the purpose of computing the loss of future income cannot be said to be erroneous. S.MANIKUMAR, J., ars 13. In the light of the discussion and decisions stated supra, this Court is of the view that the award cannot be said to be grossly excessive, warraning interference. Hence, the Civil Miscellaneous Appeal is dismissed. No Costs. Consequently, the connected Miscellaneous Petition is closed.

14. Consequent to the dismissal of the appeal, the appellant  Insurance Company, is directed to deposit the entire award amount, with proportionate accrued interest and costs, less the statutory deposit, to the credit of M.C.O.P.No.879 of 2001 on the file of the Motor Accidents Claims Tribunal (Additional District Judge, FTC.V), Coimbatore at Thiruppur, if not deposited earlier, within a period of four weeks, from the date of receipt of a copy of this order. On such deposit, the 1st respondent/claimant, is permitted to withdraw the award amount with proportionate accrued interest and costs, by making necessary applications. 06.06.2014 Index: Yes/No Internet: Yes/No ars To 1. The Motor Accidents Claims Tribunal Additional District Judge, FTC.V, Coimbatore at Thiruppur.

2. The Section Officer, VR Section, High Court, Madras. S.MANIKUMAR, J., ars C.M.A. No.1645 of 2014 06.06.2014