Partly allowed

M/S. National Insurance Co. v. Mr. G. Ramesh Kumar

Madras HC6 Dec 2014CMA/2210/2014

Case brief

AI extract

What is this about?

The High Court modified the Motor Accidents Claims Tribunal's award, reducing loss of income due to insufficient proof of income, adjusting disability from 60% to 50%, and adding head compensation for pain, nourishment, and attender services, resulting in a total relief of Rs.21,79,000.

What did the court decide?

The award was reduced to Rs.21,79,000; interest at 7.5% confirmed; appellant directed to deposit the balance award amount.

M/S. National Insurance Co. Vs Mr. G. Ramesh… — Pension and Retirement Benefits | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 18.03.2016

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CORAM

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THE HONOURABLE MR.JUSTICE R.SUDHAKAR and THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN

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C.M.A.No.2210 of 2014 and M.P.No.1 of 2014

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M/s National Insurance Co. Ltd., 751, Anna Salai Chennai 600 002

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..Appellant/Respondent-II

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vs.

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1.G.Ramesh Kumar ..1st respondent/petitioner 2. C.Ravichandran ..2nd respondent/1st respondent

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Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the Judgment and decree passed in M.C.O.P.No.378 of 2004 on the file of the learned Motor Accidents Claims Tribunal (II Additional District Judge), Poonamallee at Chennai District.

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For Appellant : Mr.J.Chandran For Respondents : Mr.J.Mahalingam (R1) R2-NA

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JUDGMENT

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(Judgment of the Court was delivered by K.SUDHAKAR,J.)

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The Insurance Company has filed this appeal, challenging the quantum of compensation awarded by Judgement dated 13.09.2013 by the Motor Accidents Claims Tribunal (II Additional District Judge), Poonamallee at Chennai District in M.C.O.P.No.378 of 2004.

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It is a case of injury. On 03.04.2003 at about 11.15 p.m., when the injured/claimant G.Ramesh Kumar, aged about 34 years, stated to be a Real Estate and Flat Promoters and a partner in a hotel, was walking on the M.T.H. Road, Ambathur, a van bearing Registration No.TN-01-J-3319, insured with the present appellant, which was driven by its driver in a rash and negligent manner, hit the injured, resulting in head injury. Since the 1st respondent is the owner of the vehicle and the second respondent as the insurer of the same before the Tribunal, they are jointly and vicariously liable to pay the compensation. Hence, the injured/claimant, preferred a claim petition before the Motor Accidents Claims Tribunal, II Additional Distraict Court, Poonamallee, Chennai, claiming compensation to the tune of Rs.75,00,000/-.

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In support of the claim, the claimant was examined as P.W.1; V.R.Devi, wife of the claimant was examined as P.W.2 and Dr.V.R.Subramaniam was examined as P.W.3; and Ex.P-1 to Ex.P.8 were marked, the details of which are as follows:-

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Ex.No.	Details
P1	FIR
P2	Discharge summary
P3	Medical Bills
P4	Medical Bills
P5	Proof for flat promoters
P6	Psychological assessment
P7	Disability certificate
P8	X-ray

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On behalf of the Insurance Company, no witness was examined and no document was marked before the Tribunal.

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Based on the oral and documentary evidence, the Tribunal granted

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the following amounts as compensation with interest at 7.5% per annum:-

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Sl.N o.	Head	Amount granted by the Tribunal
1	Pecuniary loss	Rs.38,55,600/-
2	Medical expenses	Rs. 1,49,483/-
3	Compensation for pain and suffering	Rs. 25,000/-
4	Transport expenses	Rs. 10,000/-
5	Extra nourishment expenses	Rs. 15,000/-
	Total	Rs.40,55,083/-

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This Civil Miscellaneous Appeal is filed by the Insurance Company questioning the quantum of compensation awarded.

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According to the learned counsel appearing for the appellant/Insurance Company, the compensation of Rs.40,55,083/- awarded by the Tribunal, is highly excessive and unsustainable in law. He would further plead that the injured due to intoxication fell down and sustained head injury, which fact was clearly reflected in the accident register and hence the Tribunal, ought to have dismissed the entire claim as false. Further, the Tribunal, in the absence of standard proof of cogent, convincing and continuous chain of events proving the nexus between the injury and the vehicle, ought to have dismissed the claim as not proved. A plea had been taken by the learned counsel for the appellant that the Tribunal, considering the fact that the claimant himself has admitted in the application for claim that he is not an income tax assessee, ought to have rejected the pleading of the business and income. As far as the assessment of disability is concerned, according to the learned counsel for the appellant, the Tribunal ought to have disbelieved the evidence of P.W.3 and his disability certificate Ex.P.7, after 9 years at 65% in the absence of any X-rays, prescriptions, continuous medical treatment records from discharge till disability assessment. Thus, according to the learned counsel the award of the Tribunal is unjustifiable.

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On the other hand, the learned counsel for the 1st respondent/claimant submitted that the Tribunal is right in fixing the income of the claimant at Rs.35,000/- per month based on the Ex.P.5, which was filed to demonstrate and to prove that he was dealing in real estate business.

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According to him, Ex.P.4 was marked before the Tribunal in order to prove that he had spent for medical expenses. As far as assessment of disability is concerned, a plea was taken by the learned counsel for the 1st respondent injured that P.W.3 Dr.V.R.Subramaniam, has correctly assessed the disability at 65%, however, the Tribunal has assessed the disability at 60%, which cannot be found to be incorrect. That apart, according to the learned counsel, adoption of 17 multiplier by the Tribunal is justified.

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The learned counsel for the 1st respondent/claimant further contended that there is no document to show that the injured was under the influence of alcohol at the time of accident and had he been under the influence of alcohol, it would have been reflected in any one of the documents marked.

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Based on the above, the learned counsel for the 1st respondent/claimant sought for dismissal of the above Civil Miscellaneous Appeal.

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This Court considered the submissions made on the learned counsel on either side and perused the materials available on record.

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G.Ramesh Kumar, 34 years old, on 03.04.2003 at 11.15 p.m., while walking on the M.T.H. Road, Ambathur, a van bearing Registration No.TN01-J-3319, insured with the present appellant, hit him, resulting in head injury. Before the Tribunal, the claimant was examined as P.W.1. V.R.Devi, wife of the

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claimant was examined as P.W.2 and Dr.V.R.Subramaniam was examined as P.W.3. Out of 8 documents marked, Ex.P.2 is the Discharge summary and Ex.P.6 is the Psychological assessment.

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The plea of the Insurance Company that the injured claimant was under the influence of Alcohol and that attributed to the accident was considered by the Tribunal, but negatived as it could not be the sole ground for the accident. The reasoning of the Tribunal appears to be based on the evidence on record and on that score, we do not intend to go further, as we are convinced with the reasoning of the Tribunal insofar as the nature of the accident is concerned, the same stands justified as against the driver of the Van, insured with the appellant. That leave us to the question of compensation.

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The injured/claimant stated to be a Real Estate and Flat Promoters and a partner in a hotel. Due to head injury he was given immediate treatment. The injured was given first aid at Ravindranath Nursing Home on 03.04.2003 and thereafter, he was transferred to Vijaya Health Centre and treated as inpatient from 04.04.2003. He was diagnosed to suffer Left fronto temporal parietal cranotomy, for which evacuation was done on 04.04.2003 and after the treatment was given, he was discharged on 19.05.2003 with the following remarks:-

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"Conscious, dysphesic, was able to obey

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simple commands, was able to walk with minimal support. PR : 76/mt BP: 120/90 mm Hg. General condition fair. Folly Catheter in situ".

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The injured was advised for review and he was later on admitted on the same month i.e, 27.05.2003 and discharged on 30.05.2003. On the second occasion, he was treated for the head injury, besides other complications like Urinary Track infection. The course of treatment given are as follows:-

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"Temp 100 to 102 F for 2 days and a

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febrile since 29.5.03.

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Seen by Dr.Ranganathan Jyothi ( Consultant Neurosurgeon)

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Old case of Left Fronto Temproparietal acute SDH Operated and followed by tracheostomy and weaned from tracheostomy.

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Now admitted with Fever with rigor.

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O/E: Conscious, restless, Dysphasic, a

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febtrile.

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Moves all 4 limbs. No Neck stiffness. Craniotomy flap not bulging.

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Urine R/E shows plenty of pus cells.

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Sugg : To treat UTI, To add T. Tegretol 200 mg BD if restless".

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Thereafter, there appears to be no further medical management. Insofar as the disability is concerned, it was assessed by P.W.3 Doctor at 30% in respect of

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Artho, 30% in repect of Neuro and 5% in psychological assessment. The Tribunal, however, fixed the disability at 60% as whole body functional disability. However, on going through the documents which were produced for medical treatment, we are of the view that the fixing 50% disability would be just and proper.

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Insofar as the income of the injured is concerned, the Tribunal, fixed the income at Rs.35,000/- per month. Ex.P.5, proof of flat promoters was filed before the Tribunal. But, there is no material to substantiate the income of the injured at Rs.35,000/- per month. Hence, we are of the view that the Tribunal has erred in fixing the income at Rs.35,000/- per month without any basis. We noticed that the accident in this case was in the year 2003. Had there been income tax returns or documents, ledgers or records produced to show that the income of the injured claimant was Rs.35,000/-, we would have fairly accepted the Tribunal's contention while fixing the income. It is also recorded by the Court below that there is no proof that the injured had source of income from real estate as well as from the hotel, as no proof was filed for such occupation, so also for filing of income tax returns. In such view of the matter, we are of the view that fixing a sum of Rs.20,000/- per month would be just and proper. As far as the multiplier adopted is concerned, we are of the view that 16 would be the proper multiplier. Thus, by applying 50% disability, the amount to be granted under the head Loss of income by taking the monthly income at Rs.20,000/-, would be Rs.19,20,000/- (Rs.20,000 x 12 x 16 x 50/100).

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Further, on going through the compensation awarded by the Tribunal, we find that the amount granted under the heading pain and suffering is on the lower side. Considering the fact that the injured was admitted twice for the treatment, we feel that granting a sum of Rs.50,000/- under this head would be justifiable. That apart, the Tribunal has awarded only a sum of Rs.15,000/- under the heading "extra nourishment" which, in our opinion, is meagre. Hence, we are of the view that granting a sum of Rs.25,000/- under the heading "extra nourishment" would meet the ends of justice.

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While granting compensation, the Tribunal has erred in not awarding any compensation under the heading attender charges to the claimant. Hence, we are of the opinion that a sum of Rs.25,000/- would be just and reasonable amount to be awarded under the heading attender charges.

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Accordingly, the compensation awarded by the Tribunal stands modified as follows:

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Sl.N o.	Head	Amount granted by the Tribunal	Amount now modified
1	Loss of income	Rs.38,55,600/-	Rs.19,20,000/-
2	Medical expenses	Rs. 1,49,000/-	Rs. 1,49,000/-
3	Pain and Sufferings	Rs. 25,000/-	Rs. 50,000/-
4	Transport expenses	Rs. 10,000/-	Rs. 10,000/-
5	Extra nourishment	Rs. 15,000/-	Rs. 25000/-
6	Attender charges	Rs. -	Rs 25,000/-
	Total compensation	Rs.40,55,083/-	Rs.21,79,000/-

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There is no serious objection in respect of the interest granted

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at 7.5% per annum.

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Accordingly, the Civil Miscellaneous Appeal is partly allowed as

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follows:-

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(i) The award of the Tribunal is reduced to Rs.21,79,000/from Rs.40,55,083/-.

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(ii) The interest granted by the Tribunal at 7.5% per annum is confirmed.

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(iii) By order dated 11.08.2014, this Court, while granting interim stay has directed the appellant/Insurance Company to deposit 50% of the award amount to the credit of M.C.O.P.No.378 of 2004 on the file of the Motor Accidents Claims Tribunal, II Additional District Court, Poonamallee and on such deposit being made, the claimant was permitted to withdraw 25% of the amount deposited excluding accrued interest. Therefore, the appellant/Insurance Company is directed to deposit the balance award amount as ordered by this Court to the credit of M.C.O.P.No.378 of 2004 on the file of the Motor Accidents Claims Tribunal, II Additional District Court, Poonamallee within a period of eight weeks from the date of receipt of a copy of this order.

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(iv) On such deposit, the claimant is permitted to withdraw the

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balance award amount as ordered by this Court on filing necessary application before the Tribunal.

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(v) There will be no order as to costs in this appeal.

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Connected miscellaneous petition is closed.

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Internet: Yes/No rg

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(R.S.,J) (S.V.N.,J) 18.03.2016

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The Registrar, II Additional District Court (The Motor Accidents Claims Tribunal ) Poonamallee, Chennai.

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R.SUDHAKAR,J. and S.VAIDYANATHAN,J.

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Judgment in

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C.M.A.No.2210 of 2014

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18.03.2016

M/S. National Insurance Co. v. Mr. G. Ramesh Kumar

Case brief

What is this about?

What did the court decide?

M/S. National Insurance Co. v. Mr. G. Ramesh Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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