Allowed

The New India Assurance Co. Ltd. v. Prakasam

Madras HC10 Mar 2017CMA/898/2015

Case brief

AI extract

What is this about?

In a simplicilo casu involving a motorcycle accident, the court, while accepting the tribunal's assessment of loss of earning due to severe brain atrophy, reduced compensation heads regarding attender charges, mental pain, and amenities based on expert medical evidence and ordered the insurer to deposit the recalculated balance amount.

What did the court decide?

The Civil Miscellaneous Appeal is allowed in part; total compensation reduced to Rs. 33,80,000/- excluding interest for specific heads; appellant directed to deposit balance amount.

The New India Assurance Co. Ltd. Vs Prakasam — Motor Accident Claims | Madras HC (2017)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED: 10.03.2017

¶3

CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MR.JUSTICE M.GOVINDARAJ C.M.A.No.898 of 2015 and M.P.Nos.1 & 2 of 2015

¶4

M/s. New India Assurance Co. Ltd.,
Obli Towers,
594, T.B.Road,
R.S.Puram, Coimbatore - 641 002 ... Appellant/3rd
Respondents
vs.
1. Prakasam
2. Jegadeesan
3. Coimbatore Granites & Tiles,
202-F, Sakthi Main Road,
Saravanampatti
Coimbatore - 641 035.
4. Prabu Srikanth
5. M/s.Talent Engineering Pvt Ltd.,
38, Aruthamalai Kavundar Lay out,
Ramanathapuram, Ganapathy,
Coimbatore - 641 106.
6. Royal Sundaram Alliance,
Insurance Co. Ltd.,
No.45 & 46, Sundaram Towers,
Whites Road, chennai - 600 014. ... Respondents/
Petitioner/Respondents 2,4 to 6
2.

¶5

(2 to 5th Respondents were set exparte in the lower Court. 6th respondent is not a necessary party. Hence notice to them are dispensed with)

¶6

Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the Order and Decreetal Order in MCOP No.1277 of 2012 dated 20.01.2015 on the file of Motor Accidents Claims Tribunal, [Special Sub Court], Coimbatore.

¶7

https://hcservices.ecourts.gov.in/hcservices/

¶8

For Appellant : Mr.R.Sivakumar

¶9

For Respondents : Mr.Ma.P.Thangavel (for R1)

¶10

J U D G M E N T

¶11

[Order of the Court was made by S.MANIKUMAR, J.]

¶12

In the accident, which occurred on 20.01.2012, 1st respondent sustained head injuries. He filed MCOP No.1277 of 2012 claiming compensation Rs.20,00,000/-, Insurance company disputed the manner of accident and liability. Without prejudice to the same, they disputed the quantum of compensation on various grounds.

¶13

Before the tribunal, injured examined himself as PW1. Since he was unable to depose in support of his proof affidavit, documents were marked through one Kandasamy, PW2 and eyewitness Vadivel, PW3. Dr.Sekar, has been examined as PW4. Ex.P1, Certified copy of FIR dated 24.01.2012, Ex.P2, certified copy of charge sheet dated 11.05.2012, Ex.P3, certified copy of rough sketch, Ex.P4, certified copy of wound certificate dated 09.04.2012, Ex.P5, certified copy of MVI Report of the vehicle bearing Regn.No.TN22-H-4084 dated 24.01.2012, Ex.P6, certified copy of MVI Report of the vehicle bearing Regn.No.TN-38-BD-8211 dated 24.01.2012, Ex.P7, certified copy of MVI Report of the vehicle, Ex.P8, certified copy of Docket extract in STC No.437/2012 on the file of Judicial Magistrate No.8, Coimbatore, dated 14.05.2012, Ex.P9 & P10, Discharge summaries dated 09.04.2012 and 27.08.2012, Ex.P11, copy of driving licence of the petitioner, Exs.P12 & P13, Medical Bills, Ex.P14, Disability certificate dated 29.10.2012, Ex.P15, C.T.Scan, Ex.P16. C.T.Scan report, dated 26.10.2012 and Ex.P17, Neuropsychological report dated 29.10.2012, have been marked on the side of the injured/claimant. No oral or documentary evidence, has been adduced on behalf of the Insurance companies.

¶14

3. On evaluation of pleadings and evidence, the tribunal
awarded compensation of Rs.41,40,000/- with interest at the rate
of 7.5% per annum from the date of claim till deposit and costs,
and apportioned the same as hereunder. Loss of future earning : Rs.19,20,000/- Medical Expenses : Rs. 9,50,000/- Attender charges for 25 years
@ Rs.2,000/-per month : Rs. 6,00,000/- Mental and physical
Pain and sufferings : Rs. 3,00,000/-
Loss of amenities : Rs. 3,00,000/-
Transport expenses : Rs. 20,000/-
Extra Nourishment : Rs. 50,000/-
Total : Rs.41,40,000/-

¶15

https://hcservices.ecourts.gov.in/hcservices/

¶16

Challenging the quantum of compensation, New India Assurance Company is on appeal, in particular, on the determination of monthly income of the 1st respondent fixed as Rs.10,000/-per month and consequently, the computation of loss of earning capacity.

¶17

Supporting the prayer sought for Mr.R.Sivakumar, learned counsel for the appellant-Insurance company submitted that though the claimant / 1st respondent at Column No.2 of the application filed under Section 166 A of the Motor Vehicles Act, 1988, has stated that he was working in a factory, the tribunal by accepting the oral testimony of PW1, treated him as a driver, based on Ex.P11, driving licence and erred in fixing the monthly income as Rs.10,000/-. According to him, computation of loss of earning capacity is also erroneous.

¶18

Mr.Ma.P.Thangavel, learned counsel for the 1st respondent/injured submitted that the well considered judgment does not require any intervention.

¶19

Heard the learned counsel for the parties and perused the materials available on record.

¶20

At the time of accident, respondent was aged 31 years. He sustained grievous injury in the head.

¶21

CT Scan report dated 26.12.2012, is extracted hereunder:

¶22

Code No.2012 01 20 0155

¶23

Patients Name : Mr.Prakasam. A. Age : 31 years Sex : Male Referring Doctor : Dr.R.Sekar Date:26.10.12

¶24

CT Scan of Brain (plain)

¶25

Clinical History: Old head injury - follow - up

¶26

Technique:

¶27

128-Slice spiral MDCT Scanning of brain was done without administration of IV contrast media.

¶28

Findings:

¶29

Mild diffuse brain atrophy.

¶30

The fourth ventricle is in midline and normal in size. Both cerebello pontine angles are free. Basel cisterns are normal. Brainstem and both cerebellar hemispheres appear normal.

¶31

https://hcservices.ecourts.gov.in/hcservices/

¶32

Sella appears normal. Suprasellar cisterns are normal. The parasellar regions appears normal. The third ventricle is in middle and isnormal in size. Both lateral ventricles are normal in size and are in position. Brain parenchyma grey and white matter differentiation maintained. Basal ganglia and thalami within normal limits. Sections through the orbits within normal limits. Imaged sections through the paranasal sinuses reveal normal aeration. Cranium normal.

¶33

Impression: ➢ Mild diffuse brain atrophy.

¶34

*suggested clinical correlation.

¶35

Dr.B.Pugazhenthi Radiologist Reg.No.64197

¶36

10. Neuro-psychological study has been done and the report dated 29.10.2012, reads as follows:

¶37

MADHU HARI COUNSELING CENTER NEUROPSYCHOLOGICAL REPORT Name : Mr.Prakasam. A. Age : 31 years Sex : Male Education : 7th Std Marital status :Unmarried Occupation : Nil Dates of evaluation : 29th Oct 2012

¶38

Reason for referral: Neuropsychological & Disability assessment Ref.by: Dr.R.Sekar, M.B.B.S., Medical Records Depart. K.G.Hospital

¶39

H/o head injury in Jan 2012, since then severe loss of memory and physical impairment which interferes with his daily activities.

¶40

Behavioural observation:

¶41

He was conscious and co-operative. Rapport could be established easily. Attitude toward the examiner was appropriate. His attention could be aroused with difficulty but concentration could not be sustained for a long time. He could Comprehend the instructions and responded with delayed time, his voice & tone was not clear. He is a right-handed person.

¶42

https://hcservices.ecourts.gov.in/hcservices/

¶43

Tests administered & Results.

¶44

1. PGI-Memory Scale was administered on him and the results as follows.

¶45

SCORE INTERPRETATION

¶46

1 Remote Memory 0 Intact 2 Recent memory 3 Impaired 3 Mental balance 3 Impaired 4 Attention & concentration 3 Impaired 5 Delayed recall 3 Impaired 6 Immediate recall 3 Impaired 7 Retention for similar 3 Impaired

¶47

7 Retention for similar pairs

¶48

8 Retention for dissimilar pairs 3

¶49

3 Impaired

¶50

9 Visual retention 3 Impaired

¶51

10 Recognition 3 Impaired

¶52

II. Battery of Performance Tests of intelligence, the dysfunction score is 3 which indicates his performance intelligence is impaired.

¶53

III. On Adult Verbal intelligence Scale, the dysfunction score is 3, which indicates, his Verbal intelligence is impaired.

¶54

IV. Bender Gestatt test and Nahor Benson test, he could not copy the designs correctly Rotations and reversals noticed which indicates poor visuo-motor coordination.

¶55

2. NIMHANS: Neuropsychological Battery was administered on him and the resulsts as follows,

¶56

1. On the test for Frontal lobe functioning, Raven's Progressive Matrices, scanning numbers, delayed response learning (working memory), trail making test, Test of Perseveration, verbal fluency was administered on him and the results as follows:

¶57

➢ On Raven's Progressive Matrices he obtained a grade V, increased time taken and errors on scanning numbers, delayed response learning (working memory) verbal fluency indicates low intellectual functioning & executive capacity.

¶58

3. On the test for Temporal lobe functioning, Verbal learning and Visual learning memory are found to be

¶59

https://hcservices.ecourts.gov.in/hcservices/

¶60

impaired.

¶61

4. On Bhatia Battery of Performance Tests of intelligence his mental age was placed at 5 years and obtained an IQ of 31.

¶62

Interpretation & Conclusion:

¶63

➢ Memory Scale shows remote memory was found to be normal, whereas other memory functions such as recent memory, mental balance, attention and concentration immediate recall, delayed recall, retention for similar, retention for dissimilar pairs, visual retention and recognition were found to be impaired.

¶64

➢ On tests for frontal lobe functioning the test findings indicates low intellectual functioning & executive impairment.

¶65

➢ On the test for Temporal lobe functioning, Verbal and Visual learning and memory are found to be impaired.

¶66

➢ The IQ range was placed at 31 which fall into the category of Severe Mental Retardation.

¶67

➢ The neuro-psychological test findings reveals that the individual has severe cognitive dysfunction points to frontal - temporal - parietal lobes involvement.

¶68

Reported by N.LAKSHMANAN, M.A.,M.Phil., (Cli.Psy) PhD CLINICAL PSYCHOLOGIST RCI. Reg.No.:A25341

¶69

CT Scan report reveals Atrophy. As per Stedman's Medical Dictionary [24th Edition], Atrophy means

¶70

"Atrophia; a wasting of tissues, organs, or the entire body, as from death and reabsorption of cells, diminished cellular proliferation, pressure, ischemia, mal nutrition, decreased function, or hormonal changes."

¶71

In Taber's Cyclopaedic Medical Dictionary, 'atrophy' means, (1) A decrease in size of an organ or tissue; wasting. Atrophy may result from death and resorption of cells, diminished cellular proliferation, pressure, ischemia, malnutrition deceased activity, or hormonal changes (2) To degenerate; lose size, strength or vitality.

¶72

In Mosby's Medical Dictionary, 'atrophy' means, "a wasting or decrease in size or physiological activity of a part of the body, because of disease or other influences. A skeletal muscle may undergo atrophy as a result of lack of physical

¶73

https://hcservices.ecourts.gov.in/hcservices/

¶74

exercise or neurological or musculoskeletal disease. Cells of the brain and central nervous system may atrosphy in old age because of restricted blood flow to those areas.

¶75

14. Medical text states that mild diffuse cerebral atrophy is a symptomatic brain condition generally involving the loss, or deterioration of, neurons and the connections between them, usually indicating the presence of other brain diseases. Atrophy can be generalized, indicating shrinkage of the entire brain, or focal, in which case only specific regions of the brain are affected. Focal, or localized, cerebral atrophy results in decreased functionality in that area of the brain.

¶76

15. Medical text further states that cerebral atrophy can be caused by injury or disease. Injury-based causes include stroke, brain trauma and steroid use. According to the National Institute of Neurological Disorders and Stroke, cerebral atrophy is commonly associated with many diseases that affect the brain, including Alzheimer’s disease, cerebral palsy, Huntington’s disease, leukodystrophies, mitochondrial encephalomyopathies, multiple sclerosis, and infectious diseases such as AIDS and encephalitis.Symptoms often include dementia, seizures and a group of language disorders called aphasias.

¶77

16. In the light of the opinion on neuro-psychological and disability assessment, we take the aid of medical dictionary also. Dementia can be identified as an impairment of memory and intellectual functions, often severe enough to inhibit social skills and work functionality. Seizures can appear as disorientation, convulsions, loss of consciousness or repetitive movements. Aphasias involves disturbances in speaking or understanding language and can result in loss of comprehension, partial phrases, odd choices of words and incomplete thoughts. Research has been conducted to determine causes for neuron deterioration and atrophy within the brain in the hope of developing preventative measures, treatments and even cures for the diseases that cause cerebral atrophy.

¶78

17. We have given our due consideration to the medical reports, marked before the tribunal. Court or Tribunal, as the case may be, should not ignore the views of experts, more particularly, not controverted.

¶79

Neuro-psychological, report dated 29.10.2012, correlates with the CT Scan report. Even during examination, the tribunal has observed that PW1/injured was not in a position to depose, supporting his proof affidavit. Said observation of the Court itself is sufficient to hold that the respondent was incapacitated. Added further when there are medical records filed by the claimant, why should and on what basis, the Tribunal or the Court, as the case may be, can take a contrary

¶80

https://hcservices.ecourts.gov.in/hcservices/

¶81

decision? At the time of accident, he was aged 31 years and unmarried.

¶82

In the light of the medical evidence on record and discussion, we are not inclined to interfere with the extent of disablement taken into consideration by the tribunal, for the purpose of awarding compensation under the head loss of earning and other heads. However, compensation awarded under the heads, Mental and physical pain and sufferings, Attender charges for 25 years and loss of amenities and enjoyment, requires to be reduced. Accordingly, compensation awarded under the said heads is reworked as follows:

¶83

Head Awarded Awarded Reduction by tribunal Now

¶84

Attender charges for 25 years @ Rs.2,000/-per month Rs. 6,00,000/- Rs.2,00,000/Rs.4,00,000/Mental and physical Pain and sufferings Rs. 3,00,000/- Rs.1,00,000/Rs.2,00,000/Loss of amenities Rs. 3,00,000/- Rs.1,40,000/Rs.1,60,000/Total Rs.12,00,000/- Rs.4,40,000/Rs.7,60,000/-

¶85

Out of Rs.12,00,000/- awarded under the abovesaid three heads, a sum of Rs.7,60,000/- is reduced.

¶86

Though the tribunal, by accepting Ex.P11, driving licence has fixed the monthly income of Rs.10,000/- contrary to the avocation pleaded in the claim petition, having regard to the age, we are of the view that the claimant would have engaged, in some avocation and earned a reasonable income. Rs.10,000/- taken by the tribunal is not excessive. Having regard to the gravity of injuries and the consequential disablement, computation of loss of earning cannot be said to be faulty.

¶87

Accident has occurred on 20.01.2012. In the light of the judgments of Hon'ble Supreme Court in Sri Ramachandrappa Vs. The Manager, Royal Sundaram alliance Company Ltd., reported in 2011 (13) SCC 236, Syed Sadiq and others Vs. DM UIIC Ltd., reported in CDJ 2014 SC 044, and Munna Lal and another Vs. Vipin Kumar Sharma and others, reported in CDJ 2015 SC 476, sum of Rs.10,000/- fixed as monthly income of the injured aged 31 years, cannot be found fault with. Therefore, we are not inclined to interfere with the determination of monthly income.

¶88

In view of the reworking, compensation due and payable to the respondent/injured works out to Rs. 33,80,000/[Rs.41,40,000/- Less Rs.7,60,000/-] with interest, at the rate of 7.5% per annum from the date of claim till deposit and costs,

¶89

https://hcservices.ecourts.gov.in/hcservices/

¶90

excluding interest for the compensation amount for attendant charges, mental and physical pain and sufferings and loss of amenities and enjoyment of life. Reduction of interest, on the above heads has been agreed by the learned counsel for the claimants.

¶91

Submission has been made that as per the direction of this Court in M.P.No.2 of 2015 in M.P.No.1 of 2015, a sum of Rs.20 Lakhs has been deposited to the credit of MCOP No.1277 of 2012 on the file of Motor Accidents Claims Tribunal, [Special Sub Court], Coimbatore.

¶92

In view of the above, appellant-Insurance Company is directed to deposit the balance award amount, now arrived at by this Court, with proportionate interest and costs, if not deposited earlier, to the credit of MCOP No.1277 of 2012 on the file of Motor Accidents Claims Tribunal, [Special Sub Court], Coimbatore, within a period of six weeks from the date of receipt of a copy of this order. On such deposi t the respondent/claimant is permitted to seek for withdrawal of the same, by making necessary applications before the tribunal.

¶93

The Civil Miscellaneous Appeal is allowed in part, as indicated above. No costs. Consequently, the connected Miscellaneous Petitions are closed. Sd/Asst.Registrar /true copy/ Sub Asst. Registrar To The Motor Accident Claims Tribunal, Special (Sub Court), Coimbatore.

¶94

+1cc to M/S. Ma.P. Thangavel, Advocate Sr. 15553 +1cc to Mr. R. Sivakumar, Advocate Sr. 15445

¶95

C.M.A.No.898 of 2015 and M.P.Nos.1 & 2 of 2015

¶96

RJ(CO) VR(03/04/2017)

¶97

https://hcservices.ecourts.gov.in/hcservices/

The New India Assurance Co. Ltd. v. Prakasam

Case brief

What is this about?

What did the court decide?

The New India Assurance Co. Ltd. v. Prakasam

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S. United India Insurance Vs Tmt. Rani

M/S. New India Assurance Co. Vs Mr. D. Murugan

The Divisional Manager Vs Prema

The Managing Director, Vs Kokila

United India Insurance Co. Ltd. Vs Devika

The Divisional Manager, Vs C. Thimmaraj