Andhra Pradesh High Court - Amravati
Shriram General Insurance Co. Ltd., vs Gurram Naga Raju And 2 Others on 30 August, 2024
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
+ CIVIL MISCELLANEOUS APPEAL NO: 2281/2017
% 30.08.2024
Between:
Shriram General Insurance Co. Ltd.,
...APPELLANT
And
Gurram Naga Raju And 2 Others and Others
...RESPONDENT(S)
Counsel for the Appellant: Smt. A.Jayanthi
Counsel for the Respondent(S): Sri Siva Prasad Katakamsetty
< Gist :
> Head Note:
? Cases Referred:
1
(2011) 1 SCC 343
2
(2023) ACJ 595
3
(2011) 1 SCC 343
4
2022 Livelaw (SC) 1017
5
(2020) 4 SCC 413
6
2022 Livelaw (SC) 330
7
2022 Livelaw (SC) 569
8
2022 Livelaw (SC) 892
9
(2021) 6 SCC 188
10
(2021) 2 SCC 166
11
2023 LiveLaw (AP) 41
2
APHC010117862017
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3470]
(Special Original Jurisdiction)
FRIDAY ,THE THIRTIETH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO:
2281/2017
Between:
Shriram General Insurance Co. Ltd., ...APPELLANT
AND
Gurram Naga Raju And 2 Others and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. A JAYANTHI
Counsel for the Respondent(S):
1. SIVA PRASAD KATAKAMSETTY
The Court made the following:
3
HON'BLE SRI JUSTICE RAVI NATH TILHARI
AND
HON'BLE SRI JUSTICE NYAPATHY VIJAY
M.A.C.M.A.No.2281 of 2017
JUDGMENT:
(Per Hon'ble Sri Justice Nyapathy Vijay)
This Appeal is filed by the Insurance company questioning the
Award and Decree dated 17.11.2016 passed in M.V.O.P.No.368 of
2011 by the Motor Vehicle Accident Claims Tribunal-cum-I Additional
District Court, Guntur.
2. For the sake of convenience, the parties are hereinafter referred
to as they were arrayed before the Tribunal.
3. The brief facts so far:
Appellant is the Insurance company. The Claimant, who was
working in the Railways for the injuries received by him in a motor
accident that occurred on 18.01.2011. According to the claimant, on
18.01.2011 at about 7.30 a.m, while the claimant was coming on his
motorcycle bearing No. AP 07 AC 2888 from Vijayawada to his house,
near Manipal Hospital Centre, Tadepalli, a lorry bearing No. AP 16 W
9126 driven by respondent No.3 in a rash and negligent manner
dashed the motorcycle of the claimant. As a result, the petitioner
sustained serious injuries and his right leg was amputated almost upto
the groin area. The claimant was shifted to Nagarjuna Hospital,
Kanuru, Vijayawada. A case under section 337 I.P.C., was registered
against the driver of the lorry. At the time of accident, the claimant was
aged 45 years and his salary was Rs.26,570/-. A compensation of
Rs.30,00,000/- was sought by him.
4. Respondent No.1 is the owner of the lorry and 2nd respondent is
the insurer of the lorry. Respondent Nos.1 and 3 remained ex parte.
Respondent No.2 i.e. the Insurance company filed its usual formatted
counter denying every aspect of the claim petition.
5. In the course of examination on behalf of the claimant,
P.Ws1 to 4 were examined and Exs.A.1 to A.13 were marked.
Exs.X.1 to X.5 were also marked.
6. The Tribunal framed the following issues:
1. Whether the accident occurred due to the rash
and negligent driving of driver of Lorry bearing
No.AP-16-W-9126 and caused injuries to the
petitioner Gurram Naga Raju?
2. Whether the petitioner is entitled for
compensation, and if so, from whom and at what
rate?
3. To what relief?
7. The Tribunal, after considering the oral and documentary
evidence, held that the accident occurred due to rash and negligent
driving of the driver of the lorry and awarded an amount of
Rs.35,00,000/- towards compensation.
8. Heard Smt. A.Jayanthi, learned counsel for the appellant and
Sri Siva Prasad Katakamsetty, learned counsel for respondent No.1.
9. Scope of Appeal: There is no dispute about the manner of
accident, medical expenses incurred by claimant and extent of
amputation suffered by the claimant. The only point for consideration
in this appeal is, whether the methodology of compensation arrived at
by the Tribunal is sustainable?
10. Arguments: Learned counsel for the appellant contended that
the claimant was an employee of the South Central Railways and
there is no loss of employment and the Tribunal could not have
granted compensation under the head „loss of income‟. It was
contended that the Tribunal awarded compensation applying the
multiplier method which is applicable only in case of death.
According to the counsel for the appellant, the medical expenses
would have been reimbursed to the claimant as he is an employee of
the South Central Railways. The counsel for the appellant placed
reliance on a judgment of the Hon‟ble Supreme Court in Raj Kumar v.
Ajay Kumar and another1. It was her contention that though the
amputation of the right leg of the claimant is a fact, but that cannot be
treated as 100% disablement for claiming compensation from the
employer.
11. Learned counsel for the respondent cited judgment of Hon‟ble
Supreme Court in Hari Om Const. v. National Insurance Company
Limited and others2 wherein, the Hon‟ble Supreme Court adopted
multiplier method while awarding compensation to an individual, who
had suffered injuries. It was contended that the condition of the
claimant is such that it has to be considered in a sympathetic way and
the normal prosthetic legs could not fit the claimant due to the extent of
amputation. It was his contention that only an expensive hydraulic
knee joint carbon foot and suction joints only could be fitted to the
claimant.
12. Reasoning of the Court: The multiplier method as explained in
the judgments of the Hon‟ble Supreme Court are primarily applicable
towards loss of income that is coming under the head of pecuniary
damages. In this case, there is no loss of income per se to the
claimant as he had continued in the job at South Central Railways post
the accident also. Therefore, the compensation of Rs.26,47,512/-
(2011) 1 SCC 343
(2023) ACJ 595
awarded by the Tribunal towards loss of income by applying the
multiplier method is not correct as held by Hon‟ble Supreme Court in
the cited case Raj Kumar v. Ajay Kumar and another3.
13. The heads under which compensation can be awarded in the
cases of injuries are specified by the Hon‟ble Supreme Court in
Raj Kumar's case (1 supra) at Para 6 and the same is extracted
hereunder:
"6. The heads under which compensation
is awarded in personal injury cases are the
following: Pecuniary damages (Special
Damages) (i) Expenses relating to treatment,
hospitalization, medicines, transportation,
nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the
injured would have made had he not been
injured, comprising : (a) Loss of earning during
the period of treatment; (b) Loss of future
earnings on account of permanent disability. (iii)
Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of
marriage).
(vi) Loss of expectation of life (shortening of
normal longevity). In routine personal injury
(2011) 1 SCC 343
cases, compensation will be awarded only under
heads (i), (ii)(a) and (iv). It is only in serious
cases of injury, where there is specific medical
evidence corroborating the evidence of the
claimant, that compensation will be granted under
any of the heads (ii)(b), (iii), (v) and (vi) relating to
loss of future earnings on account of permanent
disability, future medical expenses, loss of
amenities (and/or loss of prospects of marriage)
and loss of expectation of life.
14. Coming to the pecuniary damages, the claimant would be
entitled to medical expenses. The compensation under this head
should be classified into past medical expenses and future medical
expenses.
Compensation towards Medical expenses
(a) Medical Expenses: The counsel for the appellant contended that
the medical expenses incurred by the claimant i.e. Rs.4,55,000/-,
Rs.6,350/- and Rs.7,662/- under Ex.A.7, Ex.A.8 and Ex.A.9,
respectively, could not have been granted as the employer would have
reimbursed the same. However, the claimant in the cross-examination
specifically denied making any claim for reimbursement of medical
expenses. In the face of specific denial, it was for the Insurance
company to establish the same, however, there is nothing available on
record regarding reimbursement of medical expenses incurred by the
claimant. In the absence of proof of reimbursement, this Court is
inclined to reject the plea of the counsel for the appellant on this
aspect.
(b) Future Medical Expenses: The petitioner would also be entitled to
future medical expenses as the petitioner cannot be called upon to file
recurring applications for compensation. The Orthopedic Surgeon, who
treated the claimant, was examined as P.W.2. He stated that the
claimant cannot do any work with his right hand and that the right leg
of the claimant was amputated substantially above the knee. P.W.2
stated that Jaipur artificial limbs will not be effective considering the
extent of amputation. P.W.4 is a Prosthetist working in Ottobock
HealthCare India Pvt., Ltd., Hyderabad. He stated that they had fitted
hydraulic knee joint, carbon foot and suction socket, which is a
sensitive part to the claimant and the cost of that was Rs.4,55,000/-.
The expenditure was supported by Ex.A.7.
15. The artificially fitted limbs would require changes in the lifetime
of the claimant as the longevity of prosthetics will depend on how often
the claimant wears and treats it, body changes, and activity level. The
Hon‟ble Supreme Court in Mohd.Sabeer @ Shabir Hussain v.
Regional Manager, U.P. State Road Transport Corporation4
2022 Livelaw (SC) 1017
considered life of prosthetic limb and awarded compensation so that
the claimant can buy three prosthetic limbs and maintain the same at
least till the age of 70 years. Paragraph 23 of the said Judgment is
extracted for ready reference;
"23. As per the current compensation given for the prosthetic
limb and its maintenance, it would last the Appellant for only
15 years, even if we were to assume that the limb would not
need to be replaced after a few years. The Appellant was
only 37 years at the time of the accident, and it would be
reasonable to assume that he would live till he is 70 years
old if not more. We are of the opinion that the Appellant
must be compensated so that he is able to purchase
three prosthetic limbs in his lifetime and is able to
maintain the same at least till he has reached 70 years
of age. For the Prosthetic limbs alone, the Appellant is
to be awarded compensation of Rs. 7,80,000 and for
maintenance of the same he is to be awarded an
additional Rs. 5,00,000/-."
16. In this case, there is no mention of the frequency at which the
prosthetic limb has to be changed. However, it is a matter of prudence
that the prosthetic limb of the claimant would have to be changed at
least once in his lifetime. Therefore, factoring inflation vis-a-vis the cost
incurred under Ex.A.7, this Court is inclined to grant an amount of
Rs.7,50,000/- towards prosthetic limbs alone. The future medical
expenses are assessed @ Rs.50,000/-
17. Attendant Charges: A physical frame that has been
battered and shattered cannot be restored but the compensation
given, should be in a position to help the injured to be put back in the
position he was, at least with the help of the an attendant. The right
leg of the claimant was amputated almost till groin area and he would
be requiring an attendant all-through. The methodology to be arrived at
in computing non-pecuniary damages was explained by the Hon‟ble
Supreme Court in the case of Kajal v. Jagdish Chand and others5.
In the said case, the Hon‟ble Supreme Court, while computing the non-
pecuniary damages of a young child whose disability was assessed at
100%, had opined that the attendant charges should also be on the
multiplier system rather than random payment by the Courts.
18. In the said case, the Hon‟ble Supreme Court opined that the
claimant therein required two attendants and adopted a multiplier of 18
and awarded compensation of Rs.21,60,000/- under that head.
Paragraphs 22 to 24 of the said judgment are extracted as under:
"Attendant charges
22. The attendant charges have been awarded by the
High Court @ Rs. 2,500/- per month for 44 years, which
works out to Rs. 13,20,000/-. Unfortunately, this system is not
a proper system. Multiplier system is used to balance out
various factors. When compensation is awarded in lump sum,
(2020) 4 SCC 413
various factors are taken into consideration. When
compensation is paid in lump sum, this Court has always
followed the multiplier system. The multiplier system
should be followed not only for determining the
compensation on account of loss of income but also for
determining the attendant charges etc. This system was
recognised by this Court in Gobald Motor Service Ltd. vs.
R.M.K. Veluswami, AIR 1962 SC 1. The multiplier system
factors in the inflation rate, the rate of interest payable on the
lump sum award, the longevity of the claimant and also other
issues such as the uncertainties of life. Out of all the various
alternative methods, the multiplier method has been
recognised as the most realistic and reasonable method. It
ensures better justice between the parties and thus results in
award of 'just compensation' within the meaning of the Act.
23. It would be apposite at this stage to refer to the
observation of Lord Reid in Taylor vs. O' Connor, 1971 AC
115:
"Damages to make good the loss of dependency over
a period of years must be awarded as a lump sum and that
sum is generally calculated by applying a multiplier to the
amount of one year's dependency. That is a perfectly good
method in the ordinary case but it conceals the fact that there
are two quite separate matters involved, the present value of
the series of future payments, and the discounting of that
present value to allow for the fact that for one reason or
another the person receiving the damages might never have
enjoyed the whole of the benefit of the dependency. It is quite
unnecessary in the ordinary case to deal with these matters
separately. Judges and counsel have a wealth of experience
which is an adequate guide to the selection of the multiplier
and any expert evidence is rightly discouraged. But in a case
where the facts are special, I think that these matters must
have separate consideration if even rough justice is to be
done and expert evidence may be valuable or even almost
essential. The special factor in the present case is the
incidence of Income Tax and, it may be, surtax."
24. This Court has reaffirmed the multiplier method in
various cases like Municipal Corporation of Delhi v.
Subhagwanti and Ors., 1966 ACJ 57, U.P. State Road
Transport Corporation and Ors. vs. Trilok Chandra and Ors.,
(1996) 4 SCC 362, Sandeep Khanduja vs. Atul Dande and
Ors, (2017) 3 SCC 351. This Court has also recognised that
Schedule II of the Act can be used as a guide for the
multiplier to be applied in each case. Keeping the claimant's
age in mind, the multiplier in this case should be 18 as
opposed to 44 taken by the High Court.
19. The above judgment of the Hon‟ble Supreme Court was followed
in a series of judgments of recent origin viz., Master Ayush v. The
Branch Manager, Reliance General Insurance Co. Ltd., & another6,
Abhimanyu Partap Singh v. Namita Sekhon & another7 and Divya
v. The National Insurance Co. Ltd., & Another8.
20. Applying the said principle to the facts of this case, the extent of
amputation of the right leg of the claimant has to be treated as 100%
as the right leg was amputated almost up to the groin area. The
2022 Livelaw (SC) 330
2022 Livelaw (SC) 569
2022 Livelaw (SC) 892
claimant would be requiring at least two attendants all through to
attend the daily works for the rest of his life. The minimum wages for
domestic workers as per G.O.Ms No.60 dated 01.11.2011 issued
under Minimum Wages Act, 1948 is Rs.4,521/- for 8 hours. In the
opinion of this Court, taking into consideration future attendant wages,
this Court fixes average monthly attendant charges at the rate of
Rs.5,000/- and adopts a multiplier of 14 as the claimant was aged
about 45 years at the time of accident. The claimant‟s entitlement of
compensation under this head, is as under:
Rs.5,000 x 12 x 14 x 2 = Rs.16,80,000/-
21. Conveyance charges: Coming to the conveyance charges,
this Court is of the opinion that the principle of multiplier method would
have to be adopted even while computing the conveyance charges to
the claimant. Though, the claimant has a job in the South Central
Railways, he cannot attend office on his own nor is he in a position to
attend the Office by availing any public transport. Conveyance
charges do not come under the salary given to the claimant and
therefore, this Court is of the opinion that the conveyance charges
have to be provided to the claimant by adopting the same multiplier.
The entitlement of compensation to the claimant under this head is as
under:
Rs.5,000/- x 12 x 14 = Rs.8,40,000/-
22. Pain, suffering and loss of amenities: The determination of
damages towards this head is not easy and there is no accepted
methodology in giving compensation under this head. While awarding
compensation under this head, the physical disability alone is not the
criteria, but the psychological impact caused by amputation on the life
of the claimant should also be factored in.
23. The amputation to the claimant and persons similarly situated is
medically acknowledged, in various journals as leading to depression,
anxiety, loss of self-esteem and eventually to isolation from the social
life. With advancing age, these problems would only become more
acute. The normal joys of life like going to a movie, restaurant, travel,
a stroll in the park or bazaar etc., with his family and friends are difficult
to enjoy and a concentrated effort has to be made by people around
the claimant in spending a normal evening like others.
24. This reduced quality of life and emotional distress have a
traumatic impact on the quality of life of the individual. Therefore, this
Court is inclined to grant an amount of Rs.7,50,000/- towards pain,
physical and psychological suffering and loss of amenities. Though no
material compensation can negate the trauma of the claimant, the law
only knows the language of monetary compensation.
25. The Revised Compensation: Therefore, the revised
compensation payable to the claimant is as under:
(1) Attendant charges : Rs.5,000/- x 12 x 14 x 2 = Rs.16,80,000/-
(2) Conveyance charges: Rs.6,000/- x 12 x 14 = Rs.8,40,000/--
(3) Pain suffering and loss of amenities: = Rs.7,50,000/-
(4) Medical Expenses : Rs. 4,55,000/-+Rs 6,350+Rs 7,662/-
=Rs.4,69,012/-
(5) Future Medical treatment : Rs.8,00,000/-
(6) Miscellaneous expenses Rs 1,00,000/-
Total : Rs.46,39,012/-
26. Interest: The interest @ 9% awarded by the Tribunal is fair
and is supported by the Judgments of Hon‟ble Supreme Court in
Rahul Sharma & Another v. National Insurance Company
Limited and others9 and Kirthi and another v. Oriental
Insurance Company Limited10 on this aspect.
27. The revised compensation is higher than the compensation
awarded by the Tribunal. A coordinate Division Bench of this Court in
the case of National Insurance Company Ltd v.
E.Susheelamma11 held that grant of "just compensation" is an
(2021) 6 SCC 188
(2021) 2 SCC 166
2023 LiveLaw (AP) 41
obligation on the Courts considering the scheme of the Act and
compensation can be enhanced even in the appeal filed by the
Insurance company. Following the same, the compensation in the
present case is enhanced as indicated above.
28. Result: The appeal is disposed of enhancing the
compensation awarded by the Tribunal to the extent indicated
above. The Insurance company shall deposit the balance amount
within a period of one month from today before the Tribunal and the
claimant is entitled to withdraw the amount. No order as to costs.
As a sequel, the miscellaneous petitions, if any, shall stand closed.
____________________
RAVI NATH TILHARI, J
__________________
NYAPATHY VIJAY, J
Date: .08.2024
Note: L.R.Copy be marked
KLP
