Madras High Court
Minor K.Sangavi vs A.Balasubramani on 28 April, 2021
C.M.A.No.3098 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.M.A.No.3098 of 2011
Minor K.Sangavi
rep. by his father Karuppusamy
16/69, Palapalayam,
Ingur Post, Perundurai Taluk,
Erode District ... Appellant
Versus
1.A.Balasubramani
2.The New India Assurance Co-Ltd.,
V.R.V.Complex,
1st Floor, Bhavani Main Road,
Perundurai – 638 052 ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the judgment and decree dated 26.11.2011 made in
M.C.O.P.No.177 of 2009 on the file of the Motor Accident Claims Tribunal
/ Additional District and Sessions Court / Fast Track Court No.1, Erode
(transferred from District Court, Erode).
For Appellant : Mr.N.Manokaran
Page 1 of 18
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C.M.A.No.3098 of 2011
For Respondents
For R2 : Mr.M.Krishnamoorthy
R1 : notice served
JUDGMENT
This appeal has been laid as against the judgment and decree dated
26.11.2011 made in M.C.O.P.No.177 of 2009 on the file of the Motor
Accident Claims Tribunal / Additional District and Sessions Court / Fast
Track Court No.1, Erode, thereby awarded the compensation to the tune of
Rs.7,13,200/-.
2. For the sake of convenience, the parties are referred to
hereunder according to their litigative status before the Tribunal.
3. The case of the claimants is that on 11.07.2008 when the
claimant was travelling as a pillion rider, the motorcycle was driven by her
father on Perundurai to Chennimalai Road near Arasankuttai in front of
LNK Nagar from north to south on the left hand side of the road, a car
which was coming from south to north in a rash and negligent manner
driven by the first respondent came to wrong side of the road and hit against
the motorcycle. Due to which, the claimant as well as her father sustained
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C.M.A.No.3098 of 2011
grievous injuries. As far as the claimant is concerned, she sustained crush
injury on her right leg and also injuries on all over the body. Due to the said
accident, her right leg was amputated above the knee level. At the time of
accident, she was aged about only eight years. Hence, the claimant filed
claim petition seeking compensation at Rs.20,00,000/-.
4. Resisting the same, the second respondent filed counter stating
that the accident was not took place on the rash and negligent driving of the
first respondent and only because of the rash and negligent driving of the
vehicle which was travelled by the claimant, the accident took place. Even
at the worst, the contributory negligence only can be fixed as against the
second respondent and the compensation claimed by the claimant is also
exorbitant and as such the claim petition is liable to be dismissed. The
second respondent also disputed the injuries sustained by the claimant as
well as the licence of the rider of the motorcycle.
5. On the side of the claimant, examined P.W.1 to P.W.3 and
marked Ex.P.1 to Ex.P.17. On the side of the respondents, neither oral nor
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C.M.A.No.3098 of 2011
documentary evidence was let in. Court documents were marked as Ex.C1
to Ex.C3. On the basis of the evidence available on records and also
considering the submissions made by the learned counsel appearing on
either side, the Tribunal fastened entire negligence on the first respondent
and awarded compensation at Rs.7,13,200/- payable by the respondents
jointly and severally. Aggrieved by the same, the claimant came forward
with the present appeal for enhancement of the award amount.
6. The learned counsel appearing for the appellant submitted that
the claimant was aged about eight years at the time of accident and she lost
her right leg above the knee level. Therefore, the Tribunal failed to consider
her marital prospects and also awarded very meager amount under head of
Pain, agony and trauma. The Tribunal also failed to award any
compensation under the head of loss of expectation of life and attenders
charges. In support of his contention, he cited the judgment of the Hon'ble
Division Bench of this Court in the case of The Oriental Insurance
Company Limited Vs. Minor Soundarya rep. by guardian K.Nagaraj and
others reported in CDJ 2018 MHC 8204.
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C.M.A.No.3098 of 2011
7. Per contra, the learned counsel appearing for the second
respondent submitted that the judgment cited by the claimant is not
applicable to the case on hand, since the Hon'ble Division Bench of this
Court held on the basis of judgment rendered by the Hon'ble Apex Court of
India, in which the claimant was aged about 16 to 21 years at the time of
accident. Whereas in the case on hand, the claimant was eight years old at
the time of accident and as such the judgment cited by the learned counsel
for the claimant is not applicable to the case on hand. He further submitted
that the accident took place in the year 2008. Therefore, the claimant would
be entitled for interest, even double the amount of compensation.
8. Heard Mr.N.Manokaran, learned counsel appearing for the
appellant and Mr.M.Krishnamoorthy, learned counsel appearing for the
second respondent herein.
9. The claimant while she was traveling along with her father on
11.07.2008, the first respondent had driven the car in a rash and negligent
manner and hit against the motorcycle and caused accident. In the accident,
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C.M.A.No.3098 of 2011
the claimant and her father sustained grievous injuries all over the body. The
claimant also had fracture in her right leg. The right leg was amputated
above the knee level. Immediately after the accident, she was taken to
KMCH, Perundurai and thereafter she was shifted to Ganga Hospital,
Coimbatore. She had taken treatment for one month and she had undergone
surgery, thereby her right leg was amputated above her knee level. The
Tribunal considered claim and fixed her notional income at Rs.15,000/- per
year and applied multiplier method awarding a sum of Rs.2,25,000/- per
year. The Tribunal awarded a sum of Rs.75,000/- under the head of pain and
sufferings and awarded Rs.75,000/- for low standard of living. A sum of
Rs.25,000/- was awarded under the head of nourishment and also awarded
medical expenditure. In respect of future medical expenses, the Tribunal
awarded a sum of Rs.1,30,000/- and a sum of Rs.5,000/- for transport
expenses.
10. The learned counsel for the claimant cited the judgment in the
case of The Oriental Insurance Company Limited Vs. Minor Soundarya
rep. by guardian K.Nagaraj and others reported in CDJ 2018 MHC 8204,
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C.M.A.No.3098 of 2011
the relevant portion of which is extracted hereunder:
10. As rightly pointed out by Mr.M.Lokesh, learned counsel
for the claimant, though 85% disability has been fixed, "Loss of
earning power" is absolute. The said contention has to be accepted
since, even as a grown up lady, in future, the victim girl would not be
in a position to work hard and earn and probably, she may not get
any job also. Following the judgment rendered
http://www.judis.nic.in in Velusamy V. United India Insurance
Company Limited reported in 2005 1 CTC Pg. 38, this case requires
application of multiplier method, which the Tribunal failed to do.
11. In that event, i.e, as this Court is inclined to adopt
multiplier method, the determination of notional income has become
necessary. In the judgment of the Honourable Apex Court in V.
Mekala V. M. Malathi & another reported in 2014 (2) TN MAC 6
(SC), relied upon by Mr.M. Lokesh, learned counsel for the claimant,
a 16year old 11th standard student suffered 70% disability. Though
this Court fixed Rs.6000/- as notional income, the same was
enhanced to Rs.15,000/- per month by the Honourable Apex Court.
The said amount was determined taking into consideration, the
brilliant academic performance of the student and her family
background. Therefore, in the instant case, instead of determining the
notional income at Rs.15,000/- per month, as per the aforesaid
judgment, this Court is inclined to determine the notional income of
the victim girl in this case as Rs.10,000/- per month. Since the
notional income of the victim girl is fixed only at Rs.10,000/- per
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C.M.A.No.3098 of 2011
month, this Court has to award "Future Prospects", at 40%. Along
with 40% of the income fixed towards "Future Prospects", the total
income would be Rs.14,000/- (Rs.10,000 + 40% (Rs.10,000/-)).
Though disability is 85%, the loss of earning capacity is absolute.
Therefore, taking Rs.14,000/- as the notional
http://www.judis.nic.in income per month and applying multiplier 18
as per the age of the injured, namely, 8 years, "Loss of Income due to
disability" is derived as hereunder:
Loss of Income due to disability :: Rs.14,000 x 12 x 18 ::
Rs.30,24,000/-
12. The Honourable Apex Court in Ankur Kapur V. Oriental
Insurance Company Limited (2018 1 SCC 136) awarded a sum of
Rs.3 lakhs each towards "Pain, Agony and Trauma", "Loss of
Amenities" and "Loss of Expectation of Life" for a 22 year old man.
When that is the position, in respect of a 22 year old adult, the pain
and suffering undergone by the victim girl in the case on hand during
surgery to amputate the leg and post-operative trauma and suffering
undergone by her would have been even more. In M.Premkumar V.
M. Palaniappan and another reported in 2017 (1) TN MAC 427, this
Court has dealt with a case of amputation upto thigh level and a
reference to Paragraph Nos. 4.3 to 4.9 of the said judgment would
give an insight as to what would be the extent of "pain" in cases of
amputation. The relevant paragraphs reads as follows:
"4.3 Therefore, it is necessary to consider what is the "Pain"
in case of persons who suffer amputation.
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C.M.A.No.3098 of 2011
4.4 Amputation of a body part, whether as a result of trauma
or surgical intervention, is almost always associated with awareness
of, and http://www.judis.nic.in sensations referred to, the missing
body part. These sensations were first noted by Ambroise Pare, a
French Military Surgeon in the middle of the 16th century. Mitchel
first used the term 'Phantom' in 1871 from his observations and
Medical Studies of the American Civil War. 4.5 Three phenoma occur
after amputation – (i) Phantom Sensation,(ii) Stump Pain and (iii)
Phantom Pain.
Phantom Sensation 4.6 The term 'Phantom Sensation'
describes any sensation that is experienced in the absent part
excluding pain. Its incidence is very high, with virtually all amputees
describing phantom limb sensations. A variety of sensations can be
felt, including the perception that the missing limb is still present and
paresthesis occurring in the amputated limb. The phenomenon of
telescoping occurs when the distal part of the missing limb is felt to
recede back towards the stump. 4.7 Stump Pain that occurs
immediately after amputation is acute nociceptive pain and usually
resolves after a few weeks as the wound heals. Infection or wound
dehiscence may prolong postoperative pain in some cases.
4.8 Stump Pain can persist for much longer than the initial period of
wound healing, lasting months or years.
4.9 Further, Reports (Primary Care to be given to the
Amputees) in the Journal of Clinical Psychiatry official Journal of
the Association Medicine and Psychiatry, answers the question –
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C.M.A.No.3098 of 2011
What Does Rehabilitation After Amputation Entail, and What Can be
Done to Enhance Resilience in Patients?
http://www.judis.nic.in "Treatment after amputation involves
planning a rehabilitation regiment (even prior to the surgery),
managing the immediate postoperative period, planning for an
appropriate level of care after discharge, and educating the patient
and family to prevent complications.
A rehabilitation regimen includes upper extremity strengthening for
lower extremity amputations, tranfger training, crutch walking or
training in the use of a walker, and evaluation for equipment that
may be needed at home (including a wheelchair and a bench for
bathing safely). Prosthetic training is also given if the patient is
eligible for a porsthetic and has the energy to learn to use it. Such a
regimen needs to be tailored to the patient's motivation and capacity;
the more actiely engaged the patient can become even prior to the
surgery, the better the post-amputation prognosis he or she may
have.
Discharge planning includes a home safety evaluation by
occupational therapy and discussion with the patient and his or her
family about what the patient's living situation can accommodate. It
is important to include a discussion of the timeline of expected
discharge in this process so that the patient is mentally prepred to
leave the hospital after surgery and has activities or social contacts
planned.
Management during the immediate postoperative period
inlcudes pain management, psychological support, proper
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C.M.A.No.3098 of 2011
positioning of the residual limb (including elevation to prevent limb
edema), evaluation of the limb dressing and placement of a cast, and
inspection of sutures. The discomfort that can be associated with
wearing a ast should be explained to the patient as necessary in the
prevention of contractures, which can ultimately compromise
mobility.
Education of patients and their familities is aimed at the care
and prevention of complications; it includes attention to limb care
and inspection, limb wrapping, prosthetic care, stump care, foot care,
and emergency care and monitoring for early signs of infection.
Patient inspection of the limb is particularly important if the patient
has a prosthesis, as this should not be done if there is any possibility
of infection. Limb wrapping often needs to be done several times a
day. The prosthetic will require daily cleaning and inspection to
prevent infection and to allow for maximal use. Stump socks must be
scrupulously maintained to avoid risk to the site. Finally, preventive
foot care (often with involvement of a podiatrist), as well as learning
to recognize indications for emergency care, are important aspects
for the prevention of a http://www.judis.nic.in second amputation, for
which lower extremity unilateral amputees are at high risk.
Important ways in which the resilience of amputees can be enhanced
include building up social supports and caregiver resilience;
individual psychotherapy, psycho pharmacologic treatment, and
reinforcement of the positive coping styles; and treatment of
preexisting psychiatric disorders (which carry a poor prognosis for
post amputation survival and function)." 13.1 International Neuro
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Modulation Society has given the details regarding post amputation
pain and Phantom Limb Pain. Pain following an amputation may
develop as either Residual Limb Pain, Phantom Limb Pain or
Phantom Limb Sensation. According to the Society, (i) Residual Limb
Pain means pain or discomfort experienced in or at the stump of the
amputated limb; (ii) Phantom Limb Pain means pain or discomfort
felt to be coming from the missing limb or body part and (iii)
Phantom Limb Sensation means sensation or perception of movement
coming from the missing limb or body. Another Research Article by
Robin Bekrater and Bodmann, Michael Schredl and Herta Flor
called "Post Amputation Pain is associated with the Recall of an
Impaired Body Representation in Dreams - Results from a nation
wide survey of Limb Amputees" states that the experience of post
amputation pain such as Phantom Limb Pain (PLP) and Residual
Limb Pain (RLP) is a common consequence of limb amputation and
its presence has negative effects on a person's well-being.
http://www.judis.nic.in 13.2 The treatment for the above pains could
be challenging and should entail multi model and multi disciplinary
approach that includes oral pain medication combined with
rehabilitation therapy (i.e, bio feedback, mirror therapy, etc), the
society states. Therefore, it is clear that a person, whose limb has
been amputated is bound to suffer the pain lifelong in various forms
like Residual Limb Pain, Phantom Limb Pain and Phantom Limb
Sensation. Scientifically, it is found that it is not only loss of left leg
of claimant, but also continuous and perennial sufferance of pain in
various forms for the rest of her life and she has to be under
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C.M.A.No.3098 of 2011
medication for pain management. For the above reasons only, this
Court awards a sum of Rs. 3Lakhs towards "Pain, Agony and
Trauma" to the claimant.
14. It is very difficult for a girl or boy to get suitable alliance
when the said person is disabled, especially, when one of her legs
have been amputated. Therefore, "Marital Prospects" of the victim in
the present case would be bleak or less. Hence, this Court grants a
sum of Rs.3 lakhs towards "Loss of Amenities" including "Loss of
Marital Prospects". Similarly, towards "Loss of Expectation of Life",
Rs. 3 lakhs is awarded.
15. The claimant has to depend upon somebdoy throughout
her life and moreover, she happens to be a girl. In the judgment of
the Honourable http://www.judis.nic.in Apex Court in Kavita V.
Deepak and Others reported in 2012 (2) TN MAC 362 (SC), a sum of
Rs.6 lakhs was awarded towards "Attendant Charges" @ Rs.2000/-
per month for 25 years. In that case, the injured victim was a 30 year
old woman, who sustained 90% disability whereas in this case,
disability sustained is 85% and the age of the victim is 8 years. Even
if Rs.2000/- is fixed per month towards "Attendant Charges",
assuming that the longevity or life span of the victim girl is 70 years,
the amount to be awarded towards "Attendant Charges" would be
more. However, following the judgment of the Honourable Apex
Court in Kavita's case, stated above, a sum of Rs.6 lakhs is awarded
towards "Attendant Charges".
16. Since the claimant lost her leg, she has to be fixed with an
artificial leg for which a sum of Rs.5 lakhs was awarded by the
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C.M.A.No.3098 of 2011
Tribunal and the same is confirmed. The sum of Rs.34,500/- awarded
towards "Medical Expenses" and Rs.20,000/- awarded towards
"Attendant Charges" during treatment period is also confirmed. No
amount was awarded towards "Transportation Charges" and "Extra
Nourishment" and therefore, a sum of Rs.1 lakh is awarded towards
"Extra Nourishment" and Rs.50,000/- is awarded towards
"Transportation Charges".
Totally, the compensation payable to the 1st respondent/claimant is,
Loss of Income due to Disability :: Rs.30,24,000/-
Pain, Agony and Trauma :: Rs. 3,00,000/-
Loss of Expectation of Life :: Rs. 3,00,000/-
Loss of Marital Prospects :: Rs. 3,00,000/-
Attendant charges for life :: Rs. 6,00,000/-
Attendant charges during
treatment :: Rs. 20,000/-
Towards Artificial Leg :: Rs. 5,00,000/-
Medical Expenses :: Rs. 34,500/-
Transportation Charges :: Rs. 50,000/-
Extra Nourishment :: Rs. 1,00,000/-
Total :: Rs.52,28,500/-
Rounded off to :: Rs.52,25,000/-
The Hon'ble Division Bench of this Court cited various judgments of the
Hon'ble Apex Court of India and awarded for the injuries. For amputation of
leg at the age of eight years awarded a sum of Rs.3,00,000/- under the head
of pain, agony and trauma. A sum of Rs.3,00,000/- was awarded under the
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C.M.A.No.3098 of 2011
head of loss of expectation of life and Rs.3,00,000/- for loss of marital
prospects. This Court also fixed monthly salary at Rs.10,000/- with 40%
future prospects. Further, as far as the disability is concerned, the claimant
marked Ex.P.13 issued by P.W.2 at 75%.
11. Considering the above judgment, this Court is inclined to take
monthly income at Rs.3,000/- per month with 40% future prospects for the
75% of her permanent disability. Accordingly, loss of income is calculated
as follows:
= 3000 + 40% FP = 4200-25% i.e. 1050 = 3150
= 3150x12x15 = 567000
12. Accordingly the compensation awarded by the Tribunal stands
modified as under :-
Sl. Head Amount awarded by Amount awarded
No. the Tribunal by this Court
1 Loss of income due to Rs.2,25,000/- Rs.5,67,000/-
permanent disability
2 Pain, agony and trauma Rs.75,000/- Rs.1,50,000/-
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C.M.A.No.3098 of 2011
Sl. Head Amount awarded by Amount awarded
No. the Tribunal by this Court
3 Loss of expectation of Rs.1,50,000/-
life
4 Loss of marital Rs.1,00,000/-
prospects
5 Attenders charges for Rs.2,00,000/-
life
6 Towards artificial leg Rs.1,30,000/- Rs.2,30,000/-
and future medical
expenses
7 Medical expenses Rs.1,78,149/- Rs.1,78,149/-
8 Transport charges Rs.5,000/- Rs.50,000/-
9 Extra nourishment Rs.25,000/- Rs.1,00,000/-
10 Low standard of living Rs.75,000/-
Total Rs.7,13,149/- Rs.17,25,149/-
rounded to Rs.7,13,200/- Rs.17,25,200/-
13. In the result the Civil Miscellaneous Appeal is partly allowed
as follows:-
(i) The award passed by the Tribunal is enhanced from Rs.7,13,200/-
to Rs.17,25,200/-.
(ii) The award amount will carry the interest at the rate of 7.5% per
annum from the date of the claim petition till the date of deposit.
(iii) The second respondent herein / insurance company is directed
to deposit the award amount, less the amount, if any, already deposited,
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C.M.A.No.3098 of 2011
along with accrued interest with costs within a period of six weeks from the
date of receipt of copy of this Judgment.
(iv) On such deposit, the appellant / claimant is permitted to
withdraw only Rs.2,00,000/- for her medical expenses by filing proper
application before the Tribunal.
(v) The remaining amount of the claimant / minor appellant is
directed to be deposited in any one of the nationalized bank till she attains
majority. The father of the claimant / minor appellant is permitted to
withdraw the accrued interest once in three months.
(vi) The appellant/claimant is not entitled to any interest for the
condoned delay (default) period, if any.
(vii) The claimant shall pay requisite Court fee before the receipt of
the copy of the judgment for the enhanced compensation.
(viii) There shall be no order as to costs.
28.04.2021
Index:Yes/No
Internet: Yes/no
Speaking/Non-speaking Order
lok
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C.M.A.No.3098 of 2011
G.K.ILANTHIRAIYAN, J.
lok
To
1.The Additional District and Sessions Judge,
Fast Track Court No.1,
Motor Accident Claims Tribunal, Erode
2.The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
C.M.A.No.3098 of 2011
28.04.2021
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