Madras High Court
National Insurance Company Limited vs Dhanushkodi Athithan ... 1St on 28 October, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
C.M.A(MD)No.363 to 365, 479 & 480 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated 28.10.2024
CORAM:
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
and
THE HON'BLE MR JUSTICE K.K. RAMAKRISHNAN
C.M.A(MD)Nos.363 to 365, 479 and 480 of 2019
and
C.M.P.(MD).Nos.4512 to 4514 of 2019
C.M.A.(MD).No.363 of 2019:
National Insurance Company Limited
Through its Divisional Manager,
No.37.C, S.N.High Road,
Opposite to Head Post Office,
Tirunelveli.
... Appellant/ 2nd Respondent
Vs.
1.Dhanushkodi Athithan ... 1st Respondent /Petitioner
2.Madasamy ... 2nd Respondent/1st Respondent
3.Anusha Devi ... 3rd Respondent /3rd Respondent
4.Akilan ... 4th Respondent /4th Respondent
1
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PRAYER: Civil Miscellaneous Appeal has been filed under Section 173
of Motor Vehicles Act, 1988 to set aside the fair and Decreetal order made
in M.C.O.P.No.207 of 2008 dated 06.01.2018, on the file of the Motor
Accident Claims Tribunal, I Additional District and Sessions Court,
Tirunelveli.
C.M.A(MD)Nos.363 to 365, 479 and 480 of 2019:
For Appellant : Mr.Murali
in C.M.A(MD).Nos.363 to 365/2019
: Mr.G.Prabhu Rajadurai
in C.M.A(MD).Nos.479 & 480/2019
For Respondents : Mr.G.Prabhu Rajadurai for R1 to R4
in C.M.A.(MD).Nos.363 & 364/2019
: No appearance for R1 & R3
in C.M.A.(MD).No.365/2019
: Mr.J.S.Murali, for R2
in C.M.A.(MD).No.479 & 480/2019
COMMON JUDGMENT
[Judgment of the Court was made by K.K.RAMAKRISHNAN.J.]
Being aggrieved over the award passed by the Motor Accident
Claims Tribunal, I Additional District and Sessions Court, Tirunelveli, in
M.C.O.P.Nos.207, 318 and 335 of 2008, the Insurance Company has filed
these present appeals.
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2. The appellant insurance company is the second respondent in
M.C.O.P.Nos.207, 318 and 335 of 2008, on the file of the Motor Accident
Claimsd Tribunal, I Additional District and Sessions Court, Tirunelveli.
3.Facts of the Case:
3.1.The Insurance company filed the appeal challenging the award
passed in the MCOP Nos. 207 of 2008, 318 of 2008, 335 of 2008,
on the file of the 1st Additional District and Sessions Judge,
Tirunelveli/M.A.C.T. Tribunal. The claimants in each case, in the said
case also filed CMA challenging the quantum fixed by the learned trial
Judge.
3.2.The 1st Respondent before the tribunal namely Madasamy is the
owner of the Tavera Vehicle Bearing Registration No.TN-72M-9192. On
5th May 2006, his friend, namely, DhanushKodiAdithan, (former Union
Minister for Sports and Youth ) borrowed the said vehicle and the said
vehicle was allowed to be driven by his daughter, namely, Anusha Devi,
who was holding the learner driving licence. While she was driving the
vehicle with the assistance of the driver Akilan, namely the claimant in
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the M.C.O.P No.335 of 2008, on the Vayakulam Airport Road,
“Anushadevi” without properly following the instructions of the Akilan,
jammed on the brakes to avoid the collusion against the on coming tanker
lorry, due to which the said car capsized and skidded further and rolled
thrice upside down and the vehicle finally came to a halt on the southern
side of the mud portion. In the result, Indra Devi mother of the said
Anusha Devi died and the Dhanushkodi Adithan sustained severe injuries
and the driving assistant Akilan also sustained injuries. After the accident,
the FIR was registered against the said Anusha Devi and under the said
circumstances, the occupant of the vehicle DhanushkodiAdithan filed the
MCOP.No.207 of 2008 claiming the compensation of Rs.9,82,50,000/-
and also his daughter Anusha Devi, the other legal heirs filed the MCOP
number 318 of 2018 claiming compensation as a dependents of the said
Indira Devi to the tune of Rs.2,50,00,000/-. The driver Akilan also filed
the MCOP number 335 of 2008 claiming compensation of 5,00,000/-.
4. In all the three petitions, the Appellant Insurance Company filed
the counter denying the liability and also the disputing the income. In the
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counter, they specifically took a stand that the accident happened due to
the negligent driving of “Anusha Devi” and hence, she was not entitled to
claim compensation. Further, Anusha Devi had no valid permanent
licence and she was holding only the “learner licence”. Hence, the
insurance company is not liable to pay any compensation as there is a
violation of the conditions of policy. In the circumstances, they seek for
dismissal of the claim petition.
5. To prove the case, the claimants examined three witnesses on
their side and marked Exs.P1 to P.26 and on the side of the insurance
company they marked Ex.R1 to Ex.R5 and examined R.W.1 to R.W.3.
6. The learned trial judge considering the above evidence fixed the
negligence on the part of Anusha Devi and also declined to accept the
argument of the insurance counsel that the insurance company is not
liable on the ground that Anusha Devi was holding the “learner licence
only”. Challenging the same, both claimants and insurance company filed
these appeals.
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7.The learned counsel appearing for the insurance company made
the following submission:-
(i)Anusha Devi namely the claimant in the M.C.O.P.Nos. 207 of
2008 and 318 of 2008, was driving the vehicle, only with Learner’s
licence, not with a valid permanent licence. In the said circumstances,
fixing the liability on the insurance company is to be set aside. The
learned counsel for the insurance company further submitted that
Anusadevi herself caused the accident by her negligence driving and
hence the claim petition in 318 of 2008 is not legally maintainable. In the
said circumstances, he seeks for exonerating/ discharging the insurance
company from the liability.
8. The learned counsel for the claimants submitted that it is well
settled principle as per the law laid down by the Hon'ble Supreme Court
in 2004 ACJ 1 SwarnsinghVs.United Insurance Company, that the
learner licence is a valid licence and more particularly, in this case
Anusha Devi was driving the vehicle as instructed by Akilan who had the
proper licence and she was driving the vehicle only as instructed by
Akilan and hence, the plea of the insurance company to exonerate them
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from the liability is not acceptable. The learned counsel further submitted
that in the claim petition, she claimed as a dependent of Indra Devi,
namely, her mother, but the same is not a ground to disown the liability of
the insurance company relating to the other claimants. In the said
circumstances, he seeks for the dismissal of the appeals of Insurance
Company. So far as the enhancement is concerned, he made the following
submissions:
(i)DhanuskodiAthithan is a well known politician. He was elected
as M.P., at a young age for three terms and two terms as M.L.A. In the
said circumstances, his entire political career and his entire political life is
crippled and paralyzed, due to the said tragic accident. Till date he is in
immobilized condition and his day to day life has become a hell with
agonizing pain, due to the injuries sustained by him. In the said
circumstance, the learned trial Judge fixed a meager amount to him as a
loss of earning. Apart from that, before entering into politics, he was an
active legal practitioner in the legal profession. Even then, the learned
trial Judge has not taken into account the continuous successful political
career of DhanuskodiAthithan and his income has to be fixed as an
advocate having a standing in the Bar. In the said circumstance, the
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amount granted by the learned trial Judge is inadequate under the head of
the loss of income. Further the learned trial judge has not considered the
attendant charges as he is totally immobile and he has to depend on
somebody for his daily needs. Hence in this case, as per the Hon'ble
Supreme Court's judgment he must be provided with attendant charges for
entire life, by calculating multiplier method. Further his future medical
expenditure is not considered and also proper amount has not been
granted. Further, he seeks for the enhancement of the compensation in all
aspects relating to the pain and suffering, loss of comfort, loss of
immunity and future medical expenditure and also the attendant charges
by calculating in terms of multiplier method.
9. The learned counsel further submitted that so far as the
enhancement of compensation, in the case of Indiradevi is concerned, he
has produced sufficient documents that she was the partner of the gas
agency. As per the partnership she is the shareholder of 50%. For which
she has produced the income tax receipt. For that also, the learned trial
Judge only fixed a sum of Rs.30,000/- per month, which is very low,
compared with the documents. He has taken the yearly income as Rs.
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50,000/- which is very low. Hence, he seeks for the enhancement of the
amount. The learned trial Judge also failed to consider that she was
managing the entire family. Hence her loss is to be suitably compensated
to the family members.
9.1. Further the learned counsel submitted that in the case of
Akilan, even the learned trial judge has not applied the multiplier method
and also not granted sufficient amount for permanent disability. The
driver after having sustained the injury all over the body, is unable to
continue his driving profession. The learned trial Judge has not
considered the driver’s present health condition and hence the driver
deserves enhancement of compensation along considering the above
heads.
10. This Court considered the rival submissions made by the
learned counsel appearing on either side and perused the materials
available on record.
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11. In this case, from the above arguments, this Court frames the
following points for determination:
(i) whether the contention of the learned counsel for insurance
company, that Anusadevi holding the learner licence is disqualified to
drive the vehicle as per M.V.Act and consequentially insurance company
must be exonerated from making payment of compensation for the
alleged accident caused by “ Anusha Devi” is correct or not?
(ii) whether the insurance company is liable to pay the whole
compensation even in the case of Anusha Devi driving with learner
licence?
(iii)Whether the compensation granted in the M.C.O.P.No.207 of
2008, namely, in the case of DanushkodiAthithan is in accordance with
law?
(iv)Whether the compensation granted in M.C.O.P.No.318 of 2008,
namely, for the death of Indiradevi is in accordance with law?
(v)Whether the compensation granted in M.C.O.P.No 335 of 2008
without properly assessing the disability of the driver namely akilan is in
accordance with law?
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12.The issue of learner licence:
To decide the issue, this Court is duty bound to cull out the
principle laid down by the Hon'ble Supreme Court relating to the learner
licence. Apart from the provision contemplated under the Motor Vehicle
Act, 1988, as per interpretation given by the Hon'ble Supreme Court,
learner licence is a valid licence.
12.1.Further, the learner licence holder also is entitled to drive the
vehicle which was admitted by the competent person examined on the
side of the road transport authorities. The transport authority who is RW1,
appeared before this court and stated that, goFdh; Xl;Leh; chpkk;
itj;Js;s xUegh; NtW xU Xl;Leh; chpkk; itj;jpUf;Fk; egUld;
thfdj;ij Xl;bnry;yyhk; vd;why; rhpjhd;. From this it is clear that
she is entitled to drive the vehicle with the assistance of the valid licence
holder. Even as per the testimony of the insurance officer examined as
R.W.2, it was permissible and he deposed that goFdh; chpkj;jpy; ,yF
uf thfdKk; ,Urf;futhfdk; Xl;lyhk; vd;W cs;sJ. In the said
circumstances, there is no bar to drive the vehicle as instructed by the
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valid driving licence holder. In the said circumstances, there is no bar for
the said Anushadevi to drive the vehicle as instructed by Akilan. Further,
the learner licence is a valid licence.The said principle was affirmed by
the Hon'ble Three Judges Bench of the Superme Court in Swarn Singh
Vs.United India Insurance Company reported in 2004 ACJ 1. The
Hon'ble Three Member Bench of the Supreme Court has held as follows:
Paragraph No.110. (viii) If a vehicle at the time of
accident was driven by a person having a learner's licence,
the insurance companies would be liable to satisfy the
decree.
12.2.From the above law and the facts, this Court without
hesitation confirms the finding of the learned trial Judge that the learner
licence is a valid licence and the appellant company cannot escape from
the liability to pay compensation only on the ground of the said
Anusadevi was holding only learner licence. In the said circumstances,
this Court fixes the liability upon the insurance company to pay the
compensation to the claimants in M.C.O.P.Nos.207, 335 and 318 of 2008.
In view of the above finding, this Court fixes the quantum afresh by
appreciating the evidence on records.
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13. Compensation in the case of Danushkodi Athithan /
M.C.O.P.No. 207 of 2008:-
13.1. To consider his case of enhancement of compensation, it is
relevant to discuss about the injury sustained by him as a result of the
accident, treatment already undergone by him and treatment he is
undergoing and his present health condition.
13.2. PW4 is the doctor who had given treatment to him
immediately after the accident. He noted the following multiple grievous
injuries all over the all body:
13.2.1. There are number of ribs fractures on the both side.
13.2.2. There was fracture on the bone in the right upper arm.
13.2.3. There was complete fracture of pelvis.
13.2.4. There was complete fracture of both legs below the knee.
13.2.5. There was serious lower abdominal injuries internal
bleedings.
13.3. Immediately, multiple surgeries were conducted. To remove
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the blood clot in the lower abdomen, a surgery was conducted and right
hand also was amputated on the date of admission. Operation was also
conducted in the right upper arm. As a result of the injuries in the pelvis,
his kidney function was activated artificially. During the course of
medical observation, it was also found that he sustained severe head
injury and hence his left eye vision was found lost upto 40%. Initially, he
took inpatient treatment from 09.08.2006 to 23.10.2006 in the Apollo
Hospital. Thereafter he was regularly taking treatment there.
13.4. The injured with his crippled limbs appeared before the court
and deposed before the court as P.W.1. He had deposed that he sustained
severe injuries all over the body. Due to the head injuries, he lost his
vision in left eye completely and the right eye also partially affected and
he is almost blind. His both legs are broken below the knee and many
surgeries were conducted. Due to the fracture in the head, his facial bone
also is severely damaged. The ribs number 3 to 6 on the right side
fractured and punctured the lung and also caused breathing problem.
Haemorrhage also occurred because of the deep internal wound in the
lower abdomen which required operation in the stomach. His right hand,
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above the arm was amputated and he is crippled. He underwent multiple
surgeries. Till date, he is continuously on medical treatment and under
medical care. Due to the above complication, in spite of the best treatment
there is no improvement in his condition. He deposed that he can not
stand even for a short time without help of others. He can not move an
inch without help of others. He is not able to sit continuously due to the
fracture in the pelvis. He not only suffered pain and agony in the hospital,
and is undergoing constant pain and in agony everyday. He also deposed
that he is living only with the help of two helpers one for morning and
another for evening at the cost of a monthly salary of Rs.7500/- to each.
13.5. On behalf of the claimant number of witnesses were
examined to speak about his political life and his salary during the period
as minister. The witnesses also deposed that after the accident he is
unable to come out of his house and his entire political carrier is
completely in dark. The witnesses also deposed that his rise from the
small post in the congress, to the level of the minister is because of sheer
work and his down to earth attitude. If the accident had not happened, he
would have still ruled his constituency.
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13.6. PW2 is a doctor examined on the side of the claimant. He also
narrated the above injuries and treatments undergone by him and the
resultant mental agony and pain and assessed his disability to the extent
of 95%. He further stated that he lost his total vision of right eye and has
partial vision in left eye.
13.7. From the above evidence it is beyond any doubt that he
sustained injuries all over body and he is totally immobile. He lost vision
in one eye and the same is irreversible one. Due to the multiple fractures
over the legs, his legs have fused together and also become shortened. His
right hand was amputated above the arm. His pelvic bone was totally
damaged and there is fracture of the ribs on the both side, and multiple
operations were performed all over the body and his facial bone also is
totally damaged which resulted in disfigurement and his lungs is also
affected and due to the said complications, he is not even able to sit for 5
minutes and he is not able to stand even for a short time without the aid of
others. Further, he is also not able to walk even in door without help of
others. He is managing his daily life only with the help of two persons.
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13.8. Now, he is sitting at home all day idle, unable to communicate
with the outside world because of severe damage to the limbs and organs.
He leads a monotonous life without intellectual activity and hence his
cognitive function has slowed down. He is unable to participate in social
function because he feels alienated and also is under the feeling that
people themselves rejected him.
13.9.Due to the injuries and the consequential functional disability,
he has not only suffered discomfort but also undergone mental and
physical sufferings. He is unable to continue either his legal profession or
business. But he is continuously incurring medical expenses and the
attendant charges. Due to the injuries and the multiple surgeries, he has
has been under pain and agony during his hospitalization and he is still
undergoing pain and suffering .
13.10.The evidence reveals that at the time of the accident, he was
sitting MP and also the union minister for youth and affairs in sports.
Before his entry into politics in the year 1985, he was a practicing
advocate and had lucrative practice in various district courts. From 1985
onwards, he was two time MLA and MP. He was the one of the prominent
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person in the congress party apart from his personal fame in his
constituency. Therefore, his entire political career is doomed. Before
accident, he used to interact with the people daily and now he is not able
to do it as he is confined to bed. His entire life was shattered and he is
confined within four walls of the house.
13.11.In the said circumstances, it is relevant to note the following
portion observed in the judgment of the this Court reported in 2017 2
TNMAC 480:-
I woke up from the surgery minus my left and right leg(s)
With searing pain below my hip as if a powder keg
Exploded deep within my thigh, leaving nothing there
But tissues sewn together, which was more that I could bear…
The pain, so knife-like, so intense has melted with the snow And
now as spring awakens in my chair I slowly go
To the window of my bedroom and the windows of my mind
Wondering if I will be forever so confined…
—Richard Lackman
8.The above said poetics reveals the unbearable pain
every amputee has to undergo. Not only the physical pain,
but also the mental pain for having become ‘forever
confined’—this fact and thought would give perennial
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daunting and hunting pain in the mind. Even without any
poetic prop, anybody can easily empathise with the cause of
the amputees.
13.12.The Hon'ble Supreme Court, reiterated the requirement of the
Motor Vehicle Accident Tribunal and the High Courts to decide the Motor
Accident injury cases in a more sensitive way than that is usually taken in
other death cases. Some of the judgments of the Hon'ble Supreme Court
and other Courts in this regard are as follows:
Case Laws Relevant portions
Nizam's Institute of “90. At the same time we often find that a person injured in an accident
Medical Sciences
v.Prasanth S. leaves his family in greater distress vis-à-vis a family in a case of death. In
Dhananka (2009) 6 the latter case, the initial shock gives way to a feeling of resignation and
SCC 1 acceptance, and in time, compels the family to move on. The case of an
injured and disabled person is, however, more pitiable and the feeling of
hurt, helplessness, despair and often destitution enures every day. The
support that is needed by a severely handicapped person comes at an
enormous price, physical, financial and emotional, not only on the victim
but even more so on his family and attendants and the stress saps their
energy and destroys their equanimity.”
Shilaben Ashwin cases involving disability are in many respects even more tragic than cases
Kumar Rana Vs.
Bhavin K.Shah and of death, particularly where the disability is of a nature involving a lifelong
other (2020) 18 SCC condition of despair and helplessness.
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Divisional In case of personal injury the position is different from loss of property. In
Controller,
the later case there is possibility of repair or restoration. But in the case of
KSRTC v. Mahadeva
Shetty and another, personal injury, the possibility of repair or restoration is practically non-
2004 (1) TN MAC
existent.
534 (SC) Arijit
Pasayat, J.
The reason behind the above observation of the Hon'ble Supreme Court is
that the motor accident claim is one time measurement, not with recurring
cause of action as in the case of maintenance claim either for increase or
decrease. Therefore, the determination of compensation must be full,
adequate and just. The same was observed by the House of lords as early
in the year 1874 itself in the case of Phillips v. Western Railway Co.,
reported in 1874 (4) QBD 406, Field, J., while emphasizing that damages
must be full and adequate, it was held thus:
“you cannot put the plaintiff back again into his original
position, but you must bring your reasonable common sense to
bear, and you must always recollect that this is the only
occasion on which compensation can be given. The plaintiff
can never sue again for it. You have, therefore, now to give
him compensation once and for all. He has done no wrong, he
has suffered a wrong at the hands of defendants and you must
take care to give him full and fair compensation for which he
has suffered.” emphasize supplied
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13.13.The physical frame of the claimant has been shattered and
money cannot compensate what has been shattered. No amount of
compensation can restore the lost limp of the claimant. There must be
determination of the fair compensation and the same has been reiterated
by the house of Lords and the Court of appeal and our Apex Court in the
following cases:-
Armsworth v. South Easter Railway Co., reported in 1847 11 Jur.
758 at 760, it is held as follows:
“Scarcely any sum could compensate a labouring man for
the loss of a limb, yet you do not in such a case give him
enough to maintain him for life... You are not to consider the
value of existence as if you were bargaining with annuity
office.... I advise you to take a reasonable view of the case
and give what you consider fair compensation.”
In Fowler v. Grace [Fowler v. Grace, reported in (1970) 114 Sol
Jo 193 (CA)] , Edmund Davies, L.J. has said that:
‘It is the manifest duty of the Tribunal to give as perfect a
sum as was within its power. There are many losses which
cannot easily be expressed in terms of money. If a person, in
an accident, loses his sight, hearing or smelling faculty or a
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limb, value of such deprivation cannot be assessed in terms
of market value because there is no market value for the
personal asset which has been lost in the accident, and there
is no easy way of expressing its equivalent in terms of money.
…’
Lord Reid in Baker v. Willoughby [Baker v. Willoughby, reported
in 1970 AC 467 has said:
‘… A man is not compensated for the physical injury:
he is compensated for the loss which he suffers as a result of
that injury. His loss is not in having a stiff leg: it is in his
inability to lead a full life, his inability to enjoy those
amenities which depend on freedom of movement and his
inability to earn as much as he used to earn or could have
earned….’”
Lord Morris of Borth-y-Gest in Perry v. Cleaver, reported in 1969
ACJ 363 (HL, England), said “to compensate in money for pain and for
physical consequences is invariably difficult but…no other process can
be devised than that of making a monetary assessment”.
The Supreme Court held in R.D. Hattangadi v. Pest Control
(India) Pvt. Ltd. And Others, reported in (1995) 1 SCC 551:
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“Whenever any amount is determined as the compensation
payable or any injuries suffered due to the accident, the
object is to compensate such injury so far as money can
compensate, because, it is impossible to equate money with
the human suffering or personal deprivations. Money
cannot renew a broken and shattered physical frame.”
Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, reported in
(2009) 9 SCC 221 at page 282
170. Indisputably, grant of compensation involving an
accident is within the realm of law of torts. It is based on the
principle of restitutio in integrum. The said principle provides
that a person entitled to damages should, as nearly as
possible, get that sum of money which would put him in the
same position as he would have been if he had not sustained
the wrong.
In Rekha Jain v. National Insurance Co. Ltd.[Rekha
Jain v. National Insurance Co. Ltd., reported in (2013) 8 SCC 389, this
Court at paragraphs 34-35, 38-39 and 41-43, with regard to the quantum
of damages, has held as under:
“34. … ‘24. In deciding on the quantum of damages to be
paid to a person for the personal injuries suffered by him,
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the court is bound to ascertain all considerations which
will make good to the sufferer of the injuries, as far as
money can do, the loss which he has suffered as a natural
consequence of the wrong done to him.’
(1)In Nagappa v. Gurudayal Singh, reported in 2003 ACJ 12 (SC):
“(13) …it is for the Claims Tribunal to determine just
compensation from the evidence which is brought on
record despite the fact that claimant has not precisely
stated the amount of damages of compensation which he
is entitled to. If evidence on record justifies passing of
such award, the claim cannot be rejected solely on the
ground that claimant has restricted his claim…”
(2) Oriental Insurance Co. Ltd. v. Mohd. Nasir, reported in 2009
ACJ 2742 (SC):
“(27) Even if no amount is claimed, the Commissioner must
determine the amount which is found payable to the workman.
(Emphasis added)
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(3) Ningamma v. United India Insurance Co. Ltd., reported in
2009 ACJ 2020 (SC):
“(23) …it is not necessary in a proceeding under the MVA
to go by any rules of pleadings or evidence. Section 166 of
the MVA speaks about ‘just compensation’. The court's
duty being to award ‘just compensation’, it will try to
arrive at the said finding irrespective of the fact as to
whether any plea in that behalf was raised by the claimant
or not… ” (Emphasis added)
In R.D. Hattangadi v. Pest Control (India) (P) Ltd., reported in
(1995) 1 SCC 551 at page 555
“(9) Broadly speaking, while fixing an
amount of compensation payable to a victim of
an accident, the damages have to be assessed
separately as pecuniary damages and special
damages. Pecuniary damages are those which the
victim has actually incurred and which are
capable of being calculated in terms of money;
whereas non-pecuniary damages are those which
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are incapable of being assessed by arithmetical
calculations. In order to appreciate two concepts
pecuniary damages may include expenses
incurred by the claimant namely, (i) medical
attendance; (ii) loss of earning of profit up to the
date of trial; (iii) other material loss. So far as
non-pecuniary damages are concerned, they may
include : (i) damages for mental and physical
shock, pain and suffering already suffered or
likely to be suffered in future; (ii) damages to
compensate towards the loss of amenities of life
which may include a variety of matters, i.e., on
account of injury the claimant may not be able to
walk, run or sit; (iii) damages for the loss of
expectation of life, i.e., on account of injury the
normal longevity of the person concerned is
shortened; (iv) inconvenience, hardship,
discomfort, disappointment, frustration and
mental stress in life.” (Emphasis added)
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13.14. By keeping in mind above principles and considering the
nature of injuries and the permanent disability and the condition of the
claimant, this court is inclined to grant adequate and just compensation by
dwelling upon the process of the redetermination of the compensation as
a appellate court by exercising power under section 173 of the motor
vehicle act under the various heading.
14. Pain and suffering:-
14.1.The injured claimant is entitled to get reasonable amount
under the head of pain and suffering for past and future. In this case as
already discussed above, P.W.1 sustained grievous injuries all over the
body which resulted into multiple surgeries. From the evidence of the two
doctors and the evidence of the P.W.1 it is clear that number of
complicated surgeries were done and he was taking treatment in the
hospital for nearly two months and still he is taking treatment. Therefore,
extraordinary circumstances of this case demands to award for pain and
suffering for past and future. Therefore this court inclines to award
compensation of Rs. 5,00,000/- under the head of pain and suffering.
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14.2. Compensation under the head of discomfort and loss of
amenity:
P.W.1 has painfully deposed about his continuous discomfort due to
the complication of the surgeries and injuries sustained as a result of the
accident. He has developed restless leg syndrome due to the multiple
injuries caused in both legs. It is well known theory as per the medical
language phantom limb pain is a more unpleasant pain than the real limb
pain. Apart from that he is placed under the multipronged
disadvantageousness. The term “disadvantaged” relates to the injured
with the reduced mobility suffering social exclusion etc., Therefore, he is
suitably be compensated under the head of future discomfort and the
same is estimated on comparison with the injuries and the number of
operations as Rs.4,00,000/-.
14.3. Compensation under the Head of Attendant charges:
Normally, the cost of attendant is awarded only for the purpose of
taking care of the injured till he is able to look after himself. The inability
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to take care during the period of hospitalisation and post-hospitalisation
for a specified period of time is generally the norm while awarding
compensation for attendant charges. However, in exceptional case, where
the injured is in a immobile and the case like amputation, there is total
inability on the part of the injured to take care of himself for an undefined
period and in such cases, the court has to take into consideration the
necessity for award of just and reasonable compensation.
14.3.1.The injuries sustained by him and number of surgeries
undergone by him and the present physical situation demands the
attendant charges to be calculated by applying multiplier method. In this
case, P.W.1, deposed that he cannot even stand up and sit even for five
minutes and he is living with the help of two persons and he is paying Rs.
7,500/- to each person as a monthly salary. There is no contra evidence on
record. The above injuries and the surgeries and his painful life demands
the said attendants service. He lost his vision in one eye and he is living
with the partial vision of the other eye and due to the complete fracture of
pelvis and the fracture in the ribs number 3 to 9 on either side and the
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multiple fractures below the knee of both legs and the amputation of the
right hand above the arm all justified the stand of the claimant that he is
living with only help of the two attendants. He already lost his wife in the
accident and hence, there was loss of consortium. All the circumstances,
impels this Court to adopt the multiplier method by following the ratio
laid down by the Hon'ble Supreme Court:-
14.3.1.(i).In the case of Kavitha Vs. Deepak reported in 2012 ACJ
2161.
14.3.1.(ii).In the case of Sanjay Verma Vs. Haryana Roadways
reported in 2014 3 SCC 210.
14.3.1.(iii).In the case of Rajasthan SRTC Vs. Alexix Sonier
reported in 2015 17 SCC 758.
14.3.1.(iv).In the case of Kajal Vs. Jagdish Chand reported in
2020 4 SCC 413.
14.3.1.(v).In the case of Kirti Vs. Oriental Insurance Co. Ltd.,
reported in 2021 2 SCC 166.
14.3.1.(vi).In the case of Abhimanyu Partap Singh Vs. Namita
Sekhon reported in 2022 8 SCC 489.
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As per the evidence of P.W.1, he is regularly paying Rs.15,000/- to
each attendants and hence, he has been incurring Rs.30,000/- as
attendant's charges. He is aged about 56 years. He requires the said
attendants for remaining part of his life. Considering the above Hon'ble
Supreme Court's precedents, this Court inclines to calculate the attendants
charges for 20 years and fixes the monthly attendant charges as Rs.5,000/-
and determines the attendants charges of Rs.12,00,000/- [5,000 X 12 X
20]
15.Compensation under the head of loss of earning:
The doctor has deposed that P.W.1 suffered 94% permanent
disability. He also deposed that his right hand was amputed above the
arm. His both legs have grievous injuries and number of surgeries in both
legs and his both legs were performed and he is crippled. His physical
condition is that due to the injuries in the pelvis, he is immobile. His
evidence also is that he is living with aid of two attendants. Therefore,
this Court comes to the conclusion that he has lost 100% earning capacity.
As per the records, on the date of the accident, he was Union Minister and
he was active Politician from 1985 onwards.
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15.1.As per Ex.P26, and other evidence adduced on the side of the
injured, his salary and other allowance comes around Rs.22,72,667/- per
year. Even before his entry in into politics in the year 1985, he was active
practitioner in the various Courts with his bar experience of 14 years. Due
to the accidental injuries, from the above discussion of the various facts
relating to the health condition, he is not in a position either to re-enter
legal profession or earn through the business. In the said circumstances,
this Court fixes Rs.85,000/- as a monthly income of P.W.1 as against
notional income fixed by the learned Tribunal Judge of Rs.38,500/-. The
Hon'ble Supreme Court has reiterated the principle that to arrive the
monthly income of either deceased or injured to adopt a guess work and
in the event of the sufficient evidence adduced on the side of the
claimant, taking the notional income is not a correct procedure. In this
case, volumes of records have been produced to prove the monthly
income of the injured and witness also were examined and Ex.P26 and
other documents also were produced. Therefore, this Court fixes the
monthly income of the injured as Rs.85,000/-. Considering the age of
P.W.1, this Court adopts multiplier of [85000 X 12 X 9 = 91,80,000/-].
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16.Loss of income during the Treatment Period:
The learned Tribunal Judge granted only Rs.15,000/- for the loss of
monthly income during the treatment period. P.W.1 deposed that he was
the Union Minister at the time of the accident. To prove his monthly
salary and other constituency allowance, remuneration as a member of the
Parliament Standing Committee, he examined P.W.6 and all the
documents relating to the above were marked and the learned Tribunal
Judge has also considered it in paragraph No.16 and the same comes
around Rs.22,72,667/-. As per the evidence, he took treatment in the
hospital and he received the salary upto the re-election. Therefore, this
Court fixes the Loss of Income during the treatment period at the rate of
Rs.5,96,667/- for the period of 6 months and the same comes around
Rs.35,80,002/-.
17.Future Medical Expenditure:
As discussed above and also from the evidence, injured requires the
continuous medical treatment. He also has undergone multiple surgeries
with insertion of metal plates and screws. His pelvis is totally damaged.
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All the above surgeries and the injuries require continuous medical
treatment under the medical supervision. Therefore, this Court inclines to
grant Rs.5,00,000/- under the head of the future medical expenditure.
18.Compensation under the head of permanent disability:
As per the law laid down by the Hon'ble Supreme Court in
Subbulakshmi Vs. Tamil Nadu State Transport Corporation reported in
2012 10 SCC 177, there is no bar to grant compensation under the head
of the permanent disability. Therefore, this Court inclines to award 94 X
3,000 = 2,82,000/- for the permanent disability of 94% assessed by the
doctor.
19.Transport expenses:
After the accident, P.W.1 was taken to various hospitals including
the Appollo Hospital, Chennai. Therefore, the transport expenses awarded
by the learned Trial Judge needs enhancement. This Court inclines to
enhance Rs.3,000/- to Rs.1,00,000/-.
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C.M.A(MD)No.363 to 365, 479 & 480 of 2019
19.1.The object of granting compensation as rightly observed by
the Hon'ble Thiru.Justice N. Kirubakaran in the judgment in the case of
Pradeep v. P.V. Mathai, reported in (2012) 2 TN MAC 240 at page 243
Compensate-Console-Comfort”: What is the
principle to be followed in the case of Motor Vehicle
claims is “Compensate-Console-Comfort” of.
The tribunal has a duty to follow the above C3 in the case of
determination of the Motor Vehicle compensation. Object of the
compensation is based on the maxim “restitutio in
integrum”.Indisputably, grant of compensation involving an accident is
within the realm of law of torts. It is based on the principle of restitutio in
integrum. The said principle provides that a person entitled to damages
should, as nearly as possible, get that sum of money which would put him
in the same position as he would have been if he had not sustained the
wrong.
19.2.Merely because injured was Union Minister, there is no bar to
grant adequate compensation for the accidental injuries sustained by him.
Law demands equal treatment to both rich and poor. Both are entitled to
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C.M.A(MD)No.363 to 365, 479 & 480 of 2019
compensation under all the heads irrespective of status. Status is not a
ground to disown the liability of the tortfeasors and their statutory
obligation is to satisfy the decree of just compensation.
19.3.Therefore, this Court considers the case of the claimant by
applying the principle laid down in the various precedents in order to
meet the statutory requirement of granting just compensation to place the
injured in the same position as far as possible on the principle of
restitutio in integrum.
19.4.This Court made a detailed discussion under various heads
and decided to give the amount under the head of loss of income by
adopting multiplier method. Therefore, this Court need not award the
amount under the head of right hand amputation and eye impairment as
awarded by the learned trial Judge.
20.In result, considering the nature of injury, period of treatment
and the nature of disablement, more particularly the immobility of the
claimant, the necessity of help of others for the claimant in discharging
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the day-to-day activities and loss suffered by the claimant not only in his
marital life,and also a life of a vegetative state, this court is of the
considered opinion that the compensation awarded under various heads
not only requires to be restructured but appropriate enhancement also has
to be made, wherever necessary. Accordingly, this court quantifies
compensation payable under the various heads as noted below:
Sl.No. Heads Award
1 Loss of Future Income 91,80,000/-
2 Loss of Income during 38,80,002/-
the Treatment Period
3 Attendants charges 12,00,000/-
4 Permanent Disability 2,82,000/-
5 Amenity and Discomfort 4,00,000/-
6 Pain and Sufferings 5,00,000/-
7 Future Medical 5,00,000/-
Expenditure
8 Extra Nourishment 25,000/-
9 Transport Charges 1,00,000/-
Total 1,60,67,002/-
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21.Compensation in the case of the M.C.O.No.318 of 2008
To prove the income of Indiradevi document Ex.P5, Ex.P6, Ex.P7,
Ex.P8 and Ex.P9, Ex.P.10 was marked. From the record it is clear that she
was a partner in the gas agency. Further, she was successfully running the
business by acting as the partner in the said company. It is the case of the
claimant namely P.W.1, that after that her business was not successful.
21.1.Even though the said evidence of P.W.1 was confronted by
cross examination, nothing was elicited to disbelieve the same as there
was no contra evidence. From the above evidence, the income of the
deceased is fixed as 15,000/- per month. In the said circumstances, 25%
for future prospect is ordered as per Pranay Sethi case 15,000 x 25/100
=3,750/-. Then monthly income comes around Rs.18,750/- and the
multiplier of 16 is to be adopted and 1/3 is to be deducted. The total loss
of income is calculated as follows:
18,750 X 12 X 2/3 X 16 = 24,00,000/-
21.2.As per the Pranay Sethi Case, the conventional damages are
assessed. The learned Tribunal Judge has failed to give any amount under
the head of Love and affection. Therefore, this Court is inclined to award
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Rs.1,20,000/- under the head of Love and affection for three claimants.
21.3.In view of the above discussion, the amount is re-determined
as follows:
Amount Re-quantified
Heads awarded by Amount by this Status
the Tribunal Court
Loss of Income 3,44,906/- 24,00,000/- enhanced
Loss of Estate 15,000/- 15,000/- confirmed
Consortium 40,000 40,000/- confirmed
Loss of Love and Affection ---- 80,000/- awarded
[40,000 X 2]
Funeral Expenses 15,000/- 15,000/- confirmed
Total 4,14,906 25,50,000 enhanced
22.Compensation in the case of 335 of 2008:
The driver Akilan has sustained fracture over the right leg and
hand. His liability is 37%. P.W.5/doctor also was examined and said that a
plate was inserted in his right leg and also the foot. He has also
specifically stated that there is a less physical movement and he is unable
to sit and fold his leg. Considering the above evidence, the learned
Tribunal Judge granted compensation of Rs.2,34,000/- and there was no
appeal for enhancement and hence, this Court confirms the award passed
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by the learned Tribunal Judge in M.C.O.P.No.335 of 2008.
22.1.In view of the above discussion, the Civil Miscellaneous
Appeals in C.M.A.(MD).Nos.363 to 365 of 2019 are liable to be
dismissed and the appeal filed by the claimants in C.M.A.(MD).Nos.479
and 480 of 2019 are partly allowed by enhancing the compensation as
stated below:
M.C.O.P. C.M.A.(MD).No Tribunal Award This Court award
Nos.
207 of 2008 479 of 2019 45,13,080/- 1,60,67,002/-
318 of 2008 480 of 2019 4,14,906 25,50,000/-
23.Accordingly, C.M.A.(MD).Nos.363 to 365 of 2019 are
dismissed.
23.1.Accordingly, C.M.A.(MD).No.479 of 2019 is allowed in part
and the award passed in M.C.O.P.No.207 of 2008 is enhanced from
Rs.45,13,080 to Rs.1,60,67,002/- with interest of 7.5% from the date of
filing of the petition in M.C.O.P.No.207 of 2008 and the insurance
company is hereby directed to deposit the enhanced award amount along
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with the interest excluding the amount already deposited within a period
of 6 weeks from the date of receipt of a copy of this judgement. There
shall be no order as to costs.
23.2.Accordingly, C.M.A.(MD).No.480 of 2019 is allowed in part
and the award passed in M.C.O.P.No.318 of 2008 is enhanced from Rs.
4,14,906 to Rs.25,50,000/- with interest of 7.5% from the date of filing of
the petition in M.C.O.P.No.318 of 2008 and the insurance company is
hereby directed to deposit the enhanced award amount along with the
interest excluding the amount already deposited within a period of 6
weeks from the date of receipt of a copy of this judgement. As held by the
learned Tribunal Judge, the appellant No.3 is not entitled to any
compensation. Appellant No.1 has lost his wife and he sustained grievous
injuries and he is living in pitable condition and hence, he is entitled to
receive 80% of the compensation and the second and the third appellants
are entitled to get 10% each and the same is calculated as follows:
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C.M.A(MD)No.363 to 365, 479 & 480 of 2019
Sl. Claimant Amount
No.
1 Dhanushkodi Athithan 20,40,000/-
2 Dhanush Magesh 2,55,000/-
3 Dhanesh Athithan 2,55,000/-
On such deposit of the enhanced amount, the appellant Nos.1, 2 and 4 are
entitled to receive the same. There shall be no order as to costs.
Consequently, connected miscellaneous petitions in all C.M.As.,
are closed.
(V.B.S.J.,) (K.K.R.K.J.,)
28.10.2024
Index :Yes/No
Internet :Yes/No
sbn
To
1.The I Additional District and Sessions Judge,
Motor Accident Claims Tribunal, Tirunelveli.
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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C.M.A(MD)No.363 to 365, 479 & 480 of 2019
V.BHAVANI SUBBAROYAN.J.,
and
K.K. RAMAKRISHNAN.J.,
sbn
C.M.A(MD)Nos.363 to 356, 479 and 480 of 2019
and
C.M.P.(MD).Nos.4512 to 4514 of 2019
28.10.2024
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