United India Insurance Company v. Minor R. Gracy

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 06.06.2018

CORAM

THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN AND THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY C.M.A. No. 241 of 2018 & C.M.P. No. 2630 of 2018 United India Insurance Co. Ltd., Silingi Building, No.134, Greams Road, Anna Salai, Chennai-600 006.

..Appellant/2nd Respondent Vs.

1.

Minor.R.Gracy, Minor rep by her father and Natural guardian M.Rajendran ..1st Respondent/Petitioner 2.

R.Narasiman ..2nd Respondent/1st Respondent Prayer:

Civil Miscellaneous Appeal as against the judgment and decree dated 09.03.2017 made in M.C.O.P.No.6967 of 2013 on the file of the Motor Accidents Claims Tribunal, II Court of Small Causes, Chennai.

For Appellant ::

Mr.S.Arunkumar For Respondent ::

Mr.Balaji Prasad (for R1)

J U D G M E N T

(Judgment of the Court was delivered by N. KIRUBAKARAN,J.) This Civil Miscellaneous Appeal has been preferred by the Insurance Company as against the award of Rs. 22,12,000/- as compensation for the injuries sustained by the 1st respondent/minor in the accident on 20.08.2013 when, she was riding on bicycle which was hit down by a lorry belonging to the 2nd respondent and insured with the appellant insurance company driven in a rash and negligent manner.

2. Heard Mr.S.Arun Kumar, learned counsel for the appellant and Mr.Balaji Prasad, learned counsel for the 1st respondent. 3.

The only question to be decided is with regard to the quantum of compensation.

4.

It is clear from the evidence as well as award that the 1st respondent sustained serious injuries. Immediately after the accident, she was admitted firstly in the Government Stanley Hospital, Chennai and then shifted to Kauvery Hospital, Chennai on 22.08.2013 and discharged on 31.08.2013. Wound Debridement, SSG, Wrist Spanning Ex-Fix to Left Upper Limb surgery done on 23.08.2013. Subsequently, the left hand Thumb amputation surgery done on 30.08.2013 as evident from Exs-P4, P5 and P6. Again she was also admitted in St. Isabel's Hospital on 05.09.2013 and discharged on 12.09.2013. Thereafter, surgical Left ICD/left hand external fixator was done as per Ex-P-5. Again, she was also admitted in St.Thomas Hospital on 16.09.2013 and superficial Skin Grafting was done under IVK, wound debrided, thin SSG from right thigh used to cover defect. Compression dressing was given as per Ex-P6 viz discharge summary.

5. The evidence of PW-1, the father of the minor and PW-2 doctor's evidence would undoubtedly prove the surgeries done and the disability sustained by the 1st respondent/minor. Due to injuries, her left Hand Thumb was amputated giving an ugly look to the left hand and she cannot exhibit her left hand as she is compelled to cover it with cloth. Though P.W.2 Doctor assessed the disability at 70%, the Tribunal, following the judgment in Selvaraj Vs. S Ramesh and National Insurance Company Ltd., reported in 2007(2) TN MAC Pg. 249 determined the disability at 57%, however, restricted it to 50% as functional disability. The method adopted by the Tribunal relying upon the judgment reported in 2007 (2) TN MAC Pg. 249 is sustainable and therefore, this Court confirms 50% functional disability determined by the Tribunal.

6.

As per Ex-P11, copy of the mark sheet, the age of the 1st respondent/minor is 15 years. So, the appropriate multiplier is 18, which was rightly adopted by the Tribunal.

7. The Tribunal took the notional income as Rs. 10,000/- eventhough the 1st respondent claimed a sum of Rs.30,000/-. The 1st respondent was a minor at the time of accident and no one, could expect earning of Rs.10,000/- by a minor. Therefore, Rs. 10,000/- fixed by the Tribunal is on the higher side and the same is reduced to Rs.6,500/-. The Tribunal has taken 50% towards " Future Prospects" and the same is confirmed. Eventhough this Court would usually fix 40% towards "Future Prospects", considering the age of the injured, this Court confirms 50% towards "Future Prospects". Adding 50%, the total notional income comes to Rs.9,750/- and loss of income would be Loss of Income ::

Rs.9750 x 12 x 18 x 50/100 :: Rs.10,53,000/-

Thus " loss of income" arrived at by the Tribunal, namely, Rs. 16,20,000/- is reduced to Rs.10,53,000/-

8. Rs. 2,12,150/- was awarded towards medical bills as per Ex-P-10 series and the same is confirmed. Rs.50,000/- awarded towards "Future Medical Expenses" is very low and therefore, the same is enhanced to Rs.2,00,000/-. Rs.30,000/- awarded towards attendant charges by Tribunal is confirmed. Rs.1,00,000/- alone has been given towards "Loss of Marital Prospects". The chances of a disabled girl getting married is very bleak and therefore 1,00,000/- awarded towards "Loss of Marital Prospects" is enhanced Rs.3,00,000/-. As far as "Loss of Amenities" is concerned, the Tribunal has awarded Rs.50,000/- and the same is confirmed. Towards "Disability" a sum of Rs.1,50,000/- is given separately. The sum of Rs.1,00,000/- awarded towards "pain and suffering" is very low.

Considering the age of the minor and pain and agony undergone by her at the time of accident, during treatment and also during surgery cannot be underestimated and therefore, Rs.1 lakh awarded towards "Pain and Suffering" is enhanced to Rs.2,00,000/-. The award of Rs.22,12,000 is reduced to Rs.21,95,150/-. The rate of interest awarded by the Tribunal @ 7.5% per annum remains unaltered. However, it is made clear that the amount of Rs.2 lakhs awarded "Future Medical Expenses" will not attract any interest, which means that the 1st respondent is entitled to interest only for Rs.19,95,150/-.

10. The appellant is directed to deposit the entire award amount, with interest and costs, as per the modified award passed by this Court, before the Tribunal, after deducting the amount already deposited, if any, within a period of six weeks from the date of receipt of copy of this order. On such deposit being made, the Tribunal is directed to transfer the same to the bank account of the 1st respondent/claimant, through RTGS, within a period of one week thereafter.

11.

The appeal is partly allowed, reducing the compensation of the Tribunal from Rs.22,12,000/- to Rs.21,95,150/-. No costs. Connected C.M.P. is closed.

Sd/- Assistant Registrar(CS VII) //True Copy// Sub Assistant Registrar

To

1. The II Judge, Court of Small Causes, Chennai.

2. The Section Officer, VR Section, High court, Madras +1cc to M/s.S.Arunkumar, Advocate Sr.No.35055 +1cc to M/s.G.Balaji Prasad, Advocate Sr.No.35150 NRI(CO) sm:12.7.2018 C.M.A. No. 241 of 2018