IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.10.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE G.M. AKBAR ALI Civil Miscellaneous Appeal Nos.3102 and 3103 of 2003 National Insurance Company Ltd Coimbatore ..... Appellant in both the appeals (2nd Respondent) vs 1. Paranthaman rep by father and next friend Thiru.Ganapathi 2. C. Venkatachalapathy 3. J.K. Ramaraj .... Respondents in CMA No.3102/03 (Petitioner and Respondent 1 & 3) 1.Bakkiyam 2.D. Maninathan 3. C. Venkatachalapathy 4. J.K. Ramaraj .... Respondents in CMA No.3103/03 Civil Miscellaneous Appeals filed U/Sec.173 of M.V.Act 1988 against the award and decree made in O.P.Nos.910 and 911 of 2002 dated 30.4.2003, on the file of the Motor Accident Claims Tribunal, Kancheepuram ( Subordinate Judge). For appellant : Mr.S. Arun Kumar in both the appeals For R.1 in CMA No.3102/2003 and for R1 & R2 in CMA No.3103/2003 : Mr.R. Singaravelan for Mr.V. Parivallal COMMON JUDGMENT G.M. AKBAR ALI.J., C.M.A.No.3103 of 2003 arises out of the award passed in MCOP No.911 of 2002 on the file of the Motor Accident Claims Tribunal (Subordinate Judge), Kancheepuram awarding compensation of Rs.26,00,000.00 to the parents for the death of their son https://hcservices.ecourts.gov.in/hcservices/ Narasimhan in a road accident. 2. C.M.A.No.3102 of 2003 arises out of the award passed in MCOP No.910 of 2002 on the file of Motor Accident Claims Tribunal (Subordinate Judge), Kancheepuram awarding compensation of Rs.25,02,320.00 for the injuries sustained by the 1st respondent/claimant. Since both the appeals arise out of common award and points for determination are one and the same, both the appeals were heard together and shall stand disposed of by this common judgment. 3. On 21.4.1995, at 10.20 p.m, in Thiruvengadasami Road, Coimbatore Town, the injured claimant G.G. Paranthaman and another person by name Prabhuram were travelling in their car. The car was driven by the deceased Narasimhan. When the car was proceeding in Thiruvengadasami road, a lorry bearing Registration No.TN 27 J 5757, belonging to C. Venkatachalapathy, the 3rd respondent, was driven in a rash and negligent manner, came in a high speed and hit against the car. After hitting the car, the lorry dragged the car for some distance and stopped on the road. Narasimhan, who was driving the car, sustained grievous injuries on the forehead, chest and right shoulder, right leg and was profusely bleeding. He became unconscious,. Immediately he was taken to Ramakrishna Hospital at Coimbatore and inspite of medical treatment, Narasimhan succumbed to injuries. The claimant in M.C.O.P.No.2103/2003, Paranthaman sustained head injuries, on the fore head, right shoulder, right leg. He was also in coma stage. 4. Alleging that the accident was due to the rash and negligent driving of the lorry driver, one of the occupants of the car Prabhuram, lodged a complaint at Coimbatore West Police Station and F.I.R was registered in Cr.No.107 of 1995 for offence under Sections 279, 337, 338 and 304-A IPC against the lorry driver. The deceased Narasimhan was a student as well as sportsman. Alleging that the accident was due to rash and negligent driving of the lorry driver, parents of Narasimhan filed MCOP No.911 of 2002 claiming compensation of Rs.30,00,000.00 5. The case of injured claimant Paranthaman is that he sustained grievous injuries and that he became unconscious and he had taken treatment for more than 36 days as in-patient in Ramakrishna Hospital, Coimbatore. Paranthaman was also a second year B.Com student at the time of accident. Alleging that he has sustained 100% disability, the injured claimant had claimed compensation of Rs.30,00,000.00. 6. In MCOP No.911 of 2002, Maninadhan, second claimant-father of the deceased, was examined as P.W.1 and Prabhuram as P.W.3 Shanmugam, auditor was examined as P.W.2. Exs.P.1 to P.34 were marked. No oral and documentary evidence were adduced on the side of the respondents. 7. Upon consideration of oral and documentary evidence, the Tribunal held that the accident was due to rash and negligent https://hcservices.ecourts.gov.in/hcservices/ driving of the lorry driver. Taking the monthly income of the deceased at Rs.20,000.00 and annual income at Rs.2,40,000/- and deducting one third for personal expenses, Tribunal has taken the loss of dependency at Rs.1,60,000/-. Adopting the multiplier 16 the Tribunal has fixed the loss of income at Rs.25,60,000/- and awarded further compensation under the following heads: Funeral expenses .... Rs.50,000.00 Loss of love and affection .... Rs.30,000.00 Medical and Transport .... Rs. 5,000.00 charges The Tribunal has awarded total compensation of Rs.26,00,000.00 8. In MCOP No.910 of 2002, P.W.1 – father of the claimant, P.W.2- Chartered Accountant consultant were examined on behalf of the claimant. Eyewitness Prabhuram was examined as P.W.3. Dr.T.S. Kalkura, Dentist and Dr.S. Gopalan, Neurologist were examined as P.Ws.4 and 5. Based on the evidence, the Tribunal has taken disability at 100% and Tribunal has awarded Rs.25,02,320.00 under various heads, which is as under: Loss of income 16 x 1,00,000 ..... Rs.16,00,000.00 Transport Expenses to hospital ..... Rs. 5,000.00 Hospital Expenses .... Rs. 1,02,320.00 Future Medical expenses ..... Rs. 3,00,000.00 Loss of matrimonial life ..... Rs. 50,000.00 Mental agony ..... Rs. 1,20,000.00 Pain and suffering .... Rs. 1,20,000.00 Permanent disability ... Rs. 2,00,000.00 ___________ Rs.25,02,320.00 ___________ 9. The Tribunal in its separate awards dated 30.4.2003 directed the Insurance Company to pay the above said Compensation with interest at the rate of 9%. Challenging the liability and also the quantum, the Insurance Company is before this Court as appellant. 10. Mr.S. Arun Kumar, learned counsel for the appellant Insurance Company has not much pressed on the point of negligence and liability. The evidence would go to show that the negligence is only on the part of the driver of the lorry and not on the part of the deceased who was driving his car. Therefore, the Statutory liability is on the appellant to satisfy the compensation. 11. However, the learned counsel for the appellant vehemently opposed the award of Rs.26,00,000/- as compensation in the fatal case and another sum of Rs.25,02,320.00 as compensation in the case of injury. Therefore, the point for consideration arises in both the appeals is whether the compensation awarded by the Tribunal is just and reasonable? 12. In C.M.A.No.3102 of 2003, the claimant G.G. Paranthaman, represented by his father and next friend G.G. Ganapathy had https://hcservices.ecourts.gov.in/hcservices/ sustained grievous injuries on the forehead, chest, right hand, right shoulder and has suffered sub-dural hematoma. The father of the petitioner who was examined as P.W.1 would state that the injured was doing II year B.Com in an Arts College and after the accident, he could not continue his education. A Dentist and Neurologist were also examined to prove the disability of the injured and the disability was assessed as 100%. The Tribunal had also accepted the assessment. P.W.1 has also produced the accounts for the Company named M/s Gramani Govindaraj Mudaliar and Co, a lungi merchant and the Tribunal had fixed the loss of income of the injured as Rs.1,00,000/-p.a and had adopted multiplier theory. 13. Mr.S. Arun Kumar, the learned counsel for the appellant Insurance Company would draw our attention to the injury sustained by the respondent. The learned counsel pointed out that the doctor who treated the injured was not examined by the Tribunal. The learned counsel further pointed out that P.W.5 is only a general Surgeon and he has assessed Neurological disability at 90% which cannot be accepted. He has also pointed out that when the Dentist (P.W.4) had assessed 40% disability, the Court had assumed 100% disability. The learned counsel relied on a decision reported in 1998 (8) SC 401 (State of Himachal Pradesh vs Jai Lal and Ors), wherein , the Supreme Court has held as follows: "13. An expert witness, is one who has made the subject upon which he speaks a matter of particular study, practice, or observation; and he must have a special knowledge of the subject". "17. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the Court has to form an opinion upon a point of foreign law or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identify of handwriting or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject". 14. Mr.R. Singaravelan, learned counsel for the respondent submitted that the claimant had suffered head injury and has lost his vision and there is neurological impairment due to head injury. He also pointed out that the doctors have examined and assessed the disability and the Tribunal was in right in assessing the disability at 100%. https://hcservices.ecourts.gov.in/hcservices/ 15. The learned counsel also relied on a decision reported in 2009 (6) SCC 121 ( Sarla Verma (Smt) and Ors vs Delhi Transport Corporation and Another, in which, the Apex Court has laid down various guidelines for computing the compensation. Now let us consider the case of the injury and the just and reasonable compensation. 16. Injury and assessment of disability The claimant has suffered head injury. Ex.P.2 is the discharge summary given by the Department of Neuro Science, Sri Ramakrishna Hospital, Coimbatore. He has been admitted in the hospital on 22.4.1995 and discharged on 27.5.95. He was diagnosed for head injury, acute sub-dural hematoma, multiple contusions and post traumatic psychosis. As per this record, he was in coma and on ventilation. However, the condition on discharge would show that he was conscious but disoriented and he was walking without any support. The Neuro Physician who had treated the claimant has not given disability certificate. Ex.P.3, wound certificate, given by the same hospital, would show that he has sustained grievous injuries. Ex.P.19 is a certificate dated 30.5.2001 issued by a Neuro Surgeon. It is stated that the claimant has memory defect at present. Ex.P.50 is a disability certificate issued by P.W.5. He has assessed the disability at 90%. Ex.49 is a disability certificate issued by Dental Surgeon, who had assessed the disability at 40%. 17. The Tribunal had fixed the disability at 100%.In our considered view the disability fixed by the Tribunal at 100% is not sustainable. The person who has treated the claimant was not examined. P.W.5. in his cross-examination would admit that he is not a Neuro Specialist . According to the discharge summary, the claimant was conscious and was walking without any support. The disability is related to disorientation and memory loss. P.W.5, in his cross-examination would admit that he had assessed disability at 30% for neurological disorder, 25% for memory loss and 15% for head ache and 20% for vision impairment. 18. The Dentist had assessed 40% for loss of teeth and speech impairment. However, taking into consideration of neurological disorder, memory loss and loss of teeth, we are of the considered view that the disability can be fixed at 75%. 19. Assessment of loss of income: The claimant was said to be a partner in a partnership firm having 40% share. He is also said to be a proprietor of one Paranthaman Lungi Company . The claimant has produced the profit and loss account for the firm and also the tax returns. These documents relate to the total profit and loss account of the firm and not by an individuals. For the proprietary company, there is no proof for separate income, however, the claimant has produced the income tax returns for the individual for the year 1994-95, 1995-96 and the total taxable income was Rs.48,060.00 and Rs.45,710.00 respectively. Therefore, the loss of income assumed by the Tribunal as Rs.1,00,000/-per annum is not sustainable. Even https://hcservices.ecourts.gov.in/hcservices/ according to the income tax returns, the claimant's income has not exceeded Rs.50,000/- p.a. Therefore, we are of the considered view that the loss of income for the injured has to be fixed at Rs.5000/-per month and Rs.60,000/-p.a. 20. Assessment of Compensation The injured was 20 years old and he was a student. Though he was a student, he was a partner in a Partnership Firm and due to the injury and disablement, his loss of income has been assessed at Rs.60,000/-p.a. The Tribunal had applied the multiplier theory. We are also on the considered view that the multiplier theory can be applied as the claimant has suffered permanent disability. Since the age of the claimant was 20 years, the correct multiplier to be applied is 18. However, the Tribunal had awarded 16,00,000/- towards loss of income and again a sum of Rs.2,00,000/-towards permanent disability which, in our considered view, is not correct. The Tribunal had also awarded a sum of Rs.1,20,000/- towards mental agony and another sum of Rs.1,20,000/-towards pain and suffering which again is replication of compensation for the same heading. The Tribunal had also awarded medical expenses of Rs.1,02,320.00 based on the medical bills, but has awarded future medical expenses of Rs.3,00,000/-, without any basis, which has to be disallowed. Therefore, the compensation is re-assessed as follows: Loss of income 5000 x 12 x 75/100 x 18 ... Rs. 8,10,000.00 Transportation ... Rs. 5,000,00 Extra Nourishment ... Rs. 5,000.00 Medical expenses ... Rs. 1,02,320.00 Pain and suffering ... Rs. 1,20,000.00 Loss of marriage prospectus. Rs. 50,000.00 ------------------ Rs.10,92,320.00 ------------------ The interest at the rate of 9%, awarded by Tribunal is maintained. 21. C.M.A.No.3103 of 2003 In the accident, one Narasimhan, aged 22 years, a II year College student lost his life. The claimants are the parents of the deceased. The deceased was said to be a partner in a partnerhsip firm and was owner of Kalyana Mandapam and a shop. There was also agricultural income. P.W.2, a chartered account was examined to speak about the income. The accounts for the year 1991 to 1996 were produced as Exs.A.31 to A.35. The annual income of the deceased was raising from Rs.40,000/- to Rs.90,000/-per year. The total income during the year 1994-95 was Rs.90,130.00. But the Tribunal had assessed the contribution to the family at Rs.1,60,000.00 per annum, We are of the considered view that the contribution has to be fixed at Rs.80,000/-p.a. Considering the age of the mother at 42 years, the multiplier would be 15. The age of the father is 50 years and therefore, the multiplier would be 13. The average of the multiplier applicable is 14. Under such circumstances, the compensation is reassessed as follows: https://hcservices.ecourts.gov.in/hcservices/ Loss of income 80,000 x 14 .... Rs. 11,20,000.00 Loss of love and affection .... Rs. 30,000.00 Funeral expenses ... Rs. 5,000,00 Transportation ... Rs. 5,000.00 --------------------- Rs. 11,60,000.00 --------------------- The interest at the rate of 9% awarded by the Tribunal is maintained. 22. In the result, the compensation awarded by the Tribunal in C.M.A.No.3102 of 2003 is reduced to Rs.10,92,320.00. Likewise, the compensation awarded by the Tribunal in C.M.A.No.3103 of 2003 is reduced to Rs.11,60,000/- and both the C.M.As are partly allowed. No costs. 23. It is submitted that in both the appeals, the appellant Insurance Company had deposited 50% of the awarded amount and the claimants were permitted to withdraw Rs.10,00,000.00 with accrued interest. Therefore, the Insurance Company is directed to deposit the balance amount with accrued interest within a period of eight weeks from the date of receipt of copy of this order and on such deposit, the claimants are permitted to withdraw the amount. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sr To 1.The Motor Accident Claims Tribunal, ( Subordinate Judge),Kancheepuram . 2.The Section Officer, VR Section, High Court,Chennai-104. +2ccs to Mr.S.Arunkumar, Advocate Sr 72860,72862 +4ccs to Mr.V.Parivallal, Advocate Sr 72846,72845 GV(CO) km/3.11. C.M.A.Nos.3102 and 3103 of 2003 https://hcservices.ecourts.gov.in/hcservices/