(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act 1988 against the Judgment and Decree dated 19.8.2013 made in M.A.C.T.O.P.No.914 of 2012 on the file of the Motor Accident Claims Tribunal/Court of III Small Causes, Chennai.)
1. This appeal is preferred by the claimant not satisfied with the compensation awarded by the Motor Accidents Claims Tribunal, (III Court of Small Causes), Chennai.
2. In the claim petition filed before the Tribunal, the claimant has stated that on 10.1.2012 at about 20.15 hours while he was walking along G.S.T.Road, Vandalur, Forest Check Post, a Tempo Travellor bearing Reg.No.TN-10-L-7857 which was proceeding from Guduvancheri to Tambaram, being driven by its driver in a rash and negligent manner dashed against the appellant. In the accident, the appellant sustained grievous injuries and suffered permanent disability at 50%.
3. The Tribunal, on appreciating the pleadings and evidence, awarded a total sum of Rs.1,60,000/- payable with interest at the rate of 7.5% per annum from the date of filing of the claim petition i.e. 20.1.2012 till the date of deposit. Aggrieved by the quantum of compensation awarded, the present Appeal has been preferred by the claimant/injured seeking enhancement of compensation.
4. Mr.F.Terry Chella Raja, learned counsel appearing for the appellant submits that in the accident, the appellant/claimant suffered head injury, loss of consciousness at the time of accident. As per C.T.Scan of brain, right fronto parietal intra cranial haemorrhage, acute thin subdural heamatoma, sub arachnoid haemorrhage tentorial haemorrhage, left occipital bone fracture, right temporal bone fracture, have been suffered by the claimant. As per EEG, since the injured has suffered sharp waves and spikes arising from frontal and parietal lobes 10%, he is continuously taking tablet Teggretol. In spite of it, he gets fits. He was working as a Security and earning a sum of Rs.8,000/- per month. In view of the injuries suffered by the claimant, he is unable to do his job as he was doing before. Disability Certificate issued by the Doctor, shows that if the disablement is permanent, the percentage of loss of earning capacity would result in 50%. While so, the Tribunal has only awarded a sum of Rs.1,00,000/- towards disability. It is vehemently contended by the learned counsel for the appellant that the Tribunal has not taken into account the notional monthly income of the claimant and has not added 30% towards future prospects and has not applied the multiplier method in arriving at a just and reasonable compensation. The Tribunal has also not taken into account the functional disability of the claimant. Therefore, according to the learned counsel for the claimant/appellant, the claimant was awarded lesser compensation. Hence, the present appeal seeking enhancement of compensation. In support of his contention, the learned counsel for the appellant placed reliance on the judgment of the Hon'ble Apex Court in Raj Kumar vs. Ajay Kumar and another reported in 2010 (2) TN MAC 581 (SC).
5. On the contrary, Mr.S.Dhakshnamoorthy, learned counsel appearing for the second respondent Insurance Company would submit that the Tribunal, considering the nature of injuries sustained by the claimant/appellant and taking into account the Disability Certificate wherein the Disability was fixed at 50%, awarded a sum of Rs.1,00,000/- under the head Disability and awarded various amount under other heads, which are just and reasonable compensation. Considering the pleadings and evidence, the Tribunal rightly thought that it is not a fit case for applying the multiplier method and therefore, resorted to percentage method for the disability suffered by the claimant. Therefore, there is no wrong or infirmity in the award warranting interference at the hands of this Court and the Appeal has to be dismissed.
6. I have heard both sides and perused the materials available on record.
7. On 10.1.2012 at about 20.15 hours, the claimant/appellant was walking along GST Road, Vandalur, Forest Check Post, at that time, a Tempo Taveller, bearing Reg.No.TN-10-L-7857 driven by its driver in a rash and negligent manner came at a high speed from Guduvancheri to Tambaram direction and dashed against the claimant. He was given first aid treatment in CMC Hospital in Chengalpattu and thereafter, he was rushed to Rajiv Gandhi Government General Hospital, Chennai, where he took treatment from 10.1.2012 to 16.1.2012. In the accident, he sustained multiple injuries. The injuries described in the Disability Certificate Ex.P.5 are usefully extracted hereunder:-
5. Full description of the injury and extent of the injuries:-
R.T.A. on 10.01.2012; Injury : Head Injury, Loss of Consciousness at the time of accident. GCS = E2 V2 M5; C.T.Scan brain right fronto parietal intra cranial haemorrhage, acutethin subdural heamatoma, sub arachnoid haemorrhage, tentorial haemorrhage; left occipital bone fracture, right right temporal bone fracture.
6. Treated with Inj.Cephalexin, Inj.GM, Inj.Mannitol.
7. Total or Partial solely due to result of the accident: Partial
8. How long the disability likely to continue : Parmanent
9. If the disablement is permanent, the percentage of loss of earning capacity resulting in : 505
10. Name and dates of Hospital : Government General Hospital,
11.01.2012 to 16.01.2012
11.Observation regarding the Injuries:-
(1) Post Traumatic head Ache 10% (Ruling out other common causes of head ache like sinusitis, migraine, refractory error, tension head ache) tests = percussion over sinuses frontal, maxillary, ethmoidal proved negative.
(2) Post traumatic Vertigo 10% (Tests done DIX Hall pike and calorie tests were +ve) Test = by hyper extending the neck, it was noticed of extra ocular movements, jerky similar to Nystagmus.
(3) Antiepileptic Therapy : He is continuously taking tab. Teggretol. Inspite of it, he gets fits. EEG shows sharp waves and spikes arising from frontal and parietal lobes. 10%
(4) Sensory ATAXIA (test = Romberg's test +ve Finguer-Nose test +ve finguer deviating while touching nose, straight line walking test +ve = staggering) degree one 20%
8. In view of the above injuries, though the claimant is continued in service, he may not find it suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability and may, therefore, be shifted to some other alternative post with lesser emoluments, in such an event, there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.
9. In this context, it is useful to refer to a judgment of the Hon'ble Supreme Court in Raj Kumar vs. Ajay Kumar and another reported in 2010 (2) TN MAC 581 (SC), relied on by the learned counsel for the appellant, whereinthe assessment of loss of future earnings is explained below with reference to the following illustration:
Illustration `A': The injured, a workman, was aged 30 years and earning Rs.3000/- per month at the time of accident. As per Doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows:
a) Annual income before the accident: Rs.36,000/-.
b) Loss of future earning per annum (15% of the prior annual income) : Rs. 5400/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (5400 x 17) : Rs. 91,800/-
10. In view of the above, in the present case, Dr.M.Saravana Bavanantham, formerly Assistant Professor of Surgery, Traumatology and Neuro Surgery, Government Stanley Hospital, Chennai, has deposed before the Tribunal that the injured has suffered right fronto parietal intra cranial haemorrhage, acutethin subdural heamatoma, sub arachnoid haemorrhage, tentorial haemorrhage; left occipital bone fracture, right right temporal bone fracture and he has also issued Disability Certificate, which was marked as Ex.P.5. In the light of the fact that the injured was an innocent walker walking along G.S.T.Road, Vandalur, Forest Check Post and was hit by a Tempo Travellor bearing Reg.No.TN-10-L-7857, which was driven by its driver in a rash and negligent manner proceeding from Guduvancheri to Tambaram and as a result sustained head injuries as stated above and suffered permanent disability at 50%, and applying the ratio laid down in the aforesaid judgment of the Hon'ble Apex Court, I am inclined to fix the functional disability at 20% and accordingly, it is ordered.Also, the multiplier to be adopted in this case is '13' as per the ratio laid down inSarala Varma's case.
11. As the Tribunal has failed to award any amount under the head loss of future income, I am inclined to follow the ratio laid down in the case of Syed Sadiq etc., vs. Divisional Manager, United India Insurance Co.Ltd., reported in 2014 (1) TNMAC 459 (SC), a recent judgment by the Hon'ble Supreme Court,where loss of future income has been computed based on the multiplier method. Accordingly, monthly notional income of the claimant is fixed as Rs.6,500/-. As the age of the claimant is between 40 and 50, 30% of the notional income has to be computed towards future prospects. Accordingly, the compensation towards loss of future income is arrived at Rs.2,63,640 (Rs.6,500 + 1,950 (30% of Rs.6,500) x 12 x 13 x20%) by taking the monthly income of the claimant as Rs.6,500/- plus 30% of the notional income towards future earning, applying the multiplier of '13' and multiplying with the functional disability of the claimant at 20%. I find that the compensation awarded under other heads, are just and reasonable and they are accordingly confirmed.
12. In the result, the appeal is allowed. No costs. The respondent/Transport Corporation is directed to deposit the enhanced compensation fixed by this Court i.e.Rs.2,63,640/-, with interest @ 7.5% per annum, from the date of claim petition till the date of deposit, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the claimant is permitted to withdraw the same along with interest by filing proper application before the Court below. The appellant/claimant is also directed to pay the additional court fee for the enhanced compensation as per rules.