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Impugned order
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:25.04.2012
CORAM
The Honble Mr.Justice K.Mohan Ram
And
The Honble Mr.Justice M.Duraiswamy
C.M.A.No.1242 of 2011
Balaji Aliance General Insurance Co.LtdOffice at No.25/26, Prince TowersCollege RoadChennai-14. Appellant/2nd Respondent
Vs1. P.Babu2. M.S.Dhanasekaran3. The Collector of Vellore District
Vellore-9.4. The Assistant Executive Engineer
Agricultural Engineering Division NearThanthai Periyar Government PolytechnicVellore-632 002. 2 to 4 Respondents 1, 3 and 4
respondent
Appeal filed under section 173 of the M.V.Act against
the judgment and decree dated 30.11.2010 made in
M.C.O.P.No.14 of 2009 on the file of the Motor
Accidents Claims Tribunal, Chief Judicial Magistrate
Court, Vellore.
For Appellant : Mr.S.Arun KumarFor Respondents: Mr.S.V.Karthikeyan for R-1
Mr.M.Venugopal, AGP (CS)For R-3 & 4-4N.A.For R2
JUDGMENTM.DURAISWAMY, J.
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The above appeal is filed against the award passed in
M.C.O.P.No.14 of 2009 on the file of the Motor
Accidents Claims Tribunal, Chief Judicial Magistrate
Court, Vellore.
2. Challenging the award passed by the tribunal, the
insurance company has filed the above appeal. The
first respondent was the claimant and the second
respondent. Is the owner of the Vehicle. The first
respondent filed the petition claiming the
compensation of Rs.1,00,00,000/-for the injuries
sustained by him in a motor accident.
3. The brief case of the claimant is as follows:-
(i) According to the first respondent/claimant, he was
employed as a Junior Engineer in the office of the
fourth respondent and was earning a sum of
Rs.26,481/-per month as his gross income.
(ii) On 19.5.2008, he was proceeding in his office jeep
bearing Registration No.TNF 8307 along with other
officials in connection with his official work. At about
4.40 p.m., the jeep was proceeding from east to west
on Madras-Bangalore National Highway and a Ford
Ikon Car beariong Registration No.TN 07AB 5197,
coming from behind, driven by its driver in a rash and
negligent manner dashed against the jeep on its back
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side and the claimant and others, who were sitting in
the jeep, have suffered grievous injuries. The first
respondent/claimant suffered major injuries on his hip,
neck and head. The claimant was admitted in CMC
Hospital, Vellore for medical treatment. He took
treatment as inpatient from 20.5.2008 to 11.9.2008
and he was discharged on 11.9.2008. The doctor had
noted that there was grievous injuries on his neck and
spinal cord and therefore there was impaired
sensations in all four limbs, loss of bladder, bowel
control, x-ray of C- Spines showed C-6 and C-7
Subluxaion. The doctor has opined that the claimant
has suffered 90% permanent disability.
(iii) According to the claimant, he is spending
Rs.1,000/-per week to the physiotherapist and he
could not do his normal work. According to the
claimant, he was aged 50 years at the time of
accident. Therefore, he claimed a sum of
Rs.1,00,00,000/-as compensation.
4.According to the insurance company, the accident
had occurred only due to the rash and negligent
driving of the driver of the jeep, therefore, only the
respondents 3 and 4 are liable to pay compensation.
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The appellant also disputed the age and monthly
income of the claimant.
5. Before the tribunal, on the side of the first
respondent/claimant, 4 witnesses were examined and
19 documents, Exs. P-1 to P-19 were marked and on
the side of the appellant/insurance company, one
Senthil kumar was examined as R.W.1, 4th respondent
was examined as R.W.2 and one Paulraj was examined
as R.W.3 and 2 documents, Exs.R-1 and R-2 were
marked.
6. The tribunal after taking into consideration the oral
and documentary evidences of both sides, awarded a
sum of Rs.60,92,738/-together with interest at 7.5%
per annum from the date of numbering of the petition
i.e. 23.11.2008 till the date of realization.
7. Aggrieved over the award passed by the Motor
Accident Claims Tribunal, the insurance company has
filed the above appeal.
8. Heard Mr.S.Arun Kumar, learned counsel appearing
on behalf of the appellant/insurance company and
Mr.S.V.Karthikeyan learned counsel appearing on
behalf of the first respondent/claimant.
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9. The learned counsel appearing for the
appellant/insurance company submitted that the
tribunal ought not have fixed the monthly income of
the injured as Rs.30,000/-when the claimant himself
admitted in his evidence that he was earning only
Rs.26,481/-as his gross salary and if Rs.26,480/-is
taken as his monthly salary, the award of
Rs.8,66,951/-towards pecuniary loss should be
reduced proportionately. The learned counsel also
submitted that the award of Rs.5,00,000/-each
towards pain and suffering, loss of amenities and loss
of expectation of life is on the higher side. Therefore,
the award of Rs.5,00,000/-each under these heads
have to be reduced.
10. Countering the submission made by the learned
counsel for the appellant/insurance company, learned
counsel appearing for the first respondent/claimant
submitted that the award passed by the tribunal is just
and proper and that the tribunal ought to have
awarded more amount towards extra nourishment and
transportation. The learned counsel also submitted
that the tribunal failed to award any amount towards
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future medical expenses when there was sufficient
evidence to show that the first respondent/claimant
have to undergo medical treatment in future also.
Further, the learned counsel also submitted that the
tribunal also erred in not awarding any compensation
towards attendant charges.
11. On a careful consideration of the material
available on record and the submissions made by both
the counsels, it could be seen that the injured was
aged about 53 years at the time of accident. It is not
in dispute that as per Ex.P.10, SSLC Book of the
claimant, his date of birth is 20.6.1955. It is not in
dispute that he was working as Junior Engineer in the
fourth respondent office and as per Ex.P-11, salary
certificate, his gross monthly income was Rs.26,481/-.
The tribunal fixed the monthly income of the injured at
Rs.30,000/-. There is no material to show that he was
earning Rs.30,000/-at the time of the accident. In the
absence of any evidence to that effect, the tribunal
ought not have fixed more than what has been
mentioned in Ex.P-11 salary certificate. Therefore,
taking into consideration Ex.P-11, salary certificate, we
fix the monthly income of the injured at Rs.26,481/-.
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12. The learned counsel appearing on behalf of the
appellant has not disputed the findings with regard to
negligence and liability of the insurance company. The
learned counsel made his submission only with regard
to quantum of compensation awarded by the tribunal.
Therefore, we are not going into the findings given by
the tribunal with regard to negligence and liability.
Therefore, the findings of the tribunal with regard to
the same are confirmed.
13. It is not in dispute that the first
respondent/claimant did not get salary from 28.1.2010
to 9.3.2010 i.e., for 42 days. Therefore, for the 42
days, the first respondent is entitled at the rate of
Rs.26,841/-per month i.e., a sum of Rs.37,073/-. It is
not in dispute that the first respondent/claimant
retired voluntarily from service on medical grounds on
10.3.2010. After his retirement, the first respondent
was getting a sum of Rs.9,835/-per month as his
pension. Ex.P-12 is the disability certificate issued by
the doctor. As per Ex.P-12, the first
respondent/claimant had sustained 90% total and
permanent disability. Though as per Ex.P-16, report of
the Medical Board, he has sustained 100% total
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permanent disability, the tribunal took into
consideration Ex.P-12, disability certificate issued by
the doctor and fixed the total permanent disability at
90%. We find no error in infixing 90% as total
permanent disability of the first respondent. Since the
first respondent sustained 90% total permanent
disability and also voluntarily retired from the service
due to medical grounds, the tribunal adopted
multiplier method and applied 11 as multiplier. Taking
Rs.26,481/-as monthly salary of the first respondent if
the pension amount of Rs.9,835/-is deducted, the
balance come to Rs.16,646/-. After opting for
voluntary retirement on 10.3.2010, the first
respondent had 3 years, 3 months and 20 days of
service left to attain superannuation. Therefore, for
the said period he would have earned a sum of
Rs.6,60,291/-. If this amount is added to the amount of
Rs.37,073/-, which refers to a loss of pay for 42 days,
the total comes to Rs.6,97,364/-Therefore, the total
pecuniary loss to the first respondent comes to
Rs.6,97,364/-. The award of Rs.8,66,951/-by the
tribunal for loss of income is reduced to Rs.6,97,364/-.
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14. The tribunal awarded Rs.10,000/-towards
transportation and Rs.10,000/-towards extra
nourishment. It is not in dispute that the first
respondent claimant took treatment as inpatient from
the date of accident till 11.09.2008 and again from
25.11.2008 to 11.9.2008 and again he took treatment
as inpatient from 25.11.2008 to 23.12.2008. Taking
into consideration the treatment taken by the first
respondent, we are of the view that the award of
Rs.10,000/-each towards transportation and extra
nourishment is on the lower side and the same have to
be increased. Accordingly, we enhance the award of
Rs.10,000/-towards transportation to Rs.20,000/-and
the award of Rs.10,000/-towards extra nourishment
also to Rs.20,000/-. The tribunal rightly awarded
Rs.1,000/-to damages to clothing which we confirmed.
15. As per Ex.P-9 medical bills, the first respondent
had spent a sum of Rs.1,40,787/-towards medical
expenses, which the tribunal rightly awarded. We also
confirm the award of Rs.1,40,487/-towards medical
expenses. The award of Rs.5,00,000/-each towards
pain and suffering, loss of emenities and loss of
expectation of life is very much on the higher side as
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contended by the learned counsel appearing for the
appellant. Taking into consideration the duration of
treatment undertaken by the first respondent and the
nature of injuries, we award Rs.2,00,000/-towards pain
and suffering, Rs.25,000/-towards loss of amenities
and another sum of Rs.25,000/- towards loss of
expectation of life. That apart, we also award a sum of
Rs. 75,000/- towards medical attendant charges for
the reason that the first respondent took treatment for
several months in the Hospital as inpatient. P.W.1 also
in his evidence has stated that he has been taking
medical treatment even after getting discharged from
the Hospital. Since the first respondent has sustained
90% total permanent disability and taking treatment
even after his discharge, we award a sum of Rs.
1,00,000/- towards future medical expenses.
16. Since the actual loss of income of the deceased
because of his retirement on medical grounds has
been taken into consideration and the same has been
assessed and fixed at Rs. 6,97,364/- and there is no
evidence on record to show that had the claimant not
suffered any injury and the consequential permanent
disability, he would have got some other employment
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in some private concern or he could have carried on
some other avocation and earned some more income
apart from the pension receivable by him, the
question of applying the multiplier method to assess
the pecuniary loss does not arise. Similarly, the
question of future prospects also will not arise in this
case and therefore, the tribunal is not right in applying
the multiplier method in assessing the pecuniary loss.
Therefore, the sum of Rs. 35,64,000/- awarded by the
tribunal towards loss of life (pecuniary loss) cannot be
sustained. Accordingly, the award of the said amount
of Rs. 35,64,000/- is set aside.
17. Thus, thre shall be an award for a total sum of
Rs. 13,04,151/-. The break up wise details of the
awarded amount are as follows:-
1. Loss of income (pecuniary loss) :Rs. 6, 97,364/-
2. Transportation :Rs. 20,000/-3. Extra Nourishment :Rs. 20,000/-
4. Damage to clothing :Rs.
1,000/-
5. Medical Expenses :Rs. 1, 40,787/-
6. Pain and suffering :Rs. 2, 00,000/-
7. Loss of amenities of life :Rs. 25,000/-
8. Loss of expectation of life :Rs. 25,000/-
9. Medical attendant charges :Rs 75,000/-
10. Future Medical Expenses :Rs. 1, 00,000/-
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______________________
Total : Rs.13,04,151/-
______________________
18. Out of the total sum of Rs. 13,04,151/-, the claimant is
entitled for interest at the rate of 7.5% per annum from the
date of petition on the sum of Rs. 12,04,151/- and for the
sum of Rs. 1,00,000/- awarded towards future medical
expenses, the injured claimant is not entitled to claim any
interest. If the amount awarded herein together with the
accrued interest exceeds the sum of Rs. 15,00,000/-
deposited by the appellant, the balance amount shall be
deposited by the appellant within a period of 8 weeks from
the date of receipt of copy of this judgment. If on the other
hand the amount awarded herein together with the accrued
interest is less than Rs. 15,00,000/- withdrawn by the
claimant, then the appellant is at liberty to proceed against
the respondent to recover the excess amount deposited by
it.
19. For the aforesaid reasons, the appeal is partly allowed.
No costs. Consequently, connected miscellaneous petitions
are closed.
Sd/-
Asst. Registrar
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True Copy.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
(ORDER XVI, RULE 4(1) (A))
(UNDER ARTICLE 136 OF THE CONSTITUTION OF
INDIA)
SPECIAL LEAVE PETITION (CIVIL) NO. OF 2012
(Against the judgment and final order dated 25.04.2012
passed by the High Court of Judicature at Madras in
C.M.A.No.1242 of 2011)
(WITH PRAYER FOR INTERIM RELIEF)
POSITION OF PARTIES
In the matter of In the
High Court
In this
Court
1. P.Babu
S/o.Perumal,
Pillaiyar Koil Street,
Thorapadi,
Vellore DistrictTamil Nadu
Respondent
No.1
Petitioner
Versus
1. Bajaj Alliance GeneralInsurance Co. LtdOffice at No.25/26,Prince Towers College
Road, Chennai.
Petitioner Contesting
Respondent
No.1
2. M.S.DhanasekaranNo.28, New No.67,
Respondent
No.2
Proforma
Respondent
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Kalaishetra Road,Thiruvanmaiyur,
Chennai.
No.2
3. The Collector of Vellore District,Vellore,
Tamil Nadu.
Respondent
No.3
Proforma
Respondent
No.3
4. The AssistantExecutive EngineerAgriculturalEngineering DivisionNear Thanthai PeriyarGovernmentPolytechnic Vellore,
Tamil Nadu.
Respondent
No.4
Proforma
Respondent
No.4
TO,THE HONBLE CHIEF JUSTICE OF INDIA AND HIS COMPANIONJUSTICE OF THE HONBLE SUPREME COURT OF INDIA.
THE HUMBLE PETITION OF THEPETITIONERS ABOVE-NAMED.
MOST RESPECTFULLY SHOWETH:
1. That present Special Leave Petition is being filed by
the Petitioner herein under Article 136 of the Constitution of
India against the judgment and final order dated 25.04.2012
passed by the High Court of Judicature at Madras in
C.M.A.No.1242 of 2011, whereby the Honble High Court
was pleased to Allowed the Civil Miscellaneous Appeal.
1.A The respondent No.1 herein is Bajaj Alliance General
Insurance Co. Ltd but in the impugned order it was wrongly
typed as Balaji Alliance General Insurance Co. Ltd.
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2. QUESTIONS OF LAW :
The following questions of the law arise for
consideration by this Honble Court:
2.1 WHETHER the Honble High Court proceeded on
surmises and conjecture with regard to the
paralysis of lower extremities sustained by the
petitioner is only a partial disability?
2.2 WHETHER the Honble High Court is justified in
law by allowing the appeal and modifying the
compensation amount without even following
any mathematical method since the Petitioners
is only bread wined of the family and was
rendered vegetative due to the accident, that too
when he was in serving the government ?
2.3 Whether the Honble High Court is justified in law
by allowing the Appeal filed by the Respondent
No.1 herein and modifying the compensation
amount without considering the fact that the
calculation method used by the trial court was
supported by all the evidences available on
record??
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2.4 Whether the Honble High Court is justified in law
by allowing the Appeal filed by the Respondent
No.1 herein and modifying the compensation
amount without assigning any justifiable reason
for the same while exercising its first appellate
jurisdiction?
2.5 WHETHER the Honble High Court has erred in
not considering that the petitioner is a engineer
by profession and has better and brighter
prospective after his retirement from service as
most of the multinational companies are
preferring more experienced persons to execute
their high profile projects, can such a vital factor
could be ignored while computing the future
prospective based on which the multiplier of 13
was adopted by the Ld. Trial Judge which was
brushed aside by concluding that there is no
evidence on record to show that the claimant
had not suffered any injury and the
consequential permanent disability, he would
have got some other employment in some
private concern or he would have carried on
some other avocation and earned some more
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income apart from the pension receivable by
him, the question of applying the multiplier
method to assess the pecuniary loss does not
arise?
2.6 WHETHER the Honble High Court has considered
that the petitioner was severely injured at Spinal
Cord and has to remain in bed for his entire
remaining life which is a vital factor for
commuting factors like
Pain and suffering :Rs. 2, 00,000/-
Loss of amenities of life :Rs. 25,000/-
Loss of expectation of life :Rs. 25,000/-
Medical attendant charges :Rs 75,000/-Future Medical Expenses :Rs. 1, 00,000/-
Can the High Court without any basis reduce the
damages that was awarded by the trial court
anticipating the pain and suffering which the
petitioner has endure all through his life time
and on what basis the High Court has arrived to
a conclusion that when a medical attendant has
to always attend to the petitioner for every
aspect of his life the attendant charge of Rs.
75,000/- would not be even sufficient for a year
as the charges of medical attendance have gone
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ahead by heaps and bounds over the period,
further the Future medical expenses going to
cost the petitioner a fortune as the petitioner
may suffer many more related diseases which
would occur due to his bedridden state were
these factors considered by the High Court?
2.7 WHETHER the Honble High Court has also not
considered the fact that the basis of insurance
policy is to make good the loss suffered by an
insured. In the case in hand the High Court acted
mechanically and reduced the compensation
amount without considering the existing
standard of living just before the fateful day of
the accident.
2.8 WHETHER the Honble High Court has also not
considered the clear and corroborative evidence
about the prospect of future increment of the
petitioner as the petitioner was employed as
Junior Engineer in Agriculture Dept.
2.9 WHETHER the Honble High Court has
appreciated that the medical disability is only
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90% but in terms of physical ability and
movement is concerned it is 100% impaired as
the entire backbone from neck to the bottom of
the spine is damaged and the petitioner is bed
ridden and cannot be moved without physical
help of the attendant who is required to be with
the petitioner for more than 12 hours in a day.
2.10 WHETHER the judgment of the High Court is
erroneous and liable to be set aside as it is
perverse as the conclusion was not arrived
neither on the basis of any of the medical
records of the petitioner nor on the basis of the
loss that could be sustained not only by the
petitioners immobility but the consequence on
the entire family?
2.11 WHETHER the High Court has considered the
future prospects of the deceased which was
appreciated by the Tribunal, hence it has not
committed any error by not accepting the
multiplier to arrive at the loss that is sustained
by the petitioner who is a technical person and
has better prospects after his retirement from
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the govt. service which was ignored by the High
Court?
2.12 WHETHER the Honble High Court has
appreciated that the petitioner throughout his
life has to be dependant and needs medical care
every day and the same would cost him huge
sum and the other disease that may occur due to
he being bed ridden, can such vital factors could
be ignored while commuting the loss and future
damages?
2.13 WHETHER the Honble High Court has
mechanically arrived to a conclusion without
following any of the decisions of this Honble
Court which clearly settled the issue long before
and catena of decision hold that multiplier has to
be adopted while computing the loss or damage
sustained by a person?
3. DECLARATION IN TERMS OF RULE 4(2) :
The Petitioner state that no other petition seeking
leave to appeal has been filed by them against the
judgment and final order dated 25.04.2012 passed by
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the High Court of Judicature at Madras in
C.M.A.No.1242 of 2011
4.DECLARATION IN TERMS OF RULE 6:
That ANNEXURES P-1 to P- produced alongwith
the Special Leave Petition is true copies of the
pleadings/documents which formed part of the records
of the case in the Court/Tribunal below against whose
order the leave to appeal is sought for in this petition.
5. GROUNDS:
a. It is most respectfully submitted that the Ld. Tribunal
applied the multiplier of 13 according to second
schedule to the Act. The Honble High Court has given
no reason not following the schedule while the Honble
Supreme Court has repeatedly held that to follow the
multiplier method as it is the safe guide to arrive at
the amount of just compensation. But the High Court
in the instant case contrary to this Honble Court
decision in United India Insurance Co. Ltd vs Patricia
Jean Mahajan And Others reported in (2002) 6 SCC281 in which it has held that the application of the
multiplier depends upon the age of the deceased, age
of his dependents, number of his dependents, the
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amount of dependency etc, but these factors were not
taken into account by the Honble High Court while
ignoring to apply the multiplier method for calculating
the loss and damages sustained by the petitioner
herein.
b. Because the Impugned Judgment and order of the
High Court is contrary to law, weight of evidence and
probabilities of the case.
c.
d. The meaning of the word insurance itself means an
agreement to indemnify the loss suffered by such
person who is insured against such contingency. If
that being the rationale the high court reduced the
attendant charges to Rs.75,000/-, which is absurd,
impractical and dismally low as because even the
lowest salaried nurse would be charging Rs.10,000/-
as a monthly salary to attend to the petitioner. In that
case the attendant changes would not last even for a
year, thereafter the petitioner had to live with a guilt
of burdening his near and dear once for no fault of his,
which in essence make the whole concept of third
party insurance meaning less and an empty formality.
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e. Because the Honble High Court is not justified in law
by allowing the appeal and modifying the
compensation amount without even following any
mathematical method, since the Petitioners is the only
male earning member for the family and has been
render vegetative due to the said accident .
f. Because the Honble High Court is not justified in law
by allowing the Appeal filed by the Respondent No.1
herein and modifying the compensation amount
without considering the fact that the calculation
method used by the trial court was supported by all
the evidences available on record. Further, it is
pertinent to mention herein that while passing the
impugned order the Hon'ble High Court has not given
any finding to the effect that how reduction in the
compensation is more justified than dismissing the
appeal.
g. It is most respectfully submitted that it has been held
by this Honble Court in Lata Wadhwa & Ors vs State
Of Bihar& Ors reported in (2001) 8 SCC 197, that the
multiplier method having been consistently applied by
the Supreme Court to decide the question of
compensation in the cases arising out of Motor
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Vehicles Act and the said multiplier method has been
adopted in the present case by the Ld. Trial Court but
not by the Honble High Court while passing the
impugned judgment. It is relevant to mention that in
the above decision it was also observed that in the
report, even the view of British Law Commission has
been extracted, which indicates: the multiplier has
been, remains and should continue to remain, the
ordinary, the best and only method of assessing the
value of a number of future annual sums. It has also
been stated in the aforesaid report that though Lord
Denning advocated the use of the annuity tables and
the actuarys assistance in Hodges vs. Harland & Wolff
Limited (1965) 1 ALL ER 1086, but the British Law
Commission accepted the use and relevancy of the
annuity tables in its Working Paper No. 27 by
observing: The actuarial method of calculation,
whether from expert evidence or from tables,
continues to be technically relevant and technically
admissible but its usefulness is confined, except
perhaps in very unusual cases, to an ancillary means
of checking a computation already made by the
multiplier method. Even Kemp & Kemp on Quantum of
Damages after comparing the multipliers chosen by
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judges from their experience found a close proximity
between the said multiplier method and those arrived
at from the annuity tables in the American
Restatement of the Law of Torts. After a thorough
analysis of the different methods of computation of
the compensation to be paid to the dependants of the
deceased and what are the different methods of
computing loss of future earnings, Shri Chandrachud
Justice has come to the conclusion that the multiplier
method is of universal application and is being
accepted and adopted in India by Courts, including the
Supreme Court and as such, it would be meet and
proper to apply the said method for determining the
quantum of compensation. Hence the impugned order
which has brushed aside the multiplier method which
is consistently applied by the Supreme Court to decide
the question of compensation needs to be considered
by this Honble Court in the letter and spirit of the
decision above cited.
h. It is most respectfully submitted that the Honble High
Court has failed to appreciated that the petitioner
throughout the rest of his life has to be dependent on
some medical aid and needs medical care every day
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and the same would cost him huge sum and the other
disease that may occur due to the petitioner herein
being bed ridden for the remaining lifetime, But the
High Court has failed to consider such vital factors
while computing the loss and future damages and
concluded without taking into account all these vital
issues while passing the impugned order, in view of
the above said facts and circumstances the impugned
judgment is liable to be set aside.
i. It is submitted that in Baby Radhika Gupta & Ors. Vs
Oriental Insurance Co. Ltd. & Ors reported in (2009) 17
SCC 627 wherein this Honble Court held that the High
Court deducted two-third of the amount as personal
expenditure of the deceased; whereas, according to
the settled legal position crystallized in number of
cases, it should be one-third. We find substance in the
contentions of the learned counsel for the appellants
and deem it appropriate to modify the order. If we
deduct one-third as personal expenditure from the
annual income of Rs.1,18,314/- of the deceased, then
it comes to Rs.39,438/- and the remaining amount
would be Rs.78,876/- and if it is multiplied by 17, then
the amount would work-out to be Rs.13,40,892/-.The
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deceased was 32 years' of age when the accident took
place and looking to the peculiar facts and
circumstances of the case, we deem it appropriate to
grant Rupees two lakhs on account of future
prospects.
j. It is most respectfully submitted that the Honble High
Court has also not considered the clear and
corroborative evidence about the prospect of future
increment of the petitioner as the petitioner was
employed as Junior Engineer in Agriculture Dept.
k. It is most respectfully submitted that the Honble High
Court has failed to considered that the petitioner was
severely injured in his neck bone to Spinal Cord and
has to remain in bed throughout his life which is a vital
factor for commuting factors like
Pain and suffering :Rs. 2, 00,000/-
Loss of amenities of life :Rs. 25,000/-
Loss of expectation of life :Rs. 25,000/-
Medical attendant charges :Rs 75,000/-
Future Medical Expenses :Rs. 1, 00,000/-
But the High Court without any basis reduce the
damages that was awarded by the trial court which
was given anticipating the pain and suffering of the
petitioner which he has to endure all through his life
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time and on what basis the High Court has arrived to a
conclusion that when a medical attendant has to
always attend to the petitioner for every aspect of his
life but the attendant charge of Rs. 75,000/- without
considering that charges of medical attendance have
gone ahead over the period, further the Future
medical expenses going to cost a fortune as the
petitioner may suffer many more related diseases
which would occur due to his bedridden state but
these factors were not considered by the High Court in
the impugned order.
l. It is most respectfully submitted the Honble High
Court has erred in not considering that the petitioner
is a engineer by profession and has a brighter
prospective after his retirement from service as most
of the multinational companies are preferring more
experienced persons to execute their high profile
projects, but these factors were ignored while
commuting the future prospective based on which the
multiplier of 13 was adopted by the Ld. Trial Judge
which was brushed aside by the Honble High Court
while passing the impugned Judgment by concluding
that there is no evidence on record to show that the
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claimant had suffered any injury and the
consequential permanent disability, he would have got
some other employment in some private concern or
he would have carried on some other avocation and
earned some more income apart from the pension
receivable by him, the question of applying the
multiplier method to assess the pecuniary loss does
not arise.
m.It is submitted that High Court proceeded on surmises
and conjecture with regard to the paralysis of lower
extremities sustained by the petitioner is only a partial
disability which is contrary to the facts of the case.
n.
6. GROUNDS FOR INTERIM RELIEF:
The Petitioner has set out all the relevant facts in
details in the accompanying List of Dates and the
Petitioner shall crave leave to refer to and rely upon
the same as if incorporated herein verbatim for the
sake of brevity. The Petitioner submits that the
Petitioner has good case on merits and is likely to
succeed before this Hon'ble Court. The Petitioner
states that Petitioner has made out prima facie case
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on merits and that the balance of convenience is also
in favour of the Petitioner, therefore, it is desirable in
the interest of justice that during the pendency of
proceedings in this Hon'ble Court the interim relief as
prayed for herein be granted or else the Petitioner
shall suffer irreparable loss.
7. MAIN PRAYER:
The Petitioner, therefore, prays that:
(A) The Petitioner be granted petition for Special
Leave to Appeal under Art ic le 136 of the
Const itution of India judgment and f inal
order dated 25.04.2012 passed by the High
Court of Judicature at Madras in
C.M.A.No.1242 of 2011.
(B) Pass any other order and/or directions as this
Honble Court may deem fit and proper.
8. PRAYER FOR INTERIM RELIEF:
A) Grant ad-interim ex-parte stay of the judgment and
final order dated 25.04.2012 passed by the High Court
of Judicature at Madras in C.M.A.No.1242 of 2011.;
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B) Pass any other order and/or directions as this
Honble Court may deem fit and proper.
AND FOR THIS ACT OF KINDNESS THE PETITIONER SHALL AS
IN DUTY BOUND EVER PRAY.
FILED BY
(S. GOWTHAMAN)
ADVOCATE FOR PETITIONER
FILED ON . .2012
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. OF 2012
IN THE MATTER OF:
P.Babu .PETITIONER
VERSUS
Balaji Alliance General Insurance
Co.Ltd & Ors .RESPONDENTS
CERTIFICATE
Certified that the Special Leave Petition is confined only to
the pleadings before the Court whose order is challenged
and the other documents relied upon in those proceedings.
No additional facts, documents or grounds have been taken
herein or relied upon in the Special Leave Petition. It isfurther certified that the copies of the documents/annexure
attached to the Special Leave Petition are necessary to
answer the question of law raised in the petition or to make
out grounds urged in the Special Leave Petition for
consideration of this Honorable Court. The certificate is
given on the basis of the instruction given by the petitioner
whose affidavit is filed in support of the Special Leave
Petition.
(S. GOWTHAMAN)
ADVOCATE FOR THE PETITIONER
NEW DELHI
DATED:
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SYNOPSIS
The petitioner is the sole male earning member of his family who
was rendered paraplegic due to irrevocable damage to the spinal
cord of the petitioner caused as a result of an accident when the
petitioner was traveling in a government jeep, in the capacity of a
Junior Engineer in the Agricultural Engineering Division, was hit by
a vehicle coming behind. The petitioner filed this claims petition
against the respondent no. 1 under Third party insurance scheme
claiming a compensation of Rs.1,00,00,000/-. The Hon'ble Motor
Vehicle accident claims tribunal awarded a sum of Rs.60,92,738/-
together with interest at 7.5% per annum from the date of numbering
of the petition i.e. 23.11.2008 till the date of realization after due
consideration of evidence place before it. However the Hon'ble high
court the reduced the compensation to Rs 13,04,151/- without
considering the escalated medical expenditure already incurred by
the petitioner as well as the medical expenditure to be incurred by
the petitioner for the rest of his life and subsequent illness and
complications which the petitioner had to face due to prolonged bed
ridden life style and the Pain and suffering both suffered, subsisting
and the further suffering, loss of amenities of life as because the
petition would require accommodations to make their home
wheelchair-accessible, home health care or personal attendant care,
physical and occupational therapy, medical supplies, housing
assistance, and loss of expectation as in all probability the petitioner
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has to lead a crippled life in bed which is almost just a step before
death itself. Besides the above said non appreciation of the facts, the
loss of income was not calculated by the high court taking in to
consideration the employment prospects in the present trend that the
multinational companies hire retired government official to oversee
their work and also failed to follow the guidelines set out by this
court in catena of decisions by applying the multiplier method and
hence the present Special Leave Petition