An accident completely took away the active life of an young lady aged about 22 years old in the accident occurred on 09.01.2011, when she was returning to her home, by walking from North to South along along Madurai to Theni Main Road, which dashed against the petitioner. Therefore, the claim petition was filed.
2. On contest, the Tribunal found that the accident occurred because of the rash and negligent driving of the driver of the lorry and awarded a sum of Rs.1,97,710/- (Rupees One Lakh Ninety Seventy Thousand Seven Hundred and Ten only) by awarding Rs.2,000/- per percentage for 62% of disability sustained by her.
3. Aggrieved by the quantum of the Tribunal, the claimant is before this Court.
4. Heard the learned Counsel appearing for the appellant and the learned Counsel appearing for the second respondent Insurance Company.
5. There is no appeal by the Insurance Company or the owner regarding the conclusion on the negligence that the driver of the lorry alone is responsible for the accident. Hence, it attained finality. Even otherwise based on the evidence of PW.1 and PW.2 eye-witnesses and filing of Ex.P1- F.I.R and Ex.P3-Charge sheet against the driver and conviction against the driver as per Ex.P4, the Tribunal rightly found that the driver of the lorry alone is responsible for the accident.
6. The appellant sustained fractures in her both bones in her left leg and left leg got crushed between knee to ankle and she was taking treatment from 09.01.2011 till 17.03.2011 for more than 67 days. The surgeries were conducted and plates and screws were implanted in the let leg. Skin crafting was also done. PW.3-Doctor adduced that the appellant's left leg completely got crushed and blood circulation on the foot was blocked and there was no movement in fingers and in spite of implanting plates and screws, the appellant could not move her leg and she is unable to walk independently and she is unable to walk; unable to stand, unable to lift heavy objects, unable to squat and unable to do any work. PW.3-Doctor categorically deposed that the length of the left leg gott reduced to 2 1/2 c.m and the leg got swollen and she could walk only with walker and that the limb and Tibia and Fibula bone got bent as per Ex.P5, P7 and P10 medical records; Ex.P6-discharge summary. Ex.P11- Disability Certificate would show the names of injury which reads as follows:-
"7.Name of Injury: She has moderate to sever pain in Lt.Leg, Lt.ankle & Lt-foot & heel areas, when he stand for some time, walks short distances & go up & down the stair case. She has an ugly scar entire circumference of Lt.leg measuring 26 cms sensation in the scar is much reduced. SSG donar scan both thighs. Lt.ankle is in fixed equinus deformity 40 decreeNo. Dorsi flexion. Toe movements only minimal. Shortening Lt lower limb 2.5 cms. Swelling below the Lt.leg scar extending upto the ankle & foot. Wasting of Lt.thigh muscles by 1 1/2 cm, Lt.leg muscles by 4 cms & muscle power Lt.knee is less by 1 1/2 grade. She walks with walker. She cannot squat Cvoss legged or on honches & difficulty in walking an uneven surfaces, slope surfaces & in steps.
11.Break-up details of disability:- A) Moderate to severe pain disability:- &Deep Complications malunion-
7. From the above, it is clear that the injuries sustained by the claimant are very serious and as a result, she is unable to walk and lead her normal life as stated above. Therefore, 62% disability has been fixing by the Tribunal.
8. However, the Tribunal, considering all the records determined the disability at 55%. In fact, the appellant is unable to do any normal work and she cannot do any active avocation. Though this Court is convinced 100% loss of earning power and the Tribunal determined 55% disability, this Court finds that the appellant would have lost 55% as loss of earning power.
9. Hence, the multiplier method has to be adopted taking into consideration the nature of injuries and the disability sustained by the claimant. Hence, awarding of compensation based on percentage adopted by the Tribunal is set aside.
10.The appellant was hardly 22 years at the time of the accident and the accident occurred on 09.01.2011. Therefore, this Court is inclined to follow the judgment in Syed Sadiq, etc -Vs- Divisional Manager, United India Insurance Co. Ltd., reported in 2014 (1) TN MAC 459 (SC), where a sum of Rs.6,500/- was determined for a vegetable vendor who sustained injuries in the accident occurred on 14.02.2008. Whereas in this case, the accident occurred in the year 2011 and in the absence of any material records to prove the income, since the claimant is aged about 22 years, 50% has to be added towards future prospects and the loss of income of Rs.9,750/- along with future prospects.
11. As this Court follows the multiplier method, according to the age of the victim, the multiplier to be applied is '18' and therefore, the loss of income would be Rs.6,500 + 50% x 12 x 18 x 55/100 = Rs.11,58,300.00. When one leg got crushed with all disability, it is impossible for a lady to get marriage. Not only causing disability in her body, her marriage prospectus was completely in dark. Therefore, this Court awards a sum of Rs.2,00,000/- (Rupees Two Lakhs only) towards loss of marital prospects. A sum of Rs.1,00,000/- (Rupees One Lakh only) awards towards pain and sufferings undergone by the claimant due to the accident. A sum of Rs.10,000/- (Rupees Ten Thousand only) awarded by the Tribunal is enhanced to Rs.50,000/-(Rupees Fifty Thousand only) and a sum of Rs.5,000/- (Rupees Five Thousand only) awarded by the Tribunal towards transportation expenses is enhanced to Rs.20,000/- (Rupees Twenty Thousand only). For three months treatment as inpatient, a sum of Rs.20,000/- (Rupees Twenty Thousand only) is awarded. Similarly, a sum of Rs.20,000/- (Rupees Twenty Thousand only) is awarded towards attendance charges. For the disability caused and ugly look created by the accident, this Court awards a sum of Rs.1,00,000/- (Rupees One Lakh only). A sum of Rs.17,610/-(Rupees Seventeen Thousand Six Hundred and Ten only) awarded by the Tribunal as per medical bills under Ex.P8 for treatment is confirmed. A sum of Rs.1,000/- (Rupees One Thousand only) awarded by the Tribunal towards loss of articles and dress is also confirmed. A sum of Rs.10,000/-(Rupees Ten Thousand only) awarded by the Tribunal without any heading is deleted. This Court awards a sum of Rs.50,000/- (Rupees Fifty Thousand only) towards future medical expenses.
12. Accordingly, the award amount of Rs.1,97,110/- (Rupees One Lakh Ninety Seven Thousand One Hundred Ten only) is enhanced to Rs. Rs.17,36,910/- (Rupees Seventeen Lakhs Thirty Six Thousand Nine Hundred Ten only).
13. Accordingly, the appellant/claimant is entitled to a sum of Rs.17,36,910/- (Rupees Seventeen Lakhs Thirty Six Thousand Nine Hundred Ten only), and the rate of interest at 7.5% per annum awarded by the Tribunal remains unaltered.
14. In the result,
(i) This Civil Miscellaneous Appeal is allowed. No costs.
(ii) The appellant/claimant is entitled to a sum of Rs.17,36,910/- (Rupees Seventeen Lakhs Thirty Six Thousand Nine Hundred Ten only), along with the interest at the rate of 7.5% per annum from the date of petition till date of realisation and also proportionate costs;
(iii) The second respondent-Insurance Company is directed to deposit the entire award amount along with interest and costs to the credit of M.C.O.P.No.138 of 2012 on the file of the IV Additional Sub-Court, Madurai, less the amount already deposited, if any, within a period of twelve weeks from the date of receipt of a copy of this judgment;
(iv) On such deposit, the Tribunal shall permit the appellant/claimant to withdraw only Rs.7,00,000/- (Rupees Seven Lakhs only) and the balance amount shall be kept in an interest bearing fixed deposit, at least for a period of ten years and thereafter only, the Tribunal can transfer the balance amount to her personal Savings Bank Account Number through RTGS/NEFT system within a period of four weeks thereafter. At no circumstances, other than the amount of Rs. 7,00,000/- (Rupees Seven Lakhs only) shall be allowed to be withdrawn, except after completion of ten years.
(vi) The appellant/claimant is directed to pay the additional Court Fees, if any, within a period of two weeks from the date of receipt of a copy of this judgment.
(vii) The appellant/claimant is directed to pay the additional Court Fees, if any, within a period of two weeks from the date of receipt of a copy of this judgment.
TO
1.The IV Additional Sub-Court, Madurai.
2.The V.R.Section, Madurai Bench of Madras High Court, Madurai..