M.Gunasundari v. M/s.Brills Tranports

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.08.2009CORAM:THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN C.M.A.No. 1758 of 2000M.Gunasundari.. Appellant/Petitioner(Declared the appellant as major and discharged her father S.Manoharan from guardianship vide order dated 01.03.2004 made in CMP NO.2820/04)vs.

M/s.Brills Tranports, No.69, Vallur Kottam High Road, Nungambakkan, Chennai – 600 034 (Set exparte in Trial Court)

New India Assurance Company Ltd, No.71, Thambu Chetty Street, Chennai – 600 001 .. Respondents/RespondentsThe Civil Miscellaneous Appeal against the Judgement and decreedated 28.07.2000 made in MACT O.P No.1668/1997 on the file of the VIJudge, Motor Accidents Claims Tribunal (Court of Small causes) at Chennai. For Appellant : Mr.C.Munusamy for Mr.M.SwamikkannuFor Respondents : Mr.D.Venugopal for R2ORDERThe fate should not have been so cruel to the girl. However, itwas. This is the case of a girl, whose future became crippled andmiserable, 12 years old girl who is supposed to lead her life withdreams fun, joy and enjoyment like her friends was crippled becauseof the accident occurred on 29.11.2996. She was riding her bicyclewhich was hit by an oil tanker lorry belonging to the firstrespondent herein. As a result, she sustained injuries resulting inamputation of her right leg near hip, dislocation of portion in leftleg ankle and knee, severe injuries in the head and internal injuriesin chest and stomach. Hence the claim petition was filed to the tuneof Rs.11.00 lakhs and the same was resisted by the second respondent-Insurance Company. https://hcservices.ecourts.gov.in/hcservices/

2. On appreciation of pleadings and evidence on record, the Tribunal came to the conclusion that the accident occurred because ofthe negligent driving of the first respondent Oil tanker lorry andconsidering various aspects and granted a sum of Rs.5,20,000/-.Aggrieved by the quantum of compensation, the present appeal has beenpreferred by the claimant.

Mr.C.Munusamy, learned counsel for the claimant submittedthat she was a school going girl aged about 12 years and lost herfuture by the accident and contented the amount granted by the Tribunal is very meagre considering the loss caused to the claimant. The Tribunal granted Rs.5,20,000/- in the following manner.1)Transportation chargesRs. 2,500/-2)Extra NourishmentRs. 17,000/-3)Damage clothesRs. 500/-4)Cost of medicineRs. 10,000/-5)Loss of marital lifeRs. 75,000/-6)Additional transport expensesRs. 40,000/-7)Pain and SufferingRs. 50,000/-8)Permanent disabilityRs. 75,000/-9)Loss of earning powerRs.2,50,000/- -----------------------Rs.5,20,000/- ------------------------4. A perusal of the award would show that no reason was given bythe Tribunal for arriving the loss of income at Rs.2,50,000/-. Whenthe girl lost her leg and injuries to the important organs of schoolgoing child, the Tribunal is expected to apply its mind and considerthe matter humanely. The Tribunal formed under Motor Vehicle Actwhich is a beneficial legislation, should have considered theintention of the parliament while awarding compensation. Unfortunately in this case the Tribunal failed to consider thoseimportant aspects and dealt with the matter very casually andmechanically. The Tribunal should have seen the victim was a schoolgoing girl and the girl's future was totally shattered by theaccident. A girl who is supposed to lead her life with joy, funenjoyment with dreams.

When 90% disability was proved before the Tribunal, the Tribunal should have applied the second schedule of Motor Vehicle Actand calculated the loss of income. Whereas, in this case no reasoningnor the calculation was given by the Tribunal to arrive at a sum ofRs.2,50,000/- as loss of income.

Ex.P.13 is the disability certificate issued by the PW-3Doctor. The evidence of PW-5 would undoubtedly prove the grievousinjuries sustained by the girl victim. When 95% disability was proved https://hcservices.ecourts.gov.in/hcservices/ before the Tribunal, the Tribunal should have adopted the secondschedule of Motor Vehicle Act and calculated the loss of income. Atthe time of accident she was studying 7th standard. As per the secondschedule for non earning member, the notional annual income isRs.15,000/-. However, two years lapsed after the introduction ofsecond schedule since 1994; Hence it is appropriate to take a sum ofRs.3,000/- as monthly income. since the age of the victim was 12 atthe time of accident, the proper multiplier, according to secondschedule, would be 15. As the claimant's leg was amputated and therewere injuries internally and also dislocation problems, it isappropriate not to deduct 1/3 towards personal expenses as per the Judgment of the Apex Court in National Insurance Co. Ltd. Vs.Ramprasad Varma reported in 2009 (1) TNMAC 134 and the loss of incomeis arrived as Rs.3000 X 12 X 15= Rs.5,40,000/-.

The Tribunal awarded Rs.50,000/- for pain and suffering .Considering the nature of the injuries caused to the various partsand also amputation of leg, this Court enhances the amount to a sumof Rs.75,000/-. It is very difficult for the injured girl gettingmarried as her right leg was amputated. Hence this Court awards a sumof Rs.1,00,000/- instead of Rs.75,000/- towards loss of maritalprospects. Additional transportation is concerned a sum ofRs.40,000/- was awarded by the Tribunal and the same is confirmed; for medical expenses a sum of Rs.10,000/- alone was awarded inspiteof proving the same by Ex.P.8. Hence, as per Ex.P.8 a sum ofRs.21,161 is granted; For damage to clothes a sum of Rs.500/- wasawarded and the same is confirmed; For extra nourishment a sum ofRs.17,000/- was awarded and this court enhances the amount toRs.25,000 considering the nature of injuries and the problem she hasto face throughout her entire life; For transportation is concerned asum of Rs.2,500/- is granted.

In Sapna Vs. United India Insurance Company Ltd and anotherreported in (2008) 7 SCC 613 in that case twelve year old girlsustained injuries in her leg and became crippled and completelydisabled. In that case a sum of Rs.75,000/- was awarded for futuretreatment and for artificial limit. Hence relying upon the aforesaidjudgment for future medical expenses including fixing of artificialleg a sum of Rs.75,000/- is granted, by considering the injuries andthe medical problems faced in her life by the accident. As far asdisability is concerned a sum of Rs.75,000/- was awarded by the Tribunal and the same is confirmed. Future prospects of the girl hasto be considered while awarding compensation. The above propositionwas held by the Apex Court in Bijay kumar Vs.Bidhydhar Dulta andothers reported in 2006 (3) SCC 242 and in R.K.Malik and another Vs.Kiranpal and others reported in 2009 (8) SCALE 451. Hence a sum ofRs.25,000/- is awarded towards future prospects.

When the school going girl was crippled, her entire futurebecame bleak and no amount could compensate her loss. She has to lead https://hcservices.ecourts.gov.in/hcservices/ her entire life depending on others for each and everything. In oursociety physically handicapped people are not treated equally, sometimes there are made subjects of mockery and jokes. A stigma isattached to their status as handicapped. This is happening every dayinspite of passing of many acts benefiting physically handicappedpeople. We have to hang our heads in shame for discriminatorytreatment meted out to the physically handicapped and this Courtsexpects the attitude of the society would change soon.