Impugned Order & SLP-Babu Final

7/28/2019 Impugned Order & SLP-Babu Final

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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?


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?


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

Impugned Order & SLP-Babu Final

Documents

Transcript of Impugned Order & SLP-Babu Final