NOTES OF ARGUMENTS FILED WHEN THE PERSON SUSTAINED INJURIES IN MOTOR VEHICLE ACCIDENT AND SUSTAIN AMPUTATION OF A LEG AND 85% DISABILITY

 

NOTES OF ARGUMENTS FILED WHEN THE PERSON SUSTAINED INJURIES IN MOTOR VEHICLE ACCIDENT AND SUSTAIN AMPUTATION OF A LEG AND 85%  DISABILITY

 

The petitioner was aged 24 years at the time of accident, occupied as Engineer in         private ltd.,  getting a salary of Rs.12,000 along with service of computers and thereby totally earning Rs.40,000/pm at the time of accident. He had produced salary certificate and marked as an exhibit. His job is of nature that he has to stand while working, and no he remains idle without any job. More over due to severe pain experienced by him and due to amputation of his leg he is not able to concentrate  and his crippled condition also made him unfit to perform any work. He sustained multiple fractures all over the body. The permanent disability fixed by the medical board is 85%. In case of amputation 100% disability taken in 2020 (1) TNMAC 300. He had incurred heavy medical expenses also.

In Rajkumar VS Ajaykumar,2011(1) TAC 785 (SC)  the apex court has laid down the heads under which compensation is to be awarded for personal injuries. They are as follows:

Pecuniary damages (special damages)

1)    Expenses related to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure

2)    Loss of earnings (any other gains) which the injured would have made had he not been injured, comprising;

a)     Loss of earning during treatment period

b)    Loss of future earnings on account of permanent disablement

3)    Future medical expenses.

Non – pecuniary damages

4)    Damages for pain and sufferings and trauma as a consequence of the injuries.

5)    Loss of amenities(and /or loss of prospects of marriage)

6)    Loss of expectation of life (shortening of normal longevity)

 

Loss of future earning capacity / income:

Permanent disability refers to residuary incapacity or loss of use of some parts of body, found existing at the end of the period of treatment or recuperation, which is likely to remain for the remainder life of the injured – It is either partial or permanent.

In this case the petitioner is an  Engineering graduates (degree certificate produced) and he has to perform his duties by standing. Since the petitioners sustained severe injuries in the leg leading to disability of  85 with an  amputation of leg. Depending upon the nature of profession, occupation or job, age, education and other factors for a particular permanent disability different percentage of loss of earning capacity in different persons may occur. Now in the present case the petitioner is, doing his work most of the time by standing only. Since his leg was  amputated, it is not possible for him to do his work and very difficult to get any other job and he has to remain ideal for his entire life. In this case, the petitioner sustained functional disability. Hence multiplier method has to be followed while calculating loss of future earning capacity/income. He is prevented or restricted from discharging his professional activities

Hence while calculating functional disability, 100% may be   taken us functional disability  as stated in 2020(1)TNMAC 300.

In 2018 (2) TNMAC 81 (DB) Balamanohari  VS  United india insurance co.ltd.

For an Engineering student a sum of RS.20,000/pm has been fixed as notional income. Since the petitioner is an Engineering graduate, this amount of Rs.20,000/pm may be fixed as notional income.

Pappu deo yadav    VS   Naresh kumar & others  in   2020(2) TNMAC 536 (SC)

The judgment in pranay sethi & ors., which was later followed in jagdish by a three judge bench, which had ruled that the benefit of future prospects should not be confined only to those, who have a permanent job and would extend to self employed individuals, and in case of self employed persons an addition of 40% of established income should be made where the age of the victim at the time of accident was below 40 years. Two question arise here for consideration. One is Whether in case of permanent disablement incurred as a result of a motor accident , the claimant can seek apart from compensation for future prospects too.  And two, the extend of disability. Court should view the matter taking into account the realities of life, both in the assessment of the extent of disabilities and compensation under various heads. Hence percentage of loss of earning capacity is the same as percentage of permanent disablement and 40%of the income has been added towards future prospects. The multiplier relevant to their age is 18. Hence loss of income may be calculated by adding 40% of their income towards future prospects and multiplying it with the permanent disability disability sustained by him (functional disability of 100%) and the relevant multiplier.

 

Loss of amenities

2018 (1) TNMAC 577 (SC) Jagdish VS Mohan & others.

2018 (1) tnmac 583(SC) S.Thangaraj vs National insurance co.ltd.,

In this case it is clearly stated that, if the victim suffers permanent disability, then

 

 

efforts should always be made to award adequate compensation not only for the physical injury and treatment but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.

2014(1)TNMAC 325 (SC) 

In this case Rs.4,00,000/ has been awarded for permanent disability and Rs.2,00,000/ awarded for pain and sufferings when there was 75% disability. The present cases are also fit for the award of the same.

Medical expenses

In this case the petitioner had incurred a sum of Rs.6,00,000  / towards  medicines and medical expenses and he had produced medical bills and receipts as exhibits. He is entitled for the medical expenses incurred by them.

2020 (1)TNMAC 300

Transport expenses

As per the above citation a sum of Rs.30,000/ may be awarded towards transportation.

Loss of marriage

It is very difficult for the claimant to get marry and he may not be get married and therefore a sum of Rs.2,00,000/ may be awarded towards loss of marriage as per the above citation.

 

Artificial limb:

2018(1) TNMAC 569 (DB)

In so far as future medical expenses are concerned, it is clear case of the claimant injured  that he lost his leg above knee and fixed with artificial limb.

The artificial limb should be replaced periodically. The claimant injured has to change the artificial limb, once in five years and maintain it. Hence a sum of Rs. 2,59,624/ has been awarded for artificial limb in this case, this amount may be added towards the compensation amount. 

In addition to all these damages the petitioners are entitled to get damages for special diet, attendant,loss of income during treatment and future medical expenses (medicines & medical expenses) etc.

Hence this hon’ble court may be pleased to award compensation to the petitioner cases as prayed by hom.

 

 

Advocate for the petitioner.