(Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the fair and decreetal order dated 21.03.2011 in MCOP.No.111 of 2008 on the file of Motor Accident Claims Tribunal, (Chief Judicial Magistrate), Sivagangai.)
S. Manikumar, J.
1. Civil Miscellaneous Appeal is directed against the judgment and decree, made in MCOP.No.111 of 2008, dated 21.03.2011, by which, the Motor Accident Claims Tribunal, (Chief Judicial Magistrate), Sivagangai, has awarded compensation of Rs.25,00,000/- with interest @ 7.5% per annum, to the accident victim, assessed to have been permanently disabled at 66%.
2. Appeal is against the quantum of compensation. Therefore, it is not necessary to advert to the aspect of negligence and liability.
3. Facts leading to the appeal are that, on 08.02.2008, by 07.30 P.M., when the 1st respondent/claimant along with his family members, were walking along Manamadurai Railway Station Road, proceeding to Rameshwaram, on a Pilgrimage, and near the Railway Station, a Tipper Lorry bearing Registration No.TN-59-AC-6375, driven by its driver, in a rash and negligent manner, dashed against the 1st respondent, whose left leg was crushed, below knee. He also suffered a fracture in the left leg and injuries on his head. He was provided emergency treatment at Apollo Hospital, continued as inpatient in the said hospital between 08.02.2008 and 17.03.2008. Thereafter, between 17.03.2008 and 03.04.2008, he took treatment, as inpatient, in Preethi Hospital, Madurai. Though an attempt was made to repair the situs of injury, by conducting a plastic surgery and transplanting muscles from other parts of the body, the method adopted was ineffective, and the left leg was amputated below the knee. Due to removal of muscles from the right leg and skin grafting, 1st respondent also suffered disability, in his right leg. After discharge from the Hospital, 1st respondent continued treatment, as outpatient at Preethi Hospital.
4. According to the 1st respondent, at the time of accident, he was an LIC agent and was given the status of Divisional Manger Club Member. He had reached a target of 50 lakhs. Due to the amputation in the left leg and the consequential disability suffered, he became immobilised. He was also not able to do real estate business. Seeking compensation of Rs.14,00,000/-, he filed MCOP.No.111 of 2008 before the Motor Accident Claims Tribunal, (Chief Judicial Magistrate), Sivagangai. Appellant/ICICI Lombard General Insurance Company, Madurai Town, opposed the claim for compensation. The insurance company has opposed the claim.
5. Before the claims Tribunal, 1st respondent adduced evidence as PW1 and to support the contention of injuries, hospitalisation, expenditure incurred, extent of disability and loss of income, he had marked Ex.P5-Wound Certificate, Ex.P6-Discharge Summary issued by Apollo Hospital, Madurai, Ex.P7- Discharge Summary issued by Preethi Hospital, Madurai, Ex.P8 to Ex.P10-Medical Bills for Rs.2,81,591/-, Ex.P11-course completion certificate, Ex.P12-Income tax return for the year 2005-2006, Ex.P13-Photocopy of the disability certificate issued by Tamil Nadu Medical Board, Ex.P14-Disability Certificate issued by PW2 Doctor, Ex.P15-X-ray, Ex.P16-Case sheet and Ex.P17- Income proof.
6. On evaluation of pleadings and evidence, the Claims Tribunal determined the extent of permanent disablement as 66%. Considering the age of the respondent/claimant, 42 years, and the loss of income, on account of permanent functional disability, the Claims Tribunal decided to compute the same, by applying multiplier method. The Tribunal took note of the loss of amenities, expenditure incurred. After considering the oral and documentary evidence and the judgments relied on by the counsel for the claimant, in Kanta Kumari vs. Ajit Singh, reported in (2010) IV ACC 586, R.Kesavan vs. C.Wilson and National Insurance Company Limited, Chennai, reported in 2010 (2) TNMAC 533 (DB), United India Insurance Company Limited, Salem, vs. S.Saravanan, reported in 2009 (2) TNMAC 103 (DB), Oriental Insurance Company Limited vs. Ram Prasad Varma, reported in 2009 (1) TNMAC 134, Managing Director, Tamil Nadu State Transport Corporation, Kumbakonam Limited, Trichy, vs. Antony Xavier Rayer.K, reported in 2010 (2) TNMAC 509, the Claims Tribunal awarded compensation of Rs.25,00,000/- with interest @ 7.5% per annum as hereunder:-
| Loss of income | Rs. 21,38,400/- |
| Pain and suffering | Rs. 1,00,000/- |
| Extra nourishment | Rs. 50,000/- |
| Transport to Hospital | Rs. 2,000/- |
| Damage to clothe | Rs. 5,000/- |
| Medical Bills | Rs. 2,81,591/- |
| Total | Rs. 25,76,991/- rounded off to Rs.25,00,000/- |
8. Before the Claims Tribunal, the respondent/claimant has adduced evidence, regarding the nature of injuries, treatment, extent of disablement suffered. He has also marked supportive documents. PW2 Orthopaedics Specialist at Preethi Hospital, Madurai, in his evidence, has stated that on 08.02.2008, left leg below the knee of the 1st respondent/claimant, was amputated.
9. PW2 Doctor has further deposed that after removal of a portion of the left leg, below the knee, there was a reduction of height. After physical examination of the respondent/claimant, with reference to medical records, he has issued Ex.P14-Disability Certificate. Ex.P15 is the X-ray of the left leg. Ex.P16 is the case history of the respondent/claimant.
10. Supporting the plea of permanent disablement, due to the accident, respondent/claimant has marked Ex.P13 disability certificate issued by the Medical Board, Government of Tamil Nadu and Ex.P14-Disability Certificate issued by PW2 Orthopaedics Specialist, Preethi Hospital, Madurai. Considering the oral and documentary evidence stated supra, the contention of the appellant insurance company that there is an error in determining the extent of disablement, cannot be accepted.
11. On a careful consideration of oral and documentary evidence and taking note of the judgments relied on by the respondent/claimant, as to how the Tribunal has to assess loss of income, in the case of permanent disablement and more particularly, amputation, the Claims Tribunal, has arrived at the conclusion that functional and permanent disablement, suffered by the respondent/claimant would result in loss of future income, and thus decided to apply multiplier method.
12. In Arvind Kumar Mishra v. New India Assurance Co. Ltd., reported in (2010) 10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 4 SCC (Civ) 153, the Hon'ble Supreme Court observed that while awarding compensation in personal injury cases, an attempt should be made to put the injured in the same position as he was, as far as money is concerned. At paragraph 9 of the judgment, the Apex Court held as follows:-
''9. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered.''
13. In Nizam s Institute of Medical Sciences v. Prasanth S. Dhananka, reported in (2009) 6 SCC 1, the Hon'ble Apex Court held that cases of serious injuries in a motor vehicle accident are worse than death cases because the victim and his family suffers. At paragraph 90 of the judgment, the Apex Court held thus:-
''90. At the same time we often find that a person injured in an accident leaves his family in greater distress vis-a-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.''
14. According to the 1st respondent/claimant, at the time of accident, he was an LIC agent and given the status of a Divisional Manger Club Member. Due to amputation and permanent disablement, he was immobilised, and could not continue his avocation and thus claimed loss of income. As regards income, the respondent/claimant has marked PW12-Income tax returns for the year 2005-2006. Ex.P17 is another document, for proof of income. Besides, he has also adduced oral evidence.
15. As regards determination of income, after going through Ex.P12- income tax return for the year 2005-2006, the Tribunal has found that the respondent/claimant has paid Rs.8,649/- as income tax, for the LIC policies and thus determined the annual income at Rs.2,16,000/-. At the time of accident, respondent/claimant was aged 42 years and therefore, applying 15 multiplier, the Claims Tribunal has worked out the loss of income at Rs.21,38,400/- (18,000X12X15X66/100). Application of multiplier method for assessment of loss of income cannot be said to be erroneous.
16. At this juncture, this Court also deems it fit to extract paragraphs 4 to 14 from Rajkumar v. Ajay Kumar reported in 2011 ACJ 1 (SC), wherein, the Hon'ble Supreme Court explained with illustrations, as to how the extent of loss of earning capacity has to be fixed, "General Principles relating to compensation in injury cases:
4. The provision of the Motor Vehicles Act, 1988 (`Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376, R. D. Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 and Baker vs. Willoughby - 1970 AC 467).
5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case.
Assessment of future loss of earnings due to permanent disability
6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.
8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567).
9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an 12 active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.
12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.
13. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.
14. The assessment of loss of future earnings is explained below with reference to the following illustrations:
Illustration `A': The injured, a workman, was aged 30 years and earning Rs.3000/- per month at the time of accident. As per Doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows:
a) Annual income before the accident : Rs.36,000/-.
b) Loss of future earning per annum (15% of the prior annual income) : Rs. 5400/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (5400 x 17) : Rs. 91,800/-
Illustration `B': The injured was a driver aged 30 years, earning Rs.3000/- per month. His hand is amputated and his permanent disability is assessed at 60%. He was terminated from his job as he could no longer drive. His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. The Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows:
a) Annual income prior to the accident : Rs.36,000/-.
b) Loss of future earning per annum (75% of the prior annual income) : Rs.27000/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/- Illustration `C': The injured was 25 years and a final year Engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70%. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning capacity was also assessed as 70%. The calculation of compensation will be as follows:
a) Minimum annual income he would have got if had been employed as an Engineer : Rs.60,000/-
b) Loss of future earning per annum (70% : Rs.42000/- of the expected annual income)
c) Multiplier applicable (25 years) : 18
d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/- [Note : The figures adopted in illustrations (A) and (B) are hypothetical. The figures in Illustration (C) however are based on actuals taken from the decision in Arvind Kumar Mishra (supra)]."
17. In Mohan Soni vs. Ram Avtar Tomar, reported in 2012 (2) SCC 267, in the case of amputation of one leg, loss of earning capacity has been taken as 90% as against the permanent disability of 60% in the case of a cart-puller.
18. Admittedly, the respondent/claimant has suffered permanent disablement and produced documentary evidence. As an LIC Agent, he would have to travel and secure policies. Permanent disablement would certainly affect his loss of earning capacity.
19. Going through the material on record, it could be deduced that the Tribunal has followed the principles of law in arriving at the conclusion as to whether multiplier method should be adopted or not, and rightly decided in favour of the respondent/claimant to award a just and reasonable compensation. Few decisions on this aspect are as under:-
(i) In R.D.Hattangadi v. M/s.Pest Control (India) Pvt. Ltd., reported in AIR 1995 SC 755, wherein, the Apex Court held as follows:
"In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of disability caused. But all the aforesaid elements have to be viewed with objective standards."
(ii) In Common Cause, A Registered Society v. Union of India reported in 1999 (6) SCC 667, at Paragraph 128, held as follows:-
The object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The elements of damage recognised by law are divisible into two main groups : pecuniary and non- pecuniary. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what Mcgregor says, is generally more important than money: it is the best that a court can do. In Re: The Medianna (1900) A.C. 1300, Lord Halsbury L.C. observed as under:
"How is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident...But nevertheless the law recognises that as a topic upon which damages may be given."
(iii) In yet another decision in Divisonal Controller, KSRTC v. Mahadeva Shetty and anotherreported in (2003) 7 SCC 197, at Paragraph 12, the Supreme Court has held that, "Broadly speaking, in the case of death the basis of compensation is loss of pecuniary benefits to the dependents of the deceased which includes pecuniary benefits to the dependents of the deceased which includes pecuniary loss, expenses etc. and loss to the estate. The object is to mitigate hardship that has been caused to the legal representatives due to the sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring the value of human life and the measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor should it be a source of profit for the person in whose favour it is awarded."
At Paragraph 15 of the said judgment, the Supreme Court has held that, "Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness, and non-arbitrariness. If it is not so, it cannot be just."
(iv) In Nizam Institute of Medical Sciences v. Prasanth S.Dhananka reported in (2009) 6 SCC 1 = 2010 ACJ 38 (SC), the Supreme Court, comprising of three Hon'ble Judges Bench was dealing with a case arising out of a complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs.15 lakhs to Rs.1 crore, the Hon'ble Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The adequate compensation that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. ...At the same time we often find that a person injured in an accident leaves his family in greater distress vis-a-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.
(emphasis supplied)
(v) In Reshma Kumari and others v. Madan Mohan reported in (2009) 13 SCC 422, the Apex Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below:
The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so.
In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben, 2008 ACJ 1097 (SC), held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor.
(emphasis supplied)
20. In addition to the above, the Claims Tribunal has awarded Rs.1,00,000/- under the head Pain and Suffering, Rs.50,000/- under the head Extra nourishment, Rs.2,000/- for transportation, Rs.5,000/- for damages to clothe and articles and Rs.2,81,591/- towards medical expenses, based on Ex.P8 to Ex.P10. Though the total amount worked out to Rs.25,76,991/-, the same has been rounded off to Rs.25,00,000/-. While determining the abovesaid amount, the Tribunal taking note of the amount claimed in the petition, has directed the respondent/claimant to deposit the deficit court fee.
21. The nature of injuries sustained by the respondent/claimant per se shows there is loss of amenities. Loss of amenities as explained by Full Bench of this Court in Cholan Roadways Corporation Ltd., v. Ahmed Thambi and others reported in 2006(4) CTC 433, is hereunder:-
"Loss of amenities : The next head of non-pecuniary loss is 'loss of amenities'. Besides damages for the pain and suffering sustained by a plaintiff by reason of his injuries, damages may be awarded for the losses sustained by him. Loss of amenities covers deprivation of the ordinary experiences and enjoyment of life and includes loss of the ability to walk or see, loss of a limb or its use, loss of congenial employment, loss of pride and pleasure in one's work, loss of marriage prospects and loss of sexual function. In India loss of marriage prospects and loss of enjoyment of life are awarded separately. Damages under this head are awarded whether the plaintiff is aware of the loss or not. They are awarded for the fact of the deprivation, rather than for the awareness of it."
22. Though on account of amputation of the left leg and permanent disablement to the extent of 66% assessed by PW2 Doctor, the respondent/claimant has lost his amenities, the Tribunal has not granted any compensation under this head.
23. In Kothandapani vs. Tamilnadu Transport Corporation, reported in 2011 (5) SCC 420, the Hon'ble Apex Court held that an injured is entitled to claim compensation under both heads, disability and loss of earning capacity. In the case on hand, there is not award for the disability.
24. Compensation of Rs.2,000/- awarded under the head transportation is meagre. The respondent/claimant, whose left leg below the knee has been amputated, would have visited the hospital, and incurred more expenditure. There is no award for the loss of income, during the period of hospitalisation and treatment. Though a sum of Rs.50,000/- is awarded for extra nourishment, it may be slightly on the higher side, but the same could be adjusted against lesser compensation awarded under the head transportation. During the period of hospitalisation, and treatment as outpatient, he would have taken the assistance of an Attender, for which, he has not been awarded any compensation, under the head, attendant charges.
25. Going through the entire material on record with reference to the challenge made in this appeal, we find that there is no manifest illegality in the impugned award warranting interference. For the reasons stated, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, C.M.P(MD)No.2336 of 2016 is closed.
26. In view of the dismissal of the appeal, the appellant is directed to deposit the entire award amount with proportionate accrued interest and costs, to the credit of MCOP.No.111 of 2008 on the file of Motor Accident Claims Tribunal, (Chief Judicial Magistrate), Sivagangai, within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the respondent/claimant is permitted to withdraw the same, by making proper application before the Tribunal.