Judgment:
1. The appeal in C.M.A.No.1974 of 2006 is preferred by the State Transport Corporation against the award of compensation of Rs.24,59,700/- in M.A.C.T.O.P.No.2940 of 2000 on the file of Motor Accident Claims Tribunal (II Judge, Small Causes Court, Chennai) for the injuries sustained by the Respondent/Claimant in a road traffic accident on 22.5.1999.
2. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the Claimant has filed Cross Objection No.26 of 2006.
3. The brief facts of the case are that on 22.5.1999 at about 9.30 a.m, when the Claimant was riding on his motor cycle bearing Regn.No.DL 45-R-9346 from Nandhampakkam to Madras and nearing the Butt Road Bus Stop, the Respondent's driver drove the bus bearing Regn.No.TN-23-N.1035 from Vellore to Madras in a rash and negligent manner and hit the Claimant's vehicle and as a result, the claimant sustained head injuries and admitted in the Hospital. The Respondent has been working as Accounts Executive in Country Consumer Finance Service, Chennai. Because of the head injuries, mental faculties and physiological functioning of the Claimant is affected. Alleging that the accident was due to the rash and negligent driving of the bus driver, Claimant through his mother Bhargavi filed Claim Petition claiming compensation of Rs.50,00,000/-.
4. The Tamil Nadu State Transport Corporation (in short, "TNSTC") resisted the Petition contending that the bus bearing Regn.No.TN-23-N-1035, which was on its trip from Vellore to Chennai, was observing all the rules and regulations of the road and when it was nearing St.Thomas Mount at Butt Road, the motor cycle bearing Regn.No.DL 45-R-9348 came from behind and when tried to overtake the Corporation bus by entering through the space on the left side, the Claimant fell down from the two wheeler and sustained injuries and the bus was immediately stopped.
5. According to the Corporation, it was no way responsible for the accident and therefore it is not liable to pay the compensation. The TNSTC has also inter alia raised objection as to the age, status and income of the claimant and pleaded that the quantum of compensation claimed is excessive and on the higher side.
6. To substantiate the claimant's claim, mother of the Claimant was examined as P.W.1. The representative of the employer Sunil Kesavan was examined as P.W.2 and Dr.Diwakar who issued Ex.P.20 disability certificate was examined as P.W.5. That apart P.Ws.3, 4 and 6 viz., Ravi Sankar, Veeraraghavan and Kannan were also examined. Exs.P.1 to P.21 were marked. On the side of Corporation, the driver, who was on duty in the bus involved in the accident, was examined as R.W.1.
7. Upon consideration of oral and documentary evidence, the Tribunal held that the accident was due to rash and negligent driving of the bus driver. Based upon Ex.P.20 and evidence of P.W.5 Dr.Diwakar, the Tribunal held that the Claimant is immobilised for the rest of his life and assessed the permanent disability at 100 percent and awarded compensation of Rs.24,59,700/- as under: Transport charges :
Rs. 15,000/-
Pain and suffering : Rs. 20,000/-
Disability (100%) : Rs. 1,50,000/-
Loss of income and : Rs. 21,60,000/-
earning power
(10,000 x 12 x 18)
Attender Charges : Rs. 1,00,000/-
Physician Charges : Rs. 14,700/-
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Total : Rs.24,59,700/-
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8. Learned counsel for Appellant Corporation contended that the Claimant drove the motor cycle in a rash and negligent manner without valid driving licence and the Tribunal ought to have fixed contributory negligence on the part of Claimant. It was further argued that the treatment records were marked through mother of the Claimant without examining the author of the documents and the Tribunal erred in adopting the multiplier method in determining the compensation. It was further submitted that the quantum of compensation of Rs.24,59,700/- awarded is very much excessive and on the higher side.
9. Drawing our attention to the report received from Director of Medical Health Services, Ispat General Hospital (under the control of Roorkela Steel plant), learned counsel for Respondent submitted that in spite of the intensive treatment, the Claimant's mental faculties continued to be impaired and that the Claimant is confined to wheel chair with limbs paralysed and is constantly indwelling catheter permanently and that he was in need of help of others for day to day activities and the quantum of compensation awarded by the Tribunal is very much less. It was further submitted that as per the medical opinion, the recovery of the claimant is very remote. For the rest of his life, the Claimant has to be dependant on others and therefore the compensation amount has to be enhanced.
10. In his evidence, P.W.3 Ravisankar has stated that on 22.5.1999 at 9.30 A.M, when he was proceeding in his car, he saw the Claimant, who is his cousin brother, proceeding in his motor cycle bearing Regn.No.DL-49-R-9346 and the Transport Corporation Bus bearing Regn.No.TN-23-N-1035 was driven in a rash and negligent manner, hit the motor cycle due to which the Claimant had fallen down and sustained grievous head and multiple injuries. Immediately after the accident, P.W.3 lodged the complaint that the bus was driven in a rash and negligent manner and overtook his car and hit the motor cycle and based on his complaint, a case in Crime No.325 of 1999 on the file of B.1 Thomas Mount Police Station was registered against the bus driver under Section 279 and 337 IPC. Evidence of P.W.3 is strengthened by the contents in Ex.P.13 F.I.R. After completion of investigation, charge sheet was also filed against the bus driver. On the side of Corporation, excepting the interested version of bus driver (R.W.1), no other independent evidence was adduced to disprove the case of the Claimant. Even though the Corporation has raised the plea of contributory negligence, except the interested version of R.W.1/driver, no substantive evidence was adduced to establish contributory negligence. In the absence of independent evidence, the plea of contributory negligence cannot be said to have been established by the Appellant Corporation. Based on the evidence of P.W.3 and the registration of the case against the bus driver, the Tribunal rightly held that the accident was due to rash and negligent driving of the bus driver. The finding of the Tribunal on the question of negligence is unassailable and in fact that aspect was not seriously challenged in the Appeal.
11. The main question falling for consideration is, the quantum of compensation to be awarded to the Claimant and whether the compensation of Rs.24,59,700/- awarded by the Tribunal is to be enhanced.
12. In the accident, the Claimant had sustained head injuries and multiple injuries. He sustained left tempo parietal and occipital extradural and subdural haemorrhage (EDH & SDH respectively), diffuse subarachnoid haemorrhage and intraventricular haemorrhage with mass effect; fracture right side 1st and 3rd rib, fracture right scapula and right Haemothorax and other injuries. Immediately, after the accident, the Claimant was admitted in Balaji Hospital, where he had taken treatment from 22.5.1999 to 27.5.1999. The nature of intensive treatment given to him is elaborated in Ex.P.1 discharge summary issued by Balaji Hospital. Thereafter the Claimant had taken treatment in Apollo Hospital, Chennai from 28.5.1999 to 25.2.2000 and Ex.P.2 is the discharge summary. The nature of treatment given to the Claimant as seen from Ex.P.2 is as under: "..... He was given physiotherapy and speech therapy. He is able to articulate mouth but unable to make meaningful sounds. He also follows simple commands. He is being made to stand on titting (sic. sitting) table and tolerates the procedure well. The orthopaedic surgeon advised continuation of conservative management for fractures rib and scapula...... He is being discharged with a GCS of 10/15. He is unable to take care of his needs and requires nursing care and physiotherapy...."
13. Again, the Claimant was admitted in the Apollo Hospital on 3.7.2000 and taken treatment for about one month upto 26.7.2000, as seen from Ex.P.3 discharge summary. The Claimant had taken further treatment in Vellore Christian Medical College and Hospital (C.M.C.Hospital) from 7.5.2001 to 5.8.2001 and Ex.P.4 is the discharge summary issued by C.M.C., Vellore, wherein the condition of the claimant has been reviewed as under: ".... He was made to stand on a standing table and progressed to parallel bar with right knee ankle foot orthoses. Voluntary control on left side significantly improved. As his cognitive function was poor this could not be progressed. Noticed significant improvement in attention span after starting oral bromocriptine. He could vocalise with ineligible sounds but can't articulate. His comprehension also improved but could not quantify. EMG/NCV suggestive of right complete brachial plexus injury..... He was given a home program. Care givers are trained in providing care to the patient (ADL). Advised to follow home program strictly. If there is consistent progress in activities, may be considered for future rehabilitation...."
14. Even after intensive and continuous treatment, the higher function of the claimant is impaired and his speech is incoherent and his remote memory has been impaired. Since the Claimant is immobilised and his remote memory has been impaired, mother of Claimant was examined as P.W.1. In her evidence, P.W.1 has stated that even after treatment, the claimant is bedridden and that they have engaged attenders to attend to him and the Claimant is almost in coma stage. P.W.1 has further stated that the Claimant has been discharged from service and for the rest of his life the attenders are to attend to him. To substantiate her evidence, the photographs of the Claimant were also marked as Ex.P.12. P.W.4 has been employed as a driver-cum-attender in the claimant's family. In his evidence, P.W.4 has stated that the Claimant is bedridden and almost in a coma stage and that he is attending to the Claimant in giving him bath and changing clothes and attending to him in his day to day routine.
15. Dr.Diwakar, who is a Neuro Surgeon in Apollo Hospital and who has treated the Claimant and also examined him for assessing the disability, was examined as P.W.5. In his evidence, P.W.5 has stated that the Claimant has sustained head injuries and the mental faculties are affected and the Claimant has sustained life long 100 percent permanent disability. P.W.5 has further stated that inspite of intensive treatment there was not much improvement and that the Claimant is is on indwelling catheter permanently. The claimant is bedridden and is on indwelling catheter permanently and throughout his life he would be in need of help of others.
16. P.W.5 issued Ex.P.20 - permanent disability certificate after examining the claimant in 2004. When the Appeal came up before us in 2010, it was stated that the Claimant continues to be in the same state. Since the Claimant is residing in Roorkela, by our order dated 17.3.2010, we have directed the Director of Medical Health Services, Ispat General Hospital (under the control of Roorkela Steel plant) to depute a panel of Doctors to submit a report as to the present condition of the claimant. Pursuant to the order of the Court, the Medical team of directors headed by Dr.G.N.Sahoo (Chairman of the Board) examined the Claimant and sent its report. As per the said report, the present condition of the Claimant is stated as under:
"Present Condition:-
Higher function Impaired Speech incoherent, irrelevant, incomprehensible Memory Immediate, recent and remote memory impaired Intelligence Insight and concept grossly impaired Cranial Nerve Examination - 7th Nerve palsy (right side) Mobility confined to wheel chair with right limbs paralysis Bladder patient is on indwelling catheder permanently. He was in need of help of others for day-to-day activities.
Possibility of recovery:-
Probability of cognitive and higher function recovery is very remote. Patient is not likely to be independent to take care of himself and his day-to-day activities. Future course of treatment:-
To continue physiotherapy of limbs, care of bladder & bowel and neuro-psychiatry consultation (to enhance the cognitive function) are required for future management."
17. The physical frame of the claimant has been shattered and money cannot compensate what has been shattered. No amount of compensation can restore the lost limp of the claimant. In (1874) 4 QBD 406 (PHILLIPS VS. WESTERN RAILWAY CO.), Field,J., while emphasising that damages must be full and adequate, it was held thus: "you cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation once and for all. He has done no wrong, he has suffered a wrong at the hands of defendants and you must take care to give him full and fair compensation for which he has suffered."
18. In 1980 ACJ 55 (SC) (CONCORD OF INDIA INSURANCE CO.LTD. VS. NIRMALA DEVI), the Supreme Court held as follows:
"2. ...... the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales. ..."
19. While awarding the compensation, the Courts/Tribunals should take into consideration the relevant factors so as to enable the Claimant to put back into original position. The compensation to be awarded is to be just and reasonable and not bonanza. But at the same time, the compensation awarded should not be a mere pittance amount. As discussed earlier, the physical frame of the Claimant has been shattered and now he has been reduced to a vegetable existence. Having regard to the present condition of the Claimant, the question falling for our consideration is, whether the compensation of Rs.24,59,700/- is reasonable and whether the same has to be enhanced.
20. The Claimant has been working as Accounts Executive in Country Consumer Finance Service (joint venture of HDFC and GE capital). Ex.P.17 is the salary certificate of the Claimant, which would show that the Claimant has been drawing Rs.2,47,021/- per annum apart from bonus of Rs.9,079/-. Even though the total income of the Claimant was Rs.2,47,021/- per year, the Tribunal has taken the monthly income only at Rs.10,000/- per month. Absolutely there is no reasoning for taking the income of the Claimant at Rs.10,000/- per month. The Claimant was qualified Law Graduate (Ex.P.6) and he also completed Bachelor of Commerce Degree course (Ex.P.8) and also obtained a Post Graduate Diploma as seen from Ex.P.9. He has also completed his Diploma course in Computer Applications. Exs.P.6 to P.11 would show that the Claimant was a highly qualified and that he kept on improving himself by acquiring more qualifications.
21. As pointed out earlier, at the time of accident, he has been working as Accounts Executive in Country Consumer Finance Service (joint venture of HDFC and GE capital) and he was receiving Rs.2,47,021 apart from bonus of Rs.9,070/- and the total income of the injured person is Rs.2,56,091/-, which is rounded off to Rs,2,56,000/- per annum. When the deceased was earning higher income and was also highly qualifiedly having future prospects, the Tribunal was not right in taking the monthly income at Rs.10,000/- per month. In our considered view, the Tribunal ignored the nature of treatment given to the Claimant and his condition and his educational qualifications and future prospects.
22. The Claimants have produced Ex.P.17 salary certificate and Ex.P.18 bonus details. Going by Exs.P.17 and 18 claimant would have got not less than Rs.20,585/- per month which is inclusive of transportation allowance, medical allowance and other allowances, which means the Claimant would have got Rs.20,585/- per month. Deducting 1/3rd for personal expenses ie., Rs.6,862/-, the deceased would have saved about Rs.14,000/- per month. The Claimant was only 27 years and ambitious in coming up in life, his monthly income could be taken as Rs.15,000/- per month. As discussed earlier, the Claimant is now totally immobilised and depending on others for the rest of his life. P.W.1 has stated that the Claimant was also discharged from service.
23. In considering the quantum of compensation to be awarded for "permanent disability" in appropriate cases, Court could adopt multiplier method. In 2005 (1) CTC 38 [United India Insurance Co., Ltd., Tiruchengode v. Veluchamy and another], the Division Bench of this Court, in Paragraph (11) has laid down the principles governing assessment of damages in personal injury cases. "11. The following principles emerge from the above discussion:
(a) In all case of injury or permanent disablement "multiplier method"cannot be mechanically applied to ascertain the future loss of income or earning power. (b) It depends upon various factors such as nature and extent of disablement, avocation of the injured and whether it would affect his employment or earning power etc., and if so, to what extent? (c) (1) If there is categorical evidence that because of injury and consequential disability, the injured lost his employment or avocation completely and has to be idle till the rest of his life, in that event loss of income or earning may be ascertained by applying "multiplier method" as provided under Second Schedule to the Motor Vehicles Act, 1988. (2) Even if so there is no need to adopt the same period as that of fatal cases as provided under the Schedule. If there is no amputation and if there is evidence to show that there is likelihood of reduction or improvement in future years, lesser period may be adopted for ascertainment of loss of income. (d) Mainly it depends upon the avocation or profession or nature of employment being attended by the injured at the time of accident.
24. Applying the ratio of the above decision, since the claimant in this case has sustained 100 percent disability and totally immobilised, it would be just and reasonable to adopt multiplier method. At the time of accident the Claimant was aged 27 years. Hence, as per the Second Schedule to M.V. Act, multiplier "18" is adopted. The compensation for permanent disability/loss of earning power is calculated at Rs.32,40,000/- (Rs.15,000 x 12 x 18).
25. The Tribunal has awarded Rs.1,50,000/- for permanent disability. When the Tribunal is awarding compensation for permanent disability and earning capacity, there cannot be separate compensation for the injuries sustained. In 2006 ACJ 2703 [Cholan Roadways Corporation Ltd. v. Ahmed Thambi and others], First Bench of this Court has considered the principles of assessment of compensation for permanent disability and on account of earning capacity. Holding that loss of earning capacity and compensation for permanent disability need not be separately assessed. To ensure clarity and transparency in the award of damages, First Bench of this Court has laid down guidelines and also enumerated various heads under which the compensation is to be itemised. "19. In order to avoid any future confusion and to bring more clarity and transparency in the award of damages, it is necessary that the tribunal, while awarding damages, should itemise the award under each of the head namely, pecuniary losses and non-pecuniary losses. In the non-pecuniary losses the tribunal shall consider a) pain and suffering, b) loss of amenity, c) loss of expectation of life, hardship, mental stress, etc; d) loss of prospect of marriage and under the head pecuniary loses, the tribunal shall consider loss of earning capacity and loss of future earnings as one component apart from medical and other expenses and loss of earning, if any from the date of accident till the date of trial. When loss of earning capacity is compensated as also the non-pecuniary losses under (a) to (d), permanent disability need not be separately itemised." Therefore, compensation of Rs.1,50,000/- awarded for the injuries/disability cannot be sustained.
26. As pointed out earlier, the Claimant had taken treatment for nearly one year i.e,, in Balaji Hospital for about 5 days, Apollo Hospital from 28.5.1999 to 25.2.2000 in the first spell and in the second spell from 3.7.2000 to 26.7.2000. Again, the Claimant had taken treatment in C.M.C., Vellore for three months i.e., from 7.5.2001 to 5.8.2001. The Claimant had taken intensive treatment for nearly 12 months during which months he has lost his actual earnings. For the loss of actual earning for the said period of 12 months, compensation for Rs.2,50,000/- is to be awarded. The Tribunal has awarded transport charges of Rs.15,000/- as against the claim of Rs.17,000/-. As the Claimant has sustained injuries in Tamil Nadu and later he has been taken to various Hospitals, it would be appropriate to award compensation of Rs.75,000/- for transportation charges as claimed by the Claimant. Likewise, the quantum of compensation for pain and suffering is enhanced to Rs.25,000/- (as claimed by the Claimant himself). Towards Attender charges, the Tribunal awarded Rs.1,00,000/- . Since the claimant has to depend on the attenders throughout his life, the compensation for attender charges is enhanced to Rs.3,00,000/- (the amount as claimed by the Claimant). Ex.P.21 is the bills for physiotherapy and a sum of Rs.14,700/- was awarded by the Tribunal towards physician charges and the same is maintained. The compensation awarded to the Claimant by the Tribunal is enhanced to Rs.39,04,7000/- and the break up details of compensation are as under: Transport charges :
Rs. 75,000/-
Pain and suffering : Rs. 25,000/-
Loss of actual earning : Rs. 2,50,000/-
Loss of earning/ : Rs. 32,40,000/-
permanent disability
(15,000 x 12 x 18)
Attender Charges : Rs. 3,00,000/-
Physician Charges : Rs. 14,700/-
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Total : Rs.39,04,700/-
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The Tribunal has awarded interest at the rate of 7.5 percent per annum and the same is maintained.
27. In the result, the compensation awarded to the Claimant in M.A.C.T.O.P.No.2940 of 2000 on the file of Motor Accident Claims Tribunal (II Judge, Small Causes Court, Chennai) is enhanced to Rs,39,04,700/- payable with interest at the rate of 7.5 percent per annum and the Civil Miscellaneous Appeal filed by the Transport Corporation is dismissed and the Cross Objection filed by the Claimant is allowed. It is submitted that the Appellant - Transport Corporation has deposited the entire compensation amount as awarded by the Tribunal and the Claimant has also withdrawn 50 percent of the compensation amount deposited. The Claimant is permitted to withdraw the balance compensation amount along with accrued interest lying to the credit of M.C.O.P.No.2940 of 2000. The Appellant Transport Corporation is directed to deposit the enhanced compensation along with the accrued interest within a period of eight weeks from the date of receipt of copy of this order. On such deposit, the Claimant is permitted to withdraw the enhanced compensation amount payable to him. However, there is no order as to costs. Consequently, the connected M.P.Nosa.2 and 3 of 2006 are closed.