IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED:
26. 02.2013 CORAM: THE HONBLE MR. JUSTICE S. MANIKUMAR C.M.A.No.3565 of 2012 M.P.No.1 of 2012 Royal Sundaram Allianz General Insurance Co.Ltd., No.4-A, IV Floor, Thirumalai Towers, 723, Avanashi Road, Coimbator”
018. ... Appellant Vs. 1.Ramasamy. 2.Raja Thiruvengadam ... Respondents The Civil Miscellaneous Appeal is under Section 173 of Motor Vehicles Act, 1988, against the Decree and Judgment passed by the Motor Accidents Claims Tribunal (Principal Subordinate Judge), Krishnagiri, made in M.C.O.P.No.2 of 2009 dated 29.03.2012. For Appellant : Mr.M.B.Gopalan For Respondents : Mr.M.Selvam (for R1) JUDGMENT Questioning the quantum of compensation of Rs.7,95,850/- with interest at the rate of 6% per annum, awarded to a 27 years old man engaged in computer designing DTP works, and sustained, (1) a blunt injury abdomen CT showing shattered spleen with haemoperitoneum, (2) Chest injury CT showing bilateral clavicle fractured ribs 1,2,3(R), 8, 9(L) lung contusions LTR, (3) Fracture (r) Zygomatic arch and (4) Fracture transverse process (R) of Vertibra, Royal Sundaram Allianz General Insurance Co.Ltd., Coimbatore, has filed this appeal.
2. Assailing the correctness of the award, Mr.M.B.Gopalan, learned counsel for the appellant submitted that the claims tribunal has grossly erred in assessing the extent of disablement at 65% without any basis. He submitted that the claims tribunal has wrongly awarded Rs.4,32,000/- towards loss of income, by adopting multiplier method. According to him, even assuming that the respondent suffered 65% disability, the compensation that could have been awarded by the claims tribunal should be Rs.2,80,000/- only and not a sum of Rs.4,32,000/-, stated supra. It is his further contention that when the claims tribunal has awarded a huge sum of Rs.4,32,000/- towards loss of future income, a further award amount of Rs.1,30,000/- under the head disability compensation is not sustainable. For the above said reasons, he prayed for suitable reduction.
3. Heard the learned counsel for the parties and perused the materials available on record.
4. Just and reasonable compensation is the intention of the legislation. In more than one case, the Apex Court has explained what 'just and reasonable compensation' means. Before adverting to the facts of this Case and the objections / submissions on the quantum of compensation awarded by the claims tribunal to the 1st respondent, a person who is engaged in Computer designing work in a leading weekly journal and who has been completely incapacitated on account of bodily injuries, this Court deems it fit to extract few decisions on just compensation. (i) In R.D.Hattangadi v. M/s.Pest Control (India) Pvt. Ltd., reported in AIR 199.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 another reported 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." In 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 3.(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-`-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 dependents 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 109.(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) 5. As per the claim petition, the 1st respondent / claimant was working under the management of Junior Vikatan, a weekly journal in Salem Division. That on 13.03.2008, his friend who was working with him in the same Division decided to go to Palani Murugan temple along with his family to perform some ceremonies, to the children. The 1st respondent also accompanied him, in a Maruthi car bearing Regn.not TN02 J 6954.The car capsized due to rash and negligent driving and as a result of the same, he sustained the abovesaid injuries. A case in crime No.91 of 2008 has been registered under Sections 279, 337 and 304 (A) IPC. PW3, Doctor, who clinically examined the respondent, with reference to medical records, assessed the disability at 65% and issued Ex.A11, disability certificate. For the extent of disablement, expenses incurred, loss of income during the period of treatment, attendant charges, and other heads towards pecuniary and non pecuniary losses, the 1st respondent claimed compensation of Rs.20,00,000/-.
6. To support his contention that he has sustained grievous injuries, which resulted in whole body disablement, affecting loss of future income, he has produced Ex.A2, Wound certificate, Ex.A3, Discharge summary issued by Kovai Medical College Hospital, Coimbatore, Ex.A7, Discharge summary issued by Gokulam Hospital, Salem, Ex.A8, Medical Bills for a sum of Rs.3,230.50p, Exs.A9 and A10, Medical Bills and documents (Star Health and Allied Insurance Company Ltd.), and Ex.A12, X-ray. To prove that he was qualified in computer applications, he has produced Ex.A5, Certificate of proficiency in computers, issued by State Board of Technical Education and Training and Ex.A6, Certificate issued by Department of Technical Education to the petitioner, for a pass in Typewriting English Senior Grade.
7. The version of the 1st respondent that he has sustained grievous injuries and suffered whole body disablement is duly corroborated by medical records stated supra, and supported by the oral testimony of PW3, Doctor and while considering the objections / submissions made by the learned counsel for the appellant Insurance company, this Court deems it fit to reproduce paragraphs 4 and 5 from the award, in which, the claims tribunal has extensively considered the nature of injuries sustained by the respondent. The description of the injuries sustained by the respondent, clearly shows that inspite of the injuries, viz.,1) a blunt injury abdomen CT showing shattered spleen with haemoperitoneum, (2) Chest injury CT showing bilateral clavicle fractured ribs 1,2,3(R), 8, 9(L) lung contusions LTR, (3) Fracture (r) Zygomatic arch and (4) Fracture transverse process (R) of Vertibra and removal of spleen, the victim is fortunate to be alive. He was unconscious for some time.
8. As this Court has already extracted the details of the injuries which resulted in permanent disablement with disfiguration in the face and considering the approach in which, the claims tribunal has arrived at the conclusion of whole body disablement to a person engaged in Computer Designing and DTP works and the loss of earning capacity, this Court is of the view that there is no manifest illegality in the method adopted by the claims tribunal to award a just and reasonable compensation both under the heads disability and loss of earning capacity. Such a view is also approved by the Supreme Court in B.Kothandapani Vs. Tamilnadu State Transport Corpn. Ltd., (Civil Appeal Nos.4330 and 4331 of 2011. At this juncture, it is also worthwhile to reproduce the paragraph Nos.4 to 17 from the judgment in Raj Kumar v. Ajay Kumar reported in 2011 ACJ 1 (SC), wherein the Supreme Court with reasons and illustrations has explained as to how the Court / tribunal should assess the loss of earning capacity, if there is any permanent disablement suffered by the victim. "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 197.SC 376.R. D. Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC 55.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 29 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 169 of 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)].
15. After the insertion of section 163A in the Act (with effect from 14.11.1994), if a claim for compensation is made under that section by an injured alleging disability, and if the quantum of loss of future earning claimed, falls under the second schedule to the Act, the Tribunal may have to apply the following principles laid down in Note (5) of the Second Schedule to the Act to determine compensation : "5. Disability in non-fatal accidents : The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents : - Loss of income, if any, for actual period of disablement not exceeding fifty two weeks. PLUS either of the following :- (a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or (b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above. Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923." 16. We may in this context refer to the difficulties faced by claimants in securing the presence of busy Surgeons or treating Doctors who treated them, for giving evidence. Most of them are reluctant to appear before Tribunals for obvious reasons either because their entire day is likely to be wasted in attending the Tribunal to give evidence in a single case or because they are not shown any priority in recording evidence or because the claim petition is filed at a place far away from the place where the treatment was given. Many a time, the claimants are reluctant to take coercive steps for summoning the Doctors who treated them, out of respect and gratitude towards them or for fear that if forced to come against their wishes, they may give evidence which may not be very favorable. This forces the injured claimants to approach `professional' certificate givers whose evidence most of the time is found to be not satisfactory. Tribunals should realize that a busy Surgeon may be able to save ten lives or perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one accident case. Many busy Surgeons refuse to treat medico-legal cases out of apprehension that their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in coercing the Doctors to attend the Tribunal to give evidence. The solution lies in recognizing the valuable time of Doctors and accommodating them. Firstly, efforts should be made to record the evidence of the treating Doctors on commission, after ascertaining their convenient timings. Secondly, if the Doctors attend the Tribunal for giving evidence, their evidence may be recorded without delay, ensuring that they are not required to wait. Thirdly, the Doctors may be given specific time for attending the Tribunal for giving evidence instead of requiring them to come at 10.30 A.M. or 11.00 A.M. and wait in the Court Hall. Fourthly, in cases where the certificates are not contested by the respondents, they may be marked by consent, thereby dispensing with the oral evidence. These small measures as also any other suitable steps taken to ensure the availability of expert evidence, will ensure assessment of just compensation and will go a long way in demonstrating that Courts/Tribunals show concern for litigants and witnesses. Assessment of compensation.
17. In this case, the Tribunal acted on the disability certificate, but the High Court had reservations about its acceptability as it found that the injured had been treated in the Government Hospital in Delhi whereas the disability certificate was issued by a District Hospital in the State of Uttar Pradesh. The reason given by the High Court for rejection may not be sound for two reasons. Firstly though the accident occurred in Delhi and the injured claimant was treated in a Delhi Hospital after the accident, as he hailed from Chirori Mandi in the neighbouring District of Ghaziabad in Uttar Pradesh, situated on the outskirts of Delhi, he might have continued the treatment in the place where he resided. Secondly the certificate has been issued by the Chief Medical Officer, Ghaziabad, on the assessment made by the Medical Board which also consisted of an Orthopaedic Surgeon. We are therefore of the view that the High Court ought not to have rejected the said disability certificate." 9. The function of the Spleen as per medical text is as follows: "Human spleen: function, body location, diseases The human spleen is an organ that creates lymphocytes for the destruction and recycling of old red-blood cells. The spleen is also a blood reservoir. It supplies the body with blood in emergencies such as a bad cut. The spleen is also the location where while blood cells trap organisms".
10. In National Insurance Co. Ltd., Salem Vs. A.Marimuthu and another, reported in 2011 (1) TNMAC 729 similar to the case on hand, the injured a photographer therein sustained complex fracture in the left hand, chest ribs, damage to spleen, fracture in left humerus and 7th & 8th rib of left side rib cage, and assessed to have suffered 50% disablement by the Doctor. The tribunal accepted the extent of disablement. After fixing the monthly income at Rs.3,000/- and applying 15 multiplier, awarded Rs.2,70,000/- for 50% disablement. When the application of multiplier method was challenged among other grounds, considering the nature of injuries, seriousness of fracture in the ribs, removal of spleen and the accelerated complications on account of removal of spleen and following the guidelines contained in the Division Bench judgment of this Court in United India Insurance Co. Ltd., Vs. Veluchamy, reported in 2005 (1) TNMAC 8 (DB), a learned Judge of this Court has computed the quantum of compensation under the following heads.
1. Loss of income & disability 1(a) loss of earning capacity for disability assessed at 50% 2. Pain and sufferings 3. Medical bills, transport and extra nourishment 4. Attender charges 5. Loss of income during the period of treatment and convalescence for the period of six months. In the above case, considering the rate of interest prevalent, the same has been reduced to 7.5% per annum from 9% per annum.
11. In the light of the above decisions, this Court is of the view that no manifest illegality has been committed by the claims tribunal in awarding compensation both under the head loss of income during the period of treatment and disability, taking into consideration the extent of disablement assessed by the Doctor. Considering the over all facts and evidence of the case on hand, the judgment in Kothandapani's case stated supra is squarely applicable to the facts of this Case and therefore, the payment of disability compensation cannot be said as double compensation warranting any reduction. Quantum of compensation awarded under various heads by the claims tribunal to a young man cannot be said to be excessive or a bonanza or for the matter that it is an unjust enrichment for the suffering for the rest of his life time. Hence, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.
12. Consequent to the dismissal of the appeal, the appellant-Insurance Company is directed to deposit the entire award amount, with proportionate accrued interest at the rate of 6% per annum and costs, to the credit of M.C.O.P.No.2 of 2009 on the file of the Motor Accidents Claims Tribunal (Principal Subordinate Judge), Krishnagiri, within a period of four weeks from the date of receipt of the copy of this order, less the amount already deposited, if any. On such deposit, the 1st respondent / claimant is directed to withdraw the award amount with proportionate accrued interest and costs, by making proper applications. 26.02.2013 Index: Yes Internet: Yes ars To The Motor Accident Claims Tribunal, Principal Subordinate Judge, Krishnagiri S. MANIKUMAR, J.
ars C.M.A.No.3565 o”
26. 02.2013