IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED:
30. 01.2013 CORAM: THE HONBLE MR. JUSTICE S. MANIKUMAR C.M.A.Nos.3391 of 2012 and 997 of 2013 and M.P.No.1 of 2013 in CMA No. 997 of 2013 CMA No.3391 of 2012 ------------------- Venkatesh .. Appellant Vs. 1.M.K.Udayakumar 2.The Branch Manager, United India Insurance Co. Ltd., Branch Office, Micro Office, No.212, SFS 407.1st 'A' Main Road, New Town, Yelahanka, Bangalor”
064. .. Respondents For Appellant : Mr.Mukund R.Pandiyan For Respondents : Mr.M.B.Gopalan (for R2) CMA No. 997 of 2013 ------------------- The Branch Manager, United India Insurance Co. Ltd., Branch Office, Micro Office, No.212, SFS 407.1st 'A' Main Road, New Town, Yelahanka, Bangalor”
064. .. Appellant Vs.
1. Venkatesh 2.M.K.Udayakumar .. Respondents For Appellant : Mr.M.B.Gopalan For Respondents : Mr.Mukund R.Pandiyan (for R1) Common Prayer : These Civil Miscellaneous Appeals are filed under Section 173 of Motor Vehicles Act, 1988, against the Decree and Judgment passed by the Motor Accidents Claims Tribunal (Additional District Judge), Krishnagiri, made in M.C.O.P.No.1262 of 2006 dated 07.10.2009. C O M M O N JUDGMENT In the accident, which occurred on 31.05.2005, involving two vehicles viz., TVS 5.bearing Regn.not CAQ 895.and a car bearing Regn.not KA.02/MA 1865.belonging to the 1st respondent in CMA No.3391 of 2012 and insured with M/s. United India Insurance Company Limited, Bangalore, the motorcyclist who was hit from behind, sustained injuries. Hosur Traffic Investigation Wing Police has registered a case against the driver of the car in Cr.No.147 of 2005 under Sections 279 and 337 of IPC.
2. According to the appellant/injured, he has sustained fracture of both bones, in the left leg, lacerated wound, measuring 3cm x = cm x = cm, in the right parietal region of the scalp, lacerated wound, measuring 5 cm x 3 cm, bone deep middle 1/3rd of left leg and multiple injuries all over the body. He has also stated that as a Mosaic and granite tiles fixing mason, he earned Rs.3,300/- per month.
3. The owner of the Maruthi Car remained exparte and the Insurance company in its counter affidavit denied the manner of accident. According to them, the motorcyclist alone dashed against the car and thus caused the accident and for the above said reasons, denied their liability to pay compensation. Without prejudice to the above, they have disputed the nature of injuries, period of treatment and the quantum of compensation claimed under various heads.
4. Before the claims tribunal, the injured has adduced evidence as PW1. PW2, is the Doctor, who assessed the disability. Ex.P1, FIR, Ex.P2, Wound certificate, Ex.P3, Insurance Copy, Ex.P4, Motor Vehicle Inspector's report, Ex.P5, Driving licence, Ex.P6, Disability certificate and Ex.P7, X-ray, have been marked. No oral and documentary evidence has been let in by the Insurance company.
5. Upon evaluation of pleadings and evidence, the claims tribunal held that the driver of the car bearing Regn.No. KA.02/MA 1865.insured with the appellant alone was negligent in causing the accident. Though, PW2, Doctor, has assessed the extent of permanent disability at 45%, perusal of the award shows that the claims tribunal has reduced the extent of disablement to 35% and proceeded to compute the loss of future earning, by applying the second schedule to Section 163 (A) of the Motor Vehicles Act and by applying '16' multiplier, quantified the same at Rs.2,01,600/-. Apart from the above, the claims tribunal has not adverted to the quantum of compensation claimed under other heads and awarded only a sum of Rs.2,01,600/- with interest, at the rate of 6% per annum. For the above said decision, the claims tribunal has drawn support from the decisions of the Supreme Court and other High Courts, which are as follows: (i)Appaji (since deceased) and Anr. v. M. Krishna and Anr. [2004 ACJ 128.(Kar.) (DB)] (ii)2008 (2) T.A.C.769 (SC), (iii)2008 (2) TNMAC 11 (Guj), (iv)Sunil Kumar Vs. Ram Singh and Others [2008(1) TNMAC 43 SC)] (v)Reshma kumar and Others Vs. Madan Mohan and Another [2009(2) TNMAC 3 (SC)] and (vi)2009 (2) TNMAC 3 (SC).
6. Not satisfied with the quantum of compensation, the injured has filed CMA No.3391 of 2012.
7. Challenging the finding fixing negligence on the driver of the car and the quantum of compensation, United India Insurance company, Bangalore, has filed the appeal in CMA SR.No.28679 of 2010, with a delay of 10 days. Since the appeal filed for enhancement is taken up for hearing along with the appeal filed by the Insurance company and having satisfied with the sufficient cause shown in M.P.No.1 of 2010 in CMA SR. No.28679 of 2010, delay is condoned and the Registry is directed to number the appeal.
8. In the appeal filed by the Insurance Company, the finding regarding negligence on the driver of the car insured with them, has been assailed on the ground that it is erroneous. There is a further contention of contributory negligence. Quantum of compensation is also challenged on the ground that the claims tribunal ought not to have applied the second schedule to Section 163-A of the Motor Vehicles Act for arriving at the compensation, since the claim for compensation has been filed under Section 166 of the Motor Vehicles Act only. Except the above, no other challenge has been made.
9. As both the appeals arise out of the same accident, they are taken up together and disposed of by a common order.
10. Regarding the challenge to the finding fixing negligence on the driver of the car, involved in the accident, it is the case of the injured that on 31.05.2005, at 1.00 P.M., when he was riding his motorcycle, TVS 50.on Bangalore to Hosur main Road, from Sipcot, on the left side of the road, adhering to the traffic rules, near Mookandapalli Bus stop, the driver of the car bearing Regn.not KA 0.MA 1865.owned by the 2nd respondent and insured with United India Insurance Company, Bangalore, drove the vehicle in a rash and negligent manner and dashed against the TVS-50 and in the result, he fell down and sustained injuries. He sustained fracture of both bones in the left leg, lacerated wounds in the right parietal region. To support his contention, he has marked Ex.P1, FIR, Ex.P2, Wound certificate, Ex.P4, Motor Vehicle Inspector's report of the car. Whereas, no oral and documentary evidence has been let in on behalf of the insurance company.
11. Needless to say that the principles of law governing tortious liability is principles of preponderance of probability. Testing the correctness of the finding of negligence recorded by the claims tribunal, on the above principles, this Court is not inclined to reverse the finding recorded by the claims tribunal. Hence, the finding regarding negligence is confirmed.
12. On the quantum of compensation, perusal of the award shows that the application for compensation has been made under Section 163-A of the Motor Vehicles Act. Explaining the scope, and applicability of Section 163-A of the Motor Vehicles Act, to claims cases, the Supreme Court in National Insurance Co.Ltd., vs. Sinitha and others, reported in 2012 ACJ 01.at paragraphs 11, to 13, 15, 16 to 19, held as follows:- 11. Having arrived at the conclusion that the issue in hand has to be decided independently, we will now venture to determine whether a claim made under Section 163A of the Act is a claim under the fault liability principle, or under the no-fault liability principle. We are satisfied, that if a claim for compensation under a provision, is not sustainable for reason of a fault on account of any one or more of the following i.e., "wrongful act", "neglect" or "default", the provision in question would be governed by the "fault" liability principle. Stated differently, where the claimant in order to establish his right to claim compensation (under a particular provision) has to establish, that the same does not arise out of "wrongful act" or "neglect" or "default", the said provision will be deemed to fall under the "fault" liability principle. So also, where a claim for compensation can be defeated on account of any of the aforesaid considerations on the basis of a "fault" ground, the same would also fall under the "fault" liability principle. On the contrary, if under a provision, a claimant does not have to establish, that his claim does not arise out of "wrongful act 'quot; or "neglect" or "default"; and conversely, the claim cannot be defeated on account of any of the aforesaid considerations; then most certainly, the provision in question will fall under the "no-fault" liability principle.
12. For determination of the issue under consideration, namely, whether Section 163A of the Act is governed by the "fault" or the "no-fault" liability principle, it is first relevant for us to examine Section 140 of the Act, so as to determine whether it has any bearing on the interpretation of Section 163A of the Act. Section 140 aforesaid is being extracted hereunder : "140. Liability to pay compensation in certain cases on the principle of no fault. - (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. (5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force: Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A." For the instant determination, only sub-sections (3) and (4) are relevant. A perusal of sub-section (3) reveals, that the burden of "pleading and establishing", whether or not "wrongful act", "neglect" or "default" was committed by the person (for or on whose behalf) compensation is claimed under Section 140, would not rest on the shoulders of the claimant. In other words the onus of proof of "wrongful act", "neglect" or "default" is not on the claimant. The matter however does not end with this. A perusal of sub-section (4) of Section 140 of the Act further reveals, that the claim of compensation under Section 140 of the Act cannot be defeated because of any of the "fault" grounds ("wrongful act", "neglect" or "default"). This additional negative bar, precluding the defence from defeating a claim for reasons of a "fault", is of extreme significance, for the consideration of the issue in hand. It is apparent, that both sides are precluded in a claim raised under Section 140 of the Act from entering into the arena of "fault" ("wrongful act" or "neglect" or "default"). There can be no doubt, therefore, that the compensation claimed under Section 140 is governed by the "no- fault" liability principle.
13. In the second limb of the present consideration, it is necessary to carry out a comparison between Sections 140 and 163A of the Act. For this, Section 163A of the Act is being extracted hereunder: Section 163A. Special provisions as to payment of compensation on structured formula basis (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation - For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub- section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule." A perusal of Section 163(A) reveals that sub-section (2) thereof is in pari materia with sub-section (3) of Section 140. In other words, just as in Section 140 of the Act, so also under Section 163A of the Act, it is not essential for a claimant seeking compensation, to "plead or establish", that the accident out of which the claim arises suffers from "wrongful act" or "neglect" or "default" of the offending vehicle. But then, there is no equivalent of sub-section (4) of Section 140 in Section 163A of the Act. Whereas, under sub-section (4) of Section 140, there is a specific bar, whereby the concerned party (owner or insurance company) is precluded from defeating a claim raised under Section 140 of the Act, by "pleading and establishing", "wrongful act", "neglect" or "default", there is no such or similar prohibiting clause in Section 163A of the Act. The additional negative bar, precluding the defence from defeating a claim for reasons of a "fault" ("wrongful act", "neglect" or "default"), as has been expressly incorporated in Section 140 of the Act (through sub-section (4) thereof), having not been embodied in Section 163A of the Act, has to have a bearing on the interpretation of Section 163A of the Act. In our considered view the legislature designedly included the negative clause through sub- section (4) in Section 140, yet consciously did not include the same in the scheme of Section 163A of the Act. The legislature must have refrained from providing such a negative clause in Section 163A intentionally and purposefully. In fact, the presence of sub-section (4) in Section 140, and the absence of a similar provision in Section 163A, in our view, leaves no room for any doubt, that the only object of the Legislature in doing so was, that the legislature desired to afford liberty to the defence to defeat a claim for compensation raised under Section 163A of the Act, by pleading and establishing "wrongful act", "neglect" or "default". Thus, in our view, it is open to a concerned party (owner or insurer) to defeat a claim raised under Section 163A of the Act, by pleading and establishing anyone of the three "faults", namely, "wrongful act", "neglect" or "default". But for the above reason, we find no plausible logic in the wisdom of the legislature, for providing an additional negative bar precluding the defence from defeating a claim for compensation in Section 140 of the Act, and in avoiding to include a similar negative bar in Section 163A of the Act. The object for incorporating sub-section (2) in Section 163A of the Act is, that the burden of pleading and establishing proof of "wrongful act", "neglect" or "default" would not rest on the shoulders of the claimant. The absence of a provision similar to sub-section (4) of Section 140 of the Act from Section 163A of the Act, is for shifting the onus of proof on the grounds of "wrongful act", "neglect" or "default" onto the shoulders of the defence (owner or the insurance company). A claim which can be defeated on the basis of any of the aforesaid considerations, regulated under the "fault" liability principle. We have no hesitation therefore to conclude, that Section 163A of the Act is founded on the "fault" liability principle.
15. The heading of Section 163A also needs a special mention. It reads, "Special Provisions as to Payment of Compensation on Structured Formula Basis". It is abundantly clear that Section 163A, introduced a different scheme for expeditious determination of accident claims. Expeditious determination would have reference to a provision wherein litigation was hitherto before (before the insertion of Section 163A of the Act) being long drawn. The only such situation (before the insertion of Section 163A of the Act) wherein the litigation was long drawn was under Chapter XII of the Act. Since the provisions under Chapter XII are structured under the "fault" liability principle, its alternative would also inferentially be founded under the same principle. Section 163A of the Act, catered to shortening the length of litigation, by introducing a scheme regulated by a pre-structured formula to evaluate compensation. It provided for some short-cuts, as for instance, only proof of age and income, need to be established by the claimant to determine the compensation in case of death. There is also not much discretion in the determination of other damages, the limits whereof are also provided for. All in all, one cannot lose sight of the fact, that claims made under Section 163A can result in substantial compensation. When taken together the liability may be huge. It is difficult to accept, that the legislature would fasten such a prodigious liability under the "no-fault" liability principle, without reference to the "fault" grounds. When compensation is high, it is legitimate that the insurance company is not fastened with liability when the offending vehicle suffered a "fault" ("wrongful act", "neglect", or "defect") under a valid Act only policy. Even the instant process of reasoning, leads to the inference, that Section 163A of the Act is founded under the "fault" liability principle.
16. At the instant juncture, it is also necessary to reiterate a conclusion already drawn above, namely, that Section 163A of the Act has an overriding effect on all other provisions of the Motor Vehicles Act, 1988. Stated in other words, none of the provisions of the Motor Vehicles Act which is in conflict with Section 163A of the Act will negate the mandate contained therein (in Section 163A of the Act). Therefore, no matter what, Section 163A of the Act shall stand on its own, without being diluted by any provision. Furthermore, in the course of our determination including the inferences and conclusions drawn by us from the judgment of this Court in Oriental Insurance Company Ltd., v. Hansrajbhai V. Kodalac (supra), as also, the statutory provisions dealt with by this Court in its aforesaid determination, we are of the view, that there is no basis for inferring that Section 163A of the Act is founded under the "no-fault" liability principle. Additionally, we have concluded herein above, that on the conjoint reading of Sections 140 and 163A, the legislative intent is clear, namely, that a claim for compensation raised under Section 163A of the Act, need not be based on pleadings or proof at the hands of the claimants showing absence of "wrongful act", being "neglect" or "default". But that, is not sufficient to determine that the provision falls under the "fault" liability principle. To decide whether a provision is governed by the "fault" liability principle the converse has also to be established, i.e., whether a claim raised thereunder can be defeated by the concerned party (owner or insurance company) by pleading and proving "wrongful act", "neglect" or "default". From the preceding paragraphs (commencing from paragraph 12), we have no hesitation in concluding, that it is open to the owner or insurance company, as the case may be, to defeat a claim under Section 163A of the Act by pleading and establishing through cogent evidence a "fault" ground ("wrongful act" or "neglect" or "default"). It is, therefore, doubtless, that Section 163A of the Act is founded under the "fault" liability principle. To this effect, we accept the contention advanced at the hands of the learned counsel for the petitioner." 13. As per Sinitha's case (stated supra), if the claim is made under Section 163-A, it is always open to the insurance company to plead and prove, wrongful act, neglect or default on the part of the injured or the deceased and seek for exoneration of its liability to pay compensation to the injured/legal representatives of the deceased, as the case may be. As per Section 166 of the Motor Vehicles Act, the injured or the legal representatives of the deceased, as the case may be, can seek for compensation against the owner of the offending vehicle and its insurer, if there is a fault committed by the driver of the insured. A claim under Section 166 of the Act arises out of fault liability. At this juncture, this Court deems it fit to consider that a Larger Bench of the Supreme Court in Ningamma Vs. United India Insurance Co. Ltd., reported in 2009 (13) SCC 710.has held as follows 14. Section 163-A of the MVA was inserted by Act 54 of 1994 by way of a social security scheme. It is needless to say that the said provision is a code by itself. The said provision has been inserted to provide for a new / predetermined structured formula for payment of compensation to road accident victims on the basis of age/income of the deceased or the person suffering permanent disablement. In view of the language used in said section there could be no manner of doubt that the said provision has an overriding effect as it contains a non obstante clause in terms whereof the owner of the motor vehicle or the authorised insurer is liable to pay compensation in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
21. In our considered opinion, the ratio of the decision in Oriental Insurance Co. Ltd., v. Rajni Devi reported in 2008 (5) SCC 736.is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be an employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner and, therefore, he would step into the shoes of the owner of the motorbike. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle.
22. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA.
23. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A of the MVA and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case.
24. However, the question remains as to whether an application for demand of compensation could have been made by the legal representatives of the deceased as provided in Section 166 of the MVA. The said provision specifically provides that an application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made by the person who has sustained the injury; or by the owner of the property; or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be.
25. When an application of the aforesaid nature claiming compensation under the provisions of Section 166 is received, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award which, however, would be subject to the provisions of Section 162, by determining the amount of compensation, which is found to be just. Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by the legal representatives of the deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving. It would also be necessary to prove that the deceased would be covered under the policy so as to make the insurance company liable to make the payment to the heirs.
14. On the aspect of 'Just Compensation', the Supreme Court, at Paragraphs 34 to 36, held as follows:
34. Undoubtedly, Section 166 of the MVA deals with "just compensation" and even if in the pleadings no specific claim was made under Section 166 of the MVA, in our considered opinion a party should not be deprived from getting "just compensation" in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the court is duty-bound and entitled to award "just compensation" irrespective of the fact whether any plea in that behalf was raised by the claimant or not.
35. However, whether or not the claimants would be governed by the terms and conditions of the insurance policy and whether or not the provisions of Section 147 of the MVA would be applicable in the present case and also whether or not there was rash and negligent driving on the part of the deceased, are essentially a matter of fact which was required to be considered and answered at least by the High Court. While entertaining the appeal, no effort was made by the High Court to deal with the aforesaid issues, and therefore, we are of the considered opinion that the present case should be remanded back to the High Court to give its decision on the aforesaid issues.
36. The High Court was required to consider the aforesaid issues even if it found that the provision of Section 163-A of the MVA was not applicable to the facts and circumstances of the present case. Since all the aforesaid issues are purely questions of fact, we do not propose to deal with these issues and we send the matter back to the High Court for dealing with the said issues and to render its decision in accordance with law.
15. Reading of the above judgment in Ningamma's case (cited supra) makes it clear that even if a claim petition is made under Section 163-A of the Act, as Motor Vehicles Act, 1988, is a beneficial legislation, an injured/legal representatives of the deceased should not be deprived from getting a just compensation, irrespective of the fact, whether there was any pleading or not, with reference to Section 166 of the Motor Vehicles Act and that it is the duty of the Tribunal/Court, to consider the claim.
16. Sinitha's case has been decided by a Bench, comprising of two Judges. It is trite law that larger bench decision prevails. As per Ningamma's case, the injured is entitled to just compensation whether the application is made under Section 166 or 163 A of the Motor Vehicles Act. Therefore, the contention of the insurance company that merely because the claim has been made under Section 166 of the Act, computation of compensation cannot be made under Section 163 A of the Act, cannot be countenanced.
17. Perusal of the award shows that following the decisions, stated in the award, the claims tribunal has held that when a claim has been made under Section 163-A of the Motor Vehicles Act, there is no need to adjudicate the aspect of negligence.
18. On the quantum of compensation, though, there is a fracture of both bones and that the Doctor has also assessed the extent of disability at 45%, the claims tribunal has reduced the same to 35%. Though, Mr.Mukund R.Pandiyan, learned counsel for the injured submitted that the reduction of the extent of disability assessed by PW2, Doctor has been made without any basis, it cannot be lost sight of the fact that in some cases, the assessment by the Doctor is on the higher side. Variation in the assessment, as between the doctors, also cannot be ruled out. It also cannot be lost sight of an observation made by the Hon'ble Supreme Court in Jai Prakash vs. National Insurance Company reported in 2010 ACJ 455.where the Supreme Court observed that in Motor Accident Cases, that there is a nexus between the Doctor, Advocate and Police. Paragraph No.13(c), is extracted. "13. (c) The Tribunal shall enquire and satisfy itself that the AIR relates to a real accident and is not the result of any collusion and fabrication of an accident (by any `Police Officer - Advocate - Doctor' nexus, which has come to light in several cases)" In the light of the above decision, though, the learned counsel for the injured submitted that the reduction in the extent of disability is without basis, for the reasons stated supra, this Court is not inclined to interfere with the same.
19. As regards the manner, as to how the loss of future income has to be computed, it is worthwhile to extract few paragraphs from the notable judgment in Raj Kumar v. Ajay Kumar reported in 2011 ACJ 1 (SC), wherein, at Paragraph No.14, the Supreme Court has given certain illustrations. "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)].
20. According to the injured, he was a mosaic and granite tiles fixing mason. The accident has occurred on 31.05.2002. An ordinary mason cannot be compared with a skilled worker, like a mosaic and tiles fixing mason. Certainly, he has to cut the tiles to different shapes, depending upon the place, where it has to be fixed and it requires, comparatively, a better skill than that of an ordinary mason. Mosaic tiles are also fragile. In such a view of the matter, the monthly income of Rs.3,000/- determined by the tribunal for the purpose of computing the loss of income, requires a slight increase. Hence, this Court is inclined to fix the monthly income at Rs.3,300/- for the purpose of computing the loss of earning. The claimant has sustained fracture of both bones and the tribunal has determined the extent of disability at 35%. For laying a mosaic floor, a mason has to squat and do the work and the extent of disablement in the limb would affect his job. Considering the physical infirmity and the likelihood of loss in the earning capacity, this Court is inclined to apply the same extent of disability i.e. 35%, assessed by the tribunal, for assessing the loss of future earning capacity. Accordingly, the loss of future earning capacity by application of multiplier method to an extent of disability assessed by PW2, Doctor, works out to Rs.2,21,760/- (Rs.3300 x 12 x 16 x 35%).
21. As rightly contended by the learned counsel for the claimant, except the award towards loss of earning, the claims tribunal has not granted a just and reasonable compensation, under the other heads. Considering the nature of injures, fracture of both bones in the left leg, the injured would have been immobilized, atleast for a period of two months. Hence, this Court is inclined to award Rs.6,600/- towards loss of earning during the period of treatment and convalescence. A sum of Rs.20,000/- for pain and suffering would be reasonable. According to the claimant, there was a lacerated wound measuring 3 cm x = cm x = cm in the right parietal region of the scalp, lacerated wound measuring, 5 cm x 3 cm, bone deep middle 1/3rd of left leg and multiple injuries all over the body. For speedy recovery and for improving the general condition, the injured would have taken nutritious diet, for which a sum of Rs.5,000/- is awarded. As there were fractures in the leg, the injured would have engaged a motorised vehicle to visit the hospital and hence a sum of Rs.5,000/- is awarded for transportation and Rs.500/- is awarded towards damages to clothes.
22. The schedule for compensation in respect of fatal / injury cases was inserted by Act 54 of 1994 with effect from 14.11.1994 to the motor vehicles Act 1988. As per the 2nd schedule the following damages could be awarded in addition.
4. General Damages in case of Injuries and Disabilities: (i) Pain and Sufferings (a) Grievous injuries -Rs. 5,000/- (b) Non-grievous injuries -Rs. 1,000/- (ii) Medical Expenses-Actual expenses incurred supported by bills/vouchers but not exceeding as one time payment -Rs. 15,000/- 5. Disability in non-fatal accidents: The following compensation shall be payable in case of disability to the victim arising on 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”
23. The above said amendment has been inserted in the year 1994. Though there is escalation in the cost of living, inflation, diminishing value of money, and inspite of the fact that, time and again, the Apex Court in Oriental Insurance Co. Ltd., Vs. Hansrajbhai V.Kodala reported in 2001 (5) SCC 175.Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd., reported in 2004(5) SCC 385.Reshma Kumari Vs. Madan Dohan, reported in 2009 (13) SCC 42.and R.K.Malik Vs. Kiran Pal, reported in 2009 (14) SCC 1.has directed the Central government to pay attention on the quantum of compensation fixed wayback in the year 1994, for revision, the same amount remains in the statute, without any change.
24. Medical Expenses, disability compensation, loss of income for the actual period of disablement, not exceeding 52 weeks, loss of future earning are the heads, already available under Section 163-A of the Motor Vehicles Act and as per the decision of the Supreme Court in B.Kothandapani Versus Tamil Nadu State Transport Corporation Ltd., in Civil Appeal Nos.4330 and 4331 of 2011, the victim can be awarded compensation for both disability and loss of future earning, depending upon the facts and circumstances of the case.
25. In the result, the compensation awarded by the Tribunal is enhanced as follows: Loss of future income : Rs.2,21,760/- Pain and Suffering : Rs. 20,000/- Loss of income during the period of treatment : Rs. 6,600/- Transportation Charges : Rs. 5,000/- Nutrition : Rs. 5,000/- Damages to clothes : Rs. 500/- Total : Rs.2,58,860/- Award of the Tribunal : Rs.2,01,600/- Enhanced Amount : Rs. 57,260/- Considering the date of accident and the rate of interest which prevailed during that period, the rate of interest awarded by the claims tribunal is also increased from to 6% per annum to 7.5% per annum.
26. The claimant/injured is entitled to an enhanced compensation of Rs.2,58,860/- as against Rs.2,01,600/- awarded by the Tribunal with interest at the rate of 7.5% per annum. CMA No.997 of 2013, filed by the Insurance Company is dismissed. CMA No.3391 of 2012, filed by the claimant, is allowed. No costs. Consequently, the connected Miscellaneous petition is closed.
27. The United India Insurance Company Ltd., Bangalore, is directed to deposit the award amount now enhanced, with proportionate accrued interest at the rate of 7.5% and costs to the credit of MCOP No.1262 of 2006, on the file of Motor Accidents Claims Tribunal at (Additional District Judge), Krishnagiri, within a period of four weeks from the date of receipt of the copy of this order. On such deposit, the claimant/injured, (appellant in CMA No.3391 of 2012) is permitted to withdraw the award amount with proportionate accrued interest and costs, by making necessary applications. ars To The Motor Accident Claims Tribunal, Additional District Judge Krishnagiri