D. Soundrarajan Vs. C.E.X. Onix Pvt. Ltd. and Another - Court Judgment

Excerpt:
(prayer in both c.m.as.:- appeals against the judgment and decree dated 19.06.2006 made in mactop no.580 of 2002 on the file of the motor accidents claims tribunal (v judge, court of small causes), chennai.)common judgment: since c.m.a.no.266 of 2007 filed by the insurer and c.m.a.no.3544 of 2006 filed by the injured are connected on facts and law, they were tagged together, heard together and are being disposed of by this common judgment. 2. dissatisfied with the quantum of compensation awarded, the injured in a road accident and the insurance company have directed these appeals. 3. let us have the array of parties as given in c.m.a.no.3544 of 2006. 4. on 08.06.2001, at about 8.15. p.m., while the appellant was cycling along judge jambulingam road, near radhakrishna road, chennai, he was knocked down by the lorry belonging to the first respondent, which has been insured with the second respondent. the appellant sustained multiple grievous injuries on his legs. he was then 44 years old. a watchman-cum-menial assistant in the house of an ex-minister. he was paid rs.3,000/- p.m. (ex.p.9, salary certificate). p.w.2-dr.saichandran determined his disability at 60% and issued him ex.p.10-disability certificate. 5. the tribunal concluded that the accident was due to the rash and negligent driving of the lorry driver and awarded compensation as under:- ad>sl.no.headamount in rs.1loss of income during treatment period(rs.3,000/- x 12)360002transportation charges50003nutritious food expenses50004medical expenses10005pain and suffering500006mental agony to the wife and children of the appellant100007partial permanent disability750008loss of earning capacity100000 total2820006. mr.a.n.viswanatha rao, learned counsel for the appellant contended that due to the effect of the disability the appellant continue to suffer. since he could not work as before, he had also lost his future earning capacity. in assessing the compensation, the tribunal did not adopt any proper method. it is a fit case for adopting the multiplier method. under all the heads, less compensation has been granted. still the appellant undergoes agonising pain. he has lost full enjoyment of his life. he has been hospitalised for a considerable period. however, no compensation for loss of amenities of life, future medical expenses and attendant charges has been granted. what was granted is not ‘just compensation’. 7. in support of his submissions, mr.rao cited the following decisions:- 1. budh singh vs. pritam singh and others [2011 (3) t.a.c.58 (p & h.) ] 2. raj kumar vs. ajay kumar and another [2011 acj 1] 3. c.mohanraju vs. divisional manager, united india assurance co. ltd. and another [2011 (1) tn mac 554 (sc)] 4. nagarajappa vs. the divisional manager, oriental insurance co. ltd. [2011 (1) tn mac 557 (sc)] 5. rudra vs. national insurance co. ltd. & another [2011 (1) tn mac 537 (sc)] 6. sri laxman @ laxman mourya vs. divisional manager, oriental insurance co. ltd. & another [2012 (1) tn mac 28 (sc)] 7. ram kiran goyal (d) through l.rs. vs. sub-divisional engineer and others [2012 (1) t.a.c. 744 (sc)] 8. manoj rathaur vs. anil raheja and others [2012 acj 1459] 8. mr.s.vadivel, learned counsel for the second respondent/insurance company contended that the tribunal after having awarded rs.75,000/- towards disability, it ought not to have again awarded rs.1,00,000/- for loss of earning capacity. it amounts to double compensation. granting rs.10,000/- to the wife and children of the appellant for mental agony in an accident will not arise. on the whole, what was awarded itself is excessive. 9. i have considered their rival submissions. perused the entire evidence on record, gone through the impugned judgment of the tribunal and the decisions cited. 10. whether it is a fatal case or injury case, the tribunals are statutorily bound to grant 'just compensation' to the road accident victims. it is to put them in the position, they were prior to the untoward incident/accident. it could be by adequately compensating them. it is a difficult task. in this, no mathematical precision could be achieved. so, some guesswork could be done. but, it should not be a wildguess. in any case, there shall not be any bonanza or misplaced sympathy. very many losses might have been sustained by the road accident victims. while converting them into monetary terms, the tribunals shall keep in mind the various factors, which have relevance to their sufferings. 11. the damages (compensation) for these losses are of two kinds, namely, pecuniary damages and non-pecuniary damages. 'pecuniary damages' could be easily calculated in terms of money as they are very much associated with monetary loss. examples of this type of damages are loss of income during treatment period, medical expenses, transportation charges, nutritious food expenses, cremation expenses and future medical expenses etc. 'non-pecuniary damages' cannot be correlated to money. they mainly relates to physical discomfiture, sufferings of the victims, such as pain and suffering, trauma, mental agony, disability, loss of amenities of life, love and affection, consortium and disfigurement etc. no amount of money could compensate them these losses. however, some sort of yardstick should be adopted to adequately compensate them in terms of money for these sufferings. 12. in fatal cases, question of granting disability compensation will not arise. only in injury cases, it arises. for this purpose, the term 'disability' is to be properly understood. if, misunderstood, it will result in causing further agony to the already suffering victims of road accidents. disability may result in loss of full or partial enjoyment of life the functioning or putting use of their limbs, which was normal and usual but for the accident. it may disable the affected from engaging themselves in the avocation to which they were engaged before the accident. it may affect their ability to earn, namely, their earning capacity, it may be either full or partial. each disability must be properly gauged and the disabled must be adequately compensated. thus, physical disability may pertain to bodily enjoyment of life. the disability may also affects their ability to earn, resulting in economic loss to them. these losses must be assessed by adopting proper method. one of them is 'multiplier method'. in any case, all types of disabilities shall not be misunderstood as one and the same. it could be achieved by a careful analysis of the matter. the medical evidence plays a crucial role in assessing the extent of loss suffered by them. 13. in the case before us, the road accident had taken place on 08.06.2001. in this accident, the appellant sustained multiple injuries. he had sustained major grievous injury on his right leg. he sustained fracture. he had undergone surgical treatment. he was operated more than once. he was an indoor patient from 14.04.2004 to 26.05.2004 (see ex.p.2). on 25.05.2004, he was operated. again, on 13.10.2004, he was hospitalised and was discharged on 18.07.2005 (see ex.p.3). during the second time, again he was operated. ex.p.8-photographs shows that his right leg has been completely affected. p.w.2-dr.saichandran examined him, seen his medical records (exs.p.1 to p.4 and p.11-x-ray) and determined his disability at 60% (see ex.p.10-disability certificate). according to p.w.2, there is no union of fracture at the right leg, thus, he suffers pain when he stands. he could walk only with a walker. the tribunal had also noted that the appellant could able to walk only with a walker. thus, it is clear that he had become a disabled man. he cannot stand as before. he cannot walk as before. so, he cannot work as before. in the circumstances, we accept his disability at 60% as assessed by p.w.2. 14. on the date of accident, the appellant was 44 years old. then he was a watchman-cum-menial assistant. he was paid rs.3,000/- p.m.. now, because of the disability, he could not work as before, as even to walk he need a walker. so, he cannot earn as a watchman. there is loss of earning capacity. the tribunal awarded him rs.75,000/- for his disability and rs.1,00,000/- for his loss of future earning capacity. it has not followed any method. this is not the correct way of granting him just compensation. in the facts and circumstances, it is a fit case for adopting the multiplier method. 15. for a person of 44 years old, the multiplier is '14'. he earned rs.3,000/- p.m. since it is a case of disability compensation, no deduction for his pleasure and other expenses shall be made from his income. now, calculating on the above lines, loss of future earning capacity comes to rs.3,02,400/- (rs.3,000/- x 12 x 14 x 60/100). 16. now, because of the disability, he cannot enjoy his life as before. there is loss of amenities of life to him. we convert rs.75,000/- granted by the tribunal as disability compensation as compensation for loss of amenities of life. he took treatment for a considerable period. he has to make lot of to and fro trips. he has to spent considerably towards transportation charges. under this head only rs.5,000/- has been awarded. it is increased to rs.7,000/-. towards nutritious food expenses only rs.5,000/- has been granted. it is increased to rs.8,000/-. no amount has been awarded under the head 'attendant charges'. under this head, he is awarded rs.5,000/-. although he had taken treatment in govt. hospital, where the treatment is free, still he has to spent considerably. towards medical expenses only rs.1,000/- has been granted. it is increased to rs.5,000/-. rs.10,000/- granted to the wife and children of the appellant for their mental agony will not arise. so, it is deleted. rs.50,000/- for pain and suffering and rs.36,000/- for loss of income during his treatment period awarded by the tribunal are maintained. 17. the award of the tribunal is modified as follows:- ad>sl.no.headamount in rs.1loss of income during treatment period (rs.3,000/- x 12)360002transportation charges70003nutritious food expenses80004medical expenses50005pain and suffering500006attendant charges50007loss of amenities of life750008loss of earning capacity302400 total48840018. in the result, the award of the tribunal is modified. the claimant, who is appellant in c.m.a.no.3544 of 2006 is awarded a total compensation of rs.4,88,400/- with 7.5% interest p.a. from the date of filing the claim petition till deposit. within 4 weeks from the date of receipt of a copy of this judgment, the insurance company shall deposit the entire compensation amount, less amount, if any, already deposited. on such deposit, the claimant is permitted to withdraw the entire amount, less amount, if any, already withdrawn. c.m.a.no.3544 of 2006 is allowed in part and c.m.a.no.266 of 2007 is dismissed. no costs.

Judgment:

(PRAYER in both C.M.As.:- Appeals against the judgment and decree dated 19.06.2006 made in MACTOP No.580 of 2002 on the file of the Motor Accidents Claims Tribunal (V Judge, Court of Small Causes), Chennai.)COMMON JUDGMENT:

Since C.M.A.No.266 of 2007 filed by the insurer and C.M.A.No.3544 of 2006 filed by the injured are connected on facts and law, they were tagged together, heard together and are being disposed of by this common Judgment.

2. Dissatisfied with the quantum of compensation awarded, the injured in a road accident and the Insurance Company have directed these appeals.

3. Let us have the array of parties as given in C.M.A.No.3544 of 2006.

4. On 08.06.2001, at about 8.15. p.m., while the appellant was cycling along Judge Jambulingam Road, near Radhakrishna Road, Chennai, he was knocked down by the lorry belonging to the first respondent, which has been insured with the second respondent. The appellant sustained multiple grievous injuries on his legs. He was then 44 years old. A Watchman-cum-Menial Assistant in the house of an Ex-Minister. He was paid Rs.3,000/- p.m. (Ex.P.9, Salary Certificate). P.W.2-Dr.Saichandran determined his disability at 60% and issued him Ex.P.10-disability certificate.

5. The Tribunal concluded that the accident was due to the rash and negligent driving of the lorry driver and awarded compensation as under:-

ad>

Sl.No.	Head	Amount in Rs.
1	Loss of income during treatment period(Rs.3,000/- x 12)	36000
2	Transportation charges	5000
3	Nutritious food expenses	5000
4	Medical expenses	1000
5	Pain and suffering	50000
6	Mental agony to the wife and children of the appellant	10000
7	Partial permanent disability	75000
8	Loss of earning capacity	100000
Â	Total	282000

6. Mr.A.N.Viswanatha Rao, learned counsel for the appellant contended that due to the effect of the disability the appellant continue to suffer. Since he could not work as before, he had also lost his future earning capacity. In assessing the compensation, the Tribunal did not adopt any proper method. It is a fit case for adopting the multiplier method. Under all the heads, less compensation has been granted. Still the appellant undergoes agonising pain. He has lost full enjoyment of his life. He has been hospitalised for a considerable period. However, no compensation for loss of amenities of life, future medical expenses and Attendant charges has been granted. What was granted is not ‘just compensation’.

7. In support of his submissions, Mr.Rao cited the following decisions:-

1. BUDH SINGH Vs. PRITAM SINGH AND OTHERS [2011 (3) T.A.C.58 (P & H.) ]

2. RAJ KUMAR Vs. AJAY KUMAR AND ANOTHER [2011 ACJ 1]

3. C.MOHANRAJU Vs. DIVISIONAL MANAGER, UNITED INDIA ASSURANCE CO. LTD. AND ANOTHER [2011 (1) TN MAC 554 (SC)]

4. NAGARAJAPPA Vs. THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD. [2011 (1) TN MAC 557 (SC)]

5. RUDRA Vs. NATIONAL INSURANCE CO. LTD. & ANOTHER [2011 (1) TN MAC 537 (SC)]

6. SRI LAXMAN @ LAXMAN MOURYA VS. DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD. & ANOTHER [2012 (1) TN MAC 28 (SC)]

7. RAM KIRAN GOYAL (D) THROUGH L.Rs. Vs. SUB-DIVISIONAL ENGINEER AND OTHERS [2012 (1) T.A.C. 744 (SC)]

8. MANOJ RATHAUR Vs. ANIL RAHEJA AND OTHERS [2012 ACJ 1459]

8. Mr.S.Vadivel, learned counsel for the second respondent/Insurance Company contended that the Tribunal after having awarded Rs.75,000/- towards disability, it ought not to have again awarded Rs.1,00,000/- for loss of earning capacity. It amounts to double compensation. Granting Rs.10,000/- to the wife and children of the appellant for mental agony in an accident will not arise. On the whole, what was awarded itself is excessive.

9. I have considered their rival submissions. Perused the entire evidence on record, gone through the impugned Judgment of the Tribunal and the decisions cited.

10. Whether it is a fatal case or injury case, the Tribunals are statutorily bound to grant 'just compensation' to the road accident victims. It is to put them in the position, they were prior to the untoward incident/accident. It could be by adequately compensating them. It is a difficult task. In this, no mathematical precision could be achieved. So, some guesswork could be done. But, it should not be a wildguess. In any case, there shall not be any bonanza or misplaced sympathy. Very many losses might have been sustained by the road accident victims. While converting them into monetary terms, the Tribunals shall keep in mind the various factors, which have relevance to their sufferings.

11. The damages (compensation) for these losses are of two kinds, namely, pecuniary damages and non-pecuniary damages. 'Pecuniary damages' could be easily calculated in terms of money as they are very much associated with monetary loss. Examples of this type of damages are loss of income during treatment period, medical expenses, transportation charges, nutritious food expenses, cremation expenses and future medical expenses etc. 'Non-pecuniary damages' cannot be correlated to money. They mainly relates to physical discomfiture, sufferings of the victims, such as pain and suffering, trauma, mental agony, disability, loss of amenities of life, love and affection, consortium and disfigurement etc. No amount of money could compensate them these losses. However, some sort of yardstick should be adopted to adequately compensate them in terms of money for these sufferings.

12. In fatal cases, question of granting disability compensation will not arise. Only in injury cases, it arises. For this purpose, the term 'disability' is to be properly understood. If, misunderstood, it will result in causing further agony to the already suffering victims of road accidents. Disability may result in loss of full or partial enjoyment of life the functioning or putting use of their limbs, which was normal and usual but for the accident. It may disable the affected from engaging themselves in the avocation to which they were engaged before the accident. It may affect their ability to earn, namely, their earning capacity, it may be either full or partial. Each disability must be properly gauged and the disabled must be adequately compensated. Thus, physical disability may pertain to bodily enjoyment of life. The disability may also affects their ability to earn, resulting in economic loss to them. These losses must be assessed by adopting proper method. One of them is 'multiplier method'. In any case, all types of disabilities shall not be misunderstood as one and the same. It could be achieved by a careful analysis of the matter. The medical evidence plays a crucial role in assessing the extent of loss suffered by them.

13. In the case before us, the road accident had taken place on 08.06.2001. In this accident, the appellant sustained multiple injuries. He had sustained major grievous injury on his right leg. He sustained fracture. He had undergone surgical treatment. He was operated more than once. He was an indoor patient from 14.04.2004 to 26.05.2004 (see Ex.P.2). On 25.05.2004, he was operated. Again, on 13.10.2004, he was hospitalised and was discharged on 18.07.2005 (see Ex.P.3). During the second time, again he was operated. Ex.P.8-photographs shows that his right leg has been completely affected. P.W.2-Dr.Saichandran examined him, seen his medical records (Exs.P.1 to P.4 and P.11-X-ray) and determined his disability at 60% (see Ex.P.10-disability certificate). According to P.W.2, there is no union of fracture at the right leg, thus, he suffers pain when he stands. He could walk only with a walker. The Tribunal had also noted that the appellant could able to walk only with a walker. Thus, it is clear that he had become a disabled man. He cannot stand as before. He cannot walk as before. So, he cannot work as before. In the circumstances, we accept his disability at 60% as assessed by P.W.2.

14. On the date of accident, the appellant was 44 years old. Then he was a Watchman-cum-Menial Assistant. He was paid Rs.3,000/- p.m.. Now, because of the disability, he could not work as before, as even to walk he need a walker. So, he cannot earn as a Watchman. There is loss of earning capacity. The Tribunal awarded him Rs.75,000/- for his disability and Rs.1,00,000/- for his loss of future earning capacity. It has not followed any method. This is not the correct way of granting him just compensation. In the facts and circumstances, it is a fit case for adopting the multiplier method.

15. For a person of 44 years old, the multiplier is '14'. He earned Rs.3,000/- p.m. Since it is a case of disability compensation, no deduction for his pleasure and other expenses shall be made from his income. Now, calculating on the above lines, loss of future earning capacity comes to Rs.3,02,400/- (Rs.3,000/- x 12 x 14 x 60/100).

16. Now, because of the disability, he cannot enjoy his life as before. There is loss of amenities of life to him. We convert Rs.75,000/- granted by the Tribunal as disability compensation as compensation for loss of amenities of life. He took treatment for a considerable period. He has to make lot of to and fro trips. He has to spent considerably towards transportation charges. Under this head only Rs.5,000/- has been awarded. It is increased to Rs.7,000/-. Towards nutritious food expenses only Rs.5,000/- has been granted. It is increased to Rs.8,000/-. No amount has been awarded under the head 'Attendant charges'. Under this head, he is awarded Rs.5,000/-. Although he had taken treatment in Govt. Hospital, where the treatment is free, still he has to spent considerably. Towards Medical expenses only Rs.1,000/- has been granted. It is increased to Rs.5,000/-. Rs.10,000/- granted to the wife and children of the appellant for their mental agony will not arise. So, it is deleted. Rs.50,000/- for pain and suffering and Rs.36,000/- for loss of income during his treatment period awarded by the Tribunal are maintained.

17. The award of the Tribunal is modified as follows:-

ad>

Sl.No.	Head	Amount in Rs.
1	Loss of income during treatment period (Rs.3,000/- x 12)	36000
2	Transportation charges	7000
3	Nutritious food expenses	8000
4	Medical expenses	5000
5	Pain and suffering	50000
6	Attendant charges	5000
7	Loss of amenities of life	75000
8	Loss of earning capacity	302400
Â	Total	488400

18. In the result, the award of the Tribunal is modified. The claimant, who is appellant in C.M.A.No.3544 of 2006 is awarded a total compensation of Rs.4,88,400/- with 7.5% interest p.a. from the date of filing the claim petition till deposit. Within 4 weeks from the date of receipt of a copy of this Judgment, the Insurance Company shall deposit the entire compensation amount, less amount, if any, already deposited. On such deposit, the claimant is permitted to withdraw the entire amount, less amount, if any, already withdrawn. C.M.A.No.3544 of 2006 is allowed in part and C.M.A.No.266 of 2007 is dismissed. No costs.