Madras High Court
The Managing Director, Puratchi ... vs S. Girish on 15 June, 2006
Author: Chitra Venkataraman
Bench: Chitra Venkataraman
JUDGMENT Chitra Venkataraman, J.
1. This appeal is by the Transport Corporation challenging the order of the Motor Accidents Claims Tribunal (Chief Judge, Small Causes Court), Madras, dated 6.8.1996 made in M.C.O.P. No. 1663 of 1993, fixing the liability on the Transport Corporation to pay a compensation of Rs. 3,25,000/- with interest at 12% per annum.
2. It is stated that the claimant who suffered grievous injuries, was 26 years old at the time of the accident. He was employed as a Clerk in a private firm Cameo Share Registry Pvt. Ltd. on a monthly salary of Rs. 1,400/-. He was a bachelor. The accident occurred on 26.2.1993 at about 9.50 p.m. in Anna Salai, Little Mount, Madras. The claimant was proceeding by walk from east to west. It is stated that the Transport Corporation bus bearing Registration No. TCB 6126, driven in a rash and negligent manner, hit the pedestrian from behind. The front wheel ran over the claimant's left thigh. This resulted in fracture in the pelvic region. The claimant remained as in-patient in the Government Hospital from 26.2.1993 to 28.5.1993. His left leg was amputated beneath the hip and and above the knee, thus leading to the permanent disability. It is stated that the disability suffered was to the extent of 80%. He had to go in for an artificial limb. He had expended heavily. It is also stated that he lost his job. The claimant petitioned for a compensation of Rs. 7,00,000/-.
3. The Transport Corporation, as the respondent, resisted this claim. The bus was on its way from Broadway to Amarampedu. It is stated that the claimant crossed the road from left to right in a non-pedestrian crossing area; hence, the accident occurred due to the negligence of the claimant herein and hence not entitled to any compensation. The respondent also denied that the claimant suffered permanent disability and the compensation claimed was excessive.
4. The claimant, as P.W.1, deposed that the accident occurred in the North-South Anna Salai where the road takes a turn towards west. There was no vehicular traffic, according to the evidence of the claimant. The driver as R.W.1, however, denied that the vehicle was involved in the accident and he also stated that the claimant was hit by a two wheeler who had sped away from the scene without stopping. The Tribunal found that the version of the claimant that the accident was caused by the bus driven by the driver was corroborated by the medical evidence available. Taking note of the nature of injuries suffered, the Tribunal held that the claimant was hit by the Transport Corporation bus. The wheel of the bus ran over the claimant's left thigh, thus causing damage severely. Ex.P12 is the First Information Report, which showed that the claimant was actually in the process of crossing the road from east to west when the bus came and knocked him down. Ex.P13 is the sketch, which showed that the accident had occurred at the junction where the road runs from south to north. The Tribunal held that the mere fact that the claimant was crossing the road in a non-pedestrian crossing could not be viewed as indicative of his negligence since at the time of the accident, the claimant had almost crossed the entire length of the road. Further, there being no obstruction in the front view of the driver, the reasonable expectation is that the driver must have seen the pedestrian crossing the road from east to west and must have taken caution to slow down the vehicle, keeping in mind the safety of the pedestrian. Ultimately, the Tribunal held that the driver was responsible for causing the accident. Thus the Tribunal rejected the plea of contributory negligence.
5. On the question of quantum, the claimant marked documents to substantiate his treatment as an in-patient. Ex.P1 is the discharge summary. The petitioner also marked Exs.P3 to P5, the evidence of his treatment in the Government Institute of Rehabilitation Centre in K.K.Nagar, Madras. The document showed that the disability is marked at 80%. The Assistant Professor of Surgery, Madras Medical College, examined himself as P.W.3. Ex.P14 is the disability certificate issued by him. It is stated that the left leg had to be amputated below the hip and above the knee. He also found the damage caused to the pelvic bone. He also certified the disability at 80%, which is supported by Exs.P3 to P5. It is stated that to fix an artificial limb, the claimant would require a further sum of Rs. 40,000/-. The correspondence with the agency at Bombay who are specialists in fitting artificial limb, are marked as Exs.P10 and P11. As per this, the claimant would have to spend a sum of Rs. 60,000/- to Rs. 1,00,000/- for getting himself fitted with an artificial limb. The Tribunal found that even though the claimant was treated in the Government Hospital, he had to spend for purchase of medicines not available in the Government Hospital. The claimant also claimed that he had taken physiotherapy treatment costing him about Rs. 3,000/-. The Tribunal granted compensation towards medical bill, treatment in the physiotherapy centre as well as for fixing of artificial limb of Indian make, etc. On the question of compensation on account of the disability suffered, the Tribunal referred to the decision of the Supreme Court (R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and Ors.) and held that under pecuniary damages, it included the expenses incurred towards medical attendance, loss of earning of profit upto the date of trial and other material loss. Non-pecuniary damages include damages for mental and physical shock, pain and suffering already suffered and likely to be suffered in future, damage on account of loss of amenities of life, damages for loss of expectation of life, inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. The Tribunal noted that the claimant was a young man about 26 years old. The accident and the disability caused thereon had a serious impact on his future life and to the quality of life. Consequently, the Tribunal granted a sum of Rs. 1,00,000/- towards loss of earning and another sum of Rs. 1,50,000/- towards permanent disability, apart from further charges granted under the various heads, thus totalling in all Rs. 3,25,000/- with interest at 12% per annum. Aggrieved of the same, the Transport Corporation has preferred this appeal.
6. Learned counsel for the Transport Corporation submitted that the Tribunal ought to have noted that the claimant/respondent in this appeal ought to have exercised care and caution while crossing the road. If at all there could be any negligence attributed to the Corporation driver, it could only be in the nature of contributory negligence; as such, the Tribunal erred in fixing the total liability on the Transport Corporation. On the question of compensation, learned Counsel submitted that the award should be comparable to the structured formula; as such, it was excessive. Learned counsel also pointed out that the Tribunal erred in relying on the documents relating to the treatment without examining the author of the document; hence, ought to have rejected the disability certificate issued. Learned counsel further submitted that Exs.P10 and P11 did not evidence the expenses for artificial limb; that the awarding of compensation under various heads was without any basis and material evidence. Apart from that, he also questioned the interest at 12% per annum.
7. Learned counsel for the respondent, however, supported the order of the Tribunal. He drew support from the decisions of the Apex Court as well as from various other High Courts. Considering the nature of disability suffered fixed at 80%, he submitted that the loss of earning deserved to be viewed at 100%. Hence, the compensation must be as that of 100% loss of earning. He supported the order of the Tribunal that the compensation should be under two different heads, one for the permanent disability suffered and on the loss of earning power. In this connection, learned Counsel submitted that taking note of the earnings of the claimant/respondent herein, the future prospects and the loss of earning need to be arrived at. He also emphasised that the pain suffered at the time of the treatment and the permanent scar which continues for life having a serious impact on the quality of life need to be compensated. The basis of compensation has to be more, considering the fact that the disability is worse than that of a case of fatal accident, as the victim has to lead through his life with a permanent disability. Learned counsel places reliance on the decision (R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and Ors.), (Ashwani Kumar Mishra v. P. Muniam Babu and Ors.), 2002-2-L.W.109 (The New India Assurance Co. Ltd. v. K. Kartheeswaran and Anr.) and 1995-2-L.W. 685 (The Managing Director, Thirvalluvar Transport Corporation, Madras v. Thangavelu and Anr.) on the question of fixation of compensation. He also placed reliance on the decisions (Lata Wadhwa v. State of Bihar), 2005 (2) CTC 341 (Ravi Chandran.J. v. Tamil Nadu State Transport Corporation), (Bhaskar v. R.K. Srinivasan) and Nagappa v. Gurudayal Singh and Ors. and prayed for enhancement of compensation. On the question of interest, he placed reliance on (2005) 11 SCC 387 (Chellammal v. Kailasam). Apart from this, he also placed reliance on (Ramesh Lal v. National Insurance Co. Ltd.), (K. Shankar v. Pallavan Transport Corporation LTD.), (Shashendra Lahiri v. Unicef), (Rattan Lal Mehta v. Rajinder Kapoor and Anr.), (Nagesha v. M.S. Krishna and Anr.), (M. Jaganathan v. Pallavan Transport Corporation Ltd.), confirmed in ((Pallavan Transport Corporation v. M. Jagannathan), (Soran Ram v. Pritam Singh), Javid v. Lalji Yadav.
8. (Pallavan Transport Corporation v. M. Jagannathan) was a case of amputation of left leg above knee where the disability assessed was 85% wherein, the Supreme Court affirmed the order of the High Court on the award of Rs. 4,50,000/-. (Nitin Walia v. Union of India and Ors.) is the decision of the Delhi High Court. This is a case of amputation of right arm below the shoulder. The injured was a three year old child. This judgment recognises the grant of an award taking into consideration that on account of the permanent disability, the injured would require medical attention for the rest of the life and constant care and attention from some other person even for ordinary day to day activities and an award thereon for loss of amenities, on account of the disfigurement and expectation of life. Thus compensation under non-pecuniary heads were granted, taking note of the decision of the Supreme Court in (Shashendra Lahiri v. Unicef), as well as (Nagesha v. M.S. Krishna and Anr.) and 2004-4-L.W. 151 (National Insurance Company Ltd. v. Rani and Ors.). 2002-2-L.W. 109 (The New India Assurance CO. LTD. v. K. Kartheeswaran and Anr.) is a case of amputation wherein this Court awarded a compensation on account of permanent disability sustained and for the injuries suffered. Here too, the Court took note of the mental agony and torture due to amputation and the injuries suffered on account of permanent disability. In the matter of granting compensation on permanent disability suffered, this Court, in 2005 (2) CTC 341 (Ravi Chandran.J v. Tamil Nadu State Transport Corporation), held that the Schedule provided under the Workmen Compensation Act provides a good basis for assessing the compensation on account of permanent disability of the person. This Court further referred to the provisions under Section 163-A of the Motor Vehicles Act, which provides for computation of compensation as per the structured formula under the Second Schedule. Applying the same, this Court re-worked the compensation. Learned counsel for the respondent also referred to the decision of the Karnataka High Court in (Bhaskar v. R.K. Srinivasan), which referred to the decision of the Supreme Court in (R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and Ors.). (K.Shankar v. Pallavan Transport Corporation LTD.) is a case of amputation of right leg with 80% disability. This Court fixed the compensation at Rs. 4,50,000/-. The compensation awarded included both under pecuniary loss and under non-pecuniary loss.
9. The reasoning of these judgments would show that in the matter of awarding compensation, the damages have to be assessed separately as one falling under pecuniary damages and special damages. Pecuniary damages are those which are actually incurred and capable of calculation on the basis of evidence produced. However, non-pecuniary damages are those which lacked arithmetical perfection, yet, need to be done on account of the injuries suffered leading to hardship, discomfort, frustration, mental stress in life, loss of quality of living and enjoyment in life. The loss of amenities of life may include a variety of factors which may have a restriction on the quality of life that one has to lead. It may be noted that monetary compensation may not bring back or restore the amputated leg. The Supreme Court held in (R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and Ors.):
Whenever any amount is determined as the compensationpayable or any injuries suffered due to the accident, the object is to compensate such injury so far as money can compensate, because, it is impossible to equate money with the human suffering or personal deprivations. Money cannot renew a broken and shattered physical frame.
10. In the decision reported in 1995-2-L.W. 685 (Managing Director Thiruvalluvar Transport Corporation, Madras v. Thangabalu and Anr.), this Court held that loss of earning power is only one of the consequences of permanent disability. Hence, the only way by which the injured could be given redressal is by awarding a just compensation.
11. A perusal of the order of the Tribunal shows that the respondent was awarded compensation of a sum of Rs. 3,25,000/-. The petitioner was a bachelor aged about 26 years. Taking note of his future employment opportunities and the treatment that he may have to undergo, the learned Counsel pleaded for enhancement of compensation and placed reliance on the decision of the Supreme Court in Nagappa v. Gurudayal Singh and Ors., pointing out to the power of this Court to grant enhanced compensation under given set of circumstances. A reading of the judgment of the Apex Court shows that the Court is required to determine a just compensation and there are no limitations in awarding such compensation in appropriate cases and if the Court finds that the claimant is entitled to get a better compensation than what is paid, there is no impediment in passing such an award.
12. Taking a cumulative note of the injury suffered at 80% in the background of the guidance laid down by the decision of the Apex Court and this Court, the compensation payable to the respondent deserves to be calculated as per the provisions of the Workmen Compensation Act. Since the compensation to be worked out thereupon does not go for much variation, the award as it is merits acceptance with the interest granted at 12% per annum.
The appeal filed by the Transport Corporation is dismissed with the above modification. There will, however, be no order as to costs.