Madras High Court
A.Dorairaj vs K.Karumbukonar on 11 April, 2012
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/04/2012 CORAM THE HONOURABLE MS.JUSTICE K.B.K.VASUKI C.M.A.(MD)No.343 of 2008 A.Dorairaj ... Appellant/ Petitioner Vs. 1.K.Karumbukonar 2.National Insurance Co. Ltd., Madurai. 3.M.S.Ganesan 4.The Oriental Insurance Company Ltd. Ramanathapuram. ... Respondents/ Respondents PRAYER Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the award, dated 28.6.1994, made in M.C.O.P.No.10 of 1993 on the file of the Motor Accident Claims Tribunal/District Judge, Sivagangai. !For appellant ... M/s.Srimathi, Mr.K.M.Venugopal ^For 1st respondent... Mr.K.Periyasamy For 2nd respondent ... Mr.S.Srinivasa Raghavan For 3rd respondent ... No representation For 4th respondent ... Mr.K.Bhaskaran :JUDGMENT
The claimant is the appellant herein. The appeal is filed for enhancement of compensation of Rs.1,94,835/- to Rs.5,00,000/-.
2. The parties are referred to as per their rank in the claim petition.
3. The claimant was holding diploma in Electrical Engineering and was employed as Manager in M/s.Meenum Rexin Pvt. Ltd. and he was aged about 38 years at the time of accident. The claimant is injured in an accident occurred at 6.30 pm on 26.9.1992 near Ramachandran Mandapam on Madurai to Mandapam Road. The two vehicles involved in the accident are the lorry bearing Regn.No.TDZ 5587 owned by the first respondent and insured with the second respondent insurance company and the van bearing Regn.No.TN-65-0723 owned by the third respondent and insured with the fourth respondent insurance company in which the claimant was travelling.
4. The tribunal found that the accident occurred due to rash and negligence on the part of both drivers and awarded compensation of Rs.1,94,835/- against the respondents 2 and 4 and the same is not challenged by either of the owners or insurers. The appeal is filed only by the claimant for enhancement of compensation.
5. The claimant has in his petition claimed total compensation of Rs.8,70,500/- under various heads and the same is restricted to Rs.5,00,000/- which reads as follows:
Loss of income from 26.9.92 to 26.11.1992 Rs. 4,200-00 Transport to hospital Rs. 800-00 Extra nourishment Rs. 5,000-00 Damage to cloth and articles Rs. 500-00 Medical expenses Rs.80,000-00 Pain and sufferings Rs.30,000-00 Permanent disability Rs.4,00,000-00 Loss of earning power Rs.4,00,000-00 ____________ Total Rs.9,20,500-00 _____________
6. As against the same, the Tribunal has awarded compensation of Rs.1,94,835/- under the following heads:
Medical bills Rs. 75,000/-
Rs. 39,835/-
Loss of earning capacityRs. 50,000/- pain and suffering Rs. 30,000/-
Rs.1,94,835/-
7. The grievance raised in this appeal is against the quantum of compensation awarded under the heads (i) loss of earning capacity (ii)medical expenses and (iii) pain and suffering. Before going into the compensation for loss of earning capacity, it is but necessary to see the claim for enhancement under other two heads.
8. The first comes compensation for medical expenses. It is claimed at Rs.80,000/- apart from doctor's fees and clinical expenses and Exs.P4 and P5 medical bills produced herein are admittedly for Rs.1,41,241/-. The Tribunal, while awarding entire value of Ex.P5 bill for Rs.39,835/-, was inclined to reduce the value of Ex.P4 bill to Rs.75,000/- and awarded Rs.75,000/- towards medical expenses. This Court, considering the nature and number of fracture sustained i.e., amputation of right leg below knee and and the period of treatment and also considering the nature of bills produced herein for the purpose for which the amount is paid, is inclined to allow entire medical expenses to the tune of Rs.1,01,406/- and the compensation for medical expenses is thus enhanced to Rs.1,40,000/-.
9. Next comes compensation for pain and suffering. It is not in dispute that the claimant has sustained multiple fractures and was under treatment for nearly 2 months and his right leg is amputated, as such, the claimant is compelled to lead the remaining life with the same disability. It is nobody's case that he is fully recovered from his illness and it cannot be disputed that the appellant has to through out his life bear with the same functional disability and Rs.30,000/- awarded by the tribunal appears to be inadequate for the pain and suffering undergone by the claimant and the same is hence enhanced to Rs.50,000/-.
10. The another important aspect to be considered herein is compensation for loss of earning capacity and permanent disability. The claimant claimed Rs.4,00,000/- each for his continuing permanent disability and loss of earning power. The Full Bench of our High court in the judgment reported in 2006 (4) CTC 433 (Cholan Roadways Corporation Ltd rep by its Managing Director, Kumbakonam v. Ahmed Thambi and others) laid down that no separate compensation can be awarded for loss of earning capacity and for permanent disability and the claim for loss of earning capacity and permanent disability shall be viewed in the light of the above legal principle.
11. The claimant, in order to prove his case regarding his education and technical qualification, nature of injuries and duration of period undergone for treatment and the nature and extent of permanent disability sustained by him and the corresponding loss of functional disability and earning capacity, examined himself and one of the treating doctors Dr.Rajasabai as PW1 and PW2 and produced Exs.P8 to P10 certificates and Ex.P6 permanent disability certificate. The tribunal on the basis of the medical evidence adduced before the same, accepted the extent of permanent disability at 75%, but has awarded Rs.50,000/- as lump sum compensation for loss of earning capacity, the correctness of which is now challenged before this court.
12. The learned counsel for the appellant would seriously contend that lump sum compensation of Rs.50,000/- awarded by the tribunal for loss of earning capacity is too low and inadequate, considering the extent of permanent disablement and functional disability and loss of earning capacity and as the tribunal is bound to award just and reasonable compensation, the tribunal ought to have awarded appropriate compensation by adopting multiplier method and structured formula as per schedule II. The same is seriously opposed by the learned counsel for the respondent insurer. According to the respondent/insurer, Schedule II of Motor vehicles Act having been incorporated only during 1994 much after the accident and the accident having been occurred much before the same, the multiplier method cannot be adopted with retrospective effect and the structured formula is applicable to the accidents occurred after introduction of Schedule II.
13. Both the learned counsel on record in respect of their respective contentions, cited the following authorities:
(A) The authorities cited on the side of the appellant are:
(i)(2009) 2 SCC 225 (Syed Basheer Ahamed and others v. Mohammed Jameel and another)
(ii)2009 (1) TNMAC 456 (SC) (Pepsu Road Transport Corporation, Patiala v. Kulwant Kaur and others); and
(iii)(2010) 5 SCC 785 (Manam Saraswathi Sampoorna Kalavathi and others v.
Manager, Andhra Pradesh State Road Transport Corporation and another) (B) The authorities cited on the side of the respondent are :
(i)(1990) 1 SCC 356(SC) (R.L.Gupta and others v. Jupitor General Insurance Company and others);
(ii)(2001) 8 SCC 197 (Lata Wadhwa and others v. State of Bihar and others)
(iii)2008(2) TNMAC 463 (SC) (State of Punjab and others v. Bhajan Kaur and others); and
(iv)1990 ACJ 956 (Punjab and Haryana at Chandigarh High court) (Shivtej Singh v. Punjab Roadways and others)
14. The short point that arises for consideration herein is what is the mode of assessment of compensation for permanent disability and loss of earning capacity and as to whether multiplier method and structured formula can be adopted for doing so.
15. The Supreme Court in the judgment reported in 2009 (2) SCC 225 (syed Basheer Ahamed v. Mohd. Jameel) laid down that "the amount of compensation determined to be payable to the claimant has to be fair and reasonable by accepted legal standards and there is no uniform rule or formula for measuring the value of a human life in the matter of computation of compensation. However, it must be based on certain data, establishing reasonable nexus between the loss incurred by the dependents of the deceased and the compensation to be awarded to them.... It can neither be a windfall for the claimants nor be punitive for those liable to pay and the compensation should place the claimant in almost the same financial position as they were before the accident." The Supreme Court in the same judgment referred to the observation made in earlier judgment in 1994 (2) SCC 176 in Kerala SRTC vs. Susamma Thomas, that "the amount awarded must not be niggardly since the 'law values life and limb in a free society in generous scales'". The Supreme Court while referring such observation is pleased to observe that "a misplaced sympathy, generosity and benevolence cannot be the guiding factor for determining the compensation" and endeavour of this court must be to arrive at a fair estimate taking into account all relevant aspects and the onus lies on the claimants to prove the relevant factors by leading reliable and cogent evidence before the Tribunal and mere assertion in the claim petition in that behalf is not sufficient to discharge that onus". Further, it is observed that "though a special provision for assessment of computation on structured formula basis for the purpose of a claim petition under Section 163A of the Act has been inserted in the Act with effect from 14.11.1994, but no such formula has been laid down for determination of compensation in a claim petition under Section 166 of the Act, though there is no bar in taking the said schedule as a guiding factor while determining the just compensation by applying multiplier method". It has been held by the Supreme Court in 2005 (8) SCC 473 (TNSTC Ltd v. K.I.Bindu) that "The second schedule to the Act may serve as a guide, but cannot be used as an invariable ready reckoner". The observation was so made in the following judgments viz., 2001 (8) SCC 197 (Lata Wadhwa and others v. State of Bihar and others) and 2010 (5) SCC 785 (Manam Saraswathi Sampoorna Kalavathi v. A.P.SRTC). In all these cases, the multiplier method was adopted for assessing compensation in respect of the accident occurred before and after incorporation of Schedule II in the Act i.e. before and after 1994.
16. While in Lata Wadhwa case and Manam Saraswathi Sampoorna case, the accident occurred on 3.3.1989 and 11.1.1993, in Syed Basheer Ahamed case, the accident occurred on 3.6.1999. In Lata Wadhwa case, the fire accident occurred resulting in death toll of 60 persons and the total number of persons injured was at 113 and out of 60 persons dead, 26 are children, 9 are men and 25 are women. When the writ petition came to be filed before the Hon'ble Supreme Court to initiate action against the organiser of the function, for whose negligence, the fire accident occurred, the Supreme Court while considering the relief sought for in the writ petition, sought the assistance of Sri Y.V.Chandrachud, former Chief Justice of India, in the matter of determination of compensation to the legal heirs of the deceased as well as the compensation payable to the injured and the report was filed in two parts, first part dealing with the case of death persons and the second part dealing with the case of injured and the compensation was quantified only by adopting multiplier method. In the Report, even the view of the British Law Commission has been extracted, which indicates:
"the multiplier method remains and should continue to remain, the ordinary, the best and the only method of assessing the value of a number of future annual sums" and "the actuarial method of calculation, whether from expert evidence or from tables, continues to be technically relevant and technically admissible but its usefulness is confined, except perhaps in very unusual cases, to an ancillary means of checking a computation already made by the multiplier method and the same is extracted in the judgment reported in 2001 (8) SCC at pages 203 and 204.
17. The former Chief Justice of India in his report, after thorough analysis of different methods of computation of the compensation and the different methods of computing loss of future earnings, came to the conclusion that "the multiplier method is of universal application and is being accepted and adopted in India by courts, including the Supreme Court and as such, it would be proper to apply the said method for determining the quantum of compensation". The supreme court has accepted the same and proceeded to decide the correctness of quantum of compensation as determined in the report. The Supreme Court has at para 8 in page 208 of the same judgment extracted the observation of the Supreme Court in its earlier decision in G.M.Kerala SRTC v. Susamma Thomas reported in (1994) 2 SCC 176 to the effect that "the proper method of computation is multiplier method and any departure except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability in the assessment of compensation" and has in para 9 opined that "the former Chief Justice has correctly arrived at the basic figure by adopting multiplier method".
18. The similar view is expressed by the Supreme court in the judgement reported in 2010 (5) SCC 785, wherein the Supreme Court has consciously upheld the adoption of multiplier method from Schedule II which is incorporated only from 14.11.94 for the accident occurred on 11.1.1993. In the case decided by the Supreme Court, the tribunal adopted the multiplier method and the High court found fault with the tribunal in taking multiplier in schedule II, which was not there in the Act on the date of accident and the Supreme Court has by referring to Lata Wadhwa case observed in para 22 that the judgment in Lata Wadhwa case was available, when the judgment of the High Court was delivered and ultimately found that the judgment of the High court is totally contradictory and unsustainable and set aside the same.
19. That being the legal course adopted by the Supreme court, this court is not required to go into the question raised on the side of the respondent side insurer as to whether the multiplier method is substantial law or procedural law and as to whether it can be given effect to retrospectively.
20. The Supreme Court has in the judgment referred to above, accepted the adoption of multiplier method from Schedule II and treated the same as procedural in nature and has accordingly applied the same retrospectively.
21. Coming back to the authorities cited on the side of the respondent - insurer viz., (i)(1990) 1 SCC 356(SC) (R.L.Gupta and others v. Jupitor General Insurance Company and others); (ii)(2001) 8 SCC 197 (Lata Wadhwa and others v. State of Bihar and others)(iii)2008(2) TNMAC 463 (SC) (State of Punjab and others v. Bhajan Kaur and others); and (iv)1990 ACJ 956 (Punjab and Haryana at Chandigarh High court) (Shivtej Singh v. Punjab Roadways and others), the principle to the effect that "a substantive law is presumed to be prospective, unless held to be retrospective, either expressly or by necessary implication and when the right is created by enactment, in absence of clear provision in statute, not to be applied retrospectively and statutory liability could thus be made retrospective only by reason of statute or statutory rules and it was required to be stated so by parliament" as laid down by the Supreme Court in the judgment reported in 2008(2) TNMAC 463 (SC), cannot at all be disputed.
22. However, the substantial question of law involved in all the cases above cited is enhancement of quantum of compensation for no fault lability. Whereas, in the authority cited on the side of the appellant, the Supreme court has directly dealt with the adoption of multiplier method in the matter of determination of compensation for loss of earning capacity, as such, this court by applying the principle laid down by the Supreme Court in the authorities cited on the side of the appellant, is inclined to determine the compensation payable to the claimant under the head loss of earning capacity by adopting multiplier method as follows:
23. The injured was, on the date of accident, aged about 38 years. Though the claimant in his petition come forward with the theory that he was employed as Electrical Engineer in M/s.Meenum Rexin Private Limited and earning Rs.2100/- p.m, the nature of the employment and the quantum of his monthly salary was not proved by any independent oral and documentary evidence. As a matter of fact, he was only referred to as Manager in M/s.Meenam Rexin Private Limited in Ex.P1 FIR and the version that he was employed as electrical Engineer or what was his exact nature of employment in the said company, is not proved by satisfactory evidence and in the absence of one such evidence, the monthly income of the claimant fixed at Rs.750/- during 1992 warrants no modification. Considering the nature and extent of disability sustained by the claimant, permanent disability determined by the tribunal at 70% is just and reasonable and the same is adopted herein. The multiplier to be adopted for the age group of 35 to 40 is 16 and the annual income of the claimant is Rs.9,000/- and the compensation for loss of earning capacity by adopting the multiplier method is thus, Rs.9,000/- x 16 x 70% = Rs.1,00,800/- @ Rs.1,00,000/- and the same can be reasonably fixed as compensation for loss of earning capacity.
24. In addition to the same, this court is inclined to award Rs.50,000/- for loss of amenities and loss of joy and happiness due to amputation of right leg below knee and Rs.10,000/- each towards attendant charges, while he was under treatment in the hospital, loss of income during treatment period and extra nourishment and transportation charges. The total enhanced compensation payable to the claimant is thus as follows:
Medical expenses Rs.1,40,000-00 Pain and suffering Rs. 50,000-00 Loss of earning capacity Rs.1,00,000-00 loss of amenities Rs. 50,000-00 loss of income during treatment period Rs. 10,000-00 Extra Nourishment and transportation charges Rs. 15,000-00 attendant charges Rs. 10,000-00 _____________ Total Rs.3,75,000-00 _____________
25. The Tribunal awarded compensation of Rs.1,94,835/- with interest at 12% p.a. The learned counsel for the respondent in the course of argument, raised a dispute with regard to the same rate of interest to be awarded to the enhanced compensation. The fourth respondent/insurance company, raised objection in CMP.No.16063 of 1996 to condone the delay of 10 days in filing the appeal on the ground that the claimant has taken notice to the respondent after lapse of ten years from the date of award. The tribunal disposed of the claim petition on 28.6.1994 and the CMA was filed with the delay of 10 days on 23.11.1994. The petition to condone the delay in filing the appeal was filed on 28.7.1995 and the affidavit filed in support of this petition was filed on 30.7.1996 and the CMP was numbered on 7.4.2006. The perusal of the court records reveals that notice was ordered on 6.12.1996 and the notice was served on the third respondent on 8.3.1999 and notice was served on the respondents 1, 2 and 4 on 29.6.2000. It was contended by the learned counsel for the fourth respondent that in the event of the petition for condone the delay in filing the appeal being allowed, no liability can be fixed on the insurance company to pay any interest for the enhanced amount for the delay of 12 years for taking steps. The same was also recorded and thereafter, the petition was ordered on payment of cost of 250/-. This Court has by order dated 26.4.2006 allowed the petition with observation that the 4th respondent is not liable to pay interest for the delay of 12 years in taking steps. The objection so raised by the learned counsel for the respondent is but reasonable and justifiable. The appellant cannot on one hand, permitted to leisurely approach this court for enhancement of compensation, on the other hand, is allowed interest for the delay on his part in approaching this court. In order to maintain balance between the two, this court is inclined to disallow interest for the enhanced compensation for the belated period and is inclined to allow interest from 28.04.2006, the date on which the delay is condoned.
26. In the result, the appeal is allowed with costs by passing an award against the respondents 1 to 4 for compensation of Rs.3,75,000/- with proportionate costs and interest at 12% per annum and interest for enhanced compensation is payable from 28.04.2006 till the date of payment by the respondents 2 & 4. The time for deposit of the amount into the Court is two months from the date of receipt of a copy of this order. On such deposit of the amount into the Court, the claimant is permitted to withdraw the entire amount.
rk To
1.The Motor Accident Claims Tribunal/ District Judge, Sivagangai.