Madras High Court
The New India Assurance Co Ltd vs Kannayiram on 25 January, 2012
Bench: K. Mohan Ram, G.M. Akbar Ali
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.1 .2012 CORAM : THE HONOURABLE Mr.JUSTICE K. MOHAN RAM and THE HONOURABLE Mr.JUSTICE G.M. AKBAR ALI C.M.A.No.722 of 2011 The New India Assurance Co Ltd No.45. 2nd Line Beach Moore Street, Chennai-600 001 Appellant vs 1. Kannayiram 2.K. Sivasamy .. Respondents Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the judgment and decree of the Motor Accidents Claims Tribunal ( II Court of Small Causes, Chennai) in MCOP No.1278 of 2006 dated 3.3.2010. For appellant : Mr.M.B. Gopalan For R.1 : Mr.M.C. Swamy for M/s Senthil Swamy Associates For R.2 : Ex-parte JUDGMENT
G.M. AKBAR ALI,J., The Insurance Company is the appellant. The 1st respondent had filed a claim petition before the Motor Accident Claims Tribunal at Chennai claiming compensation for the injuries sustained by him in a road accident happened on 1.5.2005 at 2.45 hrs at ECR Road. According to the 1st respondent, on 1.5.2005 at 2.45 hrs while he was walking along the left side of the ECR Road at Punjeri village an Ambassadar car bearing Registration No.TN09 M 0778 proceeding from Pondicherry to Chennai was driven in a rash and negligent manner and dashed against him. He sustained fractures on the right forearm and also crush injuries thereby suffered permanent disability and has claimed a sum of Rs.25 lakhs for compensation.
2. The appellant Insurance company resisted the claim. The fact of the accident and manner of accident was denied and the claimant was put to proof of the injuries sustained by him and the disability suffered by him. The enquiry was conducted by the II Small Cause Court, Small Causes, Chennai. The claimant was examined as P.W.1 and doctor was examined to prove the disability. He has also marked Ex.P.1 to P.17 as documents. Neither oral nor documentary evidence was adduced on the side of the respondents.
3. On the basis of oral and documentary evidence, the Tribunal found that the accident occurred due to rash and negligent act of the driver of the ambassador car and fixed the statutory liability on the appellant. While considering the compensation the Tribunal has awarded the following amounts:
Transport Expenses .... Rs. 10,000/- Extra Nourishment charges .... Rs. 10,000/- Loss of expectation of life .... Rs. 10,000/- Attending charges .... Rs. 10,000/- Loss of Amenities & Enjoyment of life .... Rs. 10,000/- Physical discomfort .... Rs. 10,000/- Medical expenses .... Rs.2,75,000/- Mental agony to the petitioner ... Rs. 20,000/- Mental agony to wife & children .. Rs. 20,000/- Loss of appoint of one person viz., Anthony for maintaining the Kavitha Lodge from 1.11.2007 to till date ... Rs. 25,000/- Future medical expenses ... Rs. 50,000/- Compensation for pain & Suffering Rs. 10,000/- Permanent disability & Loss of earning power Rs.14,82,000/- -- - - - - - - - - - - Rs.19,42,000/- - - - - - - - - - -
4. Aggrieved by the quantum, the Insurance Company has preferred the present appeal.
5. Mr.M.B. Gopalan, the learned counsel for the appellant Insurance Company pointed out that the Tribunal had considered the disability at 70% for the fracture of the right forearm and crush injury on the right leg but has proceeded to award a sum of Rs.14,82,000/- by applying the multiplier. The learned counsel pointed out that the Tribunal has also awarded exorbitant amount under the heading of physical comfort, medical expenses, mental agony for the claimant, mental agony for the wife and children of the claimant and has also awarded compensation for pain and suffering.
6. The learned counsel pointed out the claimant was only doing a real estate business and the disability has to him cannot be a functional disability to apply the multiplier.
7. On the contrary, Mr.M.C. Swamy, the learned counsel for the claimant submitted that the claimant has suffered multiple fractures in the right arm, fracture of shaft right femur and crush injury on the right leg which lead to amputation of leg below knee and the doctor has assessed the disability at 95%. The learned counsel pointed out with an amputated leg one can not function normally and therefore application of multiplier is correct.
8. The learned counsel pointed out that the claimant has proved that he was earning a sum of Rs.25000/-per month and the Tribunal has fixed the income at Rs.10000/-per month and has arrived at a loss of earning per annum Rs.1,14,000/- and has applied the correct multiplier to arrive at a loss of earning power Rs.14,82,000/-. The learned counsel pointed out that the claimant has suffered functional disability and the application of multiplier is correct.
9. The learned counsel also pointed out that the compensation granted under other heads are also reasonable. The learned counsel for the appellant relied on a decision reported in 2011 ACJ 1 (Raj Kumar vs Ajay Kumar and another) where the Apex court has discussed about the physical permanent disability and the functional disability. The supreme court has also held as follows:
11. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb. Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.
10. Mr.M.C. Swamy, learned counsel for claimant relied on a decision reported in 2010 ACJ 1971 (B.T. Krishnappa vs Divisional manager, United India Insurance Co Ltd and another) where the Hon'ble Supreme Court has considered the fracture of both bones of right leg and injuries on the head of the claimant and has observed that the injured suffered had an irreversible damage which will pose difficulties for him in carrying out his avocation.
11. The learned counsel also relied on an unreported judgment of the Apex Court in Civil Appeal Nos. 4330 and 4331 of 2011, where the Hon'ble Supreme Court has held 12. It is true that the compensation for loss of earning power/capacity has to be determined based on various aspects including permanent injury/disability. At the same time, it cannot be construed that compensation cannot be granted for permanent disability of any nature. For example, take the case of a non-earning member of a family who has been injured in an accident and sustained permanent disability due to amputation of leg or hand, it cannot be construed that no amount needs to be granted for permanent disability. It cannot be disputed that apart from the fact that the permanent disability affects the earning capacity of the person concerned. Undoubtedly, one has to forgo other personal comforts and even for normal avocation they have to depend on others...
12. The learned counsel also relied on a decision reported in 2011 (2) MLJ 308 SC (Arvind Kumar Mishra vs New India Assurance Co ltd and another) wherein the Apex Court has considered the following queries and the ratio decidendi Queries:
1. Whether multiplier method is the basis for assessment of compensation in personal injury cases?
2. Whether Second Schedule is applicable to a claim petition made under Section 166 of the Motor Vehicles Act, 1988?
Held: Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong, he has suffered at the hands of the wrongdoer and the Court must take care to give full and fair compensation for that he had suffered. In some cases, for personal injury, the claim could be in respect of life time's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases and that is now recognized mode as to the proper measure of compensation is taking an appropriate multiplier of an appropriate multiplicant.
13. The learned counsel for the respondent relied on a decision reported in 2011 (2) TNMAC 10 SC (Sri Kumaresh vs The Divisional Manager, Natinal Insurance Co Ltd and another) wherein the Apex Court has considered loss of earning power for the claimant who is a building centering worker who suffered 70% disability.
14. We have considered the submissions made on either side and perused the materials available on record.
15. The discharge summary of the claimant would show that he has suffered fracture on both bones, right forearm, compound fracture shaft Rt. Femur Grade II, crush injury Rt. leg M/3 & L/3 junction with loss of distal vascularity.
16. For the crush injury an amputation has been done below knee. However, the doctor who has assessed the disability had given a disability certificate assessing the disability at 95%.(total permanent disability 70%, partial disability 25%). The disability certificate is marked as Ex.P.15.
17. According to the learned counsel for the appellant the claimant was only a lodge owner and there is no proof to show that he was doing agricultural work by contributing personal labour and therefore, there is no functional disability. The learned counsel pointed out that the claimant can attend to his work which does not require any assistance.
18. At this junCcture it is relevent to refer to the decision rendered in 2011 ACJ 1 (Raj Kumar vs Ajay Kumar and another), wherein the Apex court has held that
9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so, the extent of such permanent disability. This means that Tribunal should consider and decide with reference to the evidence:(i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement:(iii) if the disablement percentage is expressed with reference to any specific limn, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes tht there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (sic disability) (this is also relevant for awarding compensation under the head loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60 percent. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100 percent as in the case of a driver or carpenter, nor 60 percent which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes, the injured-claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability and may, therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100 percent (or even anything more than 50 per cent), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may be have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
19. The above guidelines are appropriate in applying the multiplier in functional disability. The court must first decide whether there is any functional disability in relation to the avocation of the injured claimant. Whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
20. In the present case, the claimant has suffered a permanent disability at 70% for the amputation of right leg below knee and 25% partial permanent disability for the fracture and the right forum.
21. As per the guidelines laid down in Rajkumar's case (2011 ACJ 1) cited supra
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
22. The crucial point is whether the effect of such disablement of the limb affects the functioning of the entire body and if the answer is in the negative there is no question of proceeding further and determine the loss of future earning capacity that means there is no functional disability.
23. Only if the permanent disability suffered by a person affects the functioning of the entire body the functional disability can be assessed and a compensation will be granted on the basis of loss of earning power.
24. The claimant is stated to be a real estate business man, owns agricultural land and also running a lodge. It is stated that he was earning Rs.25,000/- per month but there is no proof produced for the income. The Tribunal only fixed the income at 10,000/-per month nominally. The tribunal has not discussed whether 75% of the permanent disability will affect the earning capacity.
25. As the per guidelines laid down in Raj Kumar's case (cited supra), considering his avocation and nature of work, we are of the considered view that the activities of the claimant could be carried on in spite of permanent disability as it requires not much of physical work or movement.
26. Though it is stated that the claimant owns agricultural land and has produced patta extract, there is no proof to show that he has contributed his physical labour.
27. The learned counsel for the respondent has relied on a decision reported in 2011 (2) MLJ 308 SC (Arvind Kumar Mishra vs New India Assurance Co Ltd and another) where the Apex court has recently answered the query whether multiplier method is the basis for assessment of compensation in personal injury cases.
28. However, in para 7 of the judgment the Apex court has held each case has to be considered in the light of its own and at the end one must ask whether the sum awarded is fair and reasonable. Therefore, following the principle laid down in Raj Kumar's case, the facts and circumstances of this case do not warrant application of multiplier.
29. Therefore, the compensation cannot be assessed on functional disability. Therefore, the tribunal is wrong in fixing the monthly income at Rs.10,000/- and mechanically applying the multiplier theory. However, the claimant has suffered 70% permanent disability and 25% partial disability and therefore, We are of the considered view he is entitled for a compensation for such disability at the rate of Rs.3,000/- per percentage as an exceptional case.
30. As rightly pointed out by the learned counsel for the appellant the Tribunal has awarded the compensation under some unwarranted heads. Therefore, the compensation is reassessed as follows:
Transport Expenses .... Rs. 10,000/-
Extra Nourishment charges .... Rs. 10,000/-
Attending charges .... Rs. 10,000/-
Loss of Amenities &
Enjoyment of life .... Rs. 25,000/-
Medical expenses .... Rs.2,75,000/-
Future medical expenses ..... Rs. 75,000/
(as per certificate)
Compensation for pain &
Suffering ...... Rs. 75,000/-
Permanent disability
& Loss of earning power Rs. 2,85,000/-
Loss of expectation of life Rs. 2,00,,000/-
-- - - - - - - - - - -
Rs. 9,90,000/-
- - - - - - - - - - -
The Tribunal has awarded interest at the rate of 7.5% per annum which we confirm. The sum of Rs.75,000/- awarded towards future medical expenses shall not carry any interest.
31. In the result, the appeal is partly allowed and the award is reduced to Rs.9,90,000/-. This Court, by order dated 23.3.2011 directed the appellant to deposit 50% of the award amount together with interest. If the amount has already been deposited, the Insurance company is permitted to withdraw the excess amount. No costs.
(K.M.J.,) (G.M.A.J.,)
25-01-2012
sr
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To
Motor Accidents Claims Tribunal
( II Court of Small Causes, Chennai)
K. MOHAN RAM,J.,
AND
G.M. AKBAR ALI,J.,
sr
Pre-Delivery Judgment in
C.M.A.No.722 of 2011
25-01-2012