Madras High Court
Iffco-Tokio General Insurance Company ... vs M.Balasubramaniam on 16 April, 2014
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.04.2014 CORAM : THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.No.3617 of 2013 M.P.No.1 of 2013 IFFCO-TOKIO General Insurance Company Ltd., JH Tower, 2nd Floor, New No.24, Old No.302, LIC Colony Road, Salem. ... Appellant Vs... 1. M.Balasubramaniam 2. G.Kathiresan ... Respondents (R2 set ex parte before the trial Court) Prayer : Civil Miscellaneous Appeals filed under Section 173 Motor Vehicles Act, 1988 against the Judgment and decree, dated 21.06.2013 made in M.C.O.P.No.456 of 2011, on the file of the Motor Accidents Claims Tribunal, (Additional District Judge), Namakkal. For Appellants : Mr.C.R.Krishnamoorthy For Respondents : Mr.Ma.P.Thangavel J U D G M E N T
Iffco-Tokio General Insurance Company, Salem, has filed this appeal, challenging the finding, fixing negligence on the rider of the Bajaj Pulsar Motorcycle, bearing Registration No.TN 28 AJ 4385, consequential liability and the quantum of compensation of Rs.9,50,300/-, with interest, at the rate of 7.5% per annum.
2. According to the respondent/claimant, that on 08.06.2011, about 9.30 P.M., when he was riding a TVS 50 XL Motorcycle, bearing Registration No.TAG 1239, towards Nallipalayam from Mullampatty, on the left side of the road, near Jehan Daba Hotel, at Muthalaipatty Pudur road, on Namakkal-Salem Main Road, a Bajaj Pulsar Motorcycle, bearing Registration No.TN 28 AJ 4385, owned by the 2nd respondent and insured with the appellant-Insurance Company, driven by its rider, in a rash and negligent manner, dashed against the TVS 50 XL Motorcycle, due to which, he was thrown away from the said vehicle, and sustained compound fractures, in both the legs and multiple injuries, in other parts of the body. Immediately, he was taken to Aravind Hospital, Namakkal and given First Aid. Thereafter, he was admitted in Ganga Hospital, Coimbatore and took treatment as inpatient. In this regard, a case in Cr.No.272 of 2011, has been registered against the rider of the offending vehicle, on the file of Nallipalayam Police Station, for the offences under Sections 279 and 337 IPC. According to the respondent/claimant, at the time of accident, he was aged 44 years and engaged as poultry vacinator and earned Rs.10,000/- per month. He claimed compensation of Rs.10,00,000/-.
3. Before the Claims Tribunal, the owner of the Bajaj Pulsar Motorcycle, bearing Registration No.TN 28 AJ 4385, remained ex parte.
4. Iffco-Tokio General Insurance Company, Salem, the appellant herein, has opposed the claim petition, contending inter alia that the rider of the TVS 50 XL, was negligent in causing the accident. It further submitted that inspection of the vehicles, involved in the accident, has been done, after 60 days, from the date of alleged accident and impleading the Bajaj Pulsar Motorcycle, insured with them, was only an after thought, for the purpose of deriving unlawful gain from the Insurance Company.
5. Seeking exoneration of its liability, the appellant-Insurance Company has further submitted that the rider of the Bajaj Pulsar Motorcycle, bearing Registration No.TN 28 AJ 4385, did not possess a valid and effective driving licence and that for the violation of policy conditions, the Insurance Company is not liable to pay compensation. Without prejudice to the above, they also disputed the age, avocation and income of the injured and the quantum of compensation claimed under various heads.
6. Before the Claims Tribunal, the injured examined himself as PW.1 and reiterated the manner of accident and further adduced evidence, as regards the injuries sustained, treatment and expenses incurred. PW.2, the Doctor, who examined the respondent/claimant, with reference to the medical records, has assessed the disablement. Ex.P1 - FIR, Ex.P2 - Wound Certificate, Ex.P3 - Motor Vehicles Inspector's Report, Ex.P4 - Charge Sheet, Ex.P5 - Judgement of the Criminal Court, Ex.P6 - Discharge Summary, Ex.P7 - Medical Bills, Ex.P8 - Medical prescription, Ex.P9 - Driving Licence, Ex.P10 (25 series) - X-Rays, Ex.P11 (2 series) - Photographs, Ex.P12 - X-Rays and Ex.P13 - Disability Certificate, have been marked on the side of the respondent/claimant. On behalf of the appellant-Insurance Company, RW.1, Liason Officer of the Insurance Company and RW.2, Junior Assistant, have been examined, and marked Ex.R1 - Policy, Ex.R2 - Lawyer's Notice, Exs.R3 and R4 - Postal Acknowledments and Ex.P5 - Letter from the Regional Transport Officer, Namakkal.
7. On evaluation of pleadings and evidence, the Claims Tribunal held that the rider of the Bajaj Pulsar Motorcycle, bearing Registration No.TN 28 AJ 4385, was negligent in causing the accident. Considering the oral testimony and medical evidence, the Claims Tribunal awarded compensation of Rs.9,50,300/-, with interest, at the rate of 7.5% per annum.
Heard the learned counsel for the parties and perused the materials available on record.
8. Though Iffco-Tokio General Insurance Company, Salem, appellant herein, has contended that the issue relating to pay and recovery has been referred to a Larger bench in Parvatheni's case reported in 2009 (2) TNMAC 241 (SC) and further contended that in the event of non-possession of driving licence, the Claims Tribunal ought not to have directed the appellant-Insurance Company to pay compensation and thereafter, to recover the said amount from the owner of the Bajaj Pulsar Motorcycle, bearing Registration No.TN 28 AJ 4385, in the light of the decisions of this Court in Division Bench decisions of this Court in United India Insurance Company Ltd., v. S.Saravanan reported in 2009 (2) TNMAC 103 (DB), United India Insurance Company Limited, Salem, Vs. V.Vijayakumar, represented by his mother Kalamani and three others, reported in 2010 (2) TN MAC 388 (DB), Bajaj Alliance General Insurance Company Ltd., Pune, Vs. Manimozhi and four others, reported in 2010 (2) TN MAC 542 (DB) and ICICI Lombard General Insurance Company Vs. Annakkili, reported in 2012 (1) TN MAC 226 and a recent decision of the Apex Court in S.Iyyapan v. United India Insurance Co. Ltd., reported in 2013 (7) SCC 62, Mr.C.R.Krishnamoorthy, learned counsel for the appellant-Insurance Company submitted that he is not pressing the said ground. Submission of the learned counsel for the Insurance Company is placed on record.
9. However, reiterating the other defences made in the Claims Tribunal, learned counsel for the appellant-Insurance Company submitted that it was the respondent/claimant, who suddenly changed the track in the road, from left to right, in order to cross the road and thus, invited the accident. In this context, he invited the attention of this Court to the sketch, stated to have been prepared on 10.06.2011. Perusal of the award shows that the sketch now sought to be produced before the appellate Court, has not been marked by the appellant-Insurance Company, before the Claims Tribunal, nor any oral evidence, has been adduced, with reference to the same.
10. Though the learned counsel for the appellant-Insurance Company submitted that the Bajaj Pulsar Motorcycle, bearing Registration No.TN 28 AJ 4385, has been falsely implicated in Ex.P1 - FIR, so as to make unjust enrichment, on account of the accident, perusal of Ex.P1 - FIR, registered in Cr.No.272 of 2011 shows that on 10.06.2011, a criminal case has been registered against the rider of the offending vehicle, for the offences under Sections 279 and 337 IPC, on the file of Nallipalayam Police Station.
11. A complaint has been lodged on 10.06.2011, alleging that while the injured was riding the TVS 50 XL Motorcycle, bearing Registration No.TAG 1239, the Bajaj Pulsar Motorcycle, bearing Registration No.TN 28 AJ 4385, owned by the 2nd respondent, and insured with the appellant-Insurance Company, driven by its rider, in a rash and negligent manner, dashed against TVS 50 XL Motorcycle and immediately thereafter, the injured was given First Aid in Aravind Hospital. Thereafter, the injured was admitted in Ganga Hospital, Coimbatore.
12. Though there is a delay of two days, in lodging the FIR, this Court deems it fit to consider Ex.P2 - Wound Certificate and other medical records, to ascertain the nature of injuries, sustained by the respondent/claimant, as to whether, they have immobilised him, from preferring a complaint immediately. Ex.P2 - Wound Certificate issued by Ganga Medical Centre and Hospital (P) Ltd., Coimbatore, reads as follows:
List of Injuries:
1. Swelling, deformity, tenderness abnormal mobility present right leg with lacerated wound 1x1 cm present. Antero medial aspect right leg and another lacerated wound 5x4 cm present posteo medial aspect right leg with fractured fragment lying outside, active toe movements present. Dorsalis pedis pulsation felt.
2. Lacertated wound 4 x 0.2 cm present right 1st metatarso phalangeal joint.
3. Swelling, deformity, abnormal mobility present tenderness present. Left lower third of leg and ankle. Active toe movement. Posterior tibial pulsation felt.
4. Tenderness present right shoulder, movement are painful.
5. Abrasion 3x2 cm present 2 in number present over dorsum of left wrist.
6. Lacerated wound 3x0.5cm surrounded by abrasion left eyebrow.
7. Abrasion 4 x 4 cm present vertex.
X-Ray Reports:
X-RAY RIGHT LEG/ANKLE AP/LATERAL - SEGMENTAL FRACTURE BOTH BONE RIGHT LEG.
X-RAY LEFT LEG/ANKLE AP/LATERAL DISTAL THIRD TIBIA FRACTURE MEDIAL AND LATERAL MALLEOLS."
13. This Court also deems it fit to extract the entries in Ex.P6 - Discharge Summary, which speaks about the nature of injuries, treatment given and period of hospitalisation, and further treatment underwent by the respondent/claimant from 09.06.2011 to 07.09.2012, for nearly one year and three months. In the accident, the respondent/claimant has sustained, (i) Grade III B open both bones fracture right leg with segmental bone loss and composite burst laceration right leg with tissue loss and (ii) closed distal tibial fracture left leg with medial and lateral malleoli fracture with blunt injury abdomen.
14. As per Ex.P6 - Discharge Summary, during the first spell of treatment, ie., from 09.06.2011 to 28.07.2011, the respondent/claimant has underwent surgeries. Details of which have been elaborated in the Discharge Summary. After discharge, again, the respondent/claimant has been hospitalised between 12.10.2011 and 16.10.2011. He has underwent surgery for corticotomy right tibia. On 7th September, 2012, the Doctor, who treated him, has advised cast application and mobilisation. Ex.P6 - Discharge Summary reveals continuous treatment in the hospital upto 19th October, 2012. From the entries in Exs.P2 to P6, it could be seen that the respondent/claimant has been treated in Ganga Medical Centre and hospital, Coimbatore, in two different spells, as stated supra, for nearly one year and three months.
15. This Court has also perused Ex.P11 - Photographs of the injured, showing crush injury in the right leg with Grade III Both Bone fracture. Ex.P11 - Photographs, taken before and after surgery, manifestly indicate that the injuries are very serious and that fracture of bones is communited and considering the gap in the bones, non-union third distal third junction tibia with bone loss, the Doctors have decided to do corticotomy, at proximal 1/3 tibia LRS insitu.
16. PW.2, Doctor, who clinically examined the respondent/claimants, with reference to the medical records, has issued Ex.P13 - Disability Certificate, which reads as hereunder:
"This is to certify that I have examined Mr.Balasubramaniyam, 48/m, S/o.Muthusamy, residing at East Street, Nalliyapalayam, Namakkal, on this day.
He met with a RTA on 08.06.2011 and sustained compound segmental fracture both bone with bone loss and tissue loss and fracture distal fracture tibia and both malleolus fracture left side and blunt injury abdomen. For that he had treatment at Ganga Hospital, Coimbatore. There, fracture Left leg treated with plate and screw fixation and for Right leg fracture. First External Fixator applied, then for the wound muscle flap essh applied. Later bone lengthening done and then POP Cast application done.
Now X-Ray was taken, it shows union of fracture lower third of tibia united in mild malposition and O.A, changes left ankle and intertersal joints. X-Ray right leg shows malunion of fracture tibia and fibula and O.A., changes right ankle present. On examination in right leg ugly scaring present in the middle third of leg and swelling right leg and ankle present. Shortening of 1cm right leg present. Movements of right ankle painful and restricted in final 15 Degrees and weak and movements of left ankle restricted in the final 10 Degrees, tenderness present on both ankle joints.
He walks with the help of stick only. Could not walk without support. Couldn't walk long distances and couldn't sit and squat on the floor and couldn't climb on the steps, without others help, could do heavy manual works and couldn't drive vehicles.
I am of the opinion that this disabilities are permanent one and the percentage of his disability is 60% (sixty)."
17. Considering the gravity of injuries, sustained by the respondent/claimant on 08.06.2011, it could be reasonably be presumed that the relatives would have any time to go to the Police Station, to lodge a complaint. On the other hand, their reaction would only to take the injured, to the nearest hospital to provide emergency treatment and if sufficient medical and infrastructural facilities are not available in the said hospital, take him to a better hospital, to save the life of the injured.
18. From the narration of the facts, stated supra, it could be seen that immediately after the accident, the respondent/claimant was taken to Aravind Hospital for providing First Aid and thereafter, shifted to Ganga Hospital, Coimbatore, for better treatment, in which, the respondent/claimant has taken a long treatment, both as inpatient and outpatient. Therefore, even taking it for granted that there was a delay of one or two days, in lodging the complaint to the Police, it would not be fatal to the claim made, by the respondent/claimant.
19. It could be further noticed that on 09.06.2011, when the respondent/claimant was admitted in the hospital in Ex.P2 - Wound Certificate, it has been categorically recorded that he had sustained fractures in both bones, lacerated injury of 3 x 0.5cms, surrounded by abrasion, left eyebrow. That apart, there were facial cuts. CT Scan has been taken for Brain and Abdomen. Certainly, a person, who has sustained multiple injuries, all over the body, would have suffered severe mental shock and in such circumstances, he cannot be expected to recall the entire events. At this juncture, it is also noted that he has been subjected to CT Scan for brain and abdomen. Luckily, there is no fracture in the head. But the injuries are certainly grievous. Considering the need to provide immediate treatment to the injured, delay of just one or two days in lodging the complaint with the concerned Police Station, cannot be a ground to dismiss the claim. Reference can be made to a decision of the Apex Court in Ravi V. Badrinarayan, reported in 2011 ACJ 911, wherein at paragraph Nos. 20 and 21, it has held as follows:
"20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground.
21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons".
20. As stated supra, the contention of the appellant-Insurance Company, seeking reversal of negligence, by producing a sketch, alleged to have been prepared by the Police, at the appellate stage, cannot be permitted in law, as the sketch has not been marked, nor any oral evidence has been adduced. Though RW.1, official of the Company has adduced oral evidence, disputing the manner of accident, his evidence cannot be given credence, as he has not seen the accident. On the contra, during cross-examination, when a specific suggestion has been made by the appellant-Insurance Company to the claimant, as to whether, he was the cause for the accident, he has specifically denied the same. Thus, it could be seen that his testimony remained unshakable.
21. Morover, Ex.P1 - FIR has been registered against the rider of Bajaj Pulsar Motorcycle, bearing Registration No.TN 28 AJ 4385. The police, after investigation, has filed Ex.P4 - Charge Sheet, against him. The Claims Tribunal has also recorded that as per Ex.P5, Judgement of the Criminal Court, the Bajaj Pulsar Motorcycle, has paid the fine to the Criminal Court. Merely because, the Transport Department has directed the owner of the offending vehicle to produce the same belatedly, or for that matter, the owner has not produced in time, accident and the involvement of the vehicle, cannot be doubted, in the light of availability of other material evidence, like Ex.P1 - FIR and other medical evidence. Therefore, the finding of the Claims Tribunal, fixing negligence on the rider of Bajaj Pulsar Motorcycle, bearing Registration No.TN 28 AJ 4385, has been amply proved. The said finding is not perverse, warranting reversal.
22. On the quantum of compensation, after perusal of the medical records, the Claims Tribunal has found that the respondent/claimant has sustained the abovesaid injuries, hospitalised in different spells and undergone continuous treatment. PW.2, Doctor, who clinically examined the respondent/claimant, with reference to the medical records, has spoken to the effect that the respondent/claimant has sustained grievous injuries; surgeries performed; malunion of fractured bones; reduction in the height of the right leg; and restriction of movement in the left leg. He has categorically deposed that the respondent/claimant cannot walk, without a walking stick, would find it difficult to walk for long distances, sit, squat on the floor, climb stairs and drive heavy vehicles. PW.2, Doctor, has assessed the disability at 60% and issued Ex.P13 - Disability Certificate. At this juncture, this Court deems it fit to extract the observation of the Doctors, Ganga Medical Centre and Hospital (P) Ltd., Mettupalayam Road, Coimbatore, as follows:
"Considering patient age and gap non union middle third distal third junction tibia with bone loss, it was decided to do corticotomy at proximal 1/3 tibia LRS insitu. In next stage, planned for distraction osteogenosis, at corticotomy site. However, chances of infection malunion, non union all exist."
23. This Court also deems it fit to extract from the medical text, as to what are the cases of malunion and non-union of bones and the treatment given by the Doctors, in such cases, A malunion is a broken (fractured) bone that has healed in an unacceptable position that causes significant impairment. A nonunion is a fracture that has failed to heal after several months.
In malunion, the bone may have healed at a bent angle (angulated), may be rotated out of position, or the fractured ends may be overlapped causing bone shortening. Malunion may be caused by inadequate immobilization of the fracture, misalignment at the time of immobilization, or premature removal of the cast or other immobilizer. Nonunion has several causes. The broken ends of bone may be separated too much (overdistraction), which can occur if excess traction was applied. There could have been excessive motion at the fracture site, either from inadequate immobilization after the injury or from having a cast removed prematurely. Muscle or other tissue caught between the fracture fragments also can prevent healing, as can the presence of infection or inadequate blood supply to the fracture site. Bone disease (e.g., bone cancer) also can prevent healing.
There are two types of nonunions: fibrous nonunion and false joint (pseudarthrosis). Fibrous nonunion refers to fractures that have healed by forming fibrous tissue rather than new bone. Pseudarthrosis refers to nonunions in which continuous movement of the fracture fragments has led to the development of a false joint. Certain types of fractures are associated with a high risk of nonunion, such as fractures of the wrist (carpus), including scaphoid bone; certain fractures of the foot, including navicular fractures and Jones (diaphyseal) fractures of the fifth metatarsal; shoulder long bone fractures (proximal humerus fractures); and some shin bone (tibial) fractures.
The severity of the injury is a strong factor in the healing process. Individuals who have had a severe traumatic fracture, large displacement between fracture fragments, and fractures where the bone was broken into many pieces (comminuted fracture) are at an increased risk of nonunion. Open or compound fractures also are at risk of malunion or nonunion. A condition called compartment syndrome can occur when sever trauma leads to such a degree of swelling that the blood supply is compromised. The result is muscle death around the fracture site and inadequate bone repair.
Risk: Certain lifestyle and health factors may interfere with bone healing. These include smoking, excessive alcohol use, poor nutritional status, poor general health, fitness deficits, and diabetes. Other factors contribute to loss of bone strength and make healing more difficult. These include use of nonsteroidal anti-inflammatory drugs (NSAIDs), use of corticosteroid drugs, other drugs such as anticonvulsants, and the thyroid hormone replacement, thyroxine. Individuals of European or Asian ancestry who have increased risk for osteoporosis and elderly individuals are at increased risk for poor bone healing. Women who have experienced early menopause, late menarche, or the loss of their ovaries, are at increased risk for bone weakness.
Diagnosis History: History is of a fracture that may or may not have been treated by a physician. The individual may report pain, swelling (edema), instability, or deformity at the site of a previously broken bone. If the fracture was in a lower extremity, the individual may report difficulty bearing weight through the limb.
Physical exam: The exam reveals the deformity of a malunion or the instability of a nonunion. Touching with the hands (palpation) may reveal tenderness.
Tests: Plain x-Rays demonstrate the fracture malunion or nonunion. CT Scan, MRI, or bone scan may help further define the condition.
Treatment: Most malunions and nonunions require open surgery to realign the fracture fragments into their normal anatomical position (open reduction) and stabilize the fracture by use of metal plates, rods, screws, and/or wires (internal fixation). Bone graft material may be placed in the surgical site to stimulate fracture healing. Some cases, whether treated surgically or with noninvasive techniques (closed reduction), benefit from the use of electrical, electromagnetic, or ultrasonic stimulation to promote fracture healing and bone growth. Electrical stimulation may be administered by a self-contained device surgically implanted internally at the fracture site or by multiple electrodes placed over the skin near the fracture site. In some studies of fractures of the radius, lateral malleolus, and tibia, low-intensity pulsed ultrasound treatments administered through the skin adjacent to the fracture site have been shown to speed healing. Malunion is treated by surgically breaking the malunion (osteotomy), followed by ORIF. Infection requires surgical removal of any infected bone or tissue (dibridement), followed by intensive antibiotic treatment.
Treatment of nonunion may be complemented with a synthetic bone graft or one that is obtained from the individual (autograft, autogenous graft), from another individual (allograft, homogeneous graft), or from an animal (xenograft, heterogeneous graft). Newer approaches are using recombinant bone morphogenic protein and bone marrow aspirates. Bone marrow may be harvested from the individual's hip bone (iliac crest) and injected directly into the fracture site guided by external imaging (fluoroscopy). Treatment of pseudarthrosis involves removal (resection) of the false joint tissue before placement of the bone graft. Treatment of delayed unions and nonunions may also include functional bracing of the fracture site.
In some instances (e.g., some fractures of scaphoid), nonunion causes only slight problems, and the condition is left untreated. Likewise, malunion may be left untreated if it causes little or no functional deficit. For example, clavicle fractures may be allowed to heal in an imperfect but acceptable alignment (bayonet apposition) without resulting functional loss. Similarly, mild angulation of a humerus fracture does not impair use of the upper extremity.
Prognosis: Treatment of malunion by ORIF usually has a good outcome. Osteotomy can reduce deformity and relieve functional impairment, but this places the bone at risk of fracture. Minor degrees of malunion are common and may not have a significant effect on function or appearance.
Bone grafting usually is a successful treatment for nonunion, especially in the long bones of the body. Electrical and electromagnetic bone growth stimulators continue to progress and are especially advantageous in management of infected nonunions and in situations where surgery is not advisable. Low-frequency ultrasound therapy may decrease fracture-healing time in lower extremity nonunions by as much as two months. Bone marrow injection into the site of nonunion may resolve the nonunion without need for further surgery.
Complications: A malunion can result in a functional impairment with limited mobility. Any malunion can put increased stress on other joints causing pain and/or accelerated wear. Major degrees of malunion can cause impairment in function and significant deformity and can lead to degenerative arthritis. Malunion in a finger can interfere with the use of other fingers. Nerve damage can occur, especially with an elbow fracture.
A malunion in a leg can result in an abnormal gait.
A nonunion may be painless, but the fracture will be unstable and the bone less strong. Nonunions in a lower extremity may result in reliance upon assistive devices (e.g., crutches, wheelchairs) for mobility.
24. It is the case of the respondent/claimant that he was a poultry vaccinator, earned Rs.10,000/- per month. However, no document has been filed. Considering the age of the respondent/claimant, ie., 44 years, the Claims Tribunal has fixed his monthly income as Rs.5,000/-. Though the appellant-Insurance Company has disputed the quantum of compensation, arrived at by the Claims Tribunal, by application of multiplier method, this Court is not inclined to accept the said contention, as the very nature of injuries, long period of treatment, existence of mal-union and non-union of bones, surgery for corticotomy, to fuse the fractured bones and the opinion of PW.2, Doctor, Mr.Kathiravan, Specialist in Orthopaedic Surgery Burns and Hand Surgery and Plastic and Reconstructure Surgery, Sri Nidhi Hospital, Pudur, Namakkal, regarding the weakness in the legs, reduction of height, restriction of the movement in the knee and more particularly, dependability with a walking stick, coupled with other discomforts, would go to show that the respondent/claimant has lost his earning capacity, due to the functional disability, assessed at 60%. After fixing the monthly income of the respondent/claimant at Rs.5,000/-, the Claims Tribunal applied '13' multiplier applicable to his age group, worked out the loss of earning capacity to the extent of 60% at Rs.4,68,000/- (Rs.5,000/- x 12 x 13 x 60%).
25. In Rajkumar v. Ajay Kumar reported in 2011 ACJ 1 (SC), at paragraphs 4 to 14, the Supreme Court has explained with illustrations, as to how the extent of loss of earning capacity has to be assessed, "General Principles relating to compensation in injury cases:
4. The provision of the Motor Vehicles Act, 1988 (`Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376, R. D. Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 and Baker vs. Willoughby - 1970 AC 467).
5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case.
Assessment of future loss of earnings due to permanent disability
6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.
8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567).
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 the 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 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.
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 (this is also relevant for awarding compensation under the head of 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%. 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% as in the case of a driver or carpenter, nor 60% 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 the 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 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, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), 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 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.
11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an 12 active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. 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, the 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.
12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.
13. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.
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)]."
26. The Claims Tribunal has awarded a meagre amount of Rs.20,000/- under the head pain and suffering. Discharge Summary reveals, inpatient and outpatient, treatment for over one year. Considering the extent of disablement at 60%, assessed by PW.2, Doctor, the quantum of compensation awarded for pain and suffering, is inadequate. Compensation of Rs.10,000/- awarded for transportation is also less. There is no compensation for future transportation. Compensation of Rs.4,21,266/- awarded towards medical expenses, is duly supported by Ex.P11 - Medical Bills. A sum of Rs.11,000/- for future medical expenses, can also be justified in view of the decision of the Apex Court in Nagappa v. Gurudayal Singh and others reported in 2003 ACJ 12: 2004 (2) TN MAC 398 (SC). However, the Claims Tribunal ought not to have awarded interest, for the compensation, awarded under the head, future medical expenses.
27. As stated supra, in Rajkumar's cae, the Apex Court has itemised the heads, pecuniary and non-pecuniary losses, which the Courts/Tribunals are bound to consider, while awarding compensation to the injured. Loss of amenities, as per the Full Bench decision of this Court in Cholan Roadways Corporation Ltd., Kumbakonnam vs. Ahmed Thambi and others reported in 2006 (4) CTC 433, is as follows:
"deprivation of the ordinary experiences and enjoyment of life and includes loss of the ability to walk or see, loss of a limb or its use, loss of congenial employment, loss of pride and pleasure in one's work, loss of marriage prospects and loss of sexual function"
However, no award has been made under the head, loss of amenities.
28. Considering the nature of injuries, long period of treatment and immobilisation, during treatment, the Claims Tribunal ought to have awarded a just and reasonable compensation, under the head, loss of earning during treatment. During hospitalisation, the respondent/claimant would have taken the assistance of somebody. But, attendant charges have not been awarded.
29. In B.Kothandapani v. Tamil Nadu Transport Corporation Ltd., reported in 2011 (5) SCC 420, the Supreme Court held that an injured is entitled to claim compensation under both the heads, disability and loss of earning capacity. In the case on hand, going through the award, this Court is of the view that compensation can be awarded under both the heads, disability as well as loss of future earning, by considering the gravity of the nature of injuries, extent of disablement and the loss of his earning capacity.
30. In the light of the decisions, stated supra and the evidence, available on record, this Court is of the view that though the appellant-Insurance Company has questioned the quantum of compensation, as excessive, in the humble opinion of this Court, the same, does not reflect the principles of 'just compensation', explained by the Apex Court, in the following decisions:
(i) In R.D.Hattangadi v. M/s.Pest Control (India) Pvt. Ltd., reported in AIR 1995 SC 755, wherein, the Apex Court held as follows:
"In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of disability caused. But all the aforesaid elements have to be viewed with objective standards."
(ii) In yet another decision in Divisonal Controller, KSRTC v. Mahadeva Shetty and another reported in (2003) 7 SCC 197, in Paragraph 12, the Supreme Court has held that, "Broadly speaking, in the case of death the basis of compensation is loss of pecuniary benefits to the dependents of the deceased which includes pecuniary benefits to the dependents of the deceased which includes pecuniary loss, expenses etc. and loss to the estate. The object is to mitigate hardship that has been caused to the legal representatives due to the sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring the value of human life and the measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor should it be a source of profit for the person in whose favour it is awarded."
In Paragraph 15 of the said judgment, the Supreme Court has held that, "Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness, and non-arbitrariness. If it is not so, it cannot be just."
(iii) In Nizam Institute of Medical Sciences v. Prasanth S.Dhananka reported in (2009) 6 SCC 1 = 2010 ACJ 38 (SC), the three-Judge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs.15 lakhs to Rs.1 crore, the Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The adequate compensation that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. ...At the same time we often find that a person injured in an accident leaves his family in greater distress vis-`-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. (emphasis supplied)
(iv) In Reshma Kumari and others v. Madan Mohan reported in (2009) 13 SCC 422, the Apex Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below:
The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so.
In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben, 2008 ACJ 1097 (SC), held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor. (emphasis supplied)
31. Therefore, this Court in exercise of the powers under Order 41 Rule 23, is inclined to suo motu enhance the compensation. Reference can be made to few decisions,
(i) In National Insurance Co. Ltd., v. M.Jayagandhi reported in 2008 (1) TNMAC 177, on the question as whether in the absence of any Cross Objection, the High Court could suo moto enhance the compensation, by exercising power under Order 41, Rule 33 CPC., this Court, at Paragraphs 37 and 38, held as follows:
37. The question arising for consideration is whether in the absence of any Cross Objection, the Appellate Court could suo motu enhance the compensation. The Appellate Court exercising power under Order 41, Rule 33, CPC could enhance the quantum of compensation even without Cross-Objection. The Courts and Tribunals have a duty to weigh various factors and quantify the amount of compensation which should be just. Reference could be made to the decision of the Supreme Court in Sheikhupura Trans. Co. Ltd. v. Northern India Transporter's Ins. Co. Ltd. , 1971 ACJ 206 (SC), wherein it is held that pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately, but must necessarily be an estimate or even partly a conjecture. The general principle is that the pecuniary loss can be ascertained only by balancing, on the one hand, the loss to the Claimants of future pecuniary benefits and on the other any pecuniary advantage which from what-ever sources come to them by reason of the death, i.e. the balance of loss and gain to a dependant by the death must be ascertained. The determination of the question of compensation depends on several imponderables. In the assessment of those imponderables, there is likely to be a margin of error. Broadly speaking, in the case of death, the basis of compensation is loss of pecuniary bene-fits to the dependants of the deceased which includes pecuniary loss, expenses, etc. and loss to estate. Object is to mitigate hardship that has been caused to the legal representatives due to sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be un-reasonable, excessive nor deficient.
38. Of course, the Claimants who are widow, minor daughter and mother have not filed any Cross-Objection. Even without a Cross-Objection, questioning the quantum, the Court could suo motu enhance compensation under Or. 41, R. 33, CPC. In this context, reference could be made to 1999 ACJ 977 [Karnataka] wherein it has been held as follows:
(6) I am in general agreement with the basic proposition of law that has been canvassed by the appellant's learned advocate when he points out that it is a well settled principle that a party who suffers an order or a decree and does not Appeal against it or assail it would normally not be permitted at the hearing of the Appeal to try and take advantage of the situation by asking for enhancement. The issue is not that but really as to whether this situation prescribes an absolute and total bar to the Court granting a relief if in the interest of justice such a relief is an absolute must. One has to view the situation from a rather practical point of view the first of them being with regard to the very poor quality of legal assistance that is usually available in and around the M.A.C.T. and thereafter, the second aspect of the matter being that the status of the parties and their general condition themselves may be such that they are unable to agitate the matter further and the third aspect of the matter which is relevant having regard to the present case, is the possibility of certain further tragic occurrences such as deaths that may have intervened, all of which may contribute to a situation wherein the Court finds that no Appeal or Cross-Objections have been filed. The essence of doing justice requires that compensation when awarded has got to be reasonable and fair and it has also got to be adequate having regard to the totality of the circumstances. The hearing of the Appeal involves a total review of the case and the Appeal is virtually an extension of the proceedings before the lower Court. The law is well settled with regard to one interesting aspect of the matter, namely, that the Courts do come across a few instances where instead of over-pitching the case before the Trial Court, a very modest amount is claimed and the Tribunals in these circumstances have been wrongly limiting the relief to the amount that has been claimed on the ground that even though the party is entitled to something higher, what was asked for is a lower figure. This Court had occasion to correct these orders and to lay down that the Tribunal is required to pass an order quantifying the compensation correctly irrespective of what has been claimed on the basis of the principle that it is not the amount that is claimed in that matter, insofar as if the Court has to the power to award a lesser amount, that it is equally equipped with the power to award a higher amount. It is that principle which applies with equal force to the Appeal Court and though I do not dispute that a Court would normally not permit a party to ask for enhancement unless an Appeal or Cross-Objections have been filed but there could be a very small category of cases in which the Court would make an exception, the reason being that the essence of doing justice requires that a Court will not refuse a relief only because of a technical or a procedural bar. I need to amplify here that if the technicalities are upheld, the result would be doing injustice insofar as the party will be left with a compensation lesser than what a fair evaluation entitles the party to. Again, I do not on the basis of the law as enunciated by the Courts in the decisions set out by me above, subscribe to the view that there exists any bar in the way of this Court exercising such powers. The powers do exist under Order 41, Rule 33, Civil Procedure Code and more importantly, such powers can certainly be exercised under section 151, Civil Procedure Code in the interest of justice. Applying the above decision, in Tamil Nadu State Transport Corporation v. Vasantha and Ors. , 2006 (3) ACJ 1917: 2006 (1) TN MAC 336 Justice Arumuga perumal Adithyan has enhanced compensation, exercising power under Or. 41, R. 33, CPC and Section 151, CPC.
(ii) In Tamil Nadu State Transport Corporation v. Saroja and Ors., reported in 2008 (1) TNMAC 352, this Court has considered the same issue and the said point is answered as follows:
6. On point:
The learned counsel for the respondents/claimants placing reliance on Order XLI, Rule 33 of C.P.C. and the various decisions emerged thereunder would pray that the compensation might be enhanced even though no cross-objection has been filed by the claimants, whereas the learned counsel for the appellant - Transport Corporation would cite the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R. Swaminathan & Ors. , 2006 (2) ACC 701 (SC), and develop his arguments to the effect that unless there is a cross objection, the question of enhancing the compensation would not arise. Hence, it is just and necessary to refer to the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R. Swaminathan & Ors. , 2006 (2)ACC 701 (SC). An excerpt from it would run thus:
Apparently the first respondent claimant was satisfied with the Tribunal's Award as he did not file any Appeal there against to the High Court. Nonetheless, being aggrieved by the Single Judge's judgment, the claimant filed a Letters Patent Appeal before the Division Bench of the High Court. This Appeal was allowed and by the impugned judgment the High Court has awarded total compensation amounting to Rs.7,44,000/- under different heads with a direction for payment of inte-rest at 18% from the date of Petition. The appellant-Insurance Company is aggrieved thereby and is in Appeal before us.
The issue that arises in this case is, whether the Division Bench of the High Court was justified in in-creasing the compensation amount beyond the amount awarded by the Tribunal despite the fact that the Award of the Tribunal was not at all challenged by the claimant. The only reason given by the Division Bench of the High Court for doing so is:
In this connection, we may observe that we are aware of the fact that we are enhancing the compensation even though the injured has not claimed it. But, the question is covered by catena of decisions justifying enhancement of compensation even if cases where the injured has not preferred an Appeal, provided the circumstances of the case warrants the same. To say the least, this was a very facial way of interfering with the award when no interference was called for. We called upon the learned Counsel on both sides to show us at least one case (out of the catena of judgments referred to in the impugned judgment) in support of this proposition. Learned counsel frankly confessed that there was none. On the other hand, the learned Counsel for the appellant drew our attention the judgment of this Court in Banarsi v. Ram Phal , 2003 (2) SLT 258: 2003 (9) SCC 606, which supports the proposition that in an Appeal filed by the defendant laying challenge to the grant a smaller relief, the plaintiff as a respondent cannot seek a higher relief if he had not filed an Appeal on his own or had not taken any cross-objection. In the present Appeal it would appear that the claimant neither Appealed against the award of compensation passed by the Tribunal, nor filed any cross-objection in the First Appeal filed by the Insurance Company. Thus, we are satisfied that the Division Bench of the High Court wholly erred in increasing the compensation amount beyond the amount awarded by the Tribunal in the Appeal filed by the Insurance Company.
7. A mere perusal of the excerpt from the said decision would clearly indicate that the Hon'ble Apex Court in that decision has not laid down as a universal rule of interpretation of Order 41, Rule 33 of C.P.C. Taking into consideration, the method and manner in which the Division Bench of this Court in the Letters Patent Appeal, without citing adequate reasons and precedents, enhanced the compensation amount to an extent of Rs. 7,44,000/- with 18% interest from that of Rs. 3,00,000/- awarded by the Single Bench of the same Court, the Hon'ble Apex Court found fault with it.
8. Furthermore, the above excerpt also would reveal that without even relying upon any precedent, the Division Bench of this Court, simply enhanced the compensation and that too to the extent of double that of what the Single Judge of this Court ordered. It is also clear that when the Hon'ble Apex Court wanted a precedent in that regard, the learned counsel for the appellant therein cited only the decision of the Hon'ble Apex Court in Banarsi v. Ram Phal , 2003 (2) SLT 258: 2003 (9) SCC 606. As such, in the peculiar facts and circumstances of that case, the Hon'ble Apex Court felt that the power under order 41, Rule 33 of C.P.C. invoked by the High Court and that too in a case where such an enhancement was not at all warranted, looked askance at it. It is therefore explicite that the Hon'ble Apex Court in the cited decision has not laid down the law that even in a fit case, the High Court should not invoke Order 41, Rule 33 of C.P.C. in the absence of filing cross Appeal. Furthermore under Order 41, Rule 33, there are earlier decisions of the Hon'ble Apex Court, which could be cited as under:
(i) Municipal Board, Mount Abu v. Hari Lal , 1988 ACJ 281.
(ii) Dangir v. Madan Mohna , AIR 1988 SC. 54.
(iii) M.D. Pallavan Transport Corporation Ltd., v. Kalavathi , 1998 (1) ACJ 151.
(iv) State of Punjab v. Bakshish Singh , 1998 (8) S.C.C. 222.
9. The perusal of the aforesaid Judgments of the Hon'ble Apex Court would clearly highlight that without filing cross Appeal, the respondents in the Appeal could pray for reliefs and that the High Court under Order 41, Rule 33 could grant such reliefs also. This Court in several cases adhering to the aforesaid decisions of the Hon'ble Apex Court held that under Order 41, Rule 33 of C.P.C., this Court could enhance the compensation in appropriate cases. An excerpt from the decision of this Court in Managing Director, Thanthai Periyar Transport Corp., Villupuram v. Sundari Ammal and four Others reported in 1999 (2) CTC 560 would run thus:
Unfortunately, in the instant case, there is no cross-objection. Therefore, it would be essential, in this context, to consider whether this Court has got powers to enhance the amount of compensation, in the event of coming to the conclusion that the award was on the lower side, even though there is no cross-objection by the claimants.
In Dangir v. Madan Mohan , AIR 1988 S.C. 54 and M.D., Pallavan Transport Corporation Ltd., v. Kalavathi , 1998 (1) A.C.J 151, it is held that this Court has got power to enhance the compensation, even though the claimants had not filed any cross-objection against the award seeking for higher compensation, if this Court finds that the amount awarded by the Tribunal is not just and adequate.
As pointed out by the Apex Court in State of Punjab v. Bakshish Singh , 1998 (8) S.C.C. 222, the reading of the provision would make it clear that the Appellate Court has got wide power to do complete justice between the parties and which enables this Court to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any Appeal or cross-objection.
The Apex Court in Dhangir v. Madan Mohan, A.I.R. 1988 S.C. 54, be referring Order 41, Rule 33, would make the following observation:
The Appellate Court could exercise the power under Rule 33 even if the Appeal is only against a part of the decree of the lower Court. The Appellate Court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any Appeal or objection. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The Appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The words ?as the case may be require? used in Rule 33, Order 41 have been put in wide terms to enable the Appellate Court to pass any order or decree to meet the ends of Justice. What then should be the constraint? We do not find many, we are giving any liberal interpretation. The rule itself is liberal enough. the only constraints that we could see may be these: That the parties before the lower Court should be there before the Appellate Court. The question raised must properly arise out of judgment of the lower Court. If these two requirements are there, the Appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It is true that the power of the Appellate Court under S. 33 is discretionary. But, it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities.
10. And then the Division Bench of this Court in the decision in The Managing Director, Annai Sathya Transport Corporation Ltd., Dharmapuri v. Janardhanam and 7 others , 2000 (2) CTC 272 placing reliance on the decision of the Hon'ble Apex Court held a similar view that without cross Appeal Order 41, Rule 33 of C.P.C. could be invoked in appropriate cases. An excerpt from it would run thus:
At this stage, learned counsel appearing for the respondent/claimants would submit that the Tribunal has awarded interest only from the date of the Judgment and not from the date of the petition. The learned counsel for the respondents/claimants would submit that even though no Appeal has been filed by the respondents/claimants or no cross-objections have been filed by them, this Court has discretionary power by virtue of Order 41, Rule 33 of Code of Civil Procedure and also in view of the rulings of the Supreme Court in Dhangir v. Madan Mohan , AIR 1988 SC 54 to grant the proper relief. Of course, the Apex Court has pointed out in clear and categorical terms and the power conferred under Order 41, Rule 33 on the Appellate Court is discre-tionary, and then it must be used in proper case using the judicial discretion to render justice. The Apex Court in United India Insurance Co., Ltd., v. Narendra Pandu-rang Kadam and others , 1995 (1) SCC 320 has clearly laid down that the rate of interest must be awarded from the date of the petition and not from the date of the Judgment.
11. Over and above that the decision of the Hon'ble Three Judges? Bench of the Hon'ble Apex Court, in Nagappa v. Gurudayal Singh and others , 2003 ACJ 12: 2004 (2) TN MAC 398 (SC), could be cited here. An excerpt from it would run thus:
Firstly, under the provisions of Motor Vehicles Act, 1988 (hereinafter referred to as ?the M.V. Act?), there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if Tribunal/Court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. Only embargo is - it should be 'just' compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the M.V. Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) 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. Under the proviso to subsection (1), all the legal representatives of the deceased who have not joined as the claimants are to be impleaded as respondents to the application for compensation. Other important part of the said Section is subsection (4) which provides that ?the Claims Tribunal shall treat any report of accidents forwarded to it under subsection (6) of Section 158 as an application for compensation under this Act?. Hence, Claims Tribunal in appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no specified amount is claimed.
(iii) In Tamil Nadu State Transport Corporation v. Pothumponnu [CMA(MD)No.714 of 2009, dated 05.08.2009], this Court, held as follows:
17. Notice can be issued to the opposite parties/respondents only in case where their rights are going to be affected be way of variation/reduction. In this case, the claimants are going to be benefited. Hence, no notice is necessary in the appeal. When the Tribunal commits a mistake that too a material mistake, this Court cannot close its eyes and decide the matter mechanically. When the mistake is noticed by this Court, this Court has got power to do away with it, even while dismissing the appeal at the admission stage itself. The presence of the respondent is not a must. When there is a case for admission, the matter can be admitted and notice can be ordered. When there is no case made out for admission, the appeal deserved to be dismissed. While dismissing, the material irregularity committed by the Tribunal can be set right by awarding suitable amounts to the respondents without notice to them. The presence of the claimants or absence does not make any difference. Even if they are present and they do not bring it to the notice of this Court about the irregularity, this Court can always remedy the same suo motu under Order XLI Rule 33 of the Code of Civil Procedure and Section 173 of the Motor Vehicles Act and invoking Articles 227 of the Constitution of India. Moreover, Sections 163 and 166 are beneficial provisions of the Motor Vehicles Act aimed at consoling and compensating the victims of the accident. This Court's approach should be humane in nature not whittled down by technicalities. The powers of the Court are wide enough to do complete justice.
32. In the light of the principles of law laid down in awarding 'Just Compensation' cases and following the decisions, where the Court, can suo motu enhance the compensation, on the facts and circumstances of the case, this Court is inclined to suo-motu enhance the compensation and the respondent/claimant is entitled to Rs.11,71,266/-, with interest, at the rate of 7.5% per annum, under all heads, excluding interest on the compensation, awarded towards future medical expenses and future transportation and it is apportioned hereunder:
Loss of future earning : Rs.4,68,000/-
Medical Expenses : Rs.4,21,266/-
Disability Compensation : Rs. 90,000/- (Rs.2,000/- per percentage) Loss of Income : Rs. 60,000/- (Rs.5,000 x 12 months) Loss of Amenities : Rs. 40,000/- Pain and Suffering : Rs. 50,000/- (Rs.20,000/- + Rs.30,000/-) Transportation : Rs. 10,000/- Extra Nourishment : Rs. 20,000/- Attendant Charges : Rs. 20,000/- Future Transportation : Rs. 10,000/- Damages to Clothes : Rs. 1,000/- ------------------- Total : Rs.11,71,266/- -------------------
33. In view of the above, the respondents/claimants are entitled to the enhanced compensation Rs.2,21,000/- with interest at the rate of 7.5% per annum from the date of claim till the date of realisation. Hence, the Civil Miscellaneous Appeal is dismissed. Necessary Court Fee, be remitted by the respondent/claimant. The appellant-Insurance Company is directed to deposit the award amount with enhancement now made by this Court, with proportionate accrued interest and costs, to the credit of M.C.O.P.No.456 of 2011, on the file of the Motor Accidents Claims Tribunal, (Additional District Judge), S. MANIKUMAR, J.
skm Namakkal, within a period of four (4) weeks from the date of receipt of a copy of this order. The respondent/claimant is permitted to withdraw the said amount, by making applications before the Tribunal. No costs. Consequently, connected Miscellaneous Petition is also closed.
16.04.2014 Index: Yes Internet: Yes skm S. MANIKUMAR, J.
The matter is listed today under the caption, For Being Mentioned.
2. One of the defences before the Claims Tribunal, was that IFFCO-TOKIO General Insurance Company Ltd., cannot be fixed with any liability to pay compensation, for the negligence committed by the rider of the Bajaj Pulsar Motorcycle, bearing Registration No.TN 28 AJ 4385. On adjudication, the Tribunal has found that the rider did not possess a valid and effective driving licence. However, fixed liability on the insurer to pay compensation compensation amount of Rs.9,50,300/-, with interest at the rate of 7.5% per annum, to the injured/respondent, with liberty to recover the same from the insured. On appeal, the appellant-Insurance Company reiterated its defence on liability, and also challenged the quantum. However, this Court was not inclined to accept both the grounds and while dismissing the appeal, exercised powers under Order 41 Rule 23 of the Civil Procedure Code and suo-moto enhanced the compensation and directed the appellant-Insurance Company to deposit the enhanced compensation.
3. Inviting the attention of this Court to decree made in C.M.A.No.3617 of 2013, dated 16.04.2014, Mr.C.R.Krishnamoorthy, learned counsel for the appellant-Insurance Company submitted that there is an inadvertent omission, while drafting the decree, wherein, liberty has not been granted to recover the enhanced compensation from the insured, though the judgment of the Claims Tribunal, on the aspect of liability, has been upheld by this Court.
Heard the learned counsel for the appellant-Insurance Company and perused the materials available on record.
4. As rightly pointed out by the learned counsel for the appellant-Insurance Company that challenge on the aspect of liability, directing the Insurance Company to pay the quantified compensation and then to recover the said amount with interest, at the rate of 7.5% per annum, from the date of claim, till the date of realisation, has been upheld by this Court and when the said compensation amount has been suo-motu enhanced on appeal, there cannot be any challenge in the findings recorded by the Tribunal, except to the extent of enhancement of compensation amount, as indicated. Therefore, right of recovery is now being clarified by the today's order.
5. Registry is directed to re-issue the copy of the order made in C.M.A.No.3617 of 2013, dated 16.04.2014, with the following instructions,
(i) After Paragraph 33, Paragraph 34 to be inserted, as follows:
The appellant-Insurance Company is permitted to recover the enhanced compensation of Rs.2,51,000/-, along with the award amount, determined by the Tribunal, with interest at the rate of 7.5% per annum, from the date of claim, till the date of realisation, directed to be deposited to the credit of M.C.O.P.No.456 of 2011, on the file of the Motor Accident Claims Tribunal (Additional District Judge), Namakkal, from the insured, as per Nanjappan's case.
(ii) It is made clear that the appellant-Insurance Company has to pay the amount, fixed by this Court and then recover the same from the insured.
(iii) Registry is directed to re-draft the decree and issue the order copy afresh.
26.12.2014 skm S. MANIKUMAR , J.
skm To The Motor Accidents Claims Tribunal, (Additional District Judge), Namakkal.
C.M.A.No.3617 of 2013