Kerala High Court
United India Insurance Co. Ltd. vs Thomas And Ors. on 24 December, 1999
Equivalent citations: 2000ACJ1413
JUDGMENT K.K. Usha, J.
1. The question that arises for consideration in this appeal at the instance of the insurance company is whether loss of front right upper incisor tooth of the injured claimant would amount to a permanent disability as defined under Section 142 of the Motor Vehicles Act, 1988. The Motor Accidents Claims Tribunal, Kasaragod has taken the view in the award passed in O.P. (MV) No. 451 of 1993 that it would. In a motor accident, which took place on 17,3.1993, the respondent No. 1 herein sustained certain minor injuries and also fracture of the right incisor tooth. Later the tooth was extracted. The Tribunal came to the conclusion that the accident happened on account of the negligence of the respondent No. 1 in the O.P. (MV) and, therefore, respondent Nos. 1 to 3 are liable to compensate the petitioner. The above finding is not under challenge in this appeal filed by the respondent No. 3 insurance company.
2. The claimant is a young man of 28 years age and working as a teacher in a parallel college. The Tribunal held that he is entitled to an amount of Rs. 3,500 as compensation for pain and suffering, Rs. 500 towards loss of earnings, Rs. 1,500 towards medical and miscellaneous expenses and Rs. 12,000 towards disability. Thus a total amount of Rs. 17,500 was found as compensation due to the claimant. Thereafter the Tribunal proceeded to consider a contention raised by the learned counsel for the petitioner that the compensation to be awarded cannot at any rate be below Rs. 25,000, to which he would be entitled under Section 140 of the Motor Vehicles Act, as the petitioner had suffered permanent disability. The argument was that by loss of one front upper incisor tooth the petitioner had suffered permanent disability entitling him to compensation under Section 140 of the Motor Vehicles Act. The learned Tribunal after comparing the provisions contained under Section 142 of the Motor Vehicles Act and Section 320 of the Indian Penal Code came to the conclusion that though loss of a tooth would easily fall under the definition of grievous hurt under Section 320, Indian Penal Code (clause 7) in the absence of a stipulation similar to clause seventh of Section 320, Indian Penal Code in Section 142 of the Motor Vehicles Act, the loss of a tooth cannot straightaway be held to amount to permanent disability as defined under Section 142 of the Motor Vehicles Act. After entering the above finding the learned Tribunal proceeded to examine whether the tooth would be a member referred to in clauses (a) and (b) of Section 142 of the Motor Vehicles Act. The following extract from Dr. Hari Singh Gour's Penal Law of India, 10th Edn. was then quoted:
The term 'member' as used here, means nothing more than an organ or a limb, being a part of man capable of performing a distinct office. As such, it includes both the eyes, the ears, the nose, mouth, hands, feet and, in fact, all distinct parts of the human body designed to perform a distinct office.
Then the Tribunal came to the conclusion that the decisions under Section 320, Indian Penal Code are not of much consequence in examining the question under Section 142 of the Motor Vehicles Act. The Tribunal then took the view that the one tooth lost by the petitioner is a distinct part of the human body designed to perform a distinct office and, therefore, it would come within the definition of the expression 'member'. Passage from Hawkins dealing with MAYHEM, the Tribunal derived a theory that the tooth is a weapon of offence to human being as part of his anatomy. The Tribunal also took the view that different teeth have different functions to perform. The incisor, according to the Tribunal, must have been the principal weapon or principal tooth of the primitive man as a weapon of offence to bite and that the molar tooth may not have had such an office to function for attack/defence. The Tribunal then observed that merely because plurality of members of the anatomy performed the same common office, or function, no part of the body can be said to be not a member. Therefore, it may not be prudent to hold that the loss of one tooth cannot be reckoned as loss of a 'member' as to bring the injury suffered within 'grievous hurt' as defined under clauses fourth and fifth of Section 320, Indian Penal Code or clauses (a) and (b) of Section 142 of the Motor Vehicles Act. The Tribunal, therefore, entered a finding that it is satisfied that the loss of the front incisor tooth is definitely the loss of a 'member' and it must be held that such loss results in loss of a 'member' as referred to in Section 142 (a) of the Motor Vehicles Act. The contention raised by the learned counsel for the insurance company that there is no decision of any High Court or the Supreme Court which has treated loss of a tooth as a permanent disability coming under Section 142 was repelled by the learned Tribunal. According to the Tribunal, it is only because no such question was specifically raised there is no decision on this aspect. The Tribunal then entered a finding that the loss of front incisor tooth of the petitioner must definitely be held to be permanent disablement as defined under Section 142 (b), if not under Section 142 (a) of the Motor Vehicles Act.
3. The learned Tribunal then takes note of the fact that the petitioner had not raised any contention under Section 142 (a) or (b). According to the learned counsel for the petitioner, the permanent disability suffered by the petitioner would come under Section 142 (c) of the Motor Vehicles Act. The learned Tribunal then extracted a portion from Gout's Penal Law of India, 10th Edn., p. 2839 dealing with the word 'disfigure'. The following is the quotation:
The word 'disfigure' must be distinguished from the word 'disable'. For, to disfigure is to do a man some external injury which detracts from his personal appearance, but does not weaken him, but to 'disable' is to do something creating a permanent disability and not a mere temporary injury. Such disfigurement may be caused by lopping off a man's ear or nose, in which case there would be sufficient disfigurement, without consequential disability, so as to constitute grievous hurt under this clause. A nasty gash on the face leaving a permanent scar would be another instance of this species of injury. So, branding may leave a permanent scar causing disfigurement but whether it will or will not do so is a question of fact depending upon the seriousness of the branding and the injury inflicted upon which the testimony of a medical witness should be material.
4. Thereafter, the Tribunal enters into an elaborate discussion on the effect of ugly scar on the head and how it could be covered by wearing a wig and so on. The Tribunal then finds that 'front teeth is definitely a prominent part of the face of a person which gives the face its shape, its beauty and its identity'. The Tribunal discarded the contention raised by the learned counsel for the insurance company that it is always possible to replace one tooth lost by wearing artificial tooth. According to the Tribunal, this is just like the argument that a nasty scar on the face may be corrected by a plastic surgery. The learned Tribunal further compared replacing of one tooth with that of using artificial limbs. The Tribunal then observed that loss of one tooth would completely change the appearance of the petitioner and comes to the conclusion that the petitioner in this case has suffered permanent disfiguration. The injury suffered by the petitioner, according to the Tribunal, amounts to permanent disability as defined under Section 142 (c) of the Motor Vehicles Act. Finally the following conclusion was arrived at:
Thus, in any view of the matter, I am satisfied that the physical loss suffered by the petitioner in this case amounts to permanent disability as defined under Section 142 (a) or 142 (b) or 142 (c) of the Motor Vehicles Act.
Even though the accident happened on 17.3.1993, that is prior to 1994 amendment to the Motor Vehicles Act enhancing the compensation from Rs. 12,000 to Rs. 25,000 by following a decision reported in New India Assurance Co. Ltd. v. Thankam 1995 ACJ 440 (Kerala), the Tribunal granted the amount of Rs. 25,000 as compensation.
5. Section 140 of the Motor Vehicles Act 1988 deals with the liability to pay compensation in certain cases, on the principle of no fault. It provides that where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall be liable to pay compensation in respect of such death or disablement in accordance with the provisions of the section. The amount of compensation which shall be payable under Sub-section (1) in respect of the death of any person was originally fixed at Rs. 25,000 and the amount of compensation payable in respect of permanent disablement of any person was fixed at Rs. 12,000. The above amounts were enhanced as Rs. 50,000 and Rs. 25,000 with effect from 14.11.1994 by Act 54 of 1994. The term 'permanent disablement' is defined under Section 142, which reads as follows:
142. Permanent disablement.-For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in Sub-section (1) of Section 140 if such person has suffered by reason of the accident, any injury or injuries involving:
(a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or
(b) destruction or permanent impairing of the powers of any member or joint; or
(c) permanent disfiguration of the head or face.
6. The petitioner before the Tribunal had a fracture of his front incisor tooth. It was later extracted. No application had been filed by the petitioner under Section 140 of the Motor Vehicles Act, 1988 claiming compensation under the no fault clause. The application was one which was filed under Section 166 of the Motor Vehicles Act. The Tribunal initially proceeded to assess compensation due to the petitioner who is 28 years old teacher in a parallel college. He had claimed an amount of Rs. 74,000 as compensation. As per Exh. A2 wound certificate issued by Medical Officer, District Government Hospital, Kanhangad the petitioner had suffered the following injuries:
(1) Contusion 2 cm x 2 cm over right knee.
(2) Contusion 1 cm x 2 cm over left knee.
(3) Contusion 2 cm x 2 cm over the upper lip.
The Tribunal finds from Exh. A3 discharge slip the petitioner had suffered fracture of the front right incisor tooth. He was an in-patient for three days in the hospital. The fractured tooth had to be extracted. Under the heading pain and suffering the Tribunal awarded Rs. 3,500 as compensation. Towards loss of earnings Rs. 500 was granted on the basis of the claim that the petitioner was receiving an amount of Rs. 1,000 per mensem and the injuries suffered 'may have kept him away from work' for a period of 10 to 15 days. Towards the medical expenses the bills produced showed only an amount of Rs. 121.10, but the Tribunal had granted an amount of Rs. 1,500. For granting the above amount reasoning given by the Tribunal is as follows:
But it will be puerile to decide a claim for compensation for expenses incurred on the basis of documents alone. It will be unreasonable to expect claimants like the petitioner to maintain meticulous accounts duly supported by vouchers to prove all the items of expenditure. Reasonable assumptions and presumptions have to be drawn. The nature of the injuries, the nature of treatment, the period of treatment, the place and centre of treatment, etc., have to be taken into account. Cautious cognizance of the bills produced has also got to be made. On the basis of the materials available, I am satisfied that the petitioner in this case must have incurred expenditure for transport to the hospital, for payment to the medical men, for investigations, for purpose of medicines, for expenses of bystanders, for extra nourishment, etc. Towards disability the Tribunal granted an amount of Rs. 12,000. The reasoning in support of granting the above amount was that 'the loss of the tooth affects the capacity of the petitioner to chew food as he used to do earlier, it will have adverse cosmetic consequences, it would have resulted in serious inconvenience and trauma to the young petitioner, wearing artificial tooth is embarrassing and inconvenient and he has suffered loss of the functional service of the tooth'. Thus, a total amount of Rs. 17,500 was found due to the petitioner as compensation.
7. This is a case where no oral evidence was adduced by the petitioner or the respondents. From the award it is seen that the Tribunal had a physical examination of the petitioner in the chambers of the Tribunal on 27.10.1995. The Tribunal found that the petitioner had lost his upper right incisor. He is using an artificial denture. When he opens his mouth or smiles after removing the artificial denture the loss of the tooth is very prominently seen and when the artificial tooth is placed in position, it is normal. The Tribunal had assumed that the injury suffered by him might have kept him away from work for a period of 10 to 15 days without evidence on that aspect. We cannot agree with the observations made by the Tribunal regarding computation of the medical expenses. We fail to understand how it is unreasonable to expect claimants like the petitioner to maintain accounts regarding the expenditure incurred by him for treatment. The petitioner is a teacher in a parallel college. He is not an illiterate rustic. Therefore, there is no meaning in the observation of the Tribunal that claimants like the petitioner are not expected to maintain accounts. In this particular case, the petitioner was treated in a Government hospital. He was an in-patient only for three days. He had not adduced any evidence regarding the expenses incurred by him for medicines or for other items referred to in para 13 of the award. While we totally disagree with the principles referred to by the Tribunal for assessing the compensation for medical expenses, we do not propose to interfere with the amount granted in this case. No Tribunal can grant compensation for medical expenses on the basis of 'assumptions and presumptions'. It may not be possible to keep vouchers in respect of all the expenses, but still there must be evidence adduced by the petitioner to cover at least substantial portion of the claim, especially in the case of enlightened petitioner.
8. We do not propose to interfere with the above amount, as by interim order this court had allowed the petitioner to withdraw Rs. 12,500 from the amount deposited. We have to observe that the reasoning given by the Tribunal is thoroughly unsustainable. Admittedly, the petitioner is already using an artificial tooth. Therefore, there is no question of his difficulty in chewing. There is no longer any adverse cosmetic consequence also. The loss of functional service of the tooth has been magnified by learned Tribunal out of all proportion for granting an amount of Rs. 12,000 as compensation. It is relevant to note that loss of one tooth is not even a Scheduled injury under the Workmen's Compensation Act, 1923.
9. Now coming to the main question raised in this appeal, namely, the eligibility of the petitioner for a claim under the no fault clause of Section 140 of the Motor Vehicles Act, 1988, we are constrained to observe that the Tribunal has committed a grave error in coming to the conclusion that the petitioner has suffered a permanent disablement as defined under Section 142 of the above Act.
10. It is pertinent to note that the Tribunal itself is not quite sure whether the disability suffered by the petitioner by loss of one incisor tooth would come under Clause (a), (b) or (c) of Section 142. Initially, the Tribunal came to the conclusion that loss of a tooth would be privation of a member, therefore, it comes under Clause (a). Then it came to the conclusion that loss of one tooth would be a permanent disablement as defined under Section 142 (b) if not under Section 142 (a). Thereafter, it proceeds to consider the contention raised by the petitioner's counsel that the disability would come under Section 142 (c). After agreeing with the learned counsel that loss of one tooth would amount to disfiguration contemplated by Clause (c) ultimately, the Tribunal holds that the disability suffered by the petitioner amounts to permanent disability as defined under Section 142 (a) or (b) or (c). We find that the manner in which the issue was treated by the Tribunal and the ultimate conclusion arrived by it are both very curious and totally unacceptable.
11. The Tribunal has lost sight of the nature of the liability under Section 140. It is a 'no fault liability'. A reading of Section 140 together with Section 142 would clearly show that it is not any injury for which the owner of the vehicle or its insurer should be made liable without even proving negligence. Such liability would arise only in case of death or very serious permanent disablement as defined under Section 142. The word 'member' is used in Clause (a) to mean a limb. Privation of the sight of either eye or the hearing of either ear are equated with privation of any member or joint under Clause (a). This would clearly indicate the high degree of disablement contemplated by the statute. When we come to Clause (b), what is provided is destruction or permanent impairing of the powers of any member or joint. It would mean that even if an injured is not deprived of any member or joint, he will be treated as having suffered permanent disability if the power of any member or joint is permanently destroyed. By any amount of imagination loss of one tooth cannot be compared to impairment referred to under clauses (a) and (b). We are not impressed by the theory propounded by the learned Tribunal that the tooth is a weapon of offence to the human being as part of his anatomy. The habits of human being living in 20th century cannot be equated to that of an animal or a primitive man.
12. Then the only question remaining is whether loss of one tooth can be treated as permanent disfiguration of the head or face. According to us, it cannot be equated to an ugly scar on the face or other disfiguration due to mutilation of any portion of the face. The learned Tribunal has taken so much trouble to establish that loss of one tooth would cause disfiguration of the face. According to us, even if the tooth cannot be replaced, the gap left by one tooth cannot be treated as a permanent disfiguration of the face of such gravity as contemplated under Clause (c). The science of dentistry has developed so much that loss of one tooth or even few teeth is of not much consequence. Fixed and removable partial prosthesis was being practised even during ancient times. There is difference of opinion whether it was the Phoenicians or the Egyptians who are the first to construct dental bridgework. There is reference to artificial teeth in the mouths of mummies in Egypt. In one of the oldest tombs at Saida (ancient Sidon, dating between 300 and 400 B.C.) was found an extant Phoenician specimen with bridged teeth fastening six anterior teeth. In this background, we can only observe that the learned Tribunal has misdirected itself and has taken an unrealistic view on the effect of loss of one tooth. The comparison made by the learned Tribunal with plastic surgery is totally out of place.
13. The learned Tribunal has utilised several paras of the award to examine the question whether loss of a tooth would come under Clause (a) or (b) of Section 142, when no such contention was raised on behalf of the petitioner. The observations in para 32 of the award would show the only contention raised by the petitioner's counsel was that the disability of the petitioner would come under Clause (c) of Section 142. Ultimately the learned Tribunal is not able to come to a final conclusion whether the permanent disablement alleged to have been suffered by the petitioner would come under Clause (a) or (b) or (c). The finding is that the loss of one tooth suffered by the petitioner amounts to permanent disability as defined under Section 142 (a), 142 (b) or 142 (c) of the Motor Vehicles Act. According to us, the view taken by the learned Tribunal that the loss of one tooth of the petitioner is a permanent disablement coming under Section 142 of the Motor Vehicles Act, 1988 cannot be sustained at all.
14. Apart from the above since the accident had happened prior to the amendment brought under Act 54 of 1994, the amount that can be granted is only Rs. 12,000, in view of the Full Bench decision of this court in Oriental Insurance Co. Ltd. v. Sheela Ratnan 1996 ACJ 1298 (Kerala).
15. For these reasons we set aside the finding of the Tribunal that the injury sustained by the petitioner would come under Section 142 of the Motor Vehicles Act and, therefore, he is entitled to compensation for Rs. 2.5,000. The award is modified by limiting the amount to Rs. 17,500 with interest as granted by the Tribunal.
The appeal stands allowed as above.