Madras High Court
The Managing Director vs Gurusamy on 8 April, 2010
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/04/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD).No.2482 of 2002 The Managing Director, Tamilnadu State Transport Corporation Limited, Dindigul. ... Appellant Versus Gurusamy ... Respondent Prayer Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the judgment and decree made in M.A.C.T.O.P.No.992 of 2000 on the file of the Motor Accident Claims Tribunal (Principal District Judge) at Dindigul, dated 26.07.2002. !For Appellant ... Mr.D.Sivaraman ^For Respondent ... Mr.A.Shajahan :JUDGMENT
The respondent lost his wife before his eyes in a gruesome road accident. He drove a by-cycle and his wife was a pillion rider. The bus of the appellant/Transport Corporation hit the cycle and the wife bled dead and he got injured. The respondent and six children filed M.A.C.T.O.P.No.991 of 2000 claiming compensation for the death of the wife of the respondent. The respondent filed M.A.C.T.O.P.No.992 of 2000 claiming compensation for the injuries suffered by him. The Tribunal passed a common order dated 26.07.2002, granting Rs.1,42,000/- as compensation for the death of the accident victim and Rs.1,67,000/- as compensation for the injuries suffered by the respondent herein. The appellant/Transport Corporation has preferred this appeal against the order dated 26.07.2002 in M.A.C.T.O.P.No.992 of 2000, granting compensation to the respondent for the injuries suffered by him.
2.Heard the learned counsel for the appellant and the learned counsel for the respondent.
3.The learned counsel for the appellant made the following submissions:
(i)Since the respondent received injuries, the Tribunal was not right in applying multiplier method in awarding compensation.
(ii)The respondent did not suffer any loss in earning capacity and that the permanent partial disablement could not result in loss of earning capacity.
(iii)The doctor was not correct in certifying that the respondent suffered 35% permanent partial disability.
(iv)Since the Tribunal awarded compensation by applying multiplier method, the Tribunal ought not to have awarded compensation for disability.
4.On the other hand, the learned counsel for the respondent submitted that the Tribunal was correct in applying multiplier method, as it is in consonance with Clause 5(b) of the Second Schedule of the Motor Vehicles Act. The learned counsel for the respondent also relies on the judgment of the Honourable Apex Court in (i) Reshma Kumari and others vs. Madan Mohan and another reported in 2009 (2) TN MAC 36 (SC), (ii) and in Sunil Kumar v. Ram Singh Gaud & Ors. reported in 2008 (1) TN MAC 43 (SC), and (iii) in Rajendra v. Pradeep Patwari reported in 2009 ACJ 2864 (SC) and (iv) this Court in United India Insurance Co. Ltd. v. Sulochana & Ors. reported in 2008 (2) TN MAC 177. The learned counsel for the respondent further submitted that the Tribunal committed error in taking Rs.1,000/- as monthly earnings of the respondent in awarding compensation. It is also submitted that at least Rs.3,000/- should have been taken as monthly earnings, even if the earnings was not established. The learned counsel for the respondent further submitted that the Tribunal failed to award any amount towards pain and suffering, loss of amenities and enjoyment in life and extra nourishment etc.
5.The Tribunal awarded Rs.1,67,000/- as compensation, under the following heads:
1. For Loss of future income Rs.1,32,000/-
2. Disability Rs. 35,000/-
Total Rs.1,67,000/-
6.The learned counsel for the appellant/Transport Corporation submitted that the multiplier method could not be applied in the non-fatal cases. It is submitted that only in cases where the injuries result in total disablement, the multiplier method could be applied. In this regard, the learned counsel for the appellant relies on the judgment of the Division Bench of this Court in (United India Insurance Company Limited vs. Veluchamy) reported in 2005 ACJ 1483,.
7.On the other hand, the learned counsel for the respondent relied on the judgments of the Honourable Supreme Court and this Court referred to above.
8.I am not in agreement with the submissions made by the learned counsel for the appellant. It is not laid down in the Division Bench judgment of this Court referred to by the learned counsel for the appellant that multiplier method could not be applied in non-fatal cases, when it does not result in total disablement. On the other hand, the Division Bench of this Court applied multiplier method in non-fatal cases, wherein the accident victim suffered total disability.
9.The Clause 5(b) of the Second Schedule of the Motor Vehicles Act is very clear and there is no ambiguity, wherein Multiplier method is prescribed for granting compensation for permanent partial disability. Clause 5 of the Second Schedule of the Motor Vehicles Act is extracted here-under:
"5. Disability in non-fatal accidents:
The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:
Loss of income, if any, for actual period of disablement not exceeding fifty-two weeks.
Plus either of the following:
(a) In case of permanent partial total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item(a) above.
Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923."
10.The Honourable Apex Court in Reshma Kumari & others vs. Madan Mohan & another reported in 2009(2) TN MAC 36 (SC) held in para 42 as follows:
"42. The Parliament in its wisdom thought to provide for a higher amount of compensation in case of permanent total disablement and proportionate amount of compensation in case of permanent partial disablement depending upon the percentage of disability."
11.The Honourable Apex Court in an another judgment in Sunil Kumar v. Ram Singh Gaud & ors. reported in 2008(1) TN MAC 43 (SC) held as follows:-
"Appellant was 29 years of age at the time of accident. Taking the multiplier to be 18(as per Second Schedule to Section 163-A of the Act), the total loss of income comes to Rs.2,59,200/-."
12.The Apex Court held in Rajendra v. Pradeep Patwari reported in 2009 ACJ 2864, as follows:
"4.The Second Schedule appended to the Motor Vehicles Act, 1988 provides that in a case of this nature, the amount of compensation should be calculated in terms thereof. The appellant's income was determined at Rs.3,000 per month. As he was aged 25 years on the date of accident, a multiplier of 17 should be applied. Calculating the amount of compensation on that basis, he was entitled to Rs.2,14,000 for the loss of income, which we hereby order. He would also be entitled to the medical expenses incurred by him and compensation on other heads would be granted to him as awarded by the Tribunal."
Therefore, it is made clear that the multiplier method could be applied in non- fatal cases. Hence, I reject the first submission of the learned counsel for the appellant.
13.Secondly, the learned counsel for the appellant submitted that though the respondent suffered permanent partial disability, he did not suffer any loss in earning capacity. The learned counsel for the appellant relied on the decision of the Full Bench of the Karnataka High Court in Shivalinga Shivanagowda Patil v. Erappa Basappa Bhavihala reported in 2004 ACJ 333.
14.On the other hand, the learned counsel for the respondent submitted that Clause 5 of the Second Schedule of the Motor Vehicles Act refers to injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and that the percentage of loss of earning capacity shall be as per Schedule-I under Workmen's Compensation Act, 1923." He proceeded further that in the case of non-schedule injuries, based on the evidence of doctor, the permanent partial disability has to be assessed and the loss of earning capacity should be ascertained. Reliance was placed on explanation appearing in Section 163(A) of the Motor Vehicles Act. Explanation in Section 163(A) is as follows:
163-A. Special provisions as to payment of compensation on structured formula basis.- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation.- For the purposes of this sub-section, "permanent disability"
shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
15.The learned counsel for the respondent also referred to the aforesaid decisions of the Supreme Court, wherein the structured formula was applied in the case of injuries. The learned counsel for the respondent also referred to Section 2(g) of the Workmen's Compensation Act and Section 4(c)(ii) of the Workmen's Compensation Act and Explanation-II of Section 4(c) of the Workmen's Compensation Act in this regard.
16.In my considered view, the Full Bench judgment of the Karnataka High Court in Shivalinga Shivanagowda Patil v. Erappa Basappa Bhavihala reported in 2004 ACJ 333 relied on by the learned counsel for the appellant is of no use and on the other hand, it supports the case of the respondent. In that case, the doctor assessed that the injured person got 35% permanent partial disability. However, the Commissioner for Workmen's Compensation fixed at 80%. In a batch of cases, while the doctor fixed the permanent partial disability at some percentage, the Commissioner had taken at a higher rate. That was considered by the Full Bench of the Karnataka High Court. The Full Bench framed four issues and the issue Nos.1 and 2 therein are relevant for this case and the same are extracted hereunder:-
"4. The Division Bench has referred the following questions:
(i) Whether the Commissioner under the Workmen's Compensation Act can assess the loss of earning capacity without or in disregard of the assessment of a qualified medical practitioner?
(ii) What is the procedure to be followed by the Commissioner for determining the compensation payable to the workmen in cases where neither the workman nor his employer has produced any medical evidence to show the extent of loss of earning capacity resulting from the injury sustained by the former?"
17.The Full Bench answered the issues at para No.25. Para No.25, (i) and (ii) are as follows.
"25. In view of the discussions and for the reasons mentioned above, we answer the reference accordingly. We answer the points referred number-wise, which are as under:
(i) The Commissioner under the Workmen's Compensation Act cannot assess the loss of earning capacity without the assistance of the assessment made by qualified medical practitioner regarding loss of assessment or in disregard of the assessment of a qualified medical practitioner. But, if the assessment made by the qualified medical practitioner is disputed by any one of the parties, the Commissioner is competent to sit in judgment over the assessment of the qualified medical practitioner and pronounce upon the same if material by way of assessment of another qualified medical practitioner is placed and he is accepting the said assessment having regard to the nature and extent of the disablement and the loss of earning capacity, he can disregard the earlier assessment of the medical practitioner disputed by the parties.
(ii) In the event of neither the workman nor his employer producing any medical evidence to show the extent of loss of earning capacity resulting from the injury of the former, section 11 of the Act empowers the Commissioner to get the injured workman examined at any time by a qualified medical practitioner and to assess the nature and extent of disablement as well as the loss of earning capacity on the basis of such assessment to be furnished by the qualified medical practitioner."
18.Thus, it is clear that the aforesaid judgment in fact supports the case of the respondent.
19.Further, as rightly contended by the learned counsel for the respondent, permanent partial disablement is not defined in the Motor Vehicles Act. The Motor Vehicles Act adopts the definition from the Workmen's Compensation Act, as per the Explanation under Section 163(A) of the Motor Vehicles Act. The Schedule-I of the Workmen Compensation Act deals with the schedule injuries wherein percentage of permanent partial disability and also total disability are given. Schedule-I contains part 1 and 2. Part-1 contains list of injuries deemed to result in permanent total disablement. Part-2 of Schedule-I contains list of injuries deemed to result in permanent partial disablement. If a workman received injuries that comes under Part-2 of the Schedule-I, as per Section 2(g) of Workmen's Compensation Act, it is deemed to have resulted in permanent partial disability. Section 2(g) is extracted here- under:
(g) "partial disablement" means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time: provided that every injury specified [in Part II of Schedule I] shall be deemed to result in permanent partial disablement;
20.Section 4 of Workmen's Compensation Act deals with amount of compensation payable to workmen. 4(1)(c)(ii) and Explanation-II thereto are relevant for our case. Section 4(1)(c) and Explanation I and II are extracted here-under:
"4.Amount of compensation - (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-
(a)......
(b)......
(c) Where permanent partial disablement results from the injury
(i)in the case of an injury specified in part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and
(ii)in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.
Explanation I.- Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.
Explanation II.- In assessing the loss of earning capacity for the purposes of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;"
21.Therefore, it is made very clear that in the case of an injury not specified in Schedule-I, a qualified medical practitioner should certify as to the loss of earning capacity. That is, a medical practitioner has to certify about the permanent partial disablement in the case of non-schedule injuries. In the case of schedule injuries, part-2 of Schedule-I itself provides percentage of loss of earning capacity. In this case, the doctor, who was examined on the side of the respondent certified that he suffered 35% disability and the disability certificate was marked as Ex.P6. The doctor categorically deposed that the respondent suffered disability and he was also treated as in-patient.
22.Hence, the learned counsel for the appellant is not correct in stating that in case of non-schedule injuries, there is no loss in earning capacity. In the case of non-schedule injuries, a qualified medical practitioner should assess the percentage of permanent partial disability to ascertain the loss of earning capacity. As stated above, in this case, a qualified medical practitioner assessed the percentage of permanent disability and also gave evidence. Hence, I reject the contention made by the learned counsel for the appellant.
23.Thirdly, the learned counsel for the appellant submitted that the Doctor deposed during cross-examination as follows:
"mthpd; md;whl gzpapy; rpukk; nUf;fhJ vd;why; nUf;fyhk;. tptrha Typ vd;Wjhd; vd;dplk; brhd;dhh; Kiwahf rpfpr;ir bgw;why; Cdk; Fiwa tha;g;g[ cs;sJ vd;why; mWjpapl;L brhy;y KoahJ"
24.It was submitted that in view of such deposition, the Tribunal ought not to have taken 35% permanent partial disability based on Ex.P6.
25.The learned counsel for the respondent submitted that when the doctor gave evidence, this Court need not interfere with the evidence given by an expert. But I am of the view that when the doctor stated that there is a possibility of reduction in the percentage of disability, the same should be taken note of by the Tribunal. Hence, I am of the view that the Tribunal should have taken 25% as the permanent partial disability. Therefore, I fix the permanent partial disability at 25%.
26.The last submission of the appellant counsel was that when the Tribunal adopted multiplier method, the Tribunal ought not to have awarded disability compensation as per the decision of the Full Bench of this Court in Cholan Roadways Corporation Ltd. v. Ahmed Thambi reported in 2006 (4) CTC 433. The learned counsel for the respondent does not seriously dispute the same. Hence, the objection is sustained.
27.In these circumstances, the compensation has to be worked out. The learned counsel for the respondent submits that the accident took place in the year 2000. Even when the accident took place in 1999, the Honourable Apex Court in New India Assurance Company Limited v. Kalpana reported in 2007 (1) CTC 523 (SC) held that Rs.3,000/- could be taken as monthly earnings after providing deductions for personal expenses. In another case in National Insurance Company Ltd. v. Khimlibai reported in 2009 (5) CTC 187, the Honourable Supreme Court also took Rs.3,000/- as monthly earnings, when the monthly earnings was not established. In this case, the accident took place on 21.12.1999. Therefore, I am of the view that Rs.3,000/- could be safely taken as monthly earnings of the respondent. In fact, before the Tribunal, the respondent deposed that he was doing business in coconut and he took as lease coconut trees and he also did agricultural work along with his wife. In these circumstances, the monthly earnings of the respondent could be taken as Rs.3,000/-. Taking into account the age of the respondent, the Tribunal adopted the multiplier of 11. The appellant has no objection for taking 11 as a multiplier, if the multiplier method is adopted. Hence, the respondent is entitled to compensation towards loss of future income at Rs.3,000/- x 12 x 11 x 25/100 = 99,000/-.
28.The learned counsel for the respondent is correct in his submission that the Tribunal failed to award any amount towards pain and suffering and loss of amenities and enjoyment in life. The Tribunal also failed to grant any amount towards loss of expectancy in life and also towards transport charges and extra nourishment. He was also not awarded any amount towards loss of earnings during the period of treatment. I like to fix the following compensation, taking into account the above said facts.
1. For loss of income Rs. 99,000/-
2. For loss of earing Rs. 5,000/-
during the period of treatment
3. For pain and suffering Rs. 15,000/-
4. For loss of amenities Rs. 15,000/-
and enjoyment in life
5. For loss of expectancy Rs. 15,000/-
in life
6. For Transport Charges Rs. 5,000/-
7. For Extra nourishment Rs. 10,000/-
Total Rs.1,64,000/-
29.While the Tribunal awarded Rs.1,67,000/-, I have arrived at Rs.1,64,000/-. In the circumstances, I do not find any infirmity in the award of the Tribunal. As already stated in this case, the respondent lost his wife in the accident. He also suffered 25% permanent partial disability. Hence, taking into account the entirety of the circumstances, I am not inclined to interfere with the award of the Tribunal and the appeal fails and the same is dismissed. No costs.
AKV/TK To The Motor Accident Claims Tribunal (Principal District Judge), Dindigul.