Madras High Court
The Manager vs D.Rajesh on 14 March, 2016
Bench: S.Manikumar, C.T. Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.03.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HON'BLE MR.JUSTICE C.T. SELVAM
C.M.A.(MD)No.175 of 2016
and
CMP(MD)No.2641 of 2016
The Manager
National Insurance Co.Ltd.,
Divisional Office ? 1
2nd Floor, Post Box No.772
L.R.N.Colony, Saradha College Road,
Salem ? 7. ... Appellant
Vs.
1.D.Rajesh
2.V.Saravanan ... Respondents
PRAYER: The Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicle Act, to set aside the fair and decreetal order, dated 03.12.2012 made
in M.C.O.P.No.116 of 2012, on the file of Motor Accidents Claims Tribunal
(Addl.Subordinate Judge, Karur), and allow this civil miscellaneous appeal.
!For Appellant : Mr.S.Srinivasa Raghavan
^For Respondent-1 : Mr.S.Gokul Raj
:JUDGMENT
(Order of this Court was made by S.MANIKUMAR, J.) In the accident, which occurred on 10.04.2011, respondent/claimant, who was riding a motor cycle viz., Hero Honda Splendor Plus, bearing Reg.No.TN- 47-U-0984, on Dindigul ? Karur road, near Kakkaranpatti old bus stand, was hit by a Maruti Swift Car, bearing Reg.No.TN-54-B-8811, driven in a rash and negligent manner from behind, as a result of which, respondent No.1/claimant was thrown away and sustained multiple grievous injuries, all over the body. Immediately, he was taken to Amaravathy Hospital, Karur and thereafter, referred to PSG Hospital, Coimbatore. He was admitted as inpatient from 10.04.2011 to 26.04.2011. According to the respondent, he suffered permanent disablement. He has claimed compensation of Rs.20,00,000/-.
2. National Insurance Company Limited, Divisional Office-1, Salem, the appellant herein, has denied negligence, alleged on the driver of Maruti Swift Car, bearing Reg.No.TN-54-B-8811, insured with the appellant Insurance Company, and also contended that the rider of the motor cycle / the injured, did not possess a valid driving licence and that he was a minor. It is also the contention of the appellant Insurance Company that the 1st respondent / claimant alone was negligent and when he suddenly attempted to cross the road, the accident occurred. Thus, Insurance Company has denied the negligence and liability to pay compensation. That apart, the appellant Insurance Company has disputed the nature of injuries sustained, treatment taken, medical expenditure incurred and the extent of permanent disability, and consequently the quantum of compensation, on various heads.
3. Before the Tribunal, on the side of the respondent / claimant, P.Ws.1 and 2 have been examined and Exs.P1 to P15 have been marked. On the side of the appellant Insurance Company, RW1 has been examined and Exs.R1 and R2 have been marked.
4. On evaluation of pleadings and evidence, the Claims Tribunal held that the accident occurred only due to rash and negligent driving of the driver of Maruti Swift Car, bearing Reg.No.TN-54-B-8811, insured with the National Insurance Company Limited, Divisional Office-1, Salem / appellant herein. Consequently, liability has been fixed on the appellant Insurance Company. The Claims Tribunal has determined the compensation of Rs.13,97,800/- with interest, at the rate of 7.5%, per annum and apportioned the same, as hereunder:-
SL.NO DESCRIPTION AMOUNT (RS.)
1.
Loss of earning capacity 6,48,000
2. For pain and sufferings 25,000
3. Extra Nourishment 15,000
4. Transport to hospital 5,000
5. Medical expenses 5,40,000
6. Loss of marriage prospects and amenities 1,00,000
7. Attender's charges 64,800 TOTAL 13,97,800
5. Assailing the correctness of the Award, National Insurance Company Limited, Divisional Office-1, Salem / appellant herein, has contended that the 1st respondent / claimant, being a minor, at the time of accident, and not qualified to hold a driving licence, the Tribunal ought to have found that the owner of the vehicle had committed a basic and fundamental breach of the terms and conditions of the policy of insurance, and therefore, the Tribunal ought to have absolved the appellant Insurance company from indemnifying the owner of the vehicle. It is the submission of the appellant Insurance Company that, as the motor cyclist / respondent No.1, did not possess a valid driving licence, the Tribunal ought to have ordered, pay and recovery. It is also the contention of the appellant that the Tribunal, ought not to have applied the multiplier method, for computing compensation.
6. Heard learned counsel for the appellant and perused the materials available on record.
7.As memorandum of grounds attack only to the liability fastened on the National Insurance Company Limited, Divisional Office-1, Salem / appellant herein, and also the quantum of compensation, this Court is of the view that there is no need to advert to the finding, fixing negligence on the driver of Maruti Swift Car, bearing Reg.No.TN-54-B-8811.
8. Perusal of the claim petition shows that, at the time of accident, the first respondent / claimant was aged 18 years, and was a student. He was riding a motor cycle viz., Hero Honda Splendour Plus, bearing Reg.No.TN-47-U- 0984. According to him, in the accident, he sustained grievous injuries and consequently, suffered permanent disability, to the extent of 75%. Perusal of the award shows that three Doctors, P.Ws.2 to 4, have been examined, to support the case of the 1st respondent / claimant. Upon perusal of the medical records and after considering the oral testimony of the Doctors, the Claims Tribunal, at paragraph Nos. 10 to 12 held as follows:-
10. It is seen from the documents Ex.P2 wound certificate, Ex.P7 discharge summary, Ex.P9 and Ex.P11 disability certificates and Ex.P10 X-ray, ExP12 scan and Ex.P13 scan report t hat the petitioner has sustained diffuse Axonal injury and fracture over left Medical Malleolus. He was admitted at PSG Hospital, Coimbatore on 10.04.2011. It is seen that, on examination, CT scan of brain showed hamorrage in bilateral fronto parietal cerebral parenchyma, right basal ganglia, right lateral ventricle and interhemispheric fissure. X-ray cervical spine showed no fracture / dislocation.
Tracheostomy was done on 15.04.2011. Plastic Surgeon opinion was obtained for left posterior heel post traumatic defect. General physician opinion was obtained for general evaluation. Patent was treated with antibiotics, antiepileptics, antiedema drugs and other supportive measures. Follow up CT scan of brain showed resolving contusion with perifocal edema in bilateral fronto parietal cerebral parenchyma involving deep white matter, right basal ganglia / resolving bilateral occipital horn intra ventricular haemorrhage / bypodensities noted in genu and body region of corpus callosum. The petitioner was discharged from the hospital on 27.06.2011. P.W.2 Dr.Rajendra, Ortha Specialist has stated that, due to the injuries sustained, the petitioner is unable to do any work and he has to depend upon others even for his natural calls. He assessed the disability of the petitioner at 75%.
11. PW2 Dr. S. Mathivanan, Neurologist has stated by the Doctor PW2 that due to the neuro problems the petitioner is unable to do any work. PW3 has also assessed the disability of the petitioner at75%. The admission of the petitioner at PSG hospitals, Coimbatore, treatment given to him and subsequent discharge are proved by the petitioner throng the examination of PW4 Dr. V. Ragupathy From the evidence of the Doctors Pws 2 and 3, it is seen that the petitioner is unable to attend his routine work and therefore, this court takes the permanent disability of the petitioner at 100%. Eventhough, the Doctors have assessed at 75%. (The decision in TNSTC Coimbatore vs Senthil Kumar reported in 2011 (1) TNMIAC P.I21 (DB) followed.
12. Considering the functional disability the petitioner, this court finds that it will be appropriate to apply multiplier method while arriving compensation under the head ?Loss of Earning Capacity? . Age of the petitioner at the time of the accident is fixed at 18 years. His monthly income is fixed at Rs.3,000/-. Percentage of disability is taken as 100%. Multiplier for the age group between 15 and 20 years, as per the decision of t he Apex Court in Sarla Verma's case is 18. By applying the method, the amount comes to Rs.3,000 x 12 x 100 x 18 ? Rs.6,48,000/-. Hence, the abovesaid sum of Rs.6,48,000/- is awarded to the petitioner as compensation under the head ?Loss of Earning Capacity.?.
9. The Tribunal has considered the nature of injuries, treatment, extent of functional disability, and as to why the Tribunal has chosen to apply multiplier method, for the purpose of assessing the loss of earning capacity. Going through the details of CT scan of brain, the Tribunal has noted that the scan has revealed serious injuries. P.W.2 Ortho Specialist, has categorically stated that due to the injuries, the claimant was unable to do any work. P.W.2 has assessed the disability, as 75%. P.W.3, Neurologist has also stated that respondent has suffered disability to the extent of 75%. P.W.4, Dr.Ragupathi has stated that the respondent/claimant was unable to attend regular work.
10. Taking into consideration of the testimonies of all three Doctors, the nature of injuries in the brain, which affected 75% of functional disability, the Tribunal has chosen to apply multiplier method for assessment of loss earning capacity, and considering the age of the respondent 18 years, the Tribunal, by fixing the income of the respondent No.1/ Claimant as Rs.3000/-, has computed the loss of earning capacity and arrived at the loss of earning (Rs.3000 x 12 x 100 x 18).
11. The claimant was inpatient in the hospital from 10.04.2011 to 27.06.2011. For the injuries sustained, the Tribunal has awarded a sum of Rs.25,000/-, under the head, 'pain and suffering; Rs.15,000/ for extra nourishment; Rs.5000/- has been awarded for transportation. Ex.P8 is the medical bills for Rs.5,48,149/-, for the medical expenditure incurred. The respondent is a Bachelor. Due to the injuries sustained, he has lost future and marriage prospects and amenities of life. Considering the above, the Tribunal has awarded Rs.1,00,000/- under the head, 'Loss of future marriage prospects and amenities. The Tribunal has also awarded Rs.64,800/- under the head, attender's charges'.
12. Perusal of the claim petition shows that respondent/claimant, has filed the claim petition, against the owner of Maruti Swift Car, bearing Reg.No.TN-54-B-8811, insured with National Insurance Company Limited, Divisional Office-1, Salem / appellant herein. Though the appellant Insurance Company has contended that the respondent / claimant, being a minor, without holding any valid and effective driving licence, has caused the accident and therefore, the Tribunal has erred in fixing the liability, on the National Insurance Company Limited, Divisional Office-1, Salem / appellant herein, and further contended that pay and recovery ought to have been ordered, this Court is not inclined to accept the said contention for the reason that National Insurance Company Limited, Divisional Office-1, Salem, is the insurer of the offending vehicle viz., Maruti Swift Car, bearing Reg.No.TN-54-B-8811, and claim has been made against the owner of the above said car and If the finding on negligence is sustained, consequently liability has tobe fastened on the National Insurance Company Limited, Divisional Office-1, Salem / appellant herein. Considering the evidence, we are of the view that the Insurance Company, being the insurer of the offending vehicle, cannot seek for exoneration of its liability to pay compensation.
13. Insofar as the quantum of compensation is concerned, the Tribunal, has considered the evidence of P.Ws.2 to 4 Doctors, who have examined the respondent / claimant, with reference to the medical records stated supra, and assessed the extent of disability. Injuries in the brain have caused functional disability. When there is 75% of functional disability, certainly, it would affect the loss of earning capacity. Considering the nature of injuries, disablement assessed by P.Ws.2 to 4, there is no manifest illegality in adopting multiplier method for the purpose of assessing loss of future earning. A sum of Rs.3000/- is taken as monthly income of the claimant cannot be said to be excessive. At this juncture, it is worthwhile to refer to a decision of the Hon'ble Apex Court in Raj Kumar v. Ajay Kumar reported in 2011 ACJ 1 (SC), wherein, in paragraphs 4 to 17, it has been held as follows :
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)].
15. After the insertion of section 163A in the Act (with effect from 14.11.1994), if a claim for compensation is made under that section by an injured alleging disability, and if the quantum of loss of future earning claimed, falls under the second schedule to the Act, the Tribunal may have to apply the following principles laid down in Note (5) of the Second Schedule to the Act to determine compensation :
"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 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."
16. We may in this context refer to the difficulties faced by claimants in securing the presence of busy Surgeons or treating Doctors who treated them, for giving evidence. Most of them are reluctant to appear before Tribunals for obvious reasons either because their entire day is likely to be wasted in attending the Tribunal to give evidence in a single case or because they are not shown any priority in recording evidence or because the claim petition is filed at a place far away from the place where the treatment was given. Many a time, the claimants are reluctant to take coercive steps for summoning the Doctors who treated them, out of respect and gratitude towards them or for fear that if forced to come against their wishes, they may give evidence which may not be very favorable. This forces the injured claimants to approach `professional' certificate givers whose evidence most of the time is found to be not satisfactory. Tribunals should realize that a busy Surgeon may be able to save ten lives or perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one accident case. Many busy Surgeons refuse to treat medico-legal cases out of apprehension that their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in coercing the Doctors to attend the Tribunal to give evidence. The solution lies in recognizing the valuable time of Doctors and accommodating them. Firstly, efforts should be made to record the evidence of the treating Doctors on commission, after ascertaining their convenient timings. Secondly, if the Doctors attend the Tribunal for giving evidence, their evidence may be recorded without delay, ensuring that they are not required to wait. Thirdly, the Doctors may be given specific time for attending the Tribunal for giving evidence instead of requiring them to come at 10.30 A.M. or 11.00 A.M. and wait in the Court Hall. Fourthly, in cases where the certificates are not contested by the respondents, they may be marked by consent, thereby dispensing with the oral evidence. These small measures as also any other suitable steps taken to ensure the availability of expert evidence, will ensure assessment of just compensation and will go a long way in demonstrating that Courts/Tribunals show concern for litigants and witnesses. Assessment of compensation.
17. In this case, the Tribunal acted on the disability certificate, but the High Court had reservations about its acceptability as it found that the injured had been treated in the Government Hospital in Delhi whereas the disability certificate was issued by a District Hospital in the State of Uttar Pradesh. The reason given by the High Court for rejection may not be sound for two reasons. Firstly though the accident occurred in Delhi and the injured claimant was treated in a Delhi Hospital after the accident, as he hailed from Chirori Mandi in the neighbouring District of Ghaziabad in Uttar Pradesh, situated on the outskirts of Delhi, he might have continued the treatment in the place where he resided. Secondly the certificate has been issued by the Chief Medical Officer, Ghaziabad, on the assessment made by the Medical Board which also consisted of an Orthopaedic Surgeon. We are therefore of the view that the High Court ought not to have rejected the said disability certificate."
14. Though a sum of Rs.64,800/- awarded under the head 'Attender's charges' appears to be higher side, excess amount, if any, can always be adjusted against inadequate compensation of Rs.25,000/- awarded under the head, 'pain and suffering. Similarly, a sum of Rs.5000/- awarded under the head, 'transportation' is also less. The respondent/claimant, who had suffered serious injuries would have visited the hospital for review. Considering the nature of injuries, even after discharge from the hospital, he would have taken further treatment. Going through the materials on record in entirety, this Court is of the view that there is no valid ground to interfere with the Award. Compensation of Rs.13,97,800/- to a person, who had suffered 75% functional disability, which result in loss of earning, cannot be said to be grossly excessive, warranting interference.
15. In the result, the Civil Miscellaneous Appeal is dismissed. It is represented that the entire award amount has already been deposited. The first respondent / claimant is permitted to withdraw the entire award amount with accrued interest and costs, by making necessary application before the Tribunal. No costs. Consequently, connected miscellaneous petition is also dismissed.
To The Motor Accidents Claims Tribunal Addl.Subordinate Judge, Karur..