Madras High Court
K.K. Janardhanam vs Thiruvalluvar Transport Corporation ... on 7 March, 2006
Equivalent citations: 2008ACJ875, IV(2006)ACC16, 2006(3)CTC91, (2006)2MLJ109
Author: V. Dhanapalan
Bench: V. Dhanapalan
JUDGMENT V. Dhanapalan, J.
Page 0808
1. The injured appellant who was a Sub-Inspector of Police in the Police Department, aggrieved by the Award of the Motor Accidents Claims Tribunal dated 11.12.1996 made in MACTOP No. 2807/1992 on the file of Motor Accidents Claims Tribunal (IV Judge, Small Causes Court, Chennai) Page 0809 has filed the above appeal in respect of grievous injuries sustained by him in a motor accident that took place on 12.08.1992 at about 9:30 p.m. when he was traveling in a motor cycle. The appellant herein prayed for a compensation of Rs. 4 lakhs. In respect of his claim, he himself was examined as P.W.3 and he also examined Dr. Chandran, P.W.1 and one Amaldass, P.W.2 respectively besides marking exhibits P1 to P11. R.W.1, driver of the respondent Corporation bus was examined and no documentary evidence was let in. The Tribunal, after analyzing the materials held that the accident was caused due to the negligence of the driver of the respondent Corporation bus in question and passed an award for a sum of Rs. 2,66,000/- with interest @ 12% per annum from the date of petition till the date of payment of the amount.
2. It is the case of the appellant/claimant that the Transport Corporation bus bearing registration No. TN01-N-0626 driven rashly and negligently from North to South, crossed the mid-line and dashed against the motor-cycle driven by him and because of that, he sustained grievous injuries and also his motor-cycle was damaged. The accident took place due to the negligence of the driver of the respondent Corporation bus and hence, he had prayed for a sum of Rs. 4 lakhs as compensation for the injuries caused to him and for the damages to his vehicle.
3. Heard Ms. Charumathi appearing for Mr. P. Manavalan on the side of the Appellant and Mr. G. Muniratnam appearing for the respondent Corporation.
3(i) The learned counsel for the appellant, after taking us through the Award of the Tribunal and all other materials would submit that (i) the Tribunal misdirected itself in law in awarding a very low compensation of a sum of Rs. 2,66,000/- as against the claim of Rs. 4,00,000/-; (ii) the Tribunal, having found that the appellant would be undergoing lot of suffering due to pain, erred in awarding only a sum of Rs. 15,000/- under the head "pain and suffering"; (iii) the Tribunal erred in awarding a sum of Rs. 30,000/- under the head "loss of amenities in life" even after having found that the appellant is unable to carry on his daily routine work and became completely useless due to physical handicaps; (iv) the Award of the Tribunal with reference to transport charges and for engaging an attender to take care of him is very low and (v) loss of future earnings and loss of pensionary benefits and Gratuity were not properly considered by the Tribunal.
3ii On the other hand, Mr. G. Muniratnam, learned counsel for the respondent Corporation has contended that when the Corporation bus concerned in the accident was proceeding towards Mannargudi on the day of occurrence in the Beach Road driven carefully at a medium speed, a car overtook the bus near the All India Radio Station and at that time, the appellant came from the opposite side, driving his motorcycle rashly and carelessly and dashed against the bus, being tumbled and unable to control the speed, and hence, the appellant is solely responsible for the accident. It is further contended by him that the Insurance Corporation with which the appellant has insured his vehicle has not been impleaded as a party in the petition and therefore, the appellant himself is bound to prove with appropriate documents, whether he had a valid licence to drive his vehicle at the time of the occurrence, his Page 0810 age, occupation, income and the nature of the injuries sustained by him and that the amount of compensation claimed by the appellant is highly excessive by all means and he is not entitled to the same and therefore, the Tribunal has properly assessed all the heads of claim and was justified in granting a compensation of Rs. 2,66,000/- and as such, the appellant is not entitled to any enhancement of compensation and, accordingly, the appeal is liable to be dismissed.
4. In the light of the submissions made, the following points arise for consideration:
i. Whether the Tribunal is justified in awarding only a sum of Rs. 2,66,000/- having found that the appellant is unable to carry on his daily routine work and become completely useless due to physical handicaps?
ii. Whether the Tribunal has considered the Ex.P.10, the income proof for the retirement benefits and Gratuity to calculate the future loss of earning and to arrive at a correct quantum in respect of loss of pensionary benefits and Gratuity?
iii. Whether the Tribunal is justified in awarding future transport charges and also in respect of expenses incurred by engaging an attender to look after him during the period of prolonged treatment?
5. To decide on the above points and to consider them, it would be useful to refer to certain basic features in regard to determining a compensation relating to grievous injuries, permanent disability, loss of earnings, etc. The II Schedule appended to the Motor Vehicles Act, 1988 speaks about compensation for third party fatal accident/injury cases claims and I am concerned with the disability in non-fatal accident cases. In this context, the following details furnished in Clause 5 of the II Schedule are relevant.
5. Disability in non-fatal accidents:
The following compensation shall be payable in cases of disability to the victim arising out of non-fatal accidents:
Loss of income, if any, for actual period of disablement non 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.
As per sub-clauses (a) and (b) of Clause 5, in case of permanent total disablement or partial disablement, the Court can arrive at an amount payable by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation. The Page 0811 proper multiplier to be applied has been prescribed in Clause 1 of II Schedule (vide Table). The percentage of loss of earning capacity in respect of permanent total disablement or permanent-partial disablement arising of injuries has to be arrived at as per Schedule I under Workmen's Compensation Act, 1923.
6i In the instant case, from a perusal of the relevant materials and evidence, it is seen that the appellant was going on his way in Kamarajar Road from South towards North and it is not mentioned in the rough sketch, which is marked as Ex.P.4, that he went in front of the auto by overtaking it and dashed against the bus and it is also seen that the driver of the Corporation bus who started from Chennai and proceeding towards Mannargudi in Kamarajar Road from North to South, without going in his path, crossed the mid-line went on the right side, dashed against the motorcycle traveled a distance of 10 metres and stopped. The statement of R.W.1 that the appellant claimant overtook the auto, went in the wrong way and dashed against the bus is not to be accepted as there is no truth in it. Therefore, upon perusing the witnesses and the exhibits filed on behalf of both the sides, the Tribunal has accepted and concluded that the driver of the respondent Corporation bus is responsible for the accident. With regard to the injured-claimant's monthly income of Rs. 3,280/-, his salary certificate at the time of the accident was marked as Ex.P.7. Further, the Medical Certificate, Ex.P.8 has been issued to substantiate that the date of birth of the appellant is 01.11.1939 and that he was in medical leave till 25.11.1993 due to the accident. The Discharge Summary, Ex.P.5, issued by the Royapettah General Hospital was marked to substantiate that the appellant was admitted in the Royapettah Hospital on 12.08.1992 for the injuries sustained in the accident and discharged on 14.12.1992. Ex.P.2, the X-ray has been issued to trace out the bone fracture and later, he had obtained a certificate in respect of his disability from Orthopaedic Department in Christian Medical College, Vellore, which is found in Ex.P.11. Upon perusing the aforesaid certificate, it is seen that even if another surgery is done to him, it will not be of any use. Consequent to this disability, the appellant/claimant has been dismissed from service on 28.12.1993 stating that he is unfit to work on medical grounds based on Disability Certificate marked as Ex.P.6.
6(ii) The appellant/claimant has been dismissed from service even before his superannuation because of this accident. If he had continued in service, there is a possibility for him to get promotion as Inspector of Police and after retirement, for re-employment as a Security Officer in a private firm. That apart, he is unable to travel outside because of his inability and without the assistance of anyone and unable to sit by folding the legs. Further, there is also a possibility of revision of pay in the new Pay Commission. Certificate of Income, Ex.P.10, has been produced by the injured claimant, containing the detailed list obtained from the office he was working, in respect of the loss in his pension and Gratuity in case he had retired after his period of service, claiming that the amount of loss to be incurred by him has to be calculated.
6(iii) Dr. Chandran, Orthopaedic Doctor of Madras Medical College was examined as P.W.1. In his evidence, he deposed that he had examined the injured Page 0812 claimant on 11.08.1993 and supervised the treatment given in the hospital. He certified that it is seen from the X-ray that the bones of the right thigh were fractured, the nerves were cut and there was mal-union of bones, that the functioning of his right leg and hand are much restricted since the left side of the brain in his head is affected and assessed the disability as total and permanent and it is 100% disability. To that effect, Disability Certificate and X-ray have been marked as Exs.P.1 and P2 respectively before the Tribunal.
7. In assessing the compensation in bodily injury cases, the Courts and Tribunals should take into account all relevant circumstances, evidence, legal principles governing quantification of compensation. Further, they have to approach the issue of awarding compensation on the larger perspectives of justice, equity and good conscience and avoid technicalities in the process of decision-making. Bodily injury is to be treated as a deprivation which entitles a claimant to damages. The amount of damages varies according to gravity of injuries. Deprivation sustained as a consequence of bodily injuries may bring with it three consequences, namely, (i) loss of earnings and earning capacity, (ii) expenses to pay others for what otherwise he would do for himself and (iii) loss or diminution in full pleasures and joys of living. Money cannot be equated for the human suffering, agony and personal deprivation and in such a situation, the Tribunals and Courts should make an honest and serious attempt to award damages so far as money can compensate the loss. While considering the deprivation, the Tribunals and Courts should have due regard to the gravity and degree of deprivation as well as the degree of awareness of deprivation. While awarding damages in personal injury cases, the compensation awarded by the Court should be substantial, it should not be merely token damages.
8. A Division Bench of this Court, in the case United India Insurance Company Ltd. v. Veluchamy and Anr. has held in paragraph 10 as follows:
In estimating the financial or pecuniary loss, the Court must first form an opinion from the evidence and probabilities in the case, of the nature and extent of the loss. While estimating the loss of earnings, the Court must first decide what the claimant would have earned if the accident had not happened, allowing for any future increase or decrease in the rate of earnings. It is also necessary for the Court to decide how long the loss will continue, whether there is incapacity for life or for a shorter period. The Court should also make an estimate of the amount, if any, which the claimant could still earn in future, notwithstanding disabilities sustained by him in the accident. Further, in a case where the claimant claims medical and nursing expenses, the Court must find as a fact what expenses have already been incurred and must estimate from the evidence the expenses which will be incurred in future. Future promotions, increments, revisions of pay are in the domain of many Page 0813 imponderables and the Court should bear them in mind while assessing future loss of income. While estimating future loss of income, the Court should take into account the future prospects of the injured or the deceased of earning more income by way of promotions or otherwise.
9. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. , speaking about the heads of compensation, the Apex Court held thus:
Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts, pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in the future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
10. The general principle which should govern the assessment of the damages in personal injury cases is that the Court should award to the injured person such a sum of money as will be made in the same position as he would have been in, if he had not sustained the injuries. For all practical purposes, a man who sustained injuries has lost all earning capacity he possessed before and he is required to be compensated on the basis of total loss. An injured person is compensated for the loss which he incurs as a result of physical injury and not for physical injury itself. If a person loses a limb or eye or sustains an injury, the Court while computing damages for the loss of organs or physical injury, does not value a limb or eye in isolation, but only values totality of the harm which the loss has entailed, the loss of amenities of life and infliction of pain and suffering.
11. The Supreme Court of India, in its decision Hardeo Kaur and Ors. v. Rajasthan State Transport Corporation and Anr. has held as follows:
6. This Court in Jyotsna Dey v. State of Assam 1987 Acc CJ 172, has observed that the span of life should be taken to be 70 years in view of the high rise in life expectancy. It is specially so in the case of Army Officers who are disciplined to live an active and energetic life. The courts below were not justified in taking the normal span of life to be 60 years and that of an Army Officer 56 years"
Page 0814
9. The Tribunal became oblivious of the fact that there is time-bound consideration for promotion in the Army . . . .
. . . . Even the life expectancy was taken to be as low as 56. Considering all these circumstances, we are of the view that a Multiplier of 24 would meet the ends of justice.
12. From the above discussion, the following points emerge for consideration:
a In an injured case, where it is a permanent disablement, whether multiplier method can be mechanically applied to ascertain the future loss of income or earning power.
b. It depends upon various factors such as permanent disabilities sustained by him in the accident. Future promotion, increments, revision of pay are in the domain of many imponderables and the Tribunal ought to have applied its mind while assessing the future loss of income.
c. In calculating the compensation, whether the Tribunal has taken into account the injured has to be compensated for pain and suffering, loss of amenities, future loss of earnings, loss of earning capacity or in some cases, both the medical treatment and other special damages (i) when there is a material evidence that because of injury and consequent disability, the injured lost his employment or avocation completely and has to be idle till the rest of his life and in that event loss of income or earning capacity may be ascertained by multiplier method as provided in II Schedule of the Motor Vehicles Act, 1988 (ii) while applying the multiplier method in the II Schedule as there is no need to adopt the same period as that of the fatal cases when there is no amputation and if there is evidence that there is likelihood of reduction or improvement in future years, lesser period may also be adopted for ascertaining of loss of income (d) mainly it depends upon avocation or profession or nature of employment being attended by the injured at the time of accident.
13. The above principles have guided that certain norms and rules governing assessment of damages in personal injury cases have to be followed and in that line, let me proceed to consider whether the Tribunal is right and justifiable or not in passing such an award.
14. It is seen from the discussion that P.W.3, the injured claimant himself has been examined and he has stated that at the time of accident, he was 52 years old and deposed that he had sustained injuries in the road accident when he was working as a Sub-Inspector of Police in the Police Department. When he was driving a motorcycle bearing registration No. TMK 4940 on 12.08.1992 at about 9:30 p.m. while going in the Kamarajar Road opposite to All India Radio Station from South to North, a Thiruvallur Transport Corporation bus coming on the opposite side came on the wrong path and dashed against him and because of that, he sustained injuries and was getting treatment as an in-patient in Royapettah Hospital for about four months. Due to the accident, his brain was affected as he sustained injury on his head, his right hand became senseless totally, that he could not walk with his right leg and could not sit by folding the legs. Immediately after the accident, he was taken to Royapettah Hospital Page 0815 where he had treatment for a period of about four months as in patient. Discharge Summary has been marked as Ex.P.5 and the X-ray has been marked as Ex.P.2 to trace out the bone fracture. Later, he had obtained a certificate in support of his disability from the Orthopaedic doctor in Christian Medical College, Vellore and this exhibit has been marked as Ex.P.11. Upon perusing the aforesaid Certificate, it is seen that even if any surgery is done to him, it will not be of any use. Consequently, the appellant has been dismissed from service on 28.12.1993 stating that he is unfit to work on medical grounds and that Certificate is marked has Ex.P.6. It is also his claim that he is a Sub-Inspector of Police, getting an income of Rs. 3,280/- per month and having more years of service at the time of accident and there is a possibility for him to get promotion as Inspector of Police if he had been in service continuously and there is also a possibility of re-employment as a Security Officer in a private firm. However, according to him, due to the accident and consequent disablement, he could not do any work after the accident and on medical grounds and was dismissed from service and is not able to travel outside on his own because of his inability and that he requires someone's assistance to go out, and he is unable to do his daily routine work and unable to sit by folding his legs.
15. In his evidence, Dr. Chandran, the Orthopaedic doctor of Madras Medical College who was examined as P.W.1 has deposed that he examined the injured claimant in person on 11.08.1993 and he supervised the treatment given in the hospital. He has opined that the bones of the right thigh was fractures and the nerves were cut and there was mal-union of bones, that the functioning of his right leg and hand are much restricted since the left side of the brain in his head is affected, that his disability is total and permanent and therefore, it is 100% disability for which he has marked Disability Certificate as Ex.P.1 and X-ray as Ex.P.2.
16. One Amaladas, working as Sub-Inspector of Police in Transport Investigation Department was examined as P.W.2 and he has deposed in his evidence that a case has been registered based on the complaint lodged by one Devadattan, relating to the accident and subsequent to the investigation, a charge sheet has been filed against Subramaniam, the driver of the Thiruvalluvar Transport Corporation bus in the Egmore Court under section 184 of the Motor Vehicles Act and under Section 338 IPC, that the case in C.C. No. 2262 of 1995 was taken on file and the said case is pending trial and that the First Information Report and the rough sketch filed in the aforesaid case are Ex.P.3 and Ex.P.4 respectively.
17. The driver of the respondent Corporation bus Subramaniam was examined as R.W.1. He has deposed in his evidence that when the bus started from Chennai to Mannarkudi on the day of occurrence, and while proceeding on the Kamarajar Road near All India Radio Station, a person traveling in a car in the front gave him way and so, he overtook that and at that time, the injured claimant who came in the opposite direction overtook an auto, came in the wrong way, hit on the bumper in the front side of the bus and sustained injuries and hence, the carelessness of the injured claimant is the reason for the accident.
Page 0816
18. P.W.3 and R.W.1 are those concerned in the accident and no independent witness who had witnessed this occurrence in person had been examined as witness. One Devadattan, who witnessed the occurrence in person, lodged a complaint. Based on that, a case has been registered and a rough sketch is prepared on inspecting the place of occurrence which have been marked as Ex.P.3 and Ex.P.4 respectively.
19. After perusing the evidence and exhibits filed on both sides, the Tribunal has concluded that the statement deposed by R.W.1 that the injured overtook the auto, went in the wrong way and dashed against the bus is not to be accepted as there is no truth in it. Therefore, the Tribunal has concluded that the driver of the Transport Corporation bus is responsible for the accident. Having regard to the finding of the Tribunal as the accident is out of the rash and negligent driving of the driver of the respondent Corporation bus, based upon examination of the aforesaid issue and the position arrived at, it is decided that the owner of the vehicle which was driven by the appellant and Insurance Corporation are unnecessary parties in the petition.
20. Coming to the next issue i.e. the quantum of compensation to be awarded to the injured with 100% disability, it is seen from Ex.P.9, Medical Leave Certificate that he was on Medical leave for 120 days from 13.08.1992 to 10.12.1992 for which he was given full salary and thereafter, from 11.02.1992 to 15.01.1993 for 187 days, he was given half pay with allowances. Later on, he was dismissed from service with effect from 28.12.1993 with full salary for four months. From 11.12.1992 to 15.06.1993, he has received half pay with allowances and thus, he has incurred a loss of income to the tune of Rs. 9,840/- for about six months by calculating Rs. 1,640/- per month. Apart from that, he had incurred loss to the tune of Rs. 19,600/- for a period of six months by calculating Rs. 3,280/- per month as he was on loss of pay from 16.06.1993 to 28.12.1993. In that manner, he is entitled to get a total compensation of Rs. 30,000/- which the Tribunal has duly considered and awarded and hence, no interference is warranted under this head.
21. The appellant/injured claimant has prayed for compensation of a sum of Rs. 3,500/- towards transport expenses to the hospital. The appellant had been to hospital and other places for treatment in taxi and in ambulance as is hands and legs were not functioning. By considering the period of treatment he had undergone, he is entitled to get a sum of Rs. 3,000/- as compensation. Hence, as far as this head is concerned, the Tribunal has reasonably considered and therefore, there is no room for interference in this aspect.
22. Further, he has prayed for a sum of Rs. 3,000/- for the power he lost due to injuries. He had received treatment in Royapettah Hospital for about four months as in-patient and upon considering the nature of wounds he had sustained, the Tribunal has awarded the same as claimed by the appellant and it is also a reasonable consideration.
Page 0817
23. Under the head of compensation for inconveniences caused to him when he was in sick bed due to his injuries, taking into consideration his age as 52 years and also the fact that he lost his family life as his hands and legs failed to function, there arose a situation wherein he was unable to take care of his family and in that manner, the Tribunal has come to the conclusion that he is entitled to a compensation of Rs. 30,000/- for inconveniences caused to him and this is found reasonable and does not warrant interference.
24. The Tribunal, having found that the appellant is unable to carry on his daily routine work and became completely useless due to physical handicaps, has awarded a compensation of Rs. 30,000/- under the head of loss of amenities in life, which in my view, is correct and as such, does not warrant any interference.
25. The age of the appellant at the time of occurrence was 52 years and he was a Sub-Inspector of Police under the disciplined police force. Even if the average life span of a person is considered as 60 years, there will be a necessity for him to go out in a vehicle for a further period of 8 years and in the aforesaid manner, he has prayed for a sum of Rs. 53,000/- as transport expenses and the Tribunal, after due consideration, has awarded a sum of Rs. 20,000/-, which, in my opinion, does not need to be interfered with.
26. The appellant has prayed for a sum of Rs. 35,000/- as compensation to appoint a servant to look after him at the rate of Rs. 600/- per month. The Tribunal after considering the nature of injuries sustained by him and his disability and if he had appointed a servant for the past four years and keeping his monthly salary at the rate of Rs. 300/- per month, has awarded a sum of Rs. 15,000/- towards compensation for a person to assist him and in this case, there is no ground for interference.
27. For the pain and suffering he sustained due to the accident, while considering the nature of injury, the Tribunal has awarded a sum of Rs. 15,000/- as compensation as against Rs. 20,000/- and here also, there is no ground for interference.
28. The next is the compensation for permanent disablement. The injured claimant has prayed for a sum of Rs. 1 lakh as compensation. At the time of the accident, he was 52 years old. If he had not sustained injuries, he would have been in service for six years more and there is a possibility for his promotion as Inspector of Police and also after retirement, the scope of his re-employment also has to be considered. The Tribunal has considered this while fixing the compensation for permanent disability taking into account all the factors and upon taking specific evidence of P.W.1 coupled with Ex. P.W.1 and P.W.2 which assessed and issued a certificate for 100% disability as the right hand of the appellant is not functioning fully and he is unable to walk with the right leg. The Tribunal, with the view that the disability certificate issued to the appellant is slightly exaggerated and considering 90% as the maximum, has given finding and awarded a sum of Rs. 90,000/- for permanent disability.
Page 0818
29. The appellant has further prayed for Rs. 1 lakh for the loss of future earning capacity due to the accident. In this regard, based on Ex.P.10,(Salary Certificate denoting loss of pension and gratuity), his income to be derived from the pension and Gratuity is calculated in case he had been in service in the office he was working and taking into account the present salary, he had incurred loss to the tune of Rs. 14,240/- for six years in respect of it and Rs. 1,980/- for six years @ Rs. 219/- per month in respect of pension. The difference of Rs. 36,244/- in Gratuity and the difference of Rs. 57,776/-in commutation pension were taken into account and the Tribunal awarded a sum of Rs. 60,000/- only, in total, which is contrary to the established procedure in case a person in an accident, if an amount is payable for work which he was doing before the accident. In bodily injury cases, the Courts and Tribunals, while assessing compensation, should take into account all relevant circumstances and the legal principles governing quantification of compensation. Here, as already referred to by me, it is not the case of complete amputation. But, with 100% disability and the Tribunal, having accepted that there is 90% disability and considering all the factors such as total non-functioning of right hand, inability to walk with the right leg and other disabilities, there is a certain possibility that the appellant can earn money to some extent and according to that, I propose to fix some amount towards future loss of income.
30. The learned counsel for the respondent Corporation contended that the case may be dismissed for non-joinder of necessary parties, since it is not mentioned in the claim petition about the owner of the vehicle driven by the appellant and its related Insurance Corporation. If the appellant is also jointly responsible for the accident. Since, negligence has been fixed with the driver of the respondent Corporation bus, based upon the examination of the witnesses and evidence adduced and the sketch produced, the Tribunal has concluded that they are unnecessary parties.
31. I have already referred to the relevant clauses of Schedule II appended to the Motor Vehicles Act, 1988 which permit the Courts/Tribunals to apply multiplier method even in the case of permanent/partial disablement.
32. In the case of Dr. K.G. Poovaiah v. G.M. Karnataka State Road Transport Corporation , in which case, the injured claimant was a medical practitioner aged about 36 years, the Supreme Court has held as follows:
In the case of fracture of right zygoma with injuries at spine and right knee, after noting the same as permanent disability and after allowing loss of earning capacity at Rs. 1,500/-per month, adopted multiplier of 10.
33. Having regard to Ex.P.10, future loss of earnings till the appellant's superannuation works out to some extent as the claim by the appellant is Rs. 2,35,312/- towards the loss of future earnings and also the Tribunal ought to have taken into account the entire sum claimed under the head "loss of pensionary benefits and Gratuity" as per Ex.P.10.
Page 0819
34. This Court, in United India Insurance Company Ltd. v. Veluchamy and Anr. has held that future promotions, increments, revisions of pay are in the domain of many imponderables and the Court should bear them in mind while assessing future loss of income. While estimating future loss of income, the Court can take into account the future prospects of the injured or the deceased of earning more income by way of promotions or otherwise.
35. In the case of Nagappa v. Gurudayal Singh and Ors. , the Apex Court held as under:
14. In case, where there is evidence on record justifying the enhanced compensation for the medical treatment which is required because of the injury caused to a claimant due to the accident, there is no reason why such amendment or enhanced compensation should not be granted. In such cases, there is no question of introducing a new or inconsistent cause of action. Cause of action and evidence remain the same. Only question is - application of law as it stands.
36. The Supreme Court, in a case New India Assurance Co. Ltd. v. Kiran Singh and Ors. held as follows:
5. It is contended that the multiplier of 43 applied by the Tribunal is erroneous. In this connection, the learned counsel for the appellant had referred to the decision of this Court in U.P. SRTC v. Trilok Chandra wherein this Court has held that the multiplier should not be more than 18. The Tribunal, while applying the 43 multiplier had considered the age of the deceased being 27 years and if he had not died in the accident, he would have lived up to the age of 70 years and one day he would have been promoted to the post of Chief Engineer. Keeping the aforesaid background in view, the High Court was of the view, that if the multiplier is reduced and multiplicand is enhanced not much difference would be caused to the amount fixed by the Tribunal. Even otherwise, it is a trite law that the Insurance Company is not capable to challenge the quantum of compensation.
37. In the instant case, though it is not a fatal one, but since it is a case of grievous injury with 100% disablement and the Tribunal has accepted 90% disability and taking into account the submissions of the learned counsel for both sides that multiplier method could be applied and the fact that his right leg is completely disabled and his right hand is not functioning, there is a certain possibility for the appellant to earn money to some extent in future. Consequent to the disability, he has been dismissed from service of the Department. Keeping the above said background, in view of his age and the remaining period of service and also the possibility of his future earning capacity and his promotion as Page 0820 Inspector, I propose to enhance the amount awarded the under the head "Loss of income and earning capacity".
38. In such a view of the matter and in the light of the above discussion, the Award of the Tribunal is confirmed except the amount granted under the head "future loss of income and earning power". For future loss of income and earning power, a sum of Rs. 40,000/- is to be added to the award of the Tribunal and therefore, the total Award of the Tribunal is enhanced from Rs. 2,66,000/- to Rs. 3,06,000/- with an interest at 12% per annum from the date of petition till the date of deposit to be made. It is made clear that for the enhanced amount of Rs. 40,000/-, there shall be an interest at the rate of 7.5% per annum. The Award of the Tribunal is modified to this extent. Civil Miscellaneous Appeal is allowed in part. No costs.