Madras High Court
Mr.U.M.Ravichandran vs Mr.R.Sivakumar on 8 April, 2011
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 08/04/2011 *CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN +CMA.3178 of 2005 #D.Henry $S.Latha !FOR PETITIONER : Mr.U.M.Ravichandran ^FOR RESPONDENT : Mr.R.Sivakumar :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.04.2011 CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CMA.No.3178/2005 CMP.NO.191/2011 D.Henry Appellant Vs
1. S.Latha
2. The Oriental Insurance Company Limited Chennai-108 Respondents Prayer:- This Civil Miscellaneous Appeal is filed against the Judgement and Decree dated 28.7.2004 made in MCOP.No.3529/1999 by the learned VI Judge, Small Causes Court (MACT) Chennai.
For Appellant : Mr.U.M.Ravichandran For Respondent : Mr.R.Sivakumar-R2 JUDGEMENT The Appellant has filed this Civil Miscellaneous Appeal under Section 173 of the Motor Vehicles Act, 1988 against the award dated 28.7.2004 made in MCOP.No.3529/1999 by the learned VI Judge, Small Causes Court (MACT) Chennai. The Appellant has also filed an application in CMP.No.191/2001 seeking permission to enhance the claim made in the claim petition to Rs.14,00,000/- lakhs instead of Rs.5,00,000/-.
2. On 16.12.1998 at about 9.15 p.m., while the Appellant/claimant was riding the motorcycle bearing Reg.No.TN-22-A-3913 along GST Road, Chromepet from North to South, the driver of the lorry bearing Reg.No.TN-57-D-9129 dashed against the motorcyclist causing grievous injuries to him. According to the claimant, the lorry was driven rashly and negligently at a great speed and hit behind the motor cycle. Report of the incident was lodged at the Police Station and the police registered a case against the driver of the lorry. The claimant was admitted at Government Hospital, Chromepet and then he continued treatment as an inpatient at Government Hospital, Chennai from 16.12.1998 to 31.12.1998 and at a private hospital, namely Rainy Hospital from 31.12.1998 to 28.11999. His left leg was amputated above the knee, as even plastic surgery done to him was not successful. Subsequently, the claimant filed the claim petition before the Tribunal claiming a total compensation of Rs.5,00,000/-.
3. The Tribunal held that the accident occurred due to the rash and negligent driving of the lorry and the lorry was insured at the relevant time with the 2nd Respondent Insurance Company. The Tribunal after holding that there was 60 per cent permanent disability to the claimant, awarded a total compensation of Rs.4,74,800/- under various heads with interest at 9 per cent p.a. from the date of the claim petition till the date of deposit.
4. Pending the appeal, the claimant has filed an application in CMP.No.191/2011seeking enhancement of the claim and also for permission to enhance the claim made in the claim petition on the ground that because of amputation of the left leg, he could not continue his job as a Supervisor at Kurunji Leather Export Company and as such, the loss of earning capacity has to be taken into account as 100 per cent in the light of the judgement of the Honourable Supreme Court. It is further stated that 50% of the salary has to be added for future prospects and the amount of compensation has to be enhanced under other non-pecuniary heads also.
5. Mr.U.M.Ravichandran, the learned counsel for the Appellant submitted that the Tribunal has committed an error of law in holding that there was 60 per cent permanent disability to the claimant. There is a 100 per cent permanent disability and in support of his contentions, the learned counsel relied upon the following decisions:-
1. K.Janardhan Vs. United India Insurance Company Limited (2008-8-SCC-518)
2. S.Suresh Vs. Oriental Insurance Company Limited and another (2010-1-TNMAC-253-SC)
6. Per contra, Mr.R.Sivakumar, the learned counsel for the 2nd Respondent Insurance Company submitted that the Tribunal has rightly held that there is 60 per cent permanent disability and in support of his contention relied upon the decision in Raj Kumar Vs. Ajay Kumar and another (2011-ACJ-1) wherein the Honourable Supreme Court held that total permanent disability would only refer to a person's inability to perform any avocation or employment related activities as a result of the accident.
7. From the evidence on record of the case, it is an admitted fact that the left leg of the claimant has been amputated above knee level. The claimant in his deposition stated that his left leg was amputated above knee level and before the accident, he had been working as a Supervisor in Kurunji Leather Export Company and was getting a salary of Rs.3600/- p.m. which included Rs.600/- that he was receiving as batta. PW.3 the Proprietor of the said Export Company has deposed that the claimant was receiving a salary of Rs.3000/- p.m. Ex.P5 is the salary certificate. He has deposed that the claimant stopped working after the accident. But, he did not say about the batta being paid to the claimant in addition to the salary of Rs.3000/-.
8. According to the claimant, he could not continue the work as a Supervisor after the accident and there is no chance of his marriage, in view of amputation of leg suffered by him. Dr.P.R.R.Thiagarajan has assessed the disability as 85 per cent for amputation of leg above knee to the thigh level and 5 per cent for redundant muscles obstructing fitting of the artificial limb which required another surgery for exertion of redundant muscles. Thus, the permanent disability assessed by him is 90 per cent.
9. The claimant has filed Ex.P9 dated 26.4.1999 a voucher for the purchase of artificial limb for a sum of Rs.5000/-, but according to him it did not fit into his thigh and he had severe pain and therefore, he could not use it further. He has filed another voucher for a sum of Rs.1,10,000/- which relates to an artificial limb purchased by the claimant from one Mohana Orthotics and Prosthetics Centre. But, as the claimant deposed that he could not use that artificial limb, the Tribunal did not grant any amount for those artificial limbs purchased by the claimant.
10. The fact remains that the claimant has purchased those artificial limbs, but he could not use it continuously as he got pain. The Doctor has stated that the claimant has to undergo another operation for removal of redundant muscles for proper fitting of the artificial limb. It is not the case of the Respondents that they have been filed in order to get more compensation. Therefore, the claim made by the claimant for those artificial limbs cannot be rejected and he is entitled to the amount that is Rs.1,10,000/- + Rs.5000/-.
11. The Honourable Supreme Court in the case of K.Janardhan Vs. United India Insurance Company Limited (2008-8-SCC-518) has held as under:-
"5. The learned counsel for the Appellant has raised only one argument during the course of the hearing. He has submitted that the Appellant claimant being a tanker driver, the loss of his right leg ipso facto meant a total disablement as understood in terms of Section 2(1)(l) of the Workmen Compensation Act and as such the Appellant was entitled to have his compensation computed on that basis. In support of this plea, the learned counsel has placed reliance on Pratap Narain Singh Deo Vs. Srinivas Sabata (1976-1-SCC-289). The cited case pertained to a carpenter who had suffered an amputation of his left arm from the elbow and this court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed as under:-
"5. The expression 'total disablement' has been defined in Section 2(1)(l) of the Act as follows:-
'2.(1)(l) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement.;' It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the Respondent and the question for consideration is whether the disablement incapacitated the Respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:-
'The injured workman in this case is carpenter by profession... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only.' This is obviously a reasonable and correct finding. Counsel for the Appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part II of Schedule 1, because it was not the Appellant's case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 4 =" below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established."
12. The Honourable Supreme Court in 2011-ACJ-1 (Raj Kumar Vs. Ajay Kumar and another) has held that on appreciation of evidence and assessment, if the Tribunal finds that the 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 the Tribunal may adopt the said percentage for determination of compensation.
13. In Arvind Kumar Mishra vs. New India Assurance Company Limited (2010-ACJ-2867-SC), the Honourable Supreme Court has observed as under:-
"7. We do not intend to review in detail sate of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. In some cases for personal injury, the claim could be in respect of lifetime's earnings lost because, though he will live, he cannot earn his living. IN others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases-and that is now recognised mode as to the proper measure of compensation-is taking an appropriate multiplier of an appropriate multiplicand."
14. It has been contended by the learned counsel for the Appellant that the disability suffered clearly established that the claimant suffered 85% disability and the inability to use the artificial limb was also noted for which 5 per cent was assessed, but the Tribunal failed to appreciate the above said facts and wrongly assessed the permanent disability as 60 per cent.
15. The other contention is that the Tribunal failed to consider that after severe injuries and amputation, a person would not have been in a position to do any work during the period of treatment. He would submit that the treatment of the Appellant continued for a long period and is still continuing and the Appellant was forced to leave the job with no other option after his amputation and so the Appellant lost his job as a Supervisor after amputation which is also spoken to by PW.3.
16. It is further contended that with the permanent disability suffered by him, he had to depend upon others' help for his basic amenity and even on this account, the Tribunal had given no compensation. Lastly, it was contended that the Tribunal failed to consider the future prospects of the Appellant.
17. On the other hand, it is contended by the learned counsel for the Insurance Company that the Tribunal has rightly taken the permanent disability as 60% keeping in view the Workmen Compensation Act, 1923.
18. I have heard the submissions made by the learned counsel on either side. It is clear from the facts of the case that the Appellant has become unfit for job due to the accident. The Appellant was employed as a Supervisor in the Export Company which involved manual functions. The Appellant had lost his left leg above knee and the accident made him totally dependent upon others. The disability certificate shows that the Appellant has suffered 85 per cent permanent disability due to the accident. There can possibly be no doubt that the Appellant will not be able to work and earn his livelihood as a Supervisor. In the circumstances of this case, I am satisfied that total permanent reduction in earning capacity at 85 per cent as assessed by the Doctor is correct and there is no reason to reduce it to be 60 per cent. The permanent disability assessed by the Doctor at 85 per cent ought to have been taken into consideration by the Tribunal while computing the loss of future earnings.
19. The salary of the Appellant is Rs.3000/- per month as per evidence. Regarding future prospects PW.3 during the course of his examination in the witness box did not state even a single word about the future prospects of the Appellant. It cannot also be ruled out that due to the amputation of left leg, he cannot perform any other job. There is absolutely no evidence on record to prove that there was every chance or opportunity for him to earn more income in future if he has not met with an accident.
20. In Bijoy Kumar Dugar Vs. Bidyadhar Dutta (2006-ACJ-1058-SC), the Honourable Supreme Court has observed as under:-
"The mere assertion of the claimants that the deceased would have earned more than Rs.8000/- to Rs.10000/- per month in the span of his life time cannot be accepted as legitimate income unless all the relevant facts are proved by leading, cogent and reliable evidence before the MACT. The claimants have to prove that the deceased was in a trade where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income."
Therefore, the contention regarding future prospects of the Appellant is herby rejected.
21. Going by the the second schedule to the Motor Vehicles Act for persons aged between 20 and 25 years, 17 is the proper multiplier. Taking into consideration the loss of earnings at Rs.3000/- p.m. and 85 per cent disability, applying the multiplier of 17, as the Appellant was 25 years old, the loss of future earnings due to the disability suffered by him is arrived at Rs.5,20,200/- (Rs.3000*12*17*85/100). The Appellant is a 25 years old young person and amputation of leg above knee has resulted not only in permanent deprivation of his earning capacity, but has also resulted in impairment of quality of life, like loss of conjugal life and other amenities. Therefore, Rs.25,000/- for pain and suffering, Rs.50,000/- towards attendant's charges including for future life, Rs.50,000/- towards loss of conjugal life and marital prospects, Rs.10,000/- for transportation expenses and Rs.10,000/- for extra nourishment and Rs.1,20,000/- (Rs.1,15,000/- +Rs.5000/-) for expenses incurred for artificial limbs are awarded.
22. The Appellant before the Tribunal claimed Rs.5 lakhs as compensation. In this appeal, the claimant has filed an application in CMP.No.191/2011 for amendment of the claim application by enhancing the claim to Rs.14,00,000/- and the said application has been heard along with the appeal. In view of the decision of the Honourable Supreme Court in the case of Nagappa Vs. Gurudayal singh (2003-ACJ-12-SC), even without filing a formal application, the claimant can get the excess amount, if such amount is found to be just amount of compensation. In this connection, the following observation of the Honourable Supreme Court are quoted below:-
"21. For the reasons discussed above, in our view, under the Motor Vehicles Act, there is no restriction that Tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/court is to award 'just' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases, there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub section (4) to Section 166, even report submitted to the Claims Tribunal under sub section (6) of Section 158 can be treated as an application for compensation under the Motor Vehicles Act. If required, in appropriate cases, the court may permit amendment to the claim petition."
23. Just compensation can exceed the amount claimed by the claimant in the claim petition as decided by the Delhi High Court in the case of Jyoti Gupta Vs. Ashok Kumar (2002-ACJ-1056-Delhi) wherein the decision in Ashwin Kumar Mishra Vs. P.Muniam Balu (1999-ACJ-1105-SC) was followed by the Delhi High Court. In view of the decision of the Honourable Supreme Court, it is the obligation on the part of the Tribunal/court to award just and fair compensation which may exceed the amount claimed by the claimant.
24. In this case, the Appellant having formally filed an application for amendment of the claim by raising the claim to Rs.14,00,000/- such application can be allowed, although even without allowing such application this court can grant the aforesaid amount which exceeds Rs.5,00,000/-, the original amount claimed in the application before the Tribunal, once it is found that the said amount is the just one. In this case, the Appellant is entitled to total compensation of Rs.7,85,200/- as just and fair compensation. Therefore, according to my view, the Tribunal has committed an error in awarding only Rs.4,74,800/- on various heads and the same is liable to be enhanced in order to award just and fair compensation.
25. In the result, this Civil Miscellaneous Appeal and the Miscellaneous Petition are allowed by enhancing the award amount to Rs.7,85,200/- with interest at 7.5 per cent p.a. for the enhanced amount from the date of the application till the date of realization. The claimant is entitled to a further sum of Rs.3,10,400/- with interest at 7.5% p.a. in addition to the award amount of Rs.4,74,800/- already awarded by the Tribunal. In all, the claimant is entitled to a total compensation of Rs.7,85,200/- (Rupees seven lakhs eight five thousand and two hundred only) with interest 7.5% p.a. for the enhanced amount as detailed below:-
The the 2nd Respondent/Insurance Company is directed to pay the ARUNA JAGADEESAN, J.
Srcm enhanced amount of Rs.3,10,400/- with interest at 7.5 per cent p.a. from the date of deposit till the date of deposit within a period of eight weeks from the date of receipt of a copy of this order. On such deposit being made, the claimant is entitled to with draw the entire award amount with interest. No costs.
08.04.2011 Index:Yes/No Web:Yes/No Srcm To:
1. VI Judge, Small Causes Court (MACT) Chennai
2. The Record Keeper, VR Section, High Court, Madras Pre Delivery Judgement in CMA.No.3178/2005