Madras High Court
National Insurance Company Limited vs R.Sivakumar on 29 April, 2009
Author: Prabha Sridevan
Bench: Prabha Sridevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.04.2009 CORAM: THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM C.M.A.NO.3854 of 2004 & 534 of 2005 --------------- National Insurance Company Limited 89, Pulla Avenue, Shenoy Nagar Chennai-30. ... Appellant in both C.M.As. -Vs.- 1. R.Sivakumar 2. P.L.Narasimhan ... Respondents in CMA No.3854/04 1. R.Kamalakannan 2.B.L.Narasimhan ... Respondents in CMA No.534/05 Prayer:- Civil Miscellaneous Appeals against the judgment and decree dated 30.4.2004 passed in M.C.O.P.No.584/2001 & 276/2001 on the file of the Motor Accidents Claims Tribunal, Fast Track Court No.IV, Madras. For Appellant : Mr. N. Vijayaraghavan For Respondents : Mr. M.Swamikkannu for R.1 J U D G M E N T
(Judgment of the Court was delivered by Prabha Sridevan, J) The Tribunal awarded a sum of Rs.18 lakhs for fracture of Tibia (CMA No.3584 of 2004) and Rs.3,40,000/- for fracture of the left toe (CMA No.534 of 2005) respectively. According to the appellant Insurance Company, the awards are unreasonable and excessive.
C.M.A.No.3584 of 20042. When the claimant was going as a pillion-rider on the motor-cycle driven by his brother, an auto-rickshaw dashed against him and he sustained injuries. He made a claim of Rs.46 lakhs as compensation against the owner of the insurer of the Auto-rickshaw. The Tribunal awarded, as stated earlier, Rs.18 lakhs as compensation.
3. The learned counsel for the appellant submitted that the decision of this Court in 2005(3) TLNJ (Civil) 580 (M.S.LUTHUFULLAH AND ANOTHER v. S.BALU) would squarely apply to this case, where the Division Bench set aside the award of Rs.9,19,000 for a fractured clavicle disapproving the approach. The Division Bench observed that this kind of approach is not a juridical approach and it can only be deprecated.
4. In the present case, the injured was a third year B.E. Civil Engineering Student. The Tribunal observed that a Civil Engineer will easily receive a salary of Rs.10,000/- per month in any ordinary Private Company or in the Government and because of the accident, the claimant was working as a Clerk in the lathe work shop of his sister and therefore fixed the loss of earning capacity at 50% and adopting the multiplier of 18, the loss of earning capacity was quantified at Rs.11 lakhs. The Tribunal also awarded a sum of Rs.50,000/- towards pain and suffering, Rs.30,000/- for transportation, Rs.20,000/- for extra nourishment and Rs.1 lakh for loss of income for family members, additional transportation and medical expenses.
5. P.W.4 - Dr.R. Thiagarajan in his evidence has stated that there is malunion in the fractured tibia and therefore there may be restriction in his bending and straightening the leg and certified the disability at 60%. The claimant was an inpatient from 7.10.2000 to 16.10.2000 (i.e.) ten days and he has also undergone surgery. Ex.P.9 is the evidence for the medical expenses and on the basis of this, a sum of Rs.1 lakh was awarded. In addition to this, the Tribunal decided to award Rs.3 lakhs for incapacity of the claimant to reach a good position in society and according to the Tribunal, the injured had spent one year continuously in treatment for which the Tribunal decided to award Rs.1 lakh. In all, a total compensation of Rs.18 lakhs was awarded.
6. We are astonished by the award. The Law relating to accident claims requires the court to award compensation which is just and reasonable and it is better for the Claims Tribunal to bear this in mind. They should neither be niggardly while awarding compensation to somebody, who is totally paralysed and who comes to court claiming that because of this accident he is reduced to living death position. At the same time, the accidents claim petition is not an occasion for bonanza for persons, who have sustained fractures. The injury sustained must always be co-related to the avocation of the injured to assess the degree of disability or loss of earning capacity as the case may be. We may usefully refer to R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd., (1995) 1 SCC 551 : (1995 AIR SCW 243: AIR 1995 SC 755), where the Supreme Court had held as follows:
"Broadly speaking while fixing an 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 is 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 non-pecuniary damages are concerned, they may include; (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in 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."
7. The injured had, in this case, a mere fracture on his right tibia. We will even accept the Doctor's evidence that there is slight difficulty in straightening the leg and therefore there is some incapacity to walk fast. We will also accept the Doctor's evidence that there is slight bending and shortening of the leg. We cannot accept that this injury had in any way resulted in loss of status for the injured in the society and that he had suffered mental agony on account of such status loss. This is an imaginary head of award and we straightaway delete the sum of Rs.3 lakhs awarded by the Tribunal. Instead, we will award a sum of Rs.50,000/- as loss of amenities for the difficulties he may face in movement and the possible diminishment of securing a bride. The Tribunal has awarded a sum of Rs.1 lakh for the assistance given to the claimant by his family for one year for his continuous treatment and the possible future transport expenses etc. Since the award for transport expenses is already on the high side and there is no evidence that the injured spent one year in the hospital, we may safely delete this award of Rs.1 lakh under this head. It is already seen from para 10 of the award that the claimant was in the hospital from 7.10.2000 to 16.10.2000 and thereafter on 24.10.2000. Therefore the conclusion of the Tribunal that he took treatment for one year appears to be unjustified. The medical expenses of Rs.1 lakh is confirmed, in view of Ex.P.9. The Tribunal has quantified some amount as the economic loss and therefore there could be no award under the head of disability, in view of Full Bench decisions in CHOLAN ROADWAYS CORPORATION LTD. v. AHMED THAMBI (2006 (4) CTC 433), wherein it was held that when loss of earning capacity is already compensated, permanent disability need not be separately itemised. Therefore the award of Rs.1 lakh under the head of disability is deleted. For transport expenses and extra nourishment a total sum of Rs.50,000/- has been awarded. We reduce this to Rs.25,000/-, since we are unable to comprehend how much extra nourishment a person, who had suffered fracture will need, even if we assume that he stacked his room with bottles of Horlicks. For pain and suffering the award of Rs.50,000/- is confirmed.
8. The erratic manner in which disability is assessed for fractures and other injuries which are not as grievous as loss of limbs or amputation is neither fair nor just. We feel that there should be some consistency and some uniformity. It pains us to see extravagant awards, for what is really not a major disability. The pain that the injured feels is not something we are ignoring but what we have to assess is the diminishment of his capacity to work and to the loss of earning capacity.
9. The starting salary the claimant might be receiving as a Civil Engineer is fixed at Rs.7,500/-. Since he is a Civil Engineer, he might have to stand for long time in the open on the site and fracture of the tibia might affect him in that regard. But at the same time, it is difficult for us to accept 50% as the disability, since we find in Schedule I Part II of the Workmen's Compensation Act, 1923, even for amputation below knee with stump exceeding 12.70 cms the percentage of disability is only 50%. In that case, mobility is reduced and they may have to use some other assistance for the loss of limb below the knee. The claimant's predicament in this case is not that serious. Therefore we are totally unable to justify the Tribunal taking 50% as disability for the fracture of Tibia. But taking note of the nature of his education and his expertise and the possibility that he might have to stand for a long time to pursue his avocation, we fix the disability at 20%.
10. In "A Critique on Motor Vehicles Laws" (by Justice K.Kannan & N.Vijayaraghavan, Advocate, 13th Edition, 2008), it is precisely this predicament that is referred to. They observed that the expert witnesses or Doctors, who appear before the Tribunals are stock witnesses. They know no standards, do not conform to any uniform practices. They do not follow any criteria. The Tribunals are also under work pressure and therefore, they just accept or slightly modify the disability as certified by those Doctors. In 2005 (ACJ) 344 (AP) (M. JAYANNA'S CASE), the unhealthy practices in this field are referred to. In this book, there is a reference to the Notification issued by the Ministry of Social Justice and Empowerment dated 1.6.2001 for applying consistency and uniformity in the assessment of permanent disability. Guidelines have been drawn and if it is adopted, the falsification of the degree of disability may be avoided. The authors of this book have made a salutary suggestion which is that, a Medical Board shall be constituted in each District and as a matter of rule, the injured shall appear before the Medical Board and the disability shall be assessed by the Board and the certificate of disability by the Medical Board shall normally be accepted as binding on the Tribunal without need for examination of the author of the same. They have also suggested that a clause may be introduced in the Motor Vehicles Act itself so that some uniform practice is achieved. We hope the Parliament will take note of this.
11. We take Rs.7,500/- as the starting salary for a person of his qualification. We will not interfere with the multiplier adopted by the Tribunal. We fix 20% as his disability and if so, we arrive at a sum of Rs.3,24,000/- as loss of earning capacity. Therefore the total compensation would be as follows:-
Loss of earning capacity = Rs. 3,24,000.00 Loss of amenities = Rs. 50,000.00 Medical Expenses = Rs. 1,00,000.00 Transport and extra nourishment = Rs. 25,000.00 Pain and suffering = Rs. 50,000.00 ----------------- Rs.5,49,000.00 -----------------
It is rounded off to Rs.5,50,000/-. We are informed that, by virtue of the interim orders passed by this court, the claimant has already withdrawn a sum Rs.14,97,775/-. It is open to the appellant to adopt such steps as are necessary in view of our reduction in compensation. C.M.A.No.3854 of 2004 is allowed as above.
C.M.A.No.584 of 2005:-
12. In this case, the left toe of the claimant was fractured. P.W.4 Dr. R.Thiagarajan had certified the disability of the injured at 25% as there was malunion of the second and fifth toe. The injured had obtained Diploma in Fitter in the Gemini Institute of Technology and also had a driving licence. He had registered a Small Scale Industry under the name "Ramalakshmi Industries" which is seen from Ex.P.6. The Tribunal was of the opinion that by the fracture of the toe, earning capacity of the injured was considerably reduced. We are afraid, we are unable to follow the reasoning for this. Thereafter the Tribunal has awarded as follows:-
Transport and Extra Nourishment - Rs. 20,000/-
Medical Expenses - Rs. 25,000/- pain and suffering - Rs. 20,000/- Disability - Rs. 30,000/- Loss of earning - Rs.20,000/-
Thereafter the Tribunal chose to adopt the multiplier method for a person who has sustained fracture of a toe and assessed the loss of earning capacity at 1000/- per month and arrived at a loss of earning at Rs.2,16,000/- and rounded it off to Rs.2,25,000/-. To this if we add the earlier heads of awards, we arrive at a sum of Rs.3,40,000/-.
13. The Tribunal had awarded a sum of Rs.25,000/- towards medical expenses. We are unable to see where the Tribunal had discussed this. But since it is a small amount, we confirm it. The award of a sum of Rs.20,000/- towards pain and suffering is also confirmed. The amount of Rs.20,000/- awarded towards Extra nourishment and transportation is also confirmed. The award of a sum of Rs.20,000/- for loss of income is deleted, since there is no evidence for the same. The sum of Rs.30,000/- awarded towards disability is also deleted, since the Tribunal has awarded Rs.2,16,000/- under economic loss. There is no evidence that because of this fracture, the claimant was unable to continue his Small Scale Industry. So we are unable to appreciate the award of Rs.2,25,000/- for loss of earning capacity. It is seen that for amputation of toes the II Schedule of the Workmen's Compensation Act fixed the disability at 30%. There is no evidence as to how his earning capacity stands reduced. However we will notionally award a sum of Rs.50,000/- under this head and the total compensation would be as follows:-
Medical expenses = Rs. 25,000.00 Pain and suffering = Rs. 20,000.00 Loss of earning capacity = Rs. 50,000.00 Extra Nourishment and Transportation = Rs. 20,000.00 ------------------- Rs.1,15,000.00 -------------------
We are informed that, by virtue of the interim orders passed by this court, the claimant has already withdrawn 50% of the amount deposited. It is open to the appellant to adopt such steps in view of our reduction in compensation. C.M.A.No.3854 of 2004 is allowed.
Tr/ To The Motor Accidents Claims Tribunal, Fast Track Court No.IV, Madras