Karnataka High Court
Vittal Poojary vs S.J. Yatish And Anr. on 6 January, 2004
Equivalent citations: II(2005)ACC858, 2004ACJ1700, ILR2004KAR2777, 2004 AIR KANT HCR 739, 2004 A I H C 1254, (2004) 6 KANT LJ 380, (2005) 2 ACC 858, (2004) 2 KCCR 1147, (2004) 3 ACJ 1700, (2004) 3 CIVLJ 683
Author: Tirath S. Thakur
Bench: Tirath S. Thakur, Huluvadi G. Ramesh
JUDGMENT
Tirath S. Thakur, J
1. Motor Accidents Claims Tribunal, Udupi, has allowed MVC.751/ 92 in part and awarded a sum of Rs. 2, 11, 578/- with interest at the rate of 6% P.A. towards compensation for the injuries sustained by the claimant in a road accident. The claimant has appealed to this Court for a suitable enhancement of the said amount.
2. The claimant was on 21.8.91 driving a lorry from Udupi on his way to Belthangady. When he reached a place near Udyavara forest gate, a tanker bearing registration No. KA 14-2070 coming from Katapady side dashed against the lorry, in the process causing injuries to the claimant. The injured was removed to the KMC Hospital at Manipal where he remained under treatment for a few months. In due course, he filed MVC. 751/92 before the Tribunal for payment of compensation. His case in the claim petition was that the accident in question had taken place due entirely to the rash and negligent driving of the tanker by its driver, thereby entitling him to payment of compensation. The insurance company with which the offending tanker was insured opposed the claim on several grounds giving rise to as many as 8 issues. Appreciation of the evidence adduced in support of their cases by the parties, led the Tribunal to answer the issues in favour of the claimant in terms of the impugned judgment. The Tribunal held that the accident in question had indeed taken place on account of the rash and negligent driving of the tanker by its driver. It further held that the claimant had remained admitted to the hospital as an indoor patient from 21st Aug. 1991 till 13th Jan. 1992 and spent a sum of Rs. 1,01, 253/- on medical treatment. Apart from awarding the said amount, the Tribunal found the claimant entitled to a sum of Rs. 17,700/- towards attendant charges and Rs. 23,675/- towards nourishment, etc. The Tribunal added to that amount a sum of Rs. 2,750/- towards conveyance charges; Rs. 5,000/- towards pain and suffering and Rs. 61, 200/- towards loss of future income, thereby taking the total amount of compensation to Rs. 2, 11,578/- which has been made payable with interest at the rate of 6% P.A. as already noticed earlier.
3. The insurance company has not preferred any appeal against the impugned judgment and award. It has on the contrary, satisfied the award by depositing the amount before the Tribunal. We are not under the circumstances called upon to examine the correctness of the findings recorded by the Tribunal regarding the genesis of the accident.
4. The only question that was urged before us by Mr. Nataraj -counsel appearing for the appellant, related to the quantum of compensation payable to the claimant. A two-fold submission was made by the learned Counsel in that regard. In the first place he submitted that the Tribunal was in error in awarding a sum of Rs. 61, 200/- only, towards loss of future income by treating the loss of earning capacity consequent upon the physical disability suffered by the claimant to be 25% only. He urged that the claimant being a driver by profession who is after the accident and the disability unable to drive any vehicle, the loss of earning capacity should have been taken to be 100% and a suitable amount on that basis calculated and awarded in his favour. Secondly, he submitted that the award of Rs. 5,000/- only, towards compensation for pain and suffering was inadequate having regard to the nature of the injuries sustained by the claimant and the period of hospitalization.
5. On behalf of the respondent - insurance company it was on the other hand argued that the loss of future income could not be determined by reference to the vocation of the injured. The loss had to be determined by reference to, all the work that the claimant could do. Such a loss could therefore, be related only to the extent of disability sustained by the claimant regardless whether the said disability would disable the claimant from doing the work which he was doing before the accident. In so far as the award of compensation under the head pain and suffering is concerned, it was contended that the amount of Rs. 5,000/- was sufficient to meet the ends of justice.
6. The claim in the instant case was one under Section 166 of the Motor Vehicles Act, 1989 on proof of fault. Any such claim could be maintained for death or bodily injury sustained by any person arising out of the use of a motor vehicle or for damage to the property. Neither Section 165 nor Section 166 of the Motor Vehicles Act in terms require that the amount of compensation payable to an injured shall be on the basis of loss of future earning by reference to the disability that has arisen from injuries sustained in a motor accident. The award of compensation for injuries is all the same to be related interalia to the loss of future income, if any, that the victim may have suffered on account of any physical disability that may ensue from the injuries. Judicial pronouncements on the subject apart, Section 142 of the Motor Vehicle Act gives a clear indication of how compensation under Section 140 on no fault basis has to be awarded for permanent disablement. It interalia prescribes that a permanent disablement of a person shall be deemed to have resulted from an accident if the person concerned has suffered by reason of the accident any one of the injuries stipulated thereunder. Section 143 makes the provision of Chapter X of the Motor Vehicles Act in respect of death or permanent disablement applicable to claims under the Workmen's compensation Act resulting from the accident of a nature referred to in Sub-section (1) of Section 140 of the Motor Vehicles Act. Reference may also be made at this stage to the provisions of Section 163-A introduced in the year 1994 by an amendment. The provision envisages payment of compensation on a structured formula basis without proof of fault. Explanation to Section 163-A provides a limited definition of permanent disability for purposes of Sub-section (1)to Section 163-A. The explanation reads thus:
" for the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923(8 of 1923)."
Although the present claim was not one under Section 163-A of the Act, a conjoint reading of the provisions of Sections 140, 142 & 143 and Section 163-A shows that for purposes of award of compensation on no fault basis and determination of loss of earning capacity, the provisions of the Motor Vehicles Act, broadly speaking borrow the meaning to be attached and the approach to be adopted in matters relating to award of compensation from the Workmen's Compensation Act, 1923. Schedule I to the Workmen's Compensation Act, in turn enumerates certain injuries as also the percentage of the loss of earning capacity resulting from each one of them. While 6 of the injuries enumerated in Schedule I are taken to have caused 100% loss of earning capacity, the remaining injuries appearing in Part II of the said schedule are taken to have caused varying degrees of loss of earning capacity. In regard to injuries that are not mentioned in the Schedule, Section 4(1)(c) of the Workmen's Compensation Act, 1923 makes a comprehensive provision which interalia requires the loss of earning capacity to be assessed by a qualified medical practitioner. Judicial pronouncement on whether in the case of non-schedule injuries, loss of earning capacity has to be determined with reference to the work that the injured was doing at the time of accident or with reference to all the work that could have been done by him were conflicting. Co-ordinate Benches of this Court had taken different views on the subject. While in one group of cases the Court had taken the view that the loss of earning capacity has to be determined with reference to the work that the claimant was doing at the time of the accident, another set of decisions took a contrary view holding that such loss had to be determined by reference to all the work that could be done by the claimant. In SHIVALINGA SHIVANAGOWDA PATIL AND ORS. v. THE NEW INDIA ASSURANCE CO LTD. AND ORS., MFA No. 27/1996 c/w MFA Nos. 3912/99 & connected matters a Division Bench of this Court had therefore, formulated 4 questions to be answered authoritatively by the Full Bench with a view to resolving the conflict arising from the said decisions. Question no.3 so referred to the Full Bench read as follows.
"Whether the determination of the loss of earning capacity has to be by reference to the work which the workman was performing at the time of the accident or by reference to his capacity to do any other work after he has sustained the disability?"
The Full Bench has by its judgment dated 1st December, 2003, answered the said question in the following words:
"(iii) Determination of the loss of earning capacity has to be with reference to "all the work" which the workman was capable of performing at the time of the accident resulting in such disablement and not with reference to the work which the workman was performing at the time of the accident. However, this is subject to the condition that in case the workman establishes by acceptable evidence that after the injury not only he is not able to do the work which he was performing before the accident but he is not able to do any other work, the loss of earning capacity could be assessed on the basis of such evidence"
7. The above would therefore, dispel any doubt about the approach to be adopted by the Courts in matters relating to determination of loss of earning capacity arising from injuries sustained by a workman in a claim under the Workmen's Compensation Act. Such loss of earning capacity has in the light of the above decision to be determined by reference to all the work that the claimant was able to perform at the time of the accident and not with reference to the work that he was actually performing. The Full Bench has however provided for an exception to that general rule, viz cases where the workman establishes by adducing affirmative evidence that he was on account of the injury and the disability unable to do any work whatsoever. If such evidence is adduced, the question of loss of earning capacity has to be considered by reference to the same.
8. The test applicable to claims under the Workmen's Compensation Act must in our view be applicable with equal force even to claims under the Motor Vehicles Act. Just as in the case of claims under the Workmen's Compensation Act the Commissioner or the Appellate Court hearing the claim assesses the loss suffered by a workman on account of the injury, so also the motor vehicles Tribunal and the Appellate Court hearing a claim under the Motor Vehicles Act undertakes an exercise by reference to an injury that has been caused in a road accident. The underlying purpose of the exercise in either situation is the same. It is therefore, safe to say that the test which is applicable for the determination of the loss under the Workmen's Compensation Act would also be applicable to claims filed under the Motor Vehicles Act except to the extent the statutory provisions in either enactment provide otherwise. It follows that in cases where injury has resulted in loss of earning capacity, such loss has to be determined by reference to all the work that the injured was capable of doing at the time of the accident and not by reference to the work that he was performing when he sustained the injuries. That being so, the Tribunal was in the instant case justified in awarding compensation on account of future loss by treating the loss to be only 25% having regard to the nature and extent of disability, no matter the claimant could not after the disability, work as a driver,
9. That brings us to the submission of Mr. Nataraj regarding award of compensation under the head pain and suffering; We find considerable merit in the contention that award of Rs. 5,000/- only-for pain and suffering does not meet the ends of justice. Apart from the fact that the injuries were extensive, the fact that the injured had remained hospitalized for nearly one full year cannot be ignored. The nature of the injuries and the prolonged hospitalization which the same necessitated would justify award of a higher amount under the head compensation for pain and suffering. An additional amount of Rs. 15,000/- would in our opinion sufficiently meet the ends of justice. We accordingly award the said additional amount in favour of the appellant. We do not however, see any room for any other enhancement under any other head nor did Mr. Nataraj make any plea for any such enhancement. All that we need to add is a sum of Rs. 5,000/- towards loss of amenities resulting from the disability which the appellant has sustained on account of the injuries.
10. The Tribunal has not made any award in that regard although the same could and ought to have been made. The net result therefore, is that in addition to the amount already awarded by the Tribunal, the claimant/appellant herein shall be entitled to a further amount of Rs. 20,000/- with interest at the rate of 6% P.A. from the date of the claim petition till deposit.
11. This appeal therefore succeeds but only to the extent indicated above. The award made by the Tribunal shall stand modified accordingly. No costs.