Madras High Court
Royal Sundaram Alliance Insurance Co. ... vs Mr.Harikrishnan on 26 June, 2014
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 26.06.2014 CORAM: THE HONBLE MR. JUSTICE S. MANIKUMAR C.M.A.No.1462 of 2014 Royal Sundaram Alliance Insurance Co. Ltd., No.44&45, Sundaram Towers, Whites Road, Royapettah, Chennai - 14 ... Appellant Vs. 1.Mr.Harikrishnan 2.V.S.Rajkumar Respondents The Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act against the award & Decree dated 02.12.2013 made in M.C.O.P.No.4949 of 2011 on the file of the Motor Accidents Claims Tribunal (VI Judge, Court of Small Causes), Chennai. For Appellant : Ms.C.Harini for Mr.N.Vijayaraghavan JUDGMENT
Respondent aged about 24 years, said to be an electrician sustained fractures in shaft of right femur and other injuries, treated as inpatient between 06.07.2011 and 17.08.2011 for 40 days. He has filed M.C.O.P.No.4949 of 2011 on the file of the Motor Accidents Claims Tribunal (VI Judge, Court of Small Causes), Chennai, claiming compensation of Rs.6,00,000/-. To prove that he has sustained multiple injuries and incurred expenses, the respondent has marked Exs.P2 and P8, discharge summaries issued by Government General Hospital, Chennai and Chengalpet, respectively, Ex.P3, x-ray, Ex.P7, photographs with CD, Ex.P11, disability certificate and Ex.P12, x-ray, taken at the time of assessment.
2. To prove that he was a qualified electrician, he has marked Ex.P4, order appointing him as an Electrician in Audco India Limited, Maraimalai Nagar. To prove that he was employed as an electrician in Audco India Limited, Maraimalai Nagar and earned Rs.4,500/- per month, he has produced Ex.P4, appointment order, Ex.P5, identity card and Ex.P9, qualification certificate as wireman. But he has not examined the employer.
3. Insurance company though disputed the manner of accident and the consequential liability to pay compensation, the claims tribunal on evaluation of pleadings and evidence, held that the driver of the maxicab Van bearing Regn.No.TN21 AC 4887, insured with them was negligent in causing the accident. Though, the quantum of compensation claimed under various heads, is also disputed, on the basis of the medical evidence adduced and avocation pleaded, the claims tribunal, awarded compensation of Rs.4,65,000/- with interest, at the rate of 7.5% per annum from the date of claim, till the date of deposit, as detailed below.
Loss of income for 6 months : Rs. 27,000/-
Transportation, Extra nourishment & Damage to clothes : Rs. 25,000/- Medical expenses : Rs. 5,000/- Pain and suffering : Rs. 40,000/- Disability of 45% at the rate of Rs.2,000/- per percentage : Rs. 90,000/- Loss of future earning capacity : Rs.2,43,000/- Loss of amenities : Rs. 25,000/- Attender : Rs. 10,000/-
4. At the outset, Ms.C.Harini, learned counsel for M/s.Royal Sundaram Alliance Insurance Company Limited, Chennai, appellant herein contended that quantum of compensation awarded to the respondent/claimant is the only challenge in this appeal. Submission of the learned counsel is placed on record.
5. In support of the challenge, learned counsel for the appellant company submitted that the claims tribunal has erred in accepting the extent of disablement as 45% on the basis of the opinion of PW2, Doctor, a stock witness in most of the claim petitions. It is also her contention that the claims tribunal erred in fixing the loss of earning capacity at Rs.2,43,000/- without any basis. Attention of this Court was also invited to the compensation of Rs.90,000/- awarded under the head disability. In sum and substance, she submitted that the claims tribunal ought not to have awarded compensation under above heads and for the abovesaid reasons, sought for reduction.
6. Heard the learned counsel for the appellant and perused the award.
7. First of all to prove the avocation, the respondent/claimant has produced Ex.P9, Qualification certificate for 'Wireman'. He has also marked Ex.P4, order appointing him as an Electrician in Audco India Limited, Maraimalai Nagar. Though, the employer has not been examined, there is no reason as to why, the oral and documentary evidence adduced by the respondent/claimant as regards the educational qualification for wireman and avocation, should be rejected. Therefore, this Court is inclined to accept the contention of the respondent/claimant that, at the time of accident, he was qualified to become an electrician.
8. As regards the nature of injuries, sustained in the accident, upon perusal of Ex.P2, discharge summary, issued by the Government Hospital, Chennai, the claims tribunal has recorded that he has sustained a fracture in the leg. As per the averments in the claim petition, he has sustained a fracture of right leg, both bones, fracture of front bone, right hand elbow, sinus bone fracture and multiple injuries all over body. Discharge summary has revealed that he was treated as inpatient between 06.07.2011 and 17.08.2011 for a period of 40 days. Upon perusal of Ex.P2, discharge summary, the claims tribunal has further recorded that the injury was grievous viz., communited fracture of shaft of right femur, for which interlocking and nailing has been done with raw area, in the right knee mediolous, for which SSG was done. Plaster of Paris slab and Above Knee slab, have been applied. Upon perusal of Ex.P8, discharge summary issued by the Government Hospital, Chengalpet, the claims tribunal has recorded that the respondent/claimant, was again treated in the said hospital between 03.03.2012 and 13.03.2012 for a period of 10 days, and during which period, he underwent a surgery on 05.03.2012.
9. Perusal of Ex.P8, Discharge summary, has further revealed that there was non-union of fracture of right femur, for which bone grafting has been done. Respondent/claimant has produced Ex.P7, photographs with CD and that the claims tribunal has recorded that the injuries were grievous in nature. It is well known that communited fracture means broken into fragments. Ex.P2 and P8, discharge summaries shows that the respondent/claimant was hospitalised in two spells for 50 days. Surgery and bone grafting further indicates that to fuse the non-union of the fracture of shaft of femur, efforts have been taken by the doctors. At this juncture, this Court deems it fit to extract from the medical texts, as to what are the cases of malunion and non-union of bones and the treatment given by the Doctors.
A malunion is a broken (fractured) bone that has healed in an unacceptable position that causes significant impairment. A nonunion is a fracture that has failed to heal after several months.
In malunion, the bone may have healed at a bent angle (angulated), may be rotated out of position, or the fractured ends may be overlapped causing bone shortening. Malunion may be caused by inadequate immobilization of the fracture, misalignment at the time of immobilization, or premature removal of the cast or other immobilizer. Nonunion has several causes. The broken ends of bone may be separated too much (overdistraction), which can occur if excess traction was applied. There could have been excessive motion at the fracture site, either from inadequate immobilization after the injury or from having a cast removed prematurely. Muscle or other tissue caught between the fracture fragments also can prevent healing, as can the presence of infection or inadequate blood supply to the fracture site. Bone disease (e.g., bone cancer) also can prevent healing.
There are two types of nonunions: fibrous nonunion and false joint (pseudarthrosis). Fibrous nonunion refers to fractures that have healed by forming fibrous tissue rather than new bone. Pseudarthrosis refers to nonunions in which continuous movement of the fracture fragments has led to the development of a false joint. Certain types of fractures are associated with a high risk of nonunion, such as fractures of the wrist (carpus), including scaphoid bone; certain fractures of the foot, including navicular fractures and Jones (diaphyseal) fractures of the fifth metatarsal; shoulder long bone fractures (proximal humerus fractures); and some shin bone (tibial) fractures.
The severity of the injury is a strong factor in the healing process. Individuals who have had a severe traumatic fracture, large displacement between fracture fragments, and fractures where the bone was broken into many pieces (comminuted fracture) are at an increased risk of nonunion. Open or compound fractures also are at risk of malunion or nonunion. A condition called compartment syndrome can occur when sever trauma leads to such a degree of swelling that the blood supply is compromised. The result is muscle death around the fracture site and inadequate bone repair.
Risk: Certain lifestyle and health factors may interfere with bone healing. These include smoking, excessive alcohol use, poor nutritional status, poor general health, fitness deficits, and diabetes. Other factors contribute to loss of bone strength and make healing more difficult. These include use of nonsteroidal anti-inflammatory drugs (NSAIDs), use of corticosteroid drugs, other drugs such as anticonvulsants, and the thyroid hormone replacement, thyroxine. Individuals of European or Asian ancestry who have increased risk for osteoporosis and elderly individuals are at increased risk for poor bone healing. Women who have experienced early menopause, late menarche, or the loss of their ovaries, are at increased risk for bone weakness.
Diagnosis History: History is of a fracture that may or may not have been treated by a physician. The individual may report pain, swelling (edema), instability, or deformity at the site of a previously broken bone. If the fracture was in a lower extremity, the individual may report difficulty bearing weight through the limb.
Physical exam: The exam reveals the deformity of a malunion or the instability of a nonunion. Touching with the hands (palpation) may reveal tenderness.
Tests: Plain x-Rays demonstrate the fracture malunion or nonunion. CT Scan, MRI, or bone scan may help further define the condition.
Treatment: Most malunions and nonunions require open surgery to realign the fracture fragments into their normal anatomical position (open reduction) and stabilize the fracture by use of metal plates, rods, screws, and/or wires (internal fixation). Bone graft material may be placed in the surgical site to stimulate fracture healing. Some cases, whether treated surgically or with noninvasive techniques (closed reduction), benefit from the use of electrical, electromagnetic, or ultrasonic stimulation to promote fracture healing and bone growth. Electrical stimulation may be administered by a self-contained device surgically implanted internally at the fracture site or by multiple electrodes placed over the skin near the fracture site. In some studies of fractures of the radius, lateral malleolus, and tibia, low-intensity pulsed ultrasound treatments administered through the skin adjacent to the fracture site have been shown to speed healing. Malunion is treated by surgically breaking the malunion (osteotomy), followed by ORIF. Infection requires surgical removal of any infected bone or tissue (dibridement), followed by intensive antibiotic treatment.
Treatment of nonunion may be complemented with a synthetic bone graft or one that is obtained from the individual (autograft, autogenous graft), from another individual (allograft, homogeneous graft), or from an animal (xenograft, heterogeneous graft). Newer approaches are using recombinant bone morphogenic protein and bone marrow aspirates. Bone marrow may be harvested from the individual's hip bone (iliac crest) and injected directly into the fracture site guided by external imaging (fluoroscopy). Treatment of pseudarthrosis involves removal (resection) of the false joint tissue before placement of the bone graft. Treatment of delayed unions and nonunions may also include functional bracing of the fracture site.
In some instances (e.g., some fractures of scaphoid), nonunion causes only slight problems, and the condition is left untreated. Likewise, malunion may be left untreated if it causes little or no functional deficit. For example, clavicle fractures may be allowed to heal in an imperfect but acceptable alignment (bayonet apposition) without resulting functional loss. Similarly, mild angulation of a humerus fracture does not impair use of the upper extremity.
Prognosis: Treatment of malunion by ORIF usually has a good outcome. Osteotomy can reduce deformity and relieve functional impairment, but this places the bone at risk of fracture. Minor degrees of malunion are common and may not have a significant effect on function or appearance.
Bone grafting usually is a successful treatment for nonunion, especially in the long bones of the body. Electrical and electromagnetic bone growth stimulators continue to progress and are especially advantageous in management of infected nonunions and in situations where surgery is not advisable. Low-frequency ultrasound therapy may decrease fracture-healing time in lower extremity nonunions by as much as two months. Bone marrow injection into the site of nonunion may resolve the nonunion without need for further surgery.
Complications: A malunion can result in a functional impairment with limited mobility. Any malunion can put increased stress on other joints causing pain and/or accelerated wear. Major degrees of malunion can cause impairment in function and significant deformity and can lead to degenerative arthritis. Malunion in a finger can interfere with the use of other fingers. Nerve damage can occur, especially with an elbow fracture.
A malunion in a leg can result in an abnormal gait.
A nonunion may be painless, but the fracture will be unstable and the bone less strong. Nonunions in a lower extremity may result in reliance upon assistive devices (e.g., crutches, wheelchairs) for mobility.
Return to Work (Restrictions/ Accommodations): The restrictions and accommodations are determined by the specific fracture, the severity of the malunion or nonunion, and job requirements. If surgical correction is necessary, work duties may need to be modified temporarily to avoid use of the affected limb.
10. As per the Medical Texts, some of the aspects to be taken note by a Doctor, in the case of failure to recover are, Regarding diagnosis:
Does individual have a malunion or a nonunion?
Does individual report pain, instability, or deformity at the site of a previous fracture?
Has malunion or nonunion been confirmed by x-rays, bone scan, or other imaging studies?
Have conditions with similar symptoms been ruled out?
Regarding treatment:
Was adequate time allowed for bone to heal?
Did individual require functional bracing of the limb?
Did individual require ORIF?
Was bone graft done? Bone marrow injection?
Did individual use low-intensity ultrasound? Electrical bone stimulation?
Was rehabilitation program prescribed? Was individual compliant?
Regarding prognosis:
Does individual continue to have risk factors for delay of fracture healing (e.g., corticosteroid use, smoking, malnutrition)?
What are individual's functional limitations as a result of the malunion/nonunion?
Is individual active in physical therapy or rehabilitation program?
Does individual have any comorbid conditions that could influence length of disability (e.g., diabetes, bone cancer, osteoporosis)?
Has individual experienced any complications, such as nerve damage, abnormal gait, or degenerative arthritis?
Is individual's employer able to accommodate necessary restrictions and work modifications?
11. PW2, Doctor, who examined the respondent/claimant, with reference to medical records, has deposed that the shaft of femur in the right leg was fractured into pieces. He has also spoken to about the details of the treatment indicating surgeries. During the clinical examination, he has observed that the height of the right leg was increased by one inch. He had felt stiffness at the situs. Based on the observation and considering the gravity of the injuries, discomfort and the physical impairment caused, PW2, Doctor has assessed the disablement as 60% and issued Ex.P11, disability certificate. The tribunal was not inclined to accept the same, as the whole body disablement in relation to the avocation pleaded by the respondent/claimant and by observing that the assessment made by PW2, Doctor, is on the higher side, reduced the same to 45%.
12. Though, before the claims tribunal, M/s.Royal Sundaram Alliance Insurance Co. Limited, the 2nd respondent herein has argued, that the medical evidence adduced, by the respondent/claimant ipso facto need not be relied on for the purpose of computing the compensation claimed under various heads, including loss of future earning, placing reliance on the decisions in New India Assurance Company Ltd., Vs. C.K.Ramesh, reported in 2011 ACJ 281 and the decision of Apex Court, in Vidyadhar Vs. Manikrao, reported in AIR 1999 SC 1441, the claims tribunal has overruled the objections.
13. Having regard to the oral testimony of respondent/claimant, that at the time of accident, he was working as an electrician, in Audco India Limited, Maraimalai Nagar and earned Rs.4,500/- per month and when he was about to be confirmed of training, lost his employment opportunity due to the disablement, the claims tribunal, placing reliance on the decision in Rajkumar Vs. Ajaykumar, 2011 ACJ (1) to the effect wherein, it has been held that suitable percentage of disablement, can be taken into consideration, for the purpose of assessment of the loss of earning capacity in relation to the avocation, decided to compute the same, by taking into consideration only, 25% as the whole body disablement and at this juncture, this Court deems it fit to consider the principles of law set out in Raj Kumar's case, which is extracted hereunder.
"General Principles relating to compensation in injury cases:
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, the learned counsel for M/s.Royal Sundaram Alliance Insurance Company Limited, appellant herein submitted that the respondent/claimant has already been awarded compensation of Rs.90,000/- under the head disability and further contended that the assessment towards loss of future earning capacity would amount to double compensation and hence not warranted on the facts and circumstances of this case, this Court is not inclined to subscribe to the said contentions, for the reason, that as an electrician, one may have to stand for a considerable time for fixing the electrical cables and appliances. A person, whether he is a painter, mason or wireman or engaged in any other skilled work, may have to stand for considerable time, and would certainly find it difficult to carry on his work, as before, with the maximum utility of the limbs, which are now shattered, and consequently resulted in functional disablement.
15. As observed earlier, the fracture sustained by the respondent is communited. He was hospitalised for nearly 50 days, underwent a surgery and on 05.03.2012 there was also bone grafting. Despite, interlocking and nailing and bone grafting, the injury has resulted in functional disablement at 60%. Though, the claims tribunal has reduced the extent of disablement, to 45%, yet, it has not applied the same, for the purpose of computing the loss of earning capacity. The claims tribunal by fixing the monthly income of the injured as Rs.4,500/- has computed the loss of earning capacity only for 25% disablement. Hands and feet are the tools for any skilled worker. As the respondent/claimant has produced, documents, Ex.P4, appointment order, Ex.P5, identity card, Ex.P6, call letter and Ex.P9, educational qualification to prove that he was qualified to be a wireman, income fixed as Rs.4,500/- per month cannot be said to be grossly excessive, for the reason that even in respect of a labourer, who died in an accident in 2004, in Sri Ramachandrappa Vs. The Manager, Royal Sundaram Alliance Insurance Company Ltd., reported in 2011 (2) TNMAC 190 SC, the Hon'ble Supreme Court has fixed the monthly income of the deceased as Rs.4,500/-. The Supreme Court found fault with the claims tribunal, in reducing the monthly income from Rs.4,500/- to Rs.3,000/- for the purpose of computing the loss of contribution to the family and by fixing Rs.4,500/- as monthly income computed the loss of contribution to the family.
16. A qualified electrician cannot at any stretch of imagination be treated as a labourer. Educational qualifications of the skilled, have to be respected. In such a view of the matter, though, the employer has not been examined, having regard to the date of accident i.e., 06.07.2011 and the documents stated supra, this Court is of the view that the determination of monthly income as Rs.4,500/- for the purpose of computing the loss of earning and loss of future earning capacity, is not erroneous and arbitrary.
17. In this juncture, this Court is also inclined to consider some of the decisions pertaining to a painter, who suffered disablement and consequently, assessed to have lost his future earning capacity. In Yadava Kumar v. National Insurance Co. Ltd., reported in 2010 (10) SCC 341, a painter sustained fracture of right limb and consequential disablement. The Doctor assessed 33% disability, in respect of right upper limb, 21% in left upper limb and on the whole body 20%. Due to the injuries sustained, he was not able to engage himself, as painter, as before and thus, lost his earning capacity. Despite his plea and evidence, the Court below refused to award any amount towards loss of future earnings. In the abovesaid circumstances, the Supreme Court held that, While assessing compensation in accident cases, the High Court or the Tribunal must take a reasonably compassionate view of things. It cannot be disputed that the appellant being a painter has to earn his livelihood by virtue of physical work. The nature of injuries, amply demonstrate that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome. The courts are statutorily charged with a responsibility of fixing a "just compensation". It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of "just compensation" obviously suggests application of fair and equitable principles and a reasonable approach on the part of the tribunals and the courts. Both the courts and the tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result becomes just and equitable. (Paras 14, 15, 18 and 20) The High Court and the Tribunal must realise that there is a distinction between compensation and damages. The expression compensation may include a claim for damages but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation. (Para 17)
18. In yet another case in B.T.Krishnappa v. D.M., United India Insurance Co. Ltd., reported in 2010 ACJ 1971, the claimant sustained compound fractures in the tibia and fibula bones, injuries in the head and other parts of the body. He was hospitalised for 14 days and continued his treatment for six months. The injured was a Mason, aged 50 years. The Doctor, who examined the injured, opined that the injured suffered 48% disability and cannot do the work, as Mason or any other construction work. Though the Tribunal has accepted 48% disablement, but assessed the loss of earning capacity only at 20% and awarded Rs.1,55,000/-. The High Court accepted the Tribunal's assessment of the whole body disablement at 20% and further observed that the compensation awarded under the heads, loss of amenities, enjoyment of life and loss of earning during the period of hospitalistion, were on the lower side. The High Court allowed a further sum of Rs.34,000/- for future medical expenses, but did not deal with the aspect of future loss of earning. By observing that the High Court's order starkly lacking in any details, on assessment of compensation, under the heads, loss of amenities and enjoyment of life and loss of earning during the period of hospitalisation and that the injuries, resulting in irreversible damage to his right leg, would pose difficulties for him, in carrying out his avocation, as a mason and taking note of the decisions in Concord India Insurance Co. Ltd., v. Nirmala Devi [1980 ACJ 55 (SC)], Divisional Controller, Karnataka State Road Transport Corporation v. Mahadeva Shetty [2003 ACJ 1775 (SC)] and R.D.Hattangadi v. Pest Control (India) Pvt. Ltd., [1995 ACJ 366 (SC)], the Supreme Court remanded the matter back to the High Court, with an expectation that the High Court would consider the case of enhancement, keeping in mind the factual aspects and in the light of the views expressed by the Apex Court in various decisions. The judgments referred to in B.T.Krishnappa's case (cited supra), at Paragraphs 15 to 19, are reproduced hereunder:
.....This Court in Concord of India Insurance Co. Ltd., v. Nirmala Devi, 1980 ACJ 55 (SC), has observed that:
....The jurisprudence of compensation for motor accidents must develop in the direction of no fault liability and the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales......... [at page 56, para 2]
16. In the case of Divisional Controller, Karnataka State Road Trans. Corpn. v. Mahadeva Shetty, 2003 ACJ 1775 (SC), where the claimant was also a mason, this court held that:
"...It has to be borne in mind that compensation for loss of limb or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance to the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for the mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life which has been curtailed because of physical handicap. The normal expectation of life is impaired..." [at page 1780, para 15]
17. Long expectation of life is connected with earning capacity. If earning capacity is reduced, which is the case in the present situation, that impacts the life expectancy as well.
18. Therefore, while fixing compensation in cases of injury affecting earning capacity the court must remember:
"...No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury 'so far as money can compensate'; because it is impossible to equate the money with the human suffering or personal deprivations. Money cannot (renew a broken and shattered physical frame." [See R.D. Hattangadi v. Pest Control (India) Pvt. Ltd., 1995 ACJ 366 (SC), at page 370, para 10].
19. Further, the court in the same case also held that:
"In its very nature whenever a Tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards." [at page 370, para 12]
19. The avocation pleaded in the case on hand is a wireman. But the nature of work in both cases, involve standing at different heights to carry out the job with 45% functional disability in the legs, a skilled worker, would find it difficult, to carry out his work, as before.
20. In B.Kothandapani v. Tamil Nadu Transport Corporation Ltd., reported in 2011 (5) SCC 420, the Supreme Court held that an injured is entitled to claim compensation under both heads, disability and loss of earning capacity.
21. In the light of the above discussion and the decisions stated supra, this Court is not inclined to accept the contentions of the insurance company on the challenge to the quantum of compensation, more particularly, to the application of multiplier method for assessing the loss of future earning capacity. As stated supra, the compensation awarded under the other heads, is not challenged.
22. For the reasons stated supra, the award is confirmed and the Civil Miscellaneous Appeal is dismissed. No Costs. Consequently, the connected Miscellaneous Petition is closed.
23. Consequent to the dismissal of the appeal, the appellant Insurance Company is directed to deposit the entire award amount with proportionate accrued interest at the rate of 7.5% per annum, less the amount already deposited, if any, to the credit of M.C.O.P.No.4949 of 2011 on the file of the Motor Accidents Claims Tribunal (VI Judge, Court of Small Causes), Chennai, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the 1st respondent/claimant is permitted to withdraw the award amount with proportionate accrued interest and costs, by making necessary application.
26.06.2014 Index: Yes S. MANIKUMAR, J.
skm To The Motor Accident Claims Tribunal, VI Judge, Court of Small Causes), Chennai.
C.M.A.No.1462 of 201426.06.2014