Madras High Court
Dr.M.Hemachand vs I.S.Shaji on 8 December, 2010
Bench: K.Mohan Ram, S.Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.12.2010
C O R A M
THE HONOURABLE MR.JUSTICE K.MOHAN RAM
AND
THE HONOURABLE MR.JUSTICE S.PALANIVELU
Civil Miscellaneous Appeal Nos.2210 and 3319 of 2010
and M.P.No.1 of 2010
Dr.M.Hemachand .... Appellant in CMA No.2210 / 2010
& 1st respondent in CMA No.3319 / 2010
-Vs.-
1. I.S.Shaji
(Was set exparte in the Trial court) ... 1st respondent in CMA No.2210 /2010
& 2nd respondent in CMA No.3319 /2010
2. The National Insurance Co. Ltd.,
No.751, Anna Salai,
Chennai 600 002 .... 2nd respondent in CMA No.2210/2010
& appellant in CMA No.3319 / 2010
Prayer:- Civil Miscellaneous Appeals filed under 173 of the Motor Vehicles Act, against the judgment and decree, dated 20.08.2009 made in MACTOP No.315 of 2007 on the file of the V Judge, Motor Accident Claims Tribunal (Court of Small Causes), Chennai.
For Appellant in CMA No.2210 / 2010
& for Respondent-1 in CMA No.2210 / 2010 : Mr. V.Mohan Choudary
For Respondent-2 in CMA No.2210 / 2010
& for Appellant in CMA No.3319 / 2010 : Mr. S.Vadivel
- - -
C O M M O N J U D G M E N T
(JUDGMENT OF THE COURT WAS DELIVERED BY JUSTICE K.MOHAN RAM Being aggrieved by the award, dated 20.08.2009, passed in MCOP No.315 of 2007 on the file of the Motor Accident Claims Tribunal (V Judge, Court of Small Causes), Chennai, the claimant and the insurer have filed CMA Nos.2210 of 2010 and 3319 of 2010, respectively.
2. The case of the claimant is that on 13.10.2006 at about 13.00 hours, when he was riding his motor cycle bearing Registration No.PY01-Z-2221 slowly and cautiously in Chengalam Vilakkum Maruthu Road, from south to north, the lorry bearing Registration No.KRO 3958 came rashly and negligently in the said road from opposite direction in the extreme wrong side and hit against the claimant's motor cycle and the claimant sustained grievous injuries. The first respondent-S.Shaji is the owner of the vehicle and the National Insurance Company Limited is the insurer of the vehicle and hence both are liable to pay compensation. It is the further case of the claimant that in the accident, his left lower limb was badly damaged with crush injury left leg with compound and comminuted fracture of both bones, crushed foot with amputated big toe and with bone, skin and soft tissue loss with degloving from lower third of thigh and poor distal vascularity resulting in emergency AK amputation of left lower limb done under SAB.
3. According to the claimant, he was working as a Doctor in Mercy Nature Cure Centre, Sengottai, Kottayam District and earning a sum of Rs.15,000/- per month and Rs.10,000/- per month from private practice. Because of the injuries and amputation of his left leg, he was terminated from service and he could not work as a Doctor. It is the case of the claimant that he is a specialist in Naturopathy medicine and yoga and because of the amputation of his left leg, he cannot treat his patients by teaching them yoga and he cannot do massage and attend to spa.
4. Before the Tribunal, the owner of the vehicle remained exparte. The Insurance Company got permission under Section 170 of the Motor Vehicles Act and filed a counter statement interalia contending as follows:-
The insurer denied all the allegations contained in the petition and put the claimant to prove the age, occupation and income of the claimant and the injuries, treatment and disability suffered by him. The insurer denied that the vehicle was validly insured with them. It was further contended that the accident had occurred solely due to the claimant's own negligence. The insurer further contended that the amount of compensation claimed is highly excessive.
5. Before the Tribunal, the claimant was examined as P.W.1 and the Doctor has been examined as P.W.2 and Exs.P-1 to P-26 have been marked. On the side of the respondent, no oral or documentary evidence was adduced. On a consideration of the evidence available on record, the Tribunal held that the accident had occurred due to the rash and negligent driving of the lorry by its driver and accordingly held that the owner is liable to pay compensation. The Tribunal further held that the vehicle involved in the accident has been insured with the insurer, hence the insurer was also held liable to pay compensation. Though the total claim of the claimant was Rs.75,00,000/-, a sum of Rs.9,20,400/- was awarded as compensation. Being aggrieved by that, both the claimant as well as the insurer are before this Court.
6. Heard the learned counsel on either side.
7. Mr. V.Mohan Choudary, learned counsel for the claimant / appellant in CMA No.2210 of 2010 and for the first respondent in CMA No.3319 of 2010 made the following submissions:-
The Tribunal erred in taking into account the income of the claimant at Rs.14,000/- per month, whose left leg has been amputated above knee, overlooking the fact that the claimant, who was 26 years at the time of accident was a Doctor by profession in Naturopathy and Yoga and the evidence has been adduced by way of Ex.P-17-copy of the Degree Certificate, Ex.P-19-appointment letter issued by Mercy Nature Cure Centre, Ex.P-20-Relieving Order of termination of employment. The Tribunal has erred in taking into account the loss of income only for a period of nine months, when infact the claimant has been terminated from service. He further submitted that considering the fact that the claimant has suffered 85% permanent disability, the Tribunal ought to have applied the multiplier method and assessed the loss of income. He further submitted that the Tribunal has failed to consider the future loss of income and has erroneously awarded only a sum of Rs.1,70,000/- as compensation for continuing and permanent disability. He further submitted that the compensation awarded under various other heads are also on the lower side.
8. Learned counsel for the claimant further submitted that the claimant, who has been examined as P.W.1, has clearly stated that because of the amputation of his left leg above knee (from middle of the thigh), he cannot practice yoga and he cannot demonstrate yogic exercises to the patients whom he had to treat; the nature of treatment given by a Naturopathy and yogic Doctor includes the teaching of yoga exercises, massage and spa; because of the amputation of the left leg, the claimant cannot stand without support and demonstrate yoga exercises and similarly he cannot massage the patients and attend to the patients in the Spa and that was the reason why, he was terminated from service by his employer; Ex.P-17-the degree certificate issued by the Tamil Nadu Dr. MGR Medical University which proves the qualification of the claimant and Ex.P-19-appointment order proves the employment of the claimant and his salary and Ex.P-20-relieving order of termination proves that because of the amputation of his left leg, the claimant was terminated from service. He further submitted that the Doctor, P.W.2, has clearly deposed that the permanent disability suffered by the claimant is 85% and he has clearly spoken to about the disabilities that is being faced by the claimant in the day-to-day life; Ex.P-26 is the disability certificate issued by P.W.2; Ex.P-13 is another disability certificate issued by the Government General Hospital, Pondicherry. In support of his above said contentions, the learned counsel based reliance on the following decisions:-
(i) 2010 ACJ 1971 (B.T.Krishnappa v. D.M., United India Insurance Co. Ltd.).
(ii) 2010 (2) TN MAC 356 (SC) (Yadava Kumar v. The Divisional Manager, National Insurance Co. Ltd.).
(iii) 2010 ACJ 1289 (National Insurance Co. Ltd. v. T.A.Nicholas).
(iv) 2010 ACJ 487 (S.Suresh v. Oriental Insurance Co. Ltd.).
(v) (2009) 6 Supreme Court Cases 121 (Sarla Verma (Smt) and Others v. Delhi Transport Corporation and another).
(vi) 2006 ACJ 2703 (Cholan Roadyways Corporation Ltd. v. Ahmed Thambi).
9. Countering the said submissions, the learned counsel for the insurer submitted that except marking Exs.P-19 and 20, none have been examined to show that the claimant was employed with Mercy Nature Cure Centre; the claimant was only appointed as a probationer and no document has been produced that he was appointed permanently; the Tribunal has fixed the monthly income at Rs.14,000/-, per month, without any basis; there is no evidence on record to show that the claimant was earning by way of private practice; it is in evidence that the claimant was in the hospital as inpatient for only 16 days and therefore the loss of earning assessed by the Tribunal is not correct; the compensation awarded towards pain and suffering is on the higher side. He further submitted that as per the Workmen's Compensation Act, the injury, namely, amputation of the leg above knee, falls under Item No.19 of Part II of Schedule I of the Act and as per the said provision, 60% permanent disability can alone be fixed, therefore, the fixing of disability at 85% by the Tribunal is wrong. He further submitted that on the basis of Exs.P-15 and P-16 the sum of Rs.3,90,000/- has been awarded towards purchase of artificial limb, when the claimant had not produced the artificial limb, even though the purchase of the same was questioned during the course of his cross-examination. He further submitted that the original receipt for purchase of the artificial limb has not been produced. He further strenuously contended that though the left leg of the claimant has been amputated above knee, still he can get employment as teacher in naturopathy and yogic sciences. He further submitted that even though the claimant cannot actually demonstrate yogic exercises personally, with the aid of CDs and DVDs, he can teach yogic exercises to the students and therefore contended that it cannot be said that the claimant cannot attend to any avocation as before. He further submitted that the award of 9% interest per annum is not correct and only an interest at the rate of 7.5% per annum could be awarded.
10. We have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record.
11. At the outset, it has to be pointed out that the learned counsel for the insurer has not questioned or challenged the finding of the Tribunal regarding the negligence on the part of the driver of the vehicle, therefore, the said finding of the Tribunal is confirmed.
12. Now the question that remains to be considered is as to whether the compensation awarded by the Tribunal is correct. While not being satisfied by the quantum of compensation awarded by the Tribunal, the claimant has filed one appeal, the insurer, being aggrieved by the quantum of compensation awarded by the Tribunal, has also filed another appeal.
13. In this context, the nature of the injuries sustained by the claimant, the percentage of disability suffered by him and whether he has lost his future earning capacity, etc., have to be assessed.
14. Before considering the evidence on record, it will be useful to refer to the decisions relied upon by the learned counsel for the claimant.
15. In 2010 ACJ 1971 (referred to supra) the claimant sustained compound fractures in tibia and fibula bones of right leg and injuries on head and all over body; he was hospitalised for 14 days and remained under treatment for six months; he was aged about 50 years and he was a mason by profession; the Doctor opined that injured suffered 48% disablement and he cannot work as mason and do any other manual work; the Tribunal accepted 48% disablement but assessed loss of earning capacity at 20% and awarded Rs.1,55,000/-; the High Court accepted Tribunal's assessment of whole body disability at 20% and observed that Tribunal has paid compensation under the heads 'loss of amenities and enjoyment of life and loss of earnings during laid up period' on the lower side; the High Court allowed further Rs.34,000/- for future medical expenses but did not deal with the aspect of future loss of earnings; against that, the claimant therein preferred an appeal to the Apex Court; the Apex Court, in paragraphs 15 to 18, has laid down as follows:-
"15. Although the Tribunal concluded by holding that the assessment of future loss of earnings should be made only at 20%, we feel that the High Court, while making the observation that the Tribunal's compensation under the heads "loss of amenities and enjoyment of life and loss of earnings during laid up period" was on the lower side, should have given reasons and made its own assessment under these heads, since High Court, as the first appellate authority, is an authority both on facts and law. The High Court's orders starkly lack in any details on assessment of compensation under these heads. These areas need proper introspection and a more sensitive approach as the appellant being a mason and a workman represents the weaker section of the community. The appellant had suffered an irreversible damage to his right leg which will pose difficulties for him in carrying out his avocation as a mason. This Court in Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi and Ors. MANU/SC/0384/1979 : (1979) 4 SCC 365, 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...
16. In the case of Divisional Controller, KSRTC v. Mahadeva Shetty and Anr. MANU/SC/0529/2003 : (2003) 7 SCC 197, where the claimant was also a mason, this Court held that:
...It has to be borne in mind that compensation for loss of limbs 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 with 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 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....
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 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 sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame." [See R.D. Hattangadi v. Pest Control (India) (P) Ltd. and Ors. MANU/SC/0146/1995 : (1995) 1 SCC 551]"
16. 2010 (2) TN MAC 356 (SC) (referred to supra) is a case where compensation was claimed by the claimant, who was a painter by profession and he was aged about 30 years in respect of the injuries sustained by him; the Tribunal as well as the High Court did not grant any compensation for loss of future earning; while considering that, the Apex Court has laid down as follows:-
"20. The High Court and the Tribunal must realize that there is a distinction between compensation and damage. The expression compensation may include a claim for damage 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.
21. Going by these principles, as we must, this Court is constrained to observe that in this case the approach of the High Court in totally refusing to grant any compensation for loss of future earning is not a correct one."
17. In 2010 ACJ 487 (referred to supra) the High Court accepted the plea of the Insurance Company that as per the schedule to the Workmen's Compensation Act, 1923, loss of a leg on amputation amounted to a 50% reduction in the earning capacity; the High Court held that being an injury, specified in Schedule I, medical opinion could not be relied upon in terms of Section 4 (1) (c) (ii) of the Act; accordingly, applying the percentage of loss of earning capacity, as specified in Part II of Schedule I, the High Court reduced the compensation by 50%; the correctness of the said judgment was questioned before the Apex Court; the Apex Court basing reliance on the decision of the Apex Court reported in 1976 ACJ 141 (SC) (Pratap Narain Singh Deo v. Shrinivas Sabata) held that on account of amputation of the right leg of the claimant below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the disablement and therefore he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving licence under the Motor Vehicles Act.
18. In 2006 ACJ 2703 (referred to supra) a Full Bench of this Court has laid down the parameters to be applied while assessing the compensation in respect of a motor accident claims and in paragraph 19 the Full Bench has laid down as follows:-
"19. Thus, in order to avoid any future confusion and to bring more clarity and transparency in the award of damages, it is necessary that the tribunal, while awarding damages, should itemise the award under each of the head namely, pecuniary losses and non-pecuniary losses. In the non-pecuniary losses the tribunal shall consider a) pain and suffering, b) loss of amenity, c) loss of expectation of life, hardship, mental stress, etc (d) loss of prospect of marriage and under the head pecuniary losses, the tribunal shall consider loss of earning capacity and loss of future earnings as one component apart from medical and other expenses and loss of earning, if any from the date of accident till the date of trial. When loss of earning capacity is compensated as also the non-pecuniary losses under (a) to (d), permanent disability need not be separately itemised."
19. In (2009) 6 Supreme Court Cases 121 (referred to supra) in paragraph 24, the Apex Court has laid down as follows:-
" 24. In Susamma Thomas (1994) 2 SCC 176 : 1994 SCC (Cri) 335, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words `actual salary' should be read as `actual salary less tax']. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
20. In 2010 ACJ 1289 (referred to supra) it has been laid down that while fixing the disability for assessing the loss of earning capacity, the avocation of the claimant and the extent to which he can continue to pursue the avocation have to be looked into; in that case, the Division Bench of this Court confirmed the finding of the Tribunal that the injured / claimant, who was a final year B.E. Student in computer science, aged about 22 years, would have earned a sum of Rs.10,000/- per month was confirmed by the Division Bench; in the same decision, for the loss of amenities, loss of marital prospects and for the inconvenience, hardship, frustration and mental stress, the Claims Tribunal had awarded a sum of Rs.1,50,000/- and the same was confirmed by the Division Bench.
21. In an accident, if a man is disabled for a work, which he was doing before the accident, that he has no talents, skill, experience or training for anything else and he is unable to find any work, manual or clerical, such a man for all practical purposes has lost all earning capacity he possessed before and he is required to be compensated on the basis of total loss. An injured person is compensated for the loss which he incurs as a result of physical injury and not for physical injury itself. In other words, compensation is given only for what is lost due to accident in terms of an equivalent in money in so far as the nature of money admits for the loss sustained. In an accident, if a person loses a limb or eye or sustains an injury, the Court while computing damages for the loss of organs or physical injury, does not value a limb or eye in isolation, but only values totality of the harm which the loss has entailed the loss of amenities of life and infliction of pain and suffering: the loss of the good things of life, joys of life and the positive infliction of pain and distress.
22. In estimating the financial or pecuniary loss, the Court must first form an opinion from the evidence and probabilities in the case, of the nature and extent of the loss. While estimating the loss of earnings, the Court must first decide what the claimant would have earned if the accident had not happened, allowing for any future increase or decrease in the rate of earnings. It is also necessary for the Court to decide how long the loss will continue, whether there is incapacity for life or for a shorter period. The Court should also make an estimate of the amount, if any, which the claimant could still earn in future, notwithstanding disabilities sustained by him in the accident. Further, in a case where the claimant claims medical and nursing expenses, the Court must find as a fact what expenses have already been incurred and must estimate from the evidence the expenses which will be incurred in future. Future promotions, increments, revisions of pay are in the domain of many imponderables and the Court should bear them in mind while assessing future loss of income. While estimating future loss of income, the Court can take into account the future prospects of the injured or the deceased of earning more income by way of promotions or otherwise.
23. In all cases of injury or permanent disablement 'multiplier method' cannot be mechanically applied to ascertain the future loss of income or earning power. It depends upon various factors such as nature and extent of disablement, avocation of the injured and whether it would affect his employment or earning power, etc. and if so, to what extent. If there is categorical evidence that because of injury and consequential disability, the injured lost his employment or avocation completely and has to be idle for the rest of his life, in that event loss of income or earnings may be ascertained by applying the 'multiplier method'. Mainly it depends upon the avocation or profession or nature of employment being attended to by the injured at the time of accident.
24. Keeping the aforesaid principles in mind, we have to ascertain whether due to the permanent disability suffered by the claimant, he will be in a position to attend to his avocation as before or whether he can find some other alternative employment commensurate with his educational qualification or some other kind of employment and depending upon the finding to be arrived at on the aforesaid aspects, the compensation has to be assessed.
25. Admittedly, the claimant was aged 26 years at the time of accident; he was a Doctor by profession in Naturopathy and Yoga and his left leg above knee (from middle of the thigh) has been amputated; P.W.1 has clearly stated that because of the amputation, he cannot practice yoga and he cannot demonstrate yogic exercises to the patients, whom he had to treat; the nature of treatment given by a Naturopathy and yogic Doctor includes the teaching of yoga exercises, massage and spa; because of the amputation of the left leg, the claimant cannot stand without support and demonstrate yoga exercises and similarly he cannot massage the patients and attend to the patients in the Spa and that was the reason why, he was terminated from service by his employer; Ex.P-17 is the degree certificate issued by Tamil Nadu Dr. MGR Medical University which proves the qualification of the claimant and Ex.P-19 is the appointment order which proves the employment of the claimant and his salary and Ex.P-20 is the relieving order of termination, which proves that because of the amputation of his left leg, the claimant was terminated from service. It is seen that the Doctor, P.W.2, has clearly deposed that the permanent disability suffered by the claimant is 85% and he has clearly deposed about the disabilities that is being faced by the claimant in his day-to-day life. Ex.P-26 is the disability certificate issued by P.W.2 and Ex.P-13 is another disability certificate issued by the Government General Hospital, Pondicherry. The Doctor, P.W.2, has elaborately deposed that the inconveniences and difficulties that will be faced by the claimant in his day-to-day life. Considering the nature of the injuries sustained and the disabilities faced by the claimant, the Doctor has assessed the disability at 85% and the same has been accepted by the Tribunal. But the contention of the learned counsel for the insurer is that as per the Workmen's Compensation Act the injury, namely, the amputation of the left leg above knee falls under Item No.19 of Part II of Schedule I of the Act and as per the said provision, 60% permanent disability can alone be fixed and therefore, according to him, the fixing of disability at 85% by the Tribunal is wrong.
26. In this context, it will be useful to refer to a decision reported in 2010 ACJ 487 (referred to supra). In that case, a similar contention was raised by the insurer and the same was accepted by the High Court and the High Court held that being an injury, specified in Schedule I, medical opinion could not be relied upon in terms of Section 4 (1) (c) (ii) of the Workmen's Compensation Act and accordingly, applying the percentage of loss of earning capacity, as specified in Part II of Schedule I, the High Court reduced the compensation by 50%, but on appeal, the Apex Court, by relying upon a decision reported in 1976 ACJ 141 (SC) (referred to supra) held that on account of amputation of the right leg of the claimant below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the disablement and therefore he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving licence under the Motor Vehicles Act.
27. The aforesaid decision squarely applies to the facts of this case. In this case, the left leg above knee (from middle of the thigh) of the claimant has been amputated. The claimant, who is a Doctor by profession in Naturopathy and Yoga, could not practice as a Doctor because of the amputation and that was the reason why he was terminated from service. P.W.1 has clearly stated that as a Doctor he has to teach to the patients by actually demonstrating the yogic exercises and correct the wrong postures of the patients by personally attending on them and because of the amputation of his left leg, he cannot practically demonstrate the yogic exercises and he cannot bend and correct the wrong postures of the patients and therefore practically he cannot teach yogic exercises to the patients. The contention of the learned counsel for the insurer is that if the claimant is unable to practice as a Doctor, he can still be employed as a teacher with his qualification. But we are unable to countenance the said submission, because, as a teacher also, he has to demonstrate yogic exercises to the students. The contention of the learned counsel for the insurer that he can teach yogic exercises by way of CDs and DVDs is an extreme submission. Of course, a teacher can use CDs and DVDs to show various postures involved in yoga, but a teacher, who himself demonstrates the yogic exercises, will be in a better position to teach the students and while making the students to do the yogic exercises, if they do not do it properly, then, the teacher is expected to correct the students and demonstrate it personally, but, in the case of the claimant, because of the amputation of the left leg above knee (from middle of the thigh) he cannot do the aforesaid things. Even for standing, he had to use the artificial limb or clutches and therefore we are unable to accept the contention of the learned counsel for the insurer. Though, as per the provisions contained in the Workmen's Compensation Act, the amputation of the leg above knee, falls under Item No.19 of Part II of Schedule I of the Act and as per the said provision, 60% permanent disability can alone be fixed, since on account of the amputation of the left leg above knee (from middle of the thigh), the claimant is rendered unfit to be employed as a Doctor, which employment he was in at the time of accident resulting in the disablement it has to be held that he has lost 100% of his earning capacity and therefore we are unable to accept the said contention of the learned counsel for the insurer and we have no hesitation to hold that the claimant has lost 100% of his earning capacity.
28. Further, it has to be pointed out that it has not been brought out in evidence that he is qualified in any other field and get employment in any other field and as such he will not be in a position to get a job in any other field of employment and therefore it has to be held that he has lost 100% of his earning capacity. This aspect has not been properly considered by the Tribunal and therefore we are of the considered view that the Tribunal has erred in not applying the multiplier method in assessing the pecuniary loss.
29. Ex.P-17 is the Degree Certificate issued by the Tamil Nadu Dr. M.G.R. Medical University, which proves the qualification of the claimant, as a Doctor. Ex.P-19 is the appointment order issued by Mercy Nature Cure Centre and in that the salary of the claimant, as a probationer, has been fixed at Rs.10,000/- and after completion of the probation his salary was fixed at Rs.15,000/-. But, because of the amputation of the left leg above knee (from middle of the thigh) his services were terminated, as evidenced by Ex.P-20-Relieving Order and as discussed above, the claimant has lost his employment opportunities and as a result lost his earning capacity. Though P.W.1 has stated that he was earning a sum of Rs.10,000/- from private practice, there is no other corroborative evidence either oral or documentary to prove the same and the Tribunal has fixed the monthly income at Rs.14,000/-.
30. Learned counsel for the insurer submitted that except marking Exs.P-19 and P-20, no other witness has been examined to prove the same. The contents of Exs.P-19 and P-20 have not been seriously challenged before the Tribunal. Ex.P-17 is the degree certificate issued by the Medical University and in the light of Ex.P-17, if we consider Exs.P-19 and P-20, there is absolutely no reason to doubt the genuineness of Exs.P-19 and P-20. Further, the Tribunal has not taken into consideration the future prospects of earning of the claimant. In (2009) 6 Supreme Court Cases 121 (referred to supra) the Apex Court has laid down that an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years, should be made [Where the annual income is in the taxable range, the words `actual salary' should be read as 'actual salary less tax']. In this case, the injured was aged about 26 years at the time of accident and therefore if he had not suffered the injury he would have continued his profession as a Doctor with prospects of earning more and it cannot be said that at that time he was not in a permanent employment. Therefore, even if the monthly income of the claimant is not fixed at Rs.15,000/-, as claimed by the claimant, it can be safely fixed at Rs.12,500/- per month. If 50%, namely, Rs.6,250/- is added towards future prospects, it will come to Rs.18,750/- per month and if income tax is deducted at 20% it will come to Rs.15,000/- (Rs.18,750/- - Rs.3,750/-) and therefore the monthly income fixed by the Tribunal at Rs.14,000/- is not correct and it is fixed at Rs.15,000/- per month.
31. Considering the age of the claimant, namely, 26 years, the maximum multiplier of '18' is applicable. Thus, the pecuniary loss comes to Rs.32,40,000/- (Rs.15,000/- x 12 x 18).
32. The Tribunal has awarded a sum of Rs.3,90,000/- towards purchase of the artificial limb. Learned counsel for the insurer submitted that since neither the original receipt for the purchase of the artificial limb nor the artificial limb itself has not been produced before the Tribunal, the claim ought not to have been awarded by the Tribunal, but we are unable to sustain the said contention of the learned counsel, because, the Tribunal has awarded Rs.3,90,000/- towards the purchase of the artificial limb on the basis of Exs.P-15 and P-16. Though the original receipt for the purchase of the artificial limb has not been produced, Ex.P-24 has been produced by the claimant, which shows the payment of a sum of Rs.2,60,000/-, as advance, towards the cost of the artificial limb, namely, Rs.3,90,000/-. Therefore, we are of the considered view that the purchase of the artificial limb has been clearly proved by the said documents and therefore the Tribunal is right in awarding the cost of purchase of artificial limb, namely, Rs.3,90,000/- and therefore the same is confirmed.
33. Since there is no serious challenge to the awarding of Rs.7,000/- towards transportation and hospital, Rs.10,000/- towards extra nourishment and Rs.65,400/- towards medical expenses on the basis of the bill produced, the same are confirmed. The award of the sum of Rs.75,000/- towards pain and suffering is also confirmed. For the loss of amenities of life, for the loss of marital prospects and for the inconvenience, hardship, frustration and mental stress, a sum of Rs.1,50,000/-, is awarded instead of Rs.1,00,000/- awarded under the heads of loss of prospects of marriage, loss of marital status and loss of sexual life. A sum of Rs.5,000/- awarded towards attender charges is confirmed.
34. When loss of earning capacity is compensated as non pecuniary losses, permanent disability need not be separately itemised, as has been laid down by a Full Bench decision of this Court reported in 2006 ACJ 2703 (referred to supra) and therefore the award of the sum of Rs.1,70,000/- towards compensation for continuing and permanent disability is set-aside.
35. The Tribunal has awarded 9.5% interest per annum, which is not sustainable and as per the legal principles laid down by the Apex Court in a number of decisions, the interest is fixed at 7.5% per annum from the date of the petition.
36. For the foregoing reasons, there shall be an award for a total sum of Rs.39,42,400/-, which will carry 7.5% interest per annum from the date of the petition. Therefore, CMA No.2210 of 2010 filed by the claimant is partly allowed and CMA No.3319 of 2010 filed by the insurer stands dismissed. However, there shall be no order as to costs. Consequently, the connected MP is closed.
37. The Insurance Company / appellant in CMA No.3319 of 2010, who is also the second respondent in CMA No.2210 of 2010, is hereby directed to deposit the excess / enhanced compensation amount, as has been awarded by this Court, to the credit of MACTOP No.315 of 2007 on the file of the V Judge, Motor Accident Claims Tribunal (Court of Small Causes), Chennai, within a period of eight (8) weeks from the date of receipt of a copy of this judgment. On such deposit being made, the claimant is permitted to withdraw the same.
srk To
1. The National Insurance Co. Ltd., No.751, Anna Salai, Chennai 600 002
2. V Judge, Motor Accident Claims Tribunal (Court of Small Causes), Chennai