Madras High Court
The Managing Director vs S.Sundaram on 28 April, 2014
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 28.04.2014 CORAM: THE HONBLE MR. JUSTICE S. MANIKUMAR C.M.A.Nos.1405 and 1406 of 2014 and M.P.Nos.1 & 1 of 2014 CMA No.1405 of 2014 The Managing Director, Tamilnadu State Transport Corporation, No.12, Ramakrishna Road, Salem ... Appellant Vs. S.Sundaram Respondent CMA No.1406 of 2014 The Managing Director, Tamilnadu State Transport Corporation, No.12, Ramakrishna Road, Salem ... Appellant Vs. A.Chinnusamy Respondent Civil Miscellaneous Appeals filed under Section 173 of the Motor Vehicles Act against the common award & Decree dated 08.07.2013 made in M.C.O.P.Nos.282 and 283 of 2010 on the file of the Motor Accidents Claims Tribunal (Sub Judge), Namakkal. For Appellant : Mr.D.Venkatachalam COMMON JUDGMENT
A motorcycle bearing Regn.No.TN28 Q 9493, driven by one Sundaram with his friend Chinnusamy, as a pillion rider, met with an accident, on 23.05.2010 at 7.30 am, involving a transport corporation bus, bearing Regn.No. TN30 N 0840 alleged to have been driven in a rash and negligent manner. Both the rider and pillion sustained injuries. They were treated in hospitals. A case in Cr.No.79 of 2010, under Sections 279 ad 337 IPC, has been registered against the driver of the State Transport Corporation bus, on the file of Vazhavanthinadu Police Station. Chinnasamy, pillion rider, filed MCOP No.283 of 2010 claiming compensation of Rs.5,00,000/-. Sundaram, motorcyclist filed MCOP No.282 of 2010, claiming compensation of Rs.5,00,000/-. As both the claim petitions, arose out of the same accident, they were jointly tried.
2. Before the tribunal, both the claimants, examined themselves, as PW1 and PW2. PW3, is the Doctor, who issued the disability certificates. PW4, is stated to be the eyewitness. Ex.P1, FIR, Ex.P2, Motor Vehicle Inspector's Report, Ex.P3, Wound certificate (Sundaram), Ex.P4, Charge sheet, Ex.P5, Medical Bills (Sundaram), Ex.P6, Discharge Summary (Sundaram), Ex.P7, Wound certificate (Chinnusamy), Ex.P8, Discharge summary (Chinnusamy), Ex.P9, Medical Bills (Chinnusamy), Ex.P10, X-rays, Ex.P11, Disability certificate (Sudaram), Ex.P12, x-rays and Ex.P13, Disability Certificate (Chinnusamy), have been marked. RW1, is the driver of the State Transport Corporation bus. No document has been marked.
3. On evaluation of pleadings and evidence, the claims tribunal held that RW1, driver of the State Transport Corporation bus, was negligent in causing the accident. Based on the oral and documentary evidence, adduced by both the claimants, regarding the nature of injuries, extent of disablement, pecuniary and non-pecuniary losses, the claims tribunal has awarded compensation to each of the claimants, details of which, are tabulated hereunder.
MCOP No. 282/10 283/10Name of the injured Sundaram Chinnusamy Partial Permanent Disablement Rs.1,05,000/- Rs.1,80,000/-
Loss of income for three months Rs. 20,100/- Rs. 20,100/-
Medical Expenses Rs. 14,240/- Rs. 93,874/- Transportation Rs. 5,000/- Rs. 10,000/- Pain and Sufferings Rs. 15,000/- Rs.1,00,000/- Extra Nourishment Rs. 5,000/- Rs. 25,000/- Total Rs.1,64,340/- Rs.4,28,974/-
4. Being aggrieved by the finding fixing negligence on the driver of the State Transport Corporation bus, RW1, and the quantum of compensation awarded to the respondents/claimants, in each of the claim petitions, two appeals have been filed. As both the appeals arise out of the common award and in as much as the grounds of challenge are common, they are being disposed of by a common judgment.
5. Assailing the correctness of the finding fixing negligence on the driver of the State Transport Corporation bus bearing Regn.No.TN30 N 0840, Mr.D.Venkatachalam, learned counsel for the State Transport Corporation, submitted that the court below has failed to consider the oral testimony of RW1, driver of the transport corporation bus, in proper perspective. He further submitted that the Court below ought not to have given credence to the testimony of PW1, which is not supported by any independent witnesses and further contended that mere registration of FIR against the driver of the bus alone is not sufficient to hold him negligent in causing the accident.
6. Another contention raised by the learned counsel for the State Transport Corporation is that the claims tribunal erred in awarding a sum of Rs.3,000/- per percentage of disability assessed in each cases. The quantum of compensation awarded under the head pain and suffering in both cases, is also challenged. Except the above, no other submission has been made.
7. Vis-a-vis, the evidence of the respondents/claimants, and RW1 driver, it is the case of the claimants that on 23.05.2010, when they were travelling in a motorcycle, bearing Regn.No.TN28Q9493 from Senkarai to Salem near 30th Hairpin bend at Kollimalai Cholakadu, a State Transport Corporation bus bearing Regn. No.TN30N0840, driven in a rash and negligent manner dashed against the motorcycle and caused the accident. Ex.P1, FIR, has been lodged against the driver of the State Transport Corporation bus. The police after investigation has filed Ex.P4, charge sheet. Per contra, the oral testimony of RW1, is not supported or corroborated by any evidence.
8. It is well settled in motor accident claims cases that finding regarding negligence is arrived at by the Claims Tribunal on the principles of preponderance of probabilities. Strict proof of evidence is not required like that of a criminal case. It is also well settled that the adjudication of claims before the Motor Accident Claims Tribunal is summary in nature. Testing the finding of negligence recorded by the Claims Tribunal, on the above said principles, this Court is of the view that there is no perversity or it is a case of no evidence. Hence, the finding regarding negligence is confirmed.
9. In so far as, MCOP No.282 of 2010, is concerned, PW2 Doctor, who clinically examined the respondent/claimant, has deposed that respondent has sustained grievous injury in the left leg, due to loss of muscles, bones were protruding in the foot, knees have lost the strength, skin grafting has been done to strengthen the damaged foot. Due to thickening of the skin, there was no sensation. Upon perusal of Ex.P6, discharge summary, the Claims Tribunal has also observed that a surgery has been performed. Considering the pain and discomfort, during the clinical examination with reference to medical records, the Claims Tribunal has assessed the extent of disablement as 35%.
10. At the time of accident, the respondent was stated to be a Salesman in Nariyankadu Cooperative Society and earned Rs.6,500/- per month. Though, he continued to work in the society, the claims tribunal having regard to the age, extent of disablement which the respondent has to undergo during the rest of his life time, awarded a sum of Rs.1,64,340/- with interest, at the rate of 7.5% per annum as tabulated above.
11. Though the learned counsel for the transport corporation has contended that the claims tribunal has awarded a sum of Rs.1,05,000/- as disability compensation, by awarding Rs.3,000/- per percentage of disability and prayed for reduction, this Court is not inclined to accept the said contentions for the reasons that the injuries sustained, has not only affected the functions of the limb, but has also caused disfiguration. It is the evidence of PW2, Doctor, that during his clinical examination the respondent felt pain while he was standing. Thus, it is evident that the injuries and the consequential disablement has also resulted in loss of amenities, which the Full Bench of this Court in Cholan Roadways Corporation Ltd., Kumbakonnam vs. Ahmed Thambi and others reported in 2006 (4) CTC 433, explained as follows "14. Loss of amenities : The next head of non-pecuniary loss is 'loss of amenities'. Besides damages for the pain and suffering sustained by a plaintiff by reason of his injuries, damages may be awarded for the losses sustained by him. Loss of amenities covers deprivation of the ordinary experiences and enjoyment of life and includes loss of the ability to walk or see, loss of a limb or its use, loss of congenial employment, loss of pride and pleasure in one's work, loss of marriage prospects and loss of sexual function. In India loss of marriage prospects and loss of enjoyment of life are awarded separately. Damages under this head are awarded whether the plaintiff is aware of the loss or not. They are awarded for the fact of the deprivation, rather than for the awareness of it."
12. During hospitalisation, and convalescence, the respondent would have taken the assistance of someone. There is no award under the head attendant charges. Conventional damages have not been awarded. Considering the fact that the Claims Tribunal has failed to award a just and reasonable compensation under the abovesaid heads, even taking for granted that the disability compensation of Rs.1,05,000/- awarded to the respondent/claimant is slightly on the higher side, yet, the excess amount could always be adjusted under the other heads, when the claims tribunal has failed to award a reasonable compensation. In such a view of the matter, this Court is not inclined to interfere with the overall quantum of compensation.
13. In so far as MCOP No.283 of 2010, is concerned, the respondent/claimant has suffered an amputation below knee. During clinical examination with reference to medical records, PW3, Doctor has noticed that the respondent was walking with an artificial limb. On perusal of Ex.P8, discharge summary, the Claims Tribunal, has recorded amputation. PW4, has deposed that the respondent was a Salesman in the Society. However, due to amputation, he has found it difficult to discharge the functions as a salesman. According to him, after four months, he joined duty. Though, PW3, Doctor has assessed the disablement as 70%, having regard to the extent of disability, in cases relating to amputation provided for under the Workmen's Compensation Act, the Claims Tribunal determined the extent of disability as 60%. Income as per Ex.P16, was Rs.6,707/- has be Rounded off to Rs.6,700/-. Since the respondent continued in service, as Salesman, awarded only disability compensation of Rs.1,80,000/-. (60% x Rs.3,000/- per percentage of disability). That apart, on the basis of Ex.P9, medical bills, the claims tribunal has awarded Rs.93,874/-. For transportation, Rs.10,000/- has been awarded. For pain and suffering and shock Rs.1,00,000/- has been awarded. A sum of Rs.25,000/- has been awarded under the head nutrition. Rs.20,100/- has been awarded as loss of earning during the period of treatment and convalescence. Altogether, the claims tribunal has awarded Rs.4,28,974/- with interest at the rate of 7.5% per annum from the date of claim till the date of realisation.
14. Though, Mr.D.Venkatachalam, learned counsel for the State Transport Corporation submitted that the quantum of compensation awarded to the respondent/claimant under the heads disability compensation and pain and suffering, is on the higher side, this Court, is not inclined to interfere with the overall award for the reason that despite, amputation, loss of amenities, the Claims Tribunal, has failed to award a just and reasonable compensation under the head loss of amenities, attendant charges, future transportation required by an amputee and conventional damages.
15. Though, the respondent/claimant continued as salesman, in the Society, the possibility of his losing prospects cannot be ruled out. Yet another aspect to be considered by this Court, is that the reduction of the extent of permanent disablement, by applying the provisions of the Workmen's compensation Act, 1923, cannot be countenanced in the light of the following decisions of the Supreme Court.
(i) In Govind Yadav vs. The New India Insurance Company Limited, reported in (2011) 10 SCC 683, the Supreme Court, has awarded a sum of Rs.1,50,000/- for loss of amenities and enjoyment of life, in the case of amputation, where disability was assessed at 70%. In the said judgment, the Apex Court held as follows:
"10. The personal sufferings of the survivors and disabled persons are manifold. Some time they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term `compensation' used in Section 166 of the Motor Vehicles Act, 1988 (for short, `the Act') would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. A very large number of people involved in motor accidents are pedestrians, children, women and illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. The insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel. They contest the claim petitions by raising all possible technical objections for ensuring that their clients are either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses' make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accident Claims Tribunal adopt a proactive approach and ensure that the claims filed under Sections 166 of the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure. The amount of compensation in such cases should invariably include pecuniary and non-pecuniary damages. In R.D.Hattangadi v. Pest Control (India) Private Limited, (1995) 1 SCC 551, this Court while dealing with a case involving claim of compensation under the Motor Vehicles Act, 1939, referred to the judgment of the Court of Appeal in Ward v. James (1965) 1 All ER 563, Halsbury's Laws of England, 4th Edition, Volume 12 (page 446) and observed:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
In the same case, the Court further observed:
"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."
11. In Nizam's Institute of Medical Sciences v Prasanth S.Dhananka (2009) 6 SCC 1, the three-Judge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs.15 lakhs to Rs.1 crore, the Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
"We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The "adequate compensation" that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned.
At the same time we often find that a person injured in an accident leaves his family in greater distress vis-a-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity." (emphasis supplied)
12. In Reshma Kumari v. Madan Mohan, (2009) 13 SCC 422, this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below:
"The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms. The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so.
In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up.
In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor." (emphasis supplied)
13. In Arvind Kumar Mishra v. New India Assurance Company Limited, (2010) 10 SCC 254, the Court considered the plea for enhancement of compensation made by the appellant, who was a student of final year of engineering and had suffered 70% disablement in a motor accident. After noticing factual matrix of the case, the Court observed:
"We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered." (emphasis supplied)
14. In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, the Court considered some of the precedents and held:
"The provision of the Motor Vehicles Act, 1988 ("the 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 the 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.
The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, 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." (emphasis supplied)
15. In our view, the principles laid down in Arvind Kumar Mishra v. New Assurance Company Ltd., (supra) and Raj Kumar v. Ajay Kumar (supra) must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.
16. We shall now consider whether the compensation awarded to the appellant is just and reasonable or he is entitled to enhanced compensation under any of the following heads:
(i) Loss of earning and other gains due to the amputation of leg.
(ii) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
(iv) Compensation for pain, suffering and trauma caused due to the amputation of leg.
(v) Loss of amenities including loss of the prospects of marriage.
(vi) Loss of expectation of life."
(ii) In Govind Yadav's case, in case of amputation and considering the cost of living, cost of artificial limbs, and the expenses likely to be incurred for periodical replacement of the limb, the Supreme Court awarded Rs.2,00,000/- to the appellant therein, for future treatment. It has also awarded a sum of Rs.1,50,000/- for pain and suffering and trauma caused due to the amputation of the leg. By observing that even if the victims of an accident gets an artificial limb, he will still suffer from different kinds of social stigma throughout of his life, the Supreme Court further observed that in all such cases, the Tribunals and Courts should make a broad guess for the purpose of compensation and of the fact that the injured has to live for the rest of his life, with one leg and would not able to life like a normal human being and enjoy the life and of the likelihood of reduction in marriage prospects and so saying, awarded Rs.1,50,000/- for loss of amenities and enjoyment of life.
(iii) In Mohan Soni v. Ram Avtar Tomar reported in 2012 (2) SCC 267, the Supreme Court held that reduction of the earning capacity, with reference to Schedule I of the Workmen's Compensation Act, 1923, in the case of amputation above knee to a Cart-Puller, due to the injuries sustained in a motor accident, is erroneous and referring to the decisions made in Pratap Narain Singh Deo v. Srinivas Sabata reported in 1976 (1) SCC 289 and K.Janardhan v. United India Insurance Co. Ltd., reported in 2008 (8) SCC 518, assessed the loss of earning capacity at 100% and enhanced the compensation. While adverting to the arguments of scaling down the compensation, at Paragraph 13, the Supreme Court observed as follows:
"13. Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) or in case of the vast multitude who earn their livelihood in the unorganized sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income."
(iv). In Rekha Jain v. National Insurance Company Ltd., reported in 2013 (8) SCC 389, after considering a catena of decisions, on the aspect of estimation of pecuniary and non-pecuniary damages, due to the bodily injuries, sustained by the injured, enhanced the compensation, taking into account, as to how, the bodily injury has affected the loss of earning capacity of the appellant therein, at Paragraph 28, the Supreme Court observed as follows:
"28. This Court is required to keep in mind justice, equity and good conscience which must be the primary, relevant and important aspects for awarding just and reasonable compensation to an unfortunate victim, the appellant herein who has sustained grievous injuries to her body and whose future prospects are completely doomed. Further, the Tribunal and courts while awarding compensation for bodily injuries, must realise that the possession of ones own body is the first and most valuable of all human rights and that all other possessions and ownership are the extensions of the basic right. Bodily injuries should be equated with the deprivation which entitles a claimant to damages and the amount of damages varies in accordance with the gravity of injuries."
(iv). It is worthwhile to reproduce the decisions considered in Rekha Jain's case, for understanding the principles to be followed by the Courts/Tribunals in estimating the loss of earning capacity, "In this regard, it is worthwhile to refer to certain paragraphs which have been referred to by the High Court in the case of K. Narasimha Murthy vs. The Manager, Oriental Insurance Company Limited and Anr. [ILR 2004 Karnataka 2471], wherein the Division Bench of the Karnataka High Court has considered the relevant important aspects from the judgment of this Court and the House of Lords and different learned scholars and authors of books on awarding pecuniary and non pecuniary damages. The abovementioned decision states about the approach of the Motor Accidents Claim Tribunals and Courts for awarding just and reasonable compensation in favour of the claimants in relation to the bodily injuries suffered by them. It is worthwhile to extract Paragraph 16 from K. Narasimha Murthy case (supra), which reads as under:
16. The Courts and Tribunals, in bodily injury cases, while assessing compensation, should take into account all relevant circumstances, evidence, legal principles governing quantification of compensation. Further, they have to approach the issue of awarding compensation on the larger perspectives of justice, equity and good conscience and eschew technicalities in the decision-making. There should be realisation on the part of the Tribunals and Courts that the possession of one's own body is the first and most valuable of all human rights, and that all possessions and ownership are extensions of this primary right, while awarding compensation for bodily injuries. Bodily injury is to be treated as a deprivation which entitles a claimant to damages. The amount of damages varies according to gravity of injuries.
30. In R.D. Hattangadi v. Pest Control (India) Private Limited and Ors.[1995 (1) SCC 551] , speaking about the heads of compensation, this Court has held thus:
"9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning profit upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include; (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
31. Further, on this point, Justice Viscount Dunedin in Admiralty Comrs v. S.S. Valeria [(1922)2 A.C. 242 at p. 248], has observed thus:
"The true method of expression, I think, is that in calculating damages you are to consider what is the pecuniary consideration which will make good to the sufferer, as far as money can do so, the loss which he has suffered as the natural result of the wrong done to him".
32. Further, Lord Blackburn in Livingstone v. Rawyards Coal Company [1880 5 App. Cas. 25 at p. 39], has held as under:
"Where any injury is to be compensated by damages, in settling the sum of money to be given. . . . you should as nearly as possible get at that sum of money which will put the person who has been injured. . . . in the same position as he would have been in if he had not sustained the wrong."
33. Lord Morris in his memorable speech in H. West and Sons [1964 AC 326] , pointed out this aspect in the following words:
"Money may be awarded so that something tangible may be procured to replace of like nature which has been destroyed or lost. But, the money cannot renew a physical frame that has been battered and shattered. All the Judges and Courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation. Further, more it is eminently desirable that so far as possible comparative injuries should be compensated by comparable awards."
34. In Ward v. James [1966 1 Q.B. 273 at pp. 299-300], speaking for the Court of Appeal in England, Lord Denning laid down three basic principles while dealing with the question of awarding compensation for personal injury:
"...Firstly, assessability: In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity: There should be some measure of uniformity in awards so that similar decisions may be given in similar cases, otherwise, there will be great dissatisfaction in the community and much criticism of the administration of justice. Thirdly, predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to Court, a thing very much to the public good.
"24. In deciding on the quantum of damages to be paid to a person for the personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries, as far as money can do, the loss which he has suffered as. a natural consequence of the wrong done to him.
35. Further, a Division Bench of Karnataka High Court in Basavaraj v. Shekar [ ILR 1987 Kar. 1399], has held as under:
"8. ......If the original position cannot be restored as indeed in personal injury or fatal accident cases it cannot obviously be - the law must endeavour to give a fair equivalent in money, so far as money can be an equivalent and so 'make good' the damage.
"26. Therefore, the general principle which should govern the assessment of damages in personal injury cases is that the Court should award to injured person such a sum of money as will put him in the same position as he would have been in if he had not sustained the injuries. But, it is manifest that no award of money can possibly compensate an injured man and renew a shattered human frame. (Emphasis laid by the Court)
36. Lord Morris of Borth-y-Gest in Parry v. Cleaver [[1970] 1 AC 1 at p. 22], has said:
"To compensate in money for pain and for physical consequences is invariably difficult but. . . no other process can be devised than that of making a monetary assessment". (Emphasis laid by the Court)
37. The necessity that the damages should be full and adequate was stressed by the Court of Queen's Bench in Fair v. London and North Western Railway Company [21 L.T. (N.S.) 326 (1869)]. In Rushton v. National Coal Board [1953 1 QB 495 at p. 499], Singleton L.J. has said that:
When damages have to be assessed in a case of this kind there are many elements for consideration: the pain and suffering undergone and that which may occur in the future; the loss of some of the amenities of life; the fact that a man with an injury of this kind will always require some measure of help, even though he may be able to earn considerable money. These are some of the matters which have to be taken into consideration, and another is the fact that his earnings will probably be less than they were before. (Emphasis laid by the Court)
38. In Fowler v. Grace [(1970) 114 Sol. Jo.193], Edmund Davies, L.J., has said that :
It is the manifest duty of the Tribunal to give as perfect a sum as was within its power'. There are many losses which cannot easily be expressed in terms of money. If a person, in an accident, loses his sight, hearing or smelling faculty or a limb, value of such deprivation cannot be assessed in terms of market value because there is no market value for the personal asset which has been lost in the accident, and there is no easy way of expressing its equivalent in terms of money. Nevertheless a valuation in terms of money must be made, because, otherwise, the law would be sterile and not able to give any remedy at all. Although accuracy and certainty were frequently unobtainable, a fair assessment must be made. Although undoubtedly there are difficulties and uncertainties in assessing damages in personal injury cases, that fact should not preclude an assessment as best as can, in the circumstances be made. (Emphasis laid by the Court)
40. It is well-settled principle that in granting compensation for personal injury, the injured has to be compensated (1) for pain and suffering; (2) for loss of amenities; (3) shortened expectation of life, if any; (4) loss of earnings or loss of earning capacity or in some cases for both; and (5) medical treatment and other special damages. In personal injury cases the two main are the personal loss and pecuniary loss. Chief Justice Cockburn in Fair's case [(1869) 21 LT (NS) 326 (QB)], supra, distinguished the above two aspects thus:
"In assessing the compensation the jury should take into account two things, first, the pecuniary loss the plaintiff sustains by the accident : secondly, the injury he sustains in his person, or his physical capacity of enjoying life. When they come to the consideration of the pecuniary loss they have to take into account not only his present loss, but his incapacity to earn a future improved income".
41. McGregor on Damages (14th Edition) at paragraph no.1157, referring to the heads of damages in personal injury actions, states as under:
"The person physically injured may recover both for his pecuniary losses and his nonpecuniary losses. Of these the pecuniary losses themselves comprise two separate items, viz., the loss of earnings and other gains which the plaintiff would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the Courts have sub-divided the non-pecuniary losses into three categories, viz., pain and suffering, loss of amenities of life and loss of expectation of life".
Besides, the Court is well-advised to remember that the measures of damages in all these cases 'should be such as to enable even a tort feasor to say that he had amply atoned for his misadventure'. The observation of Lord Devlin that the proper approach to the problem or to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to 'hold up his head among his neighbours and say with their approval that he has done the fair thing', is quite apposite to be kept in mind by the Court in assessing compensation in personal injury cases. (Emphasis laid by the Court)
42. In R. Venkatesh v. P. Saravanan & Ors.[(2001) 1 Kant.LT 41], the High Court of Karnataka while dealing with a personal injury case wherein the claimant sustained certain crushing injuries due to which his left lower limb was amputated, held that in terms of functional disability, the disability sustained by the claimant is total and 100% though only the claimant's left lower limb was amputated. In paragraph 9 of the judgment, the Court held as under:
"9. As a result of the amputation, the claimant had been rendered a cripple. He requires the help of crutches even for walking. He has become unfit any kind of manual work. As he was earlier a loader doing manual work, the amputation of his left leg below knee, has rendered him unfit for any kind of manual work. He has no education. In such cases, it is well-settled that the economic and functional disability will have to be treated as total, even though the physical disability is not 100 per cent".
43. Lord Reid in Baker v. Willoughby [1970 AC 467], has said: "A man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg; it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. ."
16. In Raj Kumar v. Ajay Kumar reported in 2011 ACJ 1 (SC), the Apex Court has broadly itemised compensation due and payable to an injured, who suffered disablement and at paragraphs 4 to 17, the Supreme Court held as follows:
"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."
17. Considering the parameters to be taken into consideration by the claims tribunal in awarding a just and reasonable compensation, and failure on the part of the claims tribunal, to award the same, under the heads loss of amenities, attendant charges, future medical expenses, required for an amputee, conventional damages to clothes and articles and the likelihood of loss of future prospects, on account of the difficulties in discharging the duties, as a Salesman, this Court is of the view that even assuming that any excess compensation has been awarded under the head disability and pain and sufferings, the same can always be adjusted against other heads, stated supra. For the reasons stated, this Court is not inclined to reduce the quantum of compensation. Thus, in both the appeals, the finding fixing negligence on the driver of the State Transport Corporation bus bearing Regn.No.TN30N0840 and the quantum of compensation awarded to the respondent/claimant, in each of the claim petitions, are sustained. Both the appeals are dismissed. No costs. Consequently, the connected Miscellaneous Petitions are closed.
18. Consequent to the dismissal of the appeal, the appellant Transport Corporation, is directed to deposit the entire award amount in both the claim petitions, with proportionate accrued interest and costs, less the statutory deposit, to the credit of M.C.O.P.Nos.282 and 283 of 2010 on the file of the Motor Accidents Claims Tribunal (Sub Judge), Namakkal, if not deposited earlier, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the respondents/claimants are permitted to withdraw their respective award amount, with proportionate accrued interest and costs, by making necessary applications.
28.04.2014 ars To
1. The Motor Accident Claims Tribunal, (Sub Judge), Namakkal.
2.The Section Officer, VR Section, High Court, Madras.
S.MANIKUMAR, J., ars C.M.A.Nos.1405 and 1406 of 2014 28.04.2014