Madras High Court
The United India Insurance Co. Ltd vs Selvi on 3 April, 2014
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 03.04.2014 CORAM: THE HONBLE MR. JUSTICE S. MANIKUMAR C.M.A.No.3078 of 2013 M.P.No.1 of 2013 The United India Insurance Co. Ltd., Branch Office, Dharmapuri Town & District. ... Appellant Vs. 1. Selvi 2. Irsath Jogan ... Respondents The Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act against the judgment and decree, dated 22.11.2012, made in M.C.O.P.No.322 of 2011, on the file of the Motor Accidents Claims Tribunal (Additonal District Judge), Dharmapuri. For Appellant : Mr.T.Ravichandran For 1st Respondent : Mr.S.Sathiaseelan JUDGMENT
Being aggrieved by the finding, fastening liability on the Insurance Company to pay compensation of Rs.2,06,480/- with interest at the rate of 7.5% per annum, from the date of claim petition, till the date of realisation, the United India Insurance Company has preferred this appeal.
2. According to the respondents, that on 02.11.2010, about 8.00 A.M., the respondent and one Chinnalagi, were standing at Puzhuthikarai bus stop, along with groundnut bags. At that time, a Tata ACE Mini Door Auto, bearing Registration No.TN 24 C 1267, came there. They fixed a fare. Chinnalagi boarded the vehicle. Thereafter, the respondent/claimant loaded the groundnut bags in the auto. When she attempted to step in, the driver of the Mini Door Auto started the vehicle at a greet speed. Due to which, she fell down and sustained injuries in right thigh back, spinal cord, hip, stomach, abdomen, head, chest, right hand and leg. Immediately, she was admitted in Government Hospital, Dharmapuri and took treatment as inpatient between 21.11.2010 and 11.12.2010. Since discharge, she has taken treatment in private hospital and spent considerable amount. A case in Cr.No.473 of 2010 has been registered against the driver of the TATA ACE Mini Door Auto, bearing Registration No.TN 24 C 1267, insured with the appellant-Insurance Company, on the file of Krishnapuram Police Station, for the offences under Sections 279 and 338 IPC. She claimed compensation of Rs.5,00,000/-.
3. The appellant-Insurance Company opposed the claim petition, contending inter alia that the accident did not occur, as averred. Negligence of the driver of TATA ACE Mini Door Auto, has been denied. According to the Company, the respondent/claimant travelled in the vehicle, only as a gratuitous passenger and that the vehicle is a transport goods vehicle. Non-possession of the driving licence was also one of the objections. Without prejudice to the above, they disputed the nature of injuries sustained by her, age, avocation, income of the respondent/claimant and the quantum of compensation claimed under various heads.
4. Before the Claims Tribunal, the respondent/claimant examined herself as PW.1 and PW.2 is the Doctor, who examined the respondent/claimant, with reference to the medical records. Ex.P1 FIR, Ex.P2 Accident Register, Ex.P3 Motor Vehicles Inspector's Report, Ex.P4 Discharge Summary, Ex.P5 C.T.Scan Report, Ex.P6 Disability Certificate, have been marked, on the side of the respondent/claimant. RW.1 is the Development Officer of the Insurance Company. Ex.B1 is the Insurance Policy, marked on behalf of the appellant-Insurance Company.
5. The Claims Tribunal has framed following points for consideration,
(i)Whether the 1st respondent/claimant travelled in the TATA ACE, as a owner of the goods or not?
(ii)Whether the accident occurred only due to the rash and negligent manner of the TATA ACE Mini Door Auto, bearing Registration No.TN 24 C 1267?
(iii)Whether the 1st respondent/claimant is entitled to the claim asked?
(iv)To what other relief the 1st respondent/claimant is entitled?
6. On evaluation of pleadings and evidence, the Claims Tribunal came to the conclusion that the driver of the TATA ACE Mini Door Auto, bearing Registration No.TN 24 C 1267, insured with the appellant-Insurance Company, was negligent in causing the accident. As regards the contention, as to whether, the respondent/claimant travelled in the offending vehicle, as the owner of the goods or not, the Claims Tribunal, upon evaluation of oral and documentary evidence, held that the respondent travelled along with the goods, viz., groundnut bags. Accordingly, fastened the liability on the appellant-Insurance Company to pay compensation. On the quantum of Compensation, the Claims Tribunal has awarded Rs.2,06,480/- with interest, at the rate of 7.5% per annum, from the date of claim petition, till the date of realisation.
7. Though in this appeal, the appellant-Insurance Company has incidently challenged the finding, fastening negligence on the driver of the offending vehicle, insured with them, no arguments have been advanced. Mr.T.Ravichandran, learned counsel for the appellant-Insurance Company restricted his submission only to the finding of the Claims Tribunal that the respondent travelled as the owner of goods and the consequential liability, fastened on the Company.
8. When the learned counsel for the appellant-Insurance Company was posed with a specific question, as to whether, if the respondent had travelled in the abovesaid vehicle, as the owner of the goods and sustained injuries in the accident, which occurred on 02.11.2010, whether she would be entitled to compensation, in terms of Ex.R1 Policy, the answer was in the affirmative, subject to proof. Submission of the learned counsel for the Insurance Company is placed on record.
Heard the learned counsel for the parties and perused the materials available on record.
9. In Raja v. K.Sathiskumar reported in 2010 (1) TNMAC 498, it was the case of the appellant therein, that he travelled in a lorry with three bags of onion. The vehicle met with an accident and that he sustained injuries and treated in a Government Hospital. When a claim for compensation for made, it was opposed on the ground that he did not travel as the owner of goods, but as a gratuitous passenger. The Claims Tribunal accepted the contention of the company and exonerated from the Company from its liability. On the appeal, filed by the claimant, the High Court, after careful scrutiny of the evidence of the claimant, has observed as follows:
14. A careful perusal of the evidence of P.W.1, we could see that he had answered to the question in his cross examination that he had paid money for travelling in the said vehicle. The said answer was clarified in his re-examination that the money paid by the claimant was for the luggage and for his person. In the entire cross examination of P.W.1 nothing was suggested to P.W.1 that he did not carry any luggage in the 1st respondent's vehicle. In the absence of such cross examination the evidence spoken by P.W.1 that he travelled in the vehicle of 1st respondent along with the luggages, for consideration has to be held as true.
15. In the aforesaid circumstances, the claimant cannot be called as a gratuitous person and the contract of indemnification entered into between the respondents 1 and 2 cannot be kept away for refusing the payment of compensation to the claimant by the 2nd respondent. In the aforesaid circumstances, the lower court had lost sight of the evidence adduced by P.W.1 and had not discussed about the cross examination but it had simply found that the claimant was only gratuitous person. The finding of the lower court that the 2nd respondent is not at all responsible and therefore the entire liability fastened on the 1st respondent is not correct. The terms of the insurance policy will certainly bind the 2nd respondent under the contract of indemnity, as the claimant was not a gratituous passenger.
10. While explaining the effect of Section 147(1)(b)(i) of the Motor Vehicles Act, the Supreme Court in United India Insurance Company Ltd., v. Suresh K.K., reported in 2008 (12) SCC 657, at Paragraphs 9 and 10, held as follows:
9. The insurance policy should, inter alia, be in respect of death or bodily injury of the person carried in the vehicle. Such person may be the owner of the goods or his authorised representative. The High Court, therefore, may be correct that the owner of the goods would be covered in terms of the said provision. But the question which has not been adverted to by the High Court is as to whether the policy contemplates the liability of the owner of the vehicle in respect of a person who was in the vehicle in a capacity other than owner of the goods. If a person has been travelling in a capacity other than the owner of the goods, the insurer would not be liable. The purpose for which the provision had to be amended by Act No. 54 of 1994 was to widen the scope of the liability of the insurance company.
10. It is now well settled that the term 'any person' envisaged under the said provision shall not include any gratuitous passenger. [National Insurance Co. Ltd., v. Baljit Kaur {(2004) 2 SCC 1}]. If the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of the insurance, In any view of the matter in a three wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as a owner of the vehicle is supposed to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved. The Tribunal and the High Court, therefore, in our considered opinion, should have held that the owner of the vehicle is guilty of the breach of the conditions of policy.
11. Following the decision made in Suresh K.K.'s case (cited supra), the Kerala High Court in MACA.No.376 of 2010, dated 06.01.2011 [United India Insurance Company Ltd., v. P.O.Pappu], held as follows:
The next point is regarding the liability of the insurance company. Now the insurance company would contend that the vehicle involved in the accident is a goods auto rickshaw. The policy is issued to cover one driver and one employee. The claimant even going by his case is not an employee of the insured. Therefore, provisions of the policy does not cover the risk of the claimant. Now the next question is whether there is a statutory coverage as contemplated under Section 147 of the Motor Vehicles Act. As decided in Asharani's case (2003 (1) KLT 165 SC) prior to the amendment of the Motor Vehicles Act under Act 54 of 1994 the person accompanying the goods or the owner of the goods were not covered by the terms and conditions of the policy. But by virtue of the incorporation of the amended provision the owner of the goods or the representative of the owner of the goods is statutorily covered. Now it is the case of the claimant that he has been accompanying the goods as the owner of the goods against which there is no contra evidence. Claimant along with the driver of Autorickshaw was travelling in the autorickshaw as the owner of the goods.
Now the next question that may arise for consideration is whether an autorickshaw driver can carry another person in the autorickshaw. Most probably, this argument is raised on the basis of the decision in 2008 (4) KLT 552 (SC) United India Insurance Company Ltd., v Suresh. In that case the Hon'ble Supreme Court held that the driver of the autorickshaw cannot share his seat with anybody else and therefore, no other person other than the driver can travel in the cabin. But so far as this case is concerned materials are made available before me to show that two persons are permitted to be carried in the vehicle. As per the registration certificate the seating capacity including the driver is shown as two in numbers. So one person other than the driver is entitled to travel in the cabin. When it is so, the question of sharing the driver's seat does not arise. Even as per the provision of the insurance policy, coverage is therefore one driver plus one employee. I am referring to this only for the reason that the insurance company also knew the fact that the autorickshaw can carry two persons. I am conscious of the fact that the coverage of two employees will not take in the claimant. But by virtue of the statutory fiction under Section 147 of the Motor Vehicles Act the owner of the goods or the representative of the owner of the goods is covered by the policy without additional premium. Since the claimant had travelled in the autorickshaw which can take two persons and that as he had travelled as the owner accompanying the goods by virtue of the dictum laid down in Asharani's case as well as the statutory fiction under Section 147 (1) of the Motor Vehicles Act, the said person is covered under the Act. Therefore, the insurance company cannot get exonerated from the liability and they are liable to pay the amount. Therefore, from these discussions, I find nothing to interfere with the decision rendered by the Tribunal. Therefore, the appeal fails and the same is dismissed.
12. In M.F.A.No.20035 of 2010 (MV), dated 30.07.2012 [New India Assurance Co. Ltd., v. Swarappa], while considering the evidence of PW.1/claimant therein that the deceased, after loading the fertilizer bags, sustained serious injuries, due to toppling of the Tractor and died, and of the objections of the Insurance Company that the deceased was a gratuitous passenger, at Paragraphs 13 and 14, the Karnataka Circuit Bench at Dharwad, held as follows:
13. In this context, the Tribunal has noted the evidence let in by PW.1, who has stated that the deceased after loading the fertilizer bags in the tractor was returning from Gajendragad to Jalihal and near Bommasagar the tractor toppled and as a result he succumbed to the grievous injuries. Therefore, it cannot be stated that the deceased was an unauthorised passenger in the tractor trailer. He was proceeding along with the goods, ie., fertilizer bags. It is also admitted by the Insurance Company that he was also admitted by the Insurance Company that he was proceeding as one of the employees of the Devendragouda Patil. Carrying of fertilizer bags in a trailer has been admitted to be an agricultural operation by RW.1. Therefore, at this point of time the contention that the deceased was an unauthorised passenger cannot be accepted. He was travelling along with goods and was the authorised representative of the goods.
14. In fact, the ground taken in the memorandum of appeal is that the deceased was an employee of Devendragouda Patil and was proceeding in the trailer along with goods. In that event, Section 147 of the Motor Vehicles Act would be applicable. Section 147(1)(b) of the Act states that, the policy of insurance must cover against any liability which may be incurred by the insured in respect of the death of or bodily injury to any person including the owner of the goods or the authorised representative carried in the vehicle. The same is a statutory liability which has to be incurred by the insurer who issues a policy of insurance. In the instant case, the policy is called of farmers package insurance. There is no evidence to the effect that the vehicle was used for hire or reward or it was contrary to the terms of the policy. In fact, there is no such defence of the Insurance Company. Carrying of fertilizer in a tractor trailer is a part of agricultural operation which is also admitted by RW.1. The liability of the insurer towards the representative or the owner of goods when carrying goods in the vehicle is statutory in nature. In that view of the matter, the Tribunal was right in fastening the liability on the Insurance Company.
13. Reverting back to the case on hand, in the light of the above decisions, let me consider, as to whether, sufficient evidence has been adduced by the respondent/claimant. According to her, that on 02.11.2010, about 8.00 A.M., when she was standing at Puzhuthikarai bus stop, along with one Chinnalagi with groundnut bags, a TATA ACE Mini Door Auto, bearing Registration No.TN 24 C 1267, came there. After fixing a fare, the respondent/claimant loaded the groundnut bags in the auto. When she attempted to step in, the driver of the Mini Door Auto started the vehicle, at a greet speed, without noticing her. Due to which, she fell down and sustained injuries. A case in Cr.No.473 of 2010 has been registered against the driver of the TATA ACE Mini Door Auto, bearing Registration No.TN 24 C 1267, insured with the appellant-Insurance Company, on the file of Krishnapuram Police Station, for the offences under Sections 279 and 338 IPC.
14. Upon perusal of Ex.P1 FIR, the Claims Tribunal has noticed that the contents of FIR, as regards transportation of the goods and the averments made in the claim petition, were one and the same. The relevant portion in Ex.P1 FIR, are as follows:
"ehd; 21/11/2010k; njjp fiy Rkhh; 8 kzpf;F g[Gjpf;fiwapy; cs;s vd; mj;ijkfs; rpd;dGfp vd;gthpd; tPl;ow;F brd;Wtpl;L cwtpdh;fs; bfhLj;j epyf;fliy Rkhh; 4 td;dk; cs;s igia vLj;Jf;bfhz;L g[Gjpf;fiw g!; !l;lhg;gpy; ,Ue;j nghJ me;j neuj;jpy; g!;tuhjjhy; mdpaFsk; tUtjw;F te;j xU ehd;F rf;fu TATA ACE TN 24 C 1267 tz;oia epWj;jp MSf;F $e;J U:gha; bfhLg;ghij bry;yp me;j tz;oapy; vd; mj;ijkfs; rpd;dHfp Vwpf;bfhz;lhs; ehd; tz;oapy; Vw xU fhiy tz;oapd; nky; xU fhiy fPnH ,Uf;Fk;nghnj me;j tz;oapd; xl;Ldh; kpft[k; ntfkhft[k; m$hf;fpuijahft[k; tz;oapy; ,Ue;j vd; mj;ij kfs; brhy;y brhy;y tz;oia vLj;Jtpl;lhh; ehDk; bfh";rJ}uk; tz;oapy; bjh';fpf;bfhz;L fj;jpndd;/ mjd; gpwF tz;oapy; ,Ue;J fPnH tpG;eJtpl;nld;/"
Translated version of the above contents are as follows:
"On 21.11.2010, at about 8.00 A.M., after having gone to the house to Chinnazhagi, the daughter of my aunt, at Puzhuthikarai, took a bag containing groundnut measuring about 4 'Vallam', given by the relatives and while I was waiting at Puzhuthikarai bus stop, since the bus did not come at that time, I stopped a four wheeler, Tata Ace, bearing Registration No.TN 24 C 1267, which was bound for Aniakulam, and told that we would give five rupees per head, Chinnazhagi, my niece boarded the said vehicle. While my one leg was on the vehicle, and the other one was on the ground, the driver of the vehicle rashly and negligently started driving the vehicle, even though my niece told him repeatedly. I also shouted, hanging in the vehicle for sometime. Thereafter, I fell down from the vehicle.
15. Perusal of the testimony of the respondent/claimant shows that when a specific suggestion was made to contradict transportation of groundnut bags, in the Mini Door Auto, the respondent/claimant has not only denied the suggestion, but also asserted that after fixing a fare of Rs.5/-, she and Chinnalagi travelled in the vehicle, as the owner of goods. She has also denied the suggestion that she travelled as a gratuitous passenger. For the purpose of better understanding, the relevant portion from the cross-examination of PW.1, is extracted hereunder:
"ehd; tpahghuj;jpw;fhf ehDk; rpd;dHfpa[k; nth;fliy K:l;ilfis vLj;Jf; bfhz;L g!;f;fhf fhj;jpUe;njhk;/ g!; btFneuk; tutpy;iy vd;gjhy; lhlh Vrpapy; ehDk; rpd;dHfpa[k; Msf;F U:/5 bfhLj;J Vwpndhk;/ ehd; tpahghuj;jpw;fhf nth;fliy vLj;Jr; bry;ytpy;iy vd;whYk; Kjy; jfty; mwpf;ifapy; ehd; vd; cwtpdh; bfhLj;j 4 ty;yk; nth;fliy vLj;J brd;W brhy;ypaps;nsd; vd;why; rhpay;y/ ///////ehd; m';fPfhpf;fg;glhj gazpahf tpgj;J thfdj;jpy; gazk; bra;jjhy; 2k; vjph;kDjhuh; ,Hg;gPL ju ntz;oa mtrpakpy;iy vd;why; rhpay;y/"
Translated version of the above contents are as follows:
I and Chinnazhagi took groundnut bags for business and were waiting for the bus. Since the bus did not come for a longer time, I and Chinnazhagi gave Rs.5/- per head and got into Tata Ace. It is incorrect to state that though I did not take the groundnuts for business, I have mentioned in the First Information Report that I took four vallams of groundnuts (1 Vallam is equivalent to 2 Clay pots), given by my relatives. It is incorrect to state that since I travelled as an unauthorised passenger in the vehicle, which was involved in the accident, the 2nd respondent need not give the compensation.
16. Thus, it could be seen from the oral testimony of PW.1, respondent/claimant, the manner of accident and transportation of goods, are duly corroborated by Ex.P1 FIR and the testimony remained unshattered and hence, there is no reason to reject the same. Even in Ex.P2 Accident Register, there is a reference to the accident.
17. RW.1, Development Officer of the appellant-Insurance Company, in his evidence, has admitted that he was not aware, as to whether, at the time of accident, the respondent/claimant travelled as the owner of the goods or as a gratuitous passenger. He has also admitted that no statement has been obtained either from the owner or driver of TaTa Ace. Considering the overall evidence, this Court is not inclined to reverse the finding that the respondent/claimant travelled as the owner of goods.
18. The next question to be addressed is the quantum of compensation. Application of multiplier method is the challenge. The respondent/claimant is stated to have suffered injuries in the right thigh, back, spinal cord, hip, stomach, abdomen, head, chest, right hand and leg. At the time of accident, she was aged 55 years. After the accident, she has been admitted in Government Hospital, Dharmapuri and taken treatment as inpatient, for the period between 21.11.2010 and 11.12.2010, i.e., for nearly 20 days.
19. In order to prove that she had sustained serious injuries, Ex.P2 Wound Certificate, Ex.P4 Discharge Summary and Ex.P5 Scan Report, have been marked. Upon perusal of the same, the Claims Tribunal has observed that the respondent/claimant has sustained injuries in the pelvis, spin and fracture on the border of the illac bone, on the right side. PW.2, Doctor, who clinically examined the respondent/claimant, with reference to the abovesaid medical records, has noticed that there was a fracture in the Illac bone, on the right side hip. Considering the discomfort expressed by the respondent/claimant and the gravity of fracture and other injuries, sustained by a 55 years old lady, PW.2, Doctor, has assessed the extent of functional disablement, at 50% and issued Ex.P6 Disability Certificate. However, the Claims Tribunal has reduced the same to 40%.
20. According to the respondent/claimant, at the time of accident, she was self-employed. Considering the extent of disablement, assessed by PW.2, Doctor, which would affect the loss of earning and applying the decision of the Apex Court in Santosh Devi v. National Insurance Company Ltd., reported in 2012 (6) SCC 421, the Claims Tribunal has added 30% of the income towards future prospects. Monthly income has been fixed at Rs.3,000/- and after adding 30% towards future prospects, the Tribunal computed the loss of future earning to the extent of 40% disability at Rs.1,86,480/- [Rs.3,000/- + Rs.900/- (30% of the income) x 12 x 9 x 40%]. That apart, the Claims Tribunal has awarded Rs.10,000/- for pain and suffering, Rs.5,000/- for transportation and Rs.5,000/- for nutrition. Altogether, the Claims Tribunal has awarded Rs.2,06,480/- with interest at the rate of 7.5% per annum.
21. Judgment made in Santosh Devi's case, may not in strict senso, be applicable to the case of the respondent/claimant, who was stated to be aged 55 years at the time of accident. In a Full Bench decision of this Court in Cholan Roadways Corporation Ltd., Kumbakonnam vs. Ahmed Thambi and others reported in 2006 (4) CTC 433, at paragraph 19, it is held as follows, "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 and 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 loses, 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."
22. In Rajkumar v. Ajay Kumar reported in 2011 ACJ 1 (SC), the Supreme Court, at paragraphs 4 to 14, with illustrations explained, as to how the extent of loss of earning capacity has to be assessed, "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)]."
23. In the case on hand, though PW.2, Doctor, has assessed the extent of disability at 50%, to a 55 years old lady, the Claims Tribunal has not awarded any amount towards loss of amenities. Period of hospitalisation for nearly 20 days in Government Hospital, Dharmapuri, itself indicates the nature of injuries. Hip is an important place, which bears the weight of the whole body. Fracture in the hip, resulting in disablement, would cause considerable pain and suffering to the respondent/claimant. Compensation of Rs.10,000/- under the head, pain and suffering, is less.
24. Though the respondent/claimant has taken treatment in Government Hospital, considering the nature of injuries, certainly, she would have incurred certain expenses for medicine. In Nesamony Transport Corporation v. Senthilnathan reported in (I) 2000 ACC 332, this Court held that if there is evidence to show that the injured was hospitalised, then it could be presumed that the injured would have incurred some medical expenses.
25. During the period of hospitalisation and thereafter, the respondent/claimant would have taken the assistance of somebody. There is no award towards attendant charges. Therefore, even after deducting 30% awarded by the Claims Tribunal, towards future prospects, taken into consideration for estimating the loss of future earning, this Court is of the view that the overall quantum of compensation awarded to the respondent/claimant cannot be said to be excessive. However, it can be re-worked as hereunder:
Loss of future earning : Rs.1,29,600/-
Pain and Suffering : Rs. 30,000/-
Loss of Amenities : Rs. 25,000/-
Attendant Charges : Rs. 10,000/-
Transportation : Rs. 5,000/- Extra Nourishment : Rs. 5,000/- Medicine : Rs. 1,000/- Damage to Clothes : Rs. 880/- ------------------- Total : Rs.2,06,480/- -------------------
26. In the light of the above discussion and decisions, this Court is not inclined to reverse the finding, fixing liability on the appellant-Insurance Company to pay compensation. Hence, the Civil Miscellaneous Appeal is dismissed. Record of proceedings shows that at the time of entertaining the appeal, 50% of the award amount has been directed to be deposited. The appellant-Insurance Company is directed to deposit the balance amount, with proportionate accrued interests and costs, to the credit of M.C.O.P.No.322 of 2011, on the file of the Motor Accidents Claims Tribunal (Additonal District Judge), Dharmapuri, within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made, the respondent/claimant is permitted to withdraw the same, by making necessary applications before the Tribunal. No costs.
03.04.2014 Index: Yes Internet: Yes skm To The Motor Accident Claims Tribunal, (Additonal District Judge), Dharmapuri.
S. MANIKUMAR, J.
skm C.M.A.No.3078 of 2013 03.04.2014