Sri Nagarajappa Vs The
Divisional Manager, The Oriental Insurance Co. Ltd.
J U D G M E N T
GANGULY, J.
1.
Leave
granted.
2.
On
13.08.2004 at about 6 p.m., the appellant was crossing the road carefully when a
BMTC bus (bearing registration No.KA-05-B-5245) came in a rash and negligent manner
and dashed against the appellant whereupon he was admitted in hospital for treatment
as he had sustained multiple injuries.
3.
The
appellant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988
claiming compensation of Rs.5,00,000/-. The appellant was working as a coolie and
claimed that he was earning a monthly income of Rs.4,500/- p.m.
4.
The
Tribunal concluded that the accident occurred for the rash and negligent
driving of the bus driver as a result of which the appellant had sustained injuries
in the accident. On perusal of evidence it was found that the appellant had sustained
injuries of compound fracture of ulnar styloid process of the left hand and sub
luxation of the left wrist. The doctor assessed disability at 23% of the whole body.
Therefore, it awarded Rs.20,000/- for loss of amenities, Rs.30,000/- for pain and
suffering, Rs.30,000/- for medical expenses and conveyance and Rs.2,000/- for future
medical treatment. For loss of income during the period of treatment, the
Tribunal found that due to the nature of the disability the appellant was
unable to work as a coolie or do other manual work. It also added that only the
left hand was injured, so the right hand was free to work. The appellant was an
indoor patient for 55 days. Thus, the Tribunal presumed that the appellant was unable
to work for 3 months. Further, though the appellant claimed to be earning
Rs.4,500/- p.m., it was not supported by documentary evidence. Hence, the Tribunal
presumed his income to be Rs.3000/- p.m. and awarded Rs.9,000/- for loss of
income during the period of treatment. For computation of loss of future income
due to disability, the Tribunal took into consideration that disability of the whole
body of the appellant had been assessed at 23%, however, his right hand was
still free to work. Thus, it assessed disability at 20%. Medical evidence showed
that the appellant was around 55 years at the time of the accident, for which a
multiplier of 11 was adopted. Accordingly, loss of future income was calculated
to be Rs.79,200/- (Rs.3000 X 12 X 11 X 20/100). The Tribunal fastened liability
on the insurance company. Thus, total compensation was Rs.1,70,200/- payable to
the appellant jointly and severally, with interest @ 6% from date of the claim petition
till realization.
5.
On
appeal, the High Court enhanced compensation for pain and suffering, medical expenses,
future medical expenses, loss of amenities and loss of future income as against
the amount awarded by the Tribunal. For loss of future income, the High Court concluded
that from material on record, the age of the claimant was between 45 to 55
years. Thus, it took 50 years as the safe age and adopted a multiplier of 13, income
was taken as Rs.3000/- p.m. and disability @ 20%. Accordingly, loss of future
income was calculated at Rs.93,600/- (Rs.3000 X 12 X 13 X 20/100). Compensation
was thus enhanced and awarded as follows: Pain and suffering -Rs.40,000/- Medical
expenses, nourishment, attendant Charges and other incidental expenses -Rs.40,000/-
Loss of income during treatment -Rs.9,000/- Loss of future income -Rs.93,600/- Loss
of amenities -Rs.30,000/- Future medical expenses -Rs.10,000/- TOTAL -Rs.2,22,600/-
6.
Being
still aggrieved by the compensation awarded, the appellant approached this Court
by filing an Special Leave Petition praying for further enhancement of
compensation.
7.
Having
gone through the records, we are of the opinion that Rs.2,22,600/- awarded by
the High Court is inadequate considering the nature of injuries suffered by the
appellant and the consequent adverse effect it has on the performance of his
avocation.
8.
In
reaching our decision, we are drawn to, if we may so, a very well-considered judgment
of this Court in Raj Kumar v. Ajay Kumar & Anr. [(2011) 1 SCC 343], wherein
the Bench, comprising of Hon'ble Raveendran and Gokhale, JJ., has propounded the
law on compensation in motor accidents claims cases resulting in disability in a
comprehensive manner. The relevant portions of the judgment are extracted
below:
a. "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, the percentage of loss of earning capacity, arising from
a permanent disability will be different from the percentage of permanent
disability. ... ..."
b. What requires to be assessed
by the Tribunal is the effect of the permanent 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 the 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)
SCC 254] and Yadava Kumar v. National Insurance Co. Ltd. [2010 (10) SCC 341].
c. xxx xxx xxx
d. 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,
6 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.
e. 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 be 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.
f. xxx xxx xxx
g. ... ... 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 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..."
9.
We
are in complete agreement with the abovementioned judgment.
10.
On
perusal of the doctor's evidence with respect to the nature of injuries suffered
by the appellant, the appellant was found, inter alia, to be suffering from the
following disabilities as a result of the accident- "gross deformity of the
left forearm, wrist and hand, wasting and weakness of the muscles of the left upper
limb and shortening of the left upper limb by 1 c.m." As a result, the
doctor stated that the appellant could not work as a coolie and could not also 8
do any other manual work. The doctor assessed permanent residual physical disability
of the upper limb at 68% and 22-23% of the whole body.
11.
The
appellant is working as a manual labourer, for which he requires the use of both
his hands. The fact that the accident has left him with one useless hand will severely
affect his ability to perform his work as a coolie or any other manual work,
and this has also been certified by the doctor. Thus, while awarding compensation
it has to be kept in mind that the appellant is to do manual work for the rest
of his life without full use of his left hand, and this is bound to affect the quality
of his work and also his ability to find work considering his disability. Hence,
while computing loss of future income, disability should be taken to be 68% and
not 20%, as was done by the Tribunal and the High Court. Our view is supported
from the ratio in Raj Kumar (supra) and from the fact that the appellant is severely
hampered and perhaps forever handicapped from performing his occupation as a
coolie.
12.
Thus,
loss of future income will amount to Rs.3,18,240/- (Rs.3000 X 12 X 13 X 68/100).
We also enhance the amount awarded for loss of amenities to Rs.40,000/-, as
against Rs.30,000/- awarded by the High Court. We also enhance the amount awarded
for future medical expenses to Rs.30,000/-, as against Rs.10,000/- awarded by the
High Court. We are satisfied by the amount awarded under the remaining heads
awarded by the High Court and sustain the same.
13.
The
break-up of compensation is as follows: Loss of future income Rs.3,18,240/- Loss
of amenities - Rs.40,000/- Pain and suffering Rs.40,000/- Future medical
expenses - Rs.30,000/- Medical expenses, nourishment, attendant Charges and
other incidental expenses-Rs.40,000/- Loss of income during treatment Rs.9,000/-
TOTAL -Rs.4,77,240/-
14.
Accordingly,
total compensation payable to the appellant amounts to Rs.4,77,640/-, which we round
off to Rs.4,77,000/-. The same shall be payable at an 1 interest of 6% from the
date of claim petition till realization. We direct the respondent to calculate the
amount and deposit the same by way of bank or demand draft in the Motor Accident
Claims Tribunal, Bangalore and the Presiding Officer of the Tribunal will deposit
the same in the bank account of the appellant. If there is no such bank account
one shall be opened in a nationalized bank and the demand draft will be deposited
there.
15.
Accordingly,
the appeal is allowed.
16.
No
order as to costs.
.......................J.
(G.S. SINGHVI)
.......................J.
(ASOK KUMAR GANGULY)
New
Delhi
April
11, 2011
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