B. Kothandapani Vs Tamil
Nadu State Transport Corporation Ltd.
J U D G M E N T
P. Sathasivam, J.
1.
Leave
granted.
2.
These
appeals are directed against the judgment and final order dated 13.12.2006
passed by the High Court of Judicature at Madras in C.M.A. Nos. 103 and 122 of
2001 in and by which the High Court modified the award of the Tribunal, i.e.,
from Rs. 5,05,053.45/- to Rs.4,05,053.45/- as compensation payable to the
appellant-claimant.
3.
Brief
facts:
a. The
appellant-claimant sustained grievous injuries in a motor vehicle accident, which
occurred on 21.05.1998 for which he made a claim before the Motor Accident
Claims Tribunal, Chennai (hereinafter referred to as "the Tribunal") in
O.P. No. 3868 of 1998 for a sum of Rs. 12 lakhs as compensation. The Tribunal, after
finding that the accident was caused due to the negligence of the driver of the
Tamil Nadu State Transport Corporation (Villupuram Division-III), Kancheepuram (hereinafter
referred to as "the Corporation"), by order dated 20.12.2000, quantified
the compensation and passed an award for Rs.5,05,053.45.
b. Aggrieved by the award
of the Tribunal, the Corporation filed C.M.A. No. 103 of 2001 before the High
Court of Madras challenging the quantum of compensation. The appellant-claimant
also filed C.M.A. No. 122 of 2001 before the High Court for the enhancement of
the compensation amount. Inasmuch as both the appeals arose from the same award
of the Tribunal, the High Court heard and decided the appeals together and passed
a common order on 13.12.2006 reducing the compensation to the extent of
Rs.1,00,000/-. In other words, by the said order, the High Court allowed the appeal
of the Corporation to the extent of Rs.1,00,000/- and dismissed the appeal of the
claimant for enhancement of the compensation.
c. Questioning the
judgment and final order of the High Court, the claimant has filed the above
appeals by way of special leave petitions before this Court praying for
enhancement of compensation to the extent awarded by the Tribunal.
1.
2.
3.
4.
Heard
Mr. Vipin Nair, learned counsel for the appellant-claimant and Mr. T. Harish Kumar,
learned counsel for the respondent-Corporation.
5.
The
only point for consideration in these appeals is whether the appellant is entitled
to a sum of Rs. 1,00,000/- towards "permanent disability" in addition
to the amount awarded under the head "loss of earning capacity"? Inasmuch
as the issue is confined only to the quantum of compensation, it is not
necessary to traverse the factual details relating to the accident. Even
otherwise, the claimant alone has filed the present appeals and the Corporation
has not challenged the findings relating to negligence, it is not necessary to go
into the conclusion arrived at on the negligence aspect holding that the driver
alone was responsible for the accident. Even, with regard to the quantum of
compensation, except reduction of Rs. 1,00,000/- which was awarded by the
Tribunal for permanent disability, it is not necessary to go into the quantum of
compensation under various heads and the ultimate order of the Tribunal and the
High Court.
6.
The
appellant-claimant, in his evidence as PW-1, deposed that he had sustained
injury on the center finger of the right hand, his knee joint on the right leg
had been dislocated, injury on the right cheek and eyes, that he cannot see
with his left eye, his right foot had been injured and his right ankle joint
dislocated. He further explained that after the accident, he was immediately taken
to the Government Hospital at Chengalpet and received the First Aid and later he
had been admitted in the Govt. Stanley Hospital and was under treatment for 25 days
as inpatient. The Discharge Summary issued therein has been marked as Ex. P-1. He
further narrated that he had undergone Physiotherapy after 25 days which is evident
from Ex. P-2. He had also undergone skin surgery at the Stanley Hospital and the
certificate relating to the same has been marked as Ex.P-3. Even after discharge
from the Stanley Hospital, he was not fully recovered and he had been admitted in
Malar Hospital at Adayar and received treatment for two days. The Discharge
Summary has been marked as Ex.P-4. According to the appellant-claimant, the middle
finger of his right hand had been amputated at the Malar Hospital, Adayar. The
prescription issued at the Malar Hospital has been marked as Ex. P-5. From his evidence,
it is seen that during the time of the accident, he was working as a Foreman in
M/s Armstrong Hydraulics Limited and after the accident he is unable to do any work
as he cannot bend the fingers of his right hand and using his left hand for
eating and there is pain in his right leg and he cannot travel in a two wheeler
or in a transport bus.
7.
Dr.
R. Rajappa was examined as PW-2. In his evidence, he deposed that the appellant-claimant
was injured in the accident said to have been occurred on 21.05.1998 and he had
received treatment as an inpatient at the hospital at Chengalpet, later he had
been admitted as an inpatient at the Govt. Stanley Hospital. He had seen a
lengthy scar on his right eye and his right eyebrow had been found to be fallen
and the retina of the eye was found to be large and that it had lost the shrinking
capacity and the nerves of the eye had been affected and there was no
circulation of blood and he lost his eye sight by about 3 meters. On examination
and perusing the medical documents about his treatment, he concluded 30% of the
disability had been caused due to the injury on the right eye and issued a
Disability Certificate which has been marked as Ex. P-9.
8.
Dr.
J.R.R. Thiagarajan was also examined as PW-3. In his evidence, he deposed that the
right hand of the appellant had been injured due to the said accident and his middle
finger on the right hand had been amputated and a plate had been placed on the
fore finger towards the dislocation of the bone. He also explained that he had
undergone treatment towards the injury on the right forehand and on the right
cheek and that the plate is still there on the right fore finger due to which
he cannot bend the fore finger and other fingers properly and it is difficult
for him to eat and there was swelling on the palm of his right hand and issued a
Disability Certificate which has been marked as Ex. P-The Certificate issued by
the employer Ex. P-8 shows that at the time of the accident, the appellant was working
as a Grade-III worker in the firm M/s Armstrong Hydraulics Ltd. and he was
getting a salary of Rs.3,295.28/- after deductions.
9.
The
Disability Certificates, Exs.P-9 & P-10, issued by the two doctors, show
that the appellant had disability to the extent of 90%. The Tribunal, after
considering the fact that the assessment of disability may vary to the extent of
5%, concluded that the appellant had sustained permanent disability to the
extent of 85% and taking note of his age and avocation, awarded compensation of
Rs. 1,50,000/- for the same.
10.
The
High Court, relying on its own Full Bench decision in Cholan Roadways Corporation
Ltd. vs. Ahmed Thambi and Others, 2006 (4) CTC 433, after finding that since the
claimant had been awarded a sum of Rs. 3 lakhs towards the loss of earning capacity
set aside the award of Rs. 1,50,000/- granted under the head "permanent disability"
and awarded a further sum of Rs.50,000/- in addition to the amount awarded by the
Tribunal.
11.
In
Ramesh Chandra vs. Randhir Singh & Ors. (1990) 3 SCC 723 while considering award
of compensation for permanent disability (right foot amputated) caused by the
accident under Section 110B of the Motor Vehicles Act, 1939 which is similar to
Section 168(1) of the Motor Vehicles Act, 1988, this Court upheld the award of compensation
under separate head of pain, suffering and loss of enjoyment of life, apart
from the head of loss of earnings. The discussion and ultimate conclusion are
relevant which reads as under:- "7. With regard to ground XIX covering the
question that the sum awarded for pain, suffering and loss of enjoyment of life
etc. termed as general damages should be taken to be covered by damages granted
for loss of earnings is concerned that too is misplaced and without any basis.
The pain and suffering
and loss of enjoyment of life which is a resultant and permanent fact occasioned
by the nature of injuries received by the claimant and the ordeal he had to
undergo. If money be any solace, the grant of Rs 20,000 to the claimant represents
that solace. Money solace is the answer discovered by the Law of Torts. No substitute
has yet been found to replace the element of money. This, on the face of it appeals
to us as a distinct head, quite apart from the inability to earn livelihood on the
basis of incapacity or disability which is quite different.
The incapacity or
disability to earn a livelihood would have to be viewed not only in praesenti
but in futuro on reasonable expectancies and taking into account deprival of earnings
of a conceivable period. This head being totally different cannot in our view overlap
the grant of compensation under the head of pain, suffering and loss of enjoyment
of life. One head relates to the impairment of person's capacity to earn, the
other relates to the pain and suffering and loss of enjoyment of life by the person
himself. For these reasons, we are of the considered view that the contentions raised
by the truck owner appellant in that behalf must be negatived and we hereby negative
them."
12.
It
is true that the compensation for loss of earning power/capacity has to be determined
based on various aspects including permanent injury/disability. At the same time,
it cannot be construed that compensation cannot be granted for permanent
disability of any nature. For example, take the case of a non-earning member of
a family who has been injured in an accident and sustained permanent disability
due to amputation of leg or hand, it cannot be construed that no amount needs
to be granted for permanent disability.
It cannot be disputed
that apart from the fact that the permanent disability affects the earning capacity
of the person concerned, undoubtedly, one has to forego other personal comforts
and even for normal avocation they have to depend on others. In the case on hand,
two doctors had explained the nature of injuries, treatment received and the
disability suffered due to partial loss of eye-sight and amputation of middle
finger in the right hand and we have already adverted to the avocation, namely,
at the time of accident, he was working as Foreman in M/s Armstrong Hydraulics Ltd.
Taking note of his nature of work, partial loss in the eye sight, loss of
middle finger of the right hand, it not only affects his earning capacity but
also affects normal avocation and day-to-day work. In such circumstance, we are
of the view that the Tribunal was fully justified in granting a sum of
Rs.1,50,000/- towards permanent disability.
13.
Considering
the evidence of injured-claimant as PW-1 and two doctors as PWs. 2 & 3
coupled with the Disability Certificates and medical documents, we conclude
that the High Court was not justified in disallowing a sum of Rs.1,00,000/- from
the total compensation of Rs.5,05,053.45 awarded by the Tribunal. We agree with
the contention raised by the learned counsel for the appellant-claimant and
restore the award of the Tribunal. In other words, the Corporation is liable to
pay Rs. 5,05,053.45 with interest as awarded by the Tribunal. If the said amount
has not been deposited so far, the Corporation is directed to deposit the same
in the Tribunal within two months from the date of the receipt of this order
and if any amount had already been deposited /paid to the claimant, the same shall
be adjusted. On such a deposit being made, the appellant-claimant is permitted
to withdraw the same. The appeals are allowed to the extent mentioned above. There
shall be no order as to costs.
..........................................J.
(P. SATHASIVAM)
..........................................J.
(DR. B.S. CHAUHAN)
NEW
DELHI;
MAY
12, 2011.
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