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