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Judgment
R. Banumathi, J.—Challenge in this appeal is the award passed in M.C.O.P.No.59 of 2010 dated 09.06.2011 awarding compensation of
Rs. 14,48,000/- for the injuries sustained by the 1st Respondent-Claimant. Brief facts are that on 20.02.2010, in the midnight at 1.00 P.M., 1st
Respondent-Claimant was driving the Tata Indica Car bearing registration No.TN-23 AT 6367. When the Car was proceeding near Vaniyambadi
in Coimbatore-Salem NH-47 main road at about 3.30 A.M. in Chit ode IRTT junction, 407 van bearing registration No.TN-33 AP 6102 came in
the opposite direction from south to north driven in a rash and negligent manner and hit against the Tata Indica Car. Due to the accident, Claimant
sustained severe head injuries, deformity in right thigh, fracture in right knee, fracture in right femur. There was a contusion in his temporal region
and the Claimant became unconscious. He was admitted in Government Hospital, Erode. After first aid treatment in Erode Government Hospital,
Claimant was admitted in Salem Vinayaga Mission Hi-Tech Hospital. Regarding the accident a Criminal Case in Crime No.80/2010 of Chit ode
Police Station was registered against the van driver under Sections 279, 337 and 338 IPC. At the time of accident, Claimant was working as
driver and getting salary of Rs. 15,000/- per month. The accident was on 20.02.2010. Within one month thereafter the Claim Petition was filed. At
the time of filing of Claim Petition, Claimant-Venkatesan @ Mayan was unconscious and not in a position to take care of himself. Hence, Claim
Petition came to be filed by the wife-Deepak representing the Claimant.
Denying the manner of accident, Appellant-Insurance Company has filed the counter contending that 407 van [TN-33 AP 6102] driver was not
rash and negligent and only the Claimant was driving the Tata Indica Car in a negligent manner. The owner of Tata Indica Car which the Claimant
was driving and the Insurance Company ought to have been impleaded as Respondents. Appellant-Insurance Company also denied the age,
occupation and income of the 1st Respondent-Claimant.
In the Tribunal, wife of the Claimant-Deepak was examined as PW1. Eye-witness-Dakshinamurthy was examined as PW2. Dr. P.
Ramakrishnan, who issued Ex.P14-Disability certificate was examined as PW3. Dr. A.D. Sampathkumar, who issued Ex.P17-Disability certificate
was examined as PW4. Exs.P1 to P18 were marked. No oral and documentary evidence was adduced on the side of Appellant-Insurance
Company.
Upon consideration of evidence of eye-witness PW2-Dakshinamurthy, Tribunal held that the accident was due to rash and negligent driving of
407 van [TN-33 AP 6102] driver. Criminal Case in STC.No.186 of 2010 on the file of Judicial Magistrate No. II, Erode was also registered
against the van driver. Ex.P4-charge sheet was filed by the Sub-Inspector of Police, Chit ode Police Station against the van driver under Sections
279, 337 and 338 IPC. As is seen from Ex.P5-copy of judgment in STC.No.186 of 2010 (17.05.1020) on the file of Judicial Magistrate No. III,
Erode, the van driver has admitted the offence and paid the fine. Based upon Exs.P1, P4 and P5 and evidence of PW1-Deepa and also PW2-
eyewitness, Tribunal held that the accident was due to rash and negligent driving of the van driver. The said finding is based upon the evidence and
unassailable. Only quantum of compensation is under challenge.
Quantum of compensation - Deceased was working as driver and he was getting salary of Rs. 15,000/- per month. Tribunal has taken the
monthly income at Rs. 5,000/- and since Claimant was unable to sit, Tribunal has taken the permanent disability at 90%. Adopting multiplier ""17"",
Tribunal has calculated Rs. 9,18,000/- for permanent disability. Based upon Ex.P9-series medical bills, Tribunal awarded Rs. 4,00,000/- for
medical expenses and awarding compensation for other heads, Tribunal has awarded total compensation of Rs. 14,48,000/- .
Mr. J. Chandran, learned counsel for Appellant has contended that Tribunal ought not to have believed the evidence of PW3-Dr. Ramakrishnan
and it was further submitted that when Pws.3 and 4 issued permanent disability certificates [Exs.P14 and P17] assessing the disability at 55% and
42% respectively, Tribunal was not right in fixing the permanent disability at 90%. It was further submitted that Claimant suffered fracture of right
femur and right patella which are simple in nature and while so, the quantum of compensation of Rs. 14,48,000/- awarded by the Tribunal is
arbitrary and excessive.
At the time of accident, Claimant was driving the Tata Indica Car. In the accident, Claimant sustained severe head injuries, deformity in right
thigh, fracture in right knee, abrasion over the chest wall, fracture in right femur and right patella and there was fracture shaft of right femur and
comminuted fracture patella right side. Immediately, after the accident, Claimant was admitted in Government Hospital, Erode from where he was
taken to Vinayaga Mission Hi-Tech Hospital, Salem where he had taken treatment for nearly two months - 21.02.2010 to 16.04.2010. During the
course of his treatment, two surgeries were conducted. Ex.P8-discharge summary contains nature of treatment given. C.T. Scan was taken. As is
seen from Exs.P11 and P12, the impression during C.T. Scan was ""multiple small petechial haemorrhagic contusions in bilateral temporal lobes,
right cerebral peduncle, Genus of corpus callosum and left frontal lobe with minimal subarachnoid hemorrhage"".
In her evidence, PW1, wife of Claimant has stated that due to the accident Claimant sustained severe head injuries and because of head injuries,
Claimant is not in a position to understand the things and that he is unable to take care of himself. Dr. P. Ramakrishnan, who clinically examined the
Claimant and also issued Ex.P14-disability certificate was examined as PW3. In his evidence PW3 has stated that because of the injury, Claimant
has become non-communicable, not responding to the oral commands, not able to speak and has stiff joints with difficulty in moving the limbs. In
his evidence PW3 has also stated that Claimant is unable to walk, not able to attend to his personal needs and that he is totally dependent on
others. On clinical investigation and upon examination of Claimant, PW3 has assessed the loss of disability due to the injuries at 55% and issued
Ex.P14-disability certificate. Dr. A.D. Sampathkumar, Assistant Professor, G.M.K.M.C. Hospital, Salem who examined the Claimant and issued
Ex.P17-Disability certificate was examined as PW4. PW4-Dr.A.D.Sampathkumar also noted that the right leg joints reduced with stiffness and
that the movements are restricted; right knee flexibility was also reduced. PW4 has opined that ""Claimant has difficulty in standing on the right leg,
walking on slope climbing stair, sitting with cross legged or squat kneeling. PW4 has estimated the disability at 42%. PW4 would further state that
the rod has to be removed for which the Claimant has to incur future medical expenses to the tune of Rs. 30,000/- .
In the evidence of PW1-Deepa, Tribunal has recorded that Claimant was brought to the Court by two persons and Claimant was made to lie-
down on the bench. Tribunal had noticed that Claimant is unable to stand and that he is bedridden. Claimant being a driver has now become
immobilised and permanently disabled from carrying on his normal avocation. The physical frame of the Claimant has been shattered depriving him
to carry on his normal avocation of ""driving"". Appellant-Insurance Company is not right in contending that Claimant has sustained only simple
injuries. As is seen from Ex.P14-disability certificate, Claimant is ""not responding to the oral commands"" and he is ""not able to speak"". The
observation recorded in Exs.P14 and P17-disability certificates would show that for the rest of his life the Claimant would have to depend on
others. Even though Pws.3 and 4 have assessed the permanent disability only at 55% and 42% respectively, since the Claimant is permanently
disabled from carrying on his normal avocation, Tribunal was right in taking the permanent disability at 90%.
Where the Claimant suffers permanent disability as a result of injuries, the loss of earning capacity on account of permanent partial disability
suffered by the Claimant cannot be calculated in terms of percentage of disability only. It will have serious repercussions on his avocation and
prospects of earning. Being immobilized, the Claimant will have to face the other handicaps.
In Arvin Kumar Mishra v. New India Assurance Co. Ltd., (2010) ACJ 2867 (SC), the Supreme Court considered the plea for enhancement
of compensation made by the Appellant therein, who was a student of final year of engineering and had suffered 70% disablement in a motor
accident. After noticing factual matrix of the case, the Supreme Court observed as under:-
We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of
assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as
money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the done no
wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered.
(underlining added)
In Raj Kumar v. Ajay Kumar 2011 ACJ 1 (SC), the Supreme Court considered some of the precedents and held as under:
The provision of the Motor Vehicles Act, 1988 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 and 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.......
(underlining added)
In Govind Yadav Vs. New India Assurance Co. Ltd., 2012 ACJ 28 (SC) the Supreme Court held that the principles laid down in Arvin
Kumar Mishra v. New India Assurance Co. Ltd., 2010 ACJ 2867 (SC) and Raj Kumar Vs. Ajay Kumar and Another, must be followed by all
the Tribunals and High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently
or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not
only for the physical injury and treatment, but also for the loss of earnings and his inability to lead a normal life and enjoy amenities, which he would
have enjoyed but for the disability caused due to the accident.
Emphasising the need for strong balance between the inflated and unreasonable demands of the victim, in Nizam Institute of Medical Sciences
Vs. Prasanth S. Dhananka and Others, , the Supreme Court held as under:
We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of the victim and the equally
untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making
a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The ''adequate compensation''
that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties
concerned...... At the same time we often find that a person injured in an accident leaves his family in greater distress vis-a-vis a family in a case of
death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case
of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day.
The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim
but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.
(underlining added)
Applying the ratio of the above decisions, we find that based on the medical evidence and nature of disability, the Tribunal was right in fixing the
permanent disability at 90%.
Claimant was working as driver and he would have been earned not less than Rs. 15,000/- per month. In her evidence, PW1 has stated that
her husband was earning the income of more than Rs. 15,000/- per month. Though the income stated by PW1 is slightly higher, being a driver,
Claimant would have earned not less than Rs. 7,500/- per month. However, Tribunal has taken the income only at Rs. 5,000/- per month which
we find very fair and reasonable and the same is confirmed. At the time of accident, the Claimant was aged 27 years and Tribunal adopted
multiplier ""17"" which is also confirmed. Taking the income at Rs. 5,000/- per month and adopting multiplier ""17"", Tribunal has awarded Rs.
9,18,000/- (Rs. 5000/- x 90% x 12 x 17 = Rs. 9,18,000/- ) for ""permanent disability"" and the same is confirmed.
As pointed out earlier, Claimant has taken treatment in various hospitals and continues to take treatment. Based upon Ex.P9-series medical
bills, Tribunal has awarded Rs. 4,00,000/- for ""medical expenses"". For the rest of his life, Claimant has to depend on others, Tribunal has awarded
Rs. 25,000/- for ""attender charges""; Rs. 20,000/- for ""future medical expenses""; Rs. 50,000/- for ""loss of marital life""; Rs. 10,000/- for ""transport
charges"" and Rs. 25,000/- for ""pain and suffering"". The quantum of compensation awarded in those conventional heads are quite reasonable and
the same are maintained. Thus the total compensation of Rs. 14,48,000/- awarded by the Tribunal is just and reasonable. We find no reason
warranting interference.
In the result, the appeal is dismissed. No costs. Consequently, connected M.P. is closed. It was stated before us that as per the order in M.P.
No.1 of 2011 dated 08.11.2011, Appellant-Insurance Company has deposited the entire amount. 1st Respondent-Claimant is permitted to
withdraw the entire compensation amount along with accrued interest immediately after the receipt of copy of this Judgment.