R. Venkatesh vs P. Saravanan and Others

This is a claimant''s appeal against the judgment and award dated 1-3-1997 passed by the Motor Accidents Claims Tribunal, Bangalore City in M.V.C. No. 45 of 1995.

According to the appellant, on 16-3-1994 at 3 p.m. he was travelling in an autorickshaw bearing No. KA-02-5824 on Tumkur-Bangalore Road; that when the auto rickshaw was taking a turn towards Bangalore on National Highway No. 4 near Batawadi, lorry bearing No. TN-29-Y-2732 came from the opposite direction being driven in a negligent manner, at a high speed, and dashed against the autorickshaw; and that as a result of such accident, the claimant was thrown out of the autorickshaw and the lorry ran over his left leg and his left lower limb was crushed. As a consequence the left leg was amputated below the knee. He therefore filed M.V.C. No. 45 of 1995 claiming a compensation of Rs. 8,00,000.00 contending that the accident occurred due to the composite negligence of the drivers of the lorry and the autorickshaw.

The first and second respondents are respectively the owner and insurer of the lorry bearing No. TN-29-Y-2732. The third and fourth respondents are respectively the owner and insurer of the autorickshaw bearing No. KA-02-5824. The petition was resisted by the second and fourth respondents. The first and third respondents did not contest the petition.

On the basis of the pleadings, following issues were framed by the Tribunal.-

"1. Whether the petitioner proves the accident that took place on Bangalore-Tumkur Road near Batawadi at 3 p.m. on 16-3-1994, was due to rash and negligent driving of the lorry bearing No. TN-29-Y-2732 and the autorickshaw bearing No. KA-02-5824 by the respective drivers?

Whether the petitioner proves that he sustained injuries and he is entitled to compensation, as prayed for?

Whether there are sufficient grounds to condone the delay in filing the petition?

To what order?"

The claimant examined himself as P.W. 1 and the Doctor who treated him as P.W. 2. He marked Exhibits P. 1 to P. 52. On behalf of the respondents, no evidence was let in.

After considering the evidence, the Tribunal, by judgment and award dated 1-3-1997 allowed the petition in part. It held that the accident occurred due to the rash and negligent driving of the lorry and autorickshaw by the respective drivers and respondents 1 and 2 are jointly and severally liable to pay 50% and respondents 3 and 4 are jointly and severally liable to pay the other 50% of the compensation awarded. The Tribunal awarded Rs. 2,36,000.00 as compensation to the claimant with interest at 6% p.a. from the date of the petition till the date of payment. The said amount has been awarded under the following heads:

For injuries, pain and Rs. 1,00,000.00 suffering 2. Loss of marital prospects/loss of Rs. 20,000.00 amenities. 3. Medical expenses (present and Rs. 20,000.00 future) nourishing food, attendant''s charges and conveyance 4. Loss of earning during the Rs. 12,000.00 period of treatment (at the rate of Rs. 1,000/- per month for 12 months. 5. Loss of future earnings Rs. 84,000.00 (at the rate of 500/- per month by applying a multiplier of 14)

Feeling aggrieved, the claimant has filed this appeal contending that the compensation awarded is inadequate. As this is a claimant''s appeal, the finding in regard to negligence is not assailed and the same has become final. The only point that arises for consideration is whether the compensation awarded is inadequate and whether it should be increased.

The claimant was aged 26 years at the time of the accident. According to claimant, before the accident he was working as a loader, earning Rs. 2,000.00 per month; and as a result of the amputation, he can no longer do any kind of work and has lost his earning capacity and has become a burden on his family. His marital prospects are destroyed and he cannot have any social life nor lead any normal life. He has to undergo pain, suffering and hardship during entire reminder of his life as a cripple.

The claimant has been examined as P.W. 1 and the Doctor who treated him was examined as P.W. 2. The wound certificate (Ex. P. 2), the discharge record (Ex. P. 5), the case sheet (Ex. P. 50) and the X-rays (Exs. P. 51 and 52) have been exhibited to prove the injuries and the permanent disability. These documents discloses that the claimant''s left lower limb was badly crushed in the accident and consequently his left leg had to be amputated below the knee level. The evidence also discloses that the claimant was an in-patient in the Sanjay Gandhi Hospital for a period of 25 days and continued taking treatment as an out-patient for a period of 9 months. The evidence further discloses that the claimant will have to undergo one more operation for correction of the stump.

As a result of the amputation, the claimant had been rendered a cripple. He requires the help of crutches even for walking. He has become unfit for any kind of manual work. As he was earlier a loader doing manual work, the amputation of his left leg below the knee, has rendered him unfit for any kind of manual work. He has no education. In such cases, it is well-settled that the economic and functional disability will have to be treated as total, even though the physical disability is not 100%. The principle is aptly stated by the Gujarat High Court, in A.S. Sharma v Union of India and Another, thus:

"The assessment of damages in a case of personal injuries must be made on the basis as to what is the resultant impact and effect on the earnings or the capacity to earn. It is not entirely right to always make the future loss of income co-extensive with the extent of permanent disability. It is not an algebraic or mathematical formula which can be applied anywhere regardless of the avocation or profession or business of the injured claimant. It is a problem which has to be approached from the point of view as to what is the resultant effect on the actual earnings or on the earning capacity. Thereafter, it is required to be quantified in terms of money for just and reasonable amount of compensation. On the basis of the evidence as to the permanent disablement, whether complete or partial, the assessment has to be made as to what effects the said disability would have on the entire functioning of the body and how it would consequently affect the earnings or the capacity to earn".

In the said factual background and in the light of the above principles, we will now examine whether the award under several heads requires reconsideration.

Re: Injury, pain and suffering.-

The Tribunal has awarded Rs. 1,00,000/- under the head of injury, pain and suffering. In this behalf, the Tribunal has followed the decision of this Court in M.F.A. No. 2851 of 1995, DD: 8-11-1995. In view of the crush injury to the left lower limb suffered by the claimant, the subsequent amputation below the knee level, the period of treatment and suffering undergone by the claimant as a result of such injuries and amputation, we find that the award of Rs. 1,00,000/- is reasonable and does not call for interference.

Re: Loss of amenities.-

The Tribunal has awarded Rs. 20,000/- under this head. The claimant was aged 26 years when the accident occurred. His left lower limb has been amputated. His marital prospects have been affected. For the reminder of his life, he will have to walk with crutches and he cannot lead a normal life. He will have to undergo hardship, and suffering during the entire reminder of his life. In the circumstances, we increase the compensation under this head to Rs. 30,000.00.

Re: Medical and incidental expenses, past and future.-

The Tribunal, found that the claimant had produced the medical bills to the extent of Rs. 7,092.00 for treatment and cost of medicine. However, having regard to the fact that the claimant will have to undergo further operation to remove the bony fragment in the stump and having regard to the fact that the claimant would have spent considerable amount for nourishing food, cost of attendant and transportation of attendant during the period of treatment, the Tribunal awarded a sum of Rs. 20,000.00 under this head. It is reasonable and does not call for interference.

Re: Loss of earning during the period of treatment.-

The Tribunal has not accepted the claimant''s statement that he was earning Rs. 2,000.00 per month as a loader. The Tribunal has taken the income as Rs. 1,000.00 per month. It held that the period of treatment was 12 months and therefore, awarded Rs. 12,000.00 as loss of earning during the period of treatment.

The fact that the claimant was a loader (a manual labourer loading vehicles) before the accident is not seriously disputed. The figure taken by the Tribunal would mean that the claimant was having an average income of Rs. 33.00 per day. We find the same to be on the lower side. In the absence of any evidence in regard to the income, it is appropriate to take a sum of Rs. 15,000.00 per year (Rs. 1,250/- per month) as the income in the case of a loader in the year 1994. Thus, we award Rs. 15,000.00 under this head instead of Rs. 12,000.00.

Re: Loss of future earnings.-

The Tribunal has found that the claimant is incapable of earning any amount as a loader in future. As noticed above, the injury and the resultant amputation of the left lower limb has resulted in an economic and functional disability of 100%. The Tribunal, following the decision of a learned Single Judge of this Court in Oriental Insurance Company Limited v Kashim and Another, held that the claimant has suffered 100% loss of earning capacity. But, the Tribunal purporting to follow another decision of this Court in Nalina Vs. M.D., Karnataka Government Insurance Department and Another, , held only 50% of the income should be taken into account as multiplicand for calculating the future loss of earning. In that decision, this Court had in the case of a person who had completely lost the earning capacity, had observed as follows:

"The whole of this amount (referring to the salary income of 4,000/- at the time of the accident), however, cannot be taken to be the present value of the financial damage, which the claimant might suffer in future on account of her injuries because all sorts of uncertainties and imponderables will have to be kept in mind, besides the amount which the claimant would have spent on herself. Allowance must be made for all such contingencies or vicissitudes of life. Taking into consideration all the relevant factors, we would estimate one half of the amount, that is to say Rs. 2,000/- per month as reflection of present value of the loss of claimant''s earning capacity".

Following the said decision, the Tribunal took the loss of income as Rs. 500.00 per month (50% of Rs. 1,000/-) and loss of earning per year as Rs. 6,000.00. The Tribunal adopted the multiplier of 14 and arrived at the total loss of earning as Rs. 84,000.00.

The Tribunal has committed an error in calculating the loss of future income. It is now well-settled that no deduction can be made either on the ground that the compensation is being paid in a lumpsum or on the ground that lesser amount would reflect the present value of loss of claimant''s future earning capacity. If the calculation is made by adopting Davis method, the multiplier itself takes note of all imponderables and vicissitudes and therefore, further deduction on the ground of imponderables or accelerated receipt is not called. It is sufficient in this behalf to refer to the decisions of the Supreme Court in General Manager, Kerala State Road Transport Corporation, Trivandrum v Mrs. Susamma Thomas and this Court in H.T. Bhandary v Muniyamma.

Thus, the correct way of ascertaining the loss of earning capacity will be to take the annual income of the claimant as assessed, as the multiplicand and multiply it by the applicable multiplier. In this case, the annual income has been assessed as Rs. 15,000.00. The appropriate multiplier wilt be 15 as the claimant was aged 26 years, as per the decision in the case of Susamma Thomas, supra. The higher multiplier permitted in Trilock Chandra''s case will not apply as the accident occurred prior to 14-11-1994. Thus, the total loss of future earnings will be Rs. 15,000 x 15 = Rs. 2,25,000.00.

Thus, the total amount to which the claimant will be entitled is Rs. 3,90,000.00.

Accordingly, we allow the appeal in part and the compensation to which the claimant will be entitled is increased from Rs. 2,36,000.00 to Rs. 3,90,000.00 (Rupees Three Lakhs Ninety Thousand only) with interest at 6% p.a. from the date of the claim petition till the date of payment. 50% of the amount with corresponding interest shall be deposited in the name of the claimant in a Nationalised Bank for a period of five years (to be renewed for two further terms of five years each) with liberty to the claimant to draw the interest therefrom. Parties to bear their respective costs in this appeal.