Shanavas K.A. @APPELLANT@Hash V Jayalakshmi And Ors

This appeal is preferred against the award in O.P.(M.V.) No.1503 of 2010 of the Motor Accidents Claims Tribunal, Perumbavoor by the injured. Appellant sustained injuries in a motor accident on 27.07.2010 and the learned tribunal awarded an amount of Rs.10,18,610/-(Rupees Ten Lakhs Eighteen Thousand Six Hundred and Ten only) as compensation. Being dissatisfied with the award amount, the injured preferred this appeal.

Appellant's claim in the lower court was that, on the date of accident, he was riding KL-40/B-4597 through Aluva-Ernakulam National High Way and when he reached at Pathadippalam, a Lorry TN-10/K-4386 driven in a rash and negligent manner hit against the appellant's vehicle. As a result, he sustained serious injuries. Immediately he was removed to Medical Centre, Ernakulam and thereafter treated at Medical Trust Hospital, Ernakulam. The driver and owner of the vehicle were set ex parte in the trial court. The insurer admitted the insurance of the vehicle. Appellant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A10. Exts.C1 and C2 were marked as court exhibits.

Learned counsel appearing for the appellant contended that he is entitled to get just amount as compensation. Appellant is a Heavy Vehicle Driver by profession and was getting Rs.7,500/- per month, but the learned tribunal took Rs.5,000/- as his income for calculating compensation for permanent disability.

The damages are to be assessed separately as pecuniary and special damages. The object is to compensate injury so far as money can compensate. When compensation is to be awarded for pain, suffering and loss of amenity in life, special circumstances of claimant have to be taken into account. Amount of compensation for non-pecuniary loss is not easy to determine, but award must reflect that different circumstances have been taken into consideration. Hence, the multiplier method has to be followed to calculate pecuniary loss upon annual basis. Therefore, the appellant is entitled to get just amount as compensation.

In Yadava Kumar v. D.M. National Insurance Co. Ltd.-2010 (8) SCALE 567 Apex Court reiterated the principle in relation to the assessment of damages for personal injuries cases and held as follows:

" 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 hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered.

In some cases for personal injury, the claim could be in respect of lifetime's earning lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases, and that is now recognised mode as to the proper measure of compensation-is taking an appropriate multiplier of an appropriate multiplicand."

In this case, the appellant claimed to be a Heavy Goods Driver and was getting an amount of Rs.7,500/- per month. There was no dispute by the insurer about the income stated by the appellant. Apex Court in Dixit Kumar and Ors. v. Om Prakash Goel (2017 ACJ 2057) held that the reduction of income by the tribunal in the absence of any dispute or contra evidence is unsustainable.

Apex Court in Rajkumar v. Ajay Kumar and Anr. [2011 ACJ 1] held that the injured in a motor accidents claims petition is entitled to get just amount for his permanent disability. In paragraph nos.8,9,10 &11 it was held as follows:

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, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently 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 terms 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 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) SCALE 298 and Yadava Kumar v. D.M. National Insurance Co. Ltd.-2010 (8) SCALE 567.

Therefore, the Tribunal has to first decide whether there is any permanently disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.

10.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 had of loss of amenities of life). The second step is to ascertain his avocation, 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. 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 function; 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 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. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.

The Tribunal should not be silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. 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 postilion 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 (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorised texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the First Schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional disability with reference to the whole body and if so the percentage.

When free movement of a person is curtailed and his function as a driver is obstructed due to the injuries sustained in the accident, I am of the view that it will affect his earning capacity. In that limited sense, the functioning of the limb as a driver has been restricted to a great extent and that too at the age of 27 years. Therefore, while fixing the multiplicant, 20% of future earning has to be added along with the income. Therefore, his monthly income is Rs.7,500/-. For calculating compensation for Permanent Disability, 20% of the income i.e., Rs,1,500/- ( 7,500x20%) has to be added. Accordingly, Rs.6,79,320/- (9000x12x17x37/100) is awarded for Permanent Disability. The learned tribunal awarded an amount of Rs.3,77,400/- towards permanent disability and the balance is Rs.3,01,920/-. Along with that he is entitled to get loss of income for 12 months Rs.90,000/- (7,500x12). The learned tribunal awarded an amount of Rs.45,000/- for loss of income, the balance is Rs.45,000/-. Loss of amenities additional Rs.40,000/-, Pain and sufferings additional Rs.40,000/-, Loss of marriage prospects additional Rs.25,000/-, Extra Nourishment additional Rs.10,000/-. Hence, the appellant is entitled to get Rs.4,61,920/- (Rupees Four Lakh Sixty One Thousand Nine Hundred and Twenty only) with 9% interest per annum from the date of petition till realisation with proportionate cost in addition to Rs.10,18,610/- (Rupees Ten Lakhs Eighteen Thousand Six Hundred and Ten only) awarded by the learned Tribunal. The insurer is directed to satisfy the award within a period of thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest per annum from the date of default.

This M.A.C.A is disposed of as above.