Sudhir Jain vs Virendra Singh and Others

G.D. Saxena, J.—This is an appeal preferred u/s 173 of the Motor Vehicles Act by the claimant/appellant against an Award dated 23rd July 2005 issued in Claim Case No. 7/2005 by the Member of the Motor Accidents Claims Tribunal, Bhind directing payment of compensation of Rs. 28,354/- in favour of the injured/appellant in all the heads for injuries sustained by him, payable by the owner, driver and the Insurance Company with a request for enhancement of the amount to the extent of Rs. 4,95,000/-. The undisputed facts of the case are that on 10th December 2002, on the way of crossing of Bangla Bazar-Lashkar Bhind, when the claimant/injured was going on foot by the side of the road, he met with an accident with a Tractor bearing No. MP30M/4576 which was driven rashly and negligently by driver Virendra Singh (respondent No. 1), owned by Jabar Singh (respondent No. 2) and insured with New India Assurance Company Bhind (respondent No. 3). The claimant was severely injured and his lower 1/3rd part of shaft of humorous bone was fractured. He was under treatment for several days. It is also admitted that at the time of accident, the claimant by selling milk used to earn Rs. 4,000/-, monthly but after accident he has lost his capacity to earn that much amount. It is also admitted that after treatment, his fractured bone was united and the disability sustained by him does not seem to be of permanent nature. Since, the amount awarded by the learned tribunal is not in accordance with the nature of the injuries, the claimant has come up in this appeal for enhancement of the award.

Learned counsel for the appellant contended before this court that the tribunal ignored the nature of injury sustained by the appellant and it has not determined the compensation in this aspect. It is submitted that no adequate compensation was awarded under the necessary heads such as pains and suffering, loss of income during period of treatment and future loss which may be sustained by the appellant in his business. No compensation is awarded for his future treatment which may be borne in removing the rod inserted by operation. Further no compensation is awarded for special diet which was necessary for speedy recovery. On these premised submissions, it is prayed that by allowing the appeal adequate compensation under the heads mentioned above may be awarded.

On the other hand, learned counsel appearing for the respondent No. 3/Insurance Company opposed the aforesaid contentions and prayer of the claimant and requested for dismissal of the appeal.

In view of aforesaid submissions of the learned counsel for the parties, this court has not consider whether the tribunal was justified in passing the impugned award after considering the injury caused to injured in an accident the award needs to be enhanced and if so to what extent?

Head the learned counsel for the parties. Also perused the record of the case.

In the evidence, the claimant Sudhir Kumar Jain (AW-1) deposed that after accident he was admitted for treatment in the District Hospital Bhind and was treated by Dr. A.K. Saxena posted in the District Hospital. Thereafter on 13th December 2002 for further medical and surgical treatment he was referred to Sanjeevani Hospital and Research Centre Gwalior where a surgical operation for repair of broken bone was done and steel plate was inserted. He was discharged from hospital on 27th December 2002. Even thereafter, he was required to receive treatment in his residence at Housing Colony Bhind till 2nd April 2003. After treatment, he is unable to lift the weight and due to said accident his earning capacity is affected adversely.

Dr. A.K. Saxena (AW-2) deposed that on 10th December 2002 after examining injured Sudhir Jain, he found compound fracture in Humorous bone on upper side of left elbow joint at the level of Supra Condylar joint in left hand and for surgical treatment he was referred to the specialized Hospital at Gwalior. After discharge from hospital he examined the injured and provided timely treatment. He opined that the bone injury caused to the injured cannot be fully repaired after treatment. But in cases of adult persons the bone as fractured is united within four months.

Dr. D.C. Dixit (AW-3) deposed that being In-charge of the Medical Board of District Hospital Bhind, he examined the injured and issued 40% temporary disability certificate vide Ex. P/7 on account of compound fracture caused in left humorous on Supra Condylar region.

On considering the aforesaid evidence, the learned trial court awarded compensation to the extent of Rs. 28,350/- in all heads to the claimant which as per the learned counsel for the appellant is not just and fair. It is submitted that expenses under the heads of treatment, hospitalisation, medicines, nourishing food including damages for pain, suffering and trauma as a consequence of the injuries, ought to have been awarded by the learned tribunal.

In Mohan Soni Vs. Ram Avtar Tomar and Others, , at page 270: the Hon. Apex Court has observed as follows:-

On hearing the counsel for the parties and on going through the materials on record, we are of the view that both the Tribunal and the High Court were in error in pegging down the disability of the appellant to 50% with reference to Schedule I of the Workmen''s Compensation Act, 1923. In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one''s personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle-rickshaw-puller.

The question of loss of earning capacity resulting from amputation of one of the legs in the case of a tanker driver was considered by this Court in K. Janardhan v. United India Insurance Co. Ltd. In that case, a tanker driver suffered serious injuries in a motor accident and as a result, his right leg was amputated up to the knee joint. He made a claim under the Workmen''s Compensation Act, 1923. The Commissioner for Workmen''s Compensation held that the disability suffered by him as a result of the loss of the leg was 100% and awarded compensation to him on that basis. In appeal, the High Court, like in the present case, referred to the Schedule to the Workmen''s Compensation Act, 1923 and held that the loss of a leg on amputation amounted to reduction in the earning capacity by 60% and, accordingly, reduced the compensation awarded to the tanker driver.

In a more recent decision in Raj Kumar v. Ajay Kumar this Court considered in great detail the correlation between the physical disability suffered in an accident and the loss of earning capacity resulting from it. In paras 10, 11 and 13 of the judgment in Raj Kumar this Court made the following observations: (SCC pp. 349-50)

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, the 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 permanent 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 the 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 Vs. New India Assurance Co. Ltd. and Yadava Kumar v. National Insurance Co. Ltd.)

In Ram Kiran Goyal (D) thr. L.Rs. Vs. Sub Divisional Engineer and Others, , at page 431 the Hon. Apex Court has further observed as under:-

In a recent decision in Raj Kumar v. Ajay Kumar this Court has considered in detail the different heads under which compensation might be payable to a victim of motor accidents. In para 6 of the decision, the various elements of compensation are enumerated as under: (SCC p. 348)

... Pecuniary damages (Special damages)

(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity).

To us it appears that the claimant was not properly compensated under Heads (i) and (iii). As noted above, the appellant remained in hospital for 3 months for his treatment. He lost all his teeth and even after coming out of the hospital he had to use crutches for walking and even standing. A sum of Rs. 15,000 for treatment of such injuries appears to us to be wholly inadequate in the year 1987. Moreover, the nature of the injuries suffered by the claimant was such that he never fully got over the same and continued to be under medical treatment till the end of his life. Materials have been brought before this Court to show that he was obliged to undergo medical treatment all his life and with age the extent of his disability, resulting from the accident, also continued to progress.

In the facts and circumstances of the case, we feel that an additional sum of Rs. 1,10,000 must be paid to the appellants to adequately and properly compensate them under the Heads (i) "expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure" and (ii) "future medical expenses". We order accordingly. The additional amount shall carry simple interest @ 7% per annum from the date of application.

On perusal of the record, it is apparent that the claimant was under surgical and medical treatment and he borne some expenses on that count. He also produced on record the prescription and medical papers. As per medical evidence, temporary disablement to the extent of 40% was reported. It is no doubt true that, while making assessment, there is element of guess-work, but that guesswork again must have reasonable nexus to the available material/evidence and quantification made. After hearing the counsel for the parties and considering the evidence, this court therefore finds that the claimant was not properly compensated under the heads mentioned above and a sum of Rs. 28,354/- awarded under all the heads appears to be wholly inadequate. In the facts and circumstances of the case, this court thus feels that an additional sum of Rs. 50,000/- must be paid to the claimant/appellant to adequately and properly compensate him under the Heads as laid down in the case of Mohan Soni and Ram Kiran Goyal (supra). Hence, now claimant/appellant is held entitled to receive an amount of compensation to the tune of Rs. 78,354/- (Rs. Seventy Eight Thousand Three Hundred Fifty Four only) in total, instead of Rs. 28354/- as directed under the impugned Award by the learned tribunal. Consequently, by allowing the appeal, the award is enhanced by Rs. 50,000/- (Rs. Fifty Thousand Only) in addition to the award passed by the tribunal, which would be payable to the injured with interest @ 9% per annum from the date of appeal till full and final payment is made to the claimant. The respondents shall also pay the costs of this appeal to the claimant. Counsel Fee, Rs. 1000/-, if certified, be added in the costs.