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Judgment
S. Vimala, J.—The appeal is filed by the Transport Corporation challenging the quantum of compensation. The claim petition in MCOP No. 82 of 2005 was filed by the claimant Arumugam claiming a compensation of Rs.5,00,000/-, in respect of the accident that took place on 21.02.2005.
The injured was aged 50 years, and he was a tailor by profession and was earning a sum of Rs.6,000/- per month. The accident is stated to have taken place when the claimant was trying to board the bus through the front entrance; but the driver negligently started the vehicle; the claimant fell down from the bus; while so, the rear wheel ran over the claimant''s left leg.
The Tribunal, on consideration of the materials placed before it, came to the conclusion that the driver of the appellant Transport Corporation alone was responsible for the accident.
The Tribunal, while passing the award, took note of the contradictory evidence placed on the side of the appellant.
It was the case of the appellant in the counter that the accident took place only on account of the foot-board travelling by the injured. But, during the course of evidence, it was stated that the injured attempted to get into the moving bus and that is how the accident took place. Based upon contraction in the material part of the case, the Tribunal came to the conclusion that the appellant was negligent.
So far as the quantum of compensation is concerned, the Tribunal has awarded a sum of Rs.9,26,280/- with interest at 7.5% p.a., from the date of petition. The Tribunal has taken note of the following facts:
(a) The claimant had taken treatment at Karur Rajinikanth
Hospital from 21.02.2005 to 07.03.2005.
(b) There had been amputation in the left leg, during which he was in-patient from 07.03.2005 to 23.04.2005 in K.G. Hospital, Coimbatore.
(c) He was in-patient from 29.04.2005 to 18.05.2005 in the Thanjavur Medical College Hospital.
The Doctor has certified the disability at 80%. The details of surgeries have also been enlisted.
The amputation in the left leg had been done below the knee level. The claimant sustained hit injury over the urinary bladder and therefore, surgery has been performed to create the artificial passage to drain the urine out from the side of the stomach. There had been surgery over the stomach to remove some of the damaged tissues.
There had been subsequent surgery in the left leg. To correct the distortion in the intestine, one more surgery was contemplated. Based upon this evidence, the Tribunal has awarded a sum of Rs.4,40,000/- towards permanent disability and loss of earning capacity.
While computing the loss of earning capacity, the Tribunal has taken the monthly income at Rs.5,000/- and deducting 1/3rd towards personal expenses, and adopting the multiplier of 11, the loss of dependency has been calculated. Awarding a sum of Rs. 50,000/- towards pain and suffering, Rs.10,000/- towards transport expenses, Rs.10,000/- towards extra nourishment, Rs.13,000/- towards partial loss of earnings from the date of accident till the date of payment, Rs.3,53,280/- towards medical expenses and Rs.50,000/- towards future medical expenses, the total compensation has been quantified at Rs.9,26,280/-.
This award towards medical expenses, loss of earning capacity, pain and suffering, future medical expenses are under challenge in the appeal filed by the Transport Corporation.
The claimant has filed a petition seeking condonation of a delay of 2217 days in filing the Cross Objection in Cros.Obj. (MD)SR.No. 50381 of 2014 in CMA(MD)No.1325 of 2008. When this application came up for hearing, the learned counsel for the claimant highlighted the pitiable condition of the claimant. However, this Court felt that the petition to condone the delay can be decided subject to the merits available in the main appeal itself. Therefore, it was decided to hear the main appeal along with the application to condone the delay.
In the grounds of Cross Objection, the claimant has stated that the Tribunal should have awarded Rs.15 lakhs as just compensation and the amount awarded is grossly inadequate. It is the main grievance of the claimant that for pain and suffering alone, the Tribunal ought to have awarded a sum of Rs.2,00,000/- and a sum of Rs.1,00,000/- towards fixing the artificial limb, Rs.1,00,000/- towards loss of comforts and Rs.50,000/- towards attendant charges. In other words, the claimant seeks enhancement of compensation by Rs. 5,73,720/-.
The fact remains that the claimant was a person aged 50, earning his livelihood by doing tailoring profession. He had suffered amputation of left leg below knee level. He had suffered fracture in the left and right pelvis and rupture of urethra. He had been carrying stool bag tied around his hip to pass urine and motion, and with the stool bag, it is practically difficult for him to move anywhere.
Pointing out these circumstances, the learned counsel for the claimant emphasised that the award should be enhanced.
It is the contention of the learned counsel for the claimant that even in the absence of cross appeal, this Court has got a duty to award just compensation and therefore, in the event of the Court enhancing the compensation, the claimant could be directed to pay the deficit court fee. It is the main ground taken by the claimant that when there is permanent disability and consequent loss of earning capacity, multiplier method should have been adopted and all possible losses should have been compensated. In respect of the said contention, the learned counsel for the claimant relied on the following decisions:
(a) S. Manickam Vs. Metropolitan Transport Corporation Ltd., :
"12.In matters of determination of compensation, particularly, under the Motor Vehicles Act, both the tribunals and the High Courts are statutorily charged with a responsibility of fixing a "just compensation". It is true that determination of "just compensation" cannot be equated to a bonanza. On the other hand, the concept of "just compensation" suggests application of fair and equitable principles and a reasonable approach on the part of the tribunals and the courts. We hold that the determination of quantum in motor accidents cases and compensation under the Workmen''s Compensation Act, 1923 must be liberal since the law values life and limb in free country in generous scales. The adjudicating authority, while determining the quantum of compensation, has to take note of the sufferings of the injured person which would include his ability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. While computing compensation, the approach of the tribunal or a court has to be broad based and sometimes it would involve some guesswork as there cannot be any precise formula to determine the quantum of compensation.
Keeping the above principles in mind, there is no difficulty in holding that the High Court has committed an error in setting aside the award amount of Rs.1,00,000/- under the head ''permanent disability'' on the ground that substantial amount had been fixed under the head ''loss of earning'' and ''loss of earning capacity''. It is not in dispute that at the time of the accident, the appellant was aged about 45 years and he was the proprietor of Parvathy Furniture Mart and 15 persons were working under him. Based on the evidence, the Tribunal has determined his income as Rs.8,000/- per month."
(b) A. Sahaya Jackuline Kiruba Vs. R. Veerachamy, C. Jeyaraman and M/s. Royal Sundaram Alliance Company, :
"18. Emphasizing the need for restoring the injured to his/her full life as far as possible, the Hon''ble Supreme Court in Raj Kumar Vs. Ajay Kumar and Another, , has held as follows:
"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 access the damages objectively."
The personal suffering of the survivors of the road accidents has been emphatically expressed by the Hon''ble Supreme Court of India in Sri Laxman @ Laxman Mourya Vs. Divisional Manager, Oritl. Ins. Company Ltd. and Another, , and the same reads as follows:
"The personal suffering of the survivors of the road accidents and those who are disabled in such accidents are manifold. Sometimes they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term "compensation" used in Section 166 of the Motor Vehicles Act, 1988 would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/ care necessary for a particular injury or disability caused by an accident."
The learned counsel for the appellant submitted that there is no justification to condone the delay when there is no sufficient cause to condone the delay. The learned counsel for the appellant relied upon the following decisions to support the contention that the delay in filing the cross objection should not be condoned and that Cross Objection itself is not maintainable.
(a) Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, :
In this decision, it has been held that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case, the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises. It is also held that the expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard and fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years the Supreme Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay.
(b) Divisional Manager, National Insurance Co. Ltd. Vs. Babaji Dalai and Others, :
In this decision, it has been held that since the reason specified in the affidavit for condonation of delay not answering the expression "sufficient cause" within the meaning of Section 5 of the Limitation Act, the petition for condonation of delay has to be dismissed.
(c) National Insurance Co. Ltd. Vs. Sarbani Chatterjee, :
In this decision, it has been held that in the appeal filed by the Insurance Company, if the claimants not filing any appeal against award or cross objection after receipt of notice of appeal of Insurance Company, the claimants are not entitled to seek enhancement of amount of compensation.
If the only petition pending is the appeal by claimant, these decisions would have serious impact. But, in this case, appeal filed by the Corporation is being heard. Moreover, even in the absence of cross appeal, award can be enhanced. Having regard to the socio legal orientation of the Act, this petition to condone the delay is heard along with the appeal.
The basis for deducting 1/3rd of the amount towards personal expenses in a case of injury is adding fuel to the flames. When the Tribunal awards compensation on account of the death, while calculating the contribution of the deceased to his family, the personal expenses which would have been incurred by the deceased is taken into account for the purpose of ascertaining the contribution to the rest of the members of the family. In the case of injury, the injured person himself is alive. The benefit goes to the injured himself and not to the members of the family. The loss is compensated to the injured himself and therefore, there is no question of deducting 1/3rd towards personal expenses. This mistake committed by the Tribunal needs rectification and it is also one of the reason on which the petition to condone the delay in cross objection has to be entertained. As it is a case of amputation which has resulted in total loss of earning capacity and thereby the compensation has to be enhanced by more than Rs. 5,00,000/-, it is a fit case where the petition to condone the delay for filing the cross objection has to be allowed and it is allowed accordingly.
The next contention is that the medical bills are fake and therefore, the claim on account of medical bills should not have been awarded. In support of the said contention, the following decisions are relied upon:
(a) Decision of the Kerala High Court in MACA No. 1287 of 2008 dated 29.10.2012;
(b) Decision of this Court in C.M.A.(MD)No.1105 of 2009 dated 13.12.2012; and
(c) Decision of this Court in C.M.A. No.2765 of 2007 dated 17.08.2010.
The principles to be adopted while passing the quantum of compensation in respect of permanent disablement, have been highlighted in the decision of this Court in the case of United India Insurance Company Ltd., Branch Officer Vs. Veluchamy and Another, . Paragraph-11 of the said decision reads as under:
"11.The following principles emerge from the above discussion:
(a) In all cases of injury or permanent disablement ''multiplier method'' cannot be mechanically applied to ascertain the future loss of income or earning power.
(b) 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?
(c)(1) 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'' as provided under the Second Schedule to Motor Vehicles Act, 1988.
(2) Even so there is no need to adopt the same period as that of fatal cases as provided under the Schedule. If there is no amputation and if there is evidence to show that there is likelihood of reduction or improvement in future years, lesser period may be adopted for ascertainment of loss of income.
(d) Mainly it depends upon the avocation or profession or nature of employment being attended by the injured at the time of accident."
The principles enunciated in this decision has to be taken note of to fix the quantum of compensation.
When the claimant is a tailor and he has suffered amputation, there is total loss of earning capacity. When it is the case of permanent disablement resulting in total loss of earning capacity (claimant being a tailor), it would be appropriate to adopt multiplier method. When the age is 50, the proper multiplier to be adopted is 13, according to the decision of the Hon''ble Supreme Court reported in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, .
Taking the monthly income including prospective increase in income, as Rs.5,000/-, and adopting the multiplier of 13, the loss of dependency would be Rs.7,80,000/- (Rs.5,000/- x 12 x 13). It would be appropriate to award a sum of Rs.1,00,000/- towards future medical expenses, Rs.1,00,000/- towards purchase of artificial calipers, Rs.50,000/- towards pain and suffering, Rs.15,000/- towards attendant charges, Rs.10,000/- towards transport expenses and Rs. 50,000/- towards loss of enjoyment of amenities. In all, the total compensation works out to Rs.14,85,000/-.
In respect of medical expenses, there is a serious dispute that the bills are fake. But having regard to the nature of surgeries performed and number of surgeries performed, the claim of medical expenses at Rs.3,80,000/- cannot be said to be excessive. Since the original bills are lost, duplicate bills are filed. It is not the case of the Transport Corporation that there is duplication in the amount claimed. Therefore, the medical expenses are awarded as per the bills. In all, the total compensation works out to Rs.14,85,000/-. Thus the compensation awarded by the Tribunal is enhanced by Rs.5,58,720/-. The enhanced amount will be payable with interest at 7.5% p.a., from the date of enhancement, i.e., today.
The appellant-Transport Corporation is directed to deposit the compensation awarded by the Tribunal with interest at 7.5% p.a., from the date of petition, less the amount if any already deposited, within a period of six weeks from the date of receipt of a copy of this judgment. The enhanced amount, i.e., Rs.5,58,720/- is payable with interest at 7.5% p.a. from the date of enhancement, and not from the date of petition, within a period of six weeks from the date of receipt of a copy of this judgment. As the Cross Objection was not filed on time, but with a delay of 2217 days, interest is not awarded from the date of petition. On such deposit being made, the claimant is permitted to withdraw the same.
The Civil Miscellaneous Appeal and the Cross Objection are disposed of accordingly. No costs.