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Judgment
R. Banumathi. J.
Being aggrieved by the award of compensation of Rs. 27,45,000/-, the owner of the lorry has preferred this Appeal. Initially the Appellant as
well as the Insurance Company have jointly filed the Appeal. On memo being filed, the Second Appellant /Insurance Company was transposed as
the third Respondent.
The brief facts are that:
On 11.4.2001 at about 00.55 A.M., in Velur to Namakkal Main Road, at Milk Chilling Centre, the driver of the lorry bearing the Regn. No. TN-
37-Q0790, drove the said lorry in a rash and negligent manner from north to south and dashed against a Maruthi Van bearing Regn. No. TN-47-
K-0644 which was driven by the first Respondent from South to North keeping extreme left side of the road and skipping traffic rules. Due to the
accident, the first Respondent sustained multiple grevious injuries. He sustained following injuries: Multiple grevious injuries of major crush injury
right hand with amputated index finger. Multiple grevious injuries can major in the right hand and also fracture of both bones in right leg. The
criminal case was registered against the lorry driver in crime No. 108 of 2001 of Velur Police Station. After the accident, the first
Respondent/claimant had taken treatment at Amaravathi Hospital, Karur and thereafter, he was admitted in Ganga Hospital, Coimbatore and
taken treatment in various spells. Ten operations were conducted on the claimant. Alleging that the accident was due to rash and negligent driving
of the lorry driver, the Claimant filed the Claim Petition in MACTO.P. No. 469 of 2001, claiming compensation of Rs. 40,00,000/-.
The Insurance Company resisted the claim petition contending that the petition is bad for non-joinder of necessary parties. According to the
Insurance Company, the owner and the insurer of the Maruthi Van are the necessary parties. The Insurance Company has also raised objections
as to the permanent disability claimed by the claimant and averred that the quantum of compensation claimed by the claimant is excessive.
Before the Tribunal, the claimant examined himself as PW-1 and Dr. Hari Venkatramani, who treated the claimant was examined as PW-2.
Exs. A-1 to A-20 were marked and no oral evidence was adduced on the side of the Respondents. Exs. R-1 and R-2 were marked on the side of
the Appellant and the third Respondent.
Upon considering oral and documentary evidence, the Tribunal held that the claimant had valid driving license (Ex. P-8). Based upon the
evidence of PW-1 and Ex. P-1 - FIR and other evidence, the Tribunal held that the lorry driver was responsible for the accident. In so far as
defence plea that the claimant also contributed to the accident, the Tribunal held that no rebuttal evidence was adduced by the Respondents and on
those findings, the Tribunal held that the accident was due to rash and negligent driving of the lorry driver. Observing that the claimant had
sustained 50% disability and that ten operations were conducted. The Tribunal awarded compensation of Rs. 27,45,000/- under various heads as
under:
In Rupees
Income Loss :12,00,000
Income during Treatment : 50,000
Loss of permanent Disability : 4,20,000 (7000 x 12 x 10
multiplier x
50/100)
Loss of Amenity : 1,00,000
Medical : 5,50,000
Future Medical : 2,00,000
Pain & Suffering : 1,00,000
Nourishment : 50,000
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Total : Rs.27,45,000/-
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Interest : 9% p.a.
The Insurance Company as well as the owner of the lorry have filed the Appeal. As pointed out earlier, on Memo the Insurance Company was
transposed as third Respondent. The learned Counsel for the Appellant, Mr. Prabhu Rajadurai, has contended that the Tribunal misdirected itself
in holding that the accident was only due to rash and negligent driving of the lorry driver and the Tribunal overlooked the fact that the accident was
due to the collusion between the Maruthi Van driver by the Claimant and the lorry and as such, the Tribunal should have held that the claimant also
contributed to the accident by his own negligent driving. It was further contended that the driver erroneously fastened the liability on the Appellant
and the third Respondent, Insurance Company. It was further argued that the Tribunal ought to have dismissed the Claim Petition for not
impleading the owner and the insurer of the Maruthi Van driver by the claimant.
The claimant examined himself as PW-1 and he has clearly spoken about the accident. PW-1 has stated that he was driving the Maruthi Van
keeping his correct direction and that the lorry driving in a rash and negligent manner dashed against the Maruthi van driven by the claimant. His
evidence is substantiated by the recitals in Ex. A-1 - FIR. Since there was a prima facie case of negligence against the lorry driver, FIR was also
registered against the lorry driver. To rebut the evidence of PW-1, the lorry driver was not examined.
Even though, the Appellant contends that the claimant, who was driving the Maruthi Van also contributed to the accident, neither the Appellant
nor the third Respondent, Insurance Company adduced any oral evidence to substantiate their evidence. The defence plea of contributory
negligence has to be substantiated by independent evidence and is not a matter of assumption or presumption. In the absence of any evidence
being adduced by the Appellant and the third Respondent, the Tribunal rightly held that the accident was due to the rash and negligent driving of
the lorry driver.
The main challenge in the Appeal is the quantum of compensation awarded to the claimant. The learned Counsel for the Appellant, Mr. Prabhu
Rajadurai, has contended that the Tribunal erred in awarding compensation of Rs. 12,00,000/- for loss of earning power and Rs. 4,20,000/- for
permanent disability overlooking that loss of earning power is only the consequence of permanent disability. It was further contended that even
without any acceptable evidence, the Tribunal has awarded a huge compensation for future medical expenses and extra nourishment. The quantum
of compensation of Rs. 1,00,000/-awarded under ""Loss of estate"" is assailed on the ground that such head is not maintainable.
The claimant sustained multiple crush injuries in right hand with amputated index finger and laceration thumb - FPL and digital nerve injury and
subtotal amputation right middle finger, closed fracture shaft lower third right femur, fracture both bones right leg grade III B with bimalleolar
fracture right ankle, lacerated wound left knee, lacerated wound right arm. The injuries sustained by the claimant is elaborated in Ex. P-2, which
has been extracted in extenso in the award of the Tribunal.
After taking first aid treatment in Amaravathi Hospital, Karur, the claimant was admitted at Ganga Hospital, Coimbatore on 11.04.2001 and
taken treatment as in-patient till 11.06.2001. Thereafter between 2001-2002, the claimant had taken treatment atleast for five spells. During the
period of treatment as seen from Ex. A-13, ten operations were conducted on the claimant. In his evidence, PW-1 has stated that even after
discharge, he was continuing his treatment. Since the claimant had taken treatment during different spells of time, the Tribunal has awarded Rs.
50,000/- towards actual loss of income. The claimant was taking treatment as in-patient for about 4 -5 months, since he was getting salary of Rs.
7,000/- per month. The actual loss of income during the period of treatment could be awarded for a period of five months, i.e., Rs. 35,000/-
(7000 x 5 = 35,000).
Ex. A-13 is the disability certificate of the claimant. In his evidence, PW-1 has stated that during the period of treatment, he had undergone
atleast ten operations. The details of the various operations conducted on the claimant is elaborated in Ex. A-13. Steel plates were inserted and
skin flatting was done as under:
OP-1: 11.04.2001: Debridement and K-wire fixation of right thumb and middle finger, debridement of right leg, fixation of fracture medial
malleolus and external fixator application for right leg.
OP-2: 14.04.2001: Closed A O Interlock mailing right femur, closed sirus nailing of right tibia.
OP-3: 16.04.2001: Free latissimus dorsi muscle flap cover right leg
OP-4: 14.05.2001: Groin flap division - inset right hand, debridement transporsitional flap right leg SSG right leg with circumcision
OP-5: 28.05.2001: Debridement and reinset of groin flap right hand
OP-6: 27.09.2001: Incisions and drainage abscess left leg
OP-7: 08.10.2001: Implant removal right leg
OP-8: 17.10.2001: EDP index transfer to radial aspect of base of P Px of thumb through FU pulley using FDS index as tendon graft, ERCL
transfer to ulnar aspect of base of P Px routed through the third and fourth MC, using palmaris longus as tendon graft
OP-9: 13.02.2002: Arthrodesis of PIP joint of right M F with contracture release and full thickness graft in palm.
OP-10: 07.09.2002: Malleolar screws removal - right ankle.
The nature of treatment given to the claimant is elaborated in Ex. A 6. Exs. A-3 and A-4 are the medical bills and payment of charges to the
hospital. Based on Exs. A-3 and A-4, the Tribunal has awarded Rs. 5,45,000/-towards medical expenses, which the Tribunal has rounded to Rs.
5,50,000/-.
Future medical expenses - In his evidence, PW-1 has stated that steel plates were inserted in his right leg and he needs further treatment in his
right hand and also right leg. PW-1 has further stated that the steel plates inserted in the right leg has to be removed by undergoing further
operation. PW-2, Dr. Hari Venkatramani, who treated the claimant has also stated that if the claimant undergoes further operations in his right leg,
there would be much improvement. PW-1 has stated that in future medical expenses, an amount of compensation of Rs. 2,00,000/- is to be
awarded. Whereas PW-2, Dr. Hari Venkatramani has stated that the claimant would require Rs. 20,000/- for future medical expenses. The
Tribunal has awarded Rs. 2,00,000/- for future medical expenses. Excepting the evidence of PW-1, we do not find any basis for awarding Rs.
2,00,000/- for future medical expenses. Of-course, the claimant had undergone number of operations. It appears that steel plates have been
inserted in his right leg. Having regard to the evidence of PW-2, the quantum of compensation of Rs. 2,00,000/- awarded for future medical
expenses is reduced to Rs. 75,000/-.
Permanent disability and loss of earning power - From the evidence of Pws-1 and 2 and from Ex. A-13, it is seen that inspite of intensive
treatment and number of operations, he has lost his right index finger. Ex. A-13, PW -2, Dr. Hari Venkatramani has stated that the Claimant has
lost right index finger and near total loss of right thumb which are reconstructed and he has difficulty in holding any object with the right hand. He
has a weak grip in the right hand. He has severe swelling and stiffness of right ankle. After examining the claimant, PW-2 assessed the permanent
partial disability of claimant''s right upper limb to the extent of 30% and 20% to his right lower limb. Prior to the accident, the Claimant was
working partner in Nayagara International and was getting salary of Rs. 7,000/- per month. In his evidence, the claimant has stated due to
amputation of right index finger, he was unable to do any work and due to loss of right thumb, which are re-constructed, he is unable to write and
hold anything. The claimant has further stated that he is not in a position to eat with hands and that his right upper limb is permanently disabled. The
claimant has further stated that he is unable to continue as the working partner in Nayagara International.
PW-2, Dr. Hari Venkatramani, has also stated that the claimant cannot write and cannot hold any objects with his right hand. We have also
perused Ex. A-12, photos of the claimant. Of-course, the physical frame of the claimant have been shattered. When the physical frame has been
shattered, it is the duty of the Tribunals / Courts to award just and reasonable compensation to compensate the injured. The purpose of
compensation is only to compensate and not to overcompensate.
The Tribunal has awarded an astonishing figure of Rs. 12,00,000/- for loss of income and another Rs. 4,20,000/- for permanent disability. Ex.
A-10 is the income Tax returns of the claimant. It was stated that for the year 2001 -2002, the claimant was getting income of Rs. 98,000/- and
for the year 2002-2003, the claimant was getting income of Rs. 42,340/-. Referring to Ex. A-10, the Tribunal has observed that because of the
accident, the claimant''s income was reduced and therefore, the Tribunal proceeded under the footing that there was loss of income of Rs.
56,000/- (Rs. 98,000 - Rs. 42,000 = Rs. 56,000). Observing that the claimant would have worked for another 22 years, the Tribunal proceeded
to award Rs. 12,00,000/- (Rs. 56,000 x 22 years = Rs. 12,00,000) for loss of income / loss of earning power.
Apart from awarding huge amount of compensation for loss of earnings, the Tribunal has also proceeded to award compensation under
different head ""permanent disability"". Taking the monthly income of the deceased at Rs. 7,000/-and the 50% permanent disability and adopting
multiplier 10, the Tribunal proceeded to award Rs. 4,20,000/- for permanent disability.
What is payable is just compensation. Tribunal has to determine the claim bearing in mind and statutory mandate that what is payable is just
compensation and it cannot be a bonanza. In Helen C. Rebello v. Maharashtra State Road Transport Corporation 1991 - 1 LW 208, the
Supreme Court observed that the tribunal constituted under the Act as provided in Section 168 is required to make an award determining the
amount of compensation which to it appears to be ''just''. It has to be borne in mind that compensation for loss of limbs or life can hardly be
weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should
be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many
such consequential losses. A person becomes entitled to damages for mental and physical impairment, his or her life may have been shortened or
that he or she cannot enjoy life, which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same
time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the
compensation must be ""just"" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The Courts and tribunals
have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be ''just'' compensation is a
vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be
arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special
features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of ''just'' compensation which
is the pivotal consideration. Though by the use of the expression ""which appears to it to be just"", a wide discretion is vested on the tribunal, the
determination has to be rational, to be done by a judicious approach and not the outcome of whims, guesses and arbitrariness. The expression
just"" denotes equitability, fairness and reasonableness, and non-arbitrariness.
Insofar as compensation for ""permanent disability"" and compensation for ""loss of earning power"", Tribunal has awarded Rs. 4,20,000/- and
Rs. 12,00,000/- respectively. In Cholan Roadways Corpn. Ltd. Rep. By Managing Director, Kumbakonam v. Ahmed Thambi and Ors. 2006-3-
LW 1025 Full Bench of this Court has held that there cannot be two separate head of compensation awarded for ""loss of earning power"" and
permanent disability"". Holding that when the loss of ""earning capacity"" is possible, loss of ""permanent disability"" need not be itemised, in paragraph
(19), the Full Bench has held as under:
In order to avoid any future confusion and to bring more clarity and transparency in the award of damages, it is necessary that the tribunal,
while awarding damages, should itemise the award under each of the head namely, pecuniary losses and non-pecuniary losses. In the non-
pecuniary losses the tribunal shall consider a) pain and suffering, b) loss of amenity, c) loss of expectation of life, hardship, mental stress, etc; d)
loss of prospect of marriage and under the head pecuniary loses, the tribunal shall consider loss of earning capacity and loss of future earnings as
one component apart from medical and other expenses and loss of earning, if any from the date of accident till the date of trial. When loss of
earning capacity is compensated as also the non-pecuniary losses under (a) to (d), permanent disability need not be separately itemised.
Applying the ratio of the decision of Full Bench of this Court, we are of the view that the compensation awarded under two different heads -
compensation for ""loss of earning power"" and compensation for ""permanent disability"" cannot be maintained.
Multiplier method - The point falling for consideration is as to the quantum of compensation to be awarded for ""permanent disability"" and ""loss
of earning power"". As we pointed out earlier, claimant has sustained 50% disability. At the time of accident, claimant was working as the working
partner in Nayagara International and drawing salary of Rs. 7,000/- per month. Ex. A-10 is the income tax returns of the claimant. As pointed out
earlier, for the year 2001-2002, claimant was getting annual income of Rs. 98,000/-. In his evidence, claimant has stated that he has been getting
Rs. 7,000/- as salary from Nayagara International. The learned Counsel for the claimant has contended that the income of the claimant has to be
taken as Rs. 5,000/- per month. Having regard to the evidence of PW-1 and Ex. A-10, the Tribunal has taken the monthly income of Rs. 7,000/-
per month and the same is maintained. At the time of accident, claimant was aged 38 years.
In considering the quantum of compensation to be awarded for ""permanent disability"" in appropriate cases, Court could adopt multiplier
method. In United India Insurance Company Ltd., Branch Officer Vs. Veluchamy and Another, , the Division Bench of this Court, in paragraph
(11) has laid down the principles governing assessment of damages in personal injury cases.
The following principles emerge from the above discussion:
(a) In all case 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 till the rest of his life, in that event loss of income or earning may be ascertained by applying ""multiplier method"" as provided
under Second Schedule to the Motor Vehicles Act, 1988.
(2) even if 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.
Because of loss of index finger and re-construction of right thumb, the right hand of the claimant is totally affected. That apart, the right leg of the
claimant is also dis-figured and he has great difficulty in walking. Since the physical frame of the claimant has been shattered and having regard to
the gravity of injuries, in the instant case it would be appropriate to adopt the multiplier method to award compensation for permanent disability
and loss of earning power. Applying the ratio of the above decision since at the time of accident, the claimant was aged 38 years, as per the
Second Schedule to M. V. Act, multiplier ""16"" is adopted.
Personal Injury Cases Deduction of one- third for personal expenses whether necessary? - Learned Counsel for the Appellant-Insurance
Company submitted that while adopting multiplier method for determining the quantum of compensation for ""permanent disability"", Court has to
deduct 1/3rd amount for personal expenses. Drawing our attention of Oriental Insurance Co. Ltd., v. Ram Prasad Varma and Ors. 2009 (2) CTC
87, learned Counsel for the Appellant contended that in the said case because of amputation of both legs and 100% disability, the Supreme Court
observed that 1/3rd amount need not be deducted. Learned Counsel for the Appellant further contended that in the instant case, since the claimant
is said to have sustained only 50% of disability while awarding compensation for permanent disability, 1/3 rd deduction has to be made for
personal expenses.
In Oriental Insurance Co. Ltd., v. Ram Prasad Varma and Ors. 2009 (2) CTC 87, the Supreme Court has considered the question of
deduction towards personal expenditure in personal injury cases. Observing that when a person although alive, but when he is not in a position to
move and even for every small thing he has to depend upon others, direction to deduct 1/3rd of the amount from his total income need not always
be insisted upon. In Paragraph (11) of the Judgment, the Supreme Court held as under:
One-third amount is deducted from computation of compensation from the total income on the premise that some expenses were necessary for
one''s own survival. Incidentally, we may notice that in the note appended to the Second Schedule, the amount of compensation arrived in the case
of fatal accident claims is required to be reduced by one-third in consideration of the expenses which the victim would have incurred towards
maintaining himself had he been alive. A person, although alive, but when he is not in a position to move and even for every small thing he has to
depend upon the services of another, in our opinion, a direction to deduct 1/3rd of the amount from his total income need not always be insisted
upon.
In personal injury cases, deduction of one-third amount from the total income would always depend upon the facts and circumstances of the
case. In appropriate cases, where claimant has sustained multiple injuries and has suffered substantial disability and when he is not in a position to
carry on his normal routine, deduction of one-third amount from his total income may not be appropriate. In the case on hand, as discussed earlier,
claimant has suffered 50% disability and he is not in a position to use his right hand and he is to depend on others for writing, eating and to carry on
his normal routine. We have also seen Ex.A-12 photographs from which it is seen that claimant has great difficulty even for standing and his right
hand and right leg as disfigured and permanently partially disabled. Having regard to the nature of injuries sustained by the claimant and the
percentage of disability suffered by him, in our considered view that in this case deduction of one-third amount from the income need not be made.
Taking the monthly income of the claimant at Rs. 7,000/- and adopting multiplier ""16"" and the permanent disability at 50%, compensation for
permanent disability/ loss of earning power"" is calculated at Rs. 6,72,000/-(Rs. 7,000 x 12 x 16 x 50/100 = Rs. 6,72,000/-).
Other heads - The Tribunal has also awarded Rs. 1,00,000/- for pain and suffering. As pointed out earlier, claimant has sustained multiple
crush injury and had taken treatment during various spells on time. Having regard to the injuries and duration of treatment, the compensation of Rs.
1,00,000/-awarded for pain and suffering is maintained. The quantum of compensation of Rs. 50,000/- awarded for actual loss of income is
reduced to Rs. 35,000/-. In so far as the compensation for transport hospital, claimant has produced Ex. A-5 for proving the transport expenses.
Based upon A-5, Tribunal has awarded compensation of Rs. 75,000/- for transport hospital and the same is maintained.
Extra Nourishment - The Tribunal has awarded Rs. 50,000/- and the same is reduced to Rs. 25,000/-. The Tribunal has also proceeded to
award Rs. 1,00,000/- for loss of estate in case of personal injury cases. There cannot be any estate and therefore, the same is deleted. As pointed
out earlier, for future medical expenses, Tribunal has awarded Rs. 2,00,000/- and the same is reduced to Rs. 50,000/-. The claimant has to be
with dis-figured right hand and the right leg. Through out his life, claimant is disabled from using his right hand, Tribunal has awarded Rs.
1,00,000/- for ""Loss of amenities and the same is reduced to Rs. 25,000/-.
In modification, the compensation of Rs. 27,45,000/- awarded by the Tribunal is reduced to Rs. 15,82,000/- as under:
Loss of earning power : Rs. 6,72,000/-
edical expenses : Rs. 5,50,000/-
Future medical expenses : Rs. 75,000/-
Loss of income during
the period of treatment : Rs. 35,000/-
Loss of amenities : Rs. 50,000/-
Pain and Suffering : Rs. 1,00,000/-
Extra Nourishment : Rs. 25,000/-
Transport : Rs. 75,000/-
_____________
Total Rs. 15,82,000/-
_____________
In so far as interest, Tribunal awarded interest at 9% p.a., from the date of filing of Claim Petition and the rate of interest awarded by Tribunal
is on higher side. As held by the Supreme Court in S. Rajapriya''s case AIR 2005 SCW 2542, interest is reduced to 7.5% from the date of filing
of petition.
In the result, order of Motor Accident Claims Tribunal (Chief Judicial Magistrate), Karur in MACTO.P. No. 469 of 2001 dated 27.04.2004
is modified and the Civil Miscellaneous Appeal is partly allowed. No costs in this C.M.A.
Compensation awarded by the Tribunal is reduced to Rs. 15,82,000/- which is payable with interest at the rate of 7.5% p.a., from the date of filing
of Claim Petition. The Insurance Company has already deposited 50% of the compensation amount along with accrued interest.
The claimant is said to have withdrawn 50% of the deposited amount (ie., 25% of the total compensation amount). The Appellant is directed to
deposit the balance amount along with accrued interest at the rate of 7.5% p.a., within a period of eight weeks from the date of receipt of a copy
of this Judgment. On such deposit, the claimant is permitted to withdraw entire modified compensation amount along with accrued interest.