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Judgment
Chitra Venkataraman, J.—This appeal is by the Transport Corporation challenging the order of the Motor Accidents Claims Tribunal (Chief
Judge, Small Causes Court), Madras, dated 6.8.1996 made in M.C.O.P. No. 1663 of 1993, fixing the liability on the Transport Corporation to
pay a compensation of Rs. 3,25,000/- with interest at 12% per annum.
It is stated that the claimant who suffered grievous injuries, was 26 years old at the time of the accident. He was employed as a Clerk in a
private firm Cameo Share Registry Pvt. Ltd. on a monthly salary of Rs. 1,400/-. He was a bachelor. The accident occurred on 26.2.1993 at about
9.50 p.m. in Anna Salai, Little Mount, Madras. The claimant was proceeding by walk from east to west. It is stated that the Transport
Corporation bus bearing Registration No. TCB 6126, driven in a rash and negligent manner, hit the pedestrian from behind. The front wheel ran
over the claimant''s left thigh. This resulted in fracture in the pelvic region. The claimant remained as in-patient in the Government Hospital from
26.2.1993 to 28.5.1993. His left leg was amputated beneath the hip and and above the knee, thus leading to the permanent disability. It is stated
that the disability suffered was to the extent of 80%. He had to go in for an artificial limb. He had expended heavily. It is also stated that he lost his
job. The claimant petitioned for a compensation of Rs. 7,00,000/-.
The Transport Corporation, as the respondent, resisted this claim. The bus was on its way from Broadway to Amarampedu. It is stated that the
claimant crossed the road from left to right in a non-pedestrian crossing area; hence, the accident occurred due to the negligence of the claimant
herein and hence not entitled to any compensation. The respondent also denied that the claimant suffered permanent disability and the
compensation claimed was excessive.
The claimant, as P.W.1, deposed that the accident occurred in the North-South Anna Salai where the road takes a turn towards west. There
was no vehicular traffic, according to the evidence of the claimant. The driver as R.W.1, however, denied that the vehicle was involved in the
accident and he also stated that the claimant was hit by a two wheeler who had sped away from the scene without stopping. The Tribunal found
that the version of the claimant that the accident was caused by the bus driven by the driver was corroborated by the medical evidence available.
Taking note of the nature of injuries suffered, the Tribunal held that the claimant was hit by the Transport Corporation bus. The wheel of the bus
ran over the claimant''s left thigh, thus causing damage severely. Ex.P12 is the First Information Report, which showed that the claimant was
actually in the process of crossing the road from east to west when the bus came and knocked him down. Ex.P13 is the sketch, which showed that
the accident had occurred at the junction where the road runs from south to north. The Tribunal held that the mere fact that the claimant was
crossing the road in a non-pedestrian crossing could not be viewed as indicative of his negligence since at the time of the accident, the claimant had
almost crossed the entire length of the road. Further, there being no obstruction in the front view of the driver, the reasonable expectation is that the
driver must have seen the pedestrian crossing the road from east to west and must have taken caution to slow down the vehicle, keeping in mind
the safety of the pedestrian. Ultimately, the Tribunal held that the driver was responsible for causing the accident. Thus the Tribunal rejected the
plea of contributory negligence.
On the question of quantum, the claimant marked documents to substantiate his treatment as an in-patient. Ex.P1 is the discharge summary. The
petitioner also marked Exs.P3 to P5, the evidence of his treatment in the Government Institute of Rehabilitation Centre in K.K.Nagar, Madras.
The document showed that the disability is marked at 80%. The Assistant Professor of Surgery, Madras Medical College, examined himself as
P.W.3. Ex.P14 is the disability certificate issued by him. It is stated that the left leg had to be amputated below the hip and above the knee. He
also found the damage caused to the pelvic bone. He also certified the disability at 80%, which is supported by Exs.P3 to P5. It is stated that to fix
an artificial limb, the claimant would require a further sum of Rs. 40,000/-. The correspondence with the agency at Bombay who are specialists in
fitting artificial limb, are marked as Exs.P10 and P11. As per this, the claimant would have to spend a sum of Rs. 60,000/- to Rs. 1,00,000/- for
getting himself fitted with an artificial limb. The Tribunal found that even though the claimant was treated in the Government Hospital, he had to
spend for purchase of medicines not available in the Government Hospital. The claimant also claimed that he had taken physiotherapy treatment
costing him about Rs. 3,000/-. The Tribunal granted compensation towards medical bill, treatment in the physiotherapy centre as well as for fixing
of artificial limb of Indian make, etc. On the question of compensation on account of the disability suffered, the Tribunal referred to the decision of
the Supreme Court reported in R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, and held that under pecuniary damages, it
included the expenses incurred towards medical attendance, loss of earning of profit upto the date of trial and other material loss. Non-pecuniary
damages include damages for mental and physical shock, pain and suffering already suffered and likely to be suffered in future, damage on account
of loss of amenities of life, damages for loss of expectation of life, inconvenience, hardship, discomfort, disappointment, frustration and mental
stress in life. The Tribunal noted that the claimant was a young man about 26 years old. The accident and the disability caused thereon had a
serious impact on his future life and to the quality of life. Consequently, the Tribunal granted a sum of Rs. 1,00,000/- towards loss of earning and
another sum of Rs. 1,50,000/- towards permanent disability, apart from further charges granted under the various heads, thus totalling in all Rs.
3,25,000/- with interest at 12% per annum. Aggrieved of the same, the Transport Corporation has preferred this appeal.
Learned counsel for the Transport Corporation submitted that the Tribunal ought to have noted that the claimant/respondent in this appeal ought
to have exercised care and caution while crossing the road. If at all there could be any negligence attributed to the Corporation driver, it could only
be in the nature of contributory negligence; as such, the Tribunal erred in fixing the total liability on the Transport Corporation. On the question of
compensation, learned Counsel submitted that the award should be comparable to the structured formula; as such, it was excessive. Learned
counsel also pointed out that the Tribunal erred in relying on the documents relating to the treatment without examining the author of the document;
hence, ought to have rejected the disability certificate issued. Learned counsel further submitted that Exs.P10 and P11 did not evidence the
expenses for artificial limb; that the awarding of compensation under various heads was without any basis and material evidence. Apart from that,
he also questioned the interest at 12% per annum.
Learned counsel for the respondent, however, supported the order of the Tribunal. He drew support from the decisions of the Apex Court as
well as from various other High Courts. Considering the nature of disability suffered fixed at 80%, he submitted that the loss of earning deserved to
be viewed at 100%. Hence, the compensation must be as that of 100% loss of earning. He supported the order of the Tribunal that the
compensation should be under two different heads, one for the permanent disability suffered and on the loss of earning power. In this connection,
learned Counsel submitted that taking note of the earnings of the claimant/respondent herein, the future prospects and the loss of earning need to
be arrived at. He also emphasised that the pain suffered at the time of the treatment and the permanent scar which continues for life having a
serious impact on the quality of life need to be compensated. The basis of compensation has to be more, considering the fact that the disability is
worse than that of a case of fatal accident, as the victim has to lead through his life with a permanent disability. Learned counsel places reliance on
the decision reported in R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, , Ashwani Kumar Mishra Vs. P. Muniam Babu and
Others, and Ors.), 2002 2 L.W.109 (The New India Assurance Co. Ltd. v. K. Kartheeswaran and Anr.) and 1995 2 L.W. 685 (The Managing
Director, Thirvalluvar Transport Corporation, Madras v. Thangavelu and Anr.) on the question of fixation of compensation. He also placed
reliance on the decisions reported in Lata Wadhwa and Others Vs. State of Bihar and Others, , 2005 (2) CTC 341 (Ravi Chandran.J. v. Tamil
Nadu State Transport Corporation), Bhaskar alias Bhaskar Devaram Bangad Vs. R.K. Srinivasan and Another, and Nagappa Vs. Gurudayal
Singh and Others, . and prayed for enhancement of compensation. On the question of interest, he placed reliance on (2005) 11 SCC 387
(Chellammal v. Kailasam). Apart from this, he also placed reliance on Ramesh Lal alias Ramesh Vs. National Insurance Company Limited and
Another, , K. Shankar Vs. Pallavan Transport Corporation Ltd., , Shashendra Lahri Vs. UNICEF and Others, , Rattan Lal Mehta Vs. Rajinder
Kapoor, , Nagesha Vs. M.S. Krishna and Another, , M. Jaganathan Vs. Pallavan Transport Corporation Ltd., , confirmed in Pallavan Transport
Corporation Ltd. Vs. M. Jagannathan, ; Soran Ram Vs. Pritam Singh, , Javid Vs. Lalji Yadav and Others, .
Pallavan Transport Corporation Ltd. Vs. M. Jagannathan, was a case of amputation of left leg above knee where the disability assessed was
85% wherein, the Supreme Court affirmed the order of the High Court on the award of Rs. 4,50,000/-. Nitin Walia Minor through (Sh. Vijay Pal
Walia) Vs. Union of India (UOI) and Others, is the decision of the Delhi High Court. This is a case of amputation of right arm below the shoulder.
The injured was a three year old child. This judgment recognises the grant of an award taking into consideration that on account of the permanent
disability, the injured would require medical attention for the rest of the life and constant care and attention from some other person even for
ordinary day to day activities and an award thereon for loss of amenities, on account of the disfigurement and expectation of life. Thus
compensation under non-pecuniary heads were granted, taking note of the decision of the Supreme Court in Shashendra Lahri Vs. UNICEF and
Others, , as well as Nagesha Vs. M.S. Krishna and Another, and 2004 4 L.W. 151 (National Insurance Company Ltd. v. Rani and Ors.). 2002 2
L.W. 109 (The New India Assurance CO. LTD. v. K. Kartheeswaran and Anr.) is a case of amputation wherein this Court awarded a
compensation on account of permanent disability sustained and for the injuries suffered. Here too, the Court took note of the mental agony and
torture due to amputation and the injuries suffered on account of permanent disability. In the matter of granting compensation on permanent
disability suffered, this Court, in J. Ravi Chandran Vs. Tamil Nadu State Transport Corporation, , held that the Schedule provided under the
Workmen Compensation Act provides a good basis for assessing the compensation on account of permanent disability of the person. This Court
further referred to the provisions u/s 163-A of the Motor Vehicles Act, which provides for computation of compensation as per the structured
formula under the Second Schedule. Applying the same, this Court re-worked the compensation. Learned counsel for the respondent also referred
to the decision of the Karnataka High Court in Bhaskar alias Bhaskar Devaram Bangad Vs. R.K. Srinivasan and Another, , which referred to the
decision of the Supreme Court in R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, . K. Shankar Vs. Pallavan Transport
Corporation Ltd., is a case of amputation of right leg with 80% disability. This Court fixed the compensation at Rs. 4,50,000/-. The compensation
awarded included both under pecuniary loss and under non-pecuniary loss.
The reasoning of these judgments would show that in the matter of awarding compensation, the damages have to be assessed separately as one
falling under pecuniary damages and special damages. Pecuniary damages are those which are actually incurred and capable of calculation on the
basis of evidence produced. However, non-pecuniary damages are those which lacked arithmetical perfection, yet, need to be done on account of
the injuries suffered leading to hardship, discomfort, frustration, mental stress in life, loss of quality of living and enjoyment in life. The loss of
amenities of life may include a variety of factors which may have a restriction on the quality of life that one has to lead. It may be noted that
monetary compensation may not bring back or restore the amputated leg. The Supreme Court held in R.D. Hattangadi Vs. M/s. Pest Control
(India) Pvt. Ltd. and Others, :
Whenever any amount is determined as the compensationpayable or any injuries suffered due to the accident, the object is to compensate such
injury so far as money can compensate, because, it is impossible to equate money with the human suffering or personal deprivations. Money
cannot renew a broken and shattered physical frame.
In the decision reported in 1995 2 L.W. 685 (Managing Director Thiruvalluvar Transport Corporation, Madras v. Thangabalu and Anr.), this
Court held that loss of earning power is only one of the consequences of permanent disability. Hence, the only way by which the injured could be
given redressal is by awarding a just compensation.
A perusal of the order of the Tribunal shows that the respondent was awarded compensation of a sum of Rs. 3,25,000/-. The petitioner was a
bachelor aged about 26 years. Taking note of his future employment opportunities and the treatment that he may have to undergo, the learned
Counsel pleaded for enhancement of compensation and placed reliance on the decision of the Supreme Court in Nagappa Vs. Gurudayal Singh
and Others, , pointing out to the power of this Court to grant enhanced compensation under given set of circumstances. A reading of the judgment
of the Apex Court shows that the Court is required to determine a just compensation and there are no limitations in awarding such compensation in
appropriate cases and if the Court finds that the claimant is entitled to get a better compensation than what is paid, there is no impediment in
passing such an award.
Taking a cumulative note of the injury suffered at 80% in the background of the guidance laid down by the decision of the Apex Court and this
Court, the compensation payable to the respondent deserves to be calculated as per the provisions of the Workmen Compensation Act. Since the
compensation to be worked out thereupon does not go for much variation, the award as it is merits acceptance with the interest granted at 12%
per annum.
The appeal filed by the Transport Corporation is dismissed with the above modification. There will, however, be no order as to costs.