United India Insurance Co. Ltd. vs Veluchamy and Another

P. Sathasivam, J.—By consent of both parties, the appeal itself is taken up for final disposal. United India Insurance Co. Ltd.,

Tiruchengode, aggrieved by award of the Motor Accident Claims Tribunal dated 28.11.2003, made in M.C.O.P. No. 1241 of 2000, has filed the

above appeal. In respect of grievous injuries sustained in a motor accident that took place on 25.7.2000, the claimant-respondent No. 1 herein,

prayed for a compensation of Rs. 5,00,000. In support of his claim, he himself got examined as PW 1 and he also examined one Rakkiappan and

Dr. P. Gnanaprakash as PWs 2 and 3 respectively, besides marking Exhs. PI to P9. On the side of the owner and the insurer, no oral and

documentary evidence was let in. The Tribunal, after analysing the materials and after holding that the accident was caused due to negligence of the

driver of the vehicle in question, passed an award for Rs. 14,62,352 with interest at 9 per cent per annum from the date of petition till date of

deposit. Since the appellant Insurance Company obtained permission to contest the claim petition on all grounds u/s 170 of the Motor Vehicles

Act, 1988 we permit the Insurance Company to canvass the finding relating to quantum determined by the Tribunal.

Heard Mr. Vijayaraghavan, learned Counsel for appellant Insurance Company and Mr. Selvaraju, learned Counsel for the respondent No. 1-

claimant.

3.(i) Mr. N. Vijayaraghavan, learned Counsel for the appellant, after taking us through the award of the Tribunal and all other materials placed,

would submit that in the absence of acceptable evidence, the Claims Tribunal merely based on his oral evidence, erroneously fixed Rs. 7,000 as

monthly income of the injured and arrived at a compensation of Rs. 13,44,000 for loss of income due to the disability sustained in the accident. He

also contended that when the claimant himself has prayed for a compensation of Rs. 5,00,000, the Claims Tribunal is not justified in granting such a

huge compensation of Rs. 14,62,352. He fairly states that he has no grievance with regard to the amount granted towards pain and suffering,

nutritious food and medical expenses.

(ii) On the other hand, Mr. Selvaraju, the learned Counsel for the respondent No. 1-claimant, has submitted that in the claim petition, the injured

claimed a compensation of Rs. 10,97,500 and considering the fact that Court-fee eligibility is only to the extent of Rs. 5,00,000, he restricted his

claim to an amount of Rs. 5,00,000. According to him, when there are materials available for higher compensation the Tribunal should not be

precluded from granting such amount. He also contended that taking note of the fact that the injured claimant was the owner-cum-driver of the van

TN 07-7284, earning Rs. 10,000 per month and that he possessed the necessary driving licence to drive the vehicle and registration certificate in

respect of the van and taking note of the nature of injuries, fracture, permanent disability, etc., the Tribunal has fixed the loss of income at the rate

of Rs. 7,000 per month and by applying multiplier of 16, arrived at a compensation of Rs. 13,44,000. According to him, the Tribunal is fully

justified in fixing the total compensation of Rs. 14,62,352 and there is no ground for interference.

In the light of the submissions made, following points arise for consideration:

(i) Whether the Tribunal is justified in applying the multiplier method while ascertaining compensation in the case of injury/permanent disablement

sustained due to the accident?

(ii) Whether the Tribunal is justified in fixing the monthly income of the injured-claimant at the rate of Rs. 7,000 per month?

Before considering the above points, it would be useful to refer certain salient features in regard to the determination of compensation relating to

grievous injuries, permanent disability, etc. Second Schedule appended to the Motor Vehicles Act, 1988 speaks about the compensation for

''Third Party Fatal Accidents/Injury Cases Claims''. We are concerned with disability in non-fatal accident cases. The following details furnished in

Clause 5 of the Second Schedule are relevant:

Disability in non-fatal accidents-

The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents-

Loss of income, if any, for actual period of disablement not exceeding fifty-two weeks.

Plus either of the following,

(a) in case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier

applicable to the age on the date of determining the compensation, or

(b) in case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total

disablement as specified under item (a) above.

Injuries deemed to result in permanent total disablement/permanent partial disablement and percentage of loss of earning capacity shall be as per

Schedule I under Workmen''s Compensation Act, 1923.

As per Sub-clauses (a) and (b) of Clause 5, in case of permanent total disablement or partial disablement, the Court can arrive at an amount

payable by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation. The proper

multiplier to be applied has been prescribed in Clause 1 of Second Schedule (vide Table). The percentage of loss of earning capacity in respect of

permanent total disablement or permanent partial disablement arising out of injuries has to be arrived at as per Schedule I under Workmen''s

Compensation Act, 1923.

The Courts and Tribunals, in bodily injury cases, while assessing compensation, should take into account all relevant circumstances, evidence,

legal principles governing quantification of compensation. Further, they have to approach the issue of awarding compensation on the larger

perspectives of justice, equity and good conscience and eschew technicalities in the decision-making. There should be realisation on the part of the

Tribunals and Courts that the possession of one''s own body is the first and most valuable of all human rights and that all possessions and

ownerships are extensions of this primary right, while awarding compensation for bodily injuries. Bodily injury is to be treated as a deprivation

which entitles a claimant to damages. The amount of damages varies according to gravity of injuries. Deprivation sustained as a consequence of

bodily injuries may bring with it three consequences, namely, (i) loss of earnings and the earning capacity; (ii) expenses to pay others for what

otherwise he would do for himself; and (iii) loss or diminution in full pleasures and joys of living. Though it is impossible to equate money with

human suffering, agony and personal deprivation, the Tribunals and Courts should make an honest and serious attempt to award damages so far as

money can compensate the loss. Loss of curing and earning should adequately be compensated. Therefore, while considering deprivation,

Tribunals and Courts should have due regard to the gravity and degree of deprivation as well as the degree of awareness of the deprivation. In

awarding damages in personal injury cases, compensation awarded by the Court should be substantial, it should not be merely token damages.

In R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, , speaking about the heads of compensation, the Apex Court held thus:

Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as

pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being

calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In

order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant, (i) medical attendance; (ii) loss of earning of

profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include, (i) damages for mental and

physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of iife

which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of

expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort,

disappointment, frustration and mental stress in life.

Money cannot renew a physical frame that has been battered and shattered. All the Judges and Courts can do is to award sums which must be

regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of

approach. In personal injury cases the Courts should not award merely token damages but they should grant substantial amount which could be

regarded as adequate compensation. The general principle which should govern the assessment of damages in personal injury cases is that the

Court should award to injured person such a sum of money as will put him in the same position as he would have been in if he had not sustained

the injuries. But, it is manifest that no award of money can possibly compensate an injured man and renew a shattered human frame. It is well

settled principle that in granting compensation for personal injury, the injured has to be compensated, (1) for pain and suffering; (2) for loss of

amenities; (3) shortened expectation of life, if any; (4) loss of earnings or loss of earning capacity or in some cases for both; and (5) medical

treatment and other special damages.

In an accident, if a man is disabled for the work, which he was doing before the accident, that he has no talents, skill, experience or training for

anything else and he is unable to find any work, manual or clerical, such a man for all practical purposes has lost all earning capacity he possessed

before and he is required to be compensated on the basis of total loss. An injured person is compensated for the loss which he incurs as a result of

physical injury and not for physical injury itself. In other words, compensation is given only for what is lost due to accident in terms of an equivalent

in money insofar as the nature of money admits for the loss sustained. In an accident, if a person loses a limb or eye or sustains an injury, the Court

while computing damages for the loss of organs or physical injury, does not value a limb or eye in isolation, but only values totality of the harm

which the loss has entailed: the loss of amenities of life and infliction of pain and suffering; the loss of the good things of life, joys of life and the

positive infliction of pain and distress.

In estimating the financial or pecuniary loss, the Court must first form an opinion from the evidence and probabilities in the case, of the nature

and extent of the loss. While estimating the loss of earnings the Court must first decide what the claimant would have earned if the accident had not

happened, allowing for any future increase or decrease in the rate of earnings. It is also necessary for the Court to decide how long the loss will

continue, whether there is incapacity for life or for a shorter period. The Court should also make an estimate of the amount, if any, which the

claimant could still earn in future, notwithstanding disabilities sustained by him in the accident. Further, in a case where the claimant claims medical

and nursing expenses, the Court must find as a fact what expenses have already been incurred and must estimate from the evidence the expenses

which will be incurred in future. Future promotions, increments, revisions of pay are in the domain of many imponderables and the Court should

bear them in mind while assessing the future loss of income. While estimating future loss of income, the Court can take into account the future

prospects of the injured or the deceased of earning more income by way of promotions or otherwise.

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.

In the light of the above well settled principles, norms and rules governing the assessment of damages in personal injury cases, let us proceed to

consider whether the award passed by the Tribunal is justifiable or not?

It is seen from the evidence of PW1 that at the time of the accident he was 37 years old. When he was driving the van bearing registration No.

TN 07-7284 from west to east on the left side of the road, a vehicle belonging to Krishna Paper Industries, insured with United India Insurance

Co. Ltd. and driven by its driver Prabhakaran in a rash and negligent manner, dashed against his van, thereby he sustained fracture on the right

thigh, fracture of right knee and also sustained injuries all over the body. Immediately he was taken to Richmond Hospital, Coimbatore, where he

had treatment for a period of two months as in-patient and thereafter as out-patient. Wound certificate and discharge summary have been marked

as Exhs. P-2 and P-3 respectively. It is also his claim that he is a driver by profession and owned a van, getting an income of Rs. 10,000 per

month. However, according to him, due to the accident and disablement, he could not do any work after the accident. In order to show that he is a

driver, he produced a copy of his driving licence which has been marked as Exh. P-5. To show that he is the owner of the van, he produced the

permit relating to the same which has been marked as Exh. P-7. He also deposed that due to the accident, the van completely damaged and he is

solely not able to do any work. He cannot stand, walk freely, climb the stairs and not able to drive and his right leg shortened than that of the left

leg.

Though one Rakkiappan, a neighbour of PW 1 was examined as PW 2, his oral evidence cannot be accepted. Dr. P. Gnanaprakash,

Orthopaedic Surgeon, Coimbatore Medical College and Hospital was examined as PW 3. He has deposed in his evidence that he had examined

the injured Veluchamy on 1.9.2003 for the injuries sustained in an accident that took place on 25.7.2000. He also deposed that he verified the

Accident Register, case record issued by Richmond Hospital, Coimbatore and also wound certificate, Exh. P-2. The discharge summary is exh. P-

He noticed that his right thigh bone fractured into several pieces. He also noticed fracture of posterior tribal nerve on the right foot. He also

noticed that there is insertion of screw and silver plate. He came to know that a neurology operation has been done. After thorough examination,

he concluded that his right thigh, right leg, right hip lost its value and right leg shortened by 4 cms. than that of the left leg. He also noticed that there

is restriction of right knee movement. According to him, it would be difficult for him to sit, stand or attend to the nature''s call and there is a

possibility of the injury being worsened and also got further damaged in the operated portion. Ultimately, he assessed his disability to the extent of

49 per cent. The disability certificate has been marked as Exh. P-8 and X-ray as Exh. P-9. In cross-examination, he once again asserted and

reiterated the same thing which he deposed in the chief examination. It is clear from the evidence of injured-claimant, PW 1 and doctor PW 3 as

well as Exhs. P-2 to P-4, P-8 and P-9 that the claimant being the van driver cannot drive the same as he was doing prior to the accident. We have

already referred to the fact that the claimant had asserted in the claim petition that he was getting an income of Rs. 10,000 per month at the time of

the accident. Except his oral evidence, no documentary evidence was produced to prove his income; however, Exh. P-5 shows that he got valid

driving licence to drive heavy vehicles. Exh. P-7 shows that he possessed van TN 07-7284. It is also not in dispute that while he was driving the

said van, because of the negligence of the driver of the other van TN 27 T 8131, he sustained the above mentioned injuries. Accordingly, it is clear

that claimant not only possessed required qualification to drive the vehicle, but also is the owner of the van. In such circumstance, even though the

Tribunal has fixed Rs. 7,000 as his probable monthly income, we are of the view that he would earn at least Rs. 5,000 per month. Being a van

driver, he spent most of the time away from his home and also spent more money towards expenses for his food? Accordingly, after deducting Rs.

1,500 towards his personal expenses, undoubtedly, it would be possible for him to save Rs. 3,500 every month. Because of the accident and

consequent disablement, he is prevented from earning and saving to the extent mentioned above. Though learned Counsel for respondent-claimant

claimed that in view of the fact that he cannot drive a vehicle, he lost his earning power to the extent of 100 per cent, we are of the view that it is

not the case of amputation of a leg either below hip or knee. In such a circumstance, as pointed out by the learned Counsel for the appellant,

instead of earning by himself, it would be possible for him to earn by engaging a driver for his van or any other vehicle. In other words, we are of

the view that he is not completely disabled from doing any work apart from driving aspect as accepted by the Tribunal. Inasmuch as with the said

disablement, he can do some other work by engaging a suitable person/persons to earn, we are of the view that ends of justice would be met by

fixing his savings at Rs. 3,500 per month.

We have already referred to the relevant clauses of the Second Schedule appended to the Motor Vehicles Act, 1988 which permit the

Courts/Tribunals to apply multiplier method even in the case of permanent/partial disablement. In I (2006) ACC 123 (SC) , the Supreme Court

has held that in the case of fracture of right zygoma with injuries at spine and right knee, after noting the same as permanent disability and after

allowing loss of earning capacity at Rs. 1,500 per month, adopted multiplier of 10. In that case, the injured-claimant was a medical practitioner

aged about 36 years.

In P. Kalavathi Vs. G. Murali and Another, , a Division Bench of this Court, for permanent disability to the extent of 45 per cent to injured-

claimant who being a tailor, adopted multiplier of 10 and awarded compensation accordingly.

By applying the above principles and taking note of the specific evidence of PWs 1 and 2 coupled with Exhs. P-2 to P-9, we are of the view

that multiplier of 12 would meet the ends of justice. There is no necessity to apply and adopt the actual multiplier in respect of fatal cases as

provided in Clause 1 of Second Schedule. Here, as already referred to by us, it is not. the case of complete amputation either below hip or knee.

With the said ailment and disability, there is possibility of the claimant to earn money to some extent. Accordingly, we propose to fix future loss of

income.

In view of the fact that he sustained disability to the extent of 49 per cent, as seen from Exh. P-8 as well as the evidence of PW 3, we grant

Rs. 50,000 for permanent disability.

The claimant was in the hospital nearly for a period of two months. It is clear from the summary discharge, Exh. P-3, that he had undergone

operation. It is also evident that silver rod and screw were inserted by way of surgery and as such undoubtedly the injured-claimant might have

undergone severe pain. Therefore, we grant Rs. 15,000 for pain and suffering. Taking note of the nature of injuries and period of treatment, we fix

Rs. 5,000 for transport charges and another Rs. 5,000 towards nutritious food. Exh. P-4 series, medical bills, show that he had spent a sum of Rs.

1,11,352 on medical expenses. Since there is no dispute regarding the genuineness of the same, we grant the entire amount as claimed, i.e., Rs.

1,11,352 towards medical expenses.

Though it is contended by the learned Counsel for the appellant Insurance Company that the claimant has prayed for only Rs. 5,00,000 as

compensation in the claim application, a perusal of the claim petition shows that altogether he prayed for a compensation of Rs. 10,97,500 and it is

stated that in order to claim Court-fee exemption, he restricted his claim to the extent of Rs. 5,00,000. This is evident from page 5 of the claim

petition. Accordingly, it is clear that the claimant has estimated his loss to the extent of Rs. 10,97,500 however, restricted his claim to the extent of

Rs. 5,00,000. Even otherwise, there is a settled legal position that if there are materials, it would be open to the Tribunal/Court to grant higher

compensation than that of the amount claimed.

In the light of our discussion, the claimant is entitled to following amounts for the heads noted against them:

(1) For permanent disability--49 per cent Rs. 50,000

(2) For loss of income during treatment Rs. 10,000

(3) Future loss of income/earning power Rs. 5,04,000

(4) Pain and suffering Rs. 15,000

(5) Transport charges Rs. 5,000

(6) Nutritious food Rs. 5,000

(7) Medical bills (Exh. P-4 series) Rs. 1,11,352

_______________

Total: Rs. 7,00,352

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The amount of Rs. 7,00,352 is rounded off to Rs. 7,00,000. The above award will carry interest at the rate of 9 per cent from the date of petition

till date of deposit. On such deposit being made, the respondent No. 1-claimant is permitted to withdraw Rs. 3,00,000 (Rupees three lakh only)

and the remaining amount of Rs. 4,00,000 (Rupees four lakh only) shall be invested in a nationalised bank for a period of five years and the

claimant is permitted to withdraw quarterly interest for the amount once in three months directly from the bank. The award of the Claims Tribunal is

modified to this extent. Civil miscellaneous appeal is allowed in part. No costs. Connected C.M.P. is closed.