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2012 DIGILAW 1143 (MAD)

R. Raja v. L. S. Dilli Babu

2012-03-01

S.VIMALA

body2012
Judgment :- 1. The injured, a living dead person, suffering multiple injuries, i.e., (rupture of urethra and fracture of pelvic bone, ultimately resulting in loss of marital prospects), has filed this appeal, challenging the quantum of compensation of Rs.2,10,000/- as inadequate and praying for enhancement. 2. The injured was working as a cleaner under the first respondent. The lorry bearing registration No.TN-25-3459 had been parked on the western side of Elliamuthali Street, Thondaiarpet, Chennai facing South and waiting for being loaded. As instructed by the driver, the injured went underneath the lorry to apply grease. The lorry driver, who came from the nearby go-down, carelessly and negligently started the vehicle, thereby, caused crush injury to the injured who was under the lorry. The appellant sustained fracture of pelvic bones, rami fubis, rupture of urethra, intestinal injury etc. He was admitted at Ramya Hospital, Chennai and later shifted to the Government General Hospital. The injured in the course of his employment was earning a sum of Rs.3,000/- per month. Due to the injury leading to permanent disability, his future life has become a question mark and, therefore, the petitioner quantified the compensation at Rs.16,00,000/- and filed the claim accordingly. 3. The claim filed by the appellant was resisted by the second respondent-Insurance Company on the following grounds: 1. that the nature of injury, period of treatment, medical expenses, alleged disability were disputed.; 2. that the injured should prove that he has not claimed any compensation under the Workmen's Compensation Act. 3. that the permit and Insurance Policy for the vehicle were not in order. There was also no valid driving licence for the driver. Therefore, the Insurance Company is not liable to indemnify the owner. 4. Before the Claims Tribunal, P.Ws.1 to 4 were examined, of whom PW.1 is the injured, P.W.2 is the Head Constable and Pws. 3 and 4 were the doctors who issued disability certificate to the injured and Exs.P1 to P10 were marked. On the side of the respondents, no oral or documentary evidence has been adduced. 5. The Tribunal on considering the question of rash and negligent driving, on the basis of the admission of guilt by the driver before the Criminal Court, admitting the rash and negligent driving (wherein he paid a fine of Rs.1,000/-) has held that the accident took place due to the rash and negligent driving of the first respondent's driver. 5. The Tribunal on considering the question of rash and negligent driving, on the basis of the admission of guilt by the driver before the Criminal Court, admitting the rash and negligent driving (wherein he paid a fine of Rs.1,000/-) has held that the accident took place due to the rash and negligent driving of the first respondent's driver. The contention of the first respondent that the injured was sleeping under the lorry and not greasing the lorry was not accepted by the Tribunal, in the absence of any evidence on the side of the respondent. 6. Even though the validity of driving licence and the coverage of the vehicle with a valid policy of insurance, has been disputed by the Insurance Company, no evidence in this regard has also been adduced. As the burden of proof is not discharged, the Tribunal has given a finding that the liability of Insurance Company cannot be disputed. 7. With regard to quantum of compensation, the Tribunal has awarded a sum of Rs.2,17,500/-the details of which would be discussed in detail in the later part of the judgment. Challenging the quantum as insufficient and not just, the claimant has filed this appeal. 8. The claimant has raised the following objections in the grounds of appeal: a. The Tribunal erred in fixing the income of the lorry cleaner at Rs.1,500/- per month, whereas his income was Rs.3,000/- per month. b. Considering the fact that the injured was an inpatient for 143 days, the Tribunal ought to have awarded a reasonable compensation under the head of pain and suffering, extra nourishment, transportation expenses and medical expenses. c. The Tribunal failed to appreciate the disability certificate issued by PW.3 and 4 in proper perspective and, thereby, did not award sufficient compensation. d. The Tribunal failed to appreciate the evidence of PW.4, and failed to consider the pathetic situation in which the appellant is, whereby he is passing urine through a tube. The tube is permanently fixed-Urine mixes with faeces and also comes out of the anal orifice colon which was also ruptured and difficulty in passing stools and also there is loss of potency and he cannot lead a marital life and a surgery is required to correct the urinary problem which will cost Rs.3,00,000/-. The tube is permanently fixed-Urine mixes with faeces and also comes out of the anal orifice colon which was also ruptured and difficulty in passing stools and also there is loss of potency and he cannot lead a marital life and a surgery is required to correct the urinary problem which will cost Rs.3,00,000/-. e. When the appellant is incurring a sum of Rs.750/-per month as recurring expenditure and the same has to continue till the operation is performed, the Tribunal ought to have awarded a reasonable sum as medical expenses and not Rs.1,000/-and that the Tribunal ought to have awarded future medical expenses also. f. The Tribunal ought to have adopted multiplier method in awarding compensation under the head of loss of earning power. 9. The point for consideration in this appeal is whether the amount of compensation awarded by the Tribunal is fair and reasonable. 9.1. Whenthis Court heard the arguments on both sides, this Court expressed the opinion that the amount of compensation awarded by the Tribunal was grossly inadequate and by indicating the parameters and by putting a rough calculation, the Court expressed the opinion that compensation should be in the region of atleast Rs.8,00,000/- to Rs.10,00,000/-. The learned counsel for the respondent-Insurance Company pointed out that the appeal itself has been valued only at Rs.6,00,000/- and therefore, this Court cannot award more than Rs.6,00,000/-. The fact remains that before the claims Tribunal the injured had claimed a sum of Rs.16,00,000/- as compensation. Irrespective of the claim made, it is the duty of the Court to arrive at the compensation, which would be just and reasonable. It is settled law that the Court is always empowered to award more compensation than what is claimed, provided the facts, materials and circumstances justify the same., as held in the case reported in 2012 ACJ 191 (Laxman Vs. Divisional Manager, Oriental Insurance Company), wherein it has been held as follows: "Tribunals should adopt a proactive approach and ensure that claims are disposed of urgently and compensation awarded in adequate measure including pecuniary and non-pecuniary damages." Following the decisionreported in2003 ACJ 12 (SC) it was held that there is no bar under the Act i.e., Motor Vehicles Act, 1988, to award more compensation than what is claimed. Emphasizing the need for restoring the injured to his full life as far as possible, the Hon'ble Supreme Court, inRaj Kumar Vs. Emphasizing the need for restoring the injured to his full life as far as possible, the Hon'ble Supreme Court, inRaj Kumar Vs. Ajay Kumar, 2011 ACJ 1 (SC), held thus: "The provision of the Motor Vehicles Act, 1988 ('the Act' for short) 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 assess the damages objectively............" The only right of the respondents is their right to be heard on the proposed increase in the quantum of compensation. Therefore, the learned counsel for the respondent was also heard on the proposed increase in the quantum of compensation. 10. In order to appreciate, the justifiability of the quantum of compensation allowed/to be allowed, it is necessary to consider the nature of injury, period of treatment, the nature of disability, the impact of disability upon the earning capacity of the injured, effect of disability on the quality of the life of the injured, medical expenses past and future etc. It is an admitted fact that the injured was working as a Cleaner in the lorry and the accident had happened while he was applying grease to the lorry. The Tribunal has taken the income of the claimant at Rs.1,500/-, whereas the injured has stated that he was earning a sum of Rs.3,000/-per month. Having regard to minimum wages payable to a cleaner, the income can be safely taken at Rs.2,250/- per month. 11. The appellant sustained fracture of pelvic bones, rami fubis, rupture of urethra, intestinal injury etc. It is also an admitted fact that the injured has taken treatment as inpatient for 143 days, the details of which are furnished in the tabulation below: 12. It is the evidence of P.W.1 that when he was admitted in the hospital from 8.10.2001 to 11.10.2001, he was operated twice, once for intestinal injury and the other one for urethral injury. According to him, the lorry owner paid a sum of Rs.60,000/-towards operation expenses, and as he was not ready to spend any more, he shifted himself to the Government Hospital. According to him, the lorry owner paid a sum of Rs.60,000/-towards operation expenses, and as he was not ready to spend any more, he shifted himself to the Government Hospital. During his stay at the Government Hospital, his urinary tube, which got disconnected was removed. New tube has been fixed permanently. Stitches have been made in the anus. Nearly 6 to 7 times, he has been operated upon. The appellant is passing urine through a tube. Urine mixes with faeces and also comes out of the anal orifice. Due to colon rupture there is difficulty in passing stools. Due to loss of potency on account of the accident, he cannot have marital life. According to the Doctor, further surgery is required to correct the urinary problem, which will cost Rs.3,00,000/-. The evidence of P.W.1 with regard to the nature of treatment and the details of surgery made, stands corroborated by the evidence of the Doctors, PW.3 and PW.4. 12.1. According to Dr. Saichandran, the disability with regard to fracture of pelvic bone is 30% (Ex.P8). The doctor has deposed that there is mal-union of pelvic bone. 12.2. P.W.4, Dr.Thiagarajan, has spoken about the details of treatment given to the injured and also about the nature of operation performed. In his evidence, he has stated about the stitching done in the anus, the alternative passage created for the passing of feacus. According to him, the urine mixes with feacus and it passes through anus. He has certified the disability at 55%. He has also testified that the injured will be unfit for marital life. He has also spoken about the future operation which would cost about Rs.3,00,000/-. When the doctor has stated that he will not be able to assure the success of the operation it does not mean that the operation, will be a failure, but, it means that the success rate would be unpredictable, as such the urinary passage is now a tube which is permanently fixed. 13. The description of the nature of injury and the permanent disablement evidently go to show that it has a serious impact on the earning capacity of the injured. The injured will never be able to do the job of the cleaner. Therefore, it is a fit case in which multiplier method has to be adopted to quantify the compensation. 13.1. The description of the nature of injury and the permanent disablement evidently go to show that it has a serious impact on the earning capacity of the injured. The injured will never be able to do the job of the cleaner. Therefore, it is a fit case in which multiplier method has to be adopted to quantify the compensation. 13.1. According to the learned counsel for the appellant even though the disability is 85% (30% + 55%), the functional disability is 100% and, therefore, while adopting multiplier method total loss of income should be taken into consideration. On the other hand, the learned counsel for the respondent contended that the total permanent disability with regard to the whole body would be roughly 40% only and, therefore, corresponding reduction should be made in the monthly income while adopting multiplier method. The percentage of disability is one issue and the impact of percentage of disability on the earning capacity is a different issue. Having considered the nature of operations performed on the injured and having regard to the nature of disability, one can easily come to a conclusion that the functional disability would be a near zero. Taking the monthly income at Rs.2,250/- and adopting the multiplier of 16' the total loss of dependency would be Rs.4,32,000/-rounded to Rs.4,35,000/-. 14. Normally, cases on comparable parameters would be available but not substantially comparable cases. Rarely one comes across such a case which is comparable on almost on all essential parameters. One such case, is the one reported in 2012 ACJ 191 (Laxman Vs. Divisional Manager, Oriental Insurance Company), which has all comparable parameters fitting to the facts of this case, as extracted hereunder: "..... Rarely one comes across such a case which is comparable on almost on all essential parameters. One such case, is the one reported in 2012 ACJ 191 (Laxman Vs. Divisional Manager, Oriental Insurance Company), which has all comparable parameters fitting to the facts of this case, as extracted hereunder: "..... Injured aged 24, Carpenter, earning Rs.5,000/- p.m., suffered 26 per cent disability of right lower limb, 25 per cent disability due to urethras injury and 38 per cent disability to the whole body Injured having altered gait, finding difficulty in sitting cross-legged or squat and having difficulty in passing urine – Injured will not be able to work as Carpenter to do any manual work – Tribunal awarded Rs.45,000 which was enhanced to Rs.76,000 by the High Court – Apex Court allowed Rs.3,32,640/- for loss of future earnings, Rs.5,000/- for loss of income, Rs.1,50,000 for future medical expenses, Rs.1,50,000 for pain, suffering and trauma, Rs.2,00,000 for loss of amenities including loss of prospects of marriage – Award of Rs.76,000 enhanced to Rs.8,37,640/-. " 15. So far as future medical expenses is concerned, the doctor has stated that the injured may require Rs.3,00,000/- for correcting the urinary problem but the success rate is unpredictable. In the evidence of injured, he has stated that his employer spent Rs.60,000/- for initial operation. The injured has produced bills only for Rs.1,000/-. Throughout he has taken treatment in the Government Hospital. It is common knowledge that when the operation is performed for a complication of this nature, some times the injured have to purchase medicine from outside also. Therefore, past medical expenses has to be granted and it is allowed at Rs.10,000/-. 16. The learned counsel for the appellant emphatically argued on the need for awarding compensation towards future medical expenses. The importance of awarding future medical expenses has been pointed out in the decision of the Hon'ble Supreme Court reported in 2012 ACJ 191 (Laxman Vs. Divisional Manager, Oriental Insurance Company), wherein the Hon'ble Supreme Court observed that the compensation awarded should cover 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 observation in 2012 ACJ 191 (Laxman Vs. Divisional Manager, Oriental Insurance Company), wherein the Hon'ble Supreme Court observed that the compensation awarded should cover 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 observation in 2012 ACJ 191 (Laxman Vs. Divisional Manager, Oriental Insurance Company) 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 (for short, 'the Act') 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.........." 17. In the evidence of PW.1, he has stated that he has to change the urine tube once in ten days. To change it every time, he has to incur a sum of Rs.240/-. For a month, he has to spend atleast Rs.750/-. Without operation if this arrangement has to continue the injured will have to change the tube and he has to spend atleast a sum of Rs. 9,000/- to Rs.10,000/- per year. As this is a continuing problem till life, considering this nature of perennial problem, future medical expenses is allowed at Rs.1,00,000/-. 18. Adopting the principles and ratio laid down in the cases referred above, the proper amount of compensation to be awarded has been arrived at and the break-up details for the compensation awarded is given below in the tabulated form:- 19. In the result, the appeal is allowed. The award is enhanced from Rs.2,17,500/- to Rs.8,85,000/-. The Insurance Company shall pay the entire amount of compensation, less the amount deposited already if any, with 7.5% interest from the date of petition till the date of deposit within a period of two months from the date of receipt of a copy of this order. On such deposit being made, the injured claimant shall be entitled to withdraw the same. On such deposit being made, the injured claimant shall be entitled to withdraw the same. The appellant is directed to pay the Court fee on the enhanced amount. There shall be no order as to costs.