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2012 DIGILAW 3470 (MAD)

A. Sahaya Jackuline Kiruba v. R. Veerachamy

2012-08-03

S.VIMALA

body2012
Judgment :- 1. Aggrieved over the inadequacy of the compensation awarded by the learned Subordinate Judge (Motor Accidents Claims Tribunal), Devakottai in M.C.O.P.No.19 of 2010 by the Judgment and Decree dated 10.10.2011, the appellant has preferred this Civil Miscellaneous Appeal. 2. The Appellant / Claimant is an young girl aged about 19 years, studying first year Computer Science course in Anantha College at Devakottai. On 07.07.2008 at about 09.10 a.m., when she was going to the college in her bicycle in Devakottai - Karaikudi Main Road from East to West on the leftern side of the road, a lorry bearing Registration No.TN 46 E 7668 driven by the first respondent in a rash and negligent manner, hit her. In the said accident, the right leg of the appellant was badly injured and despite the best treatment given, she had to undergo amputation of the right leg below the knee. 3. The appellant herein filed a claim petition, estimating the compensation at Rs.13,00,000/- (Rupees Thirteen Lakhs only), however, restricted her claim to Rs.8,00,000/- (Rupees Eight Lakhs only). 4. The claim was resisted and the Insurance Company wanted to exonerate itself from the liability to pay the compensation on the following grounds:- (i) The accident did not take place due to the rash and negligent driving of the vehicle by the first respondent. (ii) At the time of the accident, the first respondent / driver did not possess a valid and effective driving license to drive the lorry. (iii) The place, date and time of the accident are not admitted. 5. The Motor Accidents Claims Tribunal examined the Appellant / Claimant as P.W.1 apart from the Doctor (P.W.2), who treated her and considered Exs.P.1 to Ex.P.10. Though the validity of the driving license of the first respondent has been disputed by the Insurance Company, no oral or documentary evidence has been adduced to substantiate its stand. 6. The Tribunal, on consideration of oral and documentary evidence gave a finding that the accident took place due to the rash and negligent driving of the lorry by the first respondent / driver, essentially basing the findings on the admission made by the driver before the Criminal Court, admitting that he was rash and negligent in driving the vehicle and fixed the liability on the Insurance Company. So far as the quantum of compensation is concerned, the Tribunal awarded a total compensation of Rs.3,17,000/- (Rupees Three Lakhs Seventeen Thousand only) under the following Heads:- 7. It is the grievance of the appellant herein that when she is at the threshold of her youth, having great dreams towards the bright prospective future, the Tribunal, without considering the social, cultural, economic and political opportunities in life has awarded a meagre sum of Rs.3,17,000/- (Rupees Three Lakhs Seventeen Thousand only) as compensation. The specific grievance of the appellant is that when she suffered 70% of the permanent disability and the same is strengthened by the evidence of the Doctor and the Disability Certificate-Ex.P.10, the Tribunal ought to have adopted the multiplier method in arriving at the compensation and instead of doing so, the Tribunal has chosen to award a lump sum compensation, which has resulted in meagre amount being awarded to her. 8. It is submitted that while the Appellant / Claimant suffered 70% of the disability and the same is borne out by the Disability Certificate-Ex.P.10, the Tribunal awarded only a sum of Rs.1,00,000/- (Rupees One Lakhs only) towards permanent disability and the Tribunal failed to take into note the fact that the Appellant / Claimant was a first year Computer Science student. 9. The learned counsel for the appellant further submitted that in view of the loss of leg, the appellant was totally dependent on others even to attend nature call and she could not do her normal activities, as she had been doing earlier. However, the Tribunal without considering the loss of leg, awarded only a sum of Rs.50,000/- towards future medical expenses. Hence, the learned counsel for the appellant prays for enhancement of compensation. 10. Learned counsel appearing for the petitioner relied upon the decisions in SHARMILA VS..M.SURESH KUMAR AND ANOTHER (2010 (1) TNMAC 438) and NATIONAL INSURANCE CO., LTD., VS.. T.A.NICHOLAS (2009 (1) TNMAC 373) and contended that the future monthly income of the claimant may be fixed at a sum of Rs.10,000/- per month. In SHARMILA's case, the injured was a graduate in B.E., Computer Science and suffered 80% of the disability and this Court, for the purpose of computation of loss of income fixed the monthly income at Rs.10,000/-. In SHARMILA's case, the injured was a graduate in B.E., Computer Science and suffered 80% of the disability and this Court, for the purpose of computation of loss of income fixed the monthly income at Rs.10,000/-. In yet another decision in NATIONAL INSURANCE CO., LTD., (cited supra), injured was a final year B.E., Computer Science student and the Tribunal has fixed his notional income at Rs.10,000/- per month. 11. On the other hand, the learned counsel appearing for the Insurance Company submitted that the Appellant / Claimant was not in employment and therefore, the Tribunal was perfectly correct in awarding lump sum compensation. The learned counsel further submitted that when the Tribunal awarded compensation towards Permanent disability, no amount need be awarded towards future earning capacity. 12. I have carefully considered the rival submissions of both parties. 13. In order to appreciate the contentions of the Appellant / Claimant, it is necessary to look into the nature of injuries, period of treatment, the percentage of disability, the impact of disability upon the functional ability, and the impact of disability upon the entire quality of life etc., of the appellant. 14. Before discussing the question of fact, it is necessary to look into the nature and power of the jurisdiction of the Claims Tribunal, nature of litigation before the Claims Tribunal and the duty and responsibility of the Claims Tribunal to award just compensation. 15. The word "Compensation" is derived from the Latin word "com-pensare" meaning "weigh together" or "balance". 16. What are the yardstick to award "just compensation" or what are all the yardstick to convince one conscience regarding "just compensation" is to be considered. Lord Blackburn stated in the celebrated decision in LIVINGSTONE ..VS..RAWYARDS COAL CO., (1880 (5) AC 25(HL)) that "you should as nearly as possible get at the sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting compensation or reparation". 17. If the above said theory of "full compensation" is to be applied to the facts of this case, the relevant consideration would be as to how to put back the injured in the same position, in which she would have been, if she had not sustained the loss. 17. If the above said theory of "full compensation" is to be applied to the facts of this case, the relevant consideration would be as to how to put back the injured in the same position, in which she would have been, if she had not sustained the loss. In this accident, she has lost her leg below the knee. If she is to be put in the same position with some arrangements, which would give her the comfort of having her right leg, then it should be done involving the principles of equalization. How to do it practically is the issue. May be putting up an artificial leg to give her some support. Along with the artificial leg, the loss of suffering on account of loss of right leg i.e., loss of enjoyment of amenities, loss of developmental opportunities in life, loss of expectation of life, loss of earning capacity, loss on account of future medical expenses and all other possible loss have to be calculated and it should be awarded to her. 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 (2011 A.C.J 1(SC)) 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". 19. The personal suffering of the survivors of the road accidents has been emphatically expressed by the Hon'ble Supreme Court of India in LAXMAN ..VS..DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY (2012 A.C.J 191) 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. 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." 20. Further, in the above said decision, the issue regarding the competency of the Court to award more compensation than what is claimed by the claimant has also been answered positively. By following the decision in NAGAPPA ..VS..GURUDAYAL SINGH (2003 ACJ 12 (SC)), the Hon'ble Supreme Court gave a verdict that it is permissible for the Claims Tribunal to award more compensation than what is claimed. 21. Viewed in this background, now we have to find out as to whether the compensation of Rs.3,17,000/- (Rupees Three Lakhs and Seventeen Thousand only) awarded by the Tribunal to the Appellant / Claimant will put her back in the same position of having two legs in tact, which was the position before the accident. 22. Coming to the nature of injuries and the consequential disabilities, it is the evidence of the Appellant / Claimant that after the surgery, her right leg below the knee has been amputated. The Doctor, who has been examined as P.W.2, has certified the disability as 70% and issued Ex.P.10 -Disability Certificate. According to the Appellant / Claimant, because of the accident, (i) She had to discontinue her studies; (ii) Even to attend nature call, she has to depend others; (iii)She needs future medical expenses for the purpose of getting an artificial leg to be fixed; (iv) She lost her marital prospects; (v) She has lost her mental peace and the vacant space after the removal of the leg is a perennial reminder to her that she lost her leg; (vi) Her dream to earn at least Rs.50,000/- to Rs.70,000/-per month has become impossible. 23. Then, it is necessary to look into the definition of "permanent disability" and what is the methodology to be adopted to quantify the loss arising on account of the permanent disability. 24. 23. Then, it is necessary to look into the definition of "permanent disability" and what is the methodology to be adopted to quantify the loss arising on account of the permanent disability. 24. "Permanent disability" means the absence of power. Disablement means where the disablement is of temporary nature, such disablement as reduces the earning capacity of a person in any employment in which he was engaged at the time of accident, resulting in disablement, and, where disablement is of permanent nature, such disablement as reduce the earning capacity in every employment which he was capable of undertaking at that time, provided that, every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement. 25. Time and again, the Hon'ble Supreme Court has pointed out that it is not the physical disability that matters, but the functional disability arising out of the physical disability is the matter to be taken into consideration. In other words, the impact of physical disability upon the capacity of a person to earn their livelihood is the issue to be considered. So far as this case is concerned, the Appellant / Claimant is a first year student of a College. Therefore, the issue to be considered is what would be her prospective earning in future and what would be the future loss on account of her loss of life. 26. The above said question and the methodology to be applied for the determination of compensation as regards prospective loss of future earning has been answered by the Hon'ble Supreme Court in the case of LAXMAN ..VS..DIVISIONAL MANAGER, ORIENTAL INSURANCE CO., LTD AND ANOTHER ( 2012 ACJ 191 ) and the observation reads thus:- "The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any Court to lay down rigid tests which should be applied in all situations. It is, therefore, difficult for any Court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guesswork may be inevitable. That may be so. In the Indian context several other factors should be taken into consideration including education of the dependents and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification, his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co., Ltd., Vs.. Jashuben ( 2008 ACJ 1097 (SC)), held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration. One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard and fast rule, however, can be laid down therefor". (Emphasis supplied) 27. In accordance with the decision, the educational qualification, her past performance, the relevance of computer education, the perks and other salaries available to the computer graduates and the demand for computer engineers in the emerging world are the factors to be taken into consideration while awarding the compensation. 28. It is appropriate to quote the decision reported in S.SURESH VS..ORIENTAL INSURANCE COMPANY LIMITED AND ANOTHER (2010 (1) TNMAC 253(SC)). It is a case where following the ratio laid down in the Four Judge Bench decision of Apex Court in PRATAP NARAIN SINGH DEO ..VS.. SRINIVAS SABATA ( 1976 (1) S.C.C. 289 ), it was held that amputation of right leg below knee rendered injured unfit for work of driver which he was performing at time of accident resulting in total disablement. SRINIVAS SABATA ( 1976 (1) S.C.C. 289 ), it was held that amputation of right leg below knee rendered injured unfit for work of driver which he was performing at time of accident resulting in total disablement. The loss of earning capacity of the injured was estimated at 100%. 29. In the case of PRATAP NARAIN SINGH DEO (cited supra), a Carpenter had suffered amputation of his left arm from the elbow. The Hon'ble Supreme Court held that it was total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. 30. So far as the quantum of compensation is concerned, it is relevant to take into consideration the decision reported in GOVIND YADAV ..VS.. NEW INDIA INSURANCE COMPANY LIMITED (2011 (2) TNMAC 661(SC)). In the said case, when the helper / cleaner in mini bus, earning a sum of Rs.4,000/-per month suffered amputation of left leg in the accident, compensation towards pain and suffering was awarded at Rs.1,50,000/- and towards loss of marital prospects a sum of Rs.1,50,000/- has been awarded. The Award of the Tribunal was enhanced from a sum of Rs.3,06,000/-to Rs.9,53,600/-. 31. Taking guidance from all the decisions referred to above, it is appropriate to fix the compensation at Rs.1,50,000/- each under the heads of Pain and suffering, including mental shock and phantom pain and loss of marital prospects, totalling a sum of Rs.3,00,000/-. 32. P.W.2 - Dr. Devakumar, who treated the Appellant / Claimant in his evidence has stated that the appellant has to spend up to a sum of Rs.2,00,000/-for fixing the artificial leg. Considering the age of the appellant and also the loss of right leg, it would be appropriate to award a sum of Rs.2,00,000/-for fixing the artificial leg towards future medical expenses. 33. So far as the loss of earning capacity is concerned, the Appellant / Claimant is studying first year Computer Science course in a College. If the accident had not occurred, the Claimant would have completed her Computer Course and could have got a decent job. When there is possibility of fixing artificial leg, it is possible for the claimant to continue the studies and to finish off her course. If the accident had not occurred, the Claimant would have completed her Computer Course and could have got a decent job. When there is possibility of fixing artificial leg, it is possible for the claimant to continue the studies and to finish off her course. However, the social stigma attached to the amputated leg and also the practical inconvenience for her to continue and to earn cannot be under estimated. The attitude and approach of the society towards the physically challenged persons are yet to be changed. Therefore, the injured can only think of earning some amount from her residence at least, because of the advancement in technology. However, the partial loss of income that would arise on account of disability cannot be disregarded. Anticipating the minimum loss of income at Rs.2,000/-per month and adopting the multiplier of 18, the loss of future earning capacity can be arrived at Rs.4,32,000/-. It is appropriate to award a sum of Rs.8,000/- towards Transport Charges, Rs.10,000/- towards cost of attendant at Hospital, Rs.20,000/-towards Extra Nourishment and Rs.30,000/-towards medical expenses. Thus, the total compensation payable would come to Rs.10,00,000/-. Therefore, the compensation is liable to be enhanced from Rs.3,17,000/- to Rs.10,00,000/-and the break up details for the heads of compensation is given below in the tabulated form:- 34. In the result, this Civil Miscellaneous Appeal is allowed and the Judgment and Decree dated 10.10.2011 of the learned Subordinate Judge (Motor Accidents Claims Tribunal), Devakottai made in M.C.O.P.No.19 of 2010 is modified and the compensation is enhanced from Rs.3,17,000/-(Rupees Three Lakhs Seventeen Thousand only) to Rs.10,00,000/- (Rupees Ten Lakhs only). The third respondent Insurance Company is directed to pay the enhanced compensation at the same rate of interest as ordered by the Tribunal to the Appellant / Claimant within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the Appellant / Claimant is permitted to withdraw the same, after paying the necessary court fee.