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2018 DIGILAW 832 (KER)

Babu, S/o. Devassia v. Thomas Mathew, S/o Mathai

2018-10-16

P.D.RAJAN

body2018
JUDGMENT : 1. This appeal has been preferred by the injured against the award in O.P(MV) No.37/2003 of the Motor Accidents Claims Tribunal, Thodupuzha (for short 'Tribunal'). The appellant filed the above petition for compensation under Section 166 of the Motor Vehicles Act, 1988 and the Tribunal awarded compensation of Rs.3,21,200/-. He was a painter aged 26 years and was getting Rs.3,500/-per month, but the Tribunal took Rs.2,000/-as his monthly income. Being aggrieved by that, the injured preferred this appeal. 2. It would be relevant and useful to refer the facts leading to the accident. The respondents did not dispute in the lower court. The claimant's case was that on 15.12.2002, while he was travelling in an autorickshaw KL.6B/3252 from Vazhavara to Kattapana, when he reached near Vellayamkudy, the driver of the autorickshaw swerved the vehicle, as a result, he lost the control of the vehicle, hit against the wall of a toddy shop and the petitioner sustained serious injuries. Immediately, he was removed to hospital. The owner cum driver was set ex-parte. The insurer admitted the insurance of the vehicle. 3. This claim petition was tried along with OP(MV) No.91/2003 and evidence was recorded in OP(MV) No.37/2003. The claimant's evidence consist of oral testimony of PW1 and documentary evidence of Exts.A1 to A21. The witness was cross examined at length, but nothing could be elicited from him which may make his testimony unworthy of evidence. The Tribunal after thorough dissection of facts found his testimony reliable and dependable. The respondents in the lower court could not show any cogent reason as to why the testimony of the witness should not be accepted as true. 4. Adv. Mathew John, the learned counsel for the appellant urged that just compensation was not awarded by Motor Accidents Claims Tribunal and he advanced three points: (I) that the appellant sustained 90% permanent disability, now he is fully bedridden and unable to do any work, hence his disability is 100%. (II) Secondly he is a painter by profession who was getting Rs.3,500/-per month, but for assessment of disability compensation, Tribunal reduced the monthly income to Rs.2,000/-which is illegal. (III) Thirdly the deduction of 1/3rd of the income towards personal and living expenses is not permissible in injury cases. 5. In individual injury cases the compensation has to be calculated separately as pecuniary and special damages. (III) Thirdly the deduction of 1/3rd of the income towards personal and living expenses is not permissible in injury cases. 5. In individual injury cases the compensation has to be calculated separately as pecuniary and special damages. The purpose is to compensate the injured so far as money can restore. It is well settled that while fixing the amount of compensation, the Court has to do some guess work to certain extent. Support can be taken from decided cases so as to find out the direction of judicial opinion in fixing the quantum in similar cases. It is true that compensation must be just compensation. A determined attempt must be made for placing the sufferer monetarily in the same situation in which he would have been if the unfortunate event had not occurred, but luxury has to be avoided. The court has to take care to see that the undesirable events does not become an occasion for sudden large benefit from misery. When compensation is to be awarded for pain, suffering and loss of amenities in life, special circumstances of the claimant have to be taken into account. Amount of compensation for nonpecuniary loss is not easy to determine, but award must reflect that different circumstances have been taken into consideration. 6. Apex court in Yadava Kumar v. D.M. National Insurance Co. Ltd. ( 2010 (8) SCALE 567 ) reiterated the principle in relation to the assessment of damages for personal injuries cases as follows: “17.While assessing compensation in accident cases, the High Court or the Tribunal must take a reasonably compassionate view of things. It cannot be disputed that the appellant being a painter has to earn his livelihood by virtue of physical work. The nature of injuries which he admittedly suffered, and about which the evidence of PW1 is quite adequate, amply demonstrates that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome. 18. It goes without saying that in matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a 'just compensation'. It is obviously true that determination of a just compensation cannot be equated to a bonanza. 18. It goes without saying that in matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a 'just compensation'. It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of 'just compensation' obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and Courts. This reasonableness on the part of the Tribunal and Court must be on a large peripheral field. Both the Courts and Tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result become just and equitable (See Mrs. Helen C. Rebello and Ors. V. Maharashtra State Road Transport Corpn. and Anr. MANU/SC/0621/1998 : AIR 1998 SC 3191 ). 19. This Court also held that in the determination of the quantum of compensation, the Court must be liberal and not niggardly in as much as in a free country law must value life and limb on a generous scale (See Hardeo Kaur and Ors. v. Rajasthan State Transport Corporation and Anr. MANU/SC/0235/1992 : (1992) 2 SCC 567 ). 20. The High Court and the Tribunal must realize that there is a distinction between compensation and damage. The expression compensation may include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation”. 7. The respondents were satisfied by the award and they have not challenged it by way of filing any appeal or by any cross objection in this appeal. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation”. 7. The respondents were satisfied by the award and they have not challenged it by way of filing any appeal or by any cross objection in this appeal. In this context, it is not obligatory to discuss the finding with regard to negligence, the liability of the insurer and the ownership of the vehicle, since those facts are not under challenge. 8. The first question to be answered in this case is that whether 100% disability can be adopted for awarding just compensation and whether the principles adopted for assessing compensation by the Tribunal is erroneous, if so, the compensation amount requires to be enhanced. On reading of Section 166 and 168 of the Motor Vehicles Act, 1988 ('Act' for short), it is clear that the compensation must be just which means the injured must be fully and adequately restored to the position prior to the accident. The object is to make good the loss suffered as a result of wrong done as far as the money can do so, in a fair and equitable manner. Apex court in Raj Kumar v. Ajay Kumar [ 2010 (12) SCALE 265 held that: “5. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages(General Damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii), (a) and (iv). (iii) Future medical expenses. Non-pecuniary damages(General Damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii), (a) and (iv). It is only in serious cases of injury, where there is a specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads(ii)(b), (iii),(v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii) (a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses – item (iii) – depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of nonpecuniary damages -item (iv), (v) and (vi) -involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability -item (iii) (a). We are concerned with that assessment in this case. Assessment of future loss of earnings due to permanent disability. 6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Right and full Participation) Act, 1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in S.2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. 7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%. 8. If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%. 8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co.Ltd. - 2010 (8) SCALE 567 )”. 9. The accident in this case occurred in the year 2002 and the appellant was working as a painter. Now, he is disabled and unable to do any work. Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co.Ltd. - 2010 (8) SCALE 567 )”. 9. The accident in this case occurred in the year 2002 and the appellant was working as a painter. Now, he is disabled and unable to do any work. The Medical Board reported paraplegia and 90% permanent disability. It is reported in Ext.A2 that the patient was not moving his both lower limbs at the time of admission. He was referred to the Medical College Hospital, Kottayam for ruling out head injury and spinal fracture. Ext.A6 is the discharge card issued from the Medical College Hospital, Kottayam. The injured was treated as IP from 15.12.2002 to 03.02.2003. The diagnosis was traumatic paraplegia. Even though various treatments were provided to the injured, no improvement and neurological deficit was noted at the time of discharge. He was advised ambulation with Taylor's Brace after 2 months and also change of catheter from local hospital every month. Ext.A7 is the CT scan report of the injured. Fracture was detected in L1 vertebrae. There was fracture dislocation of facet joints and the L1 vertebra is displaced posteriorly causing acute angulation. Compression of the thecal at L1 level and fracture of both transverse process was also noted. In Ext.A8, it is certified that the injured was admitted in the District Ayurveda hospital for treatment for Traumatic Paraplegia. The injured was treated there from 02.04.2004 to 30.05.2004. Ext.A9 is the certificate issued by the Medical Board attached to the Taluk Head Quarters Hospital, Thodupuzha. The Medical Board has assessed the disability on the ground that the injured is suffering from complete paraplegia with bowel and bladder incontinence and wound inflection at the site of surgery. The evaluation of compensation in permanent disability case would differ from person to person according to the nature of injury. There is no uniform standard used for compensation for assessing such compensation. When two persons sustain similar injury, they can be awarded the same compensation, but the heads under which compensation can be assessed are different. 10. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. There is no uniform standard used for compensation for assessing such compensation. When two persons sustain similar injury, they can be awarded the same compensation, but the heads under which compensation can be assessed are different. 10. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the incapacity or loss of use of some part of the body, found at the end of the period of treatment and after achieving the maximum bodily improvement which is likely to continue for the remaining life of the injured. Temporary disability refers to the incapacity of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is able to engage in some activities. Total permanent disability refers to a person's inability to perform any employment related activities as a result of the accident. The percentage of permanent disability is expressed by the Doctors with reference to the whole body. The extent of disability of a limb expressed in terms of a percentage of the total functions of that limb, cannot be assumed to be the extent of disability of the whole body. If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot exceed 100%. The percentage of 90% permanent disability expressed by the Medical Board in this case was with reference to the whole body after referring the fractures. When a disability certificate issued by the Medical Board states that a painter has suffered permanent disability to an extent of 90%, it is permanent disability with reference to the whole body. The extent of disability expressed in terms of percentage of the total functions of the body, can be assumed to be the extent of disability of the whole body. The extent of disability expressed in terms of percentage of the total functions of the body, can be assumed to be the extent of disability of the whole body. If different parts of the body of the appellant have suffered different percentages of disabilities finally resulted in Paraplegia, the total permanent disability with reference to the whole body, can be considered as 100% in this case. Apex court in S.Suresh v. Oriental Insurance Co.Ltd. and another, [JT 2009 (14) SC 359], held that wherein the injured suffers a permanent disability, it is stated the assessment of compensation would be 100% on his earning capacity. 11. The second point to be considered is that whether the income stated by the claimant can be reduced by the claims Tribunal without any contra evidence? For awarding just compensation, the actual earning capacity has to be ascertained by the Tribunal, for that first ascertain the avocation of the injured or his nature of work before accident and also his age. If he has been prevented from performing his job, or can carry on some other work or a lesser activity to earn for his livelihood, that aspect has also to be considered by the Tribunal. The appellant was working as a painter and therefore, court cannot direct him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in my view, the Tribunal should have accepted the claim of the injured. The wages of an ordinary labourer, like mason, painter, carpenter, plumber, electrician or a coolie is fixed by the Government. If the claim made is so exorbitant or if the claim made is contrary to ground realities, issued by the labour department of the Government, the Tribunal may not accept the claim about wages and may proceed to determine the possible income by resorting to some guesswork about wages. The Court or Tribunal cannot direct the coolie or an ordinary labourer to produce any documentary evidence to prove his income. But, Tribunal shall consider the ground realities prevailing at the relevant point of time faced by the ordinary coolie workers. In the present case, appellant was working as a painter, as that time, the wage of a labourer was between Rs.150 to Rs.200 per day, the monthly income was between Rs.4500 and Rs.6000/-. But, Tribunal shall consider the ground realities prevailing at the relevant point of time faced by the ordinary coolie workers. In the present case, appellant was working as a painter, as that time, the wage of a labourer was between Rs.150 to Rs.200 per day, the monthly income was between Rs.4500 and Rs.6000/-. In the circumstance, the claim was honest and bona fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs.3500/-to Rs.2000/-per month and one third was deducted towards personal expenses. Apex court in Ramachadrappa v. Royal Sundaram Alliance Insurance Co. Ltd., ( 2011 13 SCC 236 ) held as follows: “13. In the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a coolie and was earning Rs.4500 per month at the time of the accident. This claim is reduced by the Tribunal to a sum of Rs.3000 only on the assumption that the wages of a labourer during the relevant period viz. In the year 2004, was Rs.100 per day. This assumption in our view has no basis. Before the Tribunal, though the Insurance Company was served, it did not choose to appear before the court nor did it repudiate the claim or the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning to be a sum of Rs.3000 per month. Secondly, the appellant was working as a coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant. 12. The same view was reiterated by apex Court in Sayed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd ( 2014 (2) SCC 735 ) which reads as follows: “8. The appellant claimant in his appeal further claimed that he had been earning Rs.10,000 p.m. by doing vegetable vending work. The High Court however, considered the loss of income at Rs.3500 p.m. Considering that the claimant did not produce any document to establish his loss of income. The appellant claimant in his appeal further claimed that he had been earning Rs.10,000 p.m. by doing vegetable vending work. The High Court however, considered the loss of income at Rs.3500 p.m. Considering that the claimant did not produce any document to establish his loss of income. It is difficult for us to convince ourselves as to how a labour involved in an unorganised sector doing his own business is expected to produce documents to prove his monthly income. In view of the subsequent decision of the apex court in Dixit Kumar and Ors. v. OM Prakash Goel ( 2017 ACJ 2057 ) the income is taken as Rs.3,500/-per month. According to the decision in National Insurance Company v. Pranay Sethi [ 2017 (4) KLT 662 (SC)], 40% has to be added towards future prospects, that is Rs.1,400/-. Therefore the income for calculating future earning capacity comes to Rs.4,900/-. He was aged 26 years at time of accident and the multiplier is 17. Hence, he is entitled to get Rs.4,900x12x17x100/100= Rs.9,99,600/-as compensation. The Tribunal awarded Rs.2,30,342/-and the balance amount is Rs.7,69,258/-. In addition to that, he is entitled to get additional Rs.5,000/-for transport to hospital, Rs.10,000/-for extra nourishment. 13. Appellant sustained serious injuries and is fully bedridden, who is undergoing treatment even now. In the CT scan report fracture was detected and L1 vertebrae was displaced posteriorly causing acute angulation. Compression of the thecal in L1 vertebrae. He was advised ambulation with Taylor' Brace after 2 months and also change of catheter from local hospital every month. The pain and suffering suffered by the appellant at that time cannot be assessed in terms of money. The distinction between the compensation for future loss and pain and suffering and enjoyment of life, has been observed by the apex court in Ramesh Chandra v. Randhir Sing ( 1990 3 SCC 723 ) and it was held that “One head relates to the impairment of person's capacity to earn, the other relates to the pain and suffering and loss of enjoyment of life by the person himself”. The appellant is entitle to damages for mental suffering as his life has been shortened or his capacity for enjoying life has been reduced through the physical injury. A permanent crippled person must experience distress because he is constantly depending upon the care of other persons. The appellant is entitle to damages for mental suffering as his life has been shortened or his capacity for enjoying life has been reduced through the physical injury. A permanent crippled person must experience distress because he is constantly depending upon the care of other persons. Where a person suffers due to physical injuries and those injuries prevents him from living a full life like the one before the accident, not in the matter of earning power, but in the matter of performing the functions and enjoyment in life, he is entitled to get just compensation for loss of amenities in life, inconvenience, hardships, disappointment, mental stress and frustration in life. Though, it is impossible to equate money with human sufferings or personal deprivation, the court has to make an attempt to award damages so far as money can compensate the loss. There cannot be any rigorous and unbending test to determine the amount of compensation for pain and suffering. It must be guided by a broad general idea which is variable, dependable to an extent on personal outlook and inclination of the individual judge. Hence an additional amount of Rs. 50,000/-is awarded for future nursing care, Rs.1,00,000/-for pain and suffering, Rs.1,00,000/-for future medical treatment and Rs.3,00,000/-for loss of amenities and for shortening of life. 14. The next point is whether deduction of one-third from the loss of earning by the Tribunal in injury with permanent disability case is sustainable in law? Broadly speaking while fixing all account of compensation, the theory is that the injured should be restored back to the pre-accident stage. In permanent disability case what is calculated is the future earning of the injured payable to him. In case of death, dependency is calculated to the family members of the deceased. But in case of personal injury, one third of the income from the loss of earning need not be deducted since the injured is alive. Apex court explained this point in Raj Kumar v. Ajay Kumar (2010(12)SCALE 265) as follows: “20. In the case of an injured claimant with a disability, what is calculated is the future loss of earning of the claimant, payable to claimant, (as contrasted from loss of dependency calculated in a fatal accident, where the dependent family members of the deceased are the claimants). In the case of an injured claimant with a disability, what is calculated is the future loss of earning of the claimant, payable to claimant, (as contrasted from loss of dependency calculated in a fatal accident, where the dependent family members of the deceased are the claimants). Therefore there is no need to deduct one-third or any other percentage from out of the income, towards the personal and living expenses. Therefore the deduction of one third amount by the tribunal is hereby set aside. In view of the decision in Rajesh and Ors. vs. Rajbir Singh and Ors. ( 2013 ACJ 1403 ), the appellant is entitled to get additional compensation of Rs.13,34,258/-(Rupees Thirteen Lakhs Thirty Four Thousand Two Hundred and Fifty Eight only) with 9% interest from the date of petition till realisation and proportionate cost in addition to the award amount. No interest is awarded for future medical treatment. The insurer is directed to satisfy the award within 30 days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. The appellant is not entitled to get interest for the delay period of 776 days in filing the appeal. This appeal is disposed of, as above.