* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.180 of 2009
%14.11.2014
Between:
B. Ramanaiah. ....
Appellant AND Ch. Brahmam and others. ….
Respondents ! Counsel for Appellant : Sri Chandra Sekhar Reddy Gopi Reddy ^ Counsel for Respondent No.2 : E. Venugopal Reddy < Gist:
> Head Note:
? Cases referred:
1) 2005 ACJ 1131 (SC)
2) 2011 ACJ 1 (SC)
3) 2013 ACJ 1935 (SC)
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
M.A.C.M.A. No.180 of 2009
JUDGMENT:
Aggrieved by the award dated 31.07.2006 in M.O.P.No.435 of 2003 passed by the Chairman, MACT-cum- Principal District Judge, Ranga Reddy District (for short “the Tribunal”), the claimant preferred the instant appeal.
2) The factual matrix of the case is thus:
a) The case of the claimant is that on 13.12.2002 at about 7:00pm when he was proceeding to Hayathnagar on his Hero Honda motorcycle from L.B. Nagar and when he reached near Sushma Talkies on NH-9, one lorry bearing No.ADB 8488 came in opposite direction being driven by its driver at high speed and in a rash and negligent manner and dashed the motorcycle. Thereby, the claimant received fracture of pelvis, fracture of bones of right hand and other multiple fractures all over the body. It is averred that the accident was occurred due to the fault of the driver of offending lorry. On these pleas, the claimant filed M.O.P.No.435 of 2003 and claimed Rs.10,00,000/- as compensation against respondents 1 and 2 who are the owner and insurer of the offending lorry.
b) Respondent No.1 remained ex parte.
c) Respondent No.2 filed counter and opposed the claim denying all the material averments made in the petition and urged to put the claimant in strict proof of the same. R.2 contended that the compensation claimed is high and excessive and thus prayed to dismiss the O.P.
d) During trial, PWs.1 to 3 were examined and Exs.A.1 to A.14 were marked on behalf of claimant. Ex.B.1 was marked on behalf of respondents.
e) Award shows that regarding Issue No.1, the Tribunal considering the evidence of PW1—the claimant—cum—injured and Exs.A1 and A.2 held that the driver of the offending lorry was responsible for the accident. Sofaras quantum of compensation is concerned, the Tribunal awarded compensation of Rs.4,75,000/- with proportionate costs and interest at 7.5% p.a under different heads as follows:
Injury Rs.
50,000=00 Shock, pain and suffering Rs.
40,000=00 Hospital, medical, transport, Extra-nourishment, attendance and other incidental expenses Rs.2,75,000=00 Loss of earnings (future) Rs.
80,000=00 Permanent partial disability, loss of prospects of life, loss of amenities of life, loss of enjoyment pf life, loss of opportunities of life, (economical, political and social), loss of expectation of life and social disability. Rs.
30,000=00 Total:
Rs.4,75,000=00 Hence, the appeal by claimant.
3) The parties in this appeal are referred as they stood before the Tribunal.
4) Heard arguments of Sri Chandra Sekhar Reddy Gopi Reddy, learned counsel for appellant/claimant and Sri E. Venugopal Reddy, learned counsel for respondent No.2/ Insurance Company. Notice sent to R.1 was not yet returned.
5) Learned counsel for appellant challenged the award only one main ground. His submission is that the Tribunal while awarding compensation for loss of future earnings, committed two errors. Firstly it erroneously deducted 1/3rd from his annual income before multiplying with suitable multiplier. Secondly, after arriving the total compensation at Rs.1,62,000/-, the Tribunal erroneously reduced it to half making it Rs.81,000/- on the wrong premise that out of total disability of 30%, Orthopedic disability which decreased his earning capacity is only 15%. He submitted that in view of the above errors, the compensation for loss of future earnings was drastically reduced.
a) Questioning the propriety of deducting 1/3rd from the annual earnings of the deceased, learned counsel submitted that no doubt in doing so, the Tribunal followed decision of Hon’ble Apex Court reported in New India Assurance Co. Ltd.
[1]
vs. Charlie and another . However, in that case depending on the factual situation, 1/3rd was deducted but it cannot be taken as ratio laid down for all the cases and in fact prior and subsequent to the cited decision, Hon’ble Apex Court has not followed the dictum of deducting 1/3rd in personal injury cases. He vehemently argued that the question of deduction of 1/3rd or some other fraction from the earnings of a person will arise only in fatal accident cases on the premise that had the deceased alive, he would have spent some fraction of his earnings for his personal or living expenditure and the balance amount will be taken as his contribution to his family. Since that is not the situation in injury cases, there is no logic or propriety in deducting 1/3rd or some other fraction in injury cases.
b) Regarding reduction of the compensation to one-half, learned counsel argued that as per the evidence of PW.3, the total disability is 30% and as such the Tribunal ought to have granted compensation for entire 30% without reducing the same to 15%. He thus prayed to allow the appeal.
6) Per contra, while supporting the award, learned counsel for respondent No.2/Insurance Company argued that the claimant on his own admission working as Supervisor-cum-Clerk in bank and getting the salary as usual without any deduction and therefore, there was no adverse impact of the disability on his earning capacity and as such the awarding of Rs.80,000/- for loss of future earnings itself was an error and viewing in that context the appellant/claimant cannot harp that compensation under that head was decreased due to some wrong calculation. He further argued that not only awarding Rs.80,000/- erroneously, the Tribunal committed another error in awarding a further amount of Rs.30,000/- for loss of amenities, enjoyment of life etc., which is nothing but duplication. Therefore, for this reason also, the appellant cannot seek for reassessment of compensation. He thus prayed to dismiss the appeal.
7) In the light of above rival arguments, the point for determination in this appeal is:
“Whether the compensation awarded by the Tribunal is just and reasonable or needs interference?”
8) POINT: The bone of contention in this appeal is the method of computation adopted by the Tribunal in awarding Rs.80,000/- towards loss of future earnings. The relevant discussion will be found in Para 7(h) of the award. The Tribunal having found that the claimant suffered partial permanent disability of 30%, awarded Rs.80,000/- as compensation. Disability was certified by PW.3 under Ex.A.10—disability certificate. PW.3 deposed that the claimant suffered (1) Fracture pelvis (2) Bladder Rupture (3) Urethral Injury 4) Crush injury of right forearm. After narrating the nature of treatment provided to the fracture injuries, PW.3 deposed about disability aspect. He stated that due to hand injury, the claimant cannot do hard work or fine work and due to fracture pelvis, he may not be able to run and will have difficulty in walking, squatting and sitting on the floor. He further deposed that disfigurement in the right forehand is permanent and his finger movements are restricted and thereby he will face difficulty in writing. He accordingly certified the partial permanent disability as 30%. As can be seen from the evidence of PW.3 and Ex.A.10—disability certificate, the disability certified would appear to be relating to Orthopedic problems but not Urological problems.
9) Then coming to the method of computation adopted by the Tribunal, it took the salary of the claimant as Rs.4,500/- p.m and thereby, arrived at his annual earnings at Rs.54,000/-. From this, the Tribunal deducted 1/3rd following the decision of Apex Court in Charlie’s case (1 supra) and multiplied the balance amount with a multiplier of ‘15’ and arrived at Rs.5,40,000/- (Rs.36,000/- x 15). The Tribunal then, at first reduced the said amount to 30% which comes to Rs.1,62,000/- as the disability being 30%. Then it further reduced the balance to one half on the premise that out of total disability, the disability to urethra/urinary bladder and urinary track constitute one half. The deduction of 1/3rd is impugned by the appellant on the main contention that such deduction will be generally effected in fatal accident cases but not injury cases and there is no logic in deducting 1/3rd. In that context, I perused the decision in Charlie’s case (1 supra). In an injury case which resulted in permanent disability, challenging the quantum of compensation, New India Assurance Company Limited preferred appeal on the argument that the Tribunal after taking the income of the injured as Rs.18,000/- P.A. selected a high multiplier of ‘16’ without applying any deductions and thereby, compensation was highly increased. Having agreed with its contention, it appears, Hon’ble Apex Court allowed 1/3rd deduction. However, a perusal of the said decision would show that depending on the facts of that case, deduction of 1/3rd was applied in that case. It was observed thus:
“Para 6: What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula by universal application. It would depend upon circumstances of each case. In the instant case the claimant was nearly 37 years of age and was married. Therefore, as rightly contended by learned counsel for the appellant, 1/3rd deduction has to be made for personal expenditure.”
a) From the above, it would not appear that in every case such a deduction must invariably be applied. In fact in the recent decision of Apex Court reported in Raj Kumar vs. Ajay
[2]
Kumar and another , the Apex Court held that in injury cases, unlike in fatal accident cases, there is no need of deducting 1/3rd from the earnings of the injured. T h e Apex Court held thus:
“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). Therefore there is no need to deduct one-third or any other percentage from out of the income, towards the personal and living expenses.”
So, in view of the above decision deduction of 1/3rd as done by the Tribunal cannot be countenanced.
10a) Then, the next point is whether the Tribunal was right in deducting one half of compensation amount on the observation that out of 30% disability one half relates to urological problem. Before discussing this aspect it is very much pertinent to peruse the guidelines given by the Apex Court in determining the disability of a victim in a motor accident and appreciation of medical evidence. The Apex Court summarised its principles as follows:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earnings capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.”
Thus, the above principles would show that the percentage of physical disability may not result in same percentage of functional disability and functional disability has to be separately assessed by the Tribunal taking into consideration the factors like occupation/job, age, education of the victim. So these principles must be applied in the instant case to determine the just and reasonable compensation for loss of earning power.
b) In the instant case, as already stated supra, PW3 certified 30% of orthopedic disability. It is a physical disability with reference to whole body. Functional disability is concerned, claimant at present is working in the Bank and getting his usual salary and in fact on his own admission received four increments. So, the physical disability had no impact on the present earning capacity and his future loss of earnings in case he takes up a new job has to be considered. In that context, taking into account the restriction of the movement of forearm, his functional disability can be fixed at 20%. Accordingly compensation for loss of future earnings is calculated as Rs.1,62,000/- (Rs.4,500/- x 12 x 15 x 20%). The claimant deserves the said amount. In this context the argument of respondent/Insurance Company that awarding of Rs.30,000/- towards loss of amenities etc. is a duplication to the compensation for loss of earning power cannot be accepted. The reason is that when a victim suffers injuries in a motor vehicle accident and if it leads to permanent disability, he will be entitled to two types of compensation. (1) Compensation for disability itself which leads to loss of basic amenities in the life and (2) Disability (functional disability) which leads to loss of earning power. It was so held by Apex Court in S.Manickam v.
[3]
Metropolitan Transport Corporation Ltd. . The Apex Court observed thus:
“15. It is true that the compensation for loss of earning power/capacity has to be determined based on various aspects including permanent injury/disability. At the same time, it cannot be construed that compensation cannot be granted for permanent disability of any nature. For example, take the case of a non- earning member of a family who has been injured in an accident and sustained permanent disability due to amputation of leg or hand, it cannot be construed that no amount needs to be granted for permanent disability. It cannot be disputed that apart from the fact that the permanent disability affects the earning capacity of the person concerned, undoubtedly, one has to forego other personal comforts and even for normal avocation they have to depend on others.”
So, awarding of Rs.30,000/- towards loss of amenities cannot be treated as duplication to compensation for loss of earnings.
c) Thus, the total compensation payable to the claimant under different heads can be stated thus:
Injury Rs.
50,000=00 Shock, pain and suffering Rs.
40,000=00 Hospital, medical, transport, Extra-nourishment, attendance and other incidental expenses Rs.2,75,000=00 Loss of earnings (future) Rs.
1,62,000=00 Permanent partial disability, loss of prospects of life, loss of amenities of life, loss of enjoyment pf life, loss of opportunities of life, (economical, political and social), loss of expectation of life and social disability. Rs.
30,000=00 Total:
Rs.5,57,000=00 So, the compensation is enhanced by Rs.82,000/- (Rs.5,57,000/- minus Rs.4,75,000/-).
11) In the result, this MACMA is partly allowed and ordered as follows:
a) The compensation is enhanced by Rs.82,000/- with proportionate costs and interest @ 7.5% per annum from the date of OP till date of realization.
b) The respondents are directed to deposit the compensation within two months from date of this order, failing which execution can be taken out against them.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U. DURGA PRASAD RAO, J Date:14.11.2014
Note: L.R Copy to be marked: Yes/ No
Scs/Murthy
[1] 2005 ACJ 1131 (SC)
[2] 2011 ACJ 1 (SC)
[3] 2013 ACJ 1935 (SC)