"Disabilities is an umbrella term, covering impairments, activity limitations, and participation restrictions. An impairment is a problem in body function or structure; an activity limitation is a difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations. Disability is thus not just a health problem. It is a complex phenomenon, reflecting the interaction between features of a persons body and features of the society in which he or she lives."
- Disabilities, World Health Organization.
2. S.Govindaraj, an agriculturist, aged 57 years, earning a sum of Rs.15,000/- p.m. suffered amputation of both of his legs in an accident on 19.05.2013.
2.1. According to the appellant / petitioner, when he was standing in the left side of Vandavasi to Thellar Road, a Bus belonging to the respondent Corporation bearing Registration No.TN 21 N1308, driven in a rash and negligent manner, hit against the petitioner and run over both the legs of the petitioner and thus resulting in amputation of both his legs, maiming him forever.
3. The Tribunal relied upon the evidence of the injured and PW2, Dr. J.R.R Thiagarajan, quantified the compensation and passed an award for a sum of Rs.11,86,200/- and the break up details are as under :
4. The claimant challenged the award before this Court in C.M.A.No.49 of 2015 and the respondent took the stand that the award passed by the Tribunal is an ex-parte award and that the respondent could not file the counter on 08.05.2014 and prayed for remand of the matter for the purpose of giving an opportunity to the Corporation to contest the matter on merits.
4.1. In order to avoid further delay, this Court permitted the Corporation to file the objections before this Court after setting aside the ex-parte order.
5. The learned counsel appearing for the claimant as well as the respondent submitted that if the claim petition is decided by this Court itself, both of them would not raise the objection of lapse of one right of appeal (to this Court) and thereafter, this Court examined the claimant, the Doctor as well as the Driver of the Corporation and recorded their evidence. The evidence of the Driver reveals that he was paid a sum of Rs.200/- in addition to his normal remuneration of Rs.550/- for driving another 200 k.m. after his mandatory 550 k.m. trip. A paltry two hundred rupees had caused the loss of two legs of the claimant with them, his hopes, promises, plans, dreams and future, at whisker of a second in which the driver rammed over the claimant. With his two legs gone are his security, dignity and right to decent life at one go. Moreover, a middle aged man, who is destined to be a beast of burden and volunteered to be a walking stick to his aged mother, nonagenarian ironically at flash of fate, stands immobile with either of his legs severed and looking forward some other shoulder to lean over.
6. In the claim petition, the claimant has claimed a sum of Rs.25,00,000/- as compensation.
7. The contention of the learned counsel for the respondent is, the claimant is not entitled to compensation on two grounds. Firstly, it is an invited accident by the injured himself and hence the respondent is not liable to pay compensation. It is also contended that the agricultural land in which, the claimant doing farming remains intact and therefore there is no economic loss. It is pointed out that the injured himself admitted that, he is able to look after himself and his mother and with the help of the tricycle and others and as such there is no inconvenience, trouble, damage or loss suffered by the claimant.
8. The first contention raised by the respondent Corporation, so far as the issue regarding negligence is concerned, is that, only on account of the unexpected and irresponsible jaywalking of the claimant, this accident happened and therefore, the claimant alone is responsible for the accident. But, this theory has been denied by the injured. Nothing has been elicited from the cross examination of injured to show that he was responsible for the accident. Moreover, in the evidence of Driver, he has stated that the First Information Report was registered only against him and no steps have been taken by him to challenge that. The Driver would further state that he was driving slowly from the bus stop. If that be the case, it would have been possible to halt the bus, when the driver claims that he saw the injured, crossing the road at a distant of 10 feet. The evidence by the Driver would only indicate that the accident might have resulted only due to his own negligence.
9. So far as the quantum of compensation is concerned, the age, occupation, income and requirements of the claimant have to be considered.
10. According to the claimant,
a) he has lost his wife already;
b) his daughter and three sons are married and they are residing separately;
c) He took treatment at Government Hospital for a period three months and thereafter he was sent to K.K.Nagar for fixation of artificial leg for further management. Though he took treatment and training at K.K.Nagar hospital for 1 = months, he was unable to use the prosthetics because of the lingering and sustained pain (developing) in the leg. Therefore, he was unable to use the artificial leg. The petitioner has to depend upon human agencies to look after his work;
11. What are the relevant factors to be considered while fixing the quantum of compensation?
11.1. From the evidence, it transpires that a) Both the legs are amputated on the same day; b) the personal cultivation was more beneficial and he is unable to get the same income when doing agricultural by employing workers; c) he can use the tri-cycle only up to the road and not thereafter to his agricultural field.
12. Based on these details, the Court has to fix the quantum of compensation.
13. Disability is an impairment may be cognitive, developmental, intellectual, mental, physical, sensory, or some combination of these. It substantially affects a person's life activities .
13.1. According to the Doctor, the percentage of physical disability is 90%. Therefore, the Court has to consider the impact of physical disability upon the functional ability of the claimant. The claimant at the age of 57, having lost both the legs (one below the knee and other above the knee upto thigh level), will not be in a position to earn any income and therefore, the loss of earning capacity should be fixed at 100%.
14. An agriculturist is said to be the backbone of India. In the instant case, an agriculturist himself is robbed of his ability to stand erect for no fault of him. An agriculturist would have many occasion to be tired but could never be retired, even at the age of 57. For household services and for agriculturist, there is no retirement. In fact, a recent India Ageing Report, 2017, sponsored by UNFPA, as reported in the Hindu dated 20.06.2017 vouch for such a line of thinking. According to the report, in India, about 10% of the population above 80 years of age is still engaged in work. That's elderly cannot be neglected from participation in the workforce. So long as the physical frame work and the mental make up permits, they will be in a position to do the work. Ageing, in fact, enhances the skills already acquired by or inherently manifested in human beings. The great Japanese woodblock painter Katsushika Hokusai, in 1834, then at the age of 74, wrote, "From the age of six, i had a penchant for copying the form of things, and from about fifty, my pictures were frequently published; but until the age of seventy, nothing I drew was worthy of notice. [Preface to 'One Hundred views of Mt.Fuji' ].
15. The process of ageing itself will present its own difficulties and with the added peril (having lost both the legs) the claimant has to survive. As age advances or the tragic flaw of senility haunt every man, as Shakespeare said "Age, with his stealing steps, Hath clawed me in his clutch."
This survival for the claimant is more painful, as the claimant lost his better half leaving his life bitter for ever. Additionally the claimant has to look after his 90 years old mother. Unfortunately, the petitioner could not use artificial limbs and he has to depend upon human agencies to discharge his daily activities. It is no secret that the modern materialistic world accord more primacy to money than man and it is not hard to explain the pathetic condition of a human who is pushed towards the mercy of others that too the paid people who are expected to attend the hapless soul. The pain of incapacity to perform his own duties because of uninvited loss of leg would have been more painful for him than the pain of losing the legs. Considering his monthly income at Rs.6,000/- p.m., 15% shall be added towards future prospective increase in income (in the age group of (50 to 60)), as held in the case of Rajesh Vs. Rajbir Singh in (2013) 9 SCC 54, the monthly income would be Rs.6,900/-. Adopting multiplier of '9', the loss of income to be awarded is Rs.7,45,200/- (Rs.6,900 x 12 x 9), rounded off to Rs.7,45,000/-
16. The Cost of Attendant has to be awarded on a permanent footing as he is unable to use artificial limbs, because an amputation of lower limbs is of two kinds namely, below knee amputation and above knee amputation. Normally those who suffer above knee amputation are the persons, who may not effectively utilize the help of an artificial limb, than those who suffer below knee amputation. In this case the claimant had suffered both these kinds of amputations, a kind in each of his legs. Hence, such a anomaly in the length of lower limbs resulted in the unsuitability of using artificial limbs. As the claimant is set to be ever dependent on attendant to move around, a sum of Rs.5,00,000/- is awarded towards cost of engaging the service of attendant. Medical expenses, which would include future medical expenses are quantified at Rs.2,00,000/- and awarded as such. Loss of enjoyment of amenities is awarded Rs.1,00,000/-. Pain and sufferings is awarded at Rs.2,00,000/-. Both legs have been severed on the same day thus causing great mental shock, for which Rs.2,00,000/- is awarded. The cost of Extra Nourishment and transport charges are awarded at Rs.50,000/- each. Loss of life expectancy is awarded at Rs.1,00,000/-
17. Accordingly, the award is passed for a sum of Rs. 21,45,000/-under the following heads:-
Loss of income - Rs.7,45,000/-
Attendant Charges - Rs.5,00,000/-
Medical Expenses (Including future medical - Rs.2,00,000/-
expenses) Loss of enjoyment of amenities - Rs.1,00,000/-
Pain and sufferings - Rs.2,00,000/-
Mental shock - Rs.2,00,000/-
Extra Nourishment - Rs. 50,000/-
Transport charges - Rs. 50,000/-
Loss of life expectancy - Rs.1,00,000/-
____________ Total - Rs.21,45,000/-
____________
18. In the result, the Civil Miscellaneous Appeal is allowed, enhancing the compensation from Rs.11,86,200/- to Rs.21,45,000/-. No costs.
19. The amount of Rs.21,45,000/- (Rupees Twenty One Lakhs Fourty Five Thousand Only) shall be payable by the respondent along with the interest at the rate of 7.5% from the date of claim petition till the date of deposit. The Transport corporation shall deposit the same within one month from the date of receipt copy of the order. On such deposit being made, the claimant shall be permitted to withdraw Rs.10,00,000/- and the remaining amount shall be in deposit for a period of ten years. The Bank, in which the deposit is made, shall send the interest directly to the claimant, every month. The claimant is entitled to receive interest, every month. For reporting compliance, post this appeal after four weeks.
21.06.2017 Speaking / Non Speaking vsi2 Note : Issue order copy on 21.06.2017 Dr.S.VIMALA, J.
Vsi2 To
1. The Managing Director, Tamil Nadu State Transport Corporation (VPM) Ltd., Kanchipuram Region, Kanchipuram 631 502.
2. The Motor Accident Claims Tribunal, IV Court of Small Causes, Chennai.
C.M.A.No.49 of 2015 21.06.2017 http://www.judis.nic.in