The claimant is the appellant in this Civil Miscellaneous Appeal and is aggrieved by the impugned Judgment and Decree dated 07.08.2017 passed by the Motor Accidents Claims Tribunal, Chennai in M.C.O.P.No.3959 of 2013.
2. By the impugned Judgment and Decree, the Tribunal has awarded a sum of Rs.1,59,314/- as compensation which has been rounded off to Rs.1,59,300/-. The Tribunal has awarded under the following heads:
3. It is the case of the appellant that the appellant suffered Fracture of Distal and @ hand and radius and Lateral Condyie (L) Tibial Fracture and that P.W.2 Dr.J.R.R.Thiagarajan deposed has given Ex.P10 Disability Certificate and has opined that the injuries suffered by the appellant are partial and permanent in nature and has assessed the disability of the appellant as 70%. The case of the appellant before this Court is that the Tribunal has wrongly determined the compensation by neither awarding compensation for the medical expenses incurred at Deepam Hospital, Chennai for a sum of Rs.25,000/- nor in awarding any amounts towards future medical expenses. That apart, the Tribunal has considered the loss of income of the appellant as only Rs.13,000/- while awarding the compensation.
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4. Heard the learned counsel for the appellant and the learned counsel for the second respondent.
5. The Disability Certificate produced by P.W.2 Doctor which has been marked as Ex.P10 indicates that the appellant had suffered 70% partial and permanent disability. However, the Tribunal has not fixed functional disability on account of injury with reference to the avocation of the appellant. The appellant suffered fracture of Distal and @ hand radius and Lateral Condyie (L) Tibial Fracture. It was therefore incumbent on the part of the Tribunal to have assessed the functional disability for awarding compensation as per the decision of the Hon'ble Supreme Court in Raj Kumar Vs. Ajay Kumar and Another, (2011) 1 SCC 343, wherein, it has been held as follows:-
12.Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
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(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or
(iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually https://www.mhc.tn.gov.in/judis/ 5/10 C.M.A.No.711 of 2020 be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of “loss of future earnings”, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.
19.We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning 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 the 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 https://www.mhc.tn.gov.in/judis/ 6/10 C.M.A.No.711 of 2020 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.
6. The nature of injuries as per Ex.P.10- Disability Certificate and the deposition of P.W.2 appear to be highly exaggerated for the injuries suffered by the appellant. The appellant was thereafter referred to the Medical Board. The Medical Board certificate marked as Ex.P.11 and fixed the disability as 20%.
7. The Tribunal has also accepted the same. Since there was no case of permanent disability or permanent partial disability, question of awarding compensation by applying multiplier does not arise.
8. At the same time, while awarding compensation, the Tribunal ought to have awarded reasonable amount towards injuries suffered by the appellant and its impact on the loss of income of the appellant properly during the period of recovery.
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9. In this case, the Tribunal has awarded a sum of Rs.60,000/- at Rs.3000/- per percentage of disability assessed by the Medical Board. This amount appears to be reasonable for the injuries suffered by the appellant. However, the Tribunal has not awarded just compensation under the other heads. The injury would have put the appellant out of action conservatively for at least two months.
10. The appellant, a person engaged in film industry could not have been expected to have earned income with injuries during the period of recuperation from the injury. The Tribunal has considered a meagre income of Rs.6500/- per month based on the decision of the Hon'ble Supreme Court in Syed Sadiq and other Vs. United India Insurance Co.Ltd., (2014)1 TNMAC 459. That was the amount considered as a notional income of a vegetable vendor in 2008. In my view, it would be fair to assume that the appellant would have earned a sum of Rs.15,000/- per month in 2013 at the time of the accident. https://www.mhc.tn.gov.in/judis/ 8/10 C.M.A.No.711 of 2020
11. Therefore, the amount awarded by the Tribunal towards loss of income is enhanced to Rs.30,000 (15,000 x 2) from Rs.13,000. A further consolidated amount of Rs.20,000 /- is awarded towards extra nourishment, transportation and towards future medical expenses over and above the amount awarded by the Tribunal.
12. Consequently, the amount awarded by the Tribunal is partially enhanced by another sum of Rs.37,000/- [(Rs.17,000/- (Rs.30,000 – Rs.13,000) + Rs.20,000)]
13. The second respondent insurance company is therefore directed to deposit the enhanced amount of compensation of Rs.1,96,500/- ( Rs.1,59,314 + 37,000 = Rs.1,96,314, the same is rounded off to Rs.1,96,500/-) together with interest at 7.5% p.a. from the date of claim petition till the date of deposit and costs, less any amount already deposited, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the appellant is permitted to withdraw the same with interest and cost, less any amount already withdrawn, by filing suitable application before the Tribunal. https://www.mhc.tn.gov.in/judis/ 9/10 C.M.A.No.711 of 2020 C.SARAVANAN,J.
jen/kkd
14. The present civil miscellaneous appeal stands partly allowed in terms of the above observation. No cost.
20.04.2021 Index : Yes/No Internet : Yes / No kkd To The Motor Accidents Claims Tribunal, (IV Judge, Small Causes Court ), Madras.
Pre-delivery Judgment in C.M.A.No.711 of 2020 https://www.mhc.tn.gov.in/judis/ 10/10