(Judgment of the Court was made by S.MANIKUMAR, J.) The Managing Director, Tamil Nadu State Transport Corporation Division-1, Villupuram, has filed this appeal, against the award, dated 04.01.2016, made in M.C.O.P.No.76 of 2011, on the file of the Motor Accident Claims Tribunal (Special Sub-Court), Cuddalore.
2. Short facts leading to the appeal, are as follows:
On 14.07.2010, at 21.45 hours, when the 1st respondent/claimant was travelling as a pillion rider, in his Hero Honda Splendor Plus Motorcycle, bearing Registration No.TN 31 H 1558, insured with the 3rd respondent-Insurance Company, driven by the 2nd respondent herein, near Muthalammankoil, Tirupapuliyur, a bus, bearing Registration No.TN 32 N 1520, owned by the appellant-Transport Corporation, came from behind, driven in a rash and negligent manner, dashed against the motorcycle and as a result, the 1st respondent- claimant sustained grievous injuries. In this regard, a case in Cr.No.554 of 2010, has been registered against the driver of the bus, under Sections 279 and 337 IPC., on the file of Tiruppapuliyur Police Station.
3. Contending inter alia that at the time of accident, he was doing jewellery business, earning Rs.10,000/- per month and due to the accident, suffered permanent disability, the 1st respondent-claimant has filed M.C.O.P.No.76 of 2011, on the file of the Motor Accidents Claims Tribunal (Special Sub-Court), Cuddalore, claiming compensation of Rs.20,00,000/-, under various heads.
4. The Tamil Nadu State Transport Corporation, Villupuram, has filed a counter affidavit, denying the manner of accident and submitted that on the date of accident, the driver started his trip from Panruti to Cuddalore, via., Palur and near Muthalammankoil, Tirupapuliyur, while the vehicle was driven, at a normal speed, with due care and caution, observing traffic regulations, a motorcyclist, attempted to overtake the bus, hit the same, fell down, and thus, invited the accident. Therefore, the Corporation contended that the motorcyclist was negligent, in causing the accident, for which, the Corporation is not liable to pay compensation. Without prejudice to the above, the Corportion disputed the age, avocation and income of the 1st respondent-claimant and the compensation claimed under various heads.
5. Before the Claims Tribunal, the 1st respondent-claimant examined himself as PW.1 and PWs.2 and 3 are the Doctors, who clinically examined PW.1. Documents, Ex.P1 - FIR, Exs.P2 and P3 - Motor Vehicles Inspector's Report, in respect of Motorcycle, bearing Registration No.TN 31 N 1558 and the Bus, bearing Registration No.TN 32 N 1520, Ex.P4 - Accident Register, Exs.P5 and P8 - Discharge Summaries issued by Miot Hospital, Exs.P6, P7 and P9 - Certificates to prove inpatient treatment in Miot Hospital, Exs.P10 to P12 - Doctor's Prescriptions to prove outpatient treatment taken at Miot Hospital, Ex.P13 - Medical Bills to the tune of Rs.2,22,424.20, Ex.P14 - R.C.Book of the 2nd respondent's Motorcycle, Ex.P15 - Insurance Policy of the Motorcycle, Ex.P16 - Driving Licence of the motorcyclist, Ex.P17 - Final Report, Exs.P18 and P19 - Disability Certificates issued by PWs.2 and 3 respectively and Ex.P19 - X-Rays, have been marked, on the side of the 1st respondent-claimant. On the side of the 3rd respondent-Insurance Company, Mr.Sudhakar, motorcyclist, has been examined as RW.1. On behalf of the appellant-Transport Corporation, no oral or documentary evidence has been adduced.
6. On evaluation of pleadings and evidence, the Claims Tribunal held that the accident occurred only due to the rash and negligence of the driver of the bus, bearing Registration No.TN32N-1520, owned by the appellant-Transport Corporation and awarded Rs.15,97,924/-, as compensation, with interest, at the rate of 7.5% p.a., as hereunder:- Loss of income ... Rs.10,08,000/-
Disability @ 75% ... Rs. 1,87,500/-
Medical bills ... Rs. 2,22,424/-
Pain & Suffering ... Rs. 50,000/-
Future medical expenses ... Rs. 50,000/-
Transportation ... Rs. 15,000/-
Nourishment ... Rs. 10,000/-
Damages to clothes ... Rs. 5,000/-
Inconvenience ... Rs. 50,000/-
------------------- Rs.15,97,924/-
-------------------
7. Being aggrieved by the finding, fixing negligence, on the driver and the quantum of compensation, on behalf of the appellant- Transport Corporation, Mr.S.Sairaman, submitted that the Claims Tribunal has erred in fixing negligence, solely on the driver of the bus, without considering the averments made in the counter affidavit filed by the Transport Corporation, and the overall evidence adduced. He further submitted that the Tribunal ought to have held that the accident occurred solely due to the negligent act of the motorcyclist. Quantum of compensation is also disputed.
8. Per contra, Mr.Srinivasa Ramalingam, learned counsel appearing for the 3rd respondent-Insurance Company, insurer of the motorcycle, submitted that the vicarious liability arises, only when the motorcyclist is at fault. He made submissions to sustain the findings of negligence. According to him, the Tribunal has rightly fixed negligence, on the part of the driver of the bus, which does not call for any interference.
Heard the learned counsel appearing for the parties and perused the materials available on record.
9. PW.1, respondent/claimant, in his evidence, has deposed that the motorcycle, owned by the 2nd respondent, in which, he travelled as a pillion rider, was driven on the right side of the road, at a great speed, fell into a pit, due to which, the rider lost control of the motorcycle and hit the left side of the Transport Corporation bus, coming from behind and thus, the accident occurred, only due to the negligence of the motorcyclist.
10. However, RW.1, Sudhakar, motorcyclist, in his evidence, has stated that when he was riding his motorcycle, on the left side of the road, near Muthalamman Kovil, the appellant-Transport Corporation bus, which came from behind, driven in a rash and negligent manner, attempted to overtake the motorcycle and dashed against the latter. He submitted that in this regard, a case in Cr.No.554 of 2010, has been registered against the driver of the bus, under Sections 279 and 337 IPC., on the file of Tiruppapuliyur Police Station.
11. By observing that if the motorcycle was driven on the right side of the road, the damage on the bus would have been on the right side of the bus and not on the left side and by further observing that there was some contradiction in the evidence of both PW.1, respondent/claimant and RW.1, Mr.V.Sudhakar, 2nd respondent herein, the Claims Tribunal held that the accident could have occurred, while the bus attempted to overtake the motorcycle and therefore, the bus driver alone was negligent in causing the accident.
12. The Hon'ble Supreme Court in Municipal Corporation of Greater Bombay v. Laxman Iyer reported in 2003 (8) SCC 731, has explained the terms, "Negligence" "Composite Negligence" and "Contributory Negligence". At Paragraph 6, the Hon'ble Supreme Court explained, as to what act amounts to negligence and that the same is extracted hereunder:
"Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required inparticular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and the duty are strictly correlative. Negligence means either subjectively a careless state of mind or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be said just and down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an action would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person."
13. Ex.P1 - FIR in Cr.No.554 of 2010, has been registered against the driver of the bus, under Sections 279 and 337 IPC., on the file of Tiruppapuliyur Police Station. Registration of FIR is only to set the criminal law in motion. Merely because, RW.1, 2nd respondent herein, in his evidence, has stated that the driver of the bus, was responsible for the accident, it cannot be contended the accident occurred solely due to the negligent act of bus driver. FIR can be taken on record as a substantive evidence, as regards the factum of accident.
14. Admittedly, the driver of the bus, has not been examined.
But the claimant himself has attributed negligence to the motorcyclist, that he rode the bike at a high speed, which fell into a pit and the motorcyclist was unable to control the same. Having regard to the cumulative evidence, negligence on the part of the motorcyclist cannot be brushed aside. The Tribunal has failed to apply the theory of contributory negligence. In the light of the above judgment and considering the evidence in entirety, we are of the view that both the motorcyclist and the driver of the bus, were negligent, in causing the accident, apportioned in the ratio of 50:50.
15. As regards quantum of compensation, it is evident from Ex.P4 – Wound Certificate that there were fractures in hip bone and right ankle. PW.2, Orthopaedician, who clinically examined the respondent/claimant, with reference to medical records, has found that the respondent/claimant had sustained fracture of tibia and fibula bones in the right ankle. He has further found that there was a fracture in the middle of hip bone. Foley's catheter has been fixed, due to the damage in the urinary tract. Screws have been fixed both, in tibia and fibula bones. He has found malunion of hip bone. There was restriction of movement in the right ankle knee. According to PW.2, Doctor, the respondent/claimant finds it difficult to do his day-to-day activities. He has assessed the disability at 45% and issued Ex.P18 – Disability Certificate.
16. Evaluating the evidence of PW.2, Orthopaedician and Ex.P4 – Wound Certificate, the Claims Tribunal held that there was malunion of medial mallaoius and fibula bones in the lower right ankle and that there was also a bilateral pubic rami fracture, in the hip region. PW.3, Doctor, who examined the respondent/claimant, has assessed the disability at 20% and issued Ex.P20 – Disability Certificate, on the ground that due to the damage in the urinary tract, catheter has been fixed as an alternative, which has to be changed for every 2 to 3 weeks.
17. Considering the evidence of PW.2, Orthopaedician and PW.3, General Physician, the Claims Tribunal has fixed the percentage of disability as 65%. Correlating permanent disablement, with the avocation, that there would be certain loss to the earning capacity of the respondent/claimant, the Claims Tribunal assessed the same as 75% and applied multiplier method.
18. On the issue, as to whether, the Claims Tribunal has co- related the extent of disablement and as to how, the same would affect the loss of earning capacity of an injured-claimant, this Court deems it fit to consider a decision of the Hon'ble Supreme Court in Rajkumar v. Ajay Kumar reported in 2011 (1) SCC 343, wherein, the Hon'ble Supreme Court considered the co-relation between physical disability suffered by the injured and the loss of earning capacity, resulting from it. On the aspect of assessment under the head, loss of future earning, at paragraphs 4 to 17, the Hon'ble Supreme Court held as follows:
"General Principles relating to compensation in injury cases:
4. The provision of the Motor Vehicles Act, 1988 ('Act' for short) 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 assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376, R. D. Hattangadi vs. Pest Control (India) Ltd.
- 1995 (1) SCC 551 and Baker vs. Willoughby - 1970 AC 467).
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 of 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 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 non-pecuniary damages - items (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 (ii)(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. 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 Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any of the disabilities enumerated in section 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. 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. 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, (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.
10. 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 ability (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. 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 be hundred percent, 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 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. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an 12 active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.
12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability. 13. 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 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 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.
14. The assessment of loss of future earnings is explained below with reference to the following illustrations:
Illustration `A': The injured, a workman, was aged 30 years and earning Rs.3000/- per month at the time of accident. As per Doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows:
a) Annual income before the accident : Rs.36,000.
b) Loss of future earning per annum (15% of the prior annual income) : Rs. 5400/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (5400 x 17) : Rs. 91,800/- Illustration `B': The injured was a driver aged 30 years, earning Rs.3000/- per month. His hand is amputated and his permanent disability is assessed at 60%. He was terminated from his job as he could no longer drive. His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. The Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows:
a) Annual income prior to the accident : Rs.36,000/-.
b) Loss of future earning per annum (75% of the prior annual income) : Rs.27000/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/-
Illustration `C': The injured was 25 years and a final year Engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70%. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning capacity was also assessed as 70%. The calculation of compensation will be as follows:
a) Minimum annual income he would have got if had been employed as an Engineer : Rs.60,000/-
b) Loss of future earning per annum (70% : Rs.42000/- of the expected annual income)
c) Multiplier applicable (25 years) : 18
d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/-
[Note : The figures adopted in illustrations (A) and (B) are hypothetical. The figures in Illustration (C) however are based on actuals taken from the decision in Arvind Kumar Mishra (supra)].
15. After the insertion of section 163A in the Act (with effect from 14.11.1994), if a claim for compensation is made under that section by an injured alleging disability, and if the quantum of loss of future earning claimed, falls under the second schedule to the Act, the Tribunal may have to apply the following principles laid down in Note (5) of the Second Schedule to the Act to determine compensation :
"5. Disability in non-fatal accidents :
The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:-
Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.
PLUS either of the following :-
(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.
Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923."
16. We may in this context refer to the difficulties faced by claimants in securing the presence of busy Surgeons or treating Doctors who treated them, for giving evidence. Most of them are reluctant to appear before Tribunals for obvious reasons either because their entire day is likely to be wasted in attending the Tribunal to give evidence in a single case or because they are not shown any priority in recording evidence or because the claim petition is filed at a place far away from the place where the treatment was given. Many a time, the claimants are reluctant to take coercive steps for summoning the Doctors who treated them, out of respect and gratitude towards them or for fear that if forced to come against their wishes, they may give evidence which may not be very favorable. This forces the injured claimants to approach `professional' certificate givers whose evidence most of the time is found to be not satisfactory. Tribunals should realize that a busy Surgeon may be able to save ten lives or perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one accident case. Many busy Surgeons refuse to treat medico-legal cases out of apprehension that their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in coercing the Doctors to attend the Tribunal to give evidence. The solution lies in recognizing the valuable time of Doctors and accommodating them. Firstly, efforts should be made to record the evidence of the treating Doctors on commission, after ascertaining their convenient timings. Secondly, if the Doctors attend the Tribunal for giving evidence, their evidence may be recorded without delay, ensuring that they are not required to wait. Thirdly, the Doctors may be given specific time for attending the Tribunal for giving evidence instead of requiring them to come at 10.30 A.M. or 11.00 A.M. and wait in the Court Hall. Fourthly, in cases where the certificates are not contested by the respondents, they may be marked by consent, thereby dispensing with the oral evidence. These small measures as also any other suitable steps taken to ensure the availability of expert evidence, will ensure assessment of just compensation and will go a long way in demonstrating that Courts/Tribunals show concern for litigants and witnesses. Assessment of compensation.
17. In this case, the Tribunal acted on the disability certificate, but the High Court had reservations about its acceptability as it found that the injured had been treated in the Government Hospital in Delhi whereas the disability certificate was issued by a District Hospital in the State of Uttar Pradesh. The reason given by the High Court for rejection may not be sound for two reasons. Firstly though the accident occurred in Delhi and the injured claimant was treated in a Delhi Hospital after the accident, as he hailed from Chirori Mandi in the neighbouring District of Ghaziabad in Uttar Pradesh, situated on the outskirts of Delhi, he might have continued the treatment in the place where he resided. Secondly the certificate has been issued by the Chief Medical Officer, Ghaziabad, on the assessment made by the Medical Board which also consisted of an Orthopaedic Surgeon. We are therefore of the view that the High Court ought not to have rejected the said disability certificate."
19. PW.2, Orthopaedician and PW.3, General Physician, have assessed the permanent disablement as 45% and 20% respectively. The Claims Tribunal, upon evaluation of both oral and documentary evidence, fixed the disability as 75%. Though the injuries are grievous, considering the evidence on record, avocation pleaded, Jewellery business and taking note of the guidelines in Rajkumar's case (cited supra), the assessment for computing the loss of earning capacity made by the Tribunal at 75%, is unacceptable, and the same is reduced to 45%.
20. Though the injured-claimant has stated that at the time of accident, he was engaged in jewellery business, earning Rs.10,000/- per month, in the absence of any evidence, the Tribunal has determined his monthly income as Rs.7,000/-. However, the Claims Tribunal has failed to award any compensation towards future prospects.
21. On the aspect of adding certain sum under the head ''future prospects'', in C.M.A.No.3273 of 2014, dated 13.10.2015 [Royal Sundaram Alliance Insurance Co. Ltd., v. Tmt.Vennila], this Court observed as follows :
"56. As tabulated in the foregoing paragraphs, it should be noted that Consumer Price Index, Gross Domestic Product and Per Capita Income, have increased. One cannot disown the fact that the percentage of those in unorganized sectors is more than the organised sectors. While that be so, would it be appropriate for the Insurance Companies and Transport Corporations, to contend that there is absolutely no chance of any upward revision in wages or salary of those, employed in unorganised sectors or for that matter in the earnings of self-employed. If the contentions of the Insurance Companies and Transport Corporations have to be accepted, whether the self-employed or those engaged in unorganised sectors, can never have any expectation of an event in future, ie., increase in earnings or wages? With the basic study of the statistics, we are of the considered view that the answer should be a clear 'No'. When the Consumer Price Index is applicable uniformally to rich or raff, it cannot be contended that those who are engaged in unorganized sectors or self-employed, would continue to earn the same income, for years together.
57. For the abovesaid reasons, we are of the considered view that the word, “prospects” should not be read and understood, only in plural sense, meaning thereby, its prospects or an apparent probability of advancement in employment, in organised sectors alone. Narrowing down the meaning of the words, “future prospects” only to the employment prospects and consequently, more possibility of earning income, only in the case of organised sector and not in unorganised sector or self-employed, would affect the majority and therefore, the meaning of the word, “prospect” used in singular, meaning thereby, expectation, possibility or probability, chances of earning more income in future, depending upon the factors, stated supra, should also be considered.
58. Thus, from the above particulars, extracted supra, it is evident that both the Central and State Governments have periodically revised the minimum wages across the country. It has been raised taking into consideration the Consumer Price Index. In respect of scheduled employments, for skilled, semi-skilled, unskilled, construction workers, labourers, etc., wages, are fixed in various scheduled employments, right from Agarbathi Industry to Woolen Carpet and Shawl wearing machinery.
59. While that be the position in organised sectors, it cannot be contended that insofar as unorganised sectors or self-employed, is concerned, there would not be any revision in the wages or salary or earning. When the minimum wages of an employee in the organised sector, is revised periodically, taking into consideration the Consumer Price Index and Variable Dearness Allowance, the living conditions, then the others, in a unorganised sector may expect more or less the same wage, and if there are more number of persons, there may be chances of lesser wage, on account of surplus human resources and in such cases, the bargaining power of certain class of employees, depending upon the field, for revision of wages or earning, may be less.
60. If a non-salaried domestic worker sells a piece of any article, which he or she manufacturers and if the customer bargains the rate, he or she would immediately reply, as to how much amount, he/she has to spend for buying the basic materials, other materials used, compare the erstwhile travel expenses and the cost of labour. Can anyone in this Country can say that the electricity charges, water charges, rent, fee received by the Government, cost of education, price of commodities, etc., have remained the same, without any change. Cost of tea sold in a ordinary tea stall is the same for any person, whether engaged in organised or unorganised. Contenting inter alia that there would not be any increase in wages or earning for those engaged in unorganised sectors, for years to come, can it be said that he would never take a cup of tea, outside?
61. At this juncture, it should be borne in mind that Consumer Price Index is fixed, taking into consideration that the majority consumers are from unorganised sectors. Thus, with reference to Gross Domestic Product, Per Capita Income, Consumer Price Index and such other economic factors, determined on the basis of participation and contribution of both organised and unorganised sectors, the classification that those engaged in unorganised sectors, should be totally denied of any addition of income under the head, future prospects, would in our humble view, would affect Article 14 of the Constitution of India. When the majority of persons, in unorganised sectors, also decide the economic factors, stated supra, it would be unjust and unreasonable to contend that there would not any prospect or addition in the earning of those engaged in unorganised sector, forever. If there is addition of Variable Dearness Allowance to the basic wages, in the case of organised sector, depending upon the Consumer Price Index, applicable for a particular period, one would reasonably expect the same factor of variable Dearness Allowance, to be a relevant factor, for determining the variation in the wage in case of unorganised sector also, as Consumer Price Index is common to all, whether engaged in organised or unorganised sector.
62. At this juncture, we deem it fit to consider, what “Dearness Allowance” means? “Dearness Allowance” is a cost of living adjustment allowance paid to Government employees, Public sector employees (PSU)and pensioners. Dearness Allowance is calculated as a percentage of an Indian's basic salary to mitigate the impact of inflation. Variable Dearness Allowance is always linked to Consumer Prince Index. The notifications of Minimum wages by the Central and State Government reflects how much is the Variable Dearness in each field.
63. In the light of what we have tabulated above, judicial notice can also be taken that the cost of labour, whether it is in agricultural field or manufacturing or services, has increased. Thus, focusing on the increase in wages or earning, in almost all the fields of operation, right from agricultural or industrial or manual labourers, tea shop or road side vendor, the Consumer Price Index, being the same to rich or raff and therefore, correspondingly to meet out the living conditions, atleast for providing the basic amenities, like food, shelter and clothing, and not to add up the expenditure towards health, education, certainly, there would be revision of wages or earning, even in unorganised sectors also. Future is the period of time that will come after the present or things that will happen. Having regard to the consistent and periodical revision of wages by the Governments, it cannot be contended by the Insurers or Transport Corporations that a person in unorganised sector, has no future at all, in the matter of revision of wages or earning.
64. In R.K.Malik's case (cited supra), the Hon'ble Supreme Court considered the quantum of compensation, payable to the legal representatives of the deceased children, aged between 10 and 18 years. Referring to the inflation, price rise, etc., the Hon'ble Supreme Court, by observing that the there would be a future prospects, for the children also, granted a sum of Rs.75,000/- under the head, future prospects, though as on the date of accident, they were children, studying in a school. In V.Mekala's case (cited supra), the injured was a student studying in 11th Standard. While determining the monthly income of the injured as Rs.10,000/-, the Hon'ble Supreme Court added 50% of the income, under the head, future prospects. In the recent decision in Munna Lal Jain's case (cited supra), the Hon'ble Supreme Court added 50% under the head, future prospects.
65. Thus, from the line of judgments, it could be noticed that the Hon'ble Supreme Court has considered the addition of a quantified sum, under the head, future prospects, in effect, indicating that there is a prospect or chance or possibility of earning more income, after a passage of time, though not periodically, as done in the case of Government or Public Sector Undertakings or Boards or Corporations, Companies owned and controlled by the Government or Limited Companies.
66. We have already extracted the orders of the Chief Labour Commissioner, Ministry of Labour and Employment, Government of India, New Delhi and taken into consideration a sample case, City of Chennai. Wage revision may vary in rural or urban areas or metropolitan cities. At the risk of repetition, as observed earlier, the number of persons, engaged in unorganized sectors, agriculture or industrial, or home based or self- employment, etc., are more in number, than those employed in organised sectors.
67. Income from the organised sector alone, is not the deciding factor, for determining Gross Domestic Product, Consumer Price Index or Per Capita Income. Thus, from a basic study of the factors, taken into consideration by the Governments for revision of wages, to the enumerated categories of employees, one cannot lose sight of the fact that the said factors, would also have an indeligible effect on those, engaged in unorganized sectors also. In the light of our discussion and the details considered, we are of the considered view that addition of certain percentage of income under the head, future prospects, has to be done in the case of those engaged in unorganized sector or self-employed also, otherwise, they would be deprived of just compensation. Addition of income under the head,future prospects, should not be restricted to only salaried persons, with stable jobs.
68. Though it is the case of the Insurance Companies and Transport Corporation that in the case of persons engaged in unorganised sector or salaried or persons, who do not have any permanent job, addition of certain percentage of income, under the head, “future prospects”, to the income drawn, at the time of death, should not be made, for computation loss of dependency compensation, we are not inclined to accept the same, for the reason that the expression “future prospects” should not be confined only to the prospects of the deceased in the career, progress or upgradation of position, in which, he was engaged, prior to death, but the expression “future prospects” should also be extended to the likelihood of increase in wages/salary, earned by either a skilled or semi- skilled person, clerical and others, considering the upward increase in the cost price, inflation and such other factors.”
22. At the time of accident, the respondent/claimant was aged 33 years. The Claims Tribunal has fixed the monthly income as Rs.7,000/-. Therefore, 50% of the monthly income has to be added towards future prospects and after addition towards the same, loss of monthly contribution works out to Rs.10,500/-. Hence, after re-working, the loss of earning capacity is now estimated as Rs.9,07,200/-
[Rs.10,500/- (Rs.7,000/- + Rs.3,500/-) x 12 x 16 x 45%).
23. Compensation of Rs.15,000/- and Rs.10,000/-, awarded towards transportation and extra nourishment respectively, is less and hence, the same is enhanced to Rs.25,000/- and Rs.15,000/-
respectively. Considering the nature of injuries, surgeries underwent, period of treatment, pain and suffering, compensation of Rs.50,000/-, awarded under the head, pain and suffering, is less and the same is enhanced to Rs.1,00,000/-. Compensation of Rs.50,000/- towards loss of amenities is just and reasonable.
24. In view of the reworking, award of the Tribunal is modified and the quantum of compensation is reduced to Rs.13,74,624/-, as apportioned hereunder:-
Loss of earning capacity ... Rs. 9,07,200/- pain & suffering ... Rs. 1,00,000/-
Transportation ... Rs. 25,000/-
Nourishment ... Rs. 15,000/-
Damages ... Rs. 5,000/-
Amenities ... Rs. 50,000/-
Future medical expenses ... Rs. 50,000/- Medical expenses ... Rs. 2,22,424/-
------------------ Rs.13,74,624/-
------------------
Insofar as future medical expenses, is concerned, it would not carry interest from the date of claim. Compensation claimed under other heads, shall carry interest at the rate of 7.5% p.a., from the date of claim till deposit.
25. As negligence is apportioned in the ratio of 50:50, as between the driver of the Transport Corporation bus and motor cycle, both the Corporation and the Insurance Company are liable to pay compensation, now determined by this Court in equal proportion, with interest, at the rate of 7.5% p.a., within a period of four weeks, from the date of receipt of a copy of this order.
26. Both the learned counsel appearing for the Transport Corporation as well as the Insurance Company fairly submitted that the said amount would be deposited within four weeks from the date of receipt of a copy of this order. On such deposit being made, the respondent/claimant is permitted to withdraw the same, by filing necessary applications before the Tribunal.
S.MANIKUMAR, J
AND M.GOVINDARAJ, J
skm
27. This Civil Miscellaneous Appeal is partly allowed. No costs.
Consequently, the connected Miscellaneous Petition is closed.
mvs/skm To The Motor Accident Claims Tribunal (Special Sub-Court), Cuddalore.
(S.M.K.,J) (M.G.R.,J) 8th June 2017
C.M.A. No.1406 of 2016