AI Structured Summary
Not yet generated for this judgment
Judgment
Honourable Chief Justice and S. Vimala, J.—The injured, wheel-chaired, had claimed a sum of Rs. 30,00,000/- and the Motor Accidents
Claims Tribunal had awarded a sum of Rs. 9,50,000/-. Contending that the amount of compensation awarded is inadequate, the injured/claimant
has filed this appeal praying for enhancement of the compensation awarded by the Tribunal in M.C.O.P. No. 534 of 2007 by the judgment
28.4.2009.
The brief facts of the case are stated hereunder :-
The appellant, Kalvi @ Kalai Arasu, is the victim of the accident. He was aged 35 years at the time of the accident; was doing real estate business
and earning a sum of Rs. 10,000/- per month. On 12.1.2005, at about 18.30 hours, when he was riding his motorcycle, he was hit by a van
bearing Regn. No. TN-22-T-2461, due to the rash and negligent driving of the van driver. On account of the accident, the appellant/claimant
suffered multiple fractures, which caused permanent disability; he became a paraplegic, as a result of which there was total loss of earning capacity
on his part and he has now become a liability to his family.
The factum of negligence is disputed. The nature of injury, period of treatment, medical expenditure involved, alleged permanent disability and
the consequential loss of earning capacity are all disputed. The insurance of the vehicle with the third respondent-insurance company is, however,
admitted.
Before the Tribunal, the appellant/claimant-Kalvi @ Kalai Arasu was examined as P.W.1 and Exhibits P.1 to P.26 were marked. The doctors,
N. Saichandran and T.S. Kalkura who issued the disability certificate have been examined as P.W.2 and P.W.3. On the side of the respondents,
no oral or documentary evidence was adduced. The Tribunal, after analysing the evidence and the materials available on record, upheld the plea of
negligence and awarded a compensation of Rs. 9,25,000/-. Aggrieved and dissatisfied with the impugned award, the appellant/claimant has
preferred this appeal.
Learned counsel appearing on behalf of the appellant assailed the impugned award on the ground, inter alia, that the Tribunal has committed an
error in awarding compensation under the head ''loss of income'' only for a period of one year, whereas, it ought to have considered the claim of
loss of income for the entire life of the appellant. Learned counsel contended that having regard to the nature of disability, the Tribunal should have
adopted a multiplier method in assessing the compensation towards the loss of earning/loss of earning power as well as the medical expenses
incurred by the appellant. The compensation under the head ''pain and suffering'' chould have been on the realistic side and therefore, it should
have been something more than what was awarded by the Tribunal, as also the future medical expenses, which ought to have been granted.
On the other hand, the appellant''s claim is sought to be rejected by the third respondent-insurance company on the ground that the
compensation awarded is already on the higher side and therefore, the appeal should be dismissed.
In order to appreciate the contentions with regard to the claim for enhancement of the compensation, it would be relevant to state the basic
principles involved in computing the compensation in cases of permanent disablement. It is settled law that the compensation to be awarded in
cases of permanent disablement can be more than that awarded in cases of death, as in the case of death, the compensation only goes to the
dependent family members of the deceased, whereas in the case of permanent disablement, the compensation should go to the injured-claimant,
apart from the dependent family members.
In the case of The Divisional Controller, KSRTC Vs. Mahadeva Shetty and Another, , the Supreme Court held as follows :-
It is true that perfect compensation is hardly possible and money cannot renew a physique frame that has bene battered and shattered, as
stated by Lord Merris in West v. Shepard, 1964 A.C. 326. Justice requires that it should be equal in value, although not alike in kind. Object of
providing compensation is to place claimant as far as possible in the same position financially as he was before accident. Broadly speaking, in the
case of death basis of compensation is loss of pecuniary benefits to the dependents of the deceased which includes pecuniary loss, expenses, etc.
and loss to the estate. Object is to mitigate hardship that has been caused to the legal representatives due to sudden demise of the deceased in the
accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact
uniform rule for measuring value of human life and measure of damage cannot be arrived at by precise mathmetical calculation; but amount
recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor it should be a
source of profit of the person in whose favour it is awarded. Upjohn L.J. in Charterhouse Credit v. Tolly, (1963) 2 CB 683 remarked, ''the
assessment of damages has never been an exact science; it is essentially practical'' (All ER p.443 C).
In the case of Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka and Others, , the Supreme Court held as follows :-
We must emphasize that the Court has to strike a balance between the inflated and unreasonable demands of a victim and the equally
untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making
a correct assessment, but if a case is made out, the Court must not be chary of awarding adequate compensation. The ''adequate compensation''
that we speak of, must to some extent, be a rule of the thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the
parties concerned.
...
At the same time, we often find that a person injured in an accident leaves his family in greater distress, vis-`a-vis a family in a case of death. In
the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an
injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The
support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but
even more so on his family and attendants and the stress saps their energy and destroys their equanimity.
The Tribunal made the award under the following heads :-
Loss of Earning : Rs. 60,0007
Loss of Amenities : Rs. 50,000
Transport to hospital : Rs. 15,000
Extra Nourishment : Rs. 15,000
Medical Expenses : Rs. 5,75,000
Pain and Suffering : Rs. 25,000
Permanent Disability : Rs. 2,10,000
Total Compensation : Rs. 9,50,000
The factors that are relevant to be considered in order to arrive at the quantum of loss of income are the age of the claimant, the nature of
employment, his income, the nature of disability suffered and the impact of the permanent disability upon the earning capacity of the injured having
regard to the nature of the employment.
In the instant case, on account of the injuries sustained in the accident, the appellant has developed paraplegia of both lower limbs below the
D12-L1 area; loss of sensation and water power; incontinence of bladder-uring; fracture of right neck of femur, right hip (hip replacement done);
commuted fracture right tibia with plates and screws; pettala bone fracture, fixed with tension band wire; fracture of wrist radius bone, for which
the disability was certified at 100%. In addition to the above, the appellant also suffered open reduction of - mandible and plate fixation; midline
split maxilla, reduced and fixed with plates; right zygoma reduction and fixation with plate; skin grafting; ankylosis of both TM joints; muscular
dysfunction; and disfigurement, for which the disability was certified at 40%.
In order to support the contention regarding permanent disablement, two doctors were examined, viz. Dr. Kalkura and Dr. Saichandran. The
medical records produced show that the appellant is under continuous treatment and he may require future treatment also for removal of the plates.
In the evidence, the appellant has stated that he is on wheels, he has suffered total loss of earning/earning capacity/enjoyment of amenities etc.
Having regard to the nature of his job as a real estate businessman, he cannot earn when he is on wheels. As he is suffering paraplegia, the loss of
earning capacity is total and permanent. However, before the Tribunal, no evidence has been let in to prove the income or the occupation of the
appellant. Even the appellant, who examined himself has not stated anything about the income he earned from his vocation, except stating that he
was doing real estate business. Therefore, the Tribunal came to the conclusion that the monthly income of the appellant could be taken as Rs.
5,000/-. It is now settled proposition of law that in the absence of evidence to prove the income of the claimant, the average income should be
adopted, which in this case could be taken as Rs. 4,000/-, which is more than the minimum wages payable under the Act.
The Tribunal has committed a serious error of law in allowing only Rs. 60,000/- towards the loss of earnings, being the amount for twelve
months. In our view, the Tribunal ought to have adopted a multiplier of 16 years while assessing the loss of future earning of the appellant. Hence, if
the annual loss of earning is taken as Rs. 48,000/-, the total loss of future earning by adopting the multiplier of 16 shall be Rs. 7,68,000/-. As there
is a separate award of Rs. 2,10,000/- under the head ''loss of earning power'' (we do not, however, approve of the principle adopted by the
Tribunal in arriving at such figure), the anticipated future income is not included in the monthly income while adopting the multiplier method. Having
regard to the number of operations and the period of treatment, the compensation under the head ''pain and suffering'' is enhanced to Rs.
1,00,000/-. Since the amounts awarded under the remaining heads is reasonable, we do not interfere with the same.
In the result, the civil miscellaneous appeal is partly allowed. The fair and decretal order passed by the Motor Accidents Claims Tribunal,
Chennai in M.C.O.P. No. 534 of 2007 is modified and the compensation awarded is enhanced from Rs. 9,25,000/- to Rs. 17,08,000/- (Rupees
seventeen lakhs eight thousand only). The third respondent/Insurance Company shall deposit the enhanced award amount with interest at the rate
of 7.5% per annum with costs, on the file of the Motor Accidents Claims Tribunal (Fifth Court of Small Causes), Chennai within a period of two
months from the date of receipt of a copy of this judgment. On such deposit being made, the appellant/claimant is permitted to withdraw the same,
without any separate application therefor.