P. Raman Kutty and Another vs P. Jamuna

M. Karpagavinayagam, J.—The owner of the vehicle and the Oriental Insurance Company Limited are the appellants herein.

Aggrieved by the award of Rs. 1,41,000/-, as against the claim of total compensation of Rs. 2,50,000/-, this appeal has been presented before

This Court.

Challenging the quantum on the ground of inadequacy, Jamuna, the claimant, has also filed a Cross-Objection No. 72 of 1995. The claimant,

aged about 27 years, was a fish vendor. On 9.11.1991, at about 5.00 a.m., at S.N. Chetry Street, opposite to Uchikaliamman Temple, Madras,

she was collecting water from the tap alongwith other women. At that time, the car bearing Registration No. TN047531, involved in the accident in

question, came from South to North on the eastern side, in a rash and negligent manner, and ran over the platform and dashed against the claimant,

Jamuna and other women. Due to the impact, all the three women sustained grievous injuries. All the three, filed separate claim petitions before the

Tribunal and the Tribunal, after enquiry, awarded various sums to the claimants.

This appeal, filed by the Insurance Company and the owner of the vehicle, which involved in the accident, would relate to the claim petition filed

by Jamuna in O.P. No. 2832 of 1991. Though she claimed Rs. 2,50,000/-, the Tribunal awarded only Rs. 1,41,000/-. This award is the subject-

matter of challenge before This Court, both by the Insurance Company and the owner of the vehicle through the appeal and the claimant, Jamuna,

through the cross-objection.

Though the appeal has been filed by the appellants, both on the ground of negligence and of quantum, the learned Counsel appearing for the

appellants would confine himself to the ground of quantum and contend that the Tribunal having awarded Rs. 55,000/- towards permanent

disability, ought not to have awarded Rs. 50,000/- towards loss of earning capacity in the future, as both the heads are one and the same.

To substantiate this plea, the learned Counsel would cite a judgment rendered by the Division Bench of This Court reported in National

Insurance Co. Limited Vs. A. Kala Mohan and another, The relevant portion in the judgment is as follows:

Coming to the award of compensation under the head, permanent disability, the Court is of the view that the Tribunal has rightly granted a sum

of Rs. 2,00,000/- for disability. However, we are unable to confirm the finding of the Tribunal in awarding a sum of Rs. 2,00,000/- for loss of

earning power, which amounts to double compensation.

On the strength of this observation, the learned Counsel appearing for the appellants would strenuously contend that the Tribunal has committed a

grave illegality in awarding a sum of Rs. 50,000/- for the head ''Loss of earning power'', even though there is a award for permanent disability,

which is not independent of the other head, namely, ''loss of earning power in future''.

On the other hand, the learned Counsel appearing for the respondent/claimant would cite the following authorities in order to buttress his claim

that both the heads are independent:

(1) Ramesh Chandra Vs. Randhir Singh and Others, .

(2) 1998 1 LW 272 The Managing Director, Dheeran Chinnamalai Transport Corporation v. Maria Jagannathan @ Jagannathan, and

(3) The Managing Director, Thiruvalluvar Transport Corporation Vs. Thangavelu and Another, .

The very same question which has been raised by the learned Counsel for the appellants has been elaborately dealt with by this Court and Apex

Court in the above decisions.

In the decision reported in The Managing Director, Thiruvalluvar Transport Corporation Vs. Thangavelu and Another, , the learned Judge

would specifically hold that the heading ''permanent disability'' and the heading ""loss of earning power'' are two distinctive heads and separate

claims. The relevant portion of the judgment is as follows:

Loss of earning power is only one of the consequences of permanent disability.... It is well known that permanent disability will have several

consequences apart from inability to work or earn as before. To be specific, the victim of the accident who suffers from permanent disability will

not be in a position to carry on his normal household activities in his house. More than anything else, he will be brooding over the disability day

after day till the end of his life and suffer untold mental agony.

The very same view has been taken by this Court in C.M.A. No. 882 of 1995 dated 7.8.1995 Managing Director, Cheran Transport

Corporation v. Royamma. Following is the relevant observation:

Learned Counsel for the appellant contends that after granting an amount for loss of income, the Tribunal is in error in granting an amount for

permanent disability. There is no merit in this contention. Apart from loss of income, the factum of permanent disability deserves to be taken into

account for awarding compensation. The compensation for loss of income is awarded because she is not in a position to continue to do the coolie

work which she was doing previously. The compensation for permanent disability is granted because she will not be able to attend to her

household affairs as she was doing before and she would require the assistance of some other persons in such matters. Hence, the award of

compensation for permanent disability is justified. Apart from that, the claimant would be brooding over the permanent disability throughout her life

and that is also a matter to be taken into account.

The above observation made by this Court would apply to the present case in all fours. The claimant/injured not only suffered permanent

disability of 55%, but also, she being a fish vendor, would not be able to do her professional work as effectively as she was doing earlier.

In view of the above factual and legal situation, it is appropriate to hold that the main ground on which the appeal has been filed, has to be

rejected, as the arguments advanced by the Counsel for appellants do not merit acceptance.

Now, coming to the quantum, the learned Counsel for the appellants, due to the difficult situation that he now faces, has requested this Court

atleast to sustain the finding with reference to the quantum.

On the other hand, the learned Counsel appearing for the cross-objector, respondent herein, would submit that the quantum of award is too

meagre, especially, when the claimant, the woman, suffered permanent disability of 55% and she sustained a fracture in the leg. Due to this injury,

she not only suffered pain and suffering and mental agony for a number of months, but also she would not be able to attend the regular professional

work in the future.

Under these circumstances, it is now requested by the Counsel for respondent/cross-objector that the award is liable to be suitably modified,

by enhancing the amount under important heads.

.15. Heard the Counsel for the appellants in respect of the enhancement of quantum. He would again reiterate that the amount awarded by the

Tribunal may be confirmed.

A woman of 27 years, who was taking water from the tap, met with an accident, when the car belonging to the first appellant ran over the

platform and dashed against her. It is noticed that when the impact had taken place, the claimant was pregnant, and due to the impact, her

pregnancy got abortioned.

Under those circumstances, I am of the view that the amount of Rs. 1,41,000/- awarded by the Tribunal is very much on the lower side and

the same has to be enhanced in the following manner:

The claimant has claimed Rs. 12,000/- towards loss of earning when she was in the hospital for a period of three months. It would be appropriate

to award Rs. 10,000/- on that head. She claimed Rs. 42,000/- towards pain and suffering and it would be appropriate to award Rs. 40,000/- on

that head. As per Ex. A3, 30% disability in the leg and as per Ex. A13, 25% disability in the stomach. She claimed Rs. 75,000/- towards

''permanent disability''. Since she suffered 55% permanent disability, it would be appropriate to award Rs. 65,000/- towards that head. The

evidence of doctors P.Ws. 2 and 6 would clearly show that the victim-woman sustained very serious injuries and she would not be able to do the

work effectively since there are injuries on the leg and the stomach. Due to the injuries sustained on the stomach, the victim would not be able to

bow down and stand erect, thereby, she became handicapped in doing the household work and professional work. In the claim petition, she

claimed Rs. 1,15,000/- for loss of earning power and it would be better to award Rs. 1,00,000/- for loss of earning power. Tabular column of the

modified award is as follows:

Rs.

Loss of income during the

period of hospitalisation -- 10,000.00

Transport expenses -- 1,000.00

Extra nourishment -- 3,000.00

Medical expenses -- 6,500.00

Pain and suffering -- 40,000.00

Permanent disability -- 65,000.00

Loss of earning power in future -- 1,00,000.00

________________

2,25,500.00

________________

Thus, the claimant would be entitled to Rs. 2,25,500/- (Rupees two lakhs and twenty five thousand five hundred only) alongwith the interest of

12% per annum from the date of petition till the date of payment.

In the result, the appeal is dismissed with the above modification and the Cross-objection is allowed. No costs.