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Judgment
Honourable Mrs. Justice S. Vimala
Welcome to the Blessed hands hair Saloon and celebrate the beauty within you"" is the advertisement which explicitly explain the importance of
hair dressing as a profession and the hand as a tool. Here is a case where the hair dresser lost the hand in an accident and the insurance company
challenges the quantum of compensation awarded to him. Whether stretching out the hand through the window of the vehicle would amount to
contributory negligence by the injured traveller is another issue to be decided in this appeal.
(a) In an appeal filed by the Insurance Company, in the absence of cross appeal by the claimant challenging the quantum of compensation,
whether this Court has got power to order enhancement of compensation is the issue raised by the Insurance Company.
Selvam, the petitioner, running Saloon in the name of National Saloon, earning a sum of Rs. 7,000/- per month, met with an accident on
01.09.2003 and suffered amputation of right arm, claimed a sum of Rs. 6,00,000/- as compensation. This claim was made against the Tamil Nadu
Transport Corporation (TN-58 N-0224) (R1) and against the owner and the insurer of the Matador van(TN-59-Y-9914). The Tribunal, on
consideration of oral and documentary evidence, awarded a sum of Rs. 5,24,600/- with interest at the rate of 7.5% as against the third
respondent, the insurer of the Matador van. The petition was dismissed as against the Transport Corporation.
Challenging the finding on negligence as well as on quantum of compensation, the insurance company has filed this appeal.
The contentions of the insurance company are as follows;-
a. There ought to have been a finding on negligence on the part of the transport corporation and in any event at least there ought to have been an
order for apportionment of negligence between the two vehicles.
b. The issue regarding contributory negligence on the part of the claimant was not framed not discussed and not answered by the Tribunal.
c. The multiplier adopted was incorrect and the multiplier of 16 ought to have been adopted instead of 17.
d. As the amputation suffered by the claimant is a scheduled injury and as per schedule I of WC Act, the percentage of disability can be only 60%
and not 80%.
On Negligence.- Admittedly, the petitioner herein was travelling in the passenger bus belonging to the first respondent. The Matador van which
is the other vehicle involved in the accident had come from the opposite direction. It is the contention of the learned counsel for the appellant that
both the Transport corporation as well as the Matador van were responsible for the accident. But, in this case, the claimant while giving evidence
has attributed negligence only on the part of the driver of the Matador van. The driver of the Corporation bus, who was examined as RW1, has
also deposed that it is only the driver of the Matador van who was negligent while driving. Available records prove negligence on the part of the
driver of the Matador Van. The driver of the Matador van has admitted his rash and negligent driving and also paid the fine amount. The judgment
rendered by the Criminal Court has been filed as Ex. P5. When the driver of the Matador van himself did not raise the contention that he was not
negligent and when he was not examined before the Tribunal to prove that apart from him somebody else could have been negligent, and more
especially when the corporation has chosen to examine its driver to prove that the driver of the corporation was not negligent, then there is no
meaning in contending that the driver of the corporation was also negligent in driving the vehicle.
It is the grievance of the insurance company that contributory negligence on the part of the claimant was not considered by the Tribunal. The
allegation against the claimant is that he was stretching out his hand outside the window. Normally, it is a convenient mode of sitting. Moreover,
when there is crowded seating/over crowding in the bus, the window seater is pushed to the necessity of putting the arm over the bar abutting the
window. In any event, the driver of the van who crossed the corporation vehicle is expected to keep a safe distance so that persons travelling in
neither of the vehicle get injured. In this case, as the injured had travelled in the corporation bus and when the Matador van has come from the
opposite direction, for whom, protruding of the hand would be more visible is expected to keep a safe distance, but he has not done so. It is also
relevant to point that the protruding of the hand is denied by the claimant in the evidence. The driver of the van has admitted his negligence. The
facts and circumstances cumulatively considered together would go to show that there is no proof for contributory negligence on the part of the
claimant.
The next issue to be decided is the quantum of compensation. The claimant has suffered amputation up to shoulder level. He is aged 25.
According to doctor, the percentage of disability is 90%. The learned counsel for the insurance company contended that the percentage of
disability is only 60% as it is a scheduled injury under WC Act. It is not the mere percentage of permanent disability that matters, but the impact of
disability upon the earning capacity of the claimant that is more relevant.
If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the
physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have
enjoyed but for the disability caused due to the accident.
The trauma experienced by the claimant and his family members has been emphatically described by the Hon''ble Supreme Court in the decision
reported in Govind Yadav Vs. New India Assurance Co. Ltd., 2012 ACJ 28 (SC)
we often find that a person injured in an accident leaves his family in greater distress vis-�-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
In the above case, the Honourable Supreme Court has awarded a sum of Rs. 2,00,000/- towards future treatment. Rs. 1,50,000/- towards
pain and sufferings. Rs. 1,50,000/- to the marital prospects to the injured claimant aged 24 years who was a cleaner/helper. Loss of earning
capacity has been enhanced from 2,85,600 to 4,50,600/- taking into account the minimum wages payable to the workers as Rs. 3,000/- per
month. This case can be taken a model case to quantify the compensation in this case.
The claimant in this case is a hair dresser said to be earning a sum of Rs. 7,000/- per month. The tribunal has taken the monthly income of the
claimant at Rs. 3,000/- and adopting multiplier of 17 has quantified the compensation by fixing the disability at 80% (3000 X 12 X 17 X 80/100 =
4,89,600/-). Awarding a sum of Rs. 5000/- towards transport expenses. Rs. 15,000/- each towards extra nourishment and pain and sufferings,
the total amount has been quantified at Rs. 5,24,600/-. No amount has been awarded towards medical expenses on the ground that no medical
bills are produced.
In respect of permanent disability compensation must be awarded under the following heads;
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, 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.
Based on these parameters now the Court has to consider whether the compensation awarded by the Tribunal is just and fair. Apparently the
Tribunal did not award any amount towards loss of enjoyment of amenities, loss of marital prospects, future medical expenses, loss of expectation
of life and cost of purchase of artificial limb etc.,
(1) Amputation is a triple threat. It involves loss of function, loss of sensation, and loss of body image. The survival is very difficult but for the
dedication and care extended by the members of the family. More than the amputated leg, the phantom limb sensations is more onerous.
(2) The feeling that the amputated limb is present and moving is so common as to be regarded as a universal occurrence after surgery. It tends
to abate rapidly, however, so only a few individuals continue to perceive their limbs as still present and active a year after surgery. Many, however,
continue to have occasional experiences of itching or locomotion, sometimes after residual-limb stimulation.....
The claimant is at the threshold of youth. The importance of right hand in hair cutting profession self explanatory. The claimant being a hair
dresser, the loss of his right hand ipso facto means a total disablement as per the definition given in Section 2(I)(i) of the Employees Compensation
Act. The injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of accident.
In other words, the compensation is to be awarded not for the loss of physical capacity as such, but with reference to loss of earning capacity
which has to be assessed with reference to the nature of the job that the claimant was doing. Therefore, even though the percentage of disability is
80%, the loss of earning capacity is 100%. Therefore, the Tribunal is incorrect in taking 80% percentage of disability in the calculation. The
multiplier adopted is less having regard to the age of the claimant (25) as per decision in Sarla Verma. Therefore, the contention that the proper
multiplier is 16 cannot be accepted.
The tribunal has taken the monthly income at Rs. 3000/-. The Tribunal has observed that as per settled law the monthly income has taken as
Rs. 3,000/- per month. The monthly income is a question of fact and it is a matter of evidence. Documentary evidence has been placed before the
Court to show that the annual income is Rs. 72,000/- Ex. P9 is the income certificate issued by the Head Quarters, Deputy Tahsildar, who is the
competent authority to issue the income certificate. The Tribunal is at liberty to reject the document, if the contents of the documents or the
authenticity of the document are proved to be incorrect. But, keeping the document on file and ignoring the document amounts to turning a Nelson
eye. It is open to the Tribunal to consider the document, evaluate it and to even reject it if the document is unworthy of credit. But, it is not open to
the Tribunal to shut the eyes to the document and to say that the monthly income is taken as Rs. 3000/-as per settled law as if there is no document
filed to prove the income.
According to the certificate, the monthly income is stated to be Rs. 6,000/-. The certificate has been issued after the accident. The Court can
take judicial notice of the fact that the charges for hair cutting, though moderate during 2003, now faces Himalayan rise. During 2003 the income
through hair cutting could not have been so much. The proper amount to be awarded for loss of earning capacity should be calculated taking into
account the prospective increase in the income of the claimant. Taking the monthly income at Rs. 3,500/- and adopting multiplier 18, the
compensation payable for loss of earning capacity would be Rs. 7,56,000/-. A sum of Rs. 1,00,000/- each towards pain and suffering, loss of
marital prospect, loss of enjoyment of amenities is awarded having regard to amputation of right arm suffered at the age of 25. A sum of Rs.
10,000/- is awarded towards extra nourishment. No evidence has been let in regarding the requirement of artificial limb. Therefore, a minimum of
Rs. 50,000/- is awarded towards purchase of artificial limb. Therefore, the total amount of compensation awarded is Rs. 11,10,000/-.
The learned counsel for the insurance company submitted that in an appeal filed by the insurance company, the Court has no power to enhance
the compensation to the claimant in the absence of cross appeal by the claimant. In support of the contention, the decision reported in 2011 (III)
ACC 592 (SC), (Ranjana Prakash & ors vs. Divisional Manager & anr), is relied upon, where under it has been held as follows:-
This principle also flows from Order 41 Rule 33 of the CPC which enables an appellate court to pass any order which ought to have been
passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-
objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code
can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to
litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief......
This decision has been over ruled by the decision reported in Sharanamma and Others Vs. M.D., Divisional Contr. Nekrtc,
When an Appeal is filed u/s 173 of the Motor Vehicles Act, 1939 (hereinafter shall be referred to as the ''Act''), before the High Court, the
normal Rules which apply to Appeals before the High Court are applicable to such an Appeal also. Even otherwise, it is well settled position of law
that when an Appeal is provided for, the whole case is open before the Appellate Court and by necessary implication, it can exercise all powers
incidental thereto in order to exercise that power effectively.
A bare reading of Section 173 of the Act also reflects that there is no curtailment or limitations on the powers of the Appellate Court to
consider the entire case on facts and law.
It is well settled that the right of Appeal is a substantive right and the questions of fact and law are at large and are open to Review by the
Appellate Court. Thus, such powers and duties are necessarily to be exercised so as to make the provision of law effective.
The imperative duty on the part of the Court to award just compensation has been emphasised by the Hon''ble Supreme Court in the case
reported in Nagappa Vs. Gurudayal Singh and Others, ) wherein it has been held that there is no limitation or restoration for awarding such
compensation and in appropriate cases where from the evidence brought on record if the Tribunal found that the claimant is entitled to get more
compensation than the claim, the Tribunal may pass an award and it would empower the Court to enhance the compensation at the Appellate stage
even without an injured filing an Appeal or Cross-objection. As Law of Precedent declares the decision of Larger Bench prevails over the decision
of smaller Bench.
It is relevant to quote the judgement of Madras High Court, wherein full bench judgement of supreme court is relied upon, reported in C.K.
Balaji and The Divisional Manager, New India Assurance Company Ltd. Vs. P. Chandrasekaran, , it is stated as follows;-
This Court has got jurisdiction and power under Order XLI Rule 33 read with Section 151 of the CPC to enhance the compensation even in the
absence of any appeal by the claimant. This Court draw support from judgment of the Honourable Apex Court in Nagappa Vs. Gurudayal Singh
and Others, and The APSRTC v. Ramadevii and Ors. reported in 2008 (1) TNMAC 234 (SC). Apart from that, appeal is continuation of original
proceedings. u/s 173 of the Motor Vehicles Act, this Court can reappreciate the evidence and decide the matter independently, and this Court
decides the matter accordingly. Once the matter is seized of by the Court for consideration, irrespective of the fact whether the claimant filed an
appeal or not, the pleadings and evidence on record should be meticulously analysed and the law of land at the relevant point of time has to be
applied.
There are cases where the Hon''ble Supreme Court expressly dealt with the provisions of Order 41 Rule 33 of the CPC and has held that the
provisions of Order 41 Rule 33 C.P.C empowers the Appellate Court to grant relief to a person who has neither appealed nor filed any cross
objections. It has also been made clear that the object of Order 41 Rule 33 C.P.C is to do complete justice between the parties. The following are
the decisions of the Hon''ble Supreme Court where the power under Order 41 Rule 33 C.P.C has been discussed:-
1 Pannalal Vs. State Bombay and Others,
2 Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and Others,
3 Nirmala Bala Ghose and Another Vs. Balai Chand Ghose and Others,
4 Giasi Ram and Others Vs. Ramjilal and Others,
5 Harihar Prasad Singh and Others Vs. Balmiki Prasad Singh and Others,
6 Mahant Dhangir and Another Vs. Madan Mohan and Others,
7 The State of Punjab and Others Vs. Bakshish Singh,
It goes without saying that the Motor Vehicles Act, 1988 is a beneficial legislation and therefore, it should be interpreted only in such a way so
as to enable the Court to assess ""Just compensation"". In the decision reported in Oriental Fire and Genl. Ins. Co. Ltd. Vs. Amarsing Pratapsing
Sikliker and Others, , a Division Bench of the Gujarat High Court has held as follows:-
Motor Vehicles Act is, undoubtedly, a welfare legislation. Needless to reiterate that whenever unfortunate victims of road accident or the
dependants of the deceased victims enter the thresholds of the Court for justice, they should not be overburdened with the technicalities or strict
pleadings of the law applicable in other civil cases. In fact, most the accident victims in our country are pedestrians or cyclists, and most of them
are illiterate and come from poor strata of the society and suffering from poverty and ignorance. Considering the benevolence in the provisions of
the Motor Vehicles Act and the facts and circumstances emerging from the record of the cases on hand, we are of the opinion that the Tribunal has
seriously erred in awarding rate of interest of 6 per cent only in a serious case of disintegration of the bodily frame of the claimant.
The observation made by the Rajasthan High Court in the decision reported in Municipal Board, Mount Abu and Another Vs. Harilal, ) is
essential which runs as follows:-
Should the courts be silent spectators and feel helpless and impotent by not redressing injustice and by tolerating such grave injustice simply
because due to the human values for compensation which could be valued and imagined by the advocate drafting the petition were too low or the
appellant''s inability to pay the court fee which may be a more tangible ground for putting the reduced claim. Inadequate claim has been made at
both levels of the original court and the appeal.
The purpose and object of Order 41 Rule 33 is to enable the Court to raise to the occasion and to render substantial justice between the
parties. This responsibility is more and higher when the victims are the sufferers of motor vehicles accident.
When the preamble of the Constitution of India, direct principles of State Policy and even the fundamental right speak of quality life and also
the right to life, then the object of exercising the jurisdiction under the Motor Vehicles Act should be towards ensuring social justice. Therefore, the
contention of the learned counsel appearing for the Insurance Company that the Appellate Court has no power to enhance the compensation in the
absence of Cross Appeal cannot be accepted.
The power of the Court to enhance the compensation especially when duty is cast upon the even upon the claims Tribunal to award just
compensation, cannot be disputed when there is more onerous responsibility cast upon the higher courts to ensure award of just compensation.
26.(1) As per Section 168 of the Act, solemn duty is cast upon the Tribunal to make an award, detailing the amount of compensation which
appears to be just.
26.(2) It is relevant to point out the procedure prescribed for filing the petition for compensation itself do not suffer from any complication and it
has been made as simple, comfortable and easy as far as possible. The procedure prescribed is very special and as contemplated u/s 166(4) of the
Act, even the report of the accident forwarded to it under subsection 6 of Section 158 can be treated as an application for compensation. As per
Section 158(6) of the Act, the Police Officer, who investigates the accident has to collect information with regard to the details of the accident and
forward the copy of the same to the Claims Tribunal, having jurisdiction. When this report itself can be treated, as if it is an application by the
claimant, then, the expansive nature of jurisdiction vested with the claims tribunal is understandable. Considering the practical difficulties of the
claimants, the Act envisages compassionate jurisdiction by expecting the Investigating Officer to forward a report to the Tribunal and casting a duty
upon the Tribunal to treat it as a claim petition.
In the result, the appeal filed by the insurance company is dismissed. However, the award Rs. 5,24,600/- is enhanced to Rs. 11,10,000/-(Rupees
Eleven lakhs ten thousand only). The insurance company is directed to deposit Rs. 11,10,000/- with 7.5% from the date of petition till the date of
deposit, less the amount already deposit, within a period of 8 weeks from the date of receipt of a copy of this order. On such deposit being made,
the claimant is permitted to withdraw the 50% of the same, less the amount already withdrawn. Remaining amount shall be kept in a bank deposit
for a period of 3 years. No costs. Consequently, connected miscellaneous petition is closed.