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Judgment
Mrs. S. Sujatha, J.—This appeal is filed by the insurer challenging the liability and quantum whereas the cross objections are filed by the claimant seeking enhancement of the compensation against the judgment and order passed by the Motor Accident Claims Tribunal, Davangere (the ''Tribunal'' for short) in MVC No. 1144 of 2009.
Briefly stated the facts are:
- the injured-claimant instituted claim petition seeking compensation for the injuries sustained by him in the motor vehicle accident on 15-12-2008 owing to the actionable negligence of the driver of the lorry bearing Regn. No. KA-16-6263. The insurer and the owner appeared and contested the matter. Based on the pleadings, the Tribunal framed the following issues:
"(1) Whether the petitioner proves that on 15-12-2008 at about 1.30 pm when he was travelling in a lorry bearing Reg. No. KA-16-6263 as a cleaner, near Bharamasagar the respondent 1 being driver of the said lorry drove it in a high speed with rash and negligent manner and dashed against a scooterist who was coming from opposite direction and thereby caused it to turtle down and petitioner sustained grievous injuries?
(2) Whether the respondents prove that they are not liable to pay any compensation to the petitioner?
(3) Whether the petitioner is entitling for compensation, if so to what extent, what rate of interest and from whom it is recoverable?
(4) What relief or award?"
The Tribunal after analysing the evidence on record, awarded total compensation of Rs. 8,41,284/- with interest at the rate of 6% p.a. Being aggrieved, both the insurer and claimant are before this Court.
Sri O. Mahesh, learned Counsel appearing for the appellant-Insurance Company assailing the impugned judgment and order would contend that the Tribunal failed to appreciate the non-compliance of mandatory provision of Section 134(c) and Section 158(6) of the Motor Vehicles Act, 1988 (the ''M.V. Act'' for short) and Section 10 of the Workmen''s Compensation Act, 1923 (the ''W.C. Act'' for short) either by the insured or by the claimant. It is submitted that the insured vehicle being a public transport vehicle, any employment in public motor transport, provisions of the Minimum Wages Act, 1948 (the ''M.W. Act'' for short) would attract and any such employer has to maintain registers and record as stipulated under Section 18 of the M.W. Act. It is further contended that the injured claimant was travelling as a cleaner at the time of the accident in the insured vehicle; there was no relationship of master and servant between the employer and the injured. The claim made by the claimant-injured under the MV Act is not maintainable, utmost the compensation if, to be awarded has to be restricted as provided under the provisions of the W.C. Act. The Tribunal erred in awarding compensation to the injured-claimant as a third party. Thus, the learned Counsel submits that the compensation awarded by the Tribunal under different heads is unsustainable and it would have been in accordance with the provisions of the W.C. Act.
The learned Counsel placed reliance on the judgment of the Apex Court in the case of Ramchandra v. Regional Manager, United India Insurance Company Limited, Civil Appeal No. 8725 of 2012, dated 2-8-2013.
Per contra, Sri. Basavaraj R. Bannur, learned Counsel appearing for the claimant would contend that the injured-claimant was travelling as a cleaner in the offending vehicle on the fateful day and sustained grievous injuries due to the impact of the accident. Placing reliance on Section 167 of the Act, the learned Counsel submits that the claimant can invoke either the provisions of the W.C. Act or M.V. Act i.e., he can choose any forum which is beneficial to him. The claimant has chosen the remedy available under the provisions of the M.V. Act. No error of jurisdiction can be found with the Tribunal entertaining and adjudicating the petition under the provisions of the M.V. Act. The learned Counsel would contend, though objections were filed by the respondent-insurer, no evidence was led in to substantiate their contentions. All the objections raised in the written statement/objections were general in nature; no Insurance Policy was placed on record by the insurer. The fresh grounds now raised by the insurer regarding the non-compliance of the provisions of the M.V. Act, W.C. Act, M.W. Act were not raised at the first instance before the Tribunal. No evidence was led on that aspect. The grounds now raised by the insurer are all frivolous in nature, just to deny the compensation to the victim of the road traffic accident who is struggling hard to lead his life as a normal human being with respect. The learned Counsel further submits that while considering a socio-beneficial legislation, hyper technicalities cannot be looked into, more particularly, in the absence of any substantial evidence placed on record by the insurer or to discard the evidence placed on record by the claimants by rebuttal evidence. The learned Counsel points out that the claimant-injured was aged 21 years at the time of the accident and was working as a cleaner in the lorry. The medical records coupled with the evidence of the doctor clearly establishes that the claimant-injured is suffering from paraplegia. It is nothing but surviving in a vegetative condition. Though evidence on record revealed 100% disability to the whole body, Tribunal erred in assessing the disability at 80% in awarding the loss of future income. The compensation awarded under different heads are too meager. Further, no compensation is awarded towards attendant charges, nourishment and conveyance charges and loss of amenities. Though considering the statutory provisions of the M.V. Act, the Tribunal answered the aspect of jurisdiction in favour of the claimant-injured in awarding the compensation under the provisions of the M.V. Act, erred in awarding a meager compensation compared to the nature and gravity of the injuries sustained by the injured-claimant.
The learned Counsel placed reliance on the following judgments:
(1) The National Insurance Company Limited, Hubli v. Siddappa and Another, ILR 2004 Kar. 331
(2) Oriental Insurance Company Limited v. Dyamavva and Others, AIR 2013 SC 1853
(3) Raj Kumar v. Ajay Kumar and Another, (2011)1 SCC 343 and
(4) Mohan Soni v. Ram Avtar Tomar and Others, (2012)2 SCC 267.
Heard the rival submissions of the parties and perused the material on record.
It is discerned from the records that the injured-claimant sustained accidental injuries while travelling in the offending vehicle as a cleaner. The primary challenge made by the insurer is regarding the jurisdiction of the Tribunal in entertaining the claim petition and awarding the compensation under the provisions of the M.V. Act contrary to the terms and conditions of the Insurance Policy and the provisions of Section 147 of the M.V. Act. According to the learned Counsel for the appellant, the proper remedy for the claimant-injured would have been to seek remedy under the provisions of the W.C. Act and not under M.V. Act. Even, if a wrong forum is selected the compensation would be restricted to that of the provisions of the W.C. Act. It is apt to refer to Section 167 of the M.V. Act which reads thus:
"167. Option regarding claims for compensation in certain cases. - Notwithstanding anything contained in the Workmen''s Compensation Act, 1923 (8 of 1923), where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen''s Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both."
A bare perusal of this provision makes it clear that where the death of a person or bodily injury to any person gives rise to a claim for compensation under M.V. Act and also under W.C. Act, the person can claim compensation under either of those Acts but not under both Acts. Thus, the option is left to the discretion of the person either to choose the provisions of the M.V. Act or the W.C. Act and not both Acts. Admittedly, the injured-claimant has chosen the provisions of the M.V. Act to seek his remedy which cannot be found fault with. The Tribunal very well had the jurisdiction to entertain and adjudicate the matter under the provisions of the M.V. Act.
It is beneficial to refer to the judgment of this Court in the case of Siddappa, wherein this Court has held that when the injured has sustained injuries in a road traffic accident caused by another vehicle though he was discharging his duties as a cleaner, the injured is entitled to make an application before the Claims Tribunal claiming compensation from the owner of the offending vehicle. In such circumstances, the claimant has two options. Being an employee, sustaining injuries in a road traffic accident while discharging the duties can maintain a petition claiming compensation under the W.C. Act, similarly, being a third party having sustained injuries in a road traffic accident caused by another motor vehicle is entitled to proceed against the owner and insurer of the offending vehicle. In such circumstances, a person is entitled to invoke either the provisions of the W.C. Act or the provisions of the M.V. Act. However, he is not entitled to invoke the jurisdiction of both the statutes simultaneously.
The Apex Court in the case of Dyamavva has held that the option of selecting the forum is with the claimant either to seek compensation under the provisions of the W.C. Act or the M.V. Act. Mere acceptance of the compensation by the defendant Would not disentitle him from filing the claim petition under M.V. Aft.
The Hon''ble Apex Court in the case of Ramchandra, has held that when the Insurance Company had failed to raise any plea before the Courts below and it did not even contend that in the case, the claimant is entitled to any compensation beyond what was payable under the W.C. Act, it is the insured-owner who was liable to pay as it had no contractual liability since the insured owner of the vehicle had not paid any extra premium since this plea was never put to test or gone into by the Tribunal as the Insurance Company neither took this plea nor adduced any evidence to that effect so as to give a cause to the High Court to accept the plea of the Insurance Company straightaway at the appellate stage.
It is further held that the Insurance Company generally fail to take note of non-appearance of the owner of the vehicle despite service of notice. In the absence of leading any evidence by the Insurance Company to establish as to how the owner and not the Insurance Company is liable to pay the compensation, the Insurance Companies would fair better if they were to address the issue before the Tribunal instead of becoming wiser at the stage of appeal. As regards the legal position of the entitlement of compensation by the injured over and above the liability under the W.C. Act, it is clearly held that the claimant is surely entitled to the amount of compensation over and above the W.C. Act. The only rider, no doubt, is that the statutory liability cannot be more than what is required under the statute under Section 95 of the M.V. Act which cannot bind the parties or prohibit them from contracting or creating unlimited or higher liability to cover wider risk and the insured is bound by the terms of the contract specified in the policy. However, as regards the cleaner, the same cannot be restricted to the compensation under the W.C. Act and is entitled to compensation even under the M.V. Act which will depend upon the terms and conditions of the policy of Insurance. In the absence of the production of the Insurance Policy which establishes the terms and conditions of the policy and no evidence being adduced by the insurer to prove that the terms and conditions of the policy was limited and the risk of the cleaner was not covered under the Insurance Policy, the arguments of the insurer deserves to be negated.
It is significant to note that the defence taken by the insurer were all general in nature and at the time of arguments before the Tribunal, it had restricted its arguments only to the quantum accepting the factum of accident as well as the liability which is evident in para 10 of the impugned judgment which runs thus:
"Further, the learned Counsel for the respondent-company urged that so far as in respect of accident as well as the liability is concerned there is no dispute. In such circumstances, respondents cannot shirk from their liability to pay compensation to the petitioner."
In view of accepting the liability before the Tribunal, the Insurance Company is estopped from raising hyper technical grounds to deny the compensation.
It was the strong case of the claimant that no evidence was led by the insurer to the effect that the insured owner was liable to pay the compensation amount beyond what was payable under the W.C. Act since no policy was produced before the Tribunal which was categorically addressed by the Tribunal and the finding to that effect was given. This argument was with all force contended by the learned Counsel for the claimant during the course of arguments. After the arguments were over and the matter being reserved for judgment, surprisingly, the appellant has filed a memo along with the copy of the Insurance Policy under the pretext that there was a direction by this Court earlier while hearing the appeal, to produce the copy of the policy. Indeed, no such direction was given by the Court. No document can be accepted in the appellate stage behind the back of the contesting respondent. The edifice of arguments of the respondent''s Counsel was mainly based on non-production of Insurance Policy. If the same is not produced before the Tribunal for whatever best reasons known to the appellant and not even during the pendency of the appeal before the Appellate Court by following the due procedure, the same cannot be produced as a document to be accepted after the arguments are completed by both the parties. Hence, there is no cause to accept the memo. This issue is squarely covered by the Apex Court judgment in Ramchandra''s case.
The challenge raised by the appellant-Insurance Company based on non-compliance of Section 10 of W.C. Act, Section 158(6) read with Section 134(c) of M.V. Act and Section 18 of M.W. Act are all new grounds now raised in this appeal. These technical grounds not being raised and put to the test of evidence deserves to be negated.
As regards the quantum of compensation awarded by the Tribunal, it is manifest from the records that the claimant-injured was aged 21 years at the time of the accident and was working as a cleaner. He was hale and healthy, competent to do the manual work. Physical strength is sine qua non to do the manual work. Admittedly, the appellant sustained grievous injuries in the accident in question which is evidenced from the wound certificate issued by the Government Hospital, Bharamsagar, marked at Ex. P. 6 that the patient was unable to move lower part of the body. Exs. P. 8 to P. 11 discharge cards from Bapuji Hospital, Davanagere and resident report issued by the Nimhans, Bangalore as well as Siddarth Hospital, Tumkur fortifies that the claimant has lost control over the lower limbs, as such he has been treated for paraplegia. The claimant has taken treatment in various Hospitals. The Tribunal in its judgment has observed the pathetic condition of the claimant as he could not be able to step into the witness-box due to bed sores without the assistance of others. Ex. P. 99-a resident report issued by Nimhans Hospital, Bangalore reveals that the chances of recovery from paraplegia are minimal. The doctor who was examined as P.W. 2 has assessed the permanent physical disability at 100%. It has come on record that the total loss of sensation in both lower limbs with loss of control over bowl and bladder also. The future of the young and energetic person has turned woeful, the claimant is leading his life in a vegetative condition, fully crippled for life depending on others for his daily routine work. Despite no rebuttal evidence led by the insurer to discard the evidence of the doctor P.W. 2 nor any positive evidence elicited in the cross-examination of P.W. 2 and no attempts made by the insurer to take second opinion of any expert to assess the disability, though Tribunal noticed the pathetic condition of the claimant, disbelieving the evidence of P.W. 2 as regards the assessment of disability, determined the disability at 80%. At this juncture, it would be apposite to refer to the judgment of the Apex Court in the case of Mohan Soni wherein it is held thus:
"12. In the light of the aforesaid decisions, we find it extremely difficult to uphold the decision of the High Court and the Tribunal based on the finding that the loss of the appellant''s earning capacity as a result of the amputation of his left leg was only 50%. It is noted above that the appellant used to earn his livelihood as a cart-puller. The Tribunal has found that at the time of the accident his age was 55 years. At that age it would be impossible for the appellant to find any job. From the trend of cross-examination it appears that an attempt was made to suggest that notwithstanding the loss of one leg the appellant could still do some work sitting down such as selling vegetables. It is all very well to theoretically talk about a cart-puller changing his work and becoming a vegetable vendor. But the computation of compensation payable to a victim of motor accident who suffered some serious permanent disability resulting from the loss of a limb, etc. should not take into account such indeterminate factors."
In the judgment of the Apex Court in the case of Raj Kumar, the Apex Court has held in great detail the co-relation between the physical disability sustained by an injured in an accident and its impact on the economical loss. At paragraphs 10, 11 and 12, it is held thus:
"10. 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 permanent 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 the 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 Company Limited, 2010 (10) Scale 298 and Yadava Kumar v. D.M., National Insurance Company Limited, 2010 (8) Scale 567).
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."
In the light of the above decisions, if the case on hand is analysed, 80% of permanent disability assessed by the Tribunal is on a lower side. The claimant was earning his livelihood as a cleaner. The impact of accidental injuries is so grievous that the claimant finding any job for his livelihood is overruled. On the other hand, his life has become so miserable that he has to lead his life with all tribulations, discomforts and inconveniences. The claimant has to live on the mercy or sympathy of his family members. The loss of earning capacity of the claimant is proved to the maximum at 100%. In the circumstances, I deem it proper that the compensation to be awarded by treating the loss of future earning capacity at 90% minimal.
The Tribunal while determining the income, disbelieving the version of the claimant assessed the monthly income at Rs. 3,990/- which is meager compared to the normal mode of determination of the income of a daily rated wager made by this Court for the period 2008, which would be at Rs. 4,250/-. Accordingly, the loss of future earnings would work out to Rs. 8,26,200/-applying the multiplier ''18'' since the injured was in the age group of 21 to 25 at the time of accident, with disability of 90%.
Compensation awarded towards loss of amenities of life and discomfort at Rs. 30,000/- is on a lower side compared to the discomfort and inconvenience which the claimant has to face for the rest of his life. Given the circumstances, I deem it just and proper to award compensation of Rs. 50,000/- towards loss of amenities of life and discomfort. Compensation awarded towards conveyance charges and future medical expenses is also on lower side compared to the hospitalisation period of 74 days as an inpatient in various hospitals. Thus, a sum of Rs. 50,000/- is awarded towards conveyance charges and future medical expenses against Rs. 20,000/- awarded by the Tribunal. A sum of Rs. 21,812/- is awarded towards loss of income during laid up period and rest, the same requires to be enhanced to Rs. 23,110/- (74 days as an inpatient and three months rest period). The compensation awarded by the Tribunal towards injury, pain and suffering at Rs. 50,000/- remains intact. Thus, the compensation awarded by the Tribunal is modified as under:
Medical expenses and nourishment
Rs. 50,000
Towards injury, pain and suffering
Rs. 50,000
Conveyance and future medical expenses
Rs. 50,000
Loss of income during laid up period
Rs. 23,110
Loss of future income
Rs. 8,26,200
Loss of amenities
Rs. 10,49,310
Total
Rs. 10,49,310/-
The claimant shall be entitled for the total compensation of Rs. 10,49,310/- with 6% interest per annum from the date of claim to the date of realisation.
The appeal filed by the insurer is dismissed with costs of Rs. 2,000/- and the cross-objections filed by the claimant is allowed to the extent indicated above.
Amount in deposit, if any, in the appeal shall be transferred to the Tribunal for disbursement.