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Judgment
G.P. Mittal, J.—These are two cross-appeals arising out of a judgment dated 21st August, 2010 passed by the Motor Accident Claims
Tribunal whereby a claim petition u/s 166 filed by the respondent No. 1 in MAC APP No. 845/2010 was allowed and she was awarded a
compensation of Rs. 12,51,357/- for having suffered injuries in a motor accident which took place on 20th January, 2004. MAC APP No.
845/2010 has been preferred by the appellant-United India Insurance Co. Ltd. for reduction of compensation on the ground that the compensation
awarded is exorbitant and excessive. The cross-objections registered as MAC APP. No. 132/2012 are preferred by the respondent No. 1 where
the respondent No. 1 says that the compensation awarded is not just and proper as she has not been compensated for the loss of amenities in life
and for mental pain and suffering for not bearing a child in future.
For the sake of convenience, the appellant United India Insurance Co. Ltd. shall be referred to as the ""insurer"" and the respondent No. 1 who
suffered injuries in the accident shall be referred to as the ""claimant"".
The finding of fact on proof of negligence has not been challenged by the insurer. I am, therefore, not expected to go into this question.
The claimant at the time of the accident was aged 34 years and was working as an Accounts Officer with M/s. S.A. Packaging Pvt. Ltd. and
was getting a salary of Rs. 9,000/- per month. Immediately after the accident, the claimant was removed to Moolchand Khairati Ram Hospital.
After first aid, she was shifted to Bhardwaj Hospital where she remained admitted from 20th January, 2004 to 28th January, 2004. The claimant
was then admitted in Indraprastha Apollo Hospital on 22nd June, 2004 and was discharged from there on 25th June, 2004. She suffered fractures
of right clavicle, left humerus, ribs and pelvis. The disability certificate Ext. PY issued by All India Institute of Medical Sciences (AIIMS) shows
that she suffered 60% permanent physical impairment in relation to her body. The certificate is extracted hereunder:
This is to certify that Valsamma Joseph, wife of Shri Rajan P.K., 34 years old female, PMR OPD No. 10660/2006 is a case of ""Post traumatic
fractures of right clavicle, left humerus, ribs and pelvis"". She is physically handicapped and has 60% (Sixty) permanent physical impairment in
relation to her all four limbs and trunk.
Note: This condition is not likely to change. Reassessment is not recommended.
The appellant was unable to join her duty for a period of six months. She was awarded the compensation under various heads, which is
extracted hereunder:
The following contentions are raised on behalf of the insurer :
(i) The certificate Ext. PW 1/105 reflects that the claimant resumed her duty on 5th July, 2004 i.e. within six months of the accident, therefore, no
loss of future income should have been granted.
(ii) The claimant by the initial certificate issued by the Doctor was advised rest for three months. She could not have been awarded compensation
for loss of pay for six months.
(iii) The claimant did not lead any evidence that she did not receive any salary during the period she took leave.
Per contra, it is urged by the learned Counsel for the Claimant that the Claimant could not join her duties as she wanted to rehabilitate herself.
She was unable to take the load and, therefore, had to resign. Thus, it is contended that the Claims Tribunal finding on granting loss of future
income cannot be faulted. It is contended that no compensation has been awarded towards amenities in life and for pain and mental agony in not
bearing a child in future.
Section 168 of the Act enjoins the Tribunal to make an award determining the amount of compensation which appears to be just. However, the
objective factors, which may constitute the basis of compensation appearing as just, have not been indicated in the Act. Thus, the expression
which appears to just"" vests a wide discretion in the Tribunal in the matter of determination of compensation. Nevertheless, the wide amplitude of
such power does not empower the Tribunal to determine the compensation arbitrarily, or to ignore settled principles relating to determination of
compensation. Similarly, although the Act is a beneficial legislation, it can neither be allowed to be used as a source of profit, nor as a windfall to
the persons, affected nor should it be punitive to the person(s) liable to pay compensation. The determination of compensation must be based on
certain data, establishing reasonable nexus between the loss incurred by the dependents of the deceased and the compensation to be awarded to
them. In nutshell, the amount of compensation determined to be payable to the claimant(s) has to be fair and reasonable by accepted legal
standards.
In General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , the Supreme Court
observed that the determination of the quantum must answer what contemporary society ""would deem to be a fair sum such as would allow the
wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair thing"". The amount awarded must not be
niggardly since the law values life and limb in a free society in generous scales. At the same time, a misplaced sympathy, generosity and
benevolence cannot be the guiding factor for determining the compensation. The object of providing compensation is to place the claimant(s), to
the extent possible, in almost the same financial position, as they were in before the accident and not to make a fortune out of misfortune that has
befallen them.
On the basis of the claimant''s testimony as PW 1 and the documentary evidence including the disability shows that she suffered following
injuries:
- Fracture Clavicle (Right)
- B/L Multiple fracture ribs
- Fracture left humerus--Treated with ORIF with Bone Grafting
- Fracture left radial head--Excision done
- Fracture Pelvis B/L
- Loss of Upper one incisor tooth
- Multiple abrasions and blunt injuries all over body.
The claimant''s testimony on the extent of injuries was not challenged in cross-examination. The disability certificate Ext. PY was proved by Dr.
S.L. Yadav. He testified that the claimant suffered 60% permanent physical impairment of four limbs and trunks. She was issued a certificate Ext.
PW 1/105 by Dr. Manoj Sharma, Consultant and Orthopaedician, which is extracted hereunder:
To Whom It May Concern
This is to state that Mrs. Valsamma, 30 years/F was admitted to Bhardwaj Hospital under my care as a case of Multiple fractures(Fracture clavicle
with left humerus (arm) with multiple rib fractures B/L with fracture (L) radial head with fracture Pelvis with loss of upper incisor tooth) on 20th
January, 2004. She had a poor general condition (BP: 80 mm Hg, Pulse : 134/min. and gasping state) when she was revived by I.U. Fluids,
haemocoel and blood transfusion, a chest tube was inserted. Later when her condition settled and her life was out of danger. She was taken up for
surgery and excision head radius with ORIF humerus (L) was done under G.A. on 24th January, 2004. She was put on Physiotherapy and
complete bed rest for 3 months. But, when she was ambulated she had pain in pelvic area and sciatic neuritis. She was further advised rest and
conservative treatment. Her humerus went into non union for which she was reoperated at Indraprashtha Apollo Hospital and reosteosynthesis
with bone grafting (L) humerus was done on 23rd June, 2004. The patient and her husband have been explained well about the after effects to the
healed fracture pelvis and ribs that her chest capacity will become lesser, chances of pain later and chest infection, inability for strenuous work,
long travel by sitting and pregnancy. Also loss of full power/strength and mild pain on heavy work in (L) elbow due to excised radical head. She
has been allowed to join duty (but only light ones) since 5th July, 2004 and keep the (L) arm in a Broad arm sling, not to lift any heavy weight and
minimally use it for Computer operation for at least three more months.
Sd/-
Dr. Manoj Sharma,
Consultant and Orthopaedician
The claimant''s testimony as PW 1 that she could not cope up with the work and hence had to leave the job was not challenged in the cross-
examination.
It is urged by the learned Counsel for the insurer that the claimant should have examined some Gynecologist to prove that she would not be
able to bear a child in future.
It is nowhere stated in the certificate Ext. PW 1/105 that the claimant cannot bear a child. What was stated was that because of healed fracture
of pelvis and ribs, her chest capacity will become lesser. There may be chances of pain later, chest infection, inability to do strenuous work, long
travel by sitting (difficulty in pregnancy). Admittedly, no Gynecologist has been produced and as stated earlier, the certificate Ext. PW 1/105
shows that she will have the difficulty in pregnancy because of fracture of the pelvis (bone). Thus, what can be inferred is that the Claimant, if she
wanted to bear a child, would be in constant fear of the difficulties during the pregnancy and the delivery.
The certificate Ext. PW 1/105 clearly shows that she was permitted to join for light work only w.e.f. 5th July, 2004. She was asked to keep
the left arm in a broad arm sling, not to lift any heavy weight and minimally use it for computer operation for at least three more months. It is well-
settled that to award compensation for loss of earning capacity, the Claimant must prove that the disability suffered by her had practically affected
his/her earning capacity. Raj Kumar Vs. Ajay Kumar and Another, .
It is true that the Claimant was employed as an Accounts Officer and was not expected to perform any physical work. She was permitted to
start light duty by the certificate Ext. PW 1/105. It is also true that her testimony that she could not cope up with the work was not challenged in
the cross-examination. Taking totality of circumstances into consideration, I am of the view that in the absence of any expert evidence, she could
not have been awarded a compensation to the extent of 60% on account of loss of earning capacity. At the same time, considering the nature of
injuries suffered by her coupled with the fact that she would have difficulty and would be under constant stress if she decided to have a child, some
compensation ought to have been awarded. I would reduce the loss of earning capacity from 60%, though given in the disability certificate Ext.
PY, to 40%. Moreover, the liability towards income tax was not taken into consideration while determining the loss of future earning capacity.
Thus, the loss of future income comes to Rs. 6,23,360/- (9,000 x 12=1,08,000 - 10,600 (Income Tax) x 16 x 40%).
The accident took place on 20th January, 2004 and by certificate Ext. PW -1/1065 the claimant was allowed to join light duty w.e.f. 5th July,
2004. Though there is no evidence that the claimant was paid salary for the leave but in any case she was entitled to be compensated for the loss
of leave. Thus, the Tribunal''s finding awarding six months salary for loss of income cannot be faulted.
The compensation is recomputed as under:
The overall compensation is reduced from Rs. 12,51,357/- to Rs. 9,87,917/-.
The interest granted by the Claims Tribunal @ 7.5% per annum is maintained. The amount of Rs. 9,87,917/- alongwith proportionate interest
shall be released and held in Fixed Deposit in terms of para 17 of the impugned order passed by the Claims Tribunal. The amount required to be
deposited for various period in terms of the Claims Tribunal order would be held in Fixed Deposit in UCO Bank, Delhi High Court Branch.
The excess amount of Rs. 2,63,440/- alongwith interest, if any, accrued during the pendency of the appeal shall be returned to the appellant-
Insurance Company.
MAC APP No. 845/2010 and MAC APP No. 132/2012 are allowed in above terms. The statutory amount, if any, deposited by the
appellant-Insurance Company shall be returned.