Partly allowed

New India Assurance Co. Ltd. v. Shankunthala

Madras HC1 Oct 2015CMA/2196/2015

Case brief

AI extract

What is this about?

Insurer's appeals challenging compensation awarded to the family of a deceased motorcyclist and to an injured pillion rider. Upholding reliance on income-tax returns, the court added 30% for future prospects and enhanced the dependency award, but reduced the injured claimant's disablement from 67% to 40% and cut his compensation.

What did the court decide?

C.M.A.No.2196 of 2015 dismissed; C.M.A.No.2197 of 2015 partly allowed, compensation of the injured reduced to Rs.28,37,400/- with proportionate interest, the balance to be deposited by the insurer.

New India Assurance Co. Ltd. Vs Shankunthala — Insurance | Madras HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 01.10.2015

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CORAM:

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THE HONOURABLE MR.JUSTICE S.MANIKUMAR AND THE HONOURABLE MR. JUSTICE M.VENUGOPAL

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C.M.A.Nos.2196 and 2197 of 2015 & M.P.Nos.1 and 1 of 2015

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M/s.New India Assurance Co. Ltd., 1,No.67/1, Reddy Complex, Whitefield Main Road, Mahadevapura Post, Bangalore 560 048. .. Appellant in both CMAs., (2nd Respondent)

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.. Vs ..
1. Shakunthala
2. Meshach
3. Jemina Smith
4. Arulseeli .. Respondents 1 to 4/ in
CMA.2196/15 (Petitioners)
5. Asmitha Ojha .. 5 th Respondent in CMA.2196/15/
(1st Respondnet)
1. P. Muniyappan
2. Asmitha Ojha ...Respondents 1 & 2 in
CMA.2197/15 (Petitioner &
1st Respondent)

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Prayer: Civil Miscellaneous Appeals filed under Section 173 of the M.V.Act, 1988, against the judgment and decree, passed in M.C.O.P.Nos.160 and 208 of 2012, dated 20.12.2013, on the file of the learned Motor Accident Claims Tribunal (Subordinate Court), Hosur.

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For Appellants in both CMAs. : Ms.Harini, for Mr.N.Vijayaraghavan For Respondents 1 to 5 : Mr.P.A.Sudesh Kumar JUDGMENT

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(Judgment of this Court was made by S.MANIKUMAR, J.)

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Quantum of compensation is the only challenge, in the Civil Miscellaneous Appeals, before us. https://hcservices.ecourts.gov.in/hcservices/

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Arising out of an accident, dated 08.07.2012, Mr.Paul Raj,

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rider of the Motorcycle (Hero Honda), bearing Registration No.TN 24 Y 5252 and claimed to be a Pastor, by avocation and aged 47 years, died. Wife, aged about 43 years, son and daughter, aged about 20 and 18 years respectively and mother, aged about 62 years, have filed M.C.O.P.No.160 of 2012, on the file of the Motor Accident Claims Tribunal, Sub Court, Hosur, claiming compensation of Rs.50,00,000/-.

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In the same accident, Mr.Muniyappan, stated to be a pillion rider, aged about 22 years, at the time of accident and an Apprentice Technician in TVS Motor Company Ltd., Haritha Industrial Area, Hosur, has stated that he has sustained the following injuries,

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(i) Right femur neck fracture with shaft of Mid 1/3^rd fracture.

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(ii) Pan facial trauma with communicated maxilla and mandible fracture.

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(iii) Abdomen:-

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(a) Liver contusion in left lobe 3.2x3.1 C.M.

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(b) Moderates hem peritoneum.

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(a) Multiple lacerations over the forehead, cheek and

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chin.

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(b) Diffuse Periorbital swelling present.

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(v) Right hip and thigh:-

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(a) External rotation attitude of right hip.

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(b) Severe tenderness over hip and thigh.

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(d) Hip Rom painful restricted. (vi) C.T. Face showed:

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(a) Right parasymphiseal fracture mandible.

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(b) Bilateral maxillary wall and mid line fracture.

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(vii) X-Ray of Pelvis withboth hips AP showed: Right femur neck displaced fracture.

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(viii) X-Ray of right femur AP/lateral view showed:

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Right femur neck fracture (garden type IV)

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(ix) USG Abdomen showed:

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Splenic and liver laceration. (x) C.T.Head showed:

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(i) Small effuse of contusions in bilateral basi frontal region.

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(ii) Small extradul hematoma in left frontal region.

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He has filed M.C.O.P.No.208 of 2012, in the same Tribunal, claiming compensation of Rs.40,00,000/-. Before the Claims Tribunal, he has contended that after the accident, ie., on 08.07.2012, he was given First Aid in the Government Hospital, Hosur and on the same day, taken to Ashok Hospital, Hosur. Thereafter, referred to SPARSH Hospital, Bangalore, for further management, where, he was inpatient and underwent surgery, for the abovesaid injuries and fractures and discharged on 30.07.2012. He has also contended that after discharge, he had taken treatment, as outpatient.

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Before the Claims Tribunal, the injured claimant in https://hcservices.ecourts.gov.in/hcservices/ M.C.O.P.No.208 of 2012, has contended that he was a Diploma Holder in Mechnical Engineering and prior to the accident, he was working

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as an apprentice CNC Machine Operator in TVS Motor Company Ltd., Haritha, Hosur and earned Rs.10,000/- per month. According to him, due to the displaced fracture of right femur neck, he is unable to walk long distance, stand for a long time, squat on the floor, use Indian type of Toilets, lift weight and to do the work, as CNC Machine Operator in the abovesaid Company or do any hard manual work, as before. Due to the frontal fracture, extradual hematoma in left frontal region, head and facial injuries, his face, has become disfigured; he often gets headache and giddiness, and unable to concentrate, on any work for a long time.

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It is also the contention of the injured/claimant that due to the right parasymphiseal fracture mandible and bilateral maxillary wall and mid line fracture, he is unable to munch and eat hard food, and lost the pleasure of taste of food. Due to the injuries in the abdomen, splienic and liver laceration, his spleen has been removed. Due to the above, he is incapacited to do any work and thus, permanently disabled. He has claimed compensation of Rs.40,00,000/- for permanent disablement, and loss of earning.

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In so far as M.C.O.P.No.160 of 2012, filed by the legal representatives of the deceased, Paul Raj, rider of the Motorcycle (Hero Honda), bearing Registration No.TN 24 Y 5252, is concerned, it is the case of respondents/claimants that prior to the accident, the deceased was a Pastor and earned Rs.30,000/- per month. However, no document has been filed, supporting avocation. Whereas, PW.2, Wife of the deceased, has produced Ex.P15 – Passport of the deceased Paul Raj, Ex.P18 – Government Gazettee in Original, Ex.P19 – Income Tax Returns for 2011-12, wherein, the income for the year 2011-12 has been shown as Rs.1,78,500/-.

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Having regard to the fact that the deceased is survived by four claimants and that the accident has occurred in the year 2012, accepting the contentions of the legal representatives of the deceased Paul Raj, the Claims Tribunal, has taken the annual income of the deceased as Rs.1,78,500/-, for the purpose of computing the loss of dependency. Having regard to the number of dependants, the Claims Tribunal has deducted 1/4^th towards the personal and living expenses of the deceased, and by applying '13' multiplier, arrived at the loss of dependency as Rs.17,40,375/-. In addition to the above, the Claims Tribunal has awarded Rs.1,00,000/- towards loss of consoritum, Rs.1,50,000/- towards loss of love and affection, Rs.25,000/- towards funeral expenses and Rs.10,000/- for transportation. Altogether, the Claims Tribunal has awarded Rs.20,25,375/-, with interest, at the rate of 7.5% per annum, from the date of claim, till the date of payment. However, the Claims Tribunal has not awarded any compensation under the head, future prospects.

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Insofar as M.C.O.P.No.208 of 2012, filed by the injured claimant, Mr.Muniyappan, is concerned, to prove the nature of injuries, treatment, avocation and income, he has marked Ex.P5 – Discharge Summary, Ex.P6 – Medical Bills, Ex.P7 – Diploma Course Completion Certificate, Ex.P8 – Pay Slip, Ex.P10 – Income Tax Pan Card and Ex.P11 – Bank Pass Book and Ex.P22 – Trust Auditor's https://hcservices.ecourts.gov.in/hcservices/ Report, Ex.P23 – X-Ray, Ex.P24 – X-Ray Bill, Ex.P25 – Disability Certificate, issued by PW.3, Doctor. Before the Claims Tribunal, the

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respondent/claimant has adduced oral and documentary evidence, supporting his claim for compensation. He has also proved that his spleen has been removed.

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PW.3, Doctor, who clinically examined the respondent/claimant, has adduced evidence, supporting the nature of injuries, treatment and further stated that he has assessed the extent of disablement suffered by the respondent, as 67%. Based on the oral and documentary evidence, in particular, Ex.P8 – Pay Slip, wherein, the salary of the injured has been mentioned as Rs.9,846.14, the Claims Tribunal, while fixing the monthly income at Rs.10,000/-, has decided to apply multiplier method, for computing the loss of future earning. As the injured was aged 23 years, at the time of accident and considering the nature of injuries, removal of spleen, the Claims Tribunal has added 50%, towards future prospects and thereafter, by applying '18', awarded Rs.21,70,800/(Rs.10,000/- x 12 x 18 x 67% x 50%), as compensation.

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Considering the multiple injuries, period of treatment, evidenced by medical records, stated supra, the Claims Tribunal has awarded Rs.2,00,000/- for pain and suffering. A sum of Rs.8,10,414/-, awarded for medical expenses, is supported by Ex.P6 – Medical Bills. In addition to the above, the Claims Tribunal has awarded Rs.25,000/- for future medical expenses, Rs.25,000/- towards extra nourishment, Rs.60,000/- for loss of earning for six months, Rs.30,000/- for attendant charges and Rs.60,000/- for loss of social enjoyment, ie., loss of amenities. Altogether, the Claims Tribunal has awarded Rs.31,81,200/- with interest, at the rate of 7.5% per annum, from the date of claim, till deposit.

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In both the appeals, the appellant-Insurance Company has challenged only the quantum of compensation and therefore, there is no need to advert to the other aspects, such as, negligence and liability.

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Insofar as C.M.A.No.2196 of 2015 (M.C.O.P.No.160 of 2012), is concerned, Ms.Harini, learned counsel for the appellant-Insurance Company, submitted that the Claims Tribunal has grossly erred in awarding a huge compensation of Rs.17,40,375/-, under the head, loss of dependency, solely based on Ex.P19 – Income-Tax Returns, filed by the legal representatives of the deceased/claimants, after the date of accident and therefore, the Tribunal ought to have rejected the same.

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Insofar as C.M.A.No.2197 of 2015 (M.C.O.P.No.208 of 2012), claim of the injured is concerned, learned counsel for the appellant-Insurance Company, submitted that the Claims Tribunal has grossly erred in accepting the extent of disablement as 67%, for removal of spleen and awarded a huge sum of Rs.21,70,800/-, under the head, loss of earning capacity, when there is no credible proof for avocation and income.

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Per contra, insofar as C.M.A.No.2196 of 2015 (M.C.O.P.No.160 of 2012), Mr.P.A.Sudesh Kumar, learned counsel for the deceased, Paul Raj, submitted that there is no error in fixing https://hcservices.ecourts.gov.in/hcservices/ the monthly income and consequently, the quantum of compensation. He also submitted that the Claims Tribunal ought to have awarded,

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atleast 30% of the income, towards future prospects for computing the dependency compensation. His further case is that the Claims Tribunal ought to have awarded compensation of Rs.1,00,000/-, under the head, loss of love and affection, to each of the claimants. He pointed out that the Claims Tribunal has not awarded any compensation, for the damages to clothes and articles.

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Insofar as the compensation awarded to the injuried, Mr.Muniyappan [respondent in C.M.A.No.2197 of 2015 (claimant in M.C.O.P.No.208 of 2012)], is concerned, learned counsel for the respondent/claimant submitted that due to the fractures, particularly, in the neck of femur, stated supra, and removal of spleen, the respondent/claimant has not only lost immunity, but he would also find it difficult to carry on his regular activity, as a mechanical engineer and therefore, there is certainly, a correlation between the functional disability and avocation of the injured, warranting application of multiplier method for computing the loss of future earning capacity.

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Supporting the contention, as to whether, removal of spleen would result in disability and consequently, computation of compensation, under the head, loss of future earning, learned counsel for the respondent/claimant relied on the decisions in Ravichandran v. The Managing Director, Pallavan Transport Corporation Ltd., reported in 2004 (2) CTC 30, Royal Sundaram Allianz General Insurance Co. Ltd., v. Ramasamy reported in 2013 (2) TNMAC 436 and K.Gowthami (Minor) v. New India Assurance Company Ltd., [S.L.P.(C)Nos.17215 to 17220 of 2010]. Taking this Court though Ravichandran's case (cited supra), he submitted that a Hon'ble Division Bench has considered the effect of removal of spleen from various dictionaries. For the reasons, stated supra, he submitted that there is no manifest illegality in applying multiplier method, in computing the loss of future earning to the claimant.

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By way of reply, Ms.Harini, learned counsel for the appellant-Insurance Company submitted that in National Insurance Co. Ltd., v. A.Marimuthu reported in 2011 (1) TNMAC 729, relied on by the learned counsel for the respondent/claimant, the injured had suffered a complex fracture in left hand, chest ribs, damage to spleen, fracture to left humerus and 7^th & 8^th ribs of left side rib cage, and stated to have suffered 50% disablement and in Royal Sundaram Allianz General Insurance Co. Ltd., v. Ramasamy reported in 2013 (2) TNMAC 436, the injuries therein were, (1) A blunt injury abdomen 'CT' showing shattered spleen with haemoperitoneum, (2) Chest injury 'CT' showing bilateral clavicle fractured ribs 1, 2, 3 (R), 8, 9(L) lung contusions LTR, (3) Fracture (r) Zygomatic arch and (4) Fracture transverse process (R) of Vertebra, whereas, in the case on hand, when the injuries, sustained by the respondent/claimant were not very serious, affecting loss of earning capacity, the judgments relied on by the learned counsel for the respondent/claimant, need not be applied to the facts on hand.

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Heard the learned counsel for the parties and perused the materials available on record.

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https://hcservices.ecourts.gov.in/hcservices/

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Let us first consider the grounds of challenge in

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C.M.A.No.2196 of 2015 (M.C.O.P.No.160 of 2012), where the legal representives of the deceased, Paul Raj, have been granted compensation of Rs.20,25,375/-, with interest, at the rate of 7.5% per annum, from the date of claim, till deposit. Before the Claims Tribunal, having regard to the avocation of the deceased, Pastor, in two Churches in Hosur and though a claim for monthly income of Rs.30,000/- was made, accepting the Ex.P19 – Income-Tax Returns for the year 2011-12, wherein, it has been mentioned that the annual income of the deceased was Rs.1,78,500/-, the Claims Tribunal has taken the same, for computing the loss of dependency.

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Though Ms.Harini, learned counsel for the appellantInsurance Company contended that the Tribunal has erred in fixing the monthly income of the deceased, on the basis of the Income-Tax Returns, submitted after the death of the deceased, this Court is not inclined to accept the same, for the reason that the Hon'ble Apex Court in a recent decision in Kalpanaraj v. Tamil Nadu State Transport Corporation reported in 2015 (2) SCC 764, has determined the monthly income on the basis of Income-Tax Returns. As rightly contended by the learned counsel appearing for the respondents/claimants that to maintain a family of four persons, one would have certainly engaged in some avocation or employment.

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In the case on hand, the accident has occurred on 08.07.2012. Income-Tax Returns submitted by the claimants is for the assessment year 2011-12. Income-Tax Returns for a particular year, would reflect the income of the assessee, till 31^st March of the previous year. Accident has occurred on 08.07.2012. Income shown in Ex.P19, Income-Tax Returns for the assessment year 2011-12, though stated to have been submitted, after the accident, cannot be rejected. Considering the cost of living, expenditure incurred, to provide the basic amentities, food, shelter, clothing, besides heath and education to the children, stated to be aged 20 and 18 years, at the time of filing of the claim petition, a sum of Rs.14,875/- fixed by the Claims Tribunal, as the monthly income of the deceased, cannot be said to be illegal. However, for the purpose of calculation, income is reduced and rounded off the same to Rs.14,000/-, for which, the learned counsel for the respondents/claimants, has also agreed.

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Though the appellant-Insurance Company has submitted that in case of employees, in unorganised sector or non-salaried persons, without any permanent job, addition of 30% under the head, “future prospects”, with the income drawn, at the time of death, should not be made, for computation of dependency compensation, this Court is not inclined to accept the said submission, for the reason that the expression “future prospects” should not be confined only to the prospects of the deceased in career, progress or upgradation of position, in which, he was engaged, prior to death, but we are of the considered view that the expression “future prospects” should also be extended to the likelihood of increase in wages, salary or other emoluments and thereby, increase in income, earned by either a skilled or semi-skilled person or self employed, considering the upward increase in cost price, inflation and such other factors.

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22. Judicial notice can also be taken that the cost of https://hcservices.ecourts.gov.in/hcservices/ essential commodities, labour, etc., have never remained static and it is always on the rise. Periodically, electricity and water

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charges, on the increase. Consequent to the upward revision of fuel, the cost of transportation has increased. To meet out the basic amenities, there would be an increase in income. In relation to employment, education plays an important role. If there are more qualified persons and less number of jobs, then there is a possibility of fixing lesser salary. However, there cannot be a thumb rule, that there would not be any change in income, forever.

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23. In the light of the reasons, stated supra, this Court deems it fit that the respondents/claimants deserve a just and reasonable compensation under head, future prospects. Hence, this Court is inclined to suo-moto enhance the compensation. On suo-motu enhancement, reference can be made to following decisions,

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(i) In National Insurance Co. Ltd., v. M.Jayagandhi reported in 2008 (1) TNMAC 177, on the question as whether in the absence of any Cross Objection, the High Court could suo moto enhance the compensation, by exercising power under Order 41, Rule 33 CPC., this Court, at Paragraphs 37 and 38, held as follows:

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“37. The question arising for consideration is whether in the absence of any Cross Objection, the Appellate Court could suo motu enhance the compensation. The Appellate Court exercising power under Order 41, Rule 33, CPC could enhance the quantum of compensation even without Cross-Objection. The Courts and Tribunals have a duty to weigh various factors and quantify the amount of compensation which should be just. Reference could be made to the decision of the Supreme Court in Sheikhupura Trans. Co. Ltd. v. Northern India Transporter's Ins. Co. Ltd. , 1971 ACJ 206 (SC), wherein it is held that pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately, but must necessarily be an estimate or even partly a conjecture. The general principle is that the pecuniary loss can be ascertained only by balancing, on the one hand, the loss to the Claimants of future pecuniary benefits and on the other any pecuniary advantage which from what-ever sources come to them by reason of the death, i.e. the balance of loss and gain to a dependant by the death must be ascertained. The determination of the question of compensation depends on several imponderables. In the assessment of those imponderables, there is likely to be a margin of error. Broadly speaking, in the case of death, the basis of compensation is loss of pecuniary bene-fits to the dependants of the deceased which includes pecuniary loss, expenses, etc. and loss to 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 un-reasonable, excessive nor deficient.

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Of course, the Claimants who are widow, minor daughter and mother have not filed any Cross-Objection. https://hcservices.ecourts.gov.in/hcservices/ Even without a Cross-Objection, questioning the quantum, the Court could suo motu enhance compensation

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under Or. 41, R. 33, CPC. In this context, reference could be made to 1999 ACJ 977 [Karnataka] wherein it has been held as follows:

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“(6) I am in general agreement with the basic proposition of law that has been canvassed by the appellant's learned advocate when he points out that it is a well settled principle that a party who suffers an order or a decree and does not Appeal against it or assail it would normally not be permitted at the hearing of the Appeal to try and take advantage of the situation by asking for enhancement. The issue is not that but really as to whether this situation prescribes an absolute and total bar to the Court granting a relief if in the interest of justice such a relief is an absolute must. One has to view the situation from a rather practical point of view the first of them being with regard to the very poor quality of legal assistance that is usually available in and around the M.A.C.T. and thereafter, the second aspect of the matter being that the status of the parties and their general condition themselves may be such that they are unable to agitate the matter further and the third aspect of the matter which is relevant having regard to the present case, is the possibility of certain further tragic occurrences such as deaths that may have intervened, all of which may contribute to a situation wherein the Court finds that no Appeal or CrossObjections have been filed. The essence of doing justice requires that compensation when awarded has got to be reasonable and fair and it has also got to be adequate having regard to the totality of the circumstances. The hearing of the Appeal involves a total review of the case and the Appeal is virtually an extension of the proceedings before the lower Court. The law is well settled with regard to one interesting aspect of the matter, namely, that the Courts do come across a few instances where instead of over-pitching the case before the Trial Court, a very modest amount is claimed and the Tribunals in these circumstances have been wrongly limiting the relief to the amount that has been claimed on the ground that even though the party is entitled to something higher, what was asked for is a lower figure. This Court had occasion to correct these orders and to lay down that the Tribunal is required to pass an order quantifying the compensation correctly irrespective of what has been claimed on the basis of the principle that it is not the amount that is claimed in that matter, insofar as if the Court has to the power to award a lesser amount, that it is equally equipped with the power to award a higher amount. It is that principle which applies with equal force to the Appeal Court and though I do not dispute that a Court would normally not permit a party to ask for enhancement unless an Appeal or Crosshttps://hcservices.ecourts.gov.in/hcservices/ Objections have been filed but there could be a very small category of cases in which the Court would make

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an exception, the reason being that the essence of doing justice requires that a Court will not refuse a relief only because of a technical or a procedural bar. I need to amplify here that if the technicalities are upheld, the result would be doing injustice insofar as the party will be left with a compensation lesser than what a fair evaluation entitles the party to. Again, I do not on the basis of the law as enunciated by the Courts in the decisions set out by me above, subscribe to the view that there exists any bar in the way of this Court exercising such powers. The powers do exist under Order 41, Rule 33, Civil Procedure Code and more importantly, such powers can certainly be exercised under section 151, Civil Procedure Code in the interest of justice.”

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Applying the above decision, in Tamil Nadu State Transport Corporation v. Vasantha and Ors. , 2006 (3) ACJ 1917: 2006 (1) TN MAC 336 Justice Arumuga perumal Adithyan has enhanced compensation, exercising power under Or. 41, R. 33, CPC and Section 151, CPC.”

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(ii) In Tamil Nadu State Transport Corporation v. Saroja and Ors., reported in 2008 (1) TNMAC 352, this Court has considered the same issue and the said point is answered as follows:

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“6. On point:

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The learned counsel for the respondents/claimants placing reliance on Order XLI, Rule 33 of C.P.C. and the various decisions emerged thereunder would pray that the compensation might be enhanced even though no crossobjection has been filed by the claimants, whereas the learned counsel for the appellant - Transport Corporation would cite the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R. Swaminathan & Ors. , 2006 (2) ACC 701 (SC), and develop his arguments to the effect that unless there is a cross objection, the question of enhancing the compensation would not arise. Hence, it is just and necessary to refer to the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R. Swaminathan & Ors. , 2006 (2)ACC 701 (SC). An excerpt from it would run thus:

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“Apparently the first respondent claimant was satisfied with the Tribunal's Award as he did not file any Appeal there against to the High Court. Nonetheless, being aggrieved by the Single Judge's judgment, the claimant filed a Letters Patent Appeal before the Division Bench of the High Court. This Appeal was allowed and by the impugned judgment the High Court has awarded total compensation amounting to Rs.7,44,000/- under different heads with a direction for payment of inte-rest at 18% from the date of Petition. The appellant-Insurance Company is aggrieved thereby and is in Appeal before us.

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https://hcservices.ecourts.gov.in/hcservices/ The issue that arises in this case is, whether the Division Bench of the High Court was justified in increasing the compensation amount beyond the amount awarded

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by the Tribunal despite the fact that the Award of the Tribunal was not at all challenged by the claimant. The only reason given by the Division Bench of the High Court for doing so is:

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“In this connection, we may observe that we are aware of the fact that we are enhancing the compensation even though the injured has not claimed it. But, the question is covered by catena of decisions justifying enhancement of compensation even if cases where the injured has not preferred an Appeal, provided the circumstances of the case wa-rrants the same.”

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To say the least, this was a very facial way of interfering with the award when no interference was called for. We called upon the learned Counsel on both sides to show us at least one case (out of the catena of judgments referred to in the impugned judgment) in support of this proposition. Learned counsel frankly confessed that there was none. On the other hand, the learned Counsel for the appellant drew our attention the judgment of this Court in Banarsi v. Ram Phal , 2003 (2) SLT 258: 2003 (9) SCC 606, which supports the proposition that in an Appeal filed by the defendant laying challenge to the grant a smaller relief, the plaintiff as a respondent cannot seek a higher relief if he had not filed an Appeal on his own or had not taken any cross-objection. In the present Appeal it would appear that the claimant neither Appealed against the award of compensation passed by the Tribunal, nor filed any cross-objection in the First Appeal filed by the Insurance Company. Thus, we are satisfied that the Division Bench of the High Court wholly erred in increasing the compensation amount beyond the amount awarded by the Tribunal in the Appeal filed by the Insurance Company.”

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A mere perusal of the excerpt from the said decision would clearly indicate that the Hon'ble Apex Court in that decision has not laid down as a universal rule of interpretation of Order 41, Rule 33 of C.P.C. Taking into consideration, the method and manner in which the Division Bench of this Court in the Letters Patent Appeal, without citing adequate reasons and precedents, enhanced the compensation amount to an extent of Rs. 7,44,000/- with 18% interest from that of Rs. 3,00,000/awarded by the Single Bench of the same Court, the Hon'ble Apex Court found fault with it.

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Furthermore, the above excerpt also would reveal that without even relying upon any precedent, the Division Bench of this Court, simply enhanced the compensation and that too to the extent of double that of what the Single Judge of this Court ordered. It is also clear that when the Hon'ble Apex Court wanted a precedent in that regard, the learned counsel for the appellant therein cited only the decision of the Hon'ble Apex Court in Banarsi v. Ram Phal , 2003 (2) SLT 258: 2003 (9) SCC 606. As such, in the https://hcservices.ecourts.gov.in/hcservices/ peculiar facts and circumstances of that case, the Hon'ble Apex Court felt that the power under order 41, Rule 33 of

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C.P.C. invoked by the High Court and that too in a case where such an enhancement was not at all warranted, looked askance at it. It is therefore explicite that the Hon'ble Apex Court in the cited decision has not laid down the law that even in a fit case, the High Court should not invoke Order 41, Rule 33 of C.P.C. in the absence of filing cross Appeal. Furthermore under Order 41, Rule 33, there are earlier decisions of the Hon'ble Apex Court, which could be cited as under:

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(i) Municipal Board, Mount Abu v. Hari Lal , 1988 ACJ

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(ii) Dangir v. Madan Mohna , AIR 1988 SC. 54.

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(iii) M.D. Pallavan Transport Corporation Ltd., v. Kalavathi, 1998 (1) ACJ 151.

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(iv) State of Punjab v. Bakshish Singh , 1998 (8)

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S.C.C. 222.

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The perusal of the aforesaid Judgments of the Hon'ble Apex Court would clearly highlight that without filing cross Appeal, the respondents in the Appeal could pray for reliefs and that the High Court under Order 41, Rule 33 could grant such reliefs also. This Court in several cases adhering to the aforesaid decisions of the Hon'ble Apex Court held that under Order 41, Rule 33 of C.P.C., this Court could enhance the compensation in appropriate cases. An excerpt from the decision of this Court in Managing Director, Thanthai Periyar Transport Corp., Villupuram v. Sundari Ammal and four Others reported in 1999 (2) CTC 560 would run thus:

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“Unfortunately, in the instant case, there is no cross-objection. Therefore, it would be essential, in this context, to consider whether this Court has got powers to enhance the amount of compensation, in the event of coming to the conclusion that the award was on the lower side, even though there is no cross-objection by the claimants.

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In Dangir v. Madan Mohan , AIR 1988 S.C. 54 and M.D., Pallavan Transport Corporation Ltd., v. Kalavathi , 1998 (1) A.C.J 151, it is held that this Court has got power to enhance the compensation, even though the claimants had not filed any cross-objection against the award seeking for higher compensation, if this Court finds that the amount awarded by the Tribunal is not just and adequate.

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As pointed out by the Apex Court in State of Punjab v. Bakshish Singh , 1998 (8) S.C.C. 222, the reading of the provision would make it clear that the Appellate Court has got wide power to do complete justice between the parties and which enables this Court to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any Appeal or cross-objection.

¶96

https://hcservices.ecourts.gov.in/hcservices/ The Apex Court in Dhangir v. Madan Mohan, A.I.R. 1988 S.C. 54, be referring Order 41, Rule 33, would make the following observation:

¶97

“The Appellate Court could exercise the power under Rule 33 even if the Appeal is only against a part of the decree of the lower Court. The Appellate Court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any Appeal or objection. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The Appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The words ?as the case may be require? used in Rule 33, Order 41 have been put in wide terms to enable the Appellate Court to pass any order or decree to meet the ends of Justice. What then should be the constraint? We do not find many, we are giving any liberal interpretation. The rule itself is liberal enough. the only constraints that we could see may be these: That the parties before the lower Court should be there before the Appellate Court. The question raised must properly arise out of judgment of the lower Court. If these two requirements are there, the Appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It is true that the power of the Appellate Court under S. 33 is discretionary. But, it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities.”

¶98

And then the Division Bench of this Court in the decision in The Managing Director, Annai Sathya Transport Corporation Ltd., Dharmapuri v. Janardhanam and 7 others , 2000 (2) CTC 272 placing reliance on the decision of the Hon'ble Apex Court held a similar view that without cross Appeal Order 41, Rule 33 of C.P.C. could be invoked in appropriate cases. An excerpt from it would run thus:

¶99

“At this stage, learned counsel appearing for the respondent/claimants would submit that the Tribunal has awarded interest only from the date of the Judgment and not from the date of the petition. The learned counsel for the respondents/claimants would submit that even though no Appeal has been filed by the respondents/claimants or no cross-objections have been filed by them, this Court has discretionary power by virtue of Order 41, Rule 33 of Code of Civil Procedure and also in view of the rulings of the Supreme Court in Dhangir v. Madan Mohan , AIR 1988 SC 54 to grant the proper relief. Of course, the Apex Court has pointed out in clear and categorical terms and the power conferred under Order 41, Rule 33 on the Appellate Court is discre-tionary, and then it must be used in proper case using the judicial discretion to render justice. The Apex Court in United India Insurance Co., Ltd., v. Narendra Pandu-rang Kadam and others , 1995 (1) SCC 320 has clearly laid down that the rate of interest must be awarded from the date of the petition and not from the date of the https://hcservices.ecourts.gov.in/hcservices/ Judgment.”

¶100

Over and above that the decision of the Hon'ble Three Judges? Bench of the Hon'ble Apex Court, in Nagappa v. Gurudayal Singh and others , 2003 ACJ 12: 2004 (2) TN MAC 398 (SC), could be cited here. An excerpt from it would run thus:

¶101

“Firstly, under the provisions of Motor Vehicles Act, 1988 (hereinafter referred to as ?the M.V. Act?), there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if Tribunal/Court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. Only embargo is - it should be 'just' compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the M.V. Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Under the proviso to subsection (1), all the legal representatives of the deceased who have not joined as the claimants are to be impleaded as respondents to the application for compensation. Other important part of the said Section is subsection (4) which provides that ?the Claims Tribunal shall treat any report of accidents forwarded to it under subsection (6) of Section 158 as an application for compensation under this Act?. Hence, Claims Tribunal in appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no specified amount is claimed.”

¶102

(iii) In Tamil Nadu State Transport Corporation v. Pothumponnu [CMA(MD)No.714 of 2009, dated 05.08.2009], this Court, held as follows:

¶103

“17. Notice can be issued to the opposite parties/respondents only in case where their rights are going to be affected be way of variation/reduction. In this case, the claimants are going to be benefited. Hence, no notice is necessary in the appeal. When the Tribunal commits a mistake that too a material mistake, this Court cannot close its eyes and decide the matter mechanically. When the mistake is noticed by this Court, this Court has got power to do away with it, even while dismissing the appeal at the admission stage itself. The presence of the respondent is not a must. When there is a case https://hcservices.ecourts.gov.in/hcservices/ for admission, the matter can be admitted and notice can be ordered. When there is no case made out for

¶104

admission, the appeal deserved to be dismissed. While dismissing, the material irregularity committed by the Tribunal can be set right by awarding suitable amounts to the respondents without notice to them. The presence of the claimants or absence does not make any difference. Even if they are present and they do not bring it to the notice of this Court about the irregularity, this Court can always remedy the same suo motu under Order XLI Rule 33 of the Code of Civil Procedure and Section 173 of the Motor Vehicles Act and invoking Articles 227 of the Constitution of India. Moreover, Sections 163 and 166 are beneficial provisions of the Motor Vehicles Act aimed at consoling and compensating the victims of the accident. This Court's approach should be humane in nature not whittled down by technicalities. The powers of the Court are wide enough to do complete justice.”

¶105

24. In the light of the above discussion and decisions, we wish to add atleast 30% of the income drawn, at the time of death, under the head, future prospects and accordingly, compute the loss of contribution to the family. As stated supra, the monthly income has been determined as Rs.14,000/-. 30% of the same is Rs.4,200/-. The annual income, for the purpose of loss of dependency is Rs.18,200/-. At the time of accident, as per the entries made in Ex.P9 – Post-mortem Certificate, the deceased was aged about 46 years, and determination of the age, for the purpose of computing the loss of dependency, is fortified in Fakeerappa v. Karnataka Cement Pipe Factory reported in 2004 (4) LW 20 and The Managing Director, Tamilnadu State Transport Corporation, Madurai v. Mary [2005 (5) CTC 515].

¶106

25. The annual income of the deceased is Rs.2,18,400/-. In the year 2012, the ceiling limit for levy of Income-Tax is Rs.2,00,000/-. Deducting the same, the balance taxable income is Rs.18,400/-. In 2012-13, the rate of income-tax on the taxable income above Rs.2,00,000/- till Rs.5,00,000/- is 10%. Hence, Rs.1,840/- per annum, has to be deducted towards income-tax. As per the decision in Sarla Verma v. Delhi Transport Corporation Ltd., reported in 2009 (2) TNMAC 1, for the age group of persons, between 45 and 50, '13' is the multiplier. If '13' multiplier is applied, the total income-tax works out to Rs.23,920/-. As we have already reduced the income from Rs.14,875/- to Rs.14,000/- for the purpose of calculation and considering the quantum of compensation, awarded under other heads, the amount worked out for income-tax is not deduced from total compensation.

¶107

26. Number of dependents are four. Hence, after deducting 1/4 th towards the personal and living expenses of the deceased and after applying '13' multiplier, the loss of dependency works out to Rs.21,29,400/- (Rs.18,200/- x 12 x 13 x ¼). A sum of Rs.1,00,000/awarded under the head, loss of consortium is sustained. As rightly contended by the learned counsel for the claimants, the compensation of Rs.1,50,000/- awarded to the children and mother, https://hcservices.ecourts.gov.in/hcservices/ towards loss of love and affection, requires to be enhanced and accordingly, it is enhanced to Rs.2,00,000/-. Compensation of

¶108

Rs.25,000/- and Rs.10,000/- respectively, towards the funeral expenses and transportation, is just and reasonable. However, as the Tribunal has not awarded any compensation under the head, damage to clothes and articles, a sum of Rs.1,000/- is awarded under the said head.

¶109

27. Thus, after taking note of future prospects, the revised compensation, now determined by this Court is Rs.24,66,400/- and it is apportioned as hereunder: Loss of Dependency : Rs.21,29,400/Loss of Consortium : Rs. 1,00,000/Loss of Love and Affection : Rs. 2,00,000/Funeral Expenses : Rs. 25,000/Transportation : Rs. 10,000/Damages to clothes & Articles : Rs. 2,000/--------------------Total : Rs.24,66,400/---------------------

¶110

The Claims Tribunal has awarded compensation of Rs.20,25,375/-. Consequently, there shall be an increase of quantum of compensation to the tune of Rs.4,41,025/-. Enhanced compensation is apportioned to claimants, as Rs.7,50,000/- to the wife, Rs.6,50,000/- each to the children and Rs.4,16,400 to the mother, with proportionate interest, at the rate fixed by the Tribunal.

¶111

28. Insofar as the challenge to the quantum of compensation of Rs.34,81,200/-, with interest, at the rate of 7.5% per annum, from the date of claim, till payment, awarded to the injured in C.M.A. No.2197 of 2015 (M.C.O.P.No.208 of 2012), is concerned, this Court is inclined to consider the testimony of PW.3, Dr.D.V.Gandhi, who has examined the respondent/claimants, with reference to medical records, which is as follows:

¶112

“jUkg [ hp khtl ; lk ; . ghyf ; nfhL tl ; lk ; . Fk ; kD}h ; m" ; ry ; . gh! ; rpfk ; fpuhkk ; . vd ; w Kfthpapy ; trpj ; JtUk ; bghparhkp vd ; gthpd kfd ; Rkhh ; 23 taJs ; s gp/Kdpag ; gd ; vd ; gtUf ; F fle ; J 08/07/2012k njjp XT{h ; cj ; jdg ; gs ; sp nuhl ; oy ; cs ; s rhdkht [ mUfpy ; Vw ; gl ; l rhiy tpgj ; J fha' ; fSf ; fhf. muR kUj ; Jtkid XT{hpy ; KjYjtp rpfpr ; irg ; bgw ; Ws ; s tptuj ; ij mth ; tha ; K : yk ; Twpfpwhh ; / gpd ; dh nky ; rpfpf ; irf ; fhf bg' ; fShpy ; cs ; s jdpahh ; ! ; gh ; ! kUj ; Jtkidapy ; 08/07/2012 Kjy ; 30/07/2012 tiu cs ; nehahspahf , Ue ; J rpfpr ; irg ; bgw ; wjpy ; . mtUf ; F 1) ,lJ ,Lg ; g [ K : l ; oy ; gPkh vYk ; gpd ; fGj ; J gFjp Kwpt [ / 2) tyJ bjhil vYk ; ghfpa gPkhpd ; eL gFjp Kwpt [ / 3) Kfj ; jpy ; bkf ; rpy ; yh vd ; w nky ; jhil vYk ; g [ bkz ; lgpy ; vYk ; g [ Kwpt [ / 4) tapw ; wpy ; Vw ; gl ; l Cik fhaj ; jpw ; F mjdhy ; Vw ; gl ; l ! ; gPypd ; vd ; w cWg ; gpy ; Vw ; gl ; l fpHpe ; j fhaj ; jpw ; Fk ; mnj kUj ; Jtkidapy ; 08/07/2012k ; njjp mtru rpfpr ; irahf tapw ; wpy ; fpHpj ; J ! ; gpypd ; mfw ; wg ; gl ; lJk ; . 12/07/2012k njjp tyJ gf ; f fPH ; jhil vYk ; g [ Kwpt [ f ; F gpnsl ; bghUj ; jp mWit rpfpr ; ir bra ; Jk ; . 11/07/2012k ; njjp tyJ bjhil gPkh ; eLgFjp Kwpt [ f ; F

¶113

https://hcservices.ecourts.gov.in/hcservices/ ; ; ; [ [ ; ; ;

¶114

Mzp bghUj ; jpa [ k ; rpfpr ; ifg ; bgw ; w tptuk ; rpfpr ; ir tpLg ; g [ r rhd ; wpjH ; K : yk ; bjhpfpwJ/

¶115

ehd ; ,tiu fle ; j 16/09/2013k ; njjp ghpnrhjid bra ; Jk ; kw ; Wk rpfpr ; ir tpLg ; g rhd ; wpjH bg' ; fSh ! ; gh ; ! jdpahh kUj ; Jtkidapy ; bfhLf ; fg ; gl ; lij goj ; Jk ; . mtUf ; F tyJ ,Lg ; g [ K : l ; L gFjp. tyJ bjhil gPkh ; gFjp. Kfj ; jpy ; nky ; jhil bkz ; lgpy ; Kwpt [ f ; Fk ; Ez ; fjph ; bra ; Jg ; ghh ; j ; jjpy ; . ,jdhy ; , tUf ; F Kfk ; tpfhukhf fhzg ; gLfpwJ/ kw ; Wk ; fodkhd czt [ bghUl ; fs ; foj ; J bkd ; W jpz ; gjpy ; rpukk ; Vw ; gLfpwJ/ ,tuhy Kd ; g [ nghy ; tptrha ntiyfs ; TVS CNC Machine Operator ntiy bra ; a ,ayhJ/ kw ; Wk ; tyJ ,Lg ; g [ K : l ; L Kwpt [ . TyJ bjhil gPkh Kwpt [ ,itfshy ; mjpf J}uk ; elf ; ft [ k ; . mjpf neuk ; epw ; ft [ k ; . khog ; gofs ; Vw/ ,w' ; f. jiuapy ; mkut [ k ; . Fj ; Jfhy ; nghl ; L cl ; fhUtjpYk ; rpukk ; Vw ; gLfpwJ/ mof ; fo rspgpf ; ft [ k ; . jiytyp. JiyRw ; wy ; Vw ; go tha ; g ; g [ s ; sJ/ ,tUf ; F Vw ; gl ; Ls ; s epue ; jukhd Cd' ; fis murpdh ; bf$l ; gg ; spnfc&d ; gotk ; 2gp d ; K : ykhf/ , e ; jpad ; bkof ; fy ; ft [ rpypy ; jug ; gl ; l epue ; ju Cdk ; fzf ; fpLk Kiwia gpd ; gw ; wp epue ; ju Cdk ; fzf ; fplg ; gl ; Ls ; s gl ; oay ; , j ; Jld ; ,izf ; fg ; gl ; Ls ; sJ/ ”

¶116

29. Upon perusal of the X-Rays, PW.2, Doctor, has found that the respondent/claimant had sutained fractures in the right femur, right hip and thigh and maxilla, due to which, there was disfiguration in the face. He has opined that the injured has difficulty to munch and eat food, there would be difficulty to walk long distance, stand for long time, squat on the floor, climb stairs, bear weight and to do work, as before as CNC Machine Operator. He has assessed the whole body disablement at 67%, for the fracture of right femur, mandible fracture of maxilla, and for removal of spleen.

¶117

30. Perusal of Ex.P5 – Discharge Summary, issued by SPARSH Hospital, Bangalore, shows that the respondent/claimant was inpatient, between 08.07.2012 and 30.07.2012. Details of the final diagnosis, treatment given, local examination, course in the hospital and the condition of the claimant, at the time of discharge, as stated in the Discharge Summary, are as follows: FINAL DIAGNOSIS (i) Right femur neck fracture with shaft of Mid 1/3^rd fracture. (ii) Pan facial trauma with communicated maxilla and mandible fracture. TREATMENT GIVEN: Exploratomy heparotomy, Splenectomy on emergency was done on 08.07.2012. ORIF of right parasymphysis + mid palate, Lefort III fracture + left orbital floor reconstruction were done on 12.07.2012. IMF wet guiding elastics. https://hcservices.ecourts.gov.in/hcservices/ Right femur CRIF with 10x420mm PF nail or 11/07/2012.

¶118

LOCAL EXAMINATION: Abdomen:Splenic contusion/maceration involving mid and lower portion with reduced diaphragmatic movements. Liver contusion in left lobe 3.2x3.1 C.M. Moderates hem peritoneum. Lacerated Wound over the scalp. Face:Multiple lacerations over the forehead, cheek and chin. Diffuse Periorbital swelling present. Crepitus over bilateral maxilla. Oral cavity vertical laceration in midline extending from incisor to soft palate communitted maxilla, mandible. Right femur fracture. Right hip and thigh:External rotation attitude of right hip. Severe tenderness over hip and thigh. Abnormal mobility of right thigh. Hip ROM: painful, restricted. No distal NVD INVESTIGATIONS: C.T. Face showed: Right parasymphiseal fracture mandible. Bilateral maxillary wall and mid line fracture. Frontal fracture. X-Ray of Pelvis withboth hips AP showed: Right femur neck displaced fracture. X-Ray of right femur AP/lateral view showed: Right femur neck fracture (garden type IV)

¶119

USG Abdomen showed: Splenic and liver laceration. C.T.Head showed:

¶120

Small effuse of contusions in bilateral basi frontal region.

¶121

Small extradul hematoma in left frontal region.

¶122

COURSE IN THE HOSPITAL: Mr.Muniyappan aged 21 years was admitted with the above mentioned history. The nature of injury and the proposed surgery including the need, its advantages, disadvantages, possible consequences, outcomes and complications were expalined to the patient and his attendants. He was prepared for surgery with an informed consent.

¶123

On 08.07.2012:

¶124

General Surgeon Procedure: Exploratory heparotomy, splenectomy on emergency was done.

¶125

11.07.2012 Neuro surgeon procedure: Elective tracheostomy was done. Ortho surgeon procedure:

¶126

Right femur CRIF with 10x420 reconstruction nail was done.

¶127

On 12.07.2012, Maxilla facial surgery: ORIF of right parasymphasis + Mid palate, Lefort III fracture + left orbital floor reconstruction were done. Post operative period was uneventful and he was treated with analgesics, antibiotics and limb elevation.

¶128

CONDITION AT DISCHARGE: Patient afebrile, pain free. REVIEW: On 25.08.2012 in OPD”

¶129

31. Extract of Ex.P5 – Discharge Summary makes it clear that the respondent/claimant has sustained mandible fracture in maxilla, for which, he has underwent maxilla facial surgery, ORIF of right parasymphasis + Mid palate, Lefort III fracture + left orbital floor reconstruction. He has also sustained right femur neck fracture, with shaft of Mid 1/3 rd fracture. For the head injuries, CT Scan has been taken. Scan has revealed, s mall effuse of contusions in bilateral basi frontal region and small extradul hematoma in the left frontal region. The respondent has also suffered splenic contusion, for which, on emergency, splenectomy has been done on 08.07.2012. Removal of spleen is evident.

¶130

32. In Ravichandran v. The Managing Director, Pallavan Transport Corporation Ltd., reported in 2004 (2) CTC 30, the appellant therein, has sustained fracture of ribs, injury in the hands and spleen has been also removed. Considering the nature of injuries, particularly, removal of spleen, the Doctor therein, has assessed the disablement as 30%. In an endevour to appreciate, as to whether, the assessment of disability, for removal of spleen, as opined by the Doctor therein, was correct or not, a Hon'ble Division Bench of this Court, has referred to Medical Dictionaries, to find out, what is spleen and its functions are, and the same are reproduced hereunder:

¶131

“(a) Dorland's Illustrated Medical Dictionary, 29th Edition, which has been published after consulting 27 noted Doctors in various fields describes 'spleen' as, "a large glandlike but dectless organ situated in the upper part of the abdominal cavity on the left side and lateral to the cardiac end of the stomach. It is of a flattened oblong shape and about 125 mm long, the largest structure in the lymphoid system; it has a purple color and a pliable consistency, and is distinguished by two types of tissue: red pulp and while pulp. It disintegrates the red blood cells and sets free the hemoglobin, which the liver converts into bilirubin; gives rise to new red blood cells during fetal life and in the newborn; serves as a reservoir of blood, produces lymphocytes and plasma cells, and has other important functions, the full scope of which is not entirely determined." (Emphasis supplied) (b) Stedman's Medical Dictionary, Illustrated 23rd edition would describe 'spleen' as, "a large vascular lymphatic organ lying in the upper part of the abdominal cavity on the left side, between the stomach and diaphragm. ..... The spleen is a blood-forming organ in early life. It is a storage organ for red corpuscles, and, because of the large number of macrophages, acts as a blood filter." (Emphasis supplied) (c) Oxford & IBH New Medical Dictionary would define 'spleen' as, "a large mass of lymphatic tissue between the fundus of the stomach and the diaphragm that functions in phagocytosis, production of lymphocytes, and https://hcservices.ecourts.gov.in/hcservices/ blood storage. It has an outer capsule of dense connective tissue and smooth muscle fibres, from which

¶132

trabeculae extend into the pulp consisting of lymphocytes and a network of venous sinuses."

¶133

Ultimately, in Ravichandran's case, the Hon'ble Division Bench, at Paragraphs 12 and 13, has observed as follows:

¶134

“12. it may be a person can survive even without a spleen. But onething is clear that it is performing various functions in the human body system. In fact, according to Dorland's Medical Dictionary, it has other important functions and the full scope of which is not entirely determined.

¶135

13. That being so, we are of the view that it cannot be said that fixation of disability at 30% is on the higher side.”

¶136

In the above reported case, the Doctor therein, has assessed the extent of disability at 30%, but the Tribunal therein, did not quantify the compensation, for loss of earning capacity.

¶137

33. In K.Gowthami (Minor) v. New India Assurance Company Ltd., [S.L.P.(C)Nos.17215 to 17220 of 2010], one of the injured in the accident, K.Gowthami, has sustained grievous injuries in the stomach, and her spleen has been removed. That apart, there was damage to the internal digestive and reproductive organs, nerve injury in the left hand, shoulder and severe internal injury in the chest and skull. Considering the nature of injuries, oral and documentary evidence, the Claims Tribunal has fixed the disability at 40%, for the removal of spleen and awarded compensation, under various heads. On appeal, by observing that removal of spleen would not diminish the prospects of marriage, the High Court, set aside the award of Rs.1,00,000/- for the loss of proper marital alliance. Compensation awarded under other heads, was also reduced. Observing that the decision of the learned single Judge was narrow and pedantic, the Hon'ble Apex Court, fixed the disablement at 40%, for removal of spleen and awarded disability compensation of Rs.80,000/-.

¶138

34. Thus, it is evident from the Hon'ble Division Bench decision of this Court in Ravichandran v. The Managing Director, Pallavan Transport Corporation Ltd., reported in 2004 (2) CTC 30 and the Hon'ble Apex Court in K.Gowthami (Minor) v. New India Assurance Company Ltd., [S.L.P.(C)Nos.17215 to 17220 of 2010], removal of spleen would result in disability. In the light of the above, we adopt 40% permanent disability for removal of spleen.

¶139

35. Though the Claims Tribunal has fixed 67% as the extent of disablement, on the basis of Ex.P25 – Disability Certificate, issued by PW.3, Doctor, who has split up the extent of disablement as 52% and 15% respectively. The fact that there would be some variation in the extent of assessment between one Doctor and another, cannot be ruled out. The respondent has sustained a displaced fracture, at the neck of right femur, for which, reconstruction nailing has been done. Considering the nature of said injury, certainly, there would be some difficulty in the movement of hip and thigh, which consequently would affect his work. PW.3, Doctor, has also deposed https://hcservices.ecourts.gov.in/hcservices/ that the respondent/claimant would find it difficult to walk long distance, stand for long time, climb staircase, squat on floor and

¶140

to do work, as before.

¶141

36. In respect of the injuries in the face, viz., right parasymphiseal fracture mandible, bi lateral maxillary wall and mid line fracture and frontal fracture, on 12.07.2012, the respondent/claimant had underwent maxilla facial surgery: ORIF of right parasymphasis + Mid palate, Lefort III fracture + left orbital floor reconstruction. PW.3, Doctor, has further opined that there is disfiguration in the face and that the respondent/claimant would find it difficult to munch and eat hard substances. Considering the above and the likelihood of variation in assessment, we deem it fit to fix the extent of functional disablement, at 60%.

¶142

37. As rightly contended by the learned counsel for the appellant-Insurance Company, there is no evidence, as to whether, the respondent/claimant was terminated from TVS Motor Company Ltd., Haritha Industrial Area, Hosur and that he was not re-employed. But the fact remains that PW.3, Doctor, has deposed that due to the removal of spleen, there is a possibility of reduction of immunity. At the time of accident, the respondent/claimant was under apprenticeship as CNC Machine Operator, in the abovesaid Company.

¶143

38. Considering the nature of work, extent of permanent disablement, due to the removal of spleen, disablement due to the fracture, at the neck of right femur, right hip, and thigh and maxilla, testimony of PW.1, respondent/claimant, as regards the difficulties expressed by him, to walk long distance, stand for long time, climb staircase, squat on floor and to do work, as before, duly supported by the evidence of PW.3, Doctor and corroborated by medical records, one cannot be rule out the possibility of the loss of earning capacity to the injured.

¶144

39. In Royal Sundaram Allianz General Insurance Co. Ltd., v. Ramasamy reported in 2013 (2) TNMAC 436, (Judgement of Mr. Justice S.MANIKUMAR), the injured therein, had suffered injuries in abdomen (CT Scan showing shattered spleen with haemoperitoneum) and Chest (CT Scan showing bilateral clavicle fractured ribs 1, 2, 3(R), 8, 9 (L) lung contusions) and fractures in the right Zygomatic arch and right Vertebra and aged 27 years, stated to be engaged in Computer Designing (DTP Works). Following a decision in National Insurance Co. Ltd., v. A.Marimuthu reported in 2011 (1) TNMAC 729, this Court sustained the multiplier method applied by the Claims Tribunal. In A.Marimuthu's case (cited supra), considering the nature of injuries, ie., complex fracture in the left hand, chest ribs, damage to spleen, fracture to left humerus and 7 th & 8 th ribs of left side rib cage, The Hon'ble Mr. Justice R.Sudhakar, while accepting the multiplier method adopted the Claims Tribunal, applied multiplier for 50% disablement.

¶145

40. Though as observed earlier, there is no proof that the respondent/claimant has lost his entire earning capacity, due to termination from his employment in TVS or it is not a case of any employment, however, having regard to the decsion of the Apex Court in K.Gowthami (Minor) v. New India Assurance Company Ltd., [S.L.P. (C)Nos.17215 to 17220 of 2010], this Court deems it fit to fix the https://hcservices.ecourts.gov.in/hcservices/ disability at 40%, for removal of spleen.

¶146

41. On the said aspect of just and reasonable compensation, few decisions are considered, as follows:

¶147

( i) In R.D.Hattangadi v. M/s.Pest Control (India) Pvt. Ltd., reported in AIR 1995 SC 755, wherein, the Apex Court held as follows:

¶148

"In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of disability caused. But all the aforesaid elements have to be viewed with objective standards."

¶149

(ii) In Common Cause, A Registered Society v. Union of India reported in 1999 (6) SCC 667, at Paragraph 128, held as follows:

¶150

“The object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The elements of damage recognised by law are divisible into two main groups : pecuniary and non- pecuniary. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what Mcgregor says, is generally more important than money: it is the best that a court can do."

¶151

(iii) In yet another decision in Divisonal Controller, KSRTC v. Mahadeva Shetty and another reported in (2003) 7 SCC 197, at Paragraph 12, the Supreme Court has held that,

¶152

"Broadly speaking, in the case of death the basis of compensation is loss of pecuniary benefits to the dependents of the deceased which includes pecuniary benefits to the dependents of the deceased which includes pecuniary loss, expenses etc. and loss to the estate. The object is to mitigate hardship that has been caused to the legal representatives due to the 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 the value of human life and the measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor should it be a source of profit for the person in whose favour it is awarded."

¶153

At Paragraph 15 of the said judgment, the Supreme Court has held that,

¶154

"Measure of damages cannot be arrived at by https://hcservices.ecourts.gov.in/hcservices/ precise mathematical calculations. It would depend upon the particular facts and circumstances, and

¶155

attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness, and non-arbitrariness. If it is not so, it cannot be just."

¶156

(iv) In Nizam Institute of Medical Sciences v. Prasanth S.Dhananka reported in (2009) 6 SCC 1 = 2010 ACJ 38 (SC), a Hon'ble three-Judge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs.15 lakhs to Rs.1 crore, the Hon'ble Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:

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“We must emphasise 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 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-`-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.” (emphasis supplied)

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In B.Kothandapani v. Tamil Nadu Transport Corporation Ltd., reported in 2011 (5) SCC 420, the Supreme Court held that an injured is entitled to claim compensation under both heads, disability and loss of earning capacity. The relevant passage is extracted hereunder:

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“ It is true that the compensation for loss of earning power/capacity has to be determined based on https://hcservices.ecourts.gov.in/hcservices/ various aspects including permanent injury/disability. At the same time, it cannot be construed that

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compensation cannot be granted for permanent disability of any nature. For example, take the case of a nonearning member of a family who has been injured in an accident and sustained permanent disability due to amputation of leg or hand, it cannot be construed that no amount needs to be granted for permanent disability. It cannot be disputed that apart from the fact that the permanent disability affects the earning capacity of the person concerned, undoubtedly, one has to forego other personal comforts and even for normal avocation they have to depend on others. In the case on hand, two doctors had explained the nature of injuries, treatment received and the disability suffered due to partial loss of eye-sight and amputation of middle finger in the right hand and we have already adverted to the avocation, namely, at the time of accident, he was working as Foreman in M/s Armstrong Hydraulics Ltd. Taking note of his nature of work, partial loss in the eye sight, loss of middle finger of the right hand, it not only affects his earning capacity but also affects normal avocation and day-to-day work."

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In Rajkumar v. Ajay Kumar reported in 2011 (1) SCC 343, the Supreme Court considered the co-relation between the physical disability suffered by the injured and the loss of earning capacity, resulting from it. At Paragraphs 10, 11 and 13, the Apex Court observed as follows:

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"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.

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What requires to be assessed by the Tribunal is the effect of the permanently 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). https://hcservices.ecourts.gov.in/hcservices/ We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that

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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 Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567).

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Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood."

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On the aspect of assessment under the head, loss of future earning, at paragraphs 4 to 17, in Raj Kumar's case, the Apex Court held as follows:

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"General Principles relating to compensation in injury cases:

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The provision of the Motor Vehicles Act, 1988 ('Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376, R. D. Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 and Baker vs. Willoughby - 1970 AC 467).

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https://hcservices.ecourts.gov.in/hcservices/ 5. The heads under which compensation is awarded in personal injury cases are the following:

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Pecuniary damages (Special Damages)

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(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

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(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

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(a) Loss of earning during the period of treatment;

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(b) Loss of future earnings on account of permanent disability.

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(iii) Future medical expenses.

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Non-pecuniary damages (General Damages)

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(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).

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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. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case.

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Assessment of future loss of earnings due to permanent disability

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Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some https://hcservices.ecourts.gov.in/hcservices/ part of the body on account of the injury, which will cease to exist at the end of the period of treatment and

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recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.

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The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.

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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 https://hcservices.ecourts.gov.in/hcservices/ (percentage) of permanent disability will result in award of either too low or too high a compensation. What

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requires to be assessed by the Tribunal is the effect of the permanently 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 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 Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567).

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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.

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Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so https://hcservices.ecourts.gov.in/hcservices/ that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is

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amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may. 11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an 12 active explorer and seeker of truth who is required to hold an enquiry into the claim' for determining the just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in https://hcservices.ecourts.gov.in/hcservices/ different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the

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Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.

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The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability. 13. We may now summarise the principles discussed above:

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(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

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(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).

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(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

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(iv) The same permanent disability may result in https://hcservices.ecourts.gov.in/hcservices/ different percentages of loss of earning capacity in different persons, depending upon the nature of

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profession, occupation or job, age, education and other factors.

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The assessment of loss of future earnings is explained below with reference to the following illustrations:

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Illustration `A': The injured, a workman, was aged 30 years and earning Rs.3000/- per month at the time of accident. As per Doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows:

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a) Annual income before the accident : Rs.36,000/-.

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b) Loss of future earning per annum (15% of the prior annual income) : Rs. 5400/-.

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c) Multiplier applicable with reference to age : 17

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d) Loss of future earnings : (5400 x 17) : Rs. 91,800/-

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Illustration `B': The injured was a driver aged 30 years, earning Rs.3000/- per month. His hand is amputated and his permanent disability is assessed at 60%. He was terminated from his job as he could no longer drive. His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. The Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows:

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a) Annual income prior to the accident : Rs.36,000/-.

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b) Loss of future earning per annum (75% of the prior annual income) : Rs.27000/-.

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c) Multiplier applicable with reference to age : 17

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d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/-

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Illustration `C': The injured was 25 years and a final year Engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70%. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning capacity was also assessed as 70%. The calculation of compensation will be as follows:

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a) Minimum annual income he would have got if had been employed as an Engineer : Rs.60,000/-

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b) Loss of future earning per annum (70% : Rs.42000/of the expected annual income)

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c) Multiplier applicable (25 years) : 18

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d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/-

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[Note : The figures adopted in illustrations (A) and (B) are hypothetical. The figures in Illustration (C) however are based on actuals taken from the decision in Arvind https://hcservices.ecourts.gov.in/hcservices/ Kumar Mishra (supra)].

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After the insertion of section 163A in the Act

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(with effect from 14.11.1994), if a claim for compensation is made under that section by an injured alleging disability, and if the quantum of loss of future earning claimed, falls under the second schedule to the Act, the Tribunal may have to apply the following principles laid down in Note (5) of the Second Schedule to the Act to determine compensation :

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"5. Disability in non-fatal accidents :

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The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:-

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Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.

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PLUS either of the following :-

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(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or

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(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.

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Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923."

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We may in this context refer to the difficulties faced by claimants in securing the presence of busy Surgeons or treating Doctors who treated them, for giving evidence. Most of them are reluctant to appear before Tribunals for obvious reasons either because their entire day is likely to be wasted in attending the Tribunal to give evidence in a single case or because they are not shown any priority in recording evidence or because the claim petition is filed at a place far away from the place where the treatment was given. Many a time, the claimants are reluctant to take coercive steps for summoning the Doctors who treated them, out of respect and gratitude towards them or for fear that if forced to come against their wishes, they may give evidence which may not be very favorable. This forces the injured claimants to approach `professional' certificate givers whose evidence most of the time is found to be not satisfactory. Tribunals should realize that a busy Surgeon may be able to save ten lives or perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one accident case. Many busy Surgeons refuse to treat medico-legal cases out of apprehension that their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in coercing the Doctors to attend the Tribunal to give evidence. The solution lies in recognizing the valuable time of Doctors and accommodating them. Firstly, efforts should be made to record the evidence of the treating Doctors on commission, after https://hcservices.ecourts.gov.in/hcservices/ ascertaining their convenient timings. Secondly, if the Doctors attend the Tribunal for giving evidence, their

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evidence may be recorded without delay, ensuring that they are not required to wait. Thirdly, the Doctors may be given specific time for attending the Tribunal for giving evidence instead of requiring them to come at 10.30 A.M. or 11.00 A.M. and wait in the Court Hall. Fourthly, in cases where the certificates are not contested by the respondents, they may be marked by consent, thereby dispensing with the oral evidence. These small measures as also any other suitable steps taken to ensure the availability of expert evidence, will ensure assessment of just compensation and will go a long way in demonstrating that Courts/Tribunals show concern for litigants and witnesses. Assessment of compensation.

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In this case, the Tribunal acted on the disability certificate, but the High Court had reservations about its acceptability as it found that the injured had been treated in the Government Hospital in Delhi whereas the disability certificate was issued by a District Hospital in the State of Uttar Pradesh. The reason given by the High Court for rejection may not be sound for two reasons. Firstly though the accident occurred in Delhi and the injured claimant was treated in a Delhi Hospital after the accident, as he hailed from Chirori Mandi in the neighbouring District of Ghaziabad in Uttar Pradesh, situated on the outskirts of Delhi, he might have continued the treatment in the place where he resided. Secondly the certificate has been issued by the Chief Medical Officer, Ghaziabad, on the assessment made by the Medical Board which also consisted of an Orthopaedic Surgeon. We are therefore of the view that the High Court ought not to have rejected the said disability certificate."

¶224

Reverting to the case on hand, though 60% is fixed as the functional disablement on account of the fractures in the face, neck of femur and for removal of spleen, in the absence of any proof of loss of entire future income, this Court deems it fit to consider the decision in United India Insurance Company v. Veluchamy reported in 2005 (2) CTC 36, wherein, at Paragraph 11(c), a Hon'ble Division Bench of this Court, held as follows:

¶225

"(c) (1) If there is categorical evidence that because of injury and consequential disability, the injured lost his employment or avocation completely and has to be idle till the rest of his life, in that event loss of income or earning may be ascertained by applying “multiplier method” as provided under Second Schedule to the Motor Vehicles Act, 1988."

¶226

Reverting to the case on hand, for assessment of loss of further earning capacity, taking into consideration, the avocation and educational qualification of the injured, relating to the field of mechanical engineering, where he may have to stand for hours, climb staircase, and do work. On the facts and circumstances of the case and for the reasons, stated supra, we fix 40%, as the whole body disablement for computing the loss of earning capacity. https://hcservices.ecourts.gov.in/hcservices/ 46. O n the basis of the documents, Ex.P7 – Diploma Course Completion Certificate, Ex.P8 – Pay Slip, Ex.P10 – Income Tax Pan

¶227

Card and Ex.P11 – Bank Pass Book, the Claims Tribunal has fixed the monthly income of the injured as Rs.10,000/-. Being educationally qualified and employed as an Apprentice Technician in TVS Motor Company Ltd., Haritha Industrial Area, Hosur, it cannot be contended that the respondent/claimant would not have any future prospects in earning.

¶228

47. For the reasons, stated in the foregoing paragraphs, for addition of certain sum, under the head, future prospects and considering the age of the injured, 22 years, it would be appropriate to add up 50% of the income under the head, future prospects. Income for the purpose of loss of future earning is Rs.15,000/- (Rs.10,000/- + Rs.5,000/-). Following the decision in Sarla Verma v. Delhi Transport Corporation reported in 2009 (2) TNMAC 1 (SC), multiplier of '18' is adopted. Hence, loss of earning capacity to the extent of 40% disablement, works out to Rs.12,96,000/- (Rs.15,000/- x 12 x 18 x 40/100).

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48. Going through the award, this Court is of the view that compensation can be awarded under both the heads, disability, as well as loss of future earning, by considering the gravity of the nature of injuries, sustained by the appellant and the extent of disablement. Hence, a sum of Rs.1,20,000/- is awarded under the disability.

¶230

From the dictionary meaning, it could be deduced that spleen is an organ of the immune system. It helps to fight infections and further damage and also old cells out of the blood stream. Removal of spleen would affect the immunity system, with an increase in the risk of infection. Dictionary meaning of the spleen and removal thereof, have been considered by the Hon'ble Division Bench in Ravichandran v. The Managing Director, Pallavan Transport Corporation Ltd., reported in 2004 (2) CTC 30. Considering the effect of removal of spleen and the testimony of PW.3, Doctor, it would be appropriate to award 'just compensation' under the head, loss of expectancy, for which, a sum of Rs.2,00,000/- is awarded under the said head.

¶231

Compensation of Rs.8,10,000/- awarded under the head, medical expenses is duly supported by Ex.P6 – Medical Bills and it is not seriously disputed. The respondent/claimant would have experienced severe pain and suffering at the time of accident and during the period of treatment and convalacence. Pain is one, which is experienced momentarily, but it may continue even for a longer period, depending upon the gravity and situs of the injury, whereas, suffering is loss of happiness, on account of the same. Pain has no difference between Rich and Raff. Compensation of Rs.2,00,000/awarded under the head, pain and suffering, awarded under the head, pain and suffering, can be justified, having regard to multiple injuries and the nature of injuries, sustained by the respondent/claimant, viz.,(i) Right femur neck fracture with shaft of Mid 1/3^rd fracture. (ii) Pan facial trauma with communicated maxilla and mandible fracture, (iii) Right parasymphiseal fracture mandible, (iv) Bilateral maxillary wall and mid line fracture, (v) Frontal fracture and (vi) Splenic and liver laceration. Period of hospitalisation, convalacence and suffering, which he had undergone, https://hcservices.ecourts.gov.in/hcservices/ due to the removal of spleen and the likelihood of accelarated complications.

¶232

Compensation of Rs.60,000/- towards loss of earning, for the period of six months, Rs.25,000/- towards nutrition and Rs.30,000/- towards attendant charges, do not require intervention. Though the Claims Tribunal has intended to award Rs.1,00,000/towards future medical expenses, awarded only Rs.25,000/-. The respondent has not adduced any proof for incurring any medical expenses, after discharge and hence, considering the nature of injuries and period of treatment, this Court, is not inclined to enhance the same and the sum awarded by the Tribunal is sustained.

¶233

A sum of Rs.60,000/-, awarded under the head, loss of social enjoyment, otherwise called as loss of amenities, cannot be said to be unjustified, in terms of the Full Bench decision of this Court in Cholan Roadways Corporation Ltd., Kumbakonnam vs. Ahmed Thambi and others reported in 2006 (4) CTC 433, wherein, it explained the term, "loss of amentities" as "deprivation of the ordinary experiences and enjoyment of life and includes loss of the ability to walk or see, loss of a limb or its use, loss of congenial employment, loss of pride and pleasure in one's work, loss of marriage prospects and loss of sexual function."

¶234

As rightly pointed out that the Claims Tribunal has not awarded any compensation under the head, transportation. Considering the nature of injuries, fracture of right femur, removal of spleen, surgeries, convalacence and the requirement for periodical review, the respondent/claimant would have certainly engaged a motorist vehicle and incurred expenses for transportation, for which, this Court deems it fit to award a sum of Rs.10,000/-. A sum of Rs.1,000/- is awarded under the head, damages to clothes and articles.

¶235

In the light of the revised calculation, consequent to the reduction of extent of disablement, the total compensation works out to Rs.28,37,400/-, as apportioned hereunder: Loss of earning capacity : Rs.12,96,000/Disability : Rs. 1,20,000/Loss of expectancy : Rs. 2,00,000/Pain and suffering : Rs. 2,00,000/Medical expenses : Rs. 8,10,400/Future Medical Expenses : Rs. 25,000/Nutrition : Rs. 25,000/Loss of Earning : Rs. 60,000/Attendant Charges : Rs. 30,000/Loss of Amentities : Rs. 60,000/Transportation : Rs. 10,000/Damages to clothes and articles:Rs. 1,000/-

¶236

--------------------Total : Rs.28,37,400/---------------------

¶237

The Claims Tribunal has awarded compensation of Rs.34,81,200/-. Consequently, there shall be a reduction of quantum of compensation to the tune of Rs.6,43,800/-.

¶238

https://hcservices.ecourts.gov.in/hcservices/ 55. Hence, C.M.A.No.2196 of 2015 is dismissed and C.M.A.No.2197 of 2015 is partly allowed. The appellant-Insurance

¶239

Company is directed to deposit the balance amount, with proportionate accrued interest and costs, to the credit of M.C.O.P.Nos.106 and 208 of 2012 respectively, on the file of the learned Motor Accident Claims Tribunal (Subordinate Court), Hosur, less the statutory deposit, within a period of four (4) weeks from the date of receipt of a copy of this order. On such deposit being made, the respondents/claimants are permitted to withdraw their respective shares, by making necessary applications before the Tribunal. No costs. Consequently, connected Miscellaneous Petitions are closed.

¶240

Sd/-
Asst.Registrar (CS IV )
/true copy/
Sub Asst. Registrar
skm
To
The Motor Accidents Claims Tribunal
(Subordinate Court), Hosur.
2 ccs to Mr.Pa.Sudesh Kumar, Advocate, Sr. 53576, 53575
2 ccs to Mr.N. Vijayaraghavan, Advocate, Sr. 54166, 54167
C.M.A.Nos.2196 and 2197 of 2015
NM (CO)
kk 28/12

¶241

https://hcservices.ecourts.gov.in/hcservices/

New India Assurance Co. Ltd. v. Shankunthala

Case brief

What is this about?

What did the court decide?

New India Assurance Co. Ltd. v. Shankunthala

Case brief

What is this about?

What did the court decide?

What the court decided

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