Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.85988599 OF 2022
(Arising out of Special Leave Petition (C) Nos.1173011731 of 2021)
T. J. PARAMESHWARAPPA @
PARAMESHWARAPPA @
J.T. PARAMESHWARAPPA @
TALALKENA GOWDRA PARAMESHWARAPPA .....APPELLANT
VERSUS
THE BRANCH MANAGER,
NEW INDIA ASSURANCE CO. LTD. & ORS.
…..RESPONDENT(S)
J U D G M E N T
NAGARATHNA J.
Leave granted.
2. These appeals assail the correctness of the judgment and award
Signature Not Verified
passed by the High Court of Karnataka at Bengaluru in M.F.A. No.48
Digitally signed by
VISHAL ANAND
Date: 2022.11.18
17:48:53 IST
Reason:
of 2017 connected with M.F.A. No.7972 of 2016 (MV) dated
1
16.10.2020. M.F.A. No.48 of 2017 was filed by the insurer – New India
Assurance Co. Ltd., while M.F.A. No.7972 of 2016 (MV) was filed by
the insured claimant, both being aggrieved by the judgment and
award dated 16.09.2016 passed by the Ist Addl. Senior Civil Judge &
IVth MACT at Chitradurga in MVC No.1091 of 2015. By the said
judgment and award, the Motor Accidents Claims Tribunal
(hereinafter referred to as “the Tribunal”, for the sake of convenience)
awarded a sum of Rs.21,08,400/ (Rupees Twentyone lakhs eight
thousand and four hundred only) with interest at 8% p.a. from the
date of filing of the claim petition till date of deposit. This was in
respect of an accident that occurred on 15.05.2015 in which the
appellant claimant was injured. Being aggrieved by the reduction in
the total compensation by the High Court from Rs.21,08,400/ to
Rs.7,37,604/ with interest at the rate of 6% p.a. from the date of
petition till its realization, the injured claimant has filed these
appeals.
3. It is no longer in dispute that on 15.05.2015 at about 03:35 p.m.
appellant claimant was travelling in the Tanker Lorry bearing No.KA
01AG2266 as a cleaner from Kidlike to Hassan along with driver P.
Jagadeesh. Near the RTO Office, Chitradurga, on NH4 flyover, the
driver of the tanker lorry drove the same in a rash and negligent
manner and with high speed and dashed into the hind portion of
2
another lorry bearing No.KA16B6247, as a result of which,
appellant claimant sustained comminuted fracture of tibia bones of
both legs and other injuries on his body. He was shifted to B.M.C.
Hospital and Research Centre, Chitradurga where he took treatment
as an inpatient from 15.05.2015 to 13.06.2015 and thereafter took
followup treatment as an outpatient. During treatment, he underwent
surgery of both legs and rod and screws were inserted.
4. It is contended by the appellant that as a result of the accident
he became permanently disabled and due to fracture of tibia bones of
both legs and other injuries, he is unable to discharge his duties as a
cleaner in the tanker lorry and hence, he has suffered both financially
and physically. That he is also unable to perform his daily routine
activity as he has sustained permanent disability. That he was
working as a cleaner in a tanker lorry and was earning Rs.18,000/
per month and due to the disability, he is unable to earn any income.
He therefore, filed the claim petition seeking compensation of Rs.20
lakhs on account of the injuries sustained by him in the road traffic
accident. On contest, the Tribunal by its judgment and award dated
16.09.2016, awarded a sum of Rs.21,08,400/ together with interest
at 8% p.a. from the date of petition till date of deposit, under the
following heads:
“Sl. No. Description Amount in Rs.
1. Pain and suffering 5,00,000/
3
2. Medical and incidental Expenses 4,00,000/
3. Permanent disability
(40% of Rs.6,500 x 12 x 17) 5,30,400/
4. Future Medical Expenses 2,00,000/
5. Conveyance and attendant Charges 2,00,000/
6. Future Prospects 78,000/
(12 Months x 6,500)
7. Marriage prospects 2,00,000/
___________
Total 21,08,400/”
In fact, the compensation awarded by the Tribunal was over and
above what was sought by the appellant – claimant in the claim
petition i.e. Rs.20,00,000/.
5. Being aggrieved by the said award, both the insurer as well as
insured claimant filed the aforementioned appeals before the High
Court. The High Court noted that the claimant had suffered lacerated
rd
wound over his forehead and fracture of mid 1/3 tibia of right and
left legs, as per ExhibitP6. The High Court also noted that the award
of compensation was on the higher side and hence, High Court
reduced the compensation to Rs.7,37,604/ under the following
heads:
Sl. No. Description Amount in
Rs.
1. Permanent disability
(20% of Rs.9,000 x 12 x 17) 3,67,200/
4
2. Pain and suffering 50,000/
3. Medical and incidental Expenses 1,20,404/
4. Future Medical Expenses 50,000/
5. Conveyance charges 30,000/
6. Income during laid up period 45,000/
7. Loss of amenities 75,000/
__________
Total 7,37,604/
No compensation was awarded towards loss of marriage
prospects and loss of future prospects. Consequently, the appeals
were disposed of in the above terms by the High Court.
6. We have heard the learned counsel for the appellant claimant
and respondent – insurer and perused the material on record.
7. The sum and substance of the contention of learned counsel for
the appellant is that the assessment of permanent physical disability
should be at 54% but the High Court had erroneously reduced it at
20% which was 34% less and therefore, these appeals have been
preferred. It was further contended that the appellant was earning
Rs.18,000/ per month as a cleaner of the tanker lorry but the High
Court has assessed his notional income as Rs.9,000/ per month
only, which is on the lower side. It was further contended that owing
to the fracture of both legs, the appellant is unable to carry out his
5
duties as a cleaner of the tanker lorry and the percentage of disability
has been erroneously assessed at 20% while the doctor had assessed
the permanent disability of 54%. Hence, the appellant has sought
enhancement of compensation.
8. Per contra , learned counsel for the respondent – insurer
supported the judgment of the High Court and submitted that these
appeals ought to be dismissed as being devoid of merit.
Before proceeding to consider the appeals on merits, it would be
useful to refer to the judgment of this Court in Raj Kumar vs. Ajay
Kumar and Another (2011) 1 SCC 343, authored by Raveendran, J.
wherein the general principles relating to compensation in injury
cases; assessment of loss of future earnings on account of permanent
disability; assessment of compensation in injury cases, have been
discussed at length. The relevant paragraphs of the said judgment are
extracted as under:
| “5. | The provision of the Motor Vehicles Act, 1988 (“the | |
|---|---|---|
| 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 the 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 |
6
| 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. Subramania | ||||||||||||||||||||||
| Iyer | v. | T. Kunhikuttan Nair | [(1969) 3 SCC 64 : AIR | ||||||||||||||||||||
| 1970 SC 376] , | R.D. Hattangadi | v. | Pest Control | ||||||||||||||||||||
| (India) (P) Ltd. | [(1995) 1 SCC 551 : 1995 SCC (Cri) | ||||||||||||||||||||||
| 250] and | Baker | v. | Willoughby | [1970 AC 467 : | |||||||||||||||||||
| (1970) 2 WLR 50 : (1969) 3 All ER 1528 (HL)]. |
| 6. The heads under which compensation is awarded in<br>personal injury cases are the following: | ||
|---|---|---|
| Pecuniary damages (Special damages) | ||
| (i) Expenses relating to treatment,<br>hospitalisation, medicines, transportation,<br>nourishing food, and miscellaneous<br>expenditure. | ||
| (ii) Loss of earnings (and other gains)<br>which the injured would have made had<br>he not been injured, comprising: | ||
| (a) Loss of earning during the period of<br>treatment; | ||
| (b) Loss of future earnings on account<br>of permanent disability. | ||
| (iii) Future medical expenses. | ||
| Nonpecuniary damages (General<br>damages) | ||
| (iv) Damages for pain, suffering and<br>trauma as a consequence of the injuries. | ||
| (v) Loss of amenities (and/or loss of<br>prospects of marriage). | ||
| (vi) Loss of expectation of life (shortening<br>of normal longevity). |
7
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)
7.
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.
Decisions of this Court and the 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.
Assessment of future loss of earnings due to
permanent disability
8. 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 part of the body on account of the injury,
which will cease to exist at the end of the period of
treatment and recuperation. Permanent disability can
be either partial or total. Partial permanent disability
refers to a person's inability to perform all the duties
8
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 accident
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
(“the 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.
9. 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%.
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
9
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, the 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.
11. What requires to be assessed by the Tribunal is
the effect of the permanent disability on the earning
capacity of the injured; and after assessing the loss of
earning capacity in terms of a percentage of the
income it has to be quantified in terms of money, to
arrive at the future loss of earnings (by applying
the standard multiplier method used to
determine loss of dependency). We
may however note that in some cases on appreciation
of evidence and assessment, the Tribunal
may find that the percentage of loss of
earning capacity as a result of the permanent
disability is approximately the same as the percentage
of permanent disability in which
case, of course, the Tribunal will adopt the
said percentage for determination of
compensation. (See for example, the decisions of
this Court in Arvind Kumar Mishra v. New India
Assurance Co. Ltd. [(2010) 10 SCC 254 : (2010) 3
10
| SCC (Cri) 1258 : (2010) 10 Scale 298] and Yadava<br>Kumar v. National Insurance Co.Ltd. [(2010) 10<br>SCC 341:(2010) 3 SCC (Cri) 1285: (2010) 8 Scale<br>567] ) | |
|---|---|
| 12. Therefore, the Tribunal has to first decide whether<br>there is any permanent disability and, if so, the extent<br>of such permanent disability. This means that the<br>Tribunal should consider and decide with reference to<br>the evidence: | |
| (i) whether the disablement is permanent<br>or temporary; | |
| (ii) if the disablement is permanent, whether<br>it is permanent total disablement or<br>permanent partial disablement; | |
| (iii) if the disablement percentage is<br>expressed with reference to any specific<br>limb,then the effect of such disablement of<br>the limb on the functioning of the entire<br>body, that is, the permanent disability<br>suffered by the person. | |
| If the Tribunal concludes that there is no permanent<br>disability then there is no question of proceeding<br>further and determining the loss of future earning<br>capacity. But if the Tribunal concludes that there is<br>permanent disability then it will proceed to ascertain<br>its extent. After the Tribunal ascertains the actual<br>extent of permanent disability of the claimant based<br>on the medical evidence, it has to determine whether<br>such permanent disability has affected or will affect<br>his earning capacity. | |
| 13. Ascertainment of the effect of the permanent<br>disability on the actual earning capacity involves three<br>steps. The Tribunal has to first ascertain what<br>activities the claimant could carry on in spite of the<br>permanent disability and what he could not do as a |
11
| result of the permanent disability (this is also relevant<br>for awarding compensation under the head of loss of<br>amenities of life). The second step is to ascertain his<br>avocation, profession and nature of work before the<br>accident, as also his age. The third step is to find out<br>whether (i) the claimant is totally disabled from<br>earning any kind of livelihood, or (ii) whether in spite<br>of the permanent disability, the claimant could<br>still effectively carry on the activities and functions,<br>which he was earlier carrying on, or (iii) whether<br>he was prevented or restricted from discharging his<br>previous activities and functions, but could<br>carry on some other or lesser scale of activities<br>and functions so that he continues to earn or can<br>continue to earn his livelihood. | ||
|---|---|---|
| xxx | ||
| 19. We may now summarise the principles discussed<br>above: | ||
| (i) All injuries (or permanent disabilities<br>arising from injuries), do not result in loss<br>of earning capacity. | ||
| (ii) The percentage of permanent disability<br>with reference to the whole body of a<br>person, cannot be assumed to be the<br>percentage of loss of earning capacity. To<br>put it differently, the percentage of loss of<br>earning capacity is not the same as the<br>percentage of permanent disability (except<br>in a few cases, where the Tribunal on the<br>basis of evidence, concludes that the<br>percentage of loss of earning capacity is<br>the same as the percentage of permanent<br>disability). | ||
| (iii) The doctor who treated an injured<br>claimant or who examined him |
12
subsequently to assess the extent of his
permanent disability can give evidence
only in regard to 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.
( iv ) The same permanent disability may
result in different percentages of loss of
earning capacity in different persons,
depending upon the nature of profession,
occupation or job, age, education and
other factors.
9. Applying the aforesaid principles to the instant case, it is noted
that the appellant herein let in his evidence as PW1 and his doctor
(Dr. M.S. Rajesh) was examined as PW2. He produced documents at
ExhibitP1 to ExhibitP126 in support of their evidence. On the other
hand, the respondents did not lead any evidence. However, a copy of
the Exhibit R1, i.e., Insurance Policy was exhibited by consent.
10. It is noted that the appellant herein sustained comminuted bone
fracture of tibia on both legs. He was operated upon twice and was
hospitalized for thirtysix days cumulatively. As per PW2 (the doctor
who treated him), there was 54% disability despite the treatment given
to the appellant herein. The appellant was treated as an inpatient
from 15.05.2015 to 13.06.2015. He underwent wound debridement
OR & IF with interlocking nail and on 26.05.2015 secondary suturing
of right leg was done. Later in the year 2016 the claimant was
13
hospitalized from 02.03.2016 to 07.03.2016 and treated with
freshening of the ends of fractured fragments and coticocancellous
bone grafting from the contra lateral iliac crest with partial
fibulectomy done on 03.03.2016. He also took treatment as an
outpatient on 30.06.2015 and 30.12.2015.
11. PW2 doctor, who treated the appellant claimant has assessed
permanent disability of 54% which we find is on the higher side. As
the claimant sustained comminuted fracture of tibia bones of both
legs, we assess the wholebody disability at 30%. We also propose to
enhance the compensation under the heads of pain and suffering due
to two surgeries undergone and future surgeries to be undergone. Also
towards loss of future amenities and towards loss of income during
laid up period for a period of twelve months compensation is
enhanced.
12. In view of the aforesaid evidence let in by the claimant, we
propose to reassess the compensation as under:
Sl. No. Description Amount in
Rs.
1. Pain and suffering 1,00,000/
2. Medical Expenses 1,20,405/
3. Incidental hospital Expenses 35,000/
4. Loss of future earning capacity
(30% of Rs.10,000 x 12 x 17) 6,12,000/
14
5. Loss of income during laid up period
(Rs.10,000 x 12) 1,20,000/
6. Loss of Future amenities 1,00,000/
7. Conveyance and attendant Charges 30,000/
8. Future medical expenses 50,000/
___________
Total Rs.11,67,405/
The aforesaid compensation shall carry interest at the rate of 6%
per annum from the date of filing of the claim petition till realization.
13. In the result, the judgment and award passed by the High Court
is modified by enhancing the award of compensation to the appellant
herein from Rs.7,37,604/ to Rs.11,67,405/which shall carry
interest at the rate of 6% per annum from the date of filing of claim
petition till realization. The amount shall be deposited within a period
of six weeks from the date of receipt of certified copy of this judgment.
On deposit of the said amount, the Tribunal shall deposit a sum of
Rs.3,00,000/ in any nationalized bank for a period of five years. The
appellant shall be entitled to draw periodical interest on the said
deposit. The balance amount shall be paid to the appellant herein.
15
14.
The appeals are allowed in part in the aforesaid terms.
Parties to bear their respective costs.
…………………………………….J
[B.R. GAVAI]
……………………………………...J
[B.V. NAGARATHNA]
NEW DELHI;
th
18 NOVEMBER, 2022.
16