Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9393 OF 2014
(ARISING OUT OF SLP (CIVIL) NO. 33883 OF 2013)
BASAPPA S/O SANGANABASAPPA
BAHVIKATTI .....APPELLANT(S)
VERSUS
T RAMESH S/O TANGAVELU & ANR. .....RESPONDENT(S)
O R D E R
Leave granted.
2) Unwrapping the events, which have led to the filing of the instant
appeal, depict the following scenario:
JUDGMENT
On 23.09.2007, the appellant after completion of his Goundi
(working at building construction sites) work, was returning from
Navanagar, Karnataka on his Motorcycle bearing Reg. No. KA
29/J – 731. He was driving slowly and cautiously on the left side
of the road. At that time a bus bearing Reg. No. KA 29/6967
came from opposite direction in a high speed and in rash and
negligent manner as to endanger human life, dashed into the
Motorcycle of the appellant. This happened near the Simikeri
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Bypass Cross on Gaddanakeri Hubli Road at about 20:30 hours.
Due to the said accident, the appellant sustained grievous injuries
on his head and all over his body. He was immediately admitted
to District Government Hospital, Bagalkot where he got
preliminary treatment, whereafter he was shifted to the S.H.K.
Hospital, Bagalkot for further treatment. After getting some
treatment in the said hospital, the appellant had to be shifted
again to Dr. Kerudi Hospital, Bagalkot because of grievous head
injuries and there he was treated by Dr. Mohan Wamaske,
Neurologist. He underwent a surgical operation in the said
hospital where he remained as indoor patient for 10 days.
Notwithstanding this treatment, the appellant could not be
completely cured and has suffered permanent disability of 58% to
the whole body.
JUDGMENT
3) We may record at this stage that the aforesaid facts pertaining to
accident caused due to rash and negligent driving of the bus and
the nature and extent of injuries suffered by the appellant stand
established before the Motor Accident Claims Tribunal (for short
'MACT'). It would also be worthwhile to mention that against the
Driver of the Bus, a case under Sections 279 and 334 of the
Indian Penal Code was also registered at the Kaladgi Police
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Station. After completing the investigation, even the chargesheet
has been filed against the Driver, though the outcome of the said
case is not known from the records.
4) Being a victim of the said accident resulting into aforesaid serious
injuries and incapacitation of his body, the appellant filed the claim
petition under Section 166 of Motor Vehicle Act claiming
compensation of Rs.15,00,000/-. This petition filed before the
MACT at Bagalkot was registered as M.V.C. No.296/2002. In this
petition, the appellant had impleaded respondent No.1 herein,
who was the driver of the vehicle and respondent No.2, Manager,
Reliance General Insurance Co. Ltd., which had insured the
offending vehicle. The appellant examined himself as PW-1 and
narrated the details of the incident. Another significant and
material witness produced by him was Dr. Sanjeev S Kalasoor
JUDGMENT
(PW-3), who deposed about the injuries suffered by the appellant
and produced copy of Disability Certificate dated 11.02.2009 and
other medical records. The respondents also led their evidence.
Arguments were heard. The said case culminated in the decision
dated 25.11.2010 that was rendered by the MACT recording a
categorical and definite finding to the effect that the accident in
question was caused due to the rash and negligent act of the
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driver. The Tribunal, thus, allowed the petition but awarded a
compensation of Rs.93,800/- with interest at the rate of 6% p.a.
from the date of accident till the date of realisation. Different
heads under which the said compensation was awarded, thereby
arriving at a aforesaid figure of Rs.93,800/- are as under:
Amount (Rs.)
1. Pain and sufferings : 10,000/-
2. Medical expenses : 35,000/-
3. Loss of future income : 46,800/-
4. Loss of amenities, diet, nutrition and
attendant charges
: 2,000/-
Total : 93,800/-
5) The appellant was not satisfied with the poor amount of
compensation and, thus, approached the High Court of
Karnataka, Dharwad Bench by filing appeal i.e. MFA No.
21150/2011 (MV). The High Court has enhanced the
JUDGMENT
compensation to Rs.2,59,500/- vide judgment dated 11.03.2013.
The breakup of compensation awarded by the High Court under
different heads is as follows:
Amount (Rs.)
1. Pain and suffering : 25,000/-
2. Incidental expenses : 10,000/-
3. Medical expenses : 35,000/-
4. Loss of income during laid up period : 12,000/-
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5. Loss of amenities : 20,000/-
6. Loss of future income : 1,57,500/-
Total : 2,59,500/-
6) Still not satisfied, the present appeal has been preferred by the
appellant in this Court for enhancement of compensation.
7) From the perusal of the judgment of the High Court, it gets
revealed that the Tribunal as well as the High Court has accepted
the injuries certificate produced by the doctor. On going through
this Certificate along with Disability Certificate, CT Scan Reports,
Medical Bills and Case-Sheets etc., which were produced by the
appellant on record, the High Court has recorded that the
appellant has sustained grievous injuries in his head and all over
the face. As per the testimony of the doctor (PW-3), CT Brain
reveals acute subdural left front temporal hemorrhagic with
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midline shift and mass effect. The doctor examined the appellant
as late as on 11.02.2009 and found that the appellant's medical
condition of on and off headache, giddiness and vertigo impaired
memory, altered speed and imbalance while walking continuous
to persist. He had operative scar left side of scalp (head) motor
aphasia and positive Romberg's. The Courts below have also
accepted the fact that the appellant is suffering from permanent
disability of 58% to the whole body.
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8) Having regard to the aforesaid injuries suffered by the appellant in
the said accident and the number of days for which the appellant
was treated and underwent physical and mental pain and
suffering, the High Court enhanced the compensation under this
head from Rs.10,000/-, as awarded by the Tribunal, to
Rs.25,000/-. In so far as reimbursement of medical expenses is
concerned, it is maintained at Rs.35,000/- inasmuch as that is the
actual amount spent by the appellant, which is evident from the
medical bills produced by him. However, considering that the
appellant was indoor patient in a private hospital for more than 10
days, Rs.10,000/- is awarded for incidental expenses such as
conveyance, nourishment and attendant charges. As regards
loss of income during laid up period, the amount of Rs.12,000/-
has been awarded on the ground that the appellant had been
JUDGMENT
earning Rs.125/- per day i.e. Rs.3,750/- per month and as he was
under treatment and rest for about three months, loss of income
was to the tune of Rs.12,000/-.
9) In so far as compensation in respect of loss of amenities is
concerned, the High Court has enhanced the compensation from
Rs.2,000/- to Rs.20,000/- considering the disability reflected in the
evidence produced by the appellant, as according to the High
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Court, the appellant will have to undergo discomfort and
unhappiness in his future life because of the said accident.
10) Major head of compensation is loss of future income. Here, the
High Court has observed that though the doctor has assessed
permanent disability at 58% to the whole body, it may be an
exaggeration and justice would be met if functional disability is
taken at 25%. On this basis, multiplier of 14 is applied, keeping in
view of the age of the appellant, and loss of future income is
assessed at Rs.1,57,500/- and this figure is worked out by
applying the following formula:
Rs.3,750/- x 25% x 12 x 14
11) The learned counsel for the appellant made grievance only on
three counts. In the first instance, he pleaded for increasing the
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amount of physical and mental pain and suffering. His vehement
submission was that loss of future income is not assessed
appropriately by the High Court. He pointed out that when the
permanent disability was 58%, for the purposes of calculating the
loss of future income, it had to be taken at 100%. Another plea of
the appellant was that interest should have been granted at the
rate of 9% instead of 6%. We find force in the submissions of the
learned counsel on all these aspects.
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12) We are of the opinion that once the High Court had itself accepted
the evidence of PW-3 the doctor who had treated the appellant
and issued the Disability Certificate as credible and reliable, there
was no reason to treat the 'functional disability' at 25%. The High
Court should have acted upon the said Disability Certificate taking
the permanent disability at 58% which is to the whole body. It is
to be borne in mind that before the incident, the appellant was hail
and healthy who enjoyed robust health as it has emerged from
the record that he was working as Goundi i.e. at the building
construction sites. Because of the permanent disability of the
nature described above, PW-3 has very categorically stated in his
testimony that the appellant is unable to walk and stand for a long
time and is not capable of doing heavy work. It is also testified
that he is suffering general weakness as well. This would lead us
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to the conclusion that the appellant suffers 85% functional
disability. On arriving at this conclusion, we are bolstered by the
judgment of this Court in the case of Raj Kumar v. Ajay Kumar &
Another , (2011) 1 SCC 343 wherein this aspect is lucidly
explained with impeccable erudition, as is discerned from the
following passages of the said judgment, reading whereof would
amply demonstrate that the nuances are so exhaustively dealt
with, leaving no scope for restating, much less refuting or refining:
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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
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.
JUDGMENT
X X X
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
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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
and Yadava Kumar v. National Insurance Co.
Ltd., (2010) 10 SCC 341)
JUDGMENT
12. 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
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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.
13. 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 disability (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.
JUDGMENT
14. For example, if the left hand of a claimant is
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
per cent, if he is neither able to drive or do
Civil Appeal No. of 2014 Page 11 of 16
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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 be 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.
19. We may now summarise the principles
discussed above:
( i ) All injuries (or permanent disabilities arising
from injuries), do not result in loss of earning
capacity.
( 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 the
percentage of loss of earning capacity is the
same as the percentage of permanent disability).
( 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 to the extent of
permanent disability. The loss of earning
capacity is something that will have to be
JUDGMENT
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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.
13) The principle laid down in the aforesaid judgment is recently
followed in Syed Sadiq and others v. Divisional Manager,
United India Insurance Company Limited , (2014) 2 SCC 735.
After quoting paras 11 and 13 from Raj Kumar (supra), the Court
worked out the compensation treating the disability at 85%,
whereas the High Court had determined the disability at 65%.
Following discussion ensued in this behalf:
“7. Further, the appellant claims that he was
working as a vegetable vendor. It is true that
a vegetable vendor might not require mobility
to the extent that he sells vegetables at one
place. However, the occupation of vegetable
vending is not confined to selling vegetables
from a particular location. It rather involves
procuring vegetables from the wholesale
market or the farmers and then selling it off in
the retail market. This often involves selling
vegetables in the cart which requires 100%
mobility. But even by conservative approach,
if we presume that the vegetable vending by
the appellant claimant involved selling
vegetables from one place, the claimant
would require assistance with his mobility in
bringing vegetables to the marketplace which
otherwise would be extremely difficult for him
with an amputated leg. We are required to
be sensitive while dealing with manual labour
JUDGMENT
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cases where loss of limb is often equivalent
to loss of livelihood. Yet, considering that the
appellant claimant is still capable to fend for
his livelihood once he is brought in the
marketplace, we determine the disability at
85% to determine the loss of income”
14) Applying the aforesaid test to the facts of the present case, as
already pointed out above, the appellant was working as Goundi
i.e. at the building construction sites. Such a work requires good
health and extreme fitness as it is a strenuous task which involves
lot of physical activities. The appellant has suffered permanent
disability of 58% to the whole body. It has also come on record
he suffers from general weakness and is not capable of doing
heavy work. He is even unable to walk and stand for a long time.
For this reason, we have already mentioned that his functional
disability is to be taken at 85% as was done in Syed Sadiq and
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others (supra).
15) For the purposes of calculating the compensation, the formula
contained in Note (5) of the Second Schedule to the Motor
Vehicle Act, 1988 is to be applied which is as under:
“5. Disability in non-fatal accidents. - The
following compensation shall be payable in case
of disability to the victim arising out of non-fatal
accidents:
Loss of income, if any, for actual period of
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disablement not exceeding fifty-two weeks.
Plus either of the following:
(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
(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.
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 the
Workmen's Compensation Act, 1923.”
16) Applying the aforesaid formula, loss of future income would work
out to Rs.5,35,500/- (Rs.3,750/- x 85% x 12 x 14). Similarly, for
pain and suffering, the amount of Rs.25,000/- awarded by the
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High Court appears to be on lower side. We increase this amount
to Rs.60,000/-.
17) We are also of the view that the appellant should get interest at
the rate of 9% per annum from the date of claim petition till the
payment having regard to the ratio of the judgment in the case of
Municipal Corporation of Delhi, Delhi v. Uphaar Tragedy
Victims Association and others , (2011) 14 SCC 481.
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18) In this manner, the total compensation which would be payable to
the appellant comes to Rs.6,72,000/- as against Rs.2,59,500/-,
awarded by the High Court. We enhance the compensation
accordingly with the direction that the appellant shall also be
entitled to interest at the rate of 9% per annum on the aforesaid
amount from the date of claim petition till the date of payment.
19) Appeal is allowed in the aforesaid manner with cost of
Rs.25,000/-.
. ............................................J.
(J. CHELAMESWAR)
.............................................J.
(A.K. SIKRI)
NEW DELHI;
OCTOBER 10, 2014.
JUDGMENT
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