Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4027 OF 2010
(Arising out of SLP (Civil) No.4649 of 2010)
Sri B.T. Krishnappa ..Appellant(s)
Versus
The Divisional Manager, United ..Respondent(s)
Insurance Company Ltd. and another
J U D G M E N T
GANGULY, J.
1.Leave granted
2.This Appeal impugns the order of the High Court of
Karnataka in Miscellaneous First Appeal No. 259 of
2008 dated 20.07.2009, whereby the High Court
enhanced the compensation granted by the tribunal
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to the appellant only to the extent of Rs.34,000/-
without disclosing adequate reasons.
3.This Court finds that the High Court did not
properly consider the case for enhancement. Thus
after condonation of delay, this Court passed an
order dated 05.02.2010 as follows:
“ ….Heard learned counsel for the
petitioner and perused the records.
We are prima facie of the view that the
impugned judgment of the High Court
deserves to be set aside and the matter
remitted to it for fresh disposal of the
Miscellaneous First Appeal filed by the
petitioner because the High Court has
failed to consider the issues relevant for
deciding the cases involving claim for
compensation.
Issue Notice to the Respondents……..”
4.Pursuant thereto show cause notices were issued to
the respondents on 17.2.2010 and service was
complete.
5.The material facts are that appellant was working
as a mason and was aged 50 years at the time of
accident. On the fateful day of 08.01.2006, at
about 4.30 pm, the appellant was crossing the road
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near Deepa Nursing Home, K.R. Puram, when a
motorcycle, with the registered number plate KA-05-
EW-1108 hit him. The motorcycle was being driven by
the second respondent (to be known as ‘R2’
hereinafter) at the time of the accident. As a
result of the accident, the appellant sustained
bone fractures as well as head and other injuries
all over the body. He was taken to the Deepa
Nursing Home, Bangalore where he received first
aid. He was then shifted to Bowring and Lady Curzon
Hospital, Bangalore (to be known as ‘Hospital’
hereinafter) the same day where he was admitted and
received treatment as an inpatient till 21.01.2006.
He continued with the follow up treatments for
about six months after his discharge.
6.The first Respondent Insurance Company, (to be
known as ‘R1’ hereinafter) was also impleaded as a
party as the motorcycle was insured with it.
7.By the award of the Motor Accident Claims Tribunal
(to be known as ‘Tribunal’ hereinafter), the
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appellant was awarded a compensation of
Rs.1,55,000/- with interest @ 7.5%. R1 was made
liable to pay the compensation to the appellant.
8.On appeal, the High Court however enhanced the
compensation by only Rs.34,000/- awarding a total
of Rs.1,89,000/- with interest @ 6% per annum.
9.On a reading of the High Court order, it is clear
that High Court did no consider the appellant’s
case properly. It accepted the Tribunal’s
assessment of the body disability at 20% and
observed that the Tribunal has paid compensation
under the heads “loss of amenities and enjoyment of
life and loss of earnings during laid up period” on
the lower side. However, it awarded an additional
compensation only for future medical expenditures
and did not deal with the aspect of future loss of
earnings at all, which we feel was not a correct
approach.
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10. This Court finds that “incapacity or disability to
earn livelihood would have to be viewed not only in
praesenti but in futuro on reasonable expectancies
and taking into account deprival of earnings of a
conceivable period.” This was laid down by this
Court in Ramesh Chandra vs. Randhir Singh and
others, (1990) 3 SCC 723. In page 726, para 7,
those above quoted observations were made.
11.The Tribunal examined the doctor who supervised
the appellant’s injuries and administered treatment
in the Hospital, Dr. S. Rajanna, as PW2.
12.As per the evidence of PW2, it was proved that the
appellant sustained compound fractures in the tibia
and fibula bone of the right leg. He also suffered
bruises and cuts on his face and some parts of the
body. He had to be operated upon and the operation
was done on 09.01.2006. Even after his discharge,
he was advised follow up treatments and
physiotherapy and also exercise for better movement
of his leg.
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13.In his affidavit dated 23.05.2007 before the
Tribunal, the PW2 states that he examined the
appellant for assessment of the percentage of
disability on 17.04,2007. He recorded that the
appellant’s right leg was shortened as a result of
which he had to walk with a limp. Thus the
appellant was advised to use footwear with a raised
sole and continue with the exercises. The Tribunal
later noted that the shortening of the leg was by
3.5 cms. The High Court should have considered
that appellant, being a mason, these injuries would
cause considerable problem in moving his knee and
ankle. PW2, in the disability certificate clearly
stated:
“
Due to the above mentioned disabilities,
he cannot walk like a normal person,
cannot sit crossed leg, cannot squat,
cannot lift any weight, cannot climb the
stairs without support.
…I am of the opinion that the…disability
is 48% of the (right) lower limb and 48%
disability to the whole body. In view of
this disability, the petitioner cannot do
mason work and cannot do any other manual
work also”
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14.The Tribunal however, in accepting the disability
of the appellant at 48%, refused to accept the
assessment of the doctor that the future loss of
earning will also be at 48%. It opined that
construction work involves many people and the
doctor is not right in concluding that due to the
disability on the right leg, the appellant would
not be able to do construction work. Therefore, the
future loss of earning was assessed at a much
lesser 20%. Since there was no specific evidence
regarding his income, the multiplier method was
used for assessing the compensation.
15.
Although the Tribunal concluded by holding that the
assessment of future loss of earnings should be
made only at 20%, we feel that the High Court,
while making the observation that the Tribunal’s
compensation under the heads “loss of amenities and
enjoyment of life and loss of earnings during laid
up period” was on the lower side, should have given
reasons and made its own assessment under these
heads, since High Court, as the first appellate
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authority, is an authority both on facts and law.
The High Court’s orders starkly lack in any details
on assessment of compensation under these heads.
These areas need proper introspection and a more
sensitive approach as the appellant being a mason
and a workman represents the weaker section of the
community. The appellant had suffered an
irreversible damage to his right leg which will
pose difficulties for him in carrying out his
avocation as a mason. This Court in M/s. Concord of
India Insurance Co. Ltd. vs. Smt. Nirmala Devi &
others , (1979) 4 SCC 365, has observed that:
“ …The jurisprudence of compensation for
motor accidents must develop in the
direction of no-fault liability and the
determination of the quantum must be
liberal, not niggardly since the law
values life and limb in a free country in
generous scales...” [at page 366, para 2 ]
16. In the case of Divisional Controller, KSRTC vs.
Mahadeva Shetty & another, (2003) 7 SCC 197, where
the claimant was also a mason, this Court held
that:
“ …….It has to be borne in mind that
compensation for loss of limbs or life can
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hardly be weighed in golden scales. Bodily
injury is nothing but a deprivation which
entitles the claimant to damages. The
quantum of damages fixed should be in
accordance with the injury. An injury may
bring about many consequences like loss of
earning capacity, loss of mental pleasure
and many such consequential losses. A
person becomes entitled to damages for
mental and physical loss, his or her life
may have been shortened or that he or she
cannot enjoy life, which has been
curtailed because of physical
handicap. The normal expectation of life
is impaired….” [at page 204, Para 15.]
17.Long expectation of life is connected with earning
capacity. If earning capacity is reduced, which is
the case in the present situation, that impacts
life expectancy as well.
18.Therefore, while fixing compensation in cases of
injury affecting earning capacity the Court must
remember:
“ ….No amount of compensation can restore
the physical frame of the appellant. That
is why it has been said by courts that
whenever any amount is determined as the
compensation payable for any injury
suffered during an accident, the object is
to compensate such injury “so far as money
can compensate” because it is impossible
to equate the money with the human
sufferings or personal deprivations. Money
cannot renew a broken and shattered
physical frame.” [See R.D. Hattangadi vs.
Pest Control (India) (P) Ltd. & others ,
(1995) 1 SCC 551, at page 556, para 10]
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19.Further, the Court in the same case also held
that:
“ 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 guesswork, some hypothetical
consideration, some amount of sympathy
linked with the nature of the disability
caused. But all the aforesaid elements
have to be viewed with objective
standards. [at page 557, para 12]
20.Thus, we feel that the appeal needs to be remanded
to the High Court so that it can consider the
matter afresh. The High Court, we expect, will
consider the case of enhancement of compensation to
the appellant in its proper perspective and keeping
in mind the factual aspects of the case and in the
light of the views expressed by this Court in
several judgments, discussed above.
21.The High Court is requested to deal with the
matter with utmost expedition since it concerns
compensating an injured workman. The appeal is
allowed. No costs.
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.....................J.
(G.S. SINGHVI)
.....................J.
(ASOK KUMAR GANGULY)
New Delhi
April 30, 2010
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