S. Manikumar, J.@mdashBeing aggrieved by the quantum of compensation, the appellant-injured has preferred this appeal. Short facts leading to the appeal, are as follows:
In the accident, which occurred on 30.12.2004, the appellant sustained a fracture in the thigh. He has also sustained injuries in the head and other parts of the body. According to him, he was initially treated in Chengalpattu Hospital and, thereafter, taken treatment in Hindu Mission Hospital at Tambaram, between 31.12.2004 and 16.1.2005. Again he was hospitalised in Parvathi Hospital, between 18.1.2005 and 21.1.2005. To prove that he has sustained serious injuries and hospitalised in the above said hospitals, he has produced Exs. P1 to P6 Discharge Summaries.
2. According to the appellant, at the time of accident, he was aged 47 years and a Journalist. He claimed to have earned Rs. 15,000 per month. To prove the avocation and income, Ex. P9 Identity Card and Ex. P10 Salary Certificate, have been produced. Ex. P11 is the copy of the FIR, registered against the driver of the lorry, bearing Registration No. TNG 7223, insured with National Insurance Company Ltd, 2nd respondent herein. A case in Cr. No. 639 of 2004, has been registered on the file of D-3 Guduvancherry Police Station, Kancheepuram.
3. The owner of the vehicle remained ex parte. The 2nd respondent-Insurance Company has disputed the manner of accident and the quantum of compensation claimed under various heads. However, the Claims Tribunal, upon evaluation of pleadings and evidence, held that the driver of the lorry, insured with the 2nd respondent-Insurance Company was negligent in causing the accident and, accordingly, quantified the compensation at Rs. 2,52,162 as hereunder:
4. Seeking enhancement of the quantum of compensation, Mrs. Malar, learned Counsel for the appellant, submitted that when the injured has marked Ex. P9 Identity Card to show that he was a Press Reporter and Ex. P10 Salary Certificate, the Claims Tribunal ought to have fixed the monthly income of the appellant at Rs. 10,000, instead of Rs. 6,000. She further submitted that when the appellant has sustained a fracture of shaft of femur in the left leg and when the same was sought to be fused by surgical process, ORIF, where IL Nailing has been done, by which, plates and screws have been fitted and thereafter, wound debridement and external fixator has been done, which was subsequently removed, the Claims Tribunal ought to have considered that when the appellant was hospitalised for six times, between 3.12.2004 and 16.1.2005; 18.1.2005 and 21.1.2005; 2.3.2005 and 10.3.2005; 5.4.2005 and 9.4.2005; and 25.6.2005 and 26.6.2005, the Claims Tribunal ought to have awarded a higher disability compensation, instead of just Rs. 35,000.
5. Learned Counsel for the appellant also submitted that the compensation of Rs. 15,000 awarded under the head, pain and suffering is less. It is her further submission that the Claims Tribunal ought to have awarded a higher compensation under the head, extra nourishment. She sought for an enhancement of compensation under the head, medical expenses also. For the abovesaid reasons, she prayed for suitable enhancement.
6. Per contra, opposing the enhancement, Mr. J. Chandran, learned Counsel for the National Insurance Company Ltd., submitted that the quantum of compensation awarded by the Tribunal itself is on the higher side. He further submitted that Ex. P7 Medical Bills submitted by the appellant do not tally with the award, under the said head and hence, it requires reduction. He further submitted that the overall quantum of compensation awarded by the Tribunal, cannot be said to be less, warranting any enhancement. For the above said reasons, he prayed for dismissal of the appeal.
Heard the learned Counsel for the parties and perused the materials available on record.
7. Before adverting to the facts of this case, this Court deems it fit to consider the nature of the injuries and treatment. As per Ex. P1 Discharge Summary issued by Hindu Mission Hospital, the appellant was admitted on 31.12.2004 morning. X-Ray of the left thigh revealed a fracture of shaft of left femur at lower 1/3rd. There was no distal neurovascular deficit. Therefore, open reduction and internal fixation (ORIF) has been done. After adequate preparation, a surgery has been performed on 4.1.2005, under anesthesia. The fracture of distal 1/3rd has been exposed and butterfly fragment has been fixed with a screw. A long broad DC plate with cortical screws have been fixed, at the site of the fracture. Antibiotics have been given. The appellant has been kept in post upward for two days. The appellant has been made to stand with a non-weight bearing and walker support. The appellant has been strictly advised not to stand or walk without the doctor''s advice. Dressing has been done and wound has been cleaned up. X-Ray has been taken on 9.1.2001. Since there was loosening of the plates and screws, the appellant has been advised for external fixator for additional stability on 14.1.2005. He has been posted for surgery on 16.1.2005. But the appellant has left the hospital on 16.1.2005, against medical advice.
8. Reading of Ex. P2 Discharge Summary issued by Parvathy Ortho Hospital, Chennai shows that the appellant has been admitted on 18.1.2005 at 12.00 p.m., and discharged on 21.1.2005. Local examination of the left thigh has been done by the Orthopedician and he has recorded in Ex. P2 Discharge Summary, as follows:
No swelling; Deep tenderness (+); Granulation tissue (+); Abnormal mobility and no distal NVD.
After basic preliminary investigations, X-Ray (Lt) Thigh showed fracture shaft of Femur. Patient was treated with Inj. Dalacin 300mg, Tab. Voveran, Tab. Chymoral forte DS, Tab. Ranitac, Cap. Vizylac. Patient recovered. Patient discharged.
9. Reading of Ex. : P3 Discharge Summary from the very same hospital shows that he has been again admitted on 2.3.2005 at 9.00 p.m. This time, examination revealed that "there was no swelling in the left thigh, healed scar, no tenderness and no distal NVD. Again, after preliminary investigations, on 3.3.2005, under anesthesia. UT and PT applied. Closed reduction done. Fracture reduced with C arm. Proximal and distal locking done. Wound closed and dressing done. Patient was treated with IV fluids, antibiotics, analgesics, vitamins and other supportive drugs." The appellant was advised for review on 15.3.2005 for suture removal. He has been discharged on 10.3.2005. Thus, it is evident from Ex. P3 that another surgery has been performed on 3.3.2005.
10. The details of Ex. P4 Discharge Summary from the same hospital, are given hereunder:
The patient, a old case of fracture shaft of femur left side, IL nailing was done duration. Case was seen by Dr. S. Muthukumar (Orthopaedic Surgeon) and advised screw removal. On 6.4.2005 under SA, distal locking screw removal and reapplication done. Patient was treated with TV fluids, antibiotics, analgesics, vitamins and other supportive measures. Post-operative period uneventful. Patient recovered. Patient discharged.
11. Perusal of Ex. P5 discharge summary shows that the appellant has been once again admitted in the same hospital on 25.6.2005/complaining pain and swelling over left knee. The Doctors have recorded as follows:
L/E (Left thigh): Cystic swelling + over left lateral aspect of lower thigh Tenderness+, ROM decreased and painful.
Patient a known case of compound fracture left femur IM Nailing done on 25.6.2005, under short sedation, abscess drained and pus let out. Thorough wash given. Wound kept open and compression bandage applied. Patient was treated with antibiotics, analgesics, vitamins and other supportive measures.
12. Again on 29.6.2005, the appellant has been admitted in the same hospital and that a surgery has been performed on 30.6.2005 for removal of distal screw, under general anesthetic. The details as found in Ex. P6 Discharge Summary, are as follows:
Patient a known case of compound fracture left femur IM. Nailing done 3 months back, now admitted with the complaints of discharging sinus over left thigh. Case was seen by Dr. S. Muthukumar (Orthopaedic Surgeon) and advised distal screw removal. On 30.6.2005 under GA, distal locking screw removal done. Patient was treated with antibiotics, analgesics, vitamins and other supportive measures. Post-operative period uneventful.
13. The details found in the discharges summaries, Exs. P2 to 6, are as follows:
14. Thus, from the discharge summaries, marked before the Claims Tribunal, it is clear that the appellant had underwent four surgeries, i.e., on 3.3.2005, 6.4.2005, 25.6.2005 and 30.6.2005 respectively. As per Ex. P2 Discharge Summary, ORIF has been done, where plates and screws have been fitted and that the appellant has been operated previously with the removal of infected implant and wound debridement and external fixation has been done. Earlier, for removal of external fixator and AK Slab, the appellant has been given two weeks'' time and thereafter, he has been admitted again on 18.1.2005, for further management. As per Ex. P2 Discharge Summary, the period of hospitalisation was between 18.1.2005 and 21.1.2005.
15. As per Ex. P3, the appellant has been hospitalised from 2.3.2005 and during which period, a surgery has been performed on 3.3.2005. For the fourth time, the appellant has been admitted on 5.4.2005 and discharged on 9.4.2005. During hospitalisation, a surgery has been performed on 6.4.2005. On the fifth occasion, he has been hospitalised between 25.6.2005 and 26.6.2005, and that a surgery has been performed on 25.6.2005, under short sedation. From the discharge summaries, it could be seen that he has been again admitted and treated in the same hospital on 29.6.2005 and during hospitalisation, under general anesthetic, a surgery has been performed.
16. Thus, for nearly seven months, the appellant has been suffering from severe pain and experienced all sorts of physical discomfort, due to the gravity of the fracture of shaft femur in the left leg, loosening of the plates and screws, infection at the situs of the injury, improper healing and forced to undergo five surgeries. Certainly, pain, at the time of accident and during the period of surgery and treatment, would be severe and the suffering has lasted for many months. It could be seen from the discharge summaries that due to the infection at the situs, plates and screws have loosened, forcing the appellant to go another surgery. External fixator and AK Cast have also been applied. The appellant has suffered from 31.12.2004 onwards and though he was lastly discharged on 2.7.2005, yet the process of healing, would have taken atleast one or two months, with continuous medication and immobilisation. From the above treatment records, it could be presumed that to gain confidence for resuming duty, it would have taken a longer time and hence, he would have taken atleast 2 months'' rest to avoid mobilisation and infection at the situs of the injury.
17. As rightly contended by the learned Counsel for the appellant, a compensation of Rs. 15,000, awarded by the Claims Tribunal, under the head, pain and suffering, is less. Considering the nature of injuries and periodical treatment for nearly six months, this Court is of the view that the compensation awarded under the head, pain and suffering, requires enhancement. 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. Suffering on account of pain is inevitable. In the case on hand, pain was certainly not momentary and that the appellant has suffered agony, for several months. Suffering goes along/with the pain and, therefore, considering the above said aspects, this Court is inclined to award a sum of Rs. 50,000 for pain and suffering.
18. P.W. 2, Doctor, who examined the appellant/claimant, has supported the version of the injured, regarding the nature of injuries and treatment. Upon perusal of Exs. P13 and P14 X-Ray and its Report respectively, P.W. 2, Doctor, has assessed the disability at 40% and, accordingly, issued Ex. P12 Disability Certificate. However, the Claims Tribunal has awarded only Rs. 35,000 as Disability Compensation. No reasons have been assigned for reduction of the percentage of disability, except stating that the extent of disablement, assessed by P.W. 2, Doctor, was on the higher side. As stated supra, in spite of the first surgery, performed on 3.3.2005, the injury did not heal properly and that therefore, the appellant has underwent repeated surgeries. The treatment and surgeries continued for nearly six months. In the light of the medical evidence, when P.W. 2, Doctor, who clinically examined the appellant, with reference to the Discharge Summaries, Ex. P2 to P6 and P13 and P14, X-Ray and its report, has assessed the disablement at 40%, it is not known as to how and on what basis, the Claims Tribunal has reduced the same to 35%. Though there could be some variation in the assessment between one Doctor and another, on the facts and circumstances of the case, this Court is not inclined to subscribe to the reduction in the extent of disability. Hence, this Court is inclined to restore the extent of disablement with 40%, assessed by P.W. 2, Doctor and award a sum of Rs. 80,000 (Rs. 2,000 per percentage of disability), following the decisions of this Court in
19. As per Ex. P14, X-Ray report, the Doctors, at Parvathy Ortho Hospital, have clearly stated that there was mal union and consolidation and that there was angular deformity at the situs of the injury. As per Ex. P9, Press Accreditation Card, issued by the Director of Information and Public Relations, Government of Tamil Nadu, the appellant was a Press Reporter in Malai Boomi Press. The Press Accreditation Card to the appellant was valid upto 31.12.2007. As per Ex. P10, Salary Certificate, issued by Authorised Signatory for Chennai Interactive Business Services (P) Ltd., the gross income of the appellant has been shown as Rs. 15,550 and after deduction of Rs. 600 and Rs. 100 towards Provident Fund and Professional Tax, the net income of the appellant. Chief Reporter, has been stated as Rs. 14,850. However, the Authorised Signatory of Ex. P10 Salary Bill, dated 10.10.2003, has not been examined.
20. No documents have been produced by the appellant to show that after discharge from the hospital, the appellant was removed from the said Newspaper, "Malai Bhoomi. Ex. P10, Salary Certificate has not been issued by the Authorised Signatory of Malai Bhoomi. The Claims Tribunal has fixed the monthly income of the appellant at Rs. 6,000 for the purpose of awarding compensation, during the period of treatment.
21. In
22. In the case on hand, the accident has occurred on 30.12.2004. in Sri Ramachandrappa''s case, the Supreme Court having considered the wages, which prevailed during the year of accident (1994), fixed the monthly income at Rs. 4,500. Therefore, even as per the judgment of the Supreme Court, the wages for a labourer, in the year 2004, would be certainly more, as compared to the wages in the year 1994. There is no dispute that the appellant was a press reporter and that the Government of Tamil Nadu, have issued an Press Accreditation card, valid up to 31.12.2007.
23. At the time of accident, the appellant was aged 47 years and therefore, having regard to the exhibits produced, in the opinion of this Court, Rs. 10,000 would be a reasonable income for an accredited reporter. Taking into consideration the period of treatment, as in-patient and out-patient, for nearly 8 months, from the date of accident, this Court is inclined to award a sum of Rs., 80,000 as compensation, under the head, loss of earning, during the period of treatment.
24. The oral testimony of P.W. 2, Doctor, remains unsheltered. P.W. 2, Doctor, in his evidence, has categorically deposed that the appellant would find it difficult to stand, sit and walk. He has also deposed that there was reduction in height and that the appellant was limping. Thus, it could be seen that there is a loss of amenities as well. Loss of amenities is defined by the Full Bench of this Court in
25. Considering the nature of job of the appellant, which involves the extensive travelling to collect information, certainly, the functional disablement would affect the whole body, resulting in loss of earning capacity and in such circumstances, following a decision in
4. 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
5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising--
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability,
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(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).
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. Assessment of future loss of earnings due to permanent disability.
6. 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 are 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 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.
7. 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%.
8. 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. 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). 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
9. 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.
10. 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. 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 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 Toss 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 inquiry 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 Orthopaedic Surgeons, prepared by American Academy of Orthopaedic 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 different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the 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.
12. 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:
(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 percentage of loss of earning capacity is the same as 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 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.
14. The assessment of loss of future earnings is explained below with reference to the following illustrations:
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--
(a) Annual income before the accident: Rs. 36,000,
(b) Loss of future earning per annum (15% of the prior annual income): Rs. 5400.
(c) Multiplier applicable with reference to age'': 17
(d) Loss of future earnings : (5,400 x 17): Rs. 91,800
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--
(a) Annual income prior to the accident: Rs. 36,000.
(b) Loss of future earning per annum (75% of the prior annual income): Rs. 27000.
(c) Multiplier applicable with reference to age : 17.
(d) Loss of future earnings (27,000 x 17): Rs. 4,59,000.
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--
(a) Minimum annual income he would have got if had been employed as an Engineer: Rs. 60,000.
(b) Loss of future earning per annum (70%: Rs. 42,000 of the expected annual income).
(c) Multiplier applicable (25 years): 18.
(d) Loss of future earnings (42000 x 18): Rs. 7,56,000.
[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 Kumar Mishra (supra)].
15. After the insertion of Section 163A in the Act (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--
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 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 Workmen''s Compensation Act, 1923.
16. 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 favourable. 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 maybe 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 ascertaining their convenient timings. Secondly, if the Doctors attend the Tribunal for giving evidence, their 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--
17. 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.
26. However, when there is no proof of disengagement from the Newspaper, this Court is inclined to apply a lesser multiplier of ''10'', as per the Division Bench judgment of this Court in
(a) In all case of injury or permanent disablement multiplier method cannot be mechanically applied to ascertain the future loss of income or earning power.
(b). It depends upon various factors such as nature and extent of disablement, avocation of the injured and whether it would affect his employment or earning power, etc., and if so, to what extent?
(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. (2) Even if so there is no need to adopt the same period as that of fatal cases as provided under the Schedule. If there is no amputation and if there is evidence to show that there is likelihood of reduction or improvement in future years, lesser period maybe adopted for ascertainment of loss of income,
(d) Mainly it depends upon the avocation or profession or nature of employment being attended by the injured at the time of accident.
27. In the light of the abovesaid decisions, loss of earning capacity of the appellant works out to Rs. 10,000 x 10 x 12 x 40% = Rs. 4,80,000. As rightly contended by the learned Counsel for the appellant that the quantum of compensation of Rs. 2,000 awarded under the head, extra nourishment, is less. Special diet is required for healing and to improve the general condition of the injured. Administration of medicine alone is not sufficient. Even strong medication would cause other side effects, if there is lack of nutrition. The compensation under the said head requires enhancement. As it could be seen from the sequence of events, despite repeated surgeries, the wound did not heal. Since the treatment period has extended for nearly six months, the compensation awarded under the head, extra nourishment is increased by Rs. 5,000.
28. Compensation of Rs. 8,500 for transportation is sustained. When the appellant has sustained grievous injuries in the thigh and considering the period of hospitalisation and different spells, certainly, he would have taken the assistance of somebody in the hospital. The Tribunal has not awarded any compensation. Hence, a sum of Rs. 5,000 is awarded under the head, attendant charges. Rs. 2,000 awarded for damages to clothes is reduced to Rs. 1,000.
29. Insofar as the contention that the appellant has been awarded a higher compensation for incurring medical expenditure, upon perusal of the bills, the variation is less. Even assuming that there is some excess, considering the fact that the appellant had underwent five surgeries, the period of hospitalisation, it could be presumed that he would have incurred medical expenses, even after discharge from the hospitals. Hence, this Court is not inclined to interfere with the quantum of Rs. 1,32,662, awarded under the head, medical expenses and that therefore, it is sustained.
30. In view of the above, the appellant is entitled to Rs. 8,58,162, with interest at the rate of 7.5% per annum, from the date of claim, till the date of realisation, as hereunder:
Hence, the Civil Miscellaneous Appeal is allowed. The 2nd respondent-Insurance Company is directed to deposit the award amount along with the enhanced compensation of Rs. 6,10,000, now determined by this Court, with proportionate accrued interests and costs, less the amount already deposited, to the credit of M.A.C.T.O.P. No. 747 of 2005, on the file of Motor Accident Claims Tribunal, (III Court of Small Causes), Chennai, within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made, the appellant/claimant is permitted to withdraw the same, by making necessary applications before the Tribunal. No costs.
