Accident claims-M.V.Act - Contributory Negligence - with out proof no court come to conclusion that there was contributory negligence when there was no F.I.R. on claimants - Apex court set aside the finding of lower court and high court - Fixation of income of a person from unorganized sectors - No court should press for documentary evidence - in the absence of contradictory evidence - the court can rely upon the evidence of the claimant basing on contemporary market prices - Parentage of permanent Disability has to be fixed basing on the filed how it affects the income of the claimant and how it affects the future prospects of livelihood of claimant - But lower court and High court unnecessarily reduced it - amputation of leg for vegetable vendor affects his life to an extent of 85% but not at 65% as fixed by high court , Major fractures of limbs to a cooli which disables him from doing cooli job affects his lively hood to an extent of 85% but not as opined by doctor as 28% or reduced by High court as 13% - Apex court set aside the orders of lower court and high court and evaluated the compensation afreshly as the high court miserable failed to appreciate the lower court order =
On 14.8.2008, all the three appellants/ claimants in the appeals
herein were proceeding on the left side of the road by pushing the
motorcycle bearing Registration no. KA-16-2404 since it was punctured.
When the appellants/ claimants came near the Coper Petrol Bunk,
opposite to Jai Hind Hotel, a tractor bearing no KA-16/T-8219-8220
came from the opposite direction on its right side in rash and
negligent manner and dashed into the motor cycle and the
appellants/claimants. This resulted in all the appellants/claimants
sustaining grievous injuries.
The
High Court however, taking into consideration the amputation of the
right leg of the appellant/claimant, determined the disability at 65%
without assigning any proper reason for coming to this conclusion.
Therefore, we intend to assign our reasons to hold that the High Court
has erred in concluding the disability at 65%.
=
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.”
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 whole-sale 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 market
place which otherwise would be extremely difficult for him with an
amputated leg.
We are required to be sensitive while dealing with
manual labour 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 market
place, we determine the disability at 85% to determine the loss of
income.
There is no reason, in the instant case for the Tribunal and the
High Court to ask for evidence of monthly income of the
appellant/claimant. On the other hand, going by the present state of
economy and the rising prices in agricultural products, we are
inclined to believe that a vegetable vendor is reasonably capable of
earning [pic]6,500/- per month.
Therefore, considering that the appellant/ claimant was self employed
and was 24 years of age, we hold that he is entitled to 50% increment
in the future prospect of income based upon the principle laid down in
the Santosh Devi case (supra).
Therefore, applying the principle of Sarla Verma in the present case,
we hold that the High Court was correct in applying the multiplier of
18 and we uphold the same for the purpose for calculating the amount
of compensation to which the appellant/ claimant is entitled to.
12. With respect to the medical expenses incurred by the
appellant/claimant, he has produced medical bills and incidental
charges bills marked as Exs. P-25 to P-201 and prescriptions
at Exs. P-202 to P-217 on the basis of which the Tribunal awarded a
compensation of [pic]60,000/- under the head.
However, considering
that the appellant might have to change his artificial leg from time
to time, we shall allot an amount of [pic]1,00,000/- under the head of
medical cost and incidental expenses to include future medical costs.
Thus, the total amount which is awarded under the head of ‘loss
of future income’ including the 50% increment in the future, works out
to be [pic] 17,90,100/- [([pic]65,00/- x 85/100 + 50/100 x
85/100 x [pic]6,500/-) x 12 x 18].
Further, along with compensation under conventional heads, the
appellant/claimant is also entitled to the cost of litigation as per
the legal principle laid down by this Court in the case of Balram
Prasad v. Kunal Saha[5]. Therefore, under this head, we find it just
and proper to allow [pic]25,000/- =
On the matter of extent of contribution to the accident, it is
held by the Tribunal that the appellants/claimants herein should have
taken utmost care while moving on the highway.
Looking at the spot of
the accident, the Tribunal concluded that the appellants/claimants
were moving on the middle of the road which led to the accident.
Therefore, the Tribunal concluded that though the tractor has been
charge sheeted under sections 279 and 338 of IPC, but given the facts
and circumstances of the case, the appellants/claimants also
contributed to the accident to the extent of 25%.
The High Court
without assigning any reason concurred with the findings of the
Tribunal with respect to contributory negligence.
We find it pertinent
to observe that both the Tribunal and the High Court erred in holding
the appellants/ claimants in these appeals liable for contributory
negligence.
The Tribunal arrived at the above conclusion only on the
basis of the fact that the accident took place in the middle of the
road in the absence of any evidence to prove the same.
Therefore, we
are inclined to hold that the contribution of the appellants/claimants
in the accident is not proved by the respondents by producing evidence
and therefore, the finding of the Tribunal regarding contributory
negligence, which has been upheld by the High Court, is set aside.
29. The appeals are allowed accordingly.
The appellant/claimant in
Civil Appeal @ MFA 1131/2011 (MVC No. 149/ 2010) is awarded a
compensation of amount at [pic]21,65,100/-.
The appellant/claimant in
Civil Appeal @ MFA 1132/2011 (MVC No. 147/2010) is awarded a
compensation of amount at [pic]9,77,100/-.
The appellant/claimant in
Civil Appeal @ MFA 1133/2011 (MVC No. 148/2010) is awarded a
compensation of amount at [pic]15,67,000/-.
All the
appellants/claimants are entitled to interest @ 9% per annum from the
date of application till the date of payment.
30. The name of the erstwhile first respondent has been deleted from
the array of parties by Order of this Court dated 1.7.2013.
The
Insurance Company remains the sole respondent in this case.
Therefore,
we direct the Insurance Company to deposit 50% of the awarded amount
with proportionate interest within four weeks from the date of receipt
of a copy of this order, after deducting the amount if already paid,
in any of the Nationalized Bank of the choice of the appellants for a
period of 3 years.
During the said period, if they want to withdraw a
portion or entire deposited amount for their personal or any other
expenses, including development of their asset, then they are at
liberty to file application before the Tribunal for release of the
deposited amount, which may be considered by it and pass appropriate
order in this regard.
The rest of 50% amount awarded with proportionate interest shall
be paid to the appellants/claimants by way of a demand draft within
four weeks. The Insurance Company is further directed to submit
compliance report before this court within five weeks.
2014 ( January - Vol - 1-D.B.) Judis.nic.in/ S.C./ file name =41153
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.662-664 OF 2014
(ARISING OUT OF SLP(C) NO(s). 16739-16741 OF 2012)
SYED SADIQ ETC. …APPELLANTS
Vs.
DIVISIONAL MANAGER, UNITED INDIA INS. CO. … RESPONDENT
J U D G M E N T
V. Gopala Gowda, J.
Leave granted.
2. This appeal is filed by the appellants questioning the
correctness of the common judgment and final order dated 31.10.2011
passed by the High Court of Karnataka at Bangalore in M.F.A. No. 1131
of 2011 [MV], C/W M.F.A. Nos. 1132 and 1133 of 2011 [MV], urging
various facts and legal contentions in justification of their claim.
3. Necessary relevant facts are stated hereunder to appreciate the
case of the appellants and also to find out whether the appellants are
entitled for the relief as prayed in these appeals.
On 14.8.2008, all the three appellants/ claimants in the appeals
herein were proceeding on the left side of the road by pushing the
motorcycle bearing Registration no. KA-16-2404 since it was punctured.
When the appellants/ claimants came near the Coper Petrol Bunk,
opposite to Jai Hind Hotel, a tractor bearing no KA-16/T-8219-8220
came from the opposite direction on its right side in rash and
negligent manner and dashed into the motor cycle and the
appellants/claimants. This resulted in all the appellants/claimants
sustaining grievous injuries.
4. They filed MV Case Nos. 149, 147 and 148 of 2010 respectively
before the Motor Accident Claim Tribunal, Chitradurga (for short ‘the
Tribunal’). The Tribunal awarded different awards in the three
different appeals which had been heard together by the High Court of
Karnataka. Since the injuries suffered by the three appellants are
different, we are inclined to decide upon the appeals individually. As
far as injuries sustained by the appellants in the road accident are
concerned, there is no dispute that the accident occurred on
14.02.2008 due to the rash and negligent driving of the tractor-
trailer bearing registration No. KA-16/T-8219-8220 by its
driver. The appeals therefore, are confined to determining
whether the
quantum of compensation which was enhanced by the High Court from that
of the Tribunal is just and proper or whether it requires further
enhancement in the interest of justice.
We take up the appeals one at
a time.
Civil Appeal @ MFA 1131/2011 (MVC No. 149/ 2010)
5. It is evident from the material and legal evidence produced on
record that the appellant/ claimant in this appeal had sustained
injuries to lower end of right femur and his right leg was amputated.
Further, he had sustained injury over his left upper arm. The injuries
sustained by him and the treatment taken by him are evident from the
wound certificate Ex. P-6, discharge cards Ex.P-7&8, disability
certificate Ex. P-12, X-ray films Ex.P-218 and was further supported
by oral evidence of the appellant/claimant and the doctor examined as
PW-1 and PW-4 respectively. PW-4 Dr. Rajesh had stated in his evidence
that the appellant/claimant had suffered disability of 24% to upper
limb and 85% to lower limb. The Tribunal, however, had considered the
disability of the appellant/claimant caused to whole body at 30%.
The
High Court however, taking into consideration the amputation of the
right leg of the appellant/claimant, determined the disability at 65%
without assigning any proper reason for coming to this conclusion.
Therefore, we intend to assign our reasons to hold that the High Court
has erred in concluding the disability at 65%.
6. This Court in the case of Mohan Soni v. Ram Avtar Tomar & Ors.[1],
has elaborately discussed upon the factors which determine the loss of
income of the claimant more objectively. The relevant paragraph reads
as under:
“11. In a more recent decision in Raj Kumar v. Ajay Kumar and
another, (2011) 1 SCC 343, this Court considered in great detail
the correlation between the physical disability suffered in an
accident and the loss of earning capacity resulting from it. In
paragraphs 10, 11 and 13 of the judgment in Raj Kumar, this
Court made the following observations:
10. Where the claimant suffers a permanent disability as a
result of injuries, the assessment of compensation under the
head of loss of future earnings would depend upon the effect
and impact of such permanent disability on his earning
capacity.
The Tribunal should not mechanically apply the
percentage of permanent disability as the percentage of
economic loss or loss of earning capacity. In most of the
cases, the percentage of economic loss, that is, 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 Company Ltd.
(2010) 10 SCC 254 and Yadava Kumar v. National Insurance
Company Ltd. (2010) 10 SCC 341).
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.”
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 whole-sale 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 market
place which otherwise would be extremely difficult for him with an
amputated leg.
We are required to be sensitive while dealing with
manual labour 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 market
place, we determine the disability at 85% to determine the loss of
income.
8. The appellant/claimant in his appeal further claimed that he had
been earning [pic]10,000/- p.m. by doing vegetable vending work. The
High Court however, considered the loss of income at [pic]3500/- p.m.
considering that the claimant did not produce any document to
establish his loss of income.
It is difficult for us to convince
ourselves as to how a labour involved in an unorganized sector doing
his own business is expected to produce documents to prove his monthly
income.
In this regard, this Court, in the case of Ramchandrappa v.
Manager, Royal Sundaram Alliance Company Limited[2], has held as
under:
“13. In the instant case, it is not in dispute that the
Appellant was aged about 35 years and was working as a Coolie
and was earning [pic]4500/- per month at the time of accident.
This claim is reduced by the Tribunal to a sum of [pic]3000/-
only on the assumption that wages of the labourer during the
relevant period viz. in the year 2004, was [pic]100/- per day.
This assumption in our view has no basis. Before the Tribunal,
though Insurance Company was served, it did not choose to
appear before the Court nor did it repudiated the claim of the
claimant.
Therefore, there was no reason for the Tribunal to
have reduced the claim of the claimant and determined the
monthly earning a sum of [pic]3000/- p.m.
Secondly, the
Appellant was working as a Coolie and therefore, we cannot
expect him to produce any documentary evidence to substantiate
his claim.
In the absence of any other evidence contrary to the
claim made by the claimant, in our view, in the facts of the
present case, the Tribunal should have accepted the claim of
the claimant.
14. We hasten to add that in all cases and in all
circumstances, the Tribunal need not accept the claim of the
claimant in the absence of supporting material. It depends on
the facts of each case. In a given case, if the claim made is
so exorbitant or if the claim made is contrary to ground
realities, the Tribunal may not accept the claim and may
proceed to determine the possible income by resorting to some
guess work, which may include the ground realities prevailing
at the relevant point of time. In the present case, Appellant
was working as a Coolie and in and around the date of the
accident, the wage of the labourer was between [pic]100/- to
[pic]150/- per day or [pic]4500/- per month. In our view, the
claim was honest and bonafide and, therefore, there was no
reason for the Tribunal to have reduced the monthly earning of
the Appellant from [pic]4500/- to [pic]3000/- per month. We,
therefore, accept his statement that his monthly earning
was [pic]4500/-.”
9. There is no reason, in the instant case for the Tribunal and the
High Court to ask for evidence of monthly income of the
appellant/claimant. On the other hand, going by the present state of
economy and the rising prices in agricultural products, we are
inclined to believe that a vegetable vendor is reasonably capable of
earning [pic]6,500/- per month.
10. Further, it is evident from the material evidence on record that
the appellant/claimant was 24 years old at the time of occurrence of
the accident. It is also established on record that he was earning his
livelihood by vending vegetables. The issue regarding calculation of
prospective increment of income in the future of self employed people,
came up in Santosh Devi v. National Insurance Company Limited[3],
wherein this Court has held as under:
“14. We find it extremely difficult to fathom any rationale for
the observation made in paragraph 24 of the judgment in Sarla
Verma's case that where the deceased was self-employed or was
on a fixed salary without provision for annual increment, etc.,
the Courts will usually take only the actual income at the time
of death and a departure from this rule should be made only in
rare and exceptional cases involving special circumstances. In
our view, it will be nave to say that the wages or total
emoluments/income of a person who is self-employed or who is
employed on a fixed salary without provision for annual
increment, etc., would remain the same throughout his life.
15. The rise in the cost of living affects everyone across the
board. It does not make any distinction between rich and poor.
As a matter of fact, the effect of rise in prices which
directly impacts the cost of living is minimal on the rich and
maximum on those who are self-employed or who get fixed
income/emoluments. They are the worst affected people.
Therefore, they put extra efforts to generate additional income
necessary for sustaining their families.
16. The salaries of those employed under the Central and State
Governments and their agencies/instrumentalities have been
revised from time to time to provide a cushion against the
rising prices and provisions have been made for providing
security to the families of the deceased employees. The
salaries of those employed in private sectors have also
increased manifold. Till about two decades ago, nobody could
have imagined that salary of Class IV employee of the
Government would be in five figures and total emoluments of
those in higher echelons of service will cross the figure of
rupees one lac.
17. Although, the wages/income of those employed in unorganized
sectors has not registered a corresponding increase and has not
kept pace with the increase in the salaries of the Government
employees and those employed in private sectors but it cannot
be denied that there has been incremental enhancement in the
income of those who are self-employed and even those engaged on
daily basis, monthly basis or even seasonal basis. We can take
judicial notice of the fact that with a view to meet the
challenges posed by high cost of living, the persons falling in
the latter category periodically increase the cost of their
labour. In this context, it may be useful to give an example of
a tailor who earns his livelihood by stitching cloths. If the
cost of living increases and the prices of essentials go up, it
is but natural for him to increase the cost of his labour. So
will be the cases of ordinary skilled and unskilled labour,
like, barber, blacksmith, cobbler, mason etc.
18. Therefore, we do not think that while making the
observations in the last three lines of paragraph 24 of Sarla
Verma's judgment, the Court had intended to lay down an
absolute rule that there will be no addition in the income of a
person who is self-employed or who is paid fixed wages. Rather,
it would be reasonable to say that a person who is self-
employed or is engaged on fixed wages will also get 30 per cent
increase in his total income over a period of time and if he /
she becomes victim of accident then the same formula deserves
to be applied for calculating the amount of compensation.”
Therefore, considering that the appellant/ claimant was self employed
and was 24 years of age, we hold that he is entitled to 50% increment
in the future prospect of income based upon the principle laid down in
the Santosh Devi case (supra).
11. Further, regarding the use of multiplier, it was held in the
Sarla Verma v. DTC[4] which was upheld in Santosh Devi case (supra),
as under:
“42. We therefore hold that the multiplier to be used should be
as mentioned in Column (4) of the table above (prepared by
applying Susamma Thomas, Trilok Chandra and Charlie), which
starts with an operative multiplier of 18 (for the age groups
of 15 to 20 and 21 to 25 years), reduced by one unit for every
five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35
years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-
13 for 46 to 50 years, then reduced by two units for every five
years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60
years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.”
Therefore, applying the principle of Sarla Verma in the present case,
we hold that the High Court was correct in applying the multiplier of
18 and we uphold the same for the purpose for calculating the amount
of compensation to which the appellant/ claimant is entitled to.
12. With respect to the medical expenses incurred by the
appellant/claimant, he has produced medical bills and incidental
charges bills marked as Exs. P-25 to P-201 and prescriptions
at Exs. P-202 to P-217 on the basis of which the Tribunal awarded a
compensation of [pic]60,000/- under the head.
However, considering
that the appellant might have to change his artificial leg from time
to time, we shall allot an amount of [pic]1,00,000/- under the head of
medical cost and incidental expenses to include future medical costs.
Thus, the total amount which is awarded under the head of ‘loss
of future income’ including the 50% increment in the future, works out
to be [pic] 17,90,100/- [([pic]65,00/- x 85/100 + 50/100 x
85/100 x [pic]6,500/-) x 12 x 18].
13. Further, along with compensation under conventional heads, the
appellant/claimant is also entitled to the cost of litigation as per
the legal principle laid down by this Court in the case of Balram
Prasad v. Kunal Saha[5]. Therefore, under this head, we find it just
and proper to allow [pic]25,000/-
14. Hence, the appellant/claimant is entitled to the compensation
under the following heads:
|Towards cost of artificial leg |[pic]50,000/- |
|Towards pain and suffering |[pic]75,000/- |
|Towards loss of marriage prospectus|[pic]50,000/- |
|Towards loss of amenities |[pic]75,000/- |
|Towards medical and incidental cost|[pic]1,00,000/- |
|Towards cost of litigation |[pic]25,000/- |
15. Also, by relying upon the principle laid down by this Court in the
case of Municipal Corporation of Delhi v. Association of Victims of
Uphaar Tragedy[6], we find it just and proper to allow interest at the
rate of 9% per annum.
16. Hence, the total amount of claim the appellant/claimant becomes
entitled to is [pic]21,65,100/- with interest @ 9% per annum
from the date of application till the date of payment.
Civil Appeal @ MFA 1132/2011 (MVC No. 147/2010)
17. The appellant/claimant in this appeal has sustained type -3
compound fracture of right femur, fracture of tibia, fracture of
middle shaft tibia and fibula. The injuries sustained and the
treatment taken by the appellant/claimant are evident from discharge
card Ex. P-225, photographs marked as Ex. P-227 to P-234, disability
certificate marked as Ex. P-236, X-ray films Ex. P-574 supported by
the oral evidence of the claimant and the doctor examined as PW-3 and
PW-4 respectively. PW-4 Dr. Rajesh had stated in his evidence that the
appellant/ claimant has suffered from permanent disability of 69% to
lower limb. The High Court has taken his functional disability at 25%.
However, while determining the disability of the claimants in motor
accidents cases, this Court might be sensitive about the functional
disability involved and the nature of the occupation, particularly, if
the occupation involves manual labour. Therefore, we hold that the
High Court erred in determining the functional disability of the
appellant in the present appeal on the lower side. Since, the
appellant/claimant in the present appeal is also a vegetable vendor
like the appellant/claimant in Civil Appeal @ MFA 1131/2011, we take
his monthly income at [pic]6,500/- on average and for the reasons
recorded in that appeal, we determine the functional disability of the
appellant/claimant in the present appeal at 35%. Considering his age,
and based on the legal principle laid down by this Court in the cases
mentioned supra, we hold his increment on future income at 50% and the
multiplier at 18. Therefore, he is entitled to [pic]7,37,100/-
[([pic]6,500 x 35/100 + 50/100 x 35/100 x [pic]6,500) x 12 x18] under
the head of ‘loss of future income’.
18. The amount awarded by the Tribunal and the High Court under other
conventional heads have not been disputed by the appellant/claimant by
producing contrary evidence. Therefore, the amount awarded under those
heads shall remain constant. Based on the reasoning given by us in the
earlier appeal, the appellant/claimant is also entitled to the cost of
litigation at [pic]25,000/-.
19. Hence, the appellant/claimant is entitled to compensation under
the following heads:
|Towards pain and suffering |[pic]60,000/- |
|Towards medical and incidental |[pic]1,00,000/- |
|charges | |
|Towards loss of amenities |[pic]40,000/- |
|Towards future medical expenses|[pic]15,000/- |
|Towards cost of litigation |[pic]25,000/- |
20. Therefore, the appellant/ claimant is entitled to a total sum of
[pic]9,77,100/- with interest @ 9% per annum based on the principle
laid down by this Court mentioned supra.
Civil Appeal @ MFA 1133/2011 (MVC No. 148/2010)
21. The appellant/claimant in this appeal has identified himself as a
cleaner of lorries by profession. As per the wound certificate Ex. P-
219, it has been established that the appellant/ claimant has
sustained fracture on middle 1/3rd of right humerus and comminuted
fracture at the junction of upper 1/3rd and middle 1/3rd of right
tibia. The injuries sustained by him and the treatment taken by him is
evident from the disability certificate marked as Ex. P-221, X-ray
film marked as Ex. P-222 which is supported by oral evidence of the
claimant and doctor examined as PW-2 and PW-4 respectively. PW-4 Dr.
Rajesh has stated in his evidence that the claimant has suffered 22%
permanent disability to upper limb and 29% to lower limb. The High
Court has calculated the functional disability to 13%.
We are inclined
to hold that the High Court has erred in ascertaining the functional
disability to such a low percentage considering that the
appellant/claimant earns his livelihood through manual labour.
It is
evident from the material evidence produced on record that the
appellant/claimant has suffered from comminuted fracture in the
accident as a result of which he will not be able to bend, stretch or
rotate his right hand.
He will also not be able to lift heavy material
which is so essential to carry on with his business to earn his
livelihood.
Therefore, we are inclined to observe that the
appellant/claimant suffers from a functional disability to the extent
of 85%.
22. Further, the appellant/claimant has claimed that he has been
earning [pic]5,000/- p.m. by working as a cleaner of the lorry. The
Tribunal assessed his monthly income at [pic]3000/-. The High Court,
considering his age and his profession as a cleaner, assessed his
income at [pic]3500/-. However, based on the Karnataka State Minimum
Wages Rule 2012-2013, the appellant/claimant is entitled to
[pic]4246/- per month. Since, no written record of his income could be
produced before the Court, we take his income, as per Revised Minimum
Wages Rule at [pic]4246/- rounding it off as [pic]4300/- per month.
Further, an amount of [pic]700/- can be added as daily barter charges.
Therefore, his monthly income amounts to [pic]5000/-.
23. Further, considering that the appellant/ claimant was 22 years of
age, the multiplier applicable to his age group is 18 and also based
on the legal principle laid down by this Court in various cases, we
hold that he is entitled to 50% increment in future loss of income.
Therefore, he is entitled to an amount at [pic] 13,77,000/-
[([pic]5000 x 85/100 + 50/100 x 85/100 x Rs.5,000) x 12 x 18].
24. It is pertinent to note that the appellant/ claimant in this
appeal has produced medical bills for [pic]8000/-. He was treated as
an inpatient for 15 days in a private hospital. Therefore, considering
the same, the High Court has awarded a sum of [pic]15000/- under
the head of medical and incidental expenses. However, considering the
fact that the appellant/claimant was also required to have conveyance,
nourishment and attendant charges for proper recovery of health, we
increase the compensation under this head to [pic]50,000/-. Further,
considering the fracture sustained by the appellant/claimant and the
evidence produced by the doctor, another [pic]5000/- awarded by the
High Court towards future expenses is upheld by us.
25. Further, towards loss of amenities, the Tribunal has awarded
[pic]10,000/-. However, considering the disability stated by the
doctor and the amount of discomfort and unhappiness he has to undergo
in the future life, the High Court has awarded [pic]20,000/- under
this head. We intend to observe that the amount awarded by the High
Court under this head is very meager and inadequate considering the
age and the amount of disability. Therefore, under this head, we award
a sum of [pic]50,000/-.
26. Apart from this, based on the reasoning we have already provided
above for the two other appellants/claimants, the appellant/claimant
in this appeal, is also entitled to compensation under the following
heads:
|Towards pain and suffering |[pic]60,000/- |
|Towards medical and incidental |[pic]50,000/- |
|expenses | |
|Towards loss of amenities |[pic]50,000/- |
|Towards future expenses |[pic]5,000/- |
|Towards cost of litigation |[pic]25,000/- |
27. Therefore, the appellant/ claimant in this appeal is entitled to a
total amount of [pic]15,67,000/- with an interest of 9%
per annum from the date of application till the date of payment.
Contributory Negligence
28. On the matter of extent of contribution to the accident, it is
held by the Tribunal that the appellants/claimants herein should have
taken utmost care while moving on the highway.
Looking at the spot of
the accident, the Tribunal concluded that the appellants/claimants
were moving on the middle of the road which led to the accident.
Therefore, the Tribunal concluded that though the tractor has been
charge sheeted under sections 279 and 338 of IPC, but given the facts
and circumstances of the case, the appellants/claimants also
contributed to the accident to the extent of 25%.
The High Court
without assigning any reason concurred with the findings of the
Tribunal with respect to contributory negligence.
We find it pertinent
to observe that both the Tribunal and the High Court erred in holding
the appellants/ claimants in these appeals liable for contributory
negligence.
The Tribunal arrived at the above conclusion only on the
basis of the fact that the accident took place in the middle of the
road in the absence of any evidence to prove the same.
Therefore, we
are inclined to hold that the contribution of the appellants/claimants
in the accident is not proved by the respondents by producing evidence
and therefore, the finding of the Tribunal regarding contributory
negligence, which has been upheld by the High Court, is set aside.
29. The appeals are allowed accordingly.
The appellant/claimant in
Civil Appeal @ MFA 1131/2011 (MVC No. 149/ 2010) is awarded a
compensation of amount at [pic]21,65,100/-.
The appellant/claimant in
Civil Appeal @ MFA 1132/2011 (MVC No. 147/2010) is awarded a
compensation of amount at [pic]9,77,100/-.
The appellant/claimant in
Civil Appeal @ MFA 1133/2011 (MVC No. 148/2010) is awarded a
compensation of amount at [pic]15,67,000/-.
All the
appellants/claimants are entitled to interest @ 9% per annum from the
date of application till the date of payment.
30. The name of the erstwhile first respondent has been deleted from
the array of parties by Order of this Court dated 1.7.2013.
The
Insurance Company remains the sole respondent in this case.
Therefore,
we direct the Insurance Company to deposit 50% of the awarded amount
with proportionate interest within four weeks from the date of receipt
of a copy of this order, after deducting the amount if already paid,
in any of the Nationalized Bank of the choice of the appellants for a
period of 3 years.
During the said period, if they want to withdraw a
portion or entire deposited amount for their personal or any other
expenses, including development of their asset, then they are at
liberty to file application before the Tribunal for release of the
deposited amount, which may be considered by it and pass appropriate
order in this regard.
The rest of 50% amount awarded with proportionate interest shall
be paid to the appellants/claimants by way of a demand draft within
four weeks. The Insurance Company is further directed to submit
compliance report before this court within five weeks.
………………………………………………………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]
………………………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi,
January 16, 2014
-----------------------
[1] (2012) 2 SCC 267
[2] (2011) 13 SCC 236
[3] (2012) 6 SCC 421
[4] (2009) 6 SCC 121
[5] Civil Appeal no. 2867 of 2012.
[6] AIR 2012 SC 100
On 14.8.2008, all the three appellants/ claimants in the appeals
herein were proceeding on the left side of the road by pushing the
motorcycle bearing Registration no. KA-16-2404 since it was punctured.
When the appellants/ claimants came near the Coper Petrol Bunk,
opposite to Jai Hind Hotel, a tractor bearing no KA-16/T-8219-8220
came from the opposite direction on its right side in rash and
negligent manner and dashed into the motor cycle and the
appellants/claimants. This resulted in all the appellants/claimants
sustaining grievous injuries.
The
High Court however, taking into consideration the amputation of the
right leg of the appellant/claimant, determined the disability at 65%
without assigning any proper reason for coming to this conclusion.
Therefore, we intend to assign our reasons to hold that the High Court
has erred in concluding the disability at 65%.
=
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.”
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 whole-sale 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 market
place which otherwise would be extremely difficult for him with an
amputated leg.
We are required to be sensitive while dealing with
manual labour 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 market
place, we determine the disability at 85% to determine the loss of
income.
There is no reason, in the instant case for the Tribunal and the
High Court to ask for evidence of monthly income of the
appellant/claimant. On the other hand, going by the present state of
economy and the rising prices in agricultural products, we are
inclined to believe that a vegetable vendor is reasonably capable of
earning [pic]6,500/- per month.
Therefore, considering that the appellant/ claimant was self employed
and was 24 years of age, we hold that he is entitled to 50% increment
in the future prospect of income based upon the principle laid down in
the Santosh Devi case (supra).
we hold that the High Court was correct in applying the multiplier of
18 and we uphold the same for the purpose for calculating the amount
of compensation to which the appellant/ claimant is entitled to.
12. With respect to the medical expenses incurred by the
appellant/claimant, he has produced medical bills and incidental
charges bills marked as Exs. P-25 to P-201 and prescriptions
at Exs. P-202 to P-217 on the basis of which the Tribunal awarded a
compensation of [pic]60,000/- under the head.
However, considering
that the appellant might have to change his artificial leg from time
to time, we shall allot an amount of [pic]1,00,000/- under the head of
medical cost and incidental expenses to include future medical costs.
Thus, the total amount which is awarded under the head of ‘loss
of future income’ including the 50% increment in the future, works out
to be [pic] 17,90,100/- [([pic]65,00/- x 85/100 + 50/100 x
85/100 x [pic]6,500/-) x 12 x 18].
Further, along with compensation under conventional heads, the
appellant/claimant is also entitled to the cost of litigation as per
the legal principle laid down by this Court in the case of Balram
Prasad v. Kunal Saha[5]. Therefore, under this head, we find it just
and proper to allow [pic]25,000/- =
On the matter of extent of contribution to the accident, it is
held by the Tribunal that the appellants/claimants herein should have
taken utmost care while moving on the highway.
Looking at the spot of
the accident, the Tribunal concluded that the appellants/claimants
were moving on the middle of the road which led to the accident.
Therefore, the Tribunal concluded that though the tractor has been
charge sheeted under sections 279 and 338 of IPC, but given the facts
and circumstances of the case, the appellants/claimants also
contributed to the accident to the extent of 25%.
The High Court
without assigning any reason concurred with the findings of the
Tribunal with respect to contributory negligence.
We find it pertinent
to observe that both the Tribunal and the High Court erred in holding
the appellants/ claimants in these appeals liable for contributory
negligence.
The Tribunal arrived at the above conclusion only on the
basis of the fact that the accident took place in the middle of the
road in the absence of any evidence to prove the same.
Therefore, we
are inclined to hold that the contribution of the appellants/claimants
in the accident is not proved by the respondents by producing evidence
and therefore, the finding of the Tribunal regarding contributory
negligence, which has been upheld by the High Court, is set aside.
29. The appeals are allowed accordingly.
The appellant/claimant in
Civil Appeal @ MFA 1131/2011 (MVC No. 149/ 2010) is awarded a
compensation of amount at [pic]21,65,100/-.
The appellant/claimant in
Civil Appeal @ MFA 1132/2011 (MVC No. 147/2010) is awarded a
compensation of amount at [pic]9,77,100/-.
The appellant/claimant in
Civil Appeal @ MFA 1133/2011 (MVC No. 148/2010) is awarded a
compensation of amount at [pic]15,67,000/-.
All the
appellants/claimants are entitled to interest @ 9% per annum from the
date of application till the date of payment.
30. The name of the erstwhile first respondent has been deleted from
the array of parties by Order of this Court dated 1.7.2013.
The
Insurance Company remains the sole respondent in this case.
Therefore,
we direct the Insurance Company to deposit 50% of the awarded amount
with proportionate interest within four weeks from the date of receipt
of a copy of this order, after deducting the amount if already paid,
in any of the Nationalized Bank of the choice of the appellants for a
period of 3 years.
During the said period, if they want to withdraw a
portion or entire deposited amount for their personal or any other
expenses, including development of their asset, then they are at
liberty to file application before the Tribunal for release of the
deposited amount, which may be considered by it and pass appropriate
order in this regard.
The rest of 50% amount awarded with proportionate interest shall
be paid to the appellants/claimants by way of a demand draft within
four weeks. The Insurance Company is further directed to submit
compliance report before this court within five weeks.
2014 ( January - Vol - 1-D.B.) Judis.nic.in/ S.C./ file name =41153
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.662-664 OF 2014
(ARISING OUT OF SLP(C) NO(s). 16739-16741 OF 2012)
SYED SADIQ ETC. …APPELLANTS
Vs.
DIVISIONAL MANAGER, UNITED INDIA INS. CO. … RESPONDENT
J U D G M E N T
V. Gopala Gowda, J.
Leave granted.
2. This appeal is filed by the appellants questioning the
correctness of the common judgment and final order dated 31.10.2011
passed by the High Court of Karnataka at Bangalore in M.F.A. No. 1131
of 2011 [MV], C/W M.F.A. Nos. 1132 and 1133 of 2011 [MV], urging
various facts and legal contentions in justification of their claim.
3. Necessary relevant facts are stated hereunder to appreciate the
case of the appellants and also to find out whether the appellants are
entitled for the relief as prayed in these appeals.
On 14.8.2008, all the three appellants/ claimants in the appeals
herein were proceeding on the left side of the road by pushing the
motorcycle bearing Registration no. KA-16-2404 since it was punctured.
When the appellants/ claimants came near the Coper Petrol Bunk,
opposite to Jai Hind Hotel, a tractor bearing no KA-16/T-8219-8220
came from the opposite direction on its right side in rash and
negligent manner and dashed into the motor cycle and the
appellants/claimants. This resulted in all the appellants/claimants
sustaining grievous injuries.
4. They filed MV Case Nos. 149, 147 and 148 of 2010 respectively
before the Motor Accident Claim Tribunal, Chitradurga (for short ‘the
Tribunal’). The Tribunal awarded different awards in the three
different appeals which had been heard together by the High Court of
Karnataka. Since the injuries suffered by the three appellants are
different, we are inclined to decide upon the appeals individually. As
far as injuries sustained by the appellants in the road accident are
concerned, there is no dispute that the accident occurred on
14.02.2008 due to the rash and negligent driving of the tractor-
trailer bearing registration No. KA-16/T-8219-8220 by its
driver. The appeals therefore, are confined to determining
whether the
quantum of compensation which was enhanced by the High Court from that
of the Tribunal is just and proper or whether it requires further
enhancement in the interest of justice.
We take up the appeals one at
a time.
Civil Appeal @ MFA 1131/2011 (MVC No. 149/ 2010)
5. It is evident from the material and legal evidence produced on
record that the appellant/ claimant in this appeal had sustained
injuries to lower end of right femur and his right leg was amputated.
Further, he had sustained injury over his left upper arm. The injuries
sustained by him and the treatment taken by him are evident from the
wound certificate Ex. P-6, discharge cards Ex.P-7&8, disability
certificate Ex. P-12, X-ray films Ex.P-218 and was further supported
by oral evidence of the appellant/claimant and the doctor examined as
PW-1 and PW-4 respectively. PW-4 Dr. Rajesh had stated in his evidence
that the appellant/claimant had suffered disability of 24% to upper
limb and 85% to lower limb. The Tribunal, however, had considered the
disability of the appellant/claimant caused to whole body at 30%.
The
High Court however, taking into consideration the amputation of the
right leg of the appellant/claimant, determined the disability at 65%
without assigning any proper reason for coming to this conclusion.
Therefore, we intend to assign our reasons to hold that the High Court
has erred in concluding the disability at 65%.
6. This Court in the case of Mohan Soni v. Ram Avtar Tomar & Ors.[1],
has elaborately discussed upon the factors which determine the loss of
income of the claimant more objectively. The relevant paragraph reads
as under:
“11. In a more recent decision in Raj Kumar v. Ajay Kumar and
another, (2011) 1 SCC 343, this Court considered in great detail
the correlation between the physical disability suffered in an
accident and the loss of earning capacity resulting from it. In
paragraphs 10, 11 and 13 of the judgment in Raj Kumar, this
Court made the following observations:
10. Where the claimant suffers a permanent disability as a
result of injuries, the assessment of compensation under the
head of loss of future earnings would depend upon the effect
and impact of such permanent disability on his earning
capacity.
The Tribunal should not mechanically apply the
percentage of permanent disability as the percentage of
economic loss or loss of earning capacity. In most of the
cases, the percentage of economic loss, that is, 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 Company Ltd.
(2010) 10 SCC 254 and Yadava Kumar v. National Insurance
Company Ltd. (2010) 10 SCC 341).
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.”
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 whole-sale 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 market
place which otherwise would be extremely difficult for him with an
amputated leg.
We are required to be sensitive while dealing with
manual labour 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 market
place, we determine the disability at 85% to determine the loss of
income.
8. The appellant/claimant in his appeal further claimed that he had
been earning [pic]10,000/- p.m. by doing vegetable vending work. The
High Court however, considered the loss of income at [pic]3500/- p.m.
considering that the claimant did not produce any document to
establish his loss of income.
It is difficult for us to convince
ourselves as to how a labour involved in an unorganized sector doing
his own business is expected to produce documents to prove his monthly
income.
In this regard, this Court, in the case of Ramchandrappa v.
Manager, Royal Sundaram Alliance Company Limited[2], has held as
under:
“13. In the instant case, it is not in dispute that the
Appellant was aged about 35 years and was working as a Coolie
and was earning [pic]4500/- per month at the time of accident.
This claim is reduced by the Tribunal to a sum of [pic]3000/-
only on the assumption that wages of the labourer during the
relevant period viz. in the year 2004, was [pic]100/- per day.
This assumption in our view has no basis. Before the Tribunal,
though Insurance Company was served, it did not choose to
appear before the Court nor did it repudiated the claim of the
claimant.
Therefore, there was no reason for the Tribunal to
have reduced the claim of the claimant and determined the
monthly earning a sum of [pic]3000/- p.m.
Secondly, the
Appellant was working as a Coolie and therefore, we cannot
expect him to produce any documentary evidence to substantiate
his claim.
In the absence of any other evidence contrary to the
claim made by the claimant, in our view, in the facts of the
present case, the Tribunal should have accepted the claim of
the claimant.
14. We hasten to add that in all cases and in all
circumstances, the Tribunal need not accept the claim of the
claimant in the absence of supporting material. It depends on
the facts of each case. In a given case, if the claim made is
so exorbitant or if the claim made is contrary to ground
realities, the Tribunal may not accept the claim and may
proceed to determine the possible income by resorting to some
guess work, which may include the ground realities prevailing
at the relevant point of time. In the present case, Appellant
was working as a Coolie and in and around the date of the
accident, the wage of the labourer was between [pic]100/- to
[pic]150/- per day or [pic]4500/- per month. In our view, the
claim was honest and bonafide and, therefore, there was no
reason for the Tribunal to have reduced the monthly earning of
the Appellant from [pic]4500/- to [pic]3000/- per month. We,
therefore, accept his statement that his monthly earning
was [pic]4500/-.”
9. There is no reason, in the instant case for the Tribunal and the
High Court to ask for evidence of monthly income of the
appellant/claimant. On the other hand, going by the present state of
economy and the rising prices in agricultural products, we are
inclined to believe that a vegetable vendor is reasonably capable of
earning [pic]6,500/- per month.
10. Further, it is evident from the material evidence on record that
the appellant/claimant was 24 years old at the time of occurrence of
the accident. It is also established on record that he was earning his
livelihood by vending vegetables. The issue regarding calculation of
prospective increment of income in the future of self employed people,
came up in Santosh Devi v. National Insurance Company Limited[3],
wherein this Court has held as under:
“14. We find it extremely difficult to fathom any rationale for
the observation made in paragraph 24 of the judgment in Sarla
Verma's case that where the deceased was self-employed or was
on a fixed salary without provision for annual increment, etc.,
the Courts will usually take only the actual income at the time
of death and a departure from this rule should be made only in
rare and exceptional cases involving special circumstances. In
our view, it will be nave to say that the wages or total
emoluments/income of a person who is self-employed or who is
employed on a fixed salary without provision for annual
increment, etc., would remain the same throughout his life.
15. The rise in the cost of living affects everyone across the
board. It does not make any distinction between rich and poor.
As a matter of fact, the effect of rise in prices which
directly impacts the cost of living is minimal on the rich and
maximum on those who are self-employed or who get fixed
income/emoluments. They are the worst affected people.
Therefore, they put extra efforts to generate additional income
necessary for sustaining their families.
16. The salaries of those employed under the Central and State
Governments and their agencies/instrumentalities have been
revised from time to time to provide a cushion against the
rising prices and provisions have been made for providing
security to the families of the deceased employees. The
salaries of those employed in private sectors have also
increased manifold. Till about two decades ago, nobody could
have imagined that salary of Class IV employee of the
Government would be in five figures and total emoluments of
those in higher echelons of service will cross the figure of
rupees one lac.
17. Although, the wages/income of those employed in unorganized
sectors has not registered a corresponding increase and has not
kept pace with the increase in the salaries of the Government
employees and those employed in private sectors but it cannot
be denied that there has been incremental enhancement in the
income of those who are self-employed and even those engaged on
daily basis, monthly basis or even seasonal basis. We can take
judicial notice of the fact that with a view to meet the
challenges posed by high cost of living, the persons falling in
the latter category periodically increase the cost of their
labour. In this context, it may be useful to give an example of
a tailor who earns his livelihood by stitching cloths. If the
cost of living increases and the prices of essentials go up, it
is but natural for him to increase the cost of his labour. So
will be the cases of ordinary skilled and unskilled labour,
like, barber, blacksmith, cobbler, mason etc.
18. Therefore, we do not think that while making the
observations in the last three lines of paragraph 24 of Sarla
Verma's judgment, the Court had intended to lay down an
absolute rule that there will be no addition in the income of a
person who is self-employed or who is paid fixed wages. Rather,
it would be reasonable to say that a person who is self-
employed or is engaged on fixed wages will also get 30 per cent
increase in his total income over a period of time and if he /
she becomes victim of accident then the same formula deserves
to be applied for calculating the amount of compensation.”
Therefore, considering that the appellant/ claimant was self employed
and was 24 years of age, we hold that he is entitled to 50% increment
in the future prospect of income based upon the principle laid down in
the Santosh Devi case (supra).
11. Further, regarding the use of multiplier, it was held in the
Sarla Verma v. DTC[4] which was upheld in Santosh Devi case (supra),
as under:
“42. We therefore hold that the multiplier to be used should be
as mentioned in Column (4) of the table above (prepared by
applying Susamma Thomas, Trilok Chandra and Charlie), which
starts with an operative multiplier of 18 (for the age groups
of 15 to 20 and 21 to 25 years), reduced by one unit for every
five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35
years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-
13 for 46 to 50 years, then reduced by two units for every five
years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60
years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.”
Therefore, applying the principle of Sarla Verma in the present case,
we hold that the High Court was correct in applying the multiplier of
18 and we uphold the same for the purpose for calculating the amount
of compensation to which the appellant/ claimant is entitled to.
12. With respect to the medical expenses incurred by the
appellant/claimant, he has produced medical bills and incidental
charges bills marked as Exs. P-25 to P-201 and prescriptions
at Exs. P-202 to P-217 on the basis of which the Tribunal awarded a
compensation of [pic]60,000/- under the head.
However, considering
that the appellant might have to change his artificial leg from time
to time, we shall allot an amount of [pic]1,00,000/- under the head of
medical cost and incidental expenses to include future medical costs.
Thus, the total amount which is awarded under the head of ‘loss
of future income’ including the 50% increment in the future, works out
to be [pic] 17,90,100/- [([pic]65,00/- x 85/100 + 50/100 x
85/100 x [pic]6,500/-) x 12 x 18].
13. Further, along with compensation under conventional heads, the
appellant/claimant is also entitled to the cost of litigation as per
the legal principle laid down by this Court in the case of Balram
Prasad v. Kunal Saha[5]. Therefore, under this head, we find it just
and proper to allow [pic]25,000/-
14. Hence, the appellant/claimant is entitled to the compensation
under the following heads:
|Towards cost of artificial leg |[pic]50,000/- |
|Towards pain and suffering |[pic]75,000/- |
|Towards loss of marriage prospectus|[pic]50,000/- |
|Towards loss of amenities |[pic]75,000/- |
|Towards medical and incidental cost|[pic]1,00,000/- |
|Towards cost of litigation |[pic]25,000/- |
15. Also, by relying upon the principle laid down by this Court in the
case of Municipal Corporation of Delhi v. Association of Victims of
Uphaar Tragedy[6], we find it just and proper to allow interest at the
rate of 9% per annum.
16. Hence, the total amount of claim the appellant/claimant becomes
entitled to is [pic]21,65,100/- with interest @ 9% per annum
from the date of application till the date of payment.
Civil Appeal @ MFA 1132/2011 (MVC No. 147/2010)
17. The appellant/claimant in this appeal has sustained type -3
compound fracture of right femur, fracture of tibia, fracture of
middle shaft tibia and fibula. The injuries sustained and the
treatment taken by the appellant/claimant are evident from discharge
card Ex. P-225, photographs marked as Ex. P-227 to P-234, disability
certificate marked as Ex. P-236, X-ray films Ex. P-574 supported by
the oral evidence of the claimant and the doctor examined as PW-3 and
PW-4 respectively. PW-4 Dr. Rajesh had stated in his evidence that the
appellant/ claimant has suffered from permanent disability of 69% to
lower limb. The High Court has taken his functional disability at 25%.
However, while determining the disability of the claimants in motor
accidents cases, this Court might be sensitive about the functional
disability involved and the nature of the occupation, particularly, if
the occupation involves manual labour. Therefore, we hold that the
High Court erred in determining the functional disability of the
appellant in the present appeal on the lower side. Since, the
appellant/claimant in the present appeal is also a vegetable vendor
like the appellant/claimant in Civil Appeal @ MFA 1131/2011, we take
his monthly income at [pic]6,500/- on average and for the reasons
recorded in that appeal, we determine the functional disability of the
appellant/claimant in the present appeal at 35%. Considering his age,
and based on the legal principle laid down by this Court in the cases
mentioned supra, we hold his increment on future income at 50% and the
multiplier at 18. Therefore, he is entitled to [pic]7,37,100/-
[([pic]6,500 x 35/100 + 50/100 x 35/100 x [pic]6,500) x 12 x18] under
the head of ‘loss of future income’.
18. The amount awarded by the Tribunal and the High Court under other
conventional heads have not been disputed by the appellant/claimant by
producing contrary evidence. Therefore, the amount awarded under those
heads shall remain constant. Based on the reasoning given by us in the
earlier appeal, the appellant/claimant is also entitled to the cost of
litigation at [pic]25,000/-.
19. Hence, the appellant/claimant is entitled to compensation under
the following heads:
|Towards pain and suffering |[pic]60,000/- |
|Towards medical and incidental |[pic]1,00,000/- |
|charges | |
|Towards loss of amenities |[pic]40,000/- |
|Towards future medical expenses|[pic]15,000/- |
|Towards cost of litigation |[pic]25,000/- |
20. Therefore, the appellant/ claimant is entitled to a total sum of
[pic]9,77,100/- with interest @ 9% per annum based on the principle
laid down by this Court mentioned supra.
Civil Appeal @ MFA 1133/2011 (MVC No. 148/2010)
21. The appellant/claimant in this appeal has identified himself as a
cleaner of lorries by profession. As per the wound certificate Ex. P-
219, it has been established that the appellant/ claimant has
sustained fracture on middle 1/3rd of right humerus and comminuted
fracture at the junction of upper 1/3rd and middle 1/3rd of right
tibia. The injuries sustained by him and the treatment taken by him is
evident from the disability certificate marked as Ex. P-221, X-ray
film marked as Ex. P-222 which is supported by oral evidence of the
claimant and doctor examined as PW-2 and PW-4 respectively. PW-4 Dr.
Rajesh has stated in his evidence that the claimant has suffered 22%
permanent disability to upper limb and 29% to lower limb. The High
Court has calculated the functional disability to 13%.
We are inclined
to hold that the High Court has erred in ascertaining the functional
disability to such a low percentage considering that the
appellant/claimant earns his livelihood through manual labour.
It is
evident from the material evidence produced on record that the
appellant/claimant has suffered from comminuted fracture in the
accident as a result of which he will not be able to bend, stretch or
rotate his right hand.
He will also not be able to lift heavy material
which is so essential to carry on with his business to earn his
livelihood.
Therefore, we are inclined to observe that the
appellant/claimant suffers from a functional disability to the extent
of 85%.
22. Further, the appellant/claimant has claimed that he has been
earning [pic]5,000/- p.m. by working as a cleaner of the lorry. The
Tribunal assessed his monthly income at [pic]3000/-. The High Court,
considering his age and his profession as a cleaner, assessed his
income at [pic]3500/-. However, based on the Karnataka State Minimum
Wages Rule 2012-2013, the appellant/claimant is entitled to
[pic]4246/- per month. Since, no written record of his income could be
produced before the Court, we take his income, as per Revised Minimum
Wages Rule at [pic]4246/- rounding it off as [pic]4300/- per month.
Further, an amount of [pic]700/- can be added as daily barter charges.
Therefore, his monthly income amounts to [pic]5000/-.
23. Further, considering that the appellant/ claimant was 22 years of
age, the multiplier applicable to his age group is 18 and also based
on the legal principle laid down by this Court in various cases, we
hold that he is entitled to 50% increment in future loss of income.
Therefore, he is entitled to an amount at [pic] 13,77,000/-
[([pic]5000 x 85/100 + 50/100 x 85/100 x Rs.5,000) x 12 x 18].
24. It is pertinent to note that the appellant/ claimant in this
appeal has produced medical bills for [pic]8000/-. He was treated as
an inpatient for 15 days in a private hospital. Therefore, considering
the same, the High Court has awarded a sum of [pic]15000/- under
the head of medical and incidental expenses. However, considering the
fact that the appellant/claimant was also required to have conveyance,
nourishment and attendant charges for proper recovery of health, we
increase the compensation under this head to [pic]50,000/-. Further,
considering the fracture sustained by the appellant/claimant and the
evidence produced by the doctor, another [pic]5000/- awarded by the
High Court towards future expenses is upheld by us.
25. Further, towards loss of amenities, the Tribunal has awarded
[pic]10,000/-. However, considering the disability stated by the
doctor and the amount of discomfort and unhappiness he has to undergo
in the future life, the High Court has awarded [pic]20,000/- under
this head. We intend to observe that the amount awarded by the High
Court under this head is very meager and inadequate considering the
age and the amount of disability. Therefore, under this head, we award
a sum of [pic]50,000/-.
26. Apart from this, based on the reasoning we have already provided
above for the two other appellants/claimants, the appellant/claimant
in this appeal, is also entitled to compensation under the following
heads:
|Towards pain and suffering |[pic]60,000/- |
|Towards medical and incidental |[pic]50,000/- |
|expenses | |
|Towards loss of amenities |[pic]50,000/- |
|Towards future expenses |[pic]5,000/- |
|Towards cost of litigation |[pic]25,000/- |
27. Therefore, the appellant/ claimant in this appeal is entitled to a
total amount of [pic]15,67,000/- with an interest of 9%
per annum from the date of application till the date of payment.
Contributory Negligence
28. On the matter of extent of contribution to the accident, it is
held by the Tribunal that the appellants/claimants herein should have
taken utmost care while moving on the highway.
Looking at the spot of
the accident, the Tribunal concluded that the appellants/claimants
were moving on the middle of the road which led to the accident.
Therefore, the Tribunal concluded that though the tractor has been
charge sheeted under sections 279 and 338 of IPC, but given the facts
and circumstances of the case, the appellants/claimants also
contributed to the accident to the extent of 25%.
The High Court
without assigning any reason concurred with the findings of the
Tribunal with respect to contributory negligence.
We find it pertinent
to observe that both the Tribunal and the High Court erred in holding
the appellants/ claimants in these appeals liable for contributory
negligence.
The Tribunal arrived at the above conclusion only on the
basis of the fact that the accident took place in the middle of the
road in the absence of any evidence to prove the same.
Therefore, we
are inclined to hold that the contribution of the appellants/claimants
in the accident is not proved by the respondents by producing evidence
and therefore, the finding of the Tribunal regarding contributory
negligence, which has been upheld by the High Court, is set aside.
29. The appeals are allowed accordingly.
The appellant/claimant in
Civil Appeal @ MFA 1131/2011 (MVC No. 149/ 2010) is awarded a
compensation of amount at [pic]21,65,100/-.
The appellant/claimant in
Civil Appeal @ MFA 1132/2011 (MVC No. 147/2010) is awarded a
compensation of amount at [pic]9,77,100/-.
The appellant/claimant in
Civil Appeal @ MFA 1133/2011 (MVC No. 148/2010) is awarded a
compensation of amount at [pic]15,67,000/-.
All the
appellants/claimants are entitled to interest @ 9% per annum from the
date of application till the date of payment.
30. The name of the erstwhile first respondent has been deleted from
the array of parties by Order of this Court dated 1.7.2013.
The
Insurance Company remains the sole respondent in this case.
Therefore,
we direct the Insurance Company to deposit 50% of the awarded amount
with proportionate interest within four weeks from the date of receipt
of a copy of this order, after deducting the amount if already paid,
in any of the Nationalized Bank of the choice of the appellants for a
period of 3 years.
During the said period, if they want to withdraw a
portion or entire deposited amount for their personal or any other
expenses, including development of their asset, then they are at
liberty to file application before the Tribunal for release of the
deposited amount, which may be considered by it and pass appropriate
order in this regard.
The rest of 50% amount awarded with proportionate interest shall
be paid to the appellants/claimants by way of a demand draft within
four weeks. The Insurance Company is further directed to submit
compliance report before this court within five weeks.
………………………………………………………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]
………………………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi,
January 16, 2014
-----------------------
[1] (2012) 2 SCC 267
[2] (2011) 13 SCC 236
[3] (2012) 6 SCC 421
[4] (2009) 6 SCC 121
[5] Civil Appeal no. 2867 of 2012.
[6] AIR 2012 SC 100
