Hon'ble Mr. Justice Dinesh Maheshwari
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6038 OF 2003
S. Kumar (Dead) Appellant(s)
VS.
United India Insurance Co. Ltd. & Anr. Respondent(s)
JUDGMENT
Dinesh Maheshwari., J
This appeal by special leave is directed against the judgment and order
dated 21.06.2001, as passed in C.M.A. No.1101 of 1995 and Cross Objection
No. 70 of 1996, whereby the High Court of Judicature at Madras has modified the
award dated 27.04.1995, as made by the Motor Accidents Claims Tribunal,
Chennai (II Judge, Court of Small Causes, Chennai) in MACT O.P. No. 2932 of
1992.
2. In the impugned judgment and order dated 21.06.2001, the High Court has
made substantial downward revision of the amount of compensation awarded by
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the Tribunal to the injured claimant-appellant; and in place of the amount
awarded by the Tribunal to the tune of Rs. 4,58,060/- together with interest @
15% p.a., has awarded a sum of Rs. 2,11,060/- together with interest @ 9% p.a.
from the date of filing of the claim application. The High Court has made such
reduction in the amount of compensation awarded by the Tribunal after
disbelieving the case of 95% permanent partial disablement, as projected by the
claimant and accepted by the Tribunal; and has allowed compensation only with
reference to the injury of fracture of left thigh bone, as originally certified.
3. The question in this appeal, therefore, is as to whether the High Court was
justified in modifying the award and reducing the amount of compensation
awarded by the Tribunal? The background aspects of the matter, so far relevant
for the question at hand, may be noticed, in brief, as follows:
On 02.08.1992 at about 05.30 p.m., the claimant-appellant, while walking
alongside a road, sustained grievous injuries on being hit by an auto rickshaw
owned by the respondent no. 2 and insured by the respondent no. 1. The
appellant made the claim for compensation with the submissions, inter alia, that
at the time of accident, he was 25 years of age and was earning Rs. 2,750/- per
month while working as a mason. Apart from asserting rash and negligent driving
of the auto rickshaw in question, the appellant submitted that due to the accident,
he had sustained the injuries of fracture of left thigh bone and on left side of the
skull as also other injuries in his stomach region and testis; he remained inpatient in the Government Hospital for 3 months and later on, he had to take
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treatment as out-patient for another 3 months. The claimant further submitted
that he was again admitted to the hospital where he remained in-patient until
25.12.1992 and operations were performed on his hip as also on testis, to bring
them back to the normal position. The claimant-appellant alleged that after the
accident, his left leg was shortened by 2”; that he was suffering from intermittent
headache and giddiness; and that due to the injuries, he was unable to do any
work, was unable to marry, and was not fit for marital life.
4. As regards his alleged injuries and disablement, the appellant examined
two doctors in evidence namely, Dr. Sai Chandran as PW-1 and Dr. Thiagarajan
as PW-4. While PW-1 pointed out that after examination, he found the left leg of
the claimant-appellant shortened by 2” due to the fracture of upper portion of his
thigh bone; that he could not sit and stand freely; and that his hip movements
were reduced by 15o
because of which, he could not do any hard labour. The
said doctor had assessed the permanent partial disablement of the claimantappellant at 45%. However, in order to prove further disablement, the claimant
examined PW-4, who stated that on examination of the claimant-appellant, he
found fracture of left thigh bone and injury on skull; and that his left testis had not
come back to original position. The said doctor PW-4 even deposed to the extent
that the claimant-appellant would not be able to perform intercourse; and
purportedly assessed the permanent partial disablement at further 50%.
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5. The Tribunal, with reference to the testimony of the said two doctors and
as also the testimony of claimant-appellant, proceeded to award compensation to
the tune of Rs. 4,58,060/- in the following manner: The Tribunal awarded a sum
of Rs. 31,000/- towards loss of earning from 03.08.1992 to 31.07.1993; Rs.
3,500/- towards travelling expenses; Rs. 6,360/- for nutrition and diet; Rs. 200/-
for damage to the dress material; Rs. 10,000/- towards medicines; Rs. 56,000/-
towards pain and suffering; Rs. 1,15,000/- towards permanent disablement and
Rs. 2,36,000/- towards future loss of earning. The Tribunal also awarded interest
@ 15% p.a. from the date of filing of the claim application.
6. In appeal by the insurer, the High Court did not interfere with the amount of
compensation awarded towards loss of earning, travelling and dietary
expenditure, and dress material. However, the High Court found that there was
no proof towards cost of medicines and hence, disallowed the claim in that
regard. As regards other aspects related with injury and disablement, the High
Court meticulously examined the evidence including the testimony of the doctors,
PW-1 and PW-4 and disbelieved the suggestions of PW-4, who had allegedly
examined the claimant-appellant after about 2½ years of the accident. After
observing that at the initial stage, there had not been any indication of the alleged
scrotum injury as also the head injury, the High Court pointed out its specific
reasons for disbelieving the suggestions put forward by the claimant-appellant
with PW-4, particularly with reference to the testimony of PW-1 in the following:-
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“12. …The evidence of the doctor P.W. 1 is that because of
the fracture in his left thigh bone the height of his left leg has
been reduced by two inches and he is not able to sit and he
cannot do heavy work and he has assessed the disability as
45%. He has given certificate Ex. P.1. P.W.1 has examined
the injured claimant on 26.6.1993 and issued that certificate
after perusal of the case sheet of the claimant as inpatient.
P.W. 1 specifically says that the claimant did not tell him that
he had sustained any other injury except the one on his left
hip and he did not sustain any injury on his head. Even though
P.W. 3 the claimant specifically says that he sustained injury
or his head also. P.W. 1’s evidence shows that the claimant
did not tell him with regard to any there was no scrotum injury
(sic). Ex. P.7 which was given after lapse of about 3 months
shows that left side of scrotum was normal and right side was
undescended testis with minimal Hydrocele and it also shows
that it was not due to accident and for the minimal Hydrocele
only surgery was done after a period of three months after the
accident. So, it is crystal clear that there was no scrotum
injury and nothing to the scrotum was caused due to that
accident. So, the evidence of P.W. 4 and the certificate issued
by him with regard to the disability for the injury caused to the
scrotum and private part are not reliable and no importance
can be attached to them.....”
7. The High Court, while rejecting the case of claimant-appellant regarding
the injury to scrotum and skull, reduced the compensation towards disablement
from Rs. 1,15,000/- to Rs. 50,000/-, towards pain and suffering from Rs. 56,000/-
to 20,000/-, and towards future loss of earning from Rs. 2,36,000/- to
Rs.1,00,000/- while observing as under:-
“14. On a perusal of the evidence of P.W. 4, we are of the
view that he is not speaking truth. He has not taken any x-ray
with regard to the damage caused to the private part of the
claimant. In the initial stage, after the accident, there was no
whisper at all by the claimant with regard to injury sustained
by him in his scrotum. Only in the year 1995, P.W. 4 examined
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him and gave disability certificate for 50% for the damage
caused to his scrotum. There is also no acceptable proof that
because of this accident, his marital life was affected. For the
foregoing discussions, we are quite unable to accept that the
claimant has sustained 95% disability. There is no proof with
regard to permanent disability caused to the claimant and he
was deprived of his attending even to his normal work. Of
course, he has sustained fracture on his thigh and other
injuries...”
8. The High Court also reduced the rate of interest as awarded by the
Tribunal @ 15% p.a. and found it appropriate to award interest @ 9% p.a. with
reference to the decision of this Court in the case of Smt. Kaushnuma Begum
v. New India Assurance Co. Ltd. and Ors. : 2001 (2) SCC 9.
9. Seeking to assail the judgment of the High Court whereby, the amount of
compensation awarded by the Tribunal has been reduced substantially, learned
counsel for the appellant has strenuously argued that the High Court has
committed a serious error in reducing the quantum of compensation by
disbelieving the testimony of doctors who had thoroughly examined and treated
the appellant. Learned counsel would argue that despite there being clear proof
of multiple injuries suffered by the appellant and his long drawn treatment,
the High Court has gone too restrictive in not awarding any amount towards
medicines and in reducing drastically the amount of compensation towards
disablement, loss of earning capacity and pain and sufferings. On the other hand,
learned counsel for the contesting respondent has duly supported the judgment
of the High Court.
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10. Having heard learned counsel for the parties and having examined the
record, we are satisfied that the High Court has made downward revision of the
quantum of compensation awarded by the Tribunal for cogent and convincing
reasons; and in the ultimate analysis, the amount awarded by the High Court
cannot be said to be too low or grossly inadequate so as to call for interference
by this Court.
11. On a bare look at the award of the Tribunal, it is but apparent that the
Tribunal merely summed up the alleged 45% permanent partial disablement of
the appellant, as initially certified by PW-1 (who had examined him immediately
after the accident) with 50% permanent partial disablement of the appellant, as
later on certified by PW-4 (who had allegedly examined him 2½ years after the
accident) and, in this manner, assessed the disablement to the extent of 95%.
The approach of the Tribunal had been suffering from obvious errors and infirmity
inasmuch as there was neither any basis nor any reason to sum up the
percentage of disablement stated by the two doctors and to take it to be a case
of 95% permanent partial disablement. Moreover, the Tribunal had totally failed to
consider that the suggestions about injury to the skull as also injury to the
scrotum were falsified by the testimony of the doctor PW-1, who had found the
only injury being that of fracture of left thigh bone. The said doctor PW-1
specifically stated that the claimant did not tell him about any other injury except
the one on the left hip; and that the claimant did not sustain any injury on his
head. It appears from the testimony of the claimant-appellant that he allegedly
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took treatment as regards scrotum in the months of November-December 1992,
but there is no evidence on record to co-relate any such ailment or deformity
concerning scrotum with the accident in question. Therefore, in our view, the
High Court has been justified in rejecting the case of 95% permanent partial
disablement and the suggestions about the injuries other than that on the left
thigh bone of the appellant.
12. Moreover, a relevant feature of this case gets noticed per force and in view
of indisputable facts available on record. The claimant-appellant overtly
suggested in the claim application that he had suffered injuries to his private
parts and at the age of 25 years, such injuries resulted in his inability to have the
bliss of marital life. The appellant has, unfortunately, expired during the pendency
of this appeal and his legal representatives, being his wife, mother and three
children are substituted as appellants in his place. The very extent of the family
left behind by the appellant, inclusive of his wife and three children, obviously
falsify his suggestions about inability of having marital life. We do not wish to
elaborate further on this aspect of the matter; suffice it to observe for the present
purpose that the case of excessive injuries and disablement, as projected by the
claimant-appellant with reference to the testimony of PW-4 was bound to be, and
has rightly been, rejected by the High Court.
13. Coming to the question of just compensation, though it is noticed that the
High Court has substantially reduced the amount of compensation awarded by
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the Tribunal but then, such a reduction was the natural consequence of rejection
of the case of 95% disablement. The High Court has, otherwise, examined the
entire evidence on record and, in the ultimate analysis, the amount awarded by
the High Court at Rs. 2,11,060/- cannot be said to be too low or grossly
inadequate on the facts and in the circumstances of this case. In this view of the
matter, some restriction by the High Court towards loss of earning or
disallowance of expenses of medicines, do not make out a case for interference
because, as observed, the ultimate award amount is not grossly inadequate in
the given set of facts and circumstances. As regards interest, the Tribunal had
been rather generous in awarding the same at an exorbitant rate of 15% p.a. that
was liable to be reduced. In fact, the High Court has yet allowed a comparatively
higher rate of interest at 9% p.a. We find absolutely no reason to consider any
upward revision in the amount of compensation awarded in this case by the High
Court.
14. For what has been discussed and observed hereinabove, this appeal fails
and is, therefore, dismissed.
...............................................J.
(ABHAY MANOHAR SAPRE)
..............................................J.
(DINESH MAHESHWARI) 1
New Delhi
Dated: 18 February, 2019.
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