(Prayer: This MFA is filed u/s 173(1) of MV Act, 1988, praying to call for the records in m.v.c.no.4111/2015 on the file of the motor accident claims tribunal, bangalore, (scch.17) peruse the same and set aside judgment and award dated 08.05.2017 and enhance the compensation amount of rs.2,47,771/- pronounced by the trial to rs.15,00,000/- as prayed for in the mvc no.4111/2015 and to pass such other orders as this hon'ble court deems fit to pass in the facts and circumstances of the case, in the interest of justice and equity.)
Oral Judgment:
1. The present appeal has been filed under Section 173(1) of the Motor Vehicles Act, 1988, seeking to challenge Judgment and Award dated 08.05.2017 in MVC No.4111/2015 passed by the XIX Additional SCJ and MACT, Bengaluru [hereinafter referred to as the “Impugned Award”].
2. By the Impugned Award, the appellant/petitioner has been awarded a compensation of Rs.2,47,771/- along with interest at the rate of 7.5% p.a. The respondent No.2/Insurance Company is liable to pay the amount awarded. The challenge in the present appeal has been made by the appellant/claimant seeking an enhancement of the amounts awarded.
3. The brief facts of the case are that on 21.06.2015 at about 04:00 p.m. in the evening, the appellant/claimant was riding his motorcycle bearing registration No.KA- 05/HR-33 on the left side of Kanakapura main road, near Nagegowdanapalya, Koli Farm, Thalaghattapura. At that time another motorcycle bearing registration No.KA-41/Q- 134, which was ridden by its rider in a rash and negligent manner, collided with the appellant's motorcycle. Due to the impact of the collision, the appellant fell from his motorcycle and sustained injuries, and his motorcycle suffered extensive damages. Thereafter, he was admitted to Rajshekhar Hospital, where he took treatment as an inpatient for a period of three days.
4. An FIR was registered against respondent No.1/rider of the offending motorcycle and a claim petition was filed by the appellant/claimant seeking compensation for such accident before the learned Tribunal. The case was contested by the Insurance Company as well as respondent No.1/owner of the offending vehicle. However, respondent No.1/owner did not file any written statement. Respondent No.2/Insurance Company filed its written statement taking several grounds including that the accident was caused due to the negligence of the appellant/claimant as well.
5. The learned Tribunal after examining the pleadings between the parties, framed the following issues:
"1. Whether petitioner proves that on 21.06.2015 at about 4:00 p.m. when he was riding motorcycle bearing No.KA-05-HR-33, on Kanakapura Main Road, near Nagegowdanapalya Koli Farm, Thalaghattapura, Bengaluru met with an accident and sustained injuries due to actionable negligence on the part of rider of motorcycle bearing No.KA-41/Q-134 as alleged?
2. Whether petitioner is entitled for compensation? If so, at what rate and from whom?
3. What order or award?"
6. The appellant/claimant examined himself as PW.1 and examined his doctor as PW.2 and marked Exs - P1 to P19 including FIR (Ex-P1), charge sheet (Ex-P8) and his medical records (Exs-P11 to P13). Respondent No.1/owner and Respondent Nos.2/Insurance Company did not adduce any evidence. Based on the evidence of the parties, the learned Tribunal awarded compensation to the appellant/claimant under various heads as follows:
| Sl.No | Particulars | Amount (Rs.) |
| 01 | Towards pain and suffering | 50,000-00 |
| 02 | Towards attendant charges, extra food and conveyance expenses | 5,000-00 |
| 03 | Towards medical expenses | 51,811-00 |
| 04 | Loss of income during laid up period | 21,000-00 |
| 05 | Loss of future income due to permanent disability | 99,960-00 |
| 06 | Loss of future amenities and happiness | 20,000-00 |
| 07 | Towards future medical expenses | NIL |
| Total | 2,47,771-00 |
[Rs.99,960/- (Rs.7000x12x17x7/100)]
7.1. However, the learned Tribunal also found that the appellant/claimant was also responsible for the accident and thus, negligence at 50% was deducted from the compensation amount.
8. Learned counsel for the appellant raises three contentions:
8.1. In the first instance, he contends that the learned Tribunal has taken the income of the appellant/claimant wrongly at Rs.7,000/- per month. He submits that the appellant had produced his salary documents before the Court. He has placed on record Ex.P10 which is a letter issued by the employer, which indicates that the appellant was drawing a salary of Rs.20,000/- per month.
8.2. Secondly, it is contented that the disability has been erroneously assessed at 7%, whereas the doctor in his evidence has assessed the disability at 15%.
8.3. Lastly, it is contented that the appellant cannot be held liable for contributory negligence, as he was not riding the motorcycle in a rash and negligent manner. To that extent, the impugned judgment and award, in so far as it deducts 50% of the compensation awarded on the ground of contributory negligence, suffers from infirmity.
9. None appears for the respondent No.1/owner, despite service before this Court.
10. Learned counsel for respondent No.2/Insurance Company submits that so far as it concerns the contention of the appellant that the appellant was earning a sum of Rs.20,000/- per month cannot be believed. He submits that the appellant was 26 years old at the time of accident and that he was working part-time. He submits that although Ex.P10 is a letter of a company stating that the appellant was working there, the appellant did not produce the author of the letter or any official from his company to affirm the letter. Secondly, he contends that the disability assessment is correct. Lastly, he submits that the learned Tribunal upon examining Exs.P3, P5 and P7 has held that the point of impact was at the center of the junction and, having regard to the description of the damages to the motorcycle of the appellant, has concluded that both riders were negligent and had equally contributed to the negligence.
11. In the circumstances, the following questions of law are framed:
"(i) Whether the appellant is entitled to enhanced compensation?
(ii) Whether the appellant was liable for deduction on account of contributory negligence?"
12. It is not disputed by the parties that the appellant was 26 years old, he was studying and also working part- time at the Company called ‘Srinivas Mobile Cranes and Fork Lift’ at Anjanapura, Bangalore. The learned counsel for respondent No.2 contended that no employer/officer of the workplace of the appellant was examined or gave any evidence. Only a document was produced and the veracity of the document was not authenticated.
13. The Appellant is unable to produce any proof of his earning capacity other than Ex.P10. Accordingly, this Court deems it apposite to award notional income to the appellant at Rs.9,000/- per month.
14. The second issue that has been raised is on the award of disability at 7%. Learned counsel for the appellant contended that the disability should have been taken at 15% which was awarded by the doctor while, learned counsel for respondent No.2 has contended that since the doctor was not an Orthopedic Surgeon, 'he could not have assessed disability'. This Court has examined the evidence of PW.2. The evidence has been given by one Dr.Anand K. MBBS, MD, Medico-Legal Consultant at Rajashekar Hospital, Bengaluru, which is the hospital where the appellant was hospitalised during the period of his injury. The doctor has specifically stated that he possesses an MBBS degree, an MD in Forensic Medicine and he specializes in examination of medico-legal cases. He is, therefore, competent to assess medical impairment and disability. It is further stated there that the team of many doctors were involved in the treatment of the appellant and thus, he has been authorized to give evidence on that behalf.
14.1. PW2 further describes the accident and the injuries stating that the appellant had sustained crush injuries on the right foot and that he required surgery thereon. He further stated that appellant was treated by an Orthopedic Surgeon and other General Doctors at the Hospital and was diagnosed for suffering of crush injuries on the right foot. The relevant extract of this affidavit is as follows:
"I Sri. Dr. Anandas K., M.B.B.S, MD s/o Late Karibasavaiah, aged about 62 years Occupation: Medico- Legal Consultant, Rajashekar Hospital, Bengaluru, do hereby solemnly affirm and state on oath as follows:
1) I submit that I am the Medico-Legal consultant in Rajshekar Hospital, Bengaluru. I have enclosed a letter from the Managing Director of the Hospital regarding the same and also authorizing me to give evidence in the court on behalf of Rajashekar Hospital. I have M.B.B.S and M.D degree in Forensic Medicine and Specialized in examining medico-legal cases and I am competent to assess medical impairment and disability. As, a team comprising of many doctors were involved in his treatment in Rajshekar Hospital, I have been authorized to give evidence on behalf of Rajshekar Hospital.
2) xx xx xx xx xx xx xx xx xx xx
3) I submit that, he was treated by Dr. Jayanth Kumar, Orthopedic Surgeon and other General Duty doctors of the hospital. X - rays and other necessary investigations were done. It was diagnosed that he was suffering from Crush injury of the Right foot, with comminuted fractures of 1st and 2nd Metatarsal bones with extensive tendon Injury."
[Emphasis supplied]
14.2. The evidence of PW.2 further indicates that, at the time of discharge, the appellant complained of swelling and pain in the right foot while walking. The doctor has deposed that the appellant would suffer lifelong handicap and that the disability of the right lower limb is permanent in nature. He has assessed the permanent physical impairment at 15% to the right lower limb. The doctor supported his evidence by the inpatient case history as well as X-rays which are exhibited as Exs.P18 to P19. The relevant extract of this evidence is below:
"5) He was discharged on 23-06-2015 with advice to continue medicines and to come for dressing on alternate days. Myself and Dr. Jayanth Kumar, Orthopedic Surgeon examined him on 03-10-2016 to assess his recent medical condition and his permanent physical disability.
He complained of:
1) Pain in right foot, more on walking.
2) Swelling of Right foot on standing
6) I submit that, on Examination, it was found that there was operation scar on dorsum of right foot. Right 2nd and 3rd toe tender on bending. Movements of 2nd and 3rd Metatarso phalyngeal joints restricted by 20 degrees. Dorsi-flexion of Right ankle was restricted (5 degree). Muscles around right ankle were weak. X-ray of Right foot showed Malunited fractures of 1st and 2nd Metatarsal bones and 1st Tarso Metatarsal Osteo arthritic changes. He will have difficulty in carrying out his occupation as Bill Collector. He will have the following Handicaps for life. He will have difficulty in walking long distances.
7) I submit that, his disabilities of the Right lower Limb are permanent and total. His permanent physical impairment of Right lower limb is around 15% ”
[Emphasis supplied]
15. The learned counsel for respondent No.2 Mr.B.Pradeep has specifically averred that since the doctor had not obtained a specialisation in the Orthopedic Department, he was not competent to assess physical disability. The reliance in this behalf has also been placed on the provision of Section 4(1)(c)(ii) of the Employees’ Compensation Act, 1923 (henceforth referred to as 'Act 1923).
16. Section 4 of the Act, 1923 sets out the amount of compensation to be awarded in the case of various death or permanent disablement. Section 4(1)(c) of the Act, 1923 sets out where permanent disablement results from the injury and it states that where the injury is specified in Part II of Schedule I is there, then it should be as per the Schedule. However, where the injury is not specified in Schedule I, the percentage of compensation should be proportionate to the loss of earning capacity as assessed by a qualified Medical Practitioner. Section 4(1)(c) of the Act is set out below:
“4. Amount of compensation.— (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:
| (a) where death results an from the injury | amount equal to fifty per cent. of the monthly wages of the deceased employee multiplied by the relevant factor; |
| Or | |
| an amount of one lakh and twenty thousand rupees, whichever is more; | |
| (b) where permanent total disablement results from the injury | an amount equal to sixty per cent. of the monthly wages of the injured employee multiplied by the relevant factor; |
| Or | |
| an amount of one lakh and forty thousand rupees, whichever is more; |
(c) where permanent partial disablement result from the injury (i) in the case of an injury specified in Part II of Schedule I such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and
(ii) in the case of an injury not specified in Schedule I such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;
Explanation I.— Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.
Explanation II.— In assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I.”
16.1. While this provision mentions the words 'assessed by a qualified Medical Practitioner', it does not set out that the 'Medical Practitioner' must only be an 'Orthopedic Surgeon'. The words used in this provision are 'Qualified Medical Practitioner'. As is evident from the evidence referred to above, PW-2 is a MD with qualification to assess medical impairment.
16.2. In addition, PW.2 who deposed on behalf of the appellant has stated that he is one of the team of doctors, who treated the appellant and that team included an Orthopedic Surgeon. PW.2 has also stated that he has been authorized on behalf of the entire team to give his assessment and that the assessment of permanent physical impairment is of the right lower limb is around 15%.
17. It is the settled law that while assessing the future loss of earnings due to permanent disability, the Court has to examine various aspects before it reaches its conclusion on the extent of permanent physical disability. Where the claimant suffers permanent disability as a result of injuries, the assessment of compensation under the head of 'loss of future earnings' would depend on the effect and impact of the disability on his earning capacity. What requires to be assessed is how the disability would relate to his loss of earning. The Court is required to first ascertain the nature of the activity that the appellant was carrying on prior to the accident and what he could do and not do thereafter. It would also ascertain his avocation, profession and the nature of his work performed by him before the accident and determine, whether on account of the injuries sustained, he is disabled from earning his livelihood.
17.1. The Supreme Court in Raj Kumar Vs. Ajay Kumar and Another ((2011) 1 SCC 343) has in detail discussed how the Court must calculate 'loss of future earning' due to permanent disability. The Supreme Court in Rajkumar's case has summarized the principles for assessment of disability in the following manner:
"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 Co. Ltd. [(2010) 10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] and Yadava Kumar v. National Insurance Co. Ltd. [(2010) 10 SCC 341 : (2010) 3 SCC (Cri) 1285 :
(2010) 8 Scale 567] ).
12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
xx xx xx xx xx xx
15. 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.
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19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be 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."
[Emphasis supplied]
18. The learned Trial Court while assessing the loss of earning capacity stated that PW.1 has not been convincingly established his avocation and has also found that PW.2 is not the treated doctor. This Court is unable to agree with the findings of the learned Trial Court. The Doctor/PW.2 has stated that he was part of the team of doctors who treated the appellant, which is clearly set out in his evidence. He has also assessed the disability of appellant based on the medical records as well as X-rays taken during the recent examination (Exs.P18 and P19). The doctor has also found that the disability of appellant is permanent and that he will have difficulty in walking long distances throughout his life. The appellant was aged about 24 years at the time of his accident and was working as a Bill Collector. P.W.2 has given evidence that the disability of the appellant’s right lower limb is permanent and total. Thus, the appellant will have difficulty in returning to his earlier avocation and would require to him to be agile and move from place to place. Given the evidence produced and relying on settled legal principles, this Court finds no reason to reduce the disability from 15% to 7%. Thus, finding of the learned Tribunal is set aside.
19. The learned counsel for respondent No.2 has relied upon paragraph No.14 of the Impugned Award to submit that the examination of the site map, spot panchanama as well as the IMV report would depict that both vehicles suffered damages. Thus, it is clear that the front portions of both came in contact with each other. Therefore, both riders would have ridden the motorcycle negligently and without observing the on-coming vehicles in a junction. It is apposite to set out paragraph No.14 of the impugned award in the behalf:
"14. It is significant to note that in the case on hand the police records relied by the petitioner are all undisputed documents, which clearly establish the true picture of accident. The Site map and Spot Panchanama (Ex.P3 & 5) depict the topography of place of accident and the exact place of impact. The records reveal that the place of accident is the centre of a junction. The petitioner was proceeding from east to west, whereas the rider of offending motorcycle was proceeded from south to north. The exact place of impact is the centre of junction. The IMV report (Ex.P7) depicts that the offending motorcycle suffered damages i.e., front head lamp assembly and front bumper guard bend and damaged. Front both shock absorbers and steering handle bend and damaged. The motorcycle of petitioner suffered damages i.e., front left side fiber body broken and left side head assembly damaged. The nature of damages suffered by the motorcycles make it clear that their front portions came in contact with each other. These facts manifest that both the riders rode the motorcycles negligently and without observing the on coming vehicles in a junction. If any one of them ridden the motorcycle carefully by observing the moments of vehicles from the other roads of junction definitely they would have avoided collision and resultant injuries to the petitioner. Both riders rode the motorcycles negligently in a place where they required riding them with utmost care and caution. This shows that both the riders equally contributed negligence of 50 per cent each towards the occurrence of accident. In this background the above issue is answered in partly affirmative."
20. The learned Tribunal after examining the evidence placed before it and analyzing the IMV report [Ex.P7], the site map [Ex.P3], and the spot panchanama [Ex.P5] has given a finding that since both riders were coming into a junction, if they had been diligent would have avoided a collision. The appellant has not been able to show any evidence that the appellant was not negligent. Accordingly, this finding of the learned Tribunal is not interfered with by this Court.
21. In these circumstances, it is thus apposite to modify the ‘Impugned Award’ and assess the loss of future earnings in the following terms:
| Functional Disability | 15% |
| Income | Rs.9,000x12x15%x17 Rs.2,75,400/- |
| Sl.No. | Particulars | Amount (Rs.) |
| 1 | Towards pain suffering | 50,000-00 |
| 02 | Towards attendant charges, extra food and conveyance expenses | 5,000-00 |
| 03 | Towards medical expenses | 51,811-00 |
| 04 | Loss of income during laid up period | 21,000-00 |
| 05 | Loss of future income due to permanent disability | 2,75,400-00 |
| 06 | Loss of future amenities and happiness | 20,000-00 |
| Total | 4,23,211-00 |
24. Accordingly, the Court proceeds to pass the following directions:
ORDER
(i) The appeal is allowed.
(ii) The impugned Judgment and Award dated 08.05.2017 in MVC No.4111/2015 passed by the XIX Additional SCJ and MACT, Bengaluru is modified to the extent that the appellant/petitioner is entitled to enhanced compensation of Rs.4,23,211/- along with interest at the rate of 7.5% per annum from the date of petition till the date of realization, in addition to Rs.1,23,885/- that has been awarded by the Tribunal.
(iii) The remaining portion of the Impugned Award of the Tribunal remains undisturbed.
(iv) The Insurance Company shall deposit the enhanced compensation with interest at 7.5% p.a. within a period of eight weeks from the date of receipt of the judgment.
(v) The amount in deposit by the Insurance Company before this Court shall be transmitted to the Tribunal within a week.
(vi) The Registry is directed to draw the modified Award accordingly.
(vii) The Registry is directed transmit a copy of this judgment to the concerned Tribunal, along with its records.
(viii) No order as to costs.