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
[ENTITY], 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 [CASE NUMBER] [MV], [CASE NUMBER] [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 [CASE NUMBER] 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.
[CASE NUMBER])
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. [ENTITY] 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 [PRECEDENT], 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 [ENTITY] 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 [ENTITY], this Court made the following observations:
10. Where the claimant suffers a permanentdisabilityas 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 permanentdisabilityon his earning capacity.The Tribunal should not mechanically apply the percentage of permanentdisabilityas 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 permanentdisabilitywill be different from the percentage of permanentdisability.Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disabilitywould result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanentdisability, 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 permanentdisabilitywill 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 permanentdisabilityon 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 permanentdisability is approximately the same as the percentage of permanentdisabilityin 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 [PRECEDENT]).
13. Ascertainment of the effect of the permanentdisabilityon the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanentdisabilityand what he could not do as a result of the permanentdisability(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 permanentdisability, 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 [PRECEDENT], 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 [ENTITY] 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 [ENTITY]'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 [ENTITY]'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 [ENTITY] case (supra).
11. Further, regarding the use of multiplier, it was held in the [ENTITY] v. DTC[4] which was upheld in [ENTITY] 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 [ENTITY], [ENTITY] and [ENTITY]), 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 [ENTITY] 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 [PRECEDENT]. 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 [PRECEDENT], 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.
[CASE NUMBER])
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. [ENTITY] 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 [CASE NUMBER], 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.
[CASE NUMBER])
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. [ENTITY] 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 [ACT], 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 [ACT] 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 [SECTION] and [SECTION] of [ACT], 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 [CASE NUMBER]) is awarded a compensation of amount at [pic]21,65,100/-. The appellant/claimant in [CASE NUMBER]) is awarded a compensation of amount at [pic]9,77,100/-. The appellant/claimant in [CASE NUMBER]) 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. [[ENTITY]] J. [[ENTITY]] 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] [CASE NUMBER]. [6] [PRECEDENT]