THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD C.M.A. No.4417 of 2003 Date:15th April, 2011 Between: The New India Assurance Co. Ltd. Rep. by its Divisional Manager, Warangal. …Appellant and 1.Chidurala Anjan Kumar …1st respondent/Claimant 2. Battu Pochaiah …2nd respondent/ owner of the vehicle *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD C.M.A. No.4417 of 2003 JUDGMENT: ( Per Hon’ble Sri Justice B.Seshasayana Reddy) This CMA is directed against the judgment, dated 02.05.2003, passed in M.V.O.P.No.1104 on the file of the Chairman, III Motor Vehicles Accidents Claims Tribunal, Warangal, (for short, ‘the Tribunal’), whereby and where under the learned Chairman of the Tribunal awarded compensation of Rs.12,00,000/- with interest at the rate of 9% p.a. from the date of filing of the petition till the date of realization to the claimant-injured. 2. Background facts, in a nutshell, leading to filing of this CMA by the insurer of the offended lorry bearing No.APA 2373 are as follows: a) 1st respondent Chidurala Anjan Kumar was the injured in a motor accident occurred on 07.03.2001. He sustained crush injury of right leg and underwent surgeries several times in NIMS Hospital, Hyderabad and thereby incurred 60% permanent disability. He filed claim petition being OP No.1104 of 2001 on the file of the Motor Accident Claims Tribunal (District Judge), Warangal, on 14.08.2001 under Section 166 of M.V.Act, 1988 r/w Rule 455 of A.P.M.V.Rules, 1989 against the owner and insurer of the lorry bearing No. APA 2373 claiming compensation of Rs.11,91,260/- under various heads. Amounts claimed by him under various heads are as follows: “SPECIAL DAMAGES: a) Loss of earnings Rs. 37,000/- b) Transport to hospital Rs. 5,260/- c) Medical expenses and extra-nourishment Rs.1,50,000/- d) Damage to clothing and articles Rs. 1,000/- e) Future medical expenses Rs. 50,000/- f) Expenses for Employing Attendant Rs. 48,000/- GENERAL DAMAGES: a) Compensation for pain, suffering, shock and agony Rs.1,00,000/- b) Compensation for continuing or permanent disability Rs.3,00,000/- c) Compensation for loss of future earnings. Rs.5,00,000/- ---------------- Rs.11,91,260/- ---------------- The version of the claimant is that on 07.03.2001 he along with his friend A.Kiran Kumar was traveling on his motorcycle bearing No.KA 05 T/R 2577 to his Computer Institute through Pothana Bypass Road. On reaching lorry association office, a lorry bearing No.APA 2373 came in opposite direction driven by its driver in a rash and negligent manner and daushed his motorcycle. As a result, he fell down and came under the rear wheel of the lorry. The lorry dragged him to a distance and came to halt after hitting a stationed lorry bearing No.ATO 1719. His right leg below knee stuck up under rear wheel of the lorry bearing No.APA 2373. His right leg remained under the rear wheel of the lorry till it was removed with the help of a jack. He was shifted to MGM Hospital, Warangal, where first aid was given to him and thereafter, he was shifted to NIMS Hospital, Hyderabad. He took treatment as inpatient in NIMS Hospital, Hyderabad, from 08.03.2001 to 09.05.2001. He underwent surgeries on 08.03.2001, 09.03.2001, 10.03.2001, 16.03.2001, 28.03.2001, 16.04.2001 and 03.05.2001. Despite many surgeries, his right leg below knee did not regain sense and thereby, his right leg became motionless. After discharging from the hospital as inpatient, he attended the hospital as outpatient for follow-up treatment. As on the date of the accident, he was aged 23 years and was earning Rs.66,000/- p.a. as salary in M/s.Bits and Bytes Computers, which is authorised franchise for M/s.APTECH Ltd., and Rs.22,000/- p.a. as his remuneration from M/s.Cyber System at Hanamkonda and M/s.Cyber Infosis Franchise. The respondents 1 and 2 in the O.P. being the owner and the insurer of the offended vehicle respectively are liable to pay the compensation. b) The owner and the insurer of the offended vehicle filed counters resisting the claim of the claimant. The rash and negligent driving of the driver of the vehicle has been denied by the owner of the vehicle. He pleaded that he insured the vehicle with the New India Assurance Company Limited and therefore, the insurer is liable to pay the compensation, if any. c) The insurer filed counter denying the rash and negligent driving of the driver of the vehicle and contending that the compensation claimed by the claimant is on high side and that the claimant is put to strict proof of his sustaining 60% of the disability due to the injuries caused to him in the accident. d) The Tribunal framed the following issues for trial: 1) Whether the accident occurred on 7-3-2001 due to rash and negligent driving of lorry bearing No.APA 2373 driven by its driver? 2) Whether the petitioner is entitled to compensation? If so, to what amount and from whom? 3) To what relief? e) On behalf of the claimant, he got himself examined as PW.1 besides examining Dr.Y.Venkta Rao, as PW.2. He marked 22 documents as Exs.A1 to A22 to prove the nature of the injuries received by him and also the percentage of disability caused to him due to the injuries sustained in the accident. On behalf of the owner and insurer of the offended vehicle, copies of the policies have been marked as Exs.B1 and B2. f) The Tribunal, on considering the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the lorry bearing No.APA 2373 and that the claimant sustained 60% permanent disability because of the injuries received by him in the accident. With these observations, the learned Chairman of the Tribunal, arrived the compensation at Rs.15,40,006/-, but restricted to Rs.12,00,000/- as claimed by the claimant, by judgment dated 02.05.2003. The amounts arrived at by the Tribunal as compensation under various heads are as hereunder: 1. Continuing and Permanent disability Rs.12,24,000-00 2. Pain and suffering & shock and mental Agony. Rs. 1,00,000-00 3. Loss of actual earnings Rs. 37,000-00 4. Actual attendant expenses Rs. 10,000-00 5. Future attendant expenses Rs. 38,000-00 6. Actual medical expenses and Extra-nourishment charges Rs. 74,746-00 7. Future medical expenses Rs. 50,000-00 8. Transport expenses Rs. 5,260-00 9. Damage to property & cloths Rs. 1,000-00 ------------------ Total Compensation Rs.15,40,006-00 Restricted to claim Rs.12,00,000-00 ------------------- Hence, this CMA by the insurer. 3. Heard learned counsel appearing for the appellant/insurer and learned counsel appearing for the 1st respondent/claimant. 4. Learned counsel appearing for the appellant/insurer submits that the Tribunal has over-estimated the loss of earnings of the 1st respondent/claimant and thereby erred in granting compensation of Rs.12,00,000/-. Learned counsel also submits that that Ex.A18 Income-tax returns for the year 2000-2001 of the claimant cannot be the basis for his income since the said returns are filed after the accident and it is apparent that the said returns are filed to boost-up his income. Learned counsel would also submit that once the 1st respondent/ claimant claims to be a full time employee of M/s.APTECH, question of his attending to part time jobs in other business establishments does not arise. 5. Learned counsel appearing for the 1st respondent/claimant supported the judgment impugned in the appeal. 6. The only issue that calls for adjudication in this appeal is: whether the compensation granted by the Tribunal to the 1st respondent/claimant is just and proper? 7. General principles relating to compensation in injury cases are as follows: PECUNIARY DAMAGES (Special damages) i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising; a) Loss of earning during the period of treatment; b) Loss of future earnings on account of permanent disability. iii) Future medical expenses. NON-PECUNIARY DAMAGES (General damages) iv) Damages for pain, suffering and traumas a consequence of the injuries. v) Loss of amenities (and/or loss of prospects of marriage). vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 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. 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). 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 clamant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 8. The Supreme Court in Raj kumar v. Ajay Kumar[1] has summarized the principles for determination of compensation in injury cases. Para.19 of the cited judgment needs to be noted and it is thus: “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.” 9. PW.1 is the claimant. According to him, he sustained 60% permanent disability because of the injuries sustained by him in the accident. He stated in the chief-examination that he lost his employment because of the injuries received by him in the accident. It is not his evidence that because of injuries sustained by him in the accident, he was unfit to take up any other employment or his chances of getting any other employment was bleak and even if he got job, the salary was likely to be a pittance. To prove his income as on the date of accident, he mainly relied on Ex.A17 salary certificate issued by M/s.APTECH, Ex.A18 income-tax returns for the year 2000-2001, Ex.A19 statement of total income, Ex.A20 copy of Form 49(A) submitted to the income tax department and Ex.A21 challan of payment of income tax. 10. It is evident from the record that the clamant filed the income-tax returns for the first time after the accident. He included in the income not only his salaried income, but also income derived from other sources. The fact of his filing income-tax returns after the accident is admitted by the clamant in his cross-examination. He has not filed any material to show that he maintained other firms through which he had received profits. For better appreciation, we may refer the cross- examination of claimant, who has been examined as PW.1, and it reads as hereunder: “I worked in APTECH from April, 1997 to 6-3-2001. I have not filed income- tax returns during that period for the year 1997 to 1999. Thereafter I filed income tax returns. It is true that I filed my income tax returns first time after the accident. I have not filed any document to show that I was maintaining firms, namely Fibre System, CMS Franchise. I have not shown both firms in my income tax returns. As they are separate entities. Both the firms were almost closed. It is not true that I have not incurred Rs.50,000/- towards medial expenses. It is not true that I am not entitled to get Rs.1,00,000/- towards future operation expenses. It is not true that I did not suffer 60% permanent disability. It is not true that there is no negligence on the part of the lorry driver. It is not true that I was not earning Rs.66,000/ by the time of the accident, as shown in Ex.A17. It is not true that my claim is excessive.” A reading of the evidence placed on record, it is crystal clear that the claimant filed income-tax returns after the accident. There is no proof that clamant had conducted business in the name and style of M/s.Cyber System and M/s Cyber Infosis Franchise. Therefore, the reasonable conclusion is that he had no source of income except being employee of M/S.APTECH as on the date of accident. Ex.A17 is the salary certificate issued by M/s.APTECH. Annual income of the claimant as per Ex.A17 salary certificate is Rs.66,000/-.The Tribunal has taken the monthly income of the clamant at Rs.10,000/- without there being any basis. It is not the case of the claimant that his employment is stable. It is purely a private employment. Therefore, the approach of the Tribunal in arriving the monthly income of the claimant/injured at Rs.10,000/- is not based on any material. Therefore, we express our inability to appreciate the way in which the income of the claimant/injured has been assessed by the Tribunal. PW.2 is the Doctor, who medically examined the clamant/injured and issued Ex.A5 disability certificate. No doubt the claimant received a serious injury to his right leg and thereby sustained 60% permanent disability. There is no total loss of earning capacity because of the injuries sustained by him to his right leg. He is not a manual labour to infer that he lost his total earning capacity because of the serious injury to his right leg. However, it can be inferred with certainity that it will affect his efficiency in attending to his duties as an employee in a private firm. Keeping in view the nature of the job of the claimant and other circumstances, we are inclined to accept the percentage of functional disability of the claimant due to the injuries received in the accident as 60%. The claimant/injured was aged about 23 years as on the date of the accident. The Tribunal has taken the multiplier of 17 for arriving the total loss of earning capacity, which we were not inclined to disturb. Thus, the total loss of earnings because of the injuries received by the claimant can be arrived at Rs.66,000/- X 60/100 X 17 =Rs.6,73,200/-. With regard to the amounts granted under various heads by the Tribunal, we are not inclined to interfere. Thus, the claimant would be entitled to Rs.9,89,206/- as compensation under pecuniary and non-pecuniary damages. The said amount is rounded to Rs.10,00,000/-. 11. Accordingly, the CMA is allowed in part reducing the compensation from Rs.12,00,000/- to Rs.10,00,000/- with interest at the rate of 7.5% p.a. from the date of filing of the petition till the date of realization. No order as to costs. _____________________ B.SESHASAYANA REDDY, J ________________ P.DURGA PRASAD, J Date:15th April, 2011. CS THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD CMA NO.4417 OF 2003 (Judgment of the Division Bench prepared by Hon’ble Sri Justice B.Seshasayana Reddy) Date:15th April, 2011 [1] (2011) 1 SCC 343