S. PERUMAL Vs. K. AMBIKA & ANR
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 2377 of 2015, Judgment Date: Feb 24, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2377 OF 2015
(Arising out of SLP (Civil) No.7213/2014)
S. PERUMAL ... Appellant
Versus
K. AMBIKA & ANR. ... Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. The appellant in the instant appeal is seeking enhancement of
compensation awarded to him in M.C.O.P. No.597/2009 by the Motor Accident
Claims Tribunal, Namakkal.
3. The brief facts of the case are:- On 18.11.2009, a lorry
bearing Registration No. TN 27 0907 owned by Respondent No.1, while driven
by his driver in a rash and negligent manner dashed TVS 50 (bearing
Registration No. TN 28 X 4892) driven by the appellant from behind, due to
which appellant sustained in the eye-brow, chest and multiple injuries all
over the body. The second respondent herein is an insurance company with
which the vehicle involved in the accident was insured.
4. Appellant filed an application before the Motor Accident Claims
Tribunal, claiming compensation of Rs.5,00,000/- for the injuries sustained
by him in the alleged accident. The tribunal upon consideration of the
rival contentions, vide order dated 9.09.2011 awarded compensation of
Rs.25,300/- alongwith interest at the rate of 7.5% per annum. The
appellant being dissatisfied with the amount of compensation, approached
the High Court of Judicature at Madras in C.M.A. No.554/2013, wherein vide
impugned judgment dated 27.2.2013, the High Court refused to interfere with
the findings of the tribunal on the ground that the appellant has suffered
only simple injuries.
5. Contention of the appellant is that at the time of the accident
he was working as a labourer in a Poultry Farm and was earning Rs.6,000/-
per month. The accident has caused multiple rib fractures to the appellant
which has severely affected appellant's ability to work in the Poultry Farm
or to do any physical work. Thus, appellant has contended that he has
sustained permanent disabling injury and therefore the learned tribunal
erred in relying on self-contradictory testimony of Dr. Balaji (RW-
1) of Vinayaga Mission Hospital, Salem, who has prepared the wound
certificate (Ex. X4) on the basis of case sheet (Ex. X3) to the effect that
the appellant has suffered only two simple injuries.
6. Per contra, the learned counsel for the insurance company has,
by and large, supported the impugned judgment.
7. We have considered the rival contentions of both the parties.
8. Appellant in his claim petition has pleaded that immediately
after the incident, the injured appellant was admitted in Aravinth
Hospital, Namakkal where he had taken his first aid and then he was
admitted in Vinayaga Mission Hospital, Salem for treatment, and after
taking treatment, appellant has taken further treatment in Maruthi
Hospital.
9. In his evidence, claimant stated that he had sustained multiple
fractures and had taken treatment at Vinayaga Mission Kripananda Variyar
Medical (VMKVM) College and Hospital. To substantiate his evidence, Dr.
Govindasamy (PW-2), Medical Officer of VMKVM was examined on the side of
the claimant. He deposed that the appellant was admitted as an inpatient
on 18.11.2009 and medical treatment was given to him and he was discharged
on 24.11.2009. PW-2 further stated that X-ray was taken of the chest
portion and found fractures in right ribs 5th to 8th and Report of the same
is marked as Ex.X1. Further in the primary records maintained in the
hospital, it is stated in column of final diagnosis that there are multiple
right rib fractures 5, 6, 7, 8 and the copy of the same was marked as Ex.X2
which is prepared after comparing with the original. During cross-
examination of PW-2, suggestion was put to him that the appellant did not
sustain fractures of right ribs 5th to 8th and the same was denied by PW-2.
10. The tribunal discarded radiologist report of VMKVM College and
Hospital on the ground that the claimant had not pleaded in his claim
petition about the treatment in VMKVM College. Thus, appellant did not
specifically plead that he was treated in VMKVM College and Hospital.
However, in our considered view, it can not be taken as a ground to
discard the radiologist report of VMKVM College and Hospital. Rather, this
seems to be the inadvertence while drafting the claim petition, as
confusion is likely to happen, when admittedly both the hospitals are under
the same management i.e. Vinayaga Mission. The appellant was brought for
admission in Vinayaga Mission Hospital, Salem at 9.30 p.m. but refused to
admit himself as an in-patient. But immediately, the next morning he got
his X-ray from VMKVM College and Hospital, which is admittedly a free
hospital.
11. Relying upon the evidence of RW-1-Dr. Balaji attached to
Vinayaga Mission Hospital, the tribunal did not accept the version of PWs 1
and 2. RW-1 stated that as per the case sheet (Ex. X3), appellant
sustained (1) 4cm x 2cm abrasion on the right jaw (2) abrasions also found
on both the knees, there was no other injury except the above two. RW-1
further stated that he advised claimant to admit as an inpatient but he was
not so admitted. In Vinayaga Mission Hospital, Salem there was no free
treatment. The Discharge Summary duly recorded on examination, appellant
had swelling, tenderness and crepitus right side of chest and had rib
fractures. The Radiology report notes that appellant suffered fractures in
5th to 8th ribs. Appellant further required Rib Belt Support and
Analgesics to relieve himself from pain. It appears that appellant
discharged himself from VMKVM College and Hospital on 24.11.2009 and on the
same day admitted himself in Maruthi Hospital, Namakkal and got himself
discharged on 27.11.2009. The claimant/appellant who is mere labourer was
perhaps reluctant to get himself admitted in a paid hospital.
12. The primary evidence of PWs 1 and 2 and Radiology report ought
not to have been discarded in the absence of any cogent evidence led by the
respondent stating that they are false. Thus, the appellant duly
discharged his initial burden of proof and after that it was upon the
respondents to lead further evidence. Dr. Balaji (RW-1) himself admitted in
his re-examination that he did not check whether there
was any injury on the right ribs.
13. Dr. M. Sivakumar (PW-3) has examined the claimant and also
perused the case history, wound certificate and Radiologist report of the
claimant issued disability certificate (Ex.P11) opining that the permanent
disability is 25%. Dr. Sivakumar opined that ".....fracture
is malunited. He has pain and swelling (rt.) right chest wall. He has
difficulty in breathing. He often gets respiratory infection. He can not
do any hard work. He can not bend or lift any heavy weight. His daily
activity is affected...". Dr. Sivakumar (PW-3) assessed the disability at
25%, for which he has not only relied upon the case history and wound
certificate but had also clinically and radiologically examined the
claimant. In our view, tribunal and the High Court were not right in
brushing aside the evidence of PW-3 and Ex.P6 (disability certificate).
Tribunal and High Court have committed an error in holding that the
claimant has sustained only simple injuries. In exercise of jurisdiction
under Article 136 of the Constitution, though this Court would not normally
re-appreciate the facts and evidence, however, when the courts below erred
in ignoring material evidence, this Court can always re-appreciate the
evidence in order to render justice to the parties.
14. The injured claimant is to be compensated for his permanent
disability and also for loss of earning due to his inability, the whole
idea is to put claimant in the same position as he was prior to the
accident. In 2011 ACJ 1 (SC) (Raj Kumar v. Ajay Kumar), this Court
considered the principles for awarding compensation in injury cases, and
held as under:
"The provision of the Motor Vehicles Act, 1988 ('the Act', for short) makes
it clear that the award must be just, which means that compensation should,
to the extent possible, fully and adequately restore the claimant to the
position prior to the accident. The object of awarding damages is to make
good the loss suffered as a result of wrong done as far as money can do so,
in a fair, reasonable and equitable manner. The court or tribunal shall
have to assess the damages objectively and exclude from consideration any
speculation or fancy, though some conjecture with reference to the nature
of disability and its consequences is inevitable. A person is not only to
be compensated for the physical injury, but also for the loss which he
suffered as a result of such injury. This means that he is to be
compensated for his inability to lead a full life, his inability to enjoy
those normal amenities which he would have enjoyed but for the injuries and
his inability to earn as much as he used to earn or could have earned...
(5) The heads under which compensation is awarded in personal injury
cases are the following:
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 earnings 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 trauma as 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."
18. In 2012 ACJ 28 (Govind Yadav v. New India Assurance Company Limited),
this Court held as under:-
"15. In our view, the principles laid down in Arvind Kumar Mishra v. New
India Assurance Co. Ltd., 2010 ACJ 2867 (SC) and Raj Kumar v. Ajay Kumar,
2011 ACJ 1 (SC), must be followed by all the tribunal and the High Courts
in determining the quantum of compensation payable to the victims of
accident, who are disabled either permanently or temporarily. If the
victim of the accident suffers permanent disability, then efforts should
always be made to award adequate compensation not only for the physical
injury and treatment, but also for the loss of earnings and his inability
to lead a normal life and enjoy amenities, which he would have enjoyed but
for the disability caused due to the accident."
15. We shall now consider the question as to what is just and
reasonable compensation to be awarded to the claimant. The claimant was a
poultry labourer, he would have earned not less than Rs.4,500/- per month.
Considering the nature of occupation of the claimant and the 25%
disability, in our considered view, lumpsum compensation of Rs.2,00,000/-
towards loss of future earnings, on account of permanent disability,
Rs.13,500/- (Rs.4,500 x 3) is awarded for the loss of earning during the
period of treatment. Considering the nature of treatment and the medical
bills (Exp.5), for which an amount of Rs.1,00,000/- is awarded towards
medical expenses; Rs.50,000/- is awarded towards pain and sufferings;
Rs.10,000/- is awarded for transport charges and Rs.10,000/- is awarded for
attendant charges; Rs.10,000/- is awarded towards extra nourishment and
Rs.50,000/- is awarded towards loss of amenities.
16. The compensation of Rs.25,300/- awarded to the claimant is
enhanced to Rs.4,43,500/- payable with interest at the rate of 9% from the
date of the claim petition. The first respondent-insurance company is
directed to deposit balance compensation of Rs.4,18,200/- with interest
within a period of four weeks from the receipt of the copy of this
judgment. On such deposit, the same shall be disbursed to the claimant.
17. In the result, appeal is allowed in terms of the above directions.
Parties are directed to bear their own costs.
...............................J.
(V. GOPALA GOWDA)
..............................J.
(R. BANUMATHI)
New Delhi;
February 24, 2015