B.Kothandapani vs Tamil Nadu State Transport Corp.Ltd

B. Kothandapani .... Appellant (s)

Versus

Tamil Nadu State Transport Corporation Ltd. .... Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1) Leave granted.

2) These appeals are directed against the judgment and

final order dated 13.12.2006 passed by the High Court of

Judicature at Madras in C.M.A. Nos. 103 and 122 of 2001

in and by which the High Court modified the award of the

Tribunal, i.e., from Rs. 5,05,053.45/- to Rs.4,05,053.45/-

as compensation payable to the appellant-claimant.

1 3) Brief facts:

(a) The appellant-claimant sustained grievous injuries in

a motor vehicle accident, which occurred on 21.05.1998

for which he made a claim before the Motor Accident

Claims Tribunal, Chennai (hereinafter referred to as "the

Tribunal") in O.P. No. 3868 of 1998 for a sum of Rs. 12

lakhs as compensation. The Tribunal, after finding that

the accident was caused due to the negligence of the

driver of the Tamil Nadu State Transport Corporation

(Villupuram Division-III), Kancheepuram (hereinafter

referred to as "the Corporation"), by order dated

20.12.2000, quantified the compensation and passed an

award for Rs.5,05,053.45.

(b) Aggrieved by the award of the Tribunal, the

Corporation filed C.M.A. No. 103 of 2001 before the High

Court of Madras challenging the quantum of

compensation. The appellant-claimant also filed C.M.A.

No. 122 of 2001 before the High Court for the

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enhancement of the compensation amount. Inasmuch as

both the appeals arose from the same award of the

Tribunal, the High Court heard and decided the appeals

together and passed a common order on 13.12.2006

reducing the compensation to the extent of Rs.1,00,000/-.

In other words, by the said order, the High Court allowed

the appeal of the Corporation to the extent of

Rs.1,00,000/- and dismissed the appeal of the claimant

for enhancement of the compensation.

(c) Questioning the judgment and final order of the High

Court, the claimant has filed the above appeals by way of

special leave petitions before this Court praying for

enhancement of compensation to the extent awarded by

the Tribunal.

4) Heard Mr. Vipin Nair, learned counsel for the

appellant-claimant and Mr. T. Harish Kumar, learned

counsel for the respondent-Corporation.

3 5) The only point for consideration in these appeals is

whether the appellant is entitled to a sum of

Rs. 1,00,000/- towards "permanent disability" in addition

to the amount awarded under the head "loss of earning

capacity"? Inasmuch as the issue is confined only to the

quantum of compensation, it is not necessary to traverse

the factual details relating to the accident. Even

otherwise, the claimant alone has filed the present appeals

and the Corporation has not challenged the findings

relating to negligence, it is not necessary to go into the

conclusion arrived at on the negligence aspect holding

that the driver alone was responsible for the accident.

Even, with regard to the quantum of compensation, except

reduction of Rs. 1,00,000/- which was awarded by the

Tribunal for permanent disability, it is not necessary to go

into the quantum of compensation under various heads

and the ultimate order of the Tribunal and the High Court.

4 6) The appellant-claimant, in his evidence as PW-1,

deposed that he had sustained injury on the center finger

of the right hand, his knee joint on the right leg had been

dislocated, injury on the right cheek and eyes, that he

cannot see with his left eye, his right foot had been injured

and his right ankle joint dislocated. He further explained

that after the accident, he was immediately taken to the

Government Hospital at Chengalpet and received the First

Aid and later he had been admitted in the Govt. Stanley

Hospital and was under treatment for 25 days as

inpatient. The Discharge Summary issued therein has

been marked as Ex. P-1. He further narrated that he had

undergone Physiotherapy after 25 days which is evident

from Ex. P-2. He had also undergone skin surgery at the

Stanley Hospital and the certificate relating to the same

has been marked as Ex.P-3. Even after discharge from

the Stanley Hospital, he was not fully recovered and he

had been admitted in Malar Hospital at Adayar and

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received treatment for two days. The Discharge Summary

has been marked as Ex.P-4. According to the appellant-

claimant, the middle finger of his right hand had been

amputated at the Malar Hospital, Adayar. The

prescription issued at the Malar Hospital has been

marked as Ex. P-5. From his evidence, it is seen that

during the time of the accident, he was working as a

Foreman in M/s Armstrong Hydraulics Limited and after

the accident he is unable to do any work as he cannot

bend the fingers of his right hand and using his left hand

for eating and there is pain in his right leg and he cannot

travel in a two wheeler or in a transport bus.

7) Dr. R. Rajappa was examined as PW-2. In his

evidence, he deposed that the appellant-claimant was

injured in the accident said to have been occurred on

21.05.1998 and he had received treatment as an inpatient

at the hospital at Chengalpet, later he had been admitted

as an inpatient at the Govt. Stanley Hospital. He had seen

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a lengthy scar on his right eye and his right eyebrow had

been found to be fallen and the retina of the eye was

found to be large and that it had lost the shrinking

capacity and the nerves of the eye had been affected and

there was no circulation of blood and he lost his eye sight

by about 3 meters. On examination and perusing the

medical documents about his treatment, he concluded

30% of the disability had been caused due to the injury on

the right eye and issued a Disability Certificate which has

been marked as Ex. P-9.

8) Dr. J.R.R. Thiagarajan was also examined as PW-3.

In his evidence, he deposed that the right hand of the

appellant had been injured due to the said accident and

his middle finger on the right hand had been amputated

and a plate had been placed on the fore finger towards the

dislocation of the bone. He also explained that he had

undergone treatment towards the injury on the right

forehand and on the right cheek and that the plate is still

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there on the right fore finger due to which he cannot bend

the fore finger and other fingers properly and it is difficult

for him to eat and there was swelling on the palm of his

right hand and issued a Disability Certificate which has

been marked as Ex. P-10. The Certificate issued by the

employer Ex. P-8 shows that at the time of the accident,

the appellant was working as a Grade-III worker in the

firm M/s Armstrong Hydraulics Ltd. and he was getting a

salary of Rs.3,295.28/- after deductions.

9) The Disability Certificates, Exs.P-9 & P-10, issued by

the two doctors, show that the appellant had disability to

the extent of 90%. The Tribunal, after considering the fact

that the assessment of disability may vary to the extent of

5%, concluded that the appellant had sustained

permanent disability to the extent of 85% and taking note

of his age and avocation, awarded compensation of Rs.

1,50,000/- for the same.

8 10) The High Court, relying on its own Full Bench

decision in Cholan Roadways Corporation Ltd. vs.

Ahmed Thambi and Others, 2006 (4) CTC 433, after

finding that since the claimant had been awarded a sum

of Rs. 3 lakhs towards the loss of earning capacity set

aside the award of Rs. 1,50,000/- granted under the head

"permanent disability" and awarded a further sum of

Rs.50,000/- in addition to the amount awarded by the

Tribunal.

11) In Ramesh Chandra vs. Randhir Singh & Ors.

(1990) 3 SCC 723 while considering award of

compensation for permanent disability (right foot

amputated) caused by the accident under Section 110B of

the Motor Vehicles Act, 1939 which is similar to Section

168(1) of the Motor Vehicles Act, 1988, this Court upheld

the award of compensation under separate head of pain,

suffering and loss of enjoyment of life, apart from the head

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of loss of earnings. The discussion and ultimate

conclusion are relevant which reads as under:-

"7. With regard to ground XIX covering the question that the

sum awarded for pain, suffering and loss of enjoyment of life

etc. termed as general damages should be taken to be

covered by damages granted for loss of earnings is concerned

that too is misplaced and without any basis. The pain and

suffering and loss of enjoyment of life which is a resultant

and permanent fact occasioned by the nature of injuries

received by the claimant and the ordeal he had to undergo. If

money be any solace, the grant of Rs 20,000 to the claimant

represents that solace. Money solace is the answer

discovered by the Law of Torts. No substitute has yet been

found to replace the element of money. This, on the face of it

appeals to us as a distinct head, quite apart from the

inability to earn livelihood on the basis of incapacity or

disability which is quite different. The incapacity or disability

to earn a livelihood would have to be viewed not only in

praesenti but in futuro on reasonable expectancies and taking

into account deprival of earnings of a conceivable period.

This head being totally different cannot in our view overlap

the grant of compensation under the head of pain, suffering

and loss of enjoyment of life. One head relates to the

impairment of person's capacity to earn, the other relates to

the pain and suffering and loss of enjoyment of life by the

person himself. For these reasons, we are of the considered

view that the contentions raised by the truck owner

appellant in that behalf must be negatived and we hereby

negative them."

12) It is true that the compensation for loss of earning

power/capacity has to be determined based on various

aspects including permanent injury/disability. At the

same time, it cannot be construed that compensation

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cannot be granted for permanent disability of any nature.

For example, take the case of a non-earning member of a

family who has been injured in an accident and sustained

permanent disability due to amputation of leg or hand, it

cannot be construed that no amount needs to be granted

for permanent disability. It cannot be disputed that apart

from the fact that the permanent disability affects the

earning capacity of the person concerned, undoubtedly,

one has to forego other personal comforts and even for

normal avocation they have to depend on others. In the

case on hand, two doctors had explained the nature of

injuries, treatment received and the disability suffered due

to partial loss of eye-sight and amputation of middle finger

in the right hand and we have already adverted to the

avocation, namely, at the time of accident, he was working

as Foreman in M/s Armstrong Hydraulics Ltd. Taking

note of his nature of work, partial loss in the eye sight,

loss of middle finger of the right hand, it not only affects

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his earning capacity but also affects normal avocation and

day-to-day work. In such circumstance, we are of the

view that the Tribunal was fully justified in granting a

sum of Rs.1,50,000/- towards permanent disability.

13) Considering the evidence of injured-claimant as PW-1

and two doctors as PWs. 2 & 3 coupled with the Disability

Certificates and medical documents, we conclude that the

High Court was not justified in disallowing a sum of

Rs.1,00,000/- from the total compensation of

Rs.5,05,053.45 awarded by the Tribunal. We agree with

the contention raised by the learned counsel for the

appellant-claimant and restore the award of the Tribunal.

In other words, the Corporation is liable to pay Rs.

5,05,053.45 with interest as awarded by the Tribunal. If

the said amount has not been deposited so far, the

Corporation is directed to deposit the same in the Tribunal

within two months from the date of the receipt of this

order and if any amount had already been deposited/paid

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to the claimant, the same shall be adjusted. On such a

deposit being made, the appellant-claimant is permitted to

withdraw the same. The appeals are allowed to the extent

mentioned above. There shall be no order as to costs.

..........................................J.

(P. SATHASIVAM)

..........................................J.

(DR. B.S. CHAUHAN)

NEW DELHI;

MAY 12, 2011.

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